’500 ways to say no’

Canada's Access to Information program is in shambles. Here's why.

John Woods/CP

On Feb. 10, Vic Toews, Canada’s minister of public safety, convened a working dinner at a Milestones restaurant in Ottawa. One government employee and three other people were in attendance. The total bill was $85.04, including tip. We’re not sure exactly who was at the table, what was discussed, or even whether the minister’s tastes run toward classic fare like Prime Rib Beef Dip, or the menu’s internationalist offerings à la Spicy Thai Chicken Drummettes. But thanks to a policy enacted by the previous Liberal government mandating the “proactive disclosure” of hospitality expenses for ministers and senior staffers—the amount, the number of people, sometimes the venue, but nothing else—Toews’s fondness for chain eateries is now on the record. Interesting, but a minimal contribution to the public interest.

Coincidentally, on that same day, it was reported that the Canadian Security Intelligence Service, the spy agency Toews oversees, had stepped up its Federal Court fight to block the release of a dusty RCMP dossier on Tommy Douglas, the former Saskatchewan premier and leader of the NDP. Thanks to an enterprising Canadian Press journalist, the fact that the federal police force, which was responsible for intelligence gathering until 1984, spent close to three decades tailing the father of medicare and eavesdropping on his private conversations has been known since 2006. What CSIS objects to is the idea that it might be forced under Access to Information (ATI) laws to disclose who was helping the Mounties as far back as the dirty thirties. “The passage of time and the age of information cannot be used to conclude that its release will not cause damage,” the spy agency said in an affidavit. “Sources may still be active, despite the passage of time. Subjects of investigation would learn much about the scope of the information available about them and about service methods of operation.” Although in this case, the stoolies must at least be superannuated. Douglas died in 1986, at the age of 81.

This may well be the Information Age, but you didn’t hear it from anyone in Ottawa. From the controversy over Parliament’s right to documents about the treatment of Afghan detainees, to gag orders on bureaucrats, to allegations that Tory political staffers are routinely intervening in access requests, paring down, or “unreleasing” files, it has never been harder to pry pertinent details about the inner workings of our democracy out of the federal government. Stephen Harper, who came to power in 2006 pledging a new age of transparency, has failed to deliver on promised reforms like forcing public officials to create records of their actions, lifting the veil of secrecy on cabinet documents, and adding more teeth to freedom-of-information legislation. The recent annual report from Information Commissioner Suzanne Legault—rapidly coming to the end of her second six-month “interim” appointment as the country’s access watchdog—gave D or F grades to 12 of the 24 federal departments she examined, citing long delays and subpar efforts. (There wasn’t a letter grade low enough to adequately capture the incompetence of Foreign Affairs and International Trade, which was given an “off the chart” designation.)

And the longer-term trend is hardly encouraging, regardless of which party is in power. In fiscal 1999-2000, the feds processed 15,047 access demands, disclosing all the requested information 49.8 per cent of the time. By 2005-06, when 21,158 files were dealt with, only 35.8 per cent of requesters were getting everything they were seeking. In 2008-09, full disclosure fell to just 22.6 per cent on 26,429 processed requests.
You may still get what the government calls “partial disclosure”—which these days tends to mean a document with more redactions than original text. In the last fiscal year, 13 exemptions under the ATI act were applied 44,858 times on 19,366 files.

“Things are hitting rock bottom pretty good,” says Ken Rubin, an public-interest researcher from Ottawa who styles himself as “Canada’s Information Warrior.” In the quarter-century since the country’s ATI laws came into force, it has never been easy to get the bureaucracy and government to disclose sensitive, or potentially embarrassing information, he notes. But now, it is next to impossible. When it comes to hot-button issues like climate change or Afghanistan, Rubin says, it seems Ottawa has perfected the ability to generate black holes—nothing escapes. “There are literally 500 ways of saying no.”

