ACCESS TO INFORMATION ACT TIMELINE

This page from the House of Commons Debates Official Report shows the introduction of Bill C-39, NDP MP Barry Mather’s proposed administrative disclosure law. (Image by Library of Parliament)

The history of the Access to Information Act, the law that allows Canadians to obtain internal government records that might otherwise remain secret, isn’t well-known. So, as part of my dissertation research, I’ll be building a detailed timeline of that history – both for my own reference, as well as for those who are interested in the legislation. I’m pleased to share with you my first entry:

April 8, 1965 – New Democrat Barry Mather, a former Vancouver Sun humour columnist, became the first MP to introduce a freedom of information bill in the House of Commons.1Canada, Parliament, House of Commons, Debates, 26th Parl., 3d sess., vol. 1 (1965): 92. The bill didn’t make it to second reading. So we don’t know what Mather would have said about it in the House if it had. But the Canadian Press paraphrased him as saying it was based on similar legislation in the United States, which would become law the following year.2The Canadian Press, “MP Proposes Bill to Make Records Open,” Globe and Mail, April 14, 1965. “This bill is in aid of the public’s right to know in what manner a government is administering the public duties entrusted and delegated to it by the people,” he said. “The bill enacts the basic parliamentary rule that public affairs must be conducted publicly.”3The Canadian Press, “MP Proposes Bill to Make Records Open,” Globe and Mail, April 14, 1965. In an editorial, The Globe and Mail endorsed that legislation, calling on the government to “put its blessings on the bill and ensure its passage.”4Editorial “It’s is the Public’s Business,” Globe and Mail, April 16, 1965. But it would be another 18 years before the Access to Information Act would come into force.

As the timeline develops, you’ll be able to see the complete version here.

References   [ + ]

1. Canada, Parliament, House of Commons, Debates, 26th Parl., 3d sess., vol. 1 (1965): 92.
2, 3. The Canadian Press, “MP Proposes Bill to Make Records Open,” Globe and Mail, April 14, 1965.
4. Editorial “It’s is the Public’s Business,” Globe and Mail, April 16, 1965.

“THIS IS NOT WHAT MY LETTERS ASKED FOR”

A 1976 request for information about government toxicology testing went as well as you’d think it would. (Photograph by Shutterstock.com)

Right to Know Week, which began on Sunday, is supposed to be an opportunity to “raise awareness about people’s right to access government information while promoting freedom of information as essential to both democracy and good governance.” In practice, it’s often an opportunity for members of the freedom of information community to discuss the limitations of that right in Canada.

However, it’s important to remember that those limitations are as persistent as they are frustrating. Consider, for example, the experience of freelance writer Joan Liska back in 1976. In a letter sent to Vera Gellman, chief of the development division of the federal government’s product safety branch, Liska complained about the “shabby treatment” she had received in her requests for information about the “test protocols used for potentially hazardous substances.” Specifically, the freelancer stated:

“I have been requesting copies of the test protocols used by toxicologists working in relation to the Hazardous Products Act and Regulations for MONTHS already. But my requests have gone completely ignored. The replies always the same – namely, a brief letter remarking on the legislation and enclosing the legislation.

I have now at least 12 copies of the legislation and regulations. However, this is NOT what my letters asked for. In each letter, I specifically requested the toxicology tests, the ‘Acute, sub-acute and chronic’ animal studies, used in relation to the legislation. The legislation itself does not even mention the ‘acute, sub-acute and chronic’ tests, let alone the battery of other toxicology tests involved.

Please do not send me the legislation or regulations again. I want the test protocols for toxicity which manufacturers are required to perform – the ‘safety tests’ – before manufacturers can release a product in relation to the Hazardous Products Act & Regulations, on the consumer market…It is a disgrace that a Canadian citizen should thus be refused information on the safety tests conducted by her Government. One’s suspicion is escalated by this secrecy.”1Joan Liska to Vera Gellman, August 19, 1976.

I’m sure almost anyone who is the business of routinely seeking information from the government has wanted to write a letter like this. I know I have. The question is what will it take to put an end to this kind of obstructionism?

