CELEBRATING RIGHT TO KNOW WEEK

A panel discussion during Right to Know Week will take place at Carleton University later this month. (Photograph by nismonick)

A panel discussion during Right to Know Week will take place at Carleton University later this month. (Photograph by nismonick)

I’m excited to announce I’ll be speaking at my alma mater for an event celebrating Right to Know Week. On Sept. 26, Carleton University and the Office of the Information Commissioner of Canada will be holding an afternoon seminar on open and transparent government. Treasury Board President Scott Brison will be the keynote speaker. I’ll be part of a panel discussing access in journalism along with Toronto Star investigative reporter Jayme Poisson – who has been studying the access to information process – and VICE News features editor Justin Ling. There will also be panels on policy issues and open government. If you’re in Ottawa, I look forward to seeing you there.

FREEDOM OF INFORMATION BY THE NUMBERS

What secrets do Canadians learn thanks to freedom of information laws? I'll be scanning news coverage across the country to find out. (Photograph by Shutterstock.com)

What secrets do Canadians learn thanks to freedom of information laws? I’ll be scanning news coverage across the country to find out. (Photograph by Shutterstock.com)

Canada’s freedom of information laws may be broken. But they can still be used to make public records that the powerful want to keep secret. That’s why, in addition to working on a book about the early history of the Access to Information Act, I’m compiling a database that tracks the media’s coverage of freedom of information requests and issues.

You can read more about the methodology I’ll be using here. Suggestions are welcome since this is a work in progress. I’ve also created two pages on the site that display live information from that database. The first page shows summaries of stories that have been published or broadcast by English-language outlets in Canada since July 2016 which broke news based on records obtained via a freedom of information request. It also shows summaries of any editorials, op-eds or columns advocating for greater freedom of information. The second page shows statistics from that database, including charts showing freedom of information successes by date, jurisdiction, public body, news outlet and journalist.

Over time, I hope those statistics will provide Canadians with a better sense of how freedom of information laws are and aren’t being used in this country – going beyond the aggregate data provided by public bodies. Indeed, some of those gaps are already all too apparent. But, in the meantime, it’s also somewhat comforting to know that there were at least 118 stories published or broadcast last month that told the public something they didn’t already know because of that legislation – a living memorial to all those who have fought for greater openness in Canada.

Author’s note: This project wouldn’t have been possible without the instruction and counsel provided by my friend Fred Vallance-Jones. Over the summer, I attended his data journalism school at the University of King’s College – a program that gave me the skills necessary to setup and analyze this database. For anyone interested in digging into and telling stories with data, I can’t recommend it enough. Coincidentally, Fred conducted a similar study on the media’s coverage of freedom of information requests in Ontario. He presented the findings to the 2012 annual meeting of the Canadian Communication Association in a paper entitled “Journalists’ Use of Freedom of Information: A Failed Promise.” He’s also been gracious enough to share that work with me.

HEADING INTO THE STACKS

This is where I'm going to be for the next little while. (Photograph by Shutterstock.com)

This is where I’m going to be for the next little while. (Photograph by Shutterstock.com)

As you may have noticed, I’ve been absent from this site for the past few weeks. Part of the reason for that absence is the approaching end of the fall semester and all marking that entails. But I’m also pleased to announce I’m working on an early history of the Access to Information Act (1965-1983).

The book will tell the story of the long fight for that law by a somewhat incongruous group of politicians, academics, lawyers and activists. And it will help explain why that fight continues to be fought — and often lost  today. I look forward to sharing that story with you.

But, in the meantime, I’ll will be stepping back from penning my weekly column about government secrecy. From time to time, I’ll still write about current attempts to frustrate the public’s right to know, as well as the results of my research. So be sure to sign-up as a email subscriber to this site to stay informed. I’ll also continue to be active on Twitter, contributing to the #cdnfoi discussion. But this book is a major undertaking that will need as much time as I can give it.

P.S. If you or anyone you know was part of the early history of the Access to Information Act, please drop me a line at this address. I would love to hear from you.

