Citing bilingualism as an excuse to obscure transparency is a disservice to both causes.
by Matt Malone, Ashley Desautels. Originally published on Policy Options
August 19, 2024
(Version française disponible ici)
Should no copies of completed access to information responses be proactively published by the federal government because all copies of completed access to information responses are not available in both official languages?
The answer may determine the future of a key part of Canada’s access to information framework.
Treasury Board documents obtained by The Globe and Mail in 2022 say translation of such documents is required by the Official Languages Act before publication and would cost almost $1 billion per year.
The federal government has therefore resisted automatic publication of all completed access to information responses. Instead, the government publishes only summaries of those responses in an online database. As of mid-August 2024, there were more than 68,300 summaries there.
Users reviewing these summaries can make “informal requests” for full copies of previous responses on a one-by-one basis. But this largely manual process is time- and resource-consuming. According to the Treasury Board Secretariat’s most recent yearly roundup, there were 47,426 such informal requests made in 2022-23 – all answered individually.
Transparency advocates have long called for full copies of all completed requests to be put into the public domain.
Two bright lights among federal institutions – the CBC and the National Capital Commission – currently do just that. They publish the completed versions of their access to information responses on their respective websites, solely in the language in which they were originally published.
This is a best practice in open government that some provincial and territorial governments already meet. For example, Newfoundland and Labrador, British Columbia, Nova Scotia and Yukon all make their access to information responses proactively available at some point after they are released to the individual who requested them. Some municipalities do so, too (e.g., Vancouver and Montreal.)
The federal government should be following suit. Publishing completed copies of all access to information requests serves many public interests, including enhanced transparency, heightened accountability and better-informed decision-making.
Doing so without requiring translation to the other official language is eminently in the public interest and is a core solution for tackling the ongoing crisis in the access to information system.
For a public database of requests
The current alternative – making individual requests through the online database of summaries – is not just a slow and tedious process. The federal government also makes it clear that these informal requests come with “no deadlines for responding” and “no statutory right to complain.”
Instead, civil society actors have been calling for proactive publication of all completed access to information requests online in a searchable database.
The Commons standing committee on access to information, privacy and ethics agrees. In its latest study tabled in June 2023, the committee recommends: “the Government of Canada publish all access to information requests not related to personal information in a searchable database.”
That has not happened. Instead, civic society actors with limited resources have been doing what they can to fill the void, with projects such as Open by Default, Secret Canada and Canada Declassified. (Full disclosure: we are involved with the Open by Default project).
Why would the government not proactively publish all requests?
The Liberal Party’s dissent to the Commons committee study cited several objections to its recommendations, placing a strong emphasis on respect for official bilingualism.
“While currently records are shared in the language in which they were created and, if requested, translated into the other official language, to comply with the Official Languages Act, they would all need to be translated before being posted online,” the dissent argues.
“In 2021-22, that would have meant translating 8.8 million pages, which would have a very considerable cost (indeed, recent years have seen as many as 24.8 million pages released). Those resources would be better used to improve service.”
High cost estimates
In 2016, the official languages directorate of the Department of Justice estimated the cost of translating access to information responses at $143 per page. It is estimated the current cost of translating all records might exceed $2 billion.
However, the Liberals’ rigidly formal view of the requirements of the Official Languages Act has many flaws that go beyond the purported cost of translation.
The issue is not translation rights for formal requests for access to information under Section 4 of the Access to Information Act. These requests cost $5. The government must respond within 30 days (although it usually goes over) and the party making the request can seek review by the information commissioner or the federal court.
Instead, the issue is whether informal requests – those the government has said come with “no deadlines for responding” and give the requestor “no statutory right to complain” – enjoy the fullest protection under the strictest-possible interpretation of the Official Languages Act.
There is no evidence that requests for translation are not being granted for formal requests, which would indeed present concern. In fact, in 2022-23, there was only one translation request made (out of more than 200,000 requests made that year).
Requests for informal translation are by no means denied by default in the current system either
The directive on access to information requests notes: “Should the requester seek the records in the official language different from which they currently exist, [the institution is responsible for] preparing and providing a translation of records if the head of the institution considers translation of the record to be in the public interest.”
Of course, respect for both official languages is of the utmost importance. However, providing documents in the original language in which they were created does not imply any disrespect for the other official language.
The current system provides for translation of formal requests when it is requested; it encourages translation of informal requests when it is in the public interest.
A false premise hurts transparency
It should be possible to deal with informal requests while still respecting the spirit of the legislation. In Section 3.1(a) of the Official Languages Act, it is stated that “language rights are to be given a large, liberal, and purposive interpretation.”
By taking too formal an approach when it comes to informal requests, the government ignores this intent. It also ignores the spirit of the Access to Information Act itself. To say that nothing can be made proactively available, because not everything is available in both official languages, is an attitude that is fundamentally anti-transparency.
Using bilingualism as a rationale to undermine basic government transparency efforts undermines support for bilingualism itself because it risks creating the perception that language policy is being weaponized to limit access to information – effectively using one laudable policy objective against the other.
This approach could also potentially weaken broader public support for bilingualism initiatives, which are intended to enhance inclusivity and respect for official languages, rather than restrict transparency.
Finally, experts on official bilingualism believe a solution is possible.
Graham Fraser, the commissioner of official languages from 2006 to 2016, has stated it should be possible to “respect the spirit of the Official Languages Act and, at the same time, provide more transparency.”
“I was under the impression that once a document was released under access to information, it was then in the public domain,” he said. “As the public inquiry into the Emergencies Act has shown, not every document, communication or e-mail needs to be translated before being made public.”
This is the spirit that should also guide access to information reforms.
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This article first appeared on Policy Options and is republished here under a Creative Commons license.