Information commissioner’s call to action is commendable—but nothing new
Concerns about the lack of documentation of federal officials’ decision-making began long before Suzanne Legault’s recent report.
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Canada’s information commissioner, Suzanne Legault, wants new rules that would force federal officials to document their decision-making.
But concerns about their lack of documentation began long before recent investigations revealed some of the highest levels of government in this country are strangers to the printed word, shielding them from scrutiny. And it’s likely those concerns will remain long after Legault, who has about two years left in her seven-year term, leaves office.
The commissioner’s “duty to document” recommendation is included in her 108-page report on modernizing Canada’s aging Access to Information Act. In the report, released earlier this month, Legault states “no federal statute or regulation” currently includes such a “comprehensive legal duty.”
The commissioner also wants to see penalties for ignoring that duty. After all, if officials aren’t recording their decision-making, there will be no documentation for the public to request under the Access to Information Act.
Those recommendations follow a 2013 investigation by Ontario’s then-information commissioner Ann Cavoukian, who found a “verbal” culture within the offices of that province’s former premier and energy minister.
Cavoukian stated it was unclear if records weren’t kept “to increase efficiency or to prevent any of these materials from seeing the light of day and forming the subject of a freedom of information request.” The result contributed to a lack of documentation about a controversial and costly government decision to cancel the construction of two gas plants.
Similarly, British Columbia’s information commissioner, Elizabeth Denham, found the “general practice” within Premier Christy Clark’s office has been “to communicate verbally in person.” As a result, “email communications usually consist of requests to make telephone calls or meet in person” and staff “do not make substantive communication relating to business matters via email.”
But the tendency for officials not to record their decision-making was also being reported shortly after the Access to Information Act came into effect on July 1, 1983. Less than a year later, the Globe and Mail paraphrased federal official Don Page as saying the law was causing government employees to “use the telephone more and not put a full record of conversations and meetings on file.”
Speaking to a session of the Canadian Historical Association at the annual meeting of the Learned Societies conference, Page, the deputy director of the Department of External Affairs’s historical division said, “There is no way to document how extensive the changes are but you can sense a different atmosphere.”
That’s why, in 1994, Canada’s second information commissioner, John Grace, recommended a duty to create records be imposed on the federal government.
“These rules would rebuke the disdainful practice of some officials who discourage the creation and safekeeping of important records in order to avoid the rigours of openness,” Grace wrote in his annual report. That recommendation was then repeated by his successor, John Reid. And since Legault has been doing the same thing since at least 2013, you can probably guess what happened to those recommendations, like so many others from the commissioner’s office.
Perhaps, though, you may think the accumulated weight of that advice will be enough to finally force our politicians to act. What’s more likely is that accumulation has taught Canadian politicians that recommendations from the commissioner carry little weight with the voting public.
After all, Brian Mulroney, Jean Chretien and Stephen Harper all won re-election despite accusations of opacity. And that culture of secrecy will continue so long as the oh-so-Canadian culture of passively accepting such disregard for citizens continues.
FOI NEWS: FEDERAL
• Long-time right-to-know advocate Ken Rubin writes that information commissioner Suzanne Legault’s recent recommendations for fixing Canada’s broken access law “barely stops the erosion of the public’s right to know and does not open Ottawa to a large changeover in record disclosures.”
• University of Manitoba political studies professor emeritus Paul Thomas takes an opposing position, writing, “There is much to applaud in the commissioner’s rigorous analysis of the weaknesses of the access regime, and her recommendations provide a valuable starting point for debate on how to ensure it serves Canadians better in the future.”
• The Globe and Mail’s editorial board appears to have a similar opinion, describing the commissioner’s report as “excellent.”
• Former Sun Media Ottawa bureau chief David Akin writes about Canada’s “rotted” freedom-of-information law, noting that “University of Laval political scientist Anne Marie Gingras published a paper in 2012 in which she reviewed the then-thirty year-old Act and found the Harper government and all of its predecessors—Liberal or PC—have failed to live up to the spirit and, too often, the letter of the Act.”
• The Hill Times reports that, according to Legault, “Journalists are self-censoring their access to information requests to avoid being denied on the grounds of Cabinet confidences.”
• “You’re kidding me.” According to the Canadian Press, that’s how former CIA agent John Kirakou reacted when he heard that Canada’s opposition “doesn’t get to see or scrutinize national-security intelligence files.”
FOI NEWS: PROVINCIAL
• The Telegraph-Journal reports New Brunswick’s government has started publishing the annual inspection reports for the province’s licensed daycares online. But “the new online reports do not contain all of the information included in the paper copies,” nor will the government post details from older inspections. The newspaper earlier had to fight the government to release those copies.