References   [ + ]

1. Joan Liska to Vera Gellman, August 19, 1976.

EQUALITY OF INFORMATION

Public institutions often don’t distribute information equally. Freedom of information laws were supposed to change that. (Photograph by Shutterstock.com)

Freedom of information laws aren’t just a legal mechanism that allows us to obtain internal records from government bodies. It’s also an instrument of social and political equality. At least, that’s how the Canadian Bar Association British Columbia Branch saw it in the late seventies, prior to the introduction of the federal Access to Information Act. In a brief prepared for the branch, its select committee on freedom of information observed:

“Presently, Canadians do not have a legal right to information possessed by government. Government releases information if and when it decides to. There appears to be an unwritten rule that an applicant for information must establish a satisfactory (in the government’s opinion) ‘need to know’ the information. The more prestigious or powerful the applicant, the stronger the presumption of its prima facie case of a ‘need to know.”1Select Committee on Freedom of Information, Report to the Provincial Council of the British Columbia Branch of the Canadian Bar Association (Vancouver, BC: British Columbia Branch of the Canadian Bar Association, 1977).

Sadly, the prestigious and powerful in Canada still often seem to have more access to information than those who are not. When I was an investigative journalist in British Columbia, I was always struck by how much more willing government officials were to share information with lobbyists than they were with reporters – including what was discussed during caucus and even cabinet meetings. This, despite the fact lobbyists represent private interests while reporters are supposed to represent the public interest. And maybe that’s a point those of us who are freedom of information advocates should be making more often than we do?

References   [ + ]

1. Select Committee on Freedom of Information, Report to the Provincial Council of the British Columbia Branch of the Canadian Bar Association (Vancouver, BC: British Columbia Branch of the Canadian Bar Association, 1977).

CLIMATE CHANGE QUESTIONS UNASKED IN CANADA

California governor Jerry Brown signs a bill setting a 100 percent clean electricity goal for the state. (Photograph courtesy of the Office of Governor Edmund G. Brown Jr.)

As a journalism professor, I teach my first and second year students that one of the easiest means of breaking news is to find a problem a foreign government is acting on and then ask what their own government is or isn’t doing about the same problem.

In newsrooms, this would be called localizing a story.

That’s why I’m disappointed that most of Canada’s mainstream news media don’t seem to have used recent climate change announcements by United Nations secretary-general António Guterres and California governor Jerry Brown to hold our own governments to account on that issue.

On September 10, Guterres warned, “If we do not change course by 2020, we risk missing the point where we can avoid runaway climate change, with disastrous consequences for people and all the natural systems that sustain us” – news that was worthy enough to be teased on the front page of the New York Times, below the fold.

The United Nations secretary-general’s climate change warning was important enough to make the front page of the New York Times. (Image courtesy of the New York Times)

That warning comes after a summer of scorching world temperatures, a heat wave that caused dozens of deaths in Quebec and devastating wildfires in British Columbia – all of which have been attributed to climate change. 

On the same day Guterres made his statement, Brown signed a bill and issued an executive order that commits the state to achieving carbon neutrality and 100 percent clean electricity by 2045 – something Vox described as “history’s most ambitious climate target,” although there are others who question whether the California governor is doing enough for the environment.

Both announcements were made just prior to the beginning of the Global Climate Action Summit, which took place in San Francisco.

But, when I searched Canadian Newsstream – a database that includes 582 news outlets – this morning,1I used the following terms: (California AND “climate change”), (“United Nations” AND “climate change”), “Antonio Guterres” and “Jerry Brown.” the coverage of that news in the Canadian  English-language mainstream news media appears to have been sparse. According to that database:

  • the Canadian Press broadcast an audio story reporting on Guterres’s warning;
  • the Prince George Citizen published an Associated Press story about that warning;
  • the Hamilton Spectator published an Associated Press story which mentioned that warning; and
  • the Thunder Bay Chronicle Journal published an Associated Press story about Brown’s climate change targets.

In addition, a Google search shows the National Post carried Associated Press stories about Brown and Guterres’s announcements.