Michel Drapeau, an Ottawa lawyer who files freedom of information requests for a mostly corporate clientele, offers an equally bleak assessment: “The Access to Information regime for all intents and purposes is dead in the water.” Delays, which used to stretch a month or two past the mandated 30-day response time, now regularly push the half-year mark. Bureaucrats, taking their lead from a government that seems averse, if not hostile to all forms of disclosure, are increasingly refusal-happy, he says. And the Crown corporations brought under the law after the Tories took power—one transparency promise Harper kept—are equally adept at playing the system. Drapeau points to the CBC, which is currently in Federal Court tussling over requests he made for copies of audits of the network’s Olympic coverage expenditures, and the costs of running the contest to find the new Hockey Night in Canada theme song. The publicly funded broadcaster has invoked an exemption allowing it to deny access to data that might harm its “journalistic, creative or programming activities.”

Perhaps it’s the fact that relatively few people have first-hand experience with the system, or the widespread misconception that access is mostly used and abused by the media. (In 2008-09, 43.9 per cent of federal requests came from business, 34.2 per cent from the public, and 14.1 per cent from news organizations.) But Drapeau, who teaches a course on ATI at the University of Ottawa, wonders why the public seems so blasé about such issues. “Basically, government tells us what they want us to know,” he says. “We don’t even scratch the surface anymore.”

Louie Palu/CP

In the United Kingdom, which has had a national freedom of information law for just five years, the rate of full disclosure in 2008 was 60 per cent. In the U.S., where Lyndon Johnson signed the Freedom of Information Act into effect in 1966, 43 per cent of requesters received everything they asked for in 2008. Legislation differs from country to country, as do exemptions, so of course it’s not an apples-to-apples comparison. But Canada’s anemic disclosure rates, delay-ridden system and weak enforcement clearly put us near the back of the pack when it comes to government transparency.

Alasdair Roberts, a professor of law and public policy at Suffolk University in Boston, rattles off a lengthy list of areas where Canada has fallen behind: the discretionary nature of its exemptions, the lack of a mechanism to allow disclosure when information is clearly in the public interest, total cabinet secrecy, no electronic filing or monitoring of requests (the Tories axed the federal access database in 2008, claiming it was little used and too costly). “Why can you track a FedEx package on the Web, but you can’t find out the status of an ATI request?” he asks.

But none of these observations are new. “The problem in Canada isn’t that they’re not quite sure how the law could be improved,” he says. “The deal-breaker in Canada is the lack of political force to compel government to enact those changes.” In the absence of a strong, external “sunshine” lobby like in the United States, where academics, monied foundations, newspaper chains and civil liberties organizations work in concert to improve access, reform in Canada is left up to the politicians. Leaders who talk a good game in opposition, but learn to loathe scrutiny once in power. And rank-and-file MPs who still won’t let taxpayers see how they spend their generous travel and office budgets.

“The key issues with the system have remained the same over the years,” acknowledges Legault, citing understaffed and underfunded ATI departments, long delays, and her office’s limited powers and mandate. (For example, falling full-disclosure rates aren’t within her purview, and her office doesn’t even track the stats.) And new wrinkles are still developing. Her recent report sounded a warning about blossoming “consultations” between departments about what can and can’t be released; a bureaucratic punt that piles delay upon delay.

Legault is not among those who think ATI is irrevocably broken. When ministers and senior bureaucrats make the system a priority it still works fairly well, she says, pointing to the examples of the Department of Justice and Citizenship and Immigration, which both received A grades in her report.

But in something as massive as a government, even strong leadership has its limitations. When Barack Obama took office in January 2009, his first act was to issue a presidential memo on freedom of information, directing civil servants to re-dedicate themselves to openness, and err on the side of disclosure. The results, however, have been decidedly mixed: a recent FOI audit by George Washington University found that only four of 28 government agencies are now clearly releasing more, and withholding less, information. And vast parts of the national security apparatus remain outside all public scrutiny.

Legault believes the future lies in the broader international movement for “open government,” harnessing technology to make all sorts of data proactively available via the Web for free. “I think there is a groundswell movement asking for this. I think the government is going to have to respond,” she says.

It would be nice to think so. But in the midst of a dramatic parliamentary standoff in Ottawa, where the Speaker has essentially accused the Prime Minister of acting more like an absolute monarch than a democratically elected leader, the evidence of public interest in freedom of information is scant. This week’s Angus Reid poll has the Tories at 35 per cent, seven points ahead of the Liberals, the gap unchanged since March.

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