Government Information in Canada/Information gouvernementale au Canada, Number/Numéro 17 (March 1999)
Just before British Columbia’s last election, Finance Minister Elizabeth Cull proudly produced a budget that promised an $87 million surplus in 1997. It would have been good news--if the government hadn’t fudged the numbers. Documents obtained through British Columbia’s freedom of information (FOI) law showed that the government knew it was using grossly exaggerated revenue estimates. Within three months, the provincial deficit was $470 million.
As this case shows, citizens support FOI laws because they help keep governments honest. Understandably, governments aren’t always as enthusiastic about FOI. So the news that came out of British Columbia last April was not surprising. BC information commissioner David Flaherty complained that the government was cutting budgets for the offices that handle FOI requests, and hiking fees for processing requests. The government says that the changes are part of a "general strategy to make our programs more efficient and effective." But Flaherty says that the changes "will seriously harm open and accountable government in British Columbia."
Flaherty has good reason to be concerned. There are already serious problems of delay in responding to FOI requests in British Columbia. In 1995, more than half of FOI requests to the provincial government got a response within one month. In 1997, the median response time had grown to two months, and almost forty percent took longer than four months.
Delay is a serious problem in other jurisdictions as well. The response time for requests to the Ontario government has been steadily declining for years. In Ottawa, the former federal information commissioner, John Grace, called delays in handling FOI requests "a festering, silent scandal." Complaints to his office about slowness increased by 320 percent between 1992 and 1997. On average, the Chretien government takes longer to handle FOI requests than the Mulroney government ever did.
In Newfoundland, cutbacks have had a more obvious impact on freedom of information. In 1990, the provincial government fired its ombudsman, as part of an effort to cut spending that "serves no useful purpose." Part of the ombudsman’s job had been to help individuals who had difficulties with FOI requests. On a per capita basis, Newfoundland’s law is now the least-used in Canada.
There are other ways in which Canadian governments are quietly restricting the effectiveness of FOI laws. Governments are now contracting-out major functions to businesses that are not covered by FOI laws. The rules that are used to decide whether information provided by contractors to governments can be released to the public also vary substantially from one jurisdiction to the next. Some jurisdictions have broad criteria for deciding when business-supplied information should be regarded as "confidential." Furthermore, some FOI laws require the withholding of confidential information even when no harm would be caused by disclosure. The effect is to make it much more difficult for the public to get the information needed to judge whether government is being tough in negotiating and enforcing contracts.
Businesses may exploit third-party appeal rights provided in FOI laws to delay the release of information relating to their contracts with government. For example, the Nova Scotia government recently contracted with a private firm, the Atlantic Highways Corporation, to build the new Highway 104. When the Nova Scotia government agreed to provide details about the contract in response to an FOI request, AHC went to court to stop the release of information. The Supreme Court rejected the appeal--but AHC succeeded in delaying disclosure for eight months, while it attempted to negotiate a similar deal with the New Brunswick government.
Several governments are also transferring public functions to new industry-managed organizations that fall completely outside FOI laws. Air traffic control functions have been transferred to Nav Canada, a corporation run by aircraft operators that is not covered by FOI law. The recently-restructured Canadian Wheat Board and the new St. Lawrence Seaway Corporation are also industry-managed organizations that are exempt from FOI requirements.
Ontario and Alberta are transferring regulatory functions to new industry-run associations that are not covered by provincial FOI laws. In Ontario, these new "administrative authorities" have been advised to make records accessible, but citizens have no formal remedy if the authorities don’t comply. The situation in Alberta is less grim, although its "delegated administrative organizations" still have room to decide which records will be available to the public. British Columbia is considering a similar transfer of some of its regulatory activities.
Several governments are also experimenting with something the British call "agencification"--the transfer of functions to new special purpose agencies that are wholly owned by the government. The federal government, for example, has created a new Parks Agency and a new Food Inspection Agency, and is in the process of creating a new Customs and Revenue Agency. The Manitoba government is also aggressively applying a similar model.
In some cases, these new agencies remain covered by FOI laws. But there may still be a threat to access rights. International experience has shown that there can be real difficulties in persuading these new agencies to comply with many different central government rules, including FOI laws. This is especially true when agencies are asked to behave more like commercial enterprises, which don’t have to deal with openness requirements.