Castanet.net, CTV, the Prince George Citizen, SooToday.com and the Toronto Star also carried the same Associated Press story about Brown’s announcement.

However, I could find no mainstream stories in Canadian Newsstream that localized those developments. Nor could I find any such stories on Google.

As Canadian journalists, I think we must do better than this.

Our role is to provide the public with the information they need to make the rationale, empathetic decisions that are supposed to be the foundation of democratic governance.

That’s why the questions we ask and don’t ask matter.

And if we aren’t asking the questions we should about climate change, the existential threat of our time, we’re contributing to that problem.

References   [ + ]

1. I used the following terms: (California AND “climate change”), (“United Nations” AND “climate change”), “Antonio Guterres” and “Jerry Brown.”

DEATH BY STUDY

Progressive Conservative MP Gerald Baldwin was also frustrated by the federal government’s tendency to study rather than act on freedom of information. (Photograph courtesy of Gerald Baldwin)

Despite their campaign promise to make government open by default, the federal Liberals have yet to introduce major reforms to the Access to Information Act that would reduce the amount of information officials are allowed to withhold from the public. Instead, the government has announced it will be conducting yet another review of that legislation,1“Commitment 7: Access to Information,” Open Government Team, updated August 14, 2018, https://docs.google.com/document/d/18K2llOOI1GgyBxcRYAsVnlnVN6Y4cIsXuiZml65EcNc/edit. even though it has already been extensively reviewed.

But such delays have been a longstanding frustration for right to know advocates in Canada, dating back to before the Access to Information Act was passed in 1982. For example, when the government released its green paper on freedom of information in 1978, Progressive Conservative MP Gerald Baldwin – who has been described as the “father and grandfather”2“Gerald W. Baldwin, O.C., Q.C., LL.D.,” Governor General of Canada, updated March 26, 2018, http://archive.gg.ca/honours/search-recherche/honours-desc.asp?lang=e&TypeID=orc&id=70. of that law – wrote:

“The issue has been examined and studied to death. There was the 1969 Task Force on Government Information which made a wide examination and a very good report, part of which was ignored by the government. There was a report by Mr. Donald Wall. There was the study preceding the 1973 guidelines for the House of Commons by the government dealing with production of papers. Then, the government has had a small task force which produced the green paper and which has been involved in careful study for many months of the whole issue, not only in Canada, but in other countries. Then, there are the studies, the briefs and the evidence produced for the standing joint committee and which persuaded them to bring in the report mentioned above and finally, there have been made briefs and recommendations and resolutions of organizations sent to the government. The government knows what it needs to know about this subject. The House and the media know about it and, up until the presentation of the green paper, the only issue was whether or not the government was prepared to act. It now appears quite definitely they will not.”3Gerald Baldwin, Response to the Green Paper on Freedom of Information (Ottawa, ON: printed by the author, 1978?), 7-8.

It would take two more years, and a defeat at the polls, before the Liberals took such action. So the question is whether today’s Liberals will follow the same pattern.

References   [ + ]

1. “Commitment 7: Access to Information,” Open Government Team, updated August 14, 2018, https://docs.google.com/document/d/18K2llOOI1GgyBxcRYAsVnlnVN6Y4cIsXuiZml65EcNc/edit.
2. “Gerald W. Baldwin, O.C., Q.C., LL.D.,” Governor General of Canada, updated March 26, 2018, http://archive.gg.ca/honours/search-recherche/honours-desc.asp?lang=e&TypeID=orc&id=70.
3. Gerald Baldwin, Response to the Green Paper on Freedom of Information (Ottawa, ON: printed by the author, 1978?), 7-8.

