Access to Information
The Harper government failed to fulfill its promise to reform Access to Information (ATI) in order to make government more accountable and transparent to Canadians. Instead, the ATI system is in crisis, with requests increasingly refused or delayed, information withheld for political reasons, and Parliament denied the information it needs to function.
For the next two decades, many politicians and officials, serving both Liberal and Conservative governments, used the ATIA to hide, not provide, information. Some employed the old standby: the requested information was secret because it was subject to national security considerations. Others denied requests based on the claim that supplying the information would compromise the privacy of third parties. Excuses for delays were legion, ranging from the need to consult other departments to the inability to find data.
All these stalling tactics became too much for John Reid, the Information Commissioner from 1998 to 2006. In 2000, Reid issued a blistering attack on the Liberal government of Prime Minister Jean Chretien for attacking his office, threatening his staff, and creating huge backlogs in access requests. In subsequent reports Reid accused the government of destroying documents to prevent their release and trying to intimidate people who had legally requested information. At the time, journalists were seeking the release of hidden files related to what would become known as “the sponsorship scandal.” When those documents were released, and Liberal cronyism andkickbacks exposed, the Liberals paid the price in the 2006 election, losing to the Conservatives under Stephen Harper.
In the run-up to that election, the Conservative Party platform contained eight reforms of the ATI system that would to fix the most glaring deficiencies. Harper went so far as to promise all exemptions would be subject to a “general public interest override” and to invest the Commissioner with the power to order the release of government information based on that override.
However, the words of Information Commissioner would prove prophetic. After several years in office John Reid commented that “For the most part, officials love secrecy because it is a tool of power and control, not because the information they hold is particularly sensitive by nature."
In Harper’s first two years in office he not only failed to keep his promises but moved his government in the direction of more secrecy. Government officials, repeatedly and unyieldingly, invoked national security to restrict the dissemination of information concerning Afghan detainees that might implicate Canadians in the commission of war crimes. The number of stalled or refused ATI requests increased, as did wait times for responses. The government ignored recommendations for reform from the House of Commons. It brushed off Robert Marleau, the Information Commissioner (Jan. 2007 - June, 2009), who put forward 12 reforms to the ATIA which he believed was badly outdated due to 26 years of "static decline." Before his early resignation from the post, Commissioner Marleau’s assessment of the Harper years was simple: "There's less information being released by government than ever before.”
Through five years of minority government (2006-2011) the Conservative track record on Access to Information can be assessed under several criteria:
Under the Harper government, it has been harder than ever before to pry information out of the federal democracy – information that is essential to a functioning democracy.The current Information Commissioner, Suzanne Legault, in a 2010 special report deplored a “constant decline” year over year in government obligations to meet the 30-day maximum limit for response required by law. Delays in response are the “Achilles’ heel” of ATI, Legault warned, and the public’s right to government information is “at risk of being totally obliterated.” (see table)
The Information Commissioner also warned about new trends in what causes ATI delays. One trend is the growing practice of consulting other government departments. When the Harper government was elected (2006), there were 1,330 requests that each required more than 30 days’ of consultation with one or more departments, according to Dean Beeby of the Canadian Press. That number more than doubled over the next four years with 3,064 requests delayed by more than a month for such consultations. A second method of denying access to information is by declaring it to be a cabinet document, a practice that increased by 40% in the Harper years. “There are literally 500 ways of saying no,” according to ATI activist Ken Rubin. Rubin asserts that when it comes to sensitive issues like Afghanistan or climate change Ottawa has perfected the ability to generate black holes—nothing escapes.
Declining government performance can also be measured by how often all the information requested is released – or, conversely, how much is redacted or refused. A decade ago, in 1999-2000, the federal ATI system disclosed all the requested information 40.6 % of the time. By the time the Liberals went down to defeat to Harper’s Conservatives in 2006 that rate had already dropped to 28.4%. But then it plummeted by almost half. In 2009-2010, in only 15% of cases did citizens get everything they requested.
Access to Information performance
|Total number of requests||18,489||27,269||35,154|
|Percentage of responses that exceeded the 30-day time limit||36.8||41.4||43.9|
|Percentage of responses where all information was released||40.6||28.4||15.8|
|Number of requests denied because declared cabinet documents||N/A||1,880||2,629|
|Requests requiring over 30 days of consultation with departments||N/A||1,330||3,064|
Sources: Infosource (Treasury Board), various years; Annual Reports of the Office of the Information Commissioner; remarks by Canadian Press reporter Dean Beeby for a Sept. 30, 2010, panel at Carleton University.
The Harper government also put an end to a very useful ATI research tool. For decades, the government maintained a database, called CAIRS, to keep track of all information requests that had been answered.  If an ATI request had been returned to any individual requester the government was obliged to provide a copy of all the documents to any other citizen asking for it. And citizens could know what requests had been answered by using the CAIRS searchable database. By 2008, millions of documents were available with an addition 35,000 more coming available each year. On April 1, 2008, the government stopped updating the CAIRS database because, Prime Minister Harper explained, it was "deemed expensive.”
