Access to Justice Requires Timely Access to Information


Access to Justice Requires Timely Access to Information

Access to justice means different things to different people. To some, it means the right and the practical ability to access an independent and impartial decision maker who will resolve legal disputes according to the rule of law. To others, it means timely and affordable access to the knowledge, resources and services that enable people to deal effectively with legal issues in their lives. But no matter how you define it, access to justice often requires timely access to information.

On this score, our freedom of information laws are falling short.

Jurisdictions across Canada have enacted freedom of information laws that give everyone the right to timely access to information held by public bodies, subject to exceptions. These laws aim to promote transparency and accountability within government. But they also serve another vital purpose: promoting access to justice.

In many cases, people require timely access to information held by public bodies to formulate, develop and prosecute a legal claim effectively. For example, a prisoner who has suffered unlawful treatment by correctional authorities may require timely access to information about their treatment in prison held by public bodies. Likewise, Indigenous peoples who have suffered historical injustices may require timely access to historical records held by public bodies. The discovery process, which is slow, expensive, and potentially unavailable depending on the circumstances, is no substitute for the right to timely access to information held by public bodies.

Despite the important role Canadian freedom of information laws can play in promoting access to justice, these laws have — for decades — failed to live up to their promise. At the federal level, the Information Commissioner of Canada noted in a 2015 report titled Striking the Right Balance for Transparency that information commissioners have persistently raised the issue of delay since 1983, and that a culture of delay exists across the access to information system. In British Columbia, the provincial information and privacy commissioner noted in a 2020 report titled Now Is the Time that between April 2017 and March 2020, public bodies exceeded the 60-day statutory response deadline in over 4,000 cases, leading the information and privacy commissioner to issue a “wake-up call” to government. The COVID-19 pandemic only exacerbated the longstanding issue of delay.

Change is needed — in policy and in culture — to promote access to justice through timely access to information. For example, policy makers in Canada should consider:

  • granting information and privacy regulators the power to order public bodies to disclose information or take other appropriate steps in response to access requests;
  • granting information and privacy regulators the power to levy fines on public bodies that fail to comply with freedom of information laws;
  • requiring public bodies to seek express prior permission from the relevant information and privacy regulator for any extension beyond 30 days;
  • dedicating more resources to freedom of information request processing teams;
  • utilizing artificial intelligence and other technologies to increase processing speed, accuracy and efficiency;
  • removing overbroad or vague exceptions to the general rule requiring disclosure; and
  • simplifying and streamlining freedom of information laws to make them easier to understand, engage and apply.

Perhaps most of all, we need a culture shift within government — away from delay, toward timely access. While policy changes can encourage this culture shift, these changes must be accompanied by a deeper cultural commitment — across government — to timely access for the public good.

Increasing access to justice is one of the most pressing issues our profession — and our society — faces. Timely access to information can —and should — be part of the solution.