CLASSIFYING INFO HAS “NOTHING TO DO WITH THE PUBLIC”

In 1976, Prime Minister Pierre Trudeau and his House Leader Mitchell Sharp were accused of being instinctive suppressors of information. (Photograph courtesy of Wikimedia Commons)

Between 1965 and 1980, the federal Liberals did their upmost to defend their government from those who attacked its secrecy. Some officials claimed their government was more open than it actually was, while others tried to justify its closed door meetings and locked filing cabinets. But one of the most absurd defences of that secrecy was mounted by President of the Privy Council and Government House Leader Mitchell Sharp during an appearance on CTV’s Question Period. Responding to a question posed by panellist and Toronto Star columnist Richard Gwyn, Sharp said:

“The reason that documents in the public service are marked ‘secret,’ ‘confidential,’ ‘restricted’ is for internal purposes, not for public purposes. A document that is secret may at some time be published. The reason for it being marked secret is so that it only circulates within a very, very small circle within the government, or even top secret documents that circulate within an even smaller – for example, I receive on my desk ‘secret,’ ‘top secret – to be opened by addressee only.’ Now the reason for that is so that even my secretary doesn’t know what is in it. There’s nothing to do with the public.”1Bruce Phillips et al., Interview with Mitchell Sharp, Question Period, Ottawa, ON: CJOH-TV, July 18, 1976.

But Charles Lynch, chief of Southam News Services and another program panellist, called Sharp out for that doublespeak:

“Of course it has to do with the public. I suggest that it brings an attitude of suppression into your mind. I regard you as an instinctive suppressor of information. But still more do I regard [Prime Minister Pierre] Trudeau as one. He is so obsessive about it. He loves secret dealings and he despises disclosure. The cabinet secrecy is a sacred thing with him and this is the problem…”2Bruce Phillips et al., Interview with Mitchell Sharp, Question Period, Ottawa, ON: CJOH-TV, July 18, 1976.

Four years later, the Liberals would introduce the Access to Information Act, a seeming concession to the country’s right to know advocates. But, today, cabinet secrecy seems even more sacred than it was back then. And can you imagine any journalist today calling a cabinet minister an “instinctive suppressor of information” to their face? All of which makes me wonder just how much of a concession that legislation actually was.

References   [ + ]

1, 2. Bruce Phillips et al., Interview with Mitchell Sharp, Question Period, Ottawa, ON: CJOH-TV, July 18, 1976.

MICK JAGGER, FREEDOM OF INFORMATION ADVOCATE?

The Rolling Stones were among the British musicians who became “tax exiles” in the seventies. (Photograph by Bert Verhoeff)

As a freedom of information scholar and activist, I’ve heard and read countless arguments against secrecy and in favour of openness. But an undated op-ed, printed on the United Kingdom’s All Party Committee for Freedom of Information letterhead sometime during the last half of the seventies, featured one of the oddest right to know rallying cries I’m aware of. At the time, some of the country’s most famous rock stars were “going into exile” to avoid its high taxes, which had recently increased for them thanks to the government “abolishing a concession under which money earned abroad was not taxed if it was not brought back in the country.”1David McGee, “British Rock Stars Going Into Tax Exile,” Asbury Park Press, July 4, 1976. In response, the op-ed stated:

The melody maker is the source of vast wealth which this country cannot afford to loose. But the whole of the music based industry is threatened when its top talent seeks refuge in exile from crushing taxation. Wise men do not drive away geese which lay golden eggs. If wise men are seen to be killing off these geese one knows for certain that there is a secret reason. There must be a secret reason because we are watching wise men doing it. Only madmen would destroy such geese without a reason, and we must not accuse the powers that be of madness.2All Party Committee for Freedom of Information, “The Grim Hush of Secrecy to Silence Music,” n.d.

The op-ed then suggested that music was the “prime target” of the government’s “money lender” because:

…of its unique freedom from his clutches. He hears music as a threat to the huge profits which can be obtained from lending money. What could be easier for him than to attach conditions to the borrowing of money under cover of secrecy which could cripple any industry that successfully survived without credit.3All Party Committee for Freedom of Information, “The Grim Hush of Secrecy to Silence Music,” n.d.

