Thirteen Saskatchewan ministries refuse to comply with information commissioner’s decision

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Thirteen provincial ministries are disregarding a decision by Saskatchewan’s Information Commissioner, a move experts say points to a lack of accountability mechanisms in the province’s freedom of information system.

The Globe and Mail filed an appeal in September with the Office of the Saskatchewan Information and Privacy Commissioner, which adjudicates access disputes, after the ministries uniformly insisted on releasing records in an unwieldy format.

In March, Information Commissioner Ron Kruzeniski decided against the 13 institutions, including the ministries for finance, justice, energy, agriculture and the Executive Council. In his decision, he wrote that they had failed to comply with the province’s freedom of information (FOI) law, and found that they should release the records in the format requested by The Globe.

But, in virtually identical response letters, every ministry declined to do so, stating that they had fulfilled their requirements under the law.

The ministry “does not accept the recommendation,” the government’s responses read.

Unlike many of his counterparts in other jurisdictions, Mr. Kruzeniski does not have the power to order institutions to comply with his decisions. Instead, his office can only issue recommendations, which public institutions can disregard without consequence.

As a result, public institutions in Saskatchewan frequently ignore the commissioner: According to the office’s most recent annual report, in the 2022-23 fiscal year, public bodies were in “full compliance” with the office’s reports just 47 per cent of the time. Information commissioners in five other Canadian jurisdictions – Manitoba, New Brunswick, Nova Scotia, Nunavut and Yukon – also lack order-making power.

Freedom of information laws are intended to promote transparency by allowing documents to be requested from public institutions. The laws require institutions to disclose the requested information, with limited exceptions.

The requests to Saskatchewan were filed for Secret Canada’s FOI database, a data-collection effort that aims to track access requests completed each year by every major public institution in Canada. To that end, The Globe filed more than 400 requests in 2023 to provincial, territorial and federal ministries, municipalities, hospitals, police services and other major public institutions asking for data from each organization’s FOI tracking system.

The issue arose after ministries would not release their FOI data in a machine-readable form, ignoring The Globe’s explicit requests for spreadsheet files such as those produced by Microsoft Excel. Instead, they released their records as PDFs – a format that does not easily translate back into data – despite the fact that all ministries but one confirmed that they had the information in spreadsheet format.

When asked why they declined to release their data in spreadsheet form, several ministries said they had to do so to “preserve the integrity of the records.” (In 2022, the Ministry of Agriculture released its FOI tracking data to The Globe in Excel format; last year, it switched to providing PDFs.)

In 2023, The Globe’s Secret Canada investigation probed the state of Canada’s access systems and found that public institutions are routinely breaking the law by overusing redactions, violating statutory time limits and claiming “no records” exist when they do. And these organizations face few – if any – consequences for ignoring the precedents set by courts and information commissioners.

Gary Dickson, a former information and privacy commissioner in Saskatchewan who now consults on access and privacy across the country, reviewed the appeal decision and ministries’ responses for The Globe.

Mr. Dickson said that the ministries had completely ignored their duty to assist reporters in their request. In FOI laws, the “duty to assist” mechanism stipulates that public institutions must help requesters during the access process.

“Here it looks like there’s no attempt whatsoever to help,” he said. “The issue, as I see it, is that administrative inconvenience can’t be allowed to trump the public’s right to know.”

The Information Commissioner’s investigation shows that the Justice Ministry played a significant role in the FOI process. According to the decision, all 13 ministries relied on government lawyers to produce their responses to the FOIs and subsequent appeal.

After receiving PDF documents from the ministries last fall, The Globe pushed back and asked for Excel records. Each ministry’s response was virtually identical. Their recent letters to The Globe rejecting the commissioner’s recommendations were also nearly identical.

“It looks to me like everybody is deferring to advice they’re getting from the Justice Department,” Mr. Dickson said, “which is inconsistent with the statutory duty to assist.”

In Saskatchewan, that department plays a large role in advising government departments and crafting responses to FOI requests, Mr. Dickson said. “I can’t think of many other jurisdictions in which the experts – or perceived experts – on FOI are the lawyers in the Justice Department.”

The government disagrees, and maintains that it “satisfied the duty to assist when it provided the records in question, subject to established exemptions,” according to spokesperson Noel Busse. Saskatchewan is “not considering any changes to provincial access to information legislation at this time,” Mr. Busse added.

Scott Thompson, a sociology professor at the University of Saskatchewan who often uses FOI for his research, said it was “deeply upsetting” that the Information Commissioner’s recommendations are routinely disregarded.

Dr. Thompson said the government’s unwillingness to comply with the decision’s recommendations is cause for concern in two ways: It demonstrates a misunderstanding regarding the role played by media and researchers, and it shows a “lack of belief” or value in the work done by the commissioner.

“When the government doesn’t listen to these recommendations, it’s extremely frustrating,” he said.

“If we believe in democracy’s voices, and are committed to enabling critique outside of the government, then yes, obviously the Office of the Information and Privacy Commissioner should be empowered to make formal decisions that have to be followed across government.”