‘Completely inadequate’: What’s wrong with Saskatchewan’s freedom of information laws?

Kayle Neis/Regina Leader-Post Patricia Elliott, a journalism professor at the First Nations University of Canada, stands in her office on Feb. 27, 2024.

“I’ve always argued it needed a major overhaul, but I would not trust this government to be the government that does that. They’ve given every indication they’re not on the side of transparency.”

Larissa Kurz

Regina Leader-Post

A freedom of information request, or FOI, is a request for records possessed by a public body that can be reasonably seen as public information.

Municipal, provincial and federal jurisdictions are all bound by access to information laws, which serve as a mechanism for the public to keep such bodies accountable.

A person can submit an FOI seeking a wide variety of things like emails, internal memos, regulatory reports, etc. — and the agency is legally required to respond to those requests openly and accurately.

Provisions exist to protect privacy during disclosure, allowing the redaction (censorship) of things like personal information proprietary details, or under what’s called “cabinet confidence,” which protects political secrets that would undermine government’s ability to “speak in unison” before parliament and the public.

The spirit of the legislation is to provide equal access and transparency into government actions.

But, as investigative efforts by Canadian media have revealed, the system has more cracks than it should.

Saskatchewan’s law puts government on top

Saskatchewan’s primary legislation, The Freedom of Information and Protection of Privacy Act (FOIP), applies to the provincial government and all of its arms.

Municipal governments, universities, and school boards are governed by the Local Authority Freedom of Information and Protection of Privacy Act (LAFOIPP) while health bodies operate under the Health Information Privacy Act.

FOIs are a popular tool for members of the media looking to hold public bodies to account. Journalists follow the same process any member of the public would, but often with more resources, guidance and financial support.

The office of Saskatchewan’s Information and Privacy Commissioner (IPC) — the watchdog appointed to oversee disputes — takes about 1,300 calls a year with questions about privacy legislation and the FOI process.

Most people know far more about breach of privacy laws than they do about their access to information rights, mused IPC Ronald Kruzeniski.

Patricia Elliott agreed.

“The biggest barrier is knowing that the system exists,” said Elliott, a professor of journalism at the First Nations University of Canada, and someone who’s been filing FOIs for decades.

The next hurdle for the average citizen tends to be cost.

Pursuing an FOI comes with a fee to cover the time it takes to prepare documents for release. Some charge an application fee on top of that.

“That moment you get the letter back with an estimated cost, to me, that’s the moment that probably stops a lot of citizen’s requests, because they’re not expecting a $10,000 estimate,” Elliott said.

Sounds like a wild figure, but it happens.

The Canadian Taxpayers Federation was quoted $11,850 for municipal financial records reported to the Ministry of Government Relations in 2023 — public documents Kruzeniski said shouldn’t require an FOI at all.

The Saskatchewan NDP was recently quoted $107,280 for an FOI to the Ministry of Environment to see the province’s wetlands drainage policy.

Fees can be prohibitive to the average person, and even exemptions can be difficult to navigate because it requires the applicant to prove the fee would cause “substantial financial hardship.”

The timeline to see a request through can also be tough to stomach.

The typical process is straightforward: file a request with the relevant agency’s freedom of information officer, get a quote for what it would cost to process, then pay the fee and wait for files to be delivered.

Deadlines throughout aim to guide the process in a timely manner. However, the most straightforward FOI can still take months to return, even if all parties are operating within the deadlines.

“There’s how it should work, and then how it does work,” Elliott pointed out.

Public bodies exceed deadlines all the time. Sometimes they deny records exist, refuse to provide them or redact details overzealously — and not everyone tries to challenge such violations through the IPC.

Requesting a review is a right under the law but it can add months to the timeline — if it’s granted at all.

Few avenues to push for answers

Saskatchewan is one of six provinces where the IPC cannot force public bodies to release records.

Instead, Saskatchewan’s commissioner functions more like an ombudsman, reviewing disputes and issuing non-binding recommendations.