In a few instances, these new agencies aren’t covered by FOI laws at all. The new Canada Pension Plan Investment Board isn’t subject to the federal Access to Information Act. Nor is Canadian Blood Services, a new organization recently set up to run Canada’s blood system. Quebec’s Access to Information Commission complains that municipal governments have spun off work to corporations that are outside the provincial FOI law, even though they’re owned and controlled by the municipalities. HydroQuebec has also set up subsidiaries that are outside the law. British Columbia’s new Transportation Financing Authority is not formally subject to FOI.
Many governments have also begun to argue that citizens who use FOI laws should pay for a larger proportion of the cost of processing their requests. Ontario increased fees in 1995, and British Columbia did in 1998. The federal government made an extensive study of its fee policies in 1994, and the New Brunswick government has recently floated the idea of fee hikes.
There are many good reasons to be wary about moves toward increased "cost-recovery." Many of the costs associated with FOI are created by officials, who spend too much time reviewing documents before they’re released. Officials also divert informal requests for information into the FOI system because it’s a more convenient way of handling those requests.
Ultimately, fee increases are not about "cost-recovery" at all. They’re an attempt at cost- avoidance, by deterring citizens from making FOI requests in the first place. Ontario’s fee increases contributed to a fifty percent decline in FOI requests to most provincial institutions between 1995 and 1997. Appeals to the Information Commissioner–-for which a new fee was also imposed-–dropped by forty percent. The new fees produced a total increase in revenues of only $93,000.
Canadian governments have found another way of generating new revenues: by packaging information and selling it. This poses another threat to openness. In 1994, the Western Canada Wilderness Committee, an environmental advocacy group, made an FOI request for mapping data held by the British Columbia government. The data is regarded as the "standard reference point in land use planning" in the province. The government refused, saying that the data was already available for sale, and therefore not covered by the FOI law. The price? Thirty thousand dollars. The information commissioner expressed concern but couldn’t do anything about the decision.
The gradual erosion of access rights is a serious problem. A survey of recent news stories involving FOI will show that that these laws help citizens to understand why governments have taken decisions, how public money has been spent, and whether public programs do any good. Thousands of Canadians rely on FOI laws to access personal information held by government.
What can we do to protect access rights? The discussion paper on FOI released by Britain’s Labour government in December 1997 provides a roadmap. It would establish FOI requirements for any organization that is undertaking important public functions, whether that organization is publicly or privately owned. Special purpose agencies, crown corporations, and privately owned utilities would all be covered. Contractors would also have to respect FOI rights for records relating to public functions.
The British proposals would give an information commissioner the authority to order disclosure of records--a power that most Canadian jurisdictions do not give to their information commissioners or ombudsmen. It’s probably not coincidental that the most frequently-used laws in Canada are those that give this authority to the information commissioner.
Information commissioners should also have the power to request annual statistical reports from public institutions on their handling of FOI requests, and should do a better job of using this data to spot patterns of non-compliance. No Canadian jurisdiction does a good job of measuring how well their FOI law is doing. Information commissioners usually don’t have the authority to do the job, and governments don’t have the interest. The situation is worst in Quebec, which recently completed a five-year review of its FOI law. It might be the most frequently-used law in the country--but no-one knows because no-one keeps track. Nor does anyone know how bad the problem of delay is, or whether some parts of the public sector are less tolerant of FOI requests than others. Here’s an easy way to protect access rights: keep score of how FOI requests are handled.
British Prime Minister Tony Blair said last year that a government’s attitude toward FOI "says a great deal about how it views the relationship between itself and the people who elected it." He’s right. Effective FOI laws are one of the hallmarks of a strong democracy. Governments shouldn’t be allowed to use public sector restructuring as a pretence for restricting the right to information.
 May be cited as/On peut citer comme suit:
Alasdair Roberts. "Closing the Window: How Public
Sector Restructuring Limits Access to Government Information."
Government Information in Canada/Information gouvernementale au
Canada No. 17 (March 1999).
School of Policy Studies
e-mail: firstname.lastname@example.org Back to text.