THE FIRST TEMPTATION OF TRUDEAU

Prime Minister Justin Trudeau is promising a "fair and open government." But that openness could a lot like what a NDP MP proposed half-a-century ago. (Graphic by Liberal Party of Canada)

Prime Minister Justin Trudeau is promising a “fair and open government.” But that openness could a lot like what a NDP MP proposed half-a-century ago. (Graphic by Liberal Party of Canada)

If Prime Minister Justin Trudeau is serious about making government information “open by default,” he’ll have to deal with the same arguments that helped scuttle Canada’s first right-to-know bill a half-century ago.

Prior to the recent election, Trudeau unsuccessfully tried to demonstrate his commitment to that principle by introducing a private member’s bill entitled the Transparency Act.

That bill, which was defeated on second reading, would have made it somewhat easier to ask for government records and get more of them.

But it wouldn’t have closed the some of the biggest loopholes in the Access to Information Act, which let the government keep its most informative and important records secret.

That made Trudeau’s commitment to “raise the bar on openness and transparency in government” questionable.

Nevertheless, the prime minister repeated that commitment following last week’s swearing-in ceremony.

So let’s give him the benefit of the doubt I didn’t during the campaign and assume his post-election effort to make information “open by default” will actually do just that.

Such an effort would have to allow the public to access all sorts of records that are usually under lock and key, including, for example, advice and recommendations developed for the government, as well as accounts of deliberations involving government officials.

In some ways, such a law wouldn’t be dissimilar to the one former Vancouver Sun columnist and NDP MP Barry Mather proposed in April 1965 – two months after United States Senator Edward Long introduced the bill that would lead to that country’s Freedom of Information Act.

Mather’s legislation would have required government to make any information or records “concerning its doing available to any person at his request in reasonable manner and time,” with the Exchequer Court of Canada (the predecessor to the Federal Court of Canada) adjudicating that access.

In the words of the Globe and Mail, exceptions would have been made for “matters of national security, matters exempted by statute from disclosure, trade secrets, commercial information obtained from private persons and subjects of private interest ‘to the degree that the right to personal privacy excludes the public interest.'”

But that’s a short shadow compared to the long darkness of the Access to Information Act, which includes 75 separate exemptions and exclusions.

The Globe and Mail wrote favourably about Mather’s bill, stating it would do much to open the government’s “many closed doors and keep the public informed about what is, after all, its own business.” As a result, the newspaper advised the ruling Liberals to put their “blessing” on the bill and “ensure its passage.”

The Liberals didn’t heed that advice. And, when the bill made it to second reading three years later, after being re-introduced by Mather, two of the party’s MPs, Yves Forest and Colin Gibson, seemed to explain why.

Speaking in the House of Commons, Forest, the then-parliamentary secretary to the president of the privy council, said that bill did not “give enough important to the generally accepted principle” of administrative secrecy. According to Forest, that principle allows:

…complete freedom of expression and also of communication between the members of the administration at various levels, and particularly from lower to senior officials. In my opinion, the contrary could reduce the efficiency of our whole administrative system as we know it.

In other words, Gibson said, “if official files are opened to the public scrutiny too much administration caution will result, which will seriously inhibit the effective functioning of civil servants. No one likes to work with someone leaning over his shoulder reading what he is writing.”

So it’s not surprising that the Access to Information Act, which was introduced by Prime Minister Pierre Trudeau’s government in 1980, appears to have been drafted to guard against what Gibson called “eavesdropping and spying,” helping legally fortify the anachronistic notion that political decision-making must happen in private.

But what is surprising is how much purchase that notion still has in Canada.

In response to the Transparency Act’s proposal to make records in ministerial offices subject to access requests, Prime Minister Stephen Harper’s former communications director Andrew MacDougall argued that change would cause politicians and their staffers to “pull their punches” when discussing and debating public policy:

Think of all the internecine battles that are part and parcel of any office. Think of the snide comments about your colleagues often said in frustration. Now picture it on a front page. Think that would change your behaviour — or drive it further underground? Would that make your company perform better, or worse?

Nor is MacDougall the only one making such arguments. For example, two years ago, the Globe and Mail opposed proposals from two information commissioners that would have required government officials to document their decision-making.

