Government Information in Canada/Information gouvernementale au Canada, Number/Numéro 17 (March 1999)
In documenting the ailing health of Canada’s freedom-of-information laws, Prof. Alasdair Roberts has performed a valuable public service. Like a physician breaking unpleasant news to a blissfully unaware patient, he turns in a diagnosis that is difficult to ignore. As a journalist who frequently uses the federal Access to Information Act--and one of the many requesters who shared their thoughts with Prof. Roberts--his findings, as useful as they are, come as little surprise. The media have sometimes used Canada’s FOI laws to good advantage--indeed, hardly a week goes by without a story based on access documents. At the same time, barely a week passes without a disgruntled colleague telling me of difficulties in obtaining requested information.
In the last two years, the federal act has prompted more headlines about the attempts of bureaucrats to thwart the law than big investigative scoops by journalists. If the trend continues, the federal law might experience the same fate as the Newfoundland FOI legislation--a slide into irrelevance because it fails to deliver the goods.
The federal access system has three primary problems: deficiencies in the law, radically uneven administration of the act, and a lack of political will--perhaps even an absence of public will--to improve things. In short, there is a culture of denial surrounding the federal act--a general failure to respect requesters' rights and a refusal on the part of the government to acknowledge the problem. The situation is worrisome because access laws, intended to be a tool of last resort, are emerging as first orders of business. Rarely can researchers dial a government office and simply request a document. Often they are now told to file a formal request.
Journalists seek information to determine how and why the government makes the decisions it does. Many find the data necessary to answer these questions unavailable under the federal act because cabinet materials are completely off-limits and advice to ministers is usually excised. But a more serious problem, perhaps, is the way the law is applied. As an editor of mine once said, the act is a better tool of history than of journalism. And as former information commissioner John Grace has noted, access delayed is access denied.
As for administration, promptness and efficiency are rare. Buck-passing and caution are common. Before retiring, Grace lamented the lack of leadership on government openness from the Prime Minister’s Office. He noted that Jean Chretien even revealed himself as "seriously misinformed" about the volume of access requests the government handles. Among MPs, backbenchers--not ministers--have been the ones to wave the FOI flag, tabling thoughtful (yet little-noticed) private members' bills aimed at improving federal law.
How could these problems be remedied? There appears to be consensus the federal access law is overdue for review. As Roberts notes, the laws adopted by several provinces--as well as the forthcoming British act--outshine the Canadian regime. All could help steer a reform effort in the right direction. Roberts also astutely points out that the information commissioner, as access ombudsman, generally focuses on individual complaints from users. The commissioner has less power to tackle systemic problems, such as chronic delays or abuses by a department--a situation that could be addressed by beefing up the watchdog’s role. There has been much discussion of adding penalties to the federal act, particularly for bureaucratic tampering with records. Though the idea may have merit, perhaps incentives of some sort would also improve administration of the law. For instance, employees of departments that consistently met deadlines imposed by the act could be rewarded in some manner. It appears there are currently few reasons to pursue a career as an access officer and, if the Ottawa whisper mill is correct, several co-ordinators are bearing severe job-related stress loads. Of course, none of this will come to pass unless influential politicians decide it must happen. In the meantime, before the next wave of reform proposals, informed public debate of these issues would be welcome.
During a recent guest lecture, I told students of the pressures from some quarters of the federal and provincial bureaucracies to increase the fees charged to access users. A key argument for higher levies is the desire to recover the cost of processing requests--an argument that has angered some users. A member of my audience, frowning slightly, said: "Well, why should all taxpayers foot the bill to answer one person’s FOI request?" I responded that some believe the access system ultimately saves the public money by fostering debate about public policies and exposing flaws at an early stage--a sort of internal audit function. Is this true? It’s difficult to say. A worthwhile, if challenging, research project could involve an examination of one year’s revelations under an access law, with the goal of trying to quantify the benefits.
Another factor working against FOI is the low profile of access laws. Few Canadians have filed a request, and the vast majority likely has little knowledge of how to go about it. Governments and others might do well to educate the public about one of its basic rights. A greater degree of organization on the part of users could also further the cause of stronger access laws. The Canadian Association of Journalists has taken initial steps in this direction, possibly towards creation of an FOI Foundation that embraces the media, librarians, researchers, and members of grassroots advocacy groups. Any such effort must begin with careful reflection on the findings of Prof. Roberts.
There are few signs his prognosis will be taken seriously. But the awareness and discussion generated by his report, along with concerns sparked by the recent revelations of shredding and alteration of documents, may be catalysts for change. On a hopeful note, the Supreme Court of Canada, in its first substantial statement on the federal act, said in June 1997 that ensuring public access to government information helps the democratic process work more smoothly. Wrote now-retired Justice Gerard La Forest, in part: "It helps to ensure, first, that citizens have the information required to participate meaninfully in the democratic process and, secondly, that politicians and bureaucrats remain accountable to the citizenry." These are reasons enough to make vigorous use of access laws, while there is still opportunity to do so.
 May be cited as/On peut citer comme suit:
Jim Bronskill. "Response to 'Closing the Window: How
Public Sector Restructuring Limits Access to Government
Information.'" Government Information in Canada/Information
gouvernementale au Canada No. 17 (March 1999).
Ottawa-based reporter with Southam News Back to text.