How government plays secrecy game in Ottawa

By W.T. Stanbury, The Hill Times Online, 15 June 2009

The latest secrecy contretemps—a briefing book left behind by Natural Resources Minister Lisa Raitt in the studios of CTV—indicated that "the public was fed wrong and misleading information about how much money has gone into the Chalk River nuclear facility," (The Hill Times, editorial, June 8). Such efforts are routine, and are part of a larger secrecy game.

The maintenance of the largest possible amount of secrecy—in the face of a large number of requests under the Access to Information Act—is a game played energetically by the government of the day, and by public servants. The purpose of this piece is to describe how the game is played by those on the government side.

The role of the government: The Prime Minister sets the tone for how his government and the public service deal with requests under the ATI Act. The PM can arrange to have the act amended, set the budget for the information commissioner, and may even appoint the commissioner. He can also urge the public service to interpret the act narrowly or liberally for it is full of provisions where the exercise of discretion is required. Although he extended the act to cover some 70 Crown corporations, and sponsored an amendment saying that the federal government has a duty to assist the public in accessing government records, Stephen Harper has frequently signaled that he has a strong preference for secrecy.

Information Commissioner Robert Marleau (appointed by Mr. Harper) has said that "A lack of leadership at the highest levels of the Conservative government has contributed to a 'crisis of information management' that has slowed the disclosure of public records to a trickle," (Andrew Mayeda, Canwest News Service Feb. 26, 2009).

Stonewall: The de facto default position of the federal government is that taxpayers have no right to know how their hard-earned money is spent aside from the budget. "Despite repeated requests by the Winnipeg Sun for documentation on how the [new Canadian Museum for Human Rights plans to spend a staggering $21.7-million a year in operating costs (this year)], the museum is refusing to release even the most basic, preliminary numbers. 'We're not in a position to share it,' said Angela Cassie, director of communications for the museum, which is now a federal Crown corporation.All we've been told so far is there will be about 175 staff members working for the museum. What their job descriptions are and how much they will be paid—including the salaries of the facility's top dogs—remain a mystery," (Tom Brodbeck, Winnipeg Sun, Jan. 9, 2009). In the same vein, Jeff Lee (Vancouver Sun, Jan. 28, 2009) reported that "Just how much it will cost Canadian taxpayers to provide security for the 2010 Winter Games remains a closely-guarded federal secret, at least for now.Last fall, then-public safety minister Stockwell Day acknowledged that the budget, once estimated at $175-million, is likely to cost more than $400-million, but less than $1-billion. The government has not moved off that estimate since then, but is still refusing to confirm the actual cost." Most experts expect that portions of the actual costs will be buried in a variety of departments so that the total cannot be determined by outsiders.

Just do it, but never explain: An obvious way for a government to deny information to the public is simply not to provide any explanation of the actions it proposes to take—no matter how important. The minister of finance's "economic statement" of Nov. 27, 2008 was a masterpiece of this kind as Ken Rubin explains (The Hill Times, Dec. 8, 2008).

Further, no matter how unprecedented the action, there is no requirement that any rationale be made public—probably forever. Consider the PM's request on Dec. 4, 2008 that the Governor General prorogue Parliament in the face of certain defeat on a want-of-confidence motion.

An editorial in The Hill Times (Dec.15, 2008) proposed that "The Governor General should be required to give written reasons for Parliament's prorogation, the Prime Minister should be required to put his request in writing and both of these documents should be made public."

No convincing argument has been made to refute this proposal. But a government which operates largely in secret does not deign to respond to such ideas—it would only give them legitimacy.

Amber lighting: Information Commissioner Robert Marleau "found that there is 'amber lighting' or special handling applied to access to information requests coming from specific groups....It turns out that yes, journalists, but Parliamentarians, lawyers, immigration lawyers, a whole series of other users were in a worse situation than the media," (Cynthia Munster, The Hill Times, Oct. 27, 2008).

The Canadian Newspaper Association (Sept. 3, 2008) notes, in its own separate analysis of data collected by the information commissioner, that "more than one in four of all requests designated for special handling comes from media requesters, even though fewer than one in six requests overall come from the media. In fact, media requests are about twice as likely to get the tougher treatment as requests overall,"(from CNA's website).