The reason: “Cabinet ministers and their closest advisers should be free to talk about the reasons for a decision without making a paper or electronic memorandum. Their motives and purposes are best scrutinized in parliamentary debate, question periods and legislative committees.”

In principle, that may seem reasonable to many Canadians. But, in practice, it means that government officials only have to disclose what they want to disclose to us about their decision-making – a behaviour that’s too often tolerated and accommodated by the Access to Information Act.

Such secrecy was politically beneficial to Harper, as it surely could be to his successor Trudeau. So it remains to be seen whether Trudeau will resist the temptation to cultivate rather than uproot that secrecy.

SQUIBS (FEDERAL)

• The Toronto Star has paraphrased newly-appointed Minister of Innovation, Science and Economic Development Navdeep Bains as saying that government “scientists are free to speak to the media about their work.”

• “Tens of thousands of records amassed during various stages of the settlement process with the survivors of Indian residential schools” have begun being released to the public, according to the Global and Mail. The newspaper reports those documents will shed “further light on a long and often brutal attempt by the government at forced assimilation.”

• The Toronto Star reports, “Restoring the long-form census will be among the first acts of the new Liberal government.”

• Writing in the Hill Times, long-time right-to-know advocate Ken Rubin writes that Trudeau must act quickly to introduce transparency legislation “as majority governments become more defensive and secretive over time.”

• The Toronto Star’s Susan Delacourt makes three modest suggestions to improve the federal government’s relationship with the media: “let ministers speak,” give a “daily media briefing” and don’t “go over the heads of reporters with coverage complaints and straight to their bosses or head offices.”

• In an op-ed published in the Toronto Star, William Kowalski — a member of PEN Canada’s Canadian Issues Committee — writes that, “If freedom of expression in Canada were a medical patient, it would be dangerously close to needing life support. With Canada’s new government assuming its place, now is the time to make good on the promise of an open, more transparent relationship between the government of Canada and its citizens.”

• Global News’s Rebecca Lindell tweets that the Correctional Service of Canada has asked for a three year extension to an access request relating to fentanyl deaths. (hat tip: Jordan Press)

• The Green Party of Canada has refused to say how much money it was paying MP Bruce Hyer to be its deputy leader, claiming it’s private information.

• The raw data from Newspapers Canada’s 2015 freedom of information audit is now available.

SQUIBS (PROVINCIAL)

• The Globe and Mail reports British Columbia’s former information commissioner David Loukidelis will be paid $50,000 to tell the provincial government how to implement the recommendations in a “stinging report that said officials — including those in the premier’s office — routinely deleted information.”

According to 24 hours Vancouver, NDP MLA Carole James has alleged provincial government lawyers attempted to “impede” the release of that report, which was penned by the province’s current information commissioner Elizabeth Denham.

• Loukidelis is scheduled to complete his work before Dec. 15. But CKNW reports the family of a Highway of Tears victim worries that means his advise may “get lost in the days leading up to Christmas.” Emails about the Highway of Tears were among those deleted by the government.

• The Vancouver Courier’s Geoff Olson writes that “contravening Freedom of Information laws isn’t a glitch in the provincial government’s doings, it’s a feature.”

• Speaking of which, B.C. MLA Vicki Huntington’s reports that when freedom of information requests were filed on the decision to replace the Massey Tunnel with a bridge, each of them received a “no records reply.”

• In response, according to the Vancouver Sun’s Vaughn Palmer, “Transportation Minister Todd Stone confirmed the sought-after business plan and cost-benefit analysis for the Massey replacement remains a work in progress. Due for release soon, he assured me.”

• Nevertheless, according to the Times Colonist, it’s both “ludicrous” and “insulting” to It’s ludicrous to say that no records exist of a project that will cost an estimated $3 billion. (hat tip: Ian Bron)

• CBC News reports, “The backlog for the Office of the Information and Privacy Commissioner to review applications is currently two years. That means if a government department refuses a request for information, it will be two years before the appeal is even heard.”

• The Alberta government has, according to Global News, expanded its sunshine list to disclosure the salaries for “all employees of public sector bodies, including Alberta Health Services and post-secondary institution.”