As a result, the op-ed stated:

If the music industry is to protect itself from the decline already suffered by the film industry it must use its link with the man in the street to create a demand for the Right to Know. The melody maker must get turned on to reform. He must resume the ancient and honourable tradition of the troubadour and once again become the herald of freedom, the champion for humanity against the darkness of Secrecy. For a human being has a basic need and a basic right to know and old secrecy deprives him of that right. When Britain was inhabited by illiterate peasants and ruled by an educated minority, affairs of State might be justly protected by secrecy as if pearls before swine. But today old Secrecy is outmoded and obsolete. The citizen needs his right to know and who better is there to champion his cause than those with a legitimate vested interest in Freedom of Information. For his own survival, and for the survival of the Nation as a whole, the Melody Maker should be in the forefront of the National Campaign to introduce Freedom of Information Legislation in the U.K.4All Party Committee for Freedom of Information, “The Grim Hush of Secrecy to Silence Music,” n.d.

References   [ + ]

1. David McGee, “British Rock Stars Going Into Tax Exile,” Asbury Park Press, July 4, 1976.
2, 3, 4. All Party Committee for Freedom of Information, “The Grim Hush of Secrecy to Silence Music,” n.d.

IS CABINET CONFIDENTIALITY REASONABLE?

Social scientist Alex C. Michalos was among those who questioned the notion of cabinet confidentiality in the 1970s. (Photograph by University of Northern British Columbia)

If you think about it, the whole notion of cabinet confidentiality is pretty anti-democratic. It means Canadians don’t have any right to know what happens inside the government’s most important decision-making body. We only have a right to know what our government lets us know. Moreover, members of cabinet who disagree with the decisions it makes have to pretend they agree in public. And that means they may have to lie to the very people who elected them.

Yet, in Canada, questioning cabinet confidentiality rarely seems to happen. And, when it does, such questioning is often branded as radical at best and foolish at worst. Indeed, in 1979, the eminent Canadian political scientist Donald V. Smiley observed, “No informed person suggests that the proceedings of the cabinet should be published.”1Donald V. Smiley, “Freedom of Information: Rationales and Proposals for Reform,” in Freedom of Information: Canadian Perspectives, ed. John D. McCamus, 1981), 16.

However, between the mid-sixties and early eighties, informed people were actually making such suggestions. Among them was social scientist Alex C. Michalos. In a brief prepared for the Ontario Commission on Freedom of Information and Individual Privacy, Michalos, who was then a philosophy professor at the University of Guelph, took issue with the claim that differences between cabinet ministers must be resolved in the strictest confidence, writing:

This is assertion without justification. It is possible to have ‘stability and cohesion’ while admitting honest difference. Does anyone expect a monolithic set of views out of a Cabinet? It seems to be greater ‘stability and cohesion’ would be displayed by the honest display of differences of opinion which are occasionally comprised in the public interest. To pretend that there are no disagreements within an organization is dishonest in the first place, and self-destructive in the second. Instead of preaching rational debate and accommodation, we will be preaching authoritarianism and control. Instead of displaying a model of reasonable people struggling over difficult problems with conflicting but legitimate points of view, we will be displaying a model of rigid people struggling to control diversity with secrecy. How can this help? How can we in good conscience give this example to our children and our neighbours?2Alex C. Michalos, “A Brief to the Commission on Freedom of Information and Individual Privacy.” (unpublished submission), July 1977.

How indeed? Yet, that’s exactly what we’ve continued to do. And it’s well-past time for Canadians to change that.

References   [ + ]

1. Donald V. Smiley, “Freedom of Information: Rationales and Proposals for Reform,” in Freedom of Information: Canadian Perspectives, ed. John D. McCamus, 1981), 16.
2. Alex C. Michalos, “A Brief to the Commission on Freedom of Information and Individual Privacy.” (unpublished submission), July 1977.

WHAT NEVER? HARDLY EVER!

The American government was declassifying millions of pages of documents while the Canadian government was still trying to keep most of its documents secret. (Photograph by Office of the National Archives)

For all its faults, the United States government has almost aways proven more open than our own government in Canada. And, in 1976, Philip Chaplin, the senior research officer of the directorate of history at Canada’s National Defence headquarters in Ottawa, sketched out a dramatic and somewhat depressing illustration of that difference.

