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The CHA expresses its concerns regarding Bill C59 and favours a review of the current Access to Information Act

Ottawa, September 21, 2015

Suzanne Legault
Information Commissioner
Office of the Information Commissioner of Canada
30 Victoria St.
Gatineau (Québec) K1A 1H3

Dear Information Commissioner Legault,

I write on behalf of the membership of the Canadian Historical Association/Société Historique du Canada, a professional association representing over a thousand historians in Canada. Access to information and government records is a major concern for the CHA/SHC: many of our members are researchers whose work is directly affected by the current federal legislation, and all of our members are citizens who care deeply about maintaining transparency and openness in government. Of course, historians routinely work within, and respect ethical guidelines concerning confidentiality and privacy laid out by the profession, archival requirements, and government legislation. We are concerned at present with two issues: the implications of Bill C59, passed by the last parliament, and your statements concerning the need for an overall review of the current Access to Information Act.

Although Bill C 59 was a budget bill (Economic Action Plan 2015 Act, No 1), it contained within it clauses which essentially made records of the defunct long-gun registry exempt from access requests. Indeed, the legislation went further, making this alteration retroactive, thus affecting an outstanding access request for these records, made before they were to be destroyed. The principle here is significant, and we are worried about the precedent: legislation should not ‘disappear’ existing access requests by retroactively changing the rules about access to information in general, or in relation to certain events, acts, individuals, or organizations. Such a serious issue as altering privacy rules needs to be discussed openly, in either political or professional forums.

Your office, journalists, and some political representatives have made their concerns about C-59 publicly known. We echo many of those concerns, and urge further discussion about this worrying precedent, perhaps before the parliamentary ethics committee, as some have suggested. To allow this element of C-59 to go unchallenged would send a message that governments can retroactively alter access to information in order to protect either themselves, or some other group, from scrutiny and indeed from prosecution for contravening the Act. It is rather astounding to us that C 59 not only denied the complainant right of access, but also any recourse in the courts. As historians, the idea that passage of such a bill can retroactively eliminate access to sources that we have at least a right to request using the Act is deeply disturbing.

More generally, we have concerns beyond C 59. Historians whose research and writing involves using Library and Archives Canada, and indeed any sources generated by the Canadian government and its many agencies, are affected by the Information Act in profound ways. While we realize there will always be some limitations on access to governmental records, due to the need for privacy, we strongly believe that the most accurate, comprehensive and insightful history will emerge from research that takes into account a comprehensive examination of all the evidence available, all the evidence possible. If we want excellent history to be written, we need openness, transparency, and the most generous interpretation of the act possible with regards to historical documents. We need timely access and a realistic policy on historical sources; one which restricts access only when absolutely necessary.

One of the disturbing trends we have witnessed is the increasing length of time it takes to do any research which involves documents covered by the Act; this is not criticize archival staff involved in access, but rather to point out that their jobs have necessarily become more complicated and time consuming. The complexity and time involved in gaining access to historical sources is an especially serious problem for graduate students who are being forced due to cutbacks in their funding to finish their research in a shorter period of time. Regardless of the intent of current policy, restricted access to government records threatens to negatively impact the work of a new generation of emerging scholars in our discipline.

I am sure many historians were in complete agreement when your office recently spoke about the need to “modernize” the Act, which has ironically “eroded” access rather than facilitated transparency. We would be happy to meet with you to discuss some of our concerns in more detail, and should the Act be revised, we would like very much to have the opportunity for input and comment.

Joan Sangster
President
Canadian Historical Association

  

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