Little voluntary disclosure, overload the system: The Harper government has "forced virtually all government information to flow through access to information and, in so doing, have completely overwhelmed the system to the point where it is now dysfunctional," according to Sun Media columnist Greg Weston, (quoted by Harris MacLeod, The Hill Times, Nov. 24, 2008).

Change laws in secret: Major changes in important regulatory regimes—such as meat inspection—have been conducted in secret (see Ken Rubin, The Hill Times, Sept. 29, 2008).

Use litigation: One way to block the release of embarrassing information is to make it sub judice, then settle out of court with a non-disclosure agreement.

In March 2008, PM Harper sued the Liberal Party for $3.5-million on allegations it made concerning the Tories' efforts to obtain the vote of Independent MP Chuck Cadman to defeat the Liberals in 2005. That legal action was settled out of court in February 2009.

However, one of the terms of the deal was that neither side divulge any information about the case. One columnist argued that, "The public deserves to know what happened. Who approached Cadman? What was said? What did Harper know and when did he know it? Harper can no longer refuse to answer questions on the basis that the matter is before the courts but he can now conveniently refuse to answer questions as the settlement appears to include a confidentiality agreement," (Alan Shanoff, Toronto Sun, Feb. 22, 2009).

The role of public servants, just say no: Parliamentary Budget Officer Kevin "Page's Oct. 9[2008] report noted that several departments—Foreign Affairs, CIDA, Correctional Services and Veteran Affairs among them—refused to give him needed internal information to complete his analysis... Information on everything from detainees' treatment to evaluations of aid projects is either heavily censored or excessively delayed," (Ken Rubin, The Hill Times,Oct. 27, 2008).

Delay, delay some more: The most common tactic used to limit the effectiveness of access to information requests consists of delay—far beyond the 30-day deadline. "Access to Information Commissioner Robert Marleau released a scathing report on how quickly 10 federal institutions responded to access to information requests in the last fiscal year. He gave six of them failing grades....Foreign Affairs took an average of 132 days to meet requests and Public Works 126 days, (The Hill Times, editorial, March 2, 2009).

The Defence Department's "Tiger team" established to "vet all requests related to the Afghanistan mission... added roughly 33 days to processing times. Nearly half of the departments' extensions were for more than 120 days," (Andrew Mayeda, Canwest News Service, Feb. 26, 2009).

Michel Drapeau, an Ottawa lawyer who specializes in ATI Act cases for clients, suggests that the two-year backlog of complaints to the commissioner "permits several federal institutions to enjoy a two-year amnesty (extension) to release records." Further, long delays in responding "encourages many institutions to claim a range of exemptions, exclusions or exaggerated fees which would not otherwise be permitted under the act, knowing... it will take the commissioner no less than two years to adjudicate the complaint," (quoted in Peter Worthington's column, Toronto Sun, Jan. 26, 2009).

Grant generous extensions: Delays are created when departments grant themselves extensions beyond the 30-day deadline. " In one instance, requests for documents connected to developing a pre-contractual specification generated an 800-day time extension" by National Defence. "The Privy Council Office is no slouch either as parts of the early 2006 briefing notes for the Prime Minster were only received [in] September [2008]," (Ken Rubin, The Hill Times, Nov. 24, 2008).

Force them to go to court: The refusal of departments and regulatees to provide requested information may require litigation to try to pry it loose. For example, "It took five years beginning in 1983 for myself and a then Kitchener-Waterloo Record reporter, to win a 1988 Federal Court of Appeal decision that told Canada's largest meat packers like Canada Packers and Gainers (who had brought on the legal action) that they and the federal government needed to disclose the public meat inspection reports they wanted hidden," (Ken Rubin, The Hill Times, Sept. 29, 2008).

Have the PCO vet access requests: "A number of officials who administer the Access to Information Act regularly complain that the Privy Council Office is playing an increasing role in vetting documents before they are released, causing delays that commonly reach six months and sometimes drag on for more than a year," ( Daniel Leblanc, The Globe and Mail, Jan. 21, 2009).