Saskatchewan also doesn’t have what’s known as a “public interest override” provision, which could negate a justified refusal if the information serves the public interest.

Compliance by Saskatchewan’s public bodies is among the lowest in the country, according to an audit done through the Globe and Mail’s investigative project Secret Canada.

Of the 1,534 access requests processed by the provincial government in the 2022-23 fiscal year, records were deemed to exist in 872 of those cases and were “granted in full or in part 96 per cent of the time,” the Ministry of Justice told the Leader-Post.

In the same year, Kruzeniski did 148 reviews — the most in any fiscal year — and said government bodies fail to comply fully 53 per cent of the time. Five years ago, non-compliance rates were 36 per cent.

To see the number of commissioner’s reports increase and compliance decline is “indicative” of a provincial system keeping a tighter grasp on information, Elliott said.

“Information delayed is information denied,” she said. “Governments that hide behind the veil of secrecy end up looking like governments that want to keep secrets.”

The only recourse if denied is to take the issue to court, an extreme that happens very rarely because it’s costly, complicated and time-consuming.

Elliott is one of only a handful who’s done it.

In 2017, she asked the environment ministry for pipeline inspection and cleanup reports related to a 2016 oil spill by Husky into the North Saskatchewan River.

Her FOI sought reports that by all rights should have been public through the regulatory body, but the ministry refused. The IPC found it was an unjustified response.

Elliott’s case didn’t see a courtroom. After filing for a court order, the ministry “dumped a big envelope” in her lap and the hearing was called off.

She still paid at least $3,000 in legal fees just to start the process. It took two years from the time she filed the FOI to when she received the documents.

“To me, that just says the legislation is completely inadequate in the area of enforcement,” Elliott said. “Most citizens cannot afford to go to court. For me, I felt like I had no choice. It felt like an injustice. It didn’t feel like transparency.”

How can it be fixed?

Saskatchewan’s legislation is more than 30 years old, a fact alone that Kruzeniski said warrants a “serious look” at ways to modernize it.

Both FOIP acts were last touched in 2018, when the ministry revised the legislation to include police services and expanded privacy restrictions to include MLAs and cabinet offices.

Kruzeniski wants to see further updates, but that decisions lies with the government of the day.

“I’ve always argued it needed a major overhaul,” agreed Elliott, “but I would not trust this government to be the government that does that. They’ve given every indication they’re not on the side of transparency.”

Changes must reflect the emerging need for digital security and the storage of files in databases instead of filing cabinets, Kruzeniski said.

The Globe and Mail recently hit a wall when 13 Saskatchewan ministries refused to provide data in a functional spreadsheet and insisted on releasing records in an “unwieldy format.” In his ruling, Kruzeniski recommended the ministries provide the data in the manner it was requested but they refused, according to the Globe.

Kruzeniski would also like the province to consider a compliance framework similar to one adopted by Newfoundland in 2015.

In that model, institutions are given 30 days from the issuance of the commissioner’s recommendation to comply.

If there’s no answer, the institution is then obligated to produce the requested files. If the answer is no, it falls on the public body to justify the denial in court.

“It shifts the onus to the public body, rather than the citizen, to take it to court,” explained Kruzeniski, noting that it also puts pressure on both institutions and his office to be “reasonable” and tempered.

Even if he had ultimate order-making power, involved parties would still be able to appeal his rulings through the province’s upper courts.

The Ministry of Justice told the Leader-Post in March there are no current plans to alter Saskatchewan’s access to information laws.

“The province monitors legislation in other Canadian jurisdictions on an ongoing basis,” said a spokesperson in an emailed statement.

Should the ministry change its mind, the legislative process means it would likely take several years for changes to come into effect.

Asked if he thinks Saskatchewan’s FOI system works, Kruzeniski was divided.

“I do feel we’ve made progress,” he said. “But on the other hand, I have ideas on how this system can work better, so it’s a ‘glass half-full, half-empty’ answer.”