• The Telegraph-Journal reports it has “filed several Right to Information requests over the past several months with the goal of building a [province-wide] Sunshine List. Requests for salary disclosure are still outstanding from the Saint John Police Department and the Town of Rothesay. When asked, the City of Saint John provided a list of employees making more than $100,000. The Town of Quispamsis declined to provide names, but offered the titles of employees making more than $100,000. A quick Google search reveals the names of those employees.”
• Prince Edward Island’s Progressive Conservatives have promised to turn the province into an “Open Island” if the opposition party forms government in the upcoming election. That commitment includes promising to publish online all government loans, grants, write-offs and contracts over $1,000. It will also make research and background documents “digitally available so that the public can view the same information being used by government to address issues and make decisions,” among other measures.
• The Calgary Herald reports a Royal Tyrell Museum researcher wasn’t able to speak to the newspaper about his work “because there’s a protocol restricting provincial employees from doing interviews during the Alberta election campaign” (hat tip: Erika Stark).
• Vice reports the Government of the Northwest Territories isn’t requiring natural gas companies to “disclose the toxic ingredients contained in their tracking fluids and chemical additives.” Instead, those companies can decide for themselves “whether or not they will divulge the chemical makeup of the substances used to drill, fracture the shale bed and extract oil or gas to the surface.”
• The Globe and Mail reports: “British Columbia’s Ministry of Justice says a ruling that ordered its Civil Forfeiture Office to disclose the names of its employees did not properly consider the safety risks and should be discarded.” The agency has “faced questions of fairness and transparency.”
FOI NEWS: LOCAL
• The Mississauga News reports Ontario Peel Region Police wouldn’t reveal the name of a 22-year-old Toronto man who died after being “brutally assaulted with a compressed air horse on March 6 at his Mississauga workplace.” The victim’s family had requested that lack of disclosure. But the newspaper reports it “simply delayed the eventual release of his name, and in the end served no real purpose.”
• Earlier this month, the mayor of Surrey, B.C., refused to speak to News 1130 about a dozen shootings that have taken place in her city, instead referring questions to the RCMP. In a subsequent interview, with the Vancouver radio station, the mayor explained, “I am not the sheriff. I can’t do more than that which we are doing, which is getting those police on the ground, responding to the events, and actually doing some significant preventative work.”
• British Columbia’s information commissioner has found it was “inappropriate” for a city councillor to mention “by name a citizen who had made a number of requests for information to the city. The disclosure led to several references to the requester in the local paper…” (hat tip: Bob Mackin).
• The Toronto Star reports: “Ontario’s privacy commissioner has ruled that the City of Markham needs to reconsider its reasons for keeping documents related to the failed NHL arena project under wraps.” But the city is now asking the commissioner for more time to re-examine those reasons.
• The Telegraph-Journal reports Saint John Coun. Greg Norton is “proposing the city create a Sunshine List, which will detail exactly how much city employees make on an annual basis, and post those documents online for anyone to see.”
• The Windsor Star reports the WindsorEssex Economic Development Corp.’s chief executive officer’s salary wasn’t on Ontario’s Sunshine List, which discloses the salaries of public employees making more than $100,000 a year. It didn’t have to because the corporation’s $1.9 million in core funding comes from Windsor and Essex County taxpayers rather than the province.
• The Woolwich, Ont., citizen committee “tasked with overseeing cleanup of the township’s polluted water supply is boycotting a secret meeting Thursday on the committee’s future organized by Mayor Sandy Shantz,” according to the Waterloo Record.
• The Toronto Sun reports the number of people asking the city’s local government for access to their own personal records is increasing, while the number of general access requests continues to decrease. According to the newspaper, “The city has been trying to be more proactive in disclosing run-of-the-mill information without people having to pay $5 to file an access to information request.”
• The Montreal Gazette’s Bill Tuerney, the former mayor of Ste-Anne-de-Bellevue, Que., asks, “What can and cannot be shared with the general public? The main rule I remember is that you should be careful with all information that is “nominal.” That is, it has people’s names attached. Everything else should be public. All you can do, if it is time-sensitive, is time its release.”
Sean Holman writes The Unknowable Country column, which looks at politics, democracy and journalism. He is a journalism professor at Mount Royal University, in Calgary, an award-winning investigative reporter and director of the documentary Whipped: the secret world of party discipline. Have a news tip about the state of democracy, openness and accountability in Canada? You can email him at this address.
