Access to information law requires big reforms
by Brett Boudreau
July 14, 2017
Secrecy, writes ethicist Sissela Bok, is about “deliberately withholding information.” In this respect, the antiquated 34-year-old Access to Information Act (ATI Act) has resulted in a pernicious paradox – there is more, not less secrecy in government. As Information Commissioner Suzanne Legault bluntly put it, “The Act is being used as a shield against transparency and is failing to meet its policy objective to foster accountability and trust in our government.”
This regrettable situation is due to a combination of factors. First, the Act’s accumulated flaws have been left untreated over time, even as technology has transformed how people work. Those shortcomings have led to perverse behaviour on the part of many mid-level and senior public servants, ministerial staff and governments to skirt and avoid the spirit and intent of the Act. And bureaucrats and elected leaders have been loath to tackle this wicked problem, since no affected parties will be fully satisfied at the outcome.
The Liberal government’s recently introduced Bill C-58 at least attempts to close the yawning chasm between the lofty intentions and actual practices of this Act, initially hailed as a cornerstone of Canadian democracy and a fundamental right for all citizens. C-58’s noble new aim is ostensibly to “enable public debate” about institutions and public policy.
The Bill has been widely condemned in the mainstream media as a broken election promise, but I have carefully examined the proposed changes and consider this to be an uncharitable view. In fact, it is fair for the government to claim the Bill is “the most comprehensive reform in a generation.” It already has ministers’ staff, deputies and senior officials quaking as they process the proposal that ministerial briefing packages and briefing notes will have to be provided proactively, and as they try to figure out how to square that with the cabinet confidences redaction provision.
At issue is whether the Bill offers the right changes, as well as sufficient new means for effective implementation of the legislation. The current approach to access to information (ATI) is too heavy on ways to increase requests and non-existent on prescriptions on how to make it easier for bureaucrats to do the work required to respect the Act’s provisions. As such, without a serious top-down effort to shift the mindset about ATI and major changes to how ATI requests are actually processed, from start to finish, Bill C-58 will make things worse, not better.
Officials and ministerial staff have long wrestled with the paradigm shift from “all information is secret unless proven otherwise,” in pre-ATI days, to the post-ATI era of “all information is open unless proven otherwise.” This is in part because objectively assessing the potential for harm as a result of releasing records and settling on what are acceptable harm thresholds (political embarrassment is not meant to be a consideration) are inherently subjective and often challenging for whoever happens to be in possession of the material being requested.
Staff in foreign affairs, for instance, believed they were doing the right thing by redacting vast swaths of information from field cables on the Afghanistan mission, including some relating to the treatment of detainees. In that world, the public disclosure of who met who and who said what broke with diplomatic traditions and protocol, and would cause significant harm to the ability of Canadian officials to conduct their business abroad. It set a dangerous precedent: if other nations with whom we have relations believed every conversation behind closed doors between their officials and ours would become public through ATI, then the opportunities for those exchanges would disappear. The Afghan detainee document fiasco – which led to a ruling against the government by the Speaker of the House of Commons; the prorogation of Parliament; and tens of millions of dollars spent on court and independent reviews, as well as parliamentary member examinations of the documents – illustrates that the current mechanisms are woefully inadequate to arbitrate competing views of potential harm through the release of government records.
For almost every request there are one or a combination of legitimate privacy, commercial confidences, legal advice or national security implications – these are just the more important considerations – that need to be weighed before information can be released. Releasing any one document on its own may not appear to present a problem, but when it is combined with a variety of records sourced from multiple requests or from many departments, malicious actors could piece together from this mosaic information that violates privacy, causes financial harm to companies or details security vulnerabilities.
The pattern and scope of deliberate actions to limit the full potential of the ATI Act became public knowledge around two decades ago, following revelations about the destruction of records relating to the contamination of blood supplies by HIV and hepatitis C, as well as the cover-up by officials at the defence department that became known as the Somalia scandal. While it must be said that many departments take their ATI obligations seriously, the trend toward widespread, overt subversion of the Act, using a variety of means and strategies, has accelerated in the last 10 years. Recently, the most effective go-to way to redact or exclude information “we’d rather not have out just yet” is to broadly interpret exemptions for cabinet confidences and solicitor-client privilege.
