The lost year of the FOI
Canada’s access-to-information system, one that’s widely considered to be broken and in need of reform, is further decelerating as commissioners ask for patience while adjusting to the alternative work arrangements required under the COVID-19 pandemic.
While some considerations are understandable, given the universal need to grapple with new conditions and a relentless demand for information, FOI and press freedom experts warn against being too quick to acquiesce when responding to hold notices.
Too much slack on holds for which there is no legislative basis could have sweeping implications for the public’s right to know. At the moment, requesters face blocks filing routine information requests — ones which could impede journalists from communicating anything from ministerial records to critical public health data.
“I think 2020 will be the lost year of FOI in Canada,” access to information specialist Dean Beeby, who sounded the alarm in the early weeks of the pandemic, says in an email. “Overwhelmed FOI units will be months in recovery. And responses to substantial FOI requests related to the COVID-19 crisis are likely a year away.”
During a public health emergency of this magnitude, there’s an overwhelming crush of information needs, which journalists and news organizations have been toiling to fill. But there’s great cause for concern if public agencies aren’t matching that demand by supplying public interest information in a transparent, timely and thorough manner.
The week COVID-19 was declared a pandemic by the WHO, and before municipalities across Canada went under lockdown, Maclean’s set out to visualize the infection curve. Health Canada denied the publication’s request for historical data, citing that “the provinces and territories are the owners of the information.” So the magazine constructed the curve using cached information from the agency’s website.
But the public can’t get all the information they need to stay informed by journalists scraping Wayback Machine.
The federal Access to Information Act sets out the limited conditions under which departments and government agencies can request 30-day extensions. But holds — which aren’t necessarily coming attached with a deadline and aren’t supported by the letter of the law at a federal or provincial level — are being used increasingly as commissioners and agencies adjust to alternative work arrangements.
The information commissioner of Canada issued a letter March 20 indicating that complainants can expect some delays with responses and investigations under new alternative work arrangements, but that the office “will continue to exercise its mandate, accepting and processing all complaints.”
We also understand that the current situation creates many challenges for government institutions. While the OIC cannot extend statutory deadlines under the Act, we are committed to being as flexible as reasonably possible with our investigation timelines. The OIC is asking institutions to take all reasonable measures to limit the impact on individuals’ right of access to information, and to advise access requesters of their reduced capacity to process access requests.
Meanwhile, reports have been emerging of agencies responding to requests without any affixed timeline. Canadian Press reported: “A response from Global Affairs Canada cited such hurdles in delaying one recent application. “With this in mind, we are placing your request on hold for the time being,” read the department’s email message.
An April 3 CBC News story looked at different municipal approaches to information request systems during COVID-19 lockdowns, ranging from no change and temporary suspension of new requests to indefinite extensions.
Alberta’s commissioner notes that:
A public body does not have authority to grant itself a 30-day extension under section 14(1) if unable to access or process records due to a disaster or pandemic. Furthermore, the Commissioner has no ability to grant an extension in such circumstances.
In the meantime, the Office of the Information and Privacy Commissioner suggests that public bodies inform applicants that they are unable to access or process responsive records due to circumstances related to the COVID-19 pandemic. Applicants should also be told that records will be processed as soon as circumstances allow, and that they may ask the Commissioner for a review under section 65(1) of the FOIP Act if this is an issue for them. This is the only option given the wording of the legislation and the current situation.
J-Source asked the Treasury Board Secretariat, which administers the federal Access to Information Act, about what sections of the law are most relevant in determining the options available for managing requests during a public health crisis; the legislative underpinning for an open-ended hold, guidance being given to federal departments about communicating the reasons and timelines for those delays; if there are discussions about modifications to the Act to provide direction under a future natural disaster or pandemic and if there is a plan in place or under consideration for managing a potential backlog of requests when holds lift.
A spokesperson for TBS tells J-Source that institutions are required by the Act to “make all reasonable efforts to assist those who request access to information and to respond to requests in a timely manner,” adding that they’re mandated to follow federal directives surrounding data security, such as the Mandatory Procedures for Information Technology Security Control from the Directive on Security Management and those of the Standard on Security Categorization (DSM, Annex J).
“However, the Government of Canada, as well as provincial and territorial governments and the governments of other countries, are now facing exceptional circumstances,” they said in an emailed statement.
The Government of Canada has taken exceptional measures to curb the COVID-19 pandemic and to protect the health and safety of its employees. We have asked most employees to work from home. This has resulted in the institutions operating with significantly reduced local staff, with priority given to the COVID-19 response and the provision of critical services.
The Treasury Board Secretariat (TBS) has advised institutions to make reasonable efforts to respond to requests, taking into account operational realities. Also, TBS continues to engage the Office of the Information Commissioner and the Office of the Privacy Commissioner to ensure that these essential oversight bodies are aware of the operational constraints faced by the government and the approach it is taking.
While certain accommodations are understandable given the circumstances, middling conditions for press freedom and information access are a pre-existing condition in Canada.
A national FOI audit published in 2017, which evaluated response times to information requests, gave the federal government a failing grade.