In a paper entitled “Well, Hardly Ever! A Response to the Plaintive Question: Does Anyone Ever Declassify Anything?” Chaplin wrote, “As far as I know (and I am in a position to hear of such things) I am the only full-time public servant in the country who put a (sic) least half of his past year’s work into declassification.”1Philip Chaplin, “Well, Hardly Ever! A Response to the Plaintive Question: Does Anyone Ever Declassify Anything?” (unpublished paper, April 1976), 1 By comparison, when he visited the declassification division of the United States National Archives, he found that “with a staff of 100, they expected to have reviewed 160,000,000 pages of 30 year old records in just over three years ending on 31 December 1975 at a cost of $4,500,000.”2Philip Chaplin, “Well, Hardly Ever! A Response to the Plaintive Question: Does Anyone Ever Declassify Anything?” (unpublished paper, April 1976), 3

Nor did Canadian officials seem particularly concerned about this difference. Chaplin’s paper was prepared for a Public Service Commission seminar that was supposed to take place between April 12-13, 1976. But that seminar was cancelled for lack of interest.”3Philip Chaplin, “Well, Hardly Ever! A Response to the Plaintive Question: Does Anyone Ever Declassify Anything?” (unpublished paper, April 1976), 7

References   [ + ]

1. Philip Chaplin, “Well, Hardly Ever! A Response to the Plaintive Question: Does Anyone Ever Declassify Anything?” (unpublished paper, April 1976), 1
2. Philip Chaplin, “Well, Hardly Ever! A Response to the Plaintive Question: Does Anyone Ever Declassify Anything?” (unpublished paper, April 1976), 3
3. Philip Chaplin, “Well, Hardly Ever! A Response to the Plaintive Question: Does Anyone Ever Declassify Anything?” (unpublished paper, April 1976), 7

MEASURING TRUDEAU’S COMMITMENT TO OPENNESS

 

The federal Liberals like to claim they’re commitment to being more open and democratic. But how can we tell if they actually are? (Image by Liberal Party of Canada)

At the very least, you’ve got to admire the federal government’s open government team’s chutzpah. Despite the Trudeau administration’s utterly unsurprising failure to keep its election promises to be open by default and reform our electoral system, late last month the team enthusiastically asked civil society members for feedback on its draft open government commitments.

Those commitments include a promise to review the Access to Information Act, which has already been extensively reviewed since it was passed in 1982. The government also states it will implement activities to “strengthen democracy in Canada.” But those activities remain unidentified.

Such non-reforms are as expected as they are frustrating. And I’m sure I’m not the only transparency advocate who felt that way. That said, I do appreciate the approach the open government team has taken during this consultation process, providing us with an opportunity to comment on its proposals via Google Docs. As a result, I thought it might be helpful to share what I think are the two things the Trudeau administration would have to do to demonstrate it was serious about being more open and democratic:

1. Reduce the number of secret spaces in government

It is not an understatement to say we are blind to much of what our sitting government does. Right now, we have no right to know what happens in its cabinet, the government’s top decision-making body. We have no right to know what happens in its cabinet ministers’ offices. And we have no right to know what recommendations are being made to those ministers by government employees. In short, we have no right to know why our government makes the decisions it makes. We only know what our government decides to tell us. Moreover, our right to know what our government knows about corporations, federal-provincial affairs, international affairs, defence and law enforcement is often limited. All this is odd for a supposed democracy. So, if the government wanted to be more open, it would do something about this.

2. Reduce the government’s power to do whatever it wants

Party discipline is the practice whereby all representatives from the same party vote together in Parliament. In combination with cabinet solidarity, it means a government with a majority of MPs in the House of Commons can often do whatever it wants. And, because our first-past-the-post voting system almost always produces such majorities, that’s usually the rule rather than the exception. This has the affect of making government resistant to public, press and opposition opinion between elections. Again, this is odd for a supposed democracy. As such, if the Trudeau administration wanted to be more democratic, it would do something about this too.

That said, these are hard things for any government to do because it means giving up control. And that’s even more difficult now because the informed, rational and empathetic decision-making that’s supposed to be the foundation of democracy is being undermined. But part of the reason for that is people don’t feel they have any control over an economic and political system that seems rigged against them. That’s why the work of the open government team is so important. I just wish the Trudeau administration would recognize that.