How did we get here and will Bill C-58 make a difference?
Prime Minister Joe Clark introduced a freedom of information Bill in 1979, which died on the order paper with his government’s defeat. Prime Minister Pierre Trudeau followed with a Bill in 1982 – deliberately timed to coincide with the year of the Charter of Rights and Freedoms – and the ATI Act came into force a year later, along with the Privacy Act. The ATI Act predates the invention of the World Wide Web by seven years and the iPhone by 25, and it has not been substantively updated since those inventions.
In 1982, most federal public servants were employed in clerical or operational positions. A small number of indentured-for-life senior bureaucrats contributed to the development of policy or issues relating to the public interest, often just within their own department. They reviewed and commented on drafts by exchanging actual paper. These documents were typed by legions of secretaries, and managed by lots of trained clerks who maintained meticulous paper-based files. This is the environment for which the ATI Act was designed.
Now, a much larger proportion of public servants are in professional or executive categories. Contractors, consultants, term employees and temps abound. Job changes are frequent and information management practices, particularly with respect to departing staff, are lax. All are expected to be secretaries and file clerks, often with limited, if any, administrative support.
With everyone on e-mail, the number of people directly or tangentially involved in files of public import and issues of general interest has exploded. Policy influencers, including lobbyists, stakeholder groups and media, are more numerous, connected and engaged. Most policies and many issues being managed are now informed by or touch many levels of staff, from multiple departments. This generates a massive amount of documents, the vast majority of which have little direct bearing on a decision, but they are by definition records and must be managed as such. None of this bodes well for the effective and efficient application of the ATI Act.
Raised on the twin conventions of ministerial responsibility and anonymity as the keys to providing impartial advice, bureaucrats (all of them, not just senior mandarins as the Act’s initial drafters anticipated) now find that their views, opinions, utterances on e-mail and marginal notations are all potentially subject to very public scrutiny and often attributed to them by name. The receipt of an ATI request for “all documents on person X’s hard drive” or “everything produced by executive Y in the last six months” is not welcomed as a career-enhancing opportunity to become better known. (In this respect, the acknowledgment in Bill C-58 that some requests are vexatious in nature and against the Act’s intent and purpose will be a welcome addition to the law.)
So information released is taken out of context; exploited for commercial, personal or political gain; or a public servant appears to be critical of the minister or a policy. This creates a climate of fear. Without the means to defend themselves and without departmental support to correct the record, and even faced with public castigation by their own minister (this was widely practised under the Conservatives), public servants react in an entirely predictable manner: they adapt by taking actions to circumvent the Act to restore their anonymity.
Then, fewer meeting minutes are kept, and when they are kept careful attention is paid to scrubbing them of any substantive context that informs decisions or the steps taken along the way. People more readily keep their thoughts to themselves in meetings. An alarmingly large number of midand senior-level officials and ministerial staff give direction orally rather than in writing. And when advice, direction or guidance is required on issues that might prove the least bit controversial, the medium chosen is often a type of Blackberry message called a PIN, which many officials incorrectly believe can’t be retained, is not a record and is not subject to the Act.
The conscious decision to avoid note-taking for fear of public attribution, retribution and possible ridicule means the government’s “corporate memory” is fast disappearing. The quality of debate and exchange is also reduced. Furthermore, deliberation of real substance – including government-wide lessons learned or “thinking outside the box” – now occurs less frequently, because senior officials are afraid that candid, constructive criticisms or early ideas floated for discussion will find their way in whole or part to the public.