Journalists who routinely file freedom of information requests in the course of their reporting regularly run up against multi-year waits and exorbitant bills. A 2019 Tyee investigation “found the RCMP’s failure rate in complying within timelines set by the Access to Information Act has tripled over the past four years.”
2019 marked the peak of a protracted and contentious ATI reform process as Bill C-58 made its way through the House, a piece of legislation that was widely panned along the way for inadequately forestalling government secrecy.
Beeby suggests that blanket holds offer a way for departments to “mask their poor performance,” adding that the measure “also contaminates annual statistics that gauge the health of the access-to-information system.”
The experts J-Source spoke with, including Beeby, echo the understanding of the material impacts on public servants’ working conditions as a result of the pandemic. “But the law was framed to protect the interests of requesters, and we should not surrender that protection no matter the circumstances,” wrote Beeby.
“Indeed, isn’t it during massive crises like this that we especially need to hold governments to account? What were the right and wrong decisions? We need those answers to better prepare for the next crisis. FOI is a key tool, especially for journalists, to get the answers.”
A report published by CTV News on April 7 outlined the evolution of Ottawa’s response to the pandemic – information that was only made available through its inclusion in House of Commons Health Committee documents. Rachel Aiello writes that, “While the committee has yet to publish the documents, they are considered public and are some of the first documents produced about the federal government’s COVID-19 response, given the federal Access to Information system has largely been halted.”
Journalists: negotiate holds
Karyn Pugliese, president of the Canadian Association of Journalists, urges reporters to push back against unsupported delays, especially with respect to COVID-19-related access requests.
The professional organization has been contacted by members who’ve received the types of indefinite hold notices at issue. In some cases, they’ve conceded quickly, given the shared understanding of the demands of the moment.
But those that have conceded also told CAJ they “immediately regretted doing it,” Pugliese told J-Source. “We’ve been having problems and trying to address issues with FOIs forever now. In the best of times, they’re too slow. In the best of times, they’re delayed. In the best of times, departments aren’t open enough.”
While there may be legitimate bases for delays, such as physical access to files, requesters should always respond to a hold notice to ensure the explanation sounds reasonable before agreeing to a pause, push back on any holds on COVID-19 information and always specifically ask for a timeline.
“Now is not the time for government secrecy about health care,” says Pugliese.
“We’ve got to safeguard against unreasonable delays or excuses. I’m not saying … every time somebody asks for an extension or a hold that it’s an excuse, but we’ve got to be vigilant that it doesn’t become that.”
Journalists who encounter delays to government information in the process of their reporting should include that in the body of their coverage, she recommends: “Let (the public) know that the government is slow, unhelpful, delayed in getting information out to the public because that’s part of the story.”
As the public anxiously awaits updates on health information, that data should be put on the front burner, say advocates. But what of the measures that will be put in place that impact residents’ rights to privacy?
Ontario’s former Information and Privacy Commissioner, who calls language around indefinite delays “totally unacceptable,” worries about the sorts of crisis responses that will emerge quickly and justifiably under immediate conditions, but leave lasting marks on residents’ rights to privacy.
“They don’t want people getting underneath, to get under the hood,” said Ann Cavoukian, now the executive director of data and privacy firm Global Privacy and Security By Design.
Impending surveillance measures the government may employ to track the spread of COVID-19 or to ensure people are following physical distancing requirements may be defensible on their own terms. But much like the Patriot Act – a now oft-cited example of an emergency response-turned civil rights disaster – experts warn that if you give an inch, they’ll take a mile.
And what happens if extrajudicial invasions ramp up?
News reporters aren’t in the business of determining how the public should respond to or feel about what constitutes an unreasonable incursion on their privacy. But they are tasked with ensuring their audiences have the most complete set of information on which to form their views and inform their actions, an imperative that’s only more stark during a public crisis.
“The issue there, I think, as a journalist association, is that the government is open and candid about the changes it’s making in terms of freedom and collecting information on citizens so that we can report it out,” says Pugliese. “And Canadians can make up their mind how they feel about it.”
It’s those basic informed-decision making functions that are most important amid a crisis and most at risk when subpar transparency standards are put to the test.
Control and certainty are what drive why information is valued in democracies, says Sean Holman, FOI researcher and associate professor of journalism at Mount Royal University. It equips members with the tools to make decisions and act on what’s known; and to root our context of the world with facts about the past, present and possibilities for the future.
“Unaccountable government and unaccountable public agencies make bad decisions that are not necessarily in the best interest of the broader population,” says Holman. “We need to know as much as we possibly can so the public can make good decisions about their own health and about how their government is being run during one of the most important times in our lives.”
In all this, the current practice of holds not only raises transparency issues during this period but it also highlights a long standing problem with the FOI system across Canada.
“The ATIA system federally was already broken heading into the COVID-19 crisis,” wrote Beeby. “Stretched to the limits, beset with delays, backlogged, under-staffed and under-resourced, an information commission overwhelmed with complaints, loopholes like Swiss cheese, the COVID-19 crisis readily knocked the struggling system out of commission entirely.”
Steph Wechsler is J-Source's managing editor.