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Osgoode Hall Law School Assistant Professor Patricia McMahon is calling for key changes to Canada’s Access to Information Act after it took her more than five years to acquire information about a significant court case that dates back more than 100 years.
McMahon said certain provisions in the law are stifling research and she is organizing an interdisciplinary group of fellow academics to advocate for changes to the law.
“When I started this project, I had no idea that it would be harder to get information about what happened during the First World War than it was to get access to the documents I relied on to do my PhD dissertation on nuclear policy,” she said. “We’re trying to come up with some easy fixes that could make a big difference in the way access-to-information claims are processed.”
McMahon filed the first of several access requests in 2011, when she started researching an article about the use of habeas corpus during the First World War. She decided to focus on two cases heard by the Supreme Court of Canada in 1918 and filed an access-to-information request for the respective Department of Justice files. The cases were brought by two farmers – George Gray from Ontario and Norman Lewis from Alberta – who challenged the federal government’s move to revoke exemptions from compulsory military service when conscription failed to raise a sufficient number of troops to fight overseas.
She received almost the entire file on the Gray case but nothing for the Lewis case because, the government stated, it contained personal information. When she challenged that finding, she received about half the file. The rest was withheld on the grounds of solicitor-client privilege. It took five years to get the full file.
McMahon said different government officials review different access-to-information requests, even ones that are related like hers, and often come up with different conclusions as to what and how much can be released. That’s why she received most of the Gray file but had problems getting documents from the Lewis file, notwithstanding that each contained the same types of records.
“When in doubt, people typically take the cautious and most conservative approach and don’t release documents,” she said. “Everybody is afraid of releasing something that shouldn’t have been released.”
She said the interdisciplinary group of scholars she has helped to organize is hoping to shed light on the problems that the Access to Information Act is posing for researchers.
“It’s not just about access for journalists, which is really important,” she said, “but it’s also affecting the work that social scientists and others can do.”
McMahon said the group hopes to hold a symposium in the spring that will give researchers an opportunity to discuss the access-to-information problems they’re facing and some possible solutions.
For McMahon’s research, the challenge was the way government relied on solicitor-client privilege to withhold select documents.
“Solicitor-client privilege survives for all time and belongs to the client,” she explained. “In the case of government lawyers, the government is the client. Solicitor-client privilege is a discretionary ground under the Access to Information Act, which simply means that government may withhold documents but has the discretion to release them, too.”
In McMahon’s view, solicitor-client privilege should not be used to protect government documents from permanent scrutiny. Even a temporal limit – like 20 or 30 years – would go a long way toward improving the situation.
“Whether the right amount of time is 20 or 30 years is a matter of debate,” she said, “but few could think it justified to withhold documents from researchers that are almost 100 years old.”