Suzanne Legault, Canada’s information commissioner, found that three Conservative staff members interfered with requests filed under federal access to information legislation. The Public Works and Government Services Canada employees directed officials attempting to process five requests not to disclose some information.
Blockbuster revelations produced by access to information requests or unsealed court documents — everything from details of a criminal investigation involving Mayor Rob Ford, to revelations about former cabinet minister Bev Oda’s $16 orange juice — are a testament to the importance of transparency.
But information watchdogs, researchers, media and others say Canadians are not gaining their rightful access to public knowledge, even as advances in technology allow for much greater opportunities for transparency.
“The government has essentially done everything they can to make access to information impossible,” said Tom Henheffer, executive director at Canadian Journalists for Free Expression.
A portion of the failure lies in our country’s access to information legislation and how well it’s being followed.
The federal government, often fingered as the worst in terms of compliance with transparency legislation compared with provincial and municipal governments, says it is dealing with more requests and releasing more information than ever.
Others disagree.
“Right now, it’s not an Access to Information Act,” Duff Conacher, a director of Democracy Watch, recently told the Star. “It’s a Guide to Keeping Information Secret Act.”
When Canada’s Access to Information Act took effect in 1983, it was considered by many one of the most advanced transparency laws in the world.
The legislation allows any member of the public who pays $5 to request a variety of records, including correspondence, reports and briefing notes from governments and other publicly funded organizations. Departments and agencies are required by law to respond within 30 days.
Ken Rubin, an Ontario farmer with a passion for government accountability, has been an avid user in the three decades since, filing thousands of requests concerning food safety, health and environmental protections and more.
His requests have revealed how food industry giants influenced government to increase the Canada Food Guide suggested serving portions, and how the Canadian Food Inspection Agency opposed tougher U.S. rules to prevent listeria.
Rubin fears he and others filing access requests are no longer getting such valuable information due to the “deterioration” of the act and adherence to it; in the case of food safety, that can be dangerous.
“What you don’t know can hurt you,” he said.
There is no doubt that access to information legislation, which exists federally, provincially and in municipalities, is becoming less effective, says Fred Vallance-Jones, a University of King’s College journalism professor and longtime investigative reporter.
He is part of a Newspapers Canada team that produces an annual audit of government compliance with information legislation. To produce the report, identical requests are sent to various municipalities, all the provinces and 11 federal departments to gauge the responses. Factors examined include the speed of response, depth of information granted and cases of outright refusal.
“There are some patterns that persist year by year, including that the federal government is much worse than the others,” he said.
In general, he said, federal requests are extended for long periods of time, there’s a higher rate of denial and some requests are simply refused.
Asked about these criticisms, Kelly James, spokeswoman for the Treasury Board of Canada Secretariat, which is responsible for federal government accountability, said in an email: “The Government of Canada is committed to openness and transparency, and takes Canadians’ right of access and privacy rights seriously.”
James said that in 2013, there was a 27 per cent increase in the number of access requests over the previous year. At the same time, more than six million pages were released, an increase of nearly two million.
But researchers who study government transparency agree that a major problem is that the legislation has simply not kept pace with technology.
Mike Larsen, a criminology instructor at Kwantlen Polytechnic University and co-author of Brokering Access: Power, Politics, and Freedom of Information Process in Canada, says there have been a handful of advances in government transparency thanks to technology.
He points to British Columbia, where members of the public can now file provincial access to information requests online. In most of Canada, the access request process is still operating on a print-and-post basis.
“At present, you can email your Member of Parliament and subscribe to the prime minister’s Twitter feed, but if you want to access internal government documents, you need to dig out envelopes, stamps and a cheque,” Larsen said.
Critics say technology is more often used to circumvent the public’s access to information. In a recent special report to Parliament, Legault sounded the alarm on the use of text messaging and personal instant messaging on the estimated 98,000 BlackBerries issued to public service employees. Though these conversations concern issues of public interest, they are typically not held on servers long enough to be accessed if a request is filed.
That could partly explain why some requests are coming back indicating that no relevant communication can be located.
Frequent users of the legislation also point to numerous requests coming back as inaccessible due to being classified as matters of “cabinet confidence” — essentially, information too valuable to the workings of government to be released.
Indeed, some government bodies, including the Prime Minister’s Office and the Privy Council Office, are not subject to access to information laws, something that has been frequently criticized.
The Treasury Board reports that in 2012-13, fewer than 4 per cent of all responses to access to information requests had information excluded due to cabinet confidence.
James said that the government is also trying to “modernize and streamline” the access to information program concerning the cabinet confidence exclusion, and made a change last summer to speed up the process.
Kevin Walby, an assistant professor of criminal justice at the University of Winnipeg and co-author of Brokering Access, believes a problem with the exemption is that it can be used pre-emptively.
“If you don’t want something to be disclosed, invite someone from the PCO or the PMO to the meeting. Automatically, it’s subject to cabinet confidence,” he said.
It’s not only information typically obtained through access to information requests that critics are concerned about.
Henheffer, of the Canadian Journalists for Free Expression, says he’s also worried about other types of official documents that can be difficult to obtain, such as ITOs (Information to Obtain). These documents detail the evidence police presented to a judge to be granted a search warrant.
The Star and various other media have fought in court to make such documents public, revealing, for instance, the Ontario Provincial Police investigation into computers being wiped clean to conceal information about the Ontario Liberals’ gas plants scandal.
“To have this onerous requirement of having to spend a colossal amount of money on lawyers’ fees to get everything — from that piece of information that’s the crux of an investigative piece, to something routine for everyday work — it really does not bode well for journalism in Canada,” Henheffer said.
“It’s a massive handicap for freedom of expression.”
According to a Centre for Law and Democracy survey of 95 countries with access to information laws, Canada ranks 56th in terms of the strength of the legislation — right behind Colombia and Mongolia.
Treasury Board spokeswoman James criticized the ranking, saying the ratings are not “a measure of the quality of the implementation of Canada’s Access to Information Act.
“The review examined only the access to information acts of the various countries and did not assess how well the legislation was implemented, what policies supported the legislation or how much information was being disclosed proactively,” she wrote.
Toby Mendel, founder and executive director of the Halifax-based Centre for Law and Democracy, urges policy-makers to do more to enforce a timely response to requests. Despite the 30-day statutory limit, it can take months or years to obtain the information.
Above all, Mendel says, the culture of secrecy needs to change. Too often public institutions see the provision of information as negative, at best a chore or at worst an evil to be avoided. Instead, it needs to be viewed as the vital part of a functioning democracy that it is.
“The law absolutely needs to be reformed. It’s old and dated,” he said. “But changing the attitude, that’s what needs to happen if the law is going to work.”