Under the Harper government there is evidence that ATI requests, especially from the media, have been delayed or censored due to considerations of political damage or embarrassment. The Canadian Press’ Dean Beeby reported in February 2010 that a federal cabinet minister’s aide had impeded the release of material – an act for which he had no legal authority. Under ATI, Beeby had asked for information on the extensive real estate portfolio of the department of Public Works. His request was tagged as sensitive, put into a purple-coloured folder, and handed to Sebastien Togneri, a political aide to the minister, Christian Paradis. The department’s ATI officers decided they had no legal basis to withhold the information and ordered 137 pages released to the reporter. Then, at the last minute, Togneri sent an urgent email to a senior access official to “unrelease it” – and there was a rush to the mailroom to save the file from being delivered to media hands. Four months later Beeby received only a fraction of the information and it was heavily redacted.
The case came under investigation by the Information Commissioner. She found that there was evidence of a political vetting machine at Public Works and recommended that the case be referred to the RCMP. The act forbids anyone to “direct, propose, counsel or cause any person” to conceal a record, with a maximum penalty of $10,000 and two years in jail. The commissioner is also looking into similar allegations of political interferences in the access process at Foreign Affairs, National Defence and Public Works. While there is some evidence that the previous Liberal government also operated a system to politically “vet” ATI requests, it appears the Harper government created a broad culture of violating freedom of information rights.
3. Failure to Reform
The Federal Accountability Act of 2006 extended the act to cover some previously excluded Crown corporations, Agents of Parliament, government-funded foundations, and the Canadian Wheat Board. However, almost a hundred federal institutions remain outside of the Access to Information Act. In effect, of the Conservatives original eight promises, only part of one has been kept. Outstanding are the Harper campaign promises to eliminate the “black hole” of cabinet confidences, to empower the information commissioner to force disclosures, and to create a general public interest override for all exemptions so that the public interest is put before the secrecy of government.
A recent report published by the UK’s Government Information Quarterly compared the effectiveness of freedom of information laws in five Parliamentary democracies. Canada ranked dead last, thanks to its long delays and “outdated” policies. In particular, Canada’s system has not yet entered the digital age because citizens cannot file requests online and must mail in paper cheques to cover fees.
Finally, there are continuing concerns that the federal government is not committed to an essential part of freedom of information – the creation of records. Throughout the federal bureaucracy there are reports of meetings where minutes are not taken, of pin-to-pin messages being passed and of private email addresses for “going off-grid” being used. All these measures are taken to avoid having ATI requests by preventing the creation of an information trail (thus giving a new meaning to the phrase “nothing to hide”).
4. Need for Open Government
In September 2010, Canada’s federal and provincial privacy and information commissioners met in Whitehorse and issued a resolution for “open government.” It is a plea for proactive disclosure of information in addition to – and perhaps, eventually, in place of - the current reactive process of access to information petitions. The commissioners recognized the power of new information technologies, insisting that “information should be disseminated free or at minimal cost, and … should be provided in open standard formats that are adaptable and reusable…”
In the 2011 election campaign, the Conservative Party of Canada campaigned on a platform that included an “open government initiative” described as “part
of our ongoing efforts to foster greater openness and accountability.” And yet that very election campaign was triggered when the Harper government was held in contempt of Parliament in part for refusing to provide information about the costs of programs such as its law-and-order legislation and corporate tax cuts. The government does not deny it possesses this information – just that it is a “cabinet confidence.” The Parliamentary Budget Office states that this information exists and is integral part of the expenditure management system that costs out new programs. The government simply refused to release important to Parliament and the public - which appears to be a case of contempt not only for Canada’s democracy but also the Conservatives own promises to make government more open, transparent and accountable.
Role or Position
The Access to Information Act gives Canadian citizens the right to access information in federal government records.
Implications and Consequences
- Transparency: A former leader in providing information, Canada’s access to information system is in crisis, urgently in need of reform and political will to make it work.
- Transparency: The Conservative government has yet to implement the great majority of the reforms promised in the 2006 election campaign and instead has created a culture of secrecy.
- Transparency: With the ATI system in crisis, and bureaucrats increasingly avoiding their obligation to create records, citizens have less and less information about the workings and decision-making of government.
- Free Speech: The lack of transparency can inhibit Canadians' ability to effectively raise their voices and use their free speech rights to enact change.
- Transparency: Despite its many failings, the ATI system is still used to expose news-breaking stories, such as the sponsorship scandal and Afghan torture scandal. See: Notable Canadian News Stories Based on ATIA Requests.
* This analysis is based on the annual reviews by Canadian Journalists for Free Expression.
Photo originally posted by jtutton