Ottawa issues ‘sunset clauses’ on access to historical records

Open this photo in the gallery:

The federal government is directing public officials to begin releasing historical data after designated time thresholds, a significant shift in public policy that has kept information hidden from Canadians for decades.

On Wednesday, the Treasury Board announced it was introducing “sunset clauses” – which set a date on which sensitive data can be released, often 20, 25 or 30 years after it was created – for federal records. These clauses are common in democracies around the world.

But Canada, unlike its closest allies, did not have a process in place to open decades-old data that was once considered sensitive. The situation has created a crisis for historians who have had to rely on public archives in other countries to research Canada.

The new rules are recommendations and have not been enacted into law, but they are the most important step Canada has taken to modernize the way it handles historical records since the access to information law was adopted in 1983.

The government’s announcement follows an investigation published last fall by the Globe and Mail that revealed numerous barriers Canadian historians face in accessing records, including that documents from World War I were withheld on privacy grounds – even though all interested parties were dead for a decade.

The article was part of The Globe’s Secret Canada project, a wide-ranging examination of the country’s dysfunctional freedom of information system, which found that public institutions regularly violate access laws.

Before coming to power in 2015, Liberal leader Justin Trudeau campaigned on promises to update federal access laws. He pledged that a Liberal government would be “open by default.”

Since then, Federal Information Commissioner Caroline Maynard has warned that the system is getting worse.

Treasury Board Chair Anita Anand called Wednesday’s announcement a “gamechanger.”

“Until now, if you were a government official, you had no framework that could encourage you, motivate you, or provide you with documents,” she told The Globe. “I expect all departments to follow these guidelines to ensure the availability of government documents.”

The Liberal government will review federal access legislation in 2025, but Ms Anand said she did not want to wait until then and therefore insisted on making recommendations.

“This is just the first step. It’s not over yet,” she said. “The entire historical disclosure guidelines send a signal to government officials that we intend to release historical documents. Period.”

The statement was met with applause and criticism from historians.

Timothy Sayle, professor of history and director of the international relations program at the University of Toronto, noted that the recommended sunset clause for international affairs and defense records is 50 years.

“I find it outrageous, but at the same time, bizarrely, it is an improvement over what we have now,” he said. “It really sends a terrible signal. Fifty years is an extremely long time ago. This is 1974.

Sayle expressed particular concern that the recommendation would send a signal to analysts that anything older than 50 years should no longer be released.

Typically, researchers obtain historical data from government departments by submitting Freedom of Information requests. The problem is that these applications are assessed under rules designed to control the sensitivity of modern registers. Current law does not recognize how the passage of time reduces the sensitivity of certain information.

The international affairs and defense records category is a discretionary exception, meaning that government officials have always been able to use their judgment in deciding whether the records should be released. Often, because applications are assessed based on outdated regulations, caution must be exercised and documentation withheld.

But now Mr. Sayle worries that denial will become the default.

“I’m really worried that analysts and reviewers will misinterpret this signal and suggest that we should hold off on publications less than 50 years old,” he said.

“For example, right now I am searching for and receiving information about the preparations for the war in Iraq, which has been going on for over 20 years. Even though editing is ongoing, much of this information is being revealed to me. How will an analyst look at it?”

Richard Provencher, a spokesman for Library and Archives Canada, said the archives has been working closely with the Treasury Board on the policy and is currently “refining its implementation plan.” He noted that under the new guidelines, registers will not be opened automatically and access provisions will still apply.

Access laws – sometimes called freedom of information or right to information laws – exist in countries around the world and across Canada at the federal, territorial and provincial levels, and in some cases at the local level. They establish a procedure for access to public records that would otherwise not be disclosed and enshrine in law the principle that people have the right to know how their public institutions are run and how their taxes are spent.

All access laws recognize that certain documents must be kept secret for the government to function, such as documents that could threaten national security. Therefore, the legislation also provides for exceptions and exemptions.

However, other countries have also taken into account that provisions become less sensitive over time and this is where sunset clauses come into play. The United States, United Kingdom, Australia and New Zealand, as well as democracies such as France, Germany and Sweden, among others, all have processes in place to open previously closed registers.

In the new guidance, the Treasury Board set time thresholds such as 30 years for records relating to “business interests” – such as documents containing sensitive trade secrets – and 100 years for records protected by the attorney-client privilege.

Interestingly, Canada used to have something similar. In the 1970s, the government adopted a series of directives establishing a “30-year rule” for the issuance of historical records. However, when the Access to Information and Privacy Act came into force in 1983, it invalidated these directives.

Historians and researchers have been calling on successive federal governments for decades to restore some kind of sunset clause. Last October, the federal Liberals refused to make any changes to the legislation following a nine-month review of access laws that recommended, among other things, changes to the way historical records are handled. The House of Commons Access to Information Committee has recommended a 25-year rule for historical data.

In February, Conservative leader Pierre Poilievre focused on the government’s access policy, saying the Conservative government would “speed up response times” and “disclose more information.”