The federal Access to Information Act dates back to 1983. Proposals to put more teeth into the rules for when the government must release documents started with the very first review of the law in 1986, and have kept coming ever since. Countless committee reports and expert studies have proposed ways to force more openness. When the Conservatives won the 2006 election on a platform promising a sweeping access-to-information overhaul, the time for real change seemed finally to have arrived. After settling into power, though, Stephen Harper’s government decided against implementing most of the promised changes in its early batch of accountability reforms. Since then, the Tories have seemed content to let the issue slide down their priorities list to obscurity.
Enter Suzanne Legault, the blunt-talking new interim information commissioner appointed by Harper in June. Legault might have been expected to take up the two-decade-old cry for fundamental changes to the system her office oversees. Instead, she has a surprising message for those hoping for root-and-branch reform: forget about it. “That won’t happen,” she told Maclean’s. “Nothing is going to change, that’s my experience.” And what about all those sincere, detailed blueprints for strengthening the access act that are always floating around Parliament Hill? “They’ve been saying the same things for 25 years,” she said. “So let’s try to tackle it differently.”
That pitch for a new approach is Legault’s bid to distinguish herself from her frustrated predecessors. Past information commissioners have been thwarted by successive governments, both Liberal and Conservative, who didn’t much like the notion of having more of Ottawa’s inner workings exposed to public scrutiny. The 1983 law offers them plenty of ways to avoid releasing sensitive paperwork. For instance, the act doesn’t cover so-called “cabinet confidences”—a huge exclusion that allows governments to refuse to release not just records of deliberations among cabinet ministers but also a vast array of background documents and discussion papers prepared for them.
Rather than pleading for a rewrite of the rule book, Legault plans to make the best of the imperfect tools she inherits. In a wide-ranging interview, she laid out her strategy for prying open recalcitrant federal departments. It builds on the efforts of her predecessor, Robert Marleau, who concentrated in recent years on the unspectacular work of streamlining and modernizing the Office of the Information Commissioner.
Legault aims to first expose the cluster of federal departments and institutions that show the greatest disinclination to release documents, and then map out what they must do to become much more transparent. It might sound straightforward, but this approach differs markedly from the view of some outside critics—from the open-government advocacy group Democracy Watch to the Canadian Newspaper Association—who tend to view the entire system as flawed to the core. Legault doesn’t see it that way. She says her probe of the worst-performing departments won’t end in calls for massive change. “It’s not going to be, ‘Everything is broken,’ ” she said, “because I don’t think everything is broken. I have 250 institutions subject to the act. Out of those, I get complaints against probably about 30.”
So Legault has launched a systemic investigation of just two dozen federal departments and institutions whose refusal to release documents prompted five or more complaints last year. Those in her crosshairs range from the apex of bureaucratic power, the Privy Council Office, to departments charged with guarding undeniably sensitive national security information, like Defence. The results of the probe will be made public next February or March. “We’re going to look at the real issues in each institution, the main problems, and then we’re going to make recommendations,” she said. “It’s going to be fact-based and it’s going to give us a better target for solutions.”
But Legault doesn’t have as much money as she’d like to pursue this so-called systemic investigation. The way her office’s budget was constrained suggests the government isn’t eager to fund this sort of analysis of how and why documents are withheld. Budget requests from officers of Parliament—including the information, privacy and official languages commissioners, plus the auditor general and chief electoral officer—are vetted first by an all-party panel of MPs. The process is meant to shield them from limits that might be imposed for the wrong reasons by the government they are supposed to be keeping honest.
Last spring, the panel approved increases for the information commissioner for 2009-10 and beyond. But soon after, the cabinet ministers on the Treasury Board, which makes final spending decisions, rejected a key component of the panel’s recommendation, slashing about $500,000 a year that had been earmarked mainly for those highly sensitive systemic investigations. Legault said only the reallocation of scarce resources from other parts of her operation allowed the intensive work on widespread problems to continue.
Her detailed probe of the more opaque parts of the government is not her only challenge. The information commissioner’s office has been revamped since she joined in 2007, after a career as a government lawyer and, before that, criminal law. Her staff is adjusting to a reorganization meant to focus its work on conducting those systemic investigations, working through a backlog of difficult old complaints, and moving more quickly to resolve fairly routine new ones.
For journalists, academics and other frequent filers of access to information requests, Legault’s success will likely be judged largely on whether she speeds up regular business. Under the act, requests are supposed to be responded to within 30 days, but there’s no penalty for failing to do so, and the information commissioner has no power to order an end to delays. The government claims 57 per cent of access requests are handled within the 30-day limit. But Legault suggests that figure is misleading. Citizenship and Immigration accounts for nearly 40 per cent of all requests and tends to comply quickly. Take out that department’s data, and the rest of the government’s record for timely response would likely plummet. “We want to identify the real picture on delays,” Legault said.
As she takes aim at the worst-performing departments and tries to expose the real extent of lengthy delays, Legault also faces a landmark court challenge to her already limited powers. The case stems from the Harper government’s move to bring many Crown corporations, including the CBC, under the access regime in 2007. Since then, the CBC has refused to release many documents. In late August, Legault ordered disputed files to be turned over to her for review to see if the CBC is properly applying its legal right to hold back certain information about its journalism, creative work, and programming. But CBC not only claims it doesn’t have to release the documents to those requesting them, but also that Legault’s office has no right to look at them. Legault sees that challenge as a serious threat. “The Office of the Information Commissioner is set up to act as an objective, independent, third-party reviewer,” she said. “That is a fundamental tenet of our access-to-information regime in Canada.”
Her legal battle with CBC doesn’t appear to be distracting Legault from pushing ahead on other fronts. “She’s very single-minded,” says David Zussman, a professor of public sector management at the University of Ottawa, who got to know Legault when she took a mid-career break to study under him. Zussman added that she’s always conscious of the need to make her case. “She tends to play around with the question, ‘Is this something I could convince someone is right? ’ ” he says, “rather than just, ‘Is this right?’ ”
The CBC conflict highlights her determination. The dispute came to a head when Legault issued a subpoena ordering the broadcaster to turn over documents related to access requests on everything from the cost of holding a contest for a new Hockey Night in Canada theme song to the way CBC’s coverage of past Olympic games was managed. What might have happened had CBC not taken the dispute to court? Marleau, Legault’s boss before he retired last June, sent a powerful signal during his final days on the job, declaring his intention to march in and seize documents from the Privy Council Office—which led the PCO, the very pinnacle of the bureaucracy, to blink and turn over the sensitive material rather than risk being raided.
The clashes with the PCO and CBC suggest how far the information commissioner’s office might go if the system isn’t somehow opened up. But Legault is relying first on a less overtly combative approach—bring the bad actors to light, expose the dismal overall disclosure record, propose precise solutions, and government will have to shape up.
Or so she contends. But what if, after all her work, federal departments and institutions still refuse to accept her findings and step out of the shadows? Since she has no power to impose change, who will force the issue? “I hope the parliamentary committee will take that on,” Legault says, referring to the House committee on access to information and privacy. It’s the only time in a long interview that the self-described “action-oriented” commissioner lapses, perhaps unavoidably, from brisk pragmatism to something closer to wishful thinking.