Bill C-58 establishes some important proactive disclosure requirements for ministerial offices, as well as other mostly minor changes, affecting 240 government institutions, up from about 150 that were initially subject to ATI. After the ATI Act had been in force for 10 years, about 10,000 access requests were being received annually. Last year, there were more than 75,000 requests, up 80 percent over the past five years. Notably, last year more than 41,000 requests went to Citizenship and Immigration, about 160 new requests every workday. Business is booming.
The overall picture is clear. There are significantly more requests, for documents of greater size and complexity, across the departments, but few supporting specialist resources to, as an example, review records for legitimate redactions; the process is organized by individual departments and not as a whole-of-government effort; the public service has been castigated for so long that it is increasingly risk-averse; there are major information management challenges in government; record-keeping practices are suboptimal; and there are new threats to our security that could lead to real physical or economic harm if information is not skilfully handled. In the absence of substantive reforms to how requests are physically processed, reforms like legislating shorter response times, making it cheaper to request information and increasing the information commissioner’s powers will make it less likely the Act will work in the intended manner.
Bill C-58 offers an evolutionary, not revolutionary step forward in addressing the variety of challenges associated with balancing the right of access to information with reasonable protections against deliberate or inadvertent harm. To obtain better outcomes, four big reforms to the ATI system are required.
First, merge the information commissioner’s and the privacy commissioner’s offices, and arm the resulting body with a broader mandate and serious resources. The information commissioner’s current remit of only investigating complaints about how requests have been handled, along with its wonky departmental performance report cards, represent an approach that is firmly grounded in 1982. The nation’s top ATI advocate should be directly engaged with and have certain responsibilities for information rights that are in the broad public interest. The office should also manage federal information management practices and data protection writ large (as is the case in the UK). Privacy issues are closely linked to access to information and should not dealt with in a separate office.
Second, the profit and “gotcha” incentive for applicants needs to be reduced. This doesn’t mean charging exorbitant fees for fulfilling access requests as some departments have done to dissuade a requester. Perhaps certain requested information should be made available to all Canadians at the same time as to the ATI applicant through the existing Open Government portal. This is in contrast to the present practice of sending records directly to the applicant, where the information can be publicly exploited piecemeal over time. If the aim is to encourage debate, and the records are releasable and vetted for harm, then release certain of them (such as those requested by media) widely to more people.
Third, have the courage to make, and make public, ambitious changes necessary to actually make it easier for departments and officials to follow the Act’s prescriptions. “Allowing government institutions to work together to process requests more efficiently,” as explained by Treasury Board, is unadulterated pap; it is code for more training and more strongly worded letters about compliance from deputy ministers concerned their annual bonus is at risk if ATI targets aren’t met. There are many ways to drive real change. To start with, there should be a team of cross-government redaction experts at the Privy Council to assist, advise and even adjudicate cross-departmental consultations about ATI requests. “It’s not our fault the request is not complete; the file is out for review with department X” is a favourite delaying tactic in many offices.
Fourth, the government should demonstrate commitment to ATI principles by example, through overt and demonstrable leadership. The unprecedented and unwarranted decision to oblige 235 officials working on the new fighter aircraft procurement program to sign lifetime nondisclosure agreements is just one example of a requirement that breeds cynicism about the government’s stated commitment to openness and transparency, and to enabling public debate. It would be a major help if government were to promulgate and reinforce a communications policy that sets out expectations that senior officials, ministers and their departments will proactively communicate the background to and context around decisions taken, rather than counting as public information the issuing of a few ministerial tweets and some canned quotations.
Access to information is fundamental to good (or better) government, in light of the prospects for abuse that secrecy can conceal. While sunshine remains the best disinfectant, information release needs to be carefully balanced by a fair assessment of real or potential risk and harm of disclosure. Going forward, let’s hope more thought is applied to making the regime work better and faster than to making it cheaper and easier to make more requests.
Brett Boudreau served almost 28 years with the Canadian military, retiring as a colonel, and saw service in the Gulf War, the UN and on multiple assignments with NATO. He is a fellow with the Canadian Global Affairs Institute, and a freeman of the UK Guild of Public Relations Practitioners.