Don't write it down, avoid putting the important stuff on paper. In her spring 2009 report (May 12, 2009), the auditor general commented as follows: "Most recently...we asked the central agencies to provide information that would demonstrate their review and challenge related to any gender-specific impacts of policy initiatives submitted by departments and agencies. We were told by officials of central agencies—the Treasury Board of Canada Secretariat, the Privy Council Office, and the Department of Finance—that discussions had taken place concerning gender-specific impacts of proposed policy initiatives but that no record of these discussions existed, apart from what might be contained in confidential Cabinet documents that we are not entitled to see. This is not acceptable. Departments and central agencies must be able to demonstrate support for decision making by preparing and keeping relevant documents."

Alter records: Government departments have been known to alter records before information is released. "The Access to Information Act, after the Somalia debacle and destruction of Canadian Blood Committee records [was] amended by adopting in 1999 [a] penalty clause for altering records. "One thing is for sure: the Access to Information Act's ability to order record integrity and record disclosure on key safety matters in cases like this is a joke," (Ken Rubin, The Hill Times, Sept. 29, 2008).

Shuffle game: Government agencies may prevent the release of information by shuffling it to an exempt entity. For example, "access requests received by [the Canadian Nuclear Safety Commission] will be transferred and processed by AECL whose legal provisions, unlike CNSC, permit most nuclear safety data received from AECL to be totally excluded from Access to Information Act coverage," (Ken Rubin, The Hill Times, Oct. 27, 2008) .

Charge additional fees: At least one department has decided to create an additional fee for access to information requests—even though it was not authorized to do so.

"Two legal experts say the Department of Foreign Affairs and International Trade (DFAIT) violated Canada's Access to Information laws when it decided to systematically charge 'preparation fees' before responding to Access to Information requests, effectively creating a barrier to government records being sought by ordinary Canadians, academics, businesses and journalists.[Further], Someone making a request could pay hundreds of dollars to 'prepare' the records only to receive documents that have been completely blacked out.... An interdepartmental memo says that 161,996 pages of records the department was getting ready to release did not have to be placed on the public record because the requests for information were abandoned because the preparation fees were too high," ( David Akin, Canwest News Service, Feb. 16, 2009).

Interpret the words advantageously: "The Harper government has delayed for months the release of notes on conference calls held at the height of last summer's deadly listeriosis outbreak [which killed 22 people]...At issue is an Access to Information request by The Canadian Press to the Privy Council Office for 'all transcripts and minutes' of the crucial exchanges last August and September... Privy Council officials at first said they had records as requested, but needed four months 'to consult other government institutions' about them. Then Ann Wesch, the access to information director for PCO, wrote a letter dated Feb. 10, 2008, stating that in fact 'the records retrieved do not fall under the scope of this request. Therefore we have no records relevant to your request.' The explanation for the flip-flop? Records retrieved were handwritten notes—not minutes or transcripts, said the PCO analyst questioned about the response. This, despite the fact that the word transcribe is in part defined in the Canadian Oxford Dictionary as 'make a copy of, esp. in writing... write out (shorthand, notes, etc.)...Agriculture Canada, in an apparent contradiction of PCO's interpretation, released handwritten notes in answer to an identical request for related transcripts." [One expert said of the PCO's response,] "It is silly. I would even say it's infantile to be making this sort of distinction," (Sue Bailey, The Canadian Press, Globe and Mail, Feb. 22, 2009).

Exclude and keep a straight face: "CBC has exclusionary powers under the Access to Information Act and granted by the Accountability Act, to exclude 'journalistic, creative, or programming activity.' The CBC believes that under this provision it can not reveal ever the well-earned salary, benefits and perks to anchor Peter Mansbridge. Yet CBC has released such material for its senior executives," (Ken Rubin, The Hill Times, Oct. 27, 2008).

Conclusions: It appears that the overarching goal of players on the government side is to maximize the domain of secrecy concerning anything that might—just might—embarrass the government and/or public servants. It appears also that those on the government side intend to defend to the death the deeply-entrenched culture of secrecy based on the default position that everything relating to government should be kept secret—unless it is advantageous to disclose it.

Public servants seem to be quite inventive when it comes to finding ways to defeat, derail, or delay access to information requests. Is this just a case of doing the government's bidding? (We all know the hostility of the PM to freedom of information). Or do many public servants who administer the ATI Act fear that more information in the public domain will not reflect well on their performance?

W.T. Stanbury is professor emeritus, University of B.C.

Article published in full with the permission of W.T. Stanbury

Photo: The Hill Times