SQUIBS (LOCAL)

• “The City of Saint John has taken an important step toward greater transparency and accountability by launching an open data portal,” according to the Telegraph-Journal.

Have a news tip about about the state of democracy, openness and accountability in Canada? You can email me at this address.

Author’s note: Publication of this column was delayed due to illness.

THE HIGH PRICE OF SECRECY

British Columbians are spending millions to make sure they can't find out what their elected officials are doing.

British Columbians are spending millions to make sure they can’t find out what their elected officials are doing. (Photograph by Shutterstock.com)

The British Columbia government’s continued efforts to prevent the public from seeing its paperwork is costing millions of dollars each year.

The public is supposed to be able to access that paperwork using the province’s freedom of information law, allowing them to make “informed judgments about government policy” in the words of former New Democrat attorney general Colin Gablemann.

But the 53 exceptions or loopholes in that law, which Gablemann introduced 23 years ago, can make it extremely easy for the government to keep the public uninformed or misinformed.

For example, one of those loopholes allows the government to refuse access to any advice or recommendations about those policies. And another makes most of what happens in cabinet inaccessible, even though that’s where many policy decisions are made.

As a result, the government doesn’t just need bureaucrats to find records requested under its freedom of information law. It needs bureaucrats to apply those loopholes. It needs, in other words, censors.

According to the ministry where those bureaucrats work, the price of all that finding and censoring in fiscal 2014/15 averaged $2,358 per request, for a total cost of $19.7 million. That means the most prolific requesters can easily run up bills totalling $100,000 or more in their pursuit of government records and, often accountability.

I certainly must have when I was covering provincial politics and filing over a hundred requests each year. After all, thanks to the muzzling of the bureaucracy, those requests (even with their limitations) are one of the few means reporters have of finding out what the government doesn’t want you to find out.

That’s also why freelancer Bob Mackin, who has written for publications such as The Tyee, Business in Vancouver and the Vancouver Courier, filed 1,913 freedom of information requests in the almost five years between Jan. 1, 2009 and Sept. 22, 2014.

Those requests, which made up 40 percent of the total filed by the media during that time period, resulted in big stories, small stories and often times no story at all – the later being a common experience for reporters using freedom of information laws.

Among Mackin’s biggest stories were those that revealed the government:

• feared a riot if the Vancouver Canucks lost game seven of the Stanley Cup finals;

• considered privatizing its liquor stores;

• used 2010 Winter Olympic advertisements to promote Premier Gordon Campbell; and

• wanted to invest in a Victoria condominium development with “unresolved” financial issues.

According to a freedom of information request filed by a private individual and sent to me by Mackin, the government claims the reporter’s requests costed $3.85 million to respond to.

But that price, which was calculated by just dividing the cost of all requests responded to between Jan. 1, 2009 and Sept. 22, 2014 with the total number Mackin filed, was likely unnecessary.

By closing some of the bigger loopholes in its records access law, the government wouldn’t need so many censors to read and then blank-out information before it’s released to individuals such as Mackin. And by releasing more records without requiring costly access requests, the government could further reduce its expenses.

In fact, releasing more records without requests is something British Columbia’s information and privacy commissioner Elizabeth Denham and her predecessors have repeatedly recommended.

For example, in a 2013 investigation report, Denham advised government to routinely publish 18 different kinds of information, ranging from government calendars, contracts and audits to public opinion polls, statistical surveys and economic forecasts.

But, despite an initial limited and now utterly discredited initiative to make her government more open, Premier Christy Clark hasn’t heeded that advice.

And, as a result, British Columbians are continuing to pay to keep themselves in the dark.

SQUIBS (FEDERAL)

• The Calgary Herald reports the Supreme Court of Canada will “hear a case that Alberta’s access czar says could impact her office’s ability to provide effective oversight when organizations refuse to release records requested under the province’s freedom of information law.” (hat tip: Charles Rusnell)

• The Guelph Mercury’s editorial board writes, “We hope the incoming [federal Liberal] regime demonstrates a will to enhance transparency.” (hat tip: Ian Bron)

• The Toronto Star’s public editor Kathy English hopes incoming prime minister Justin Trudeau’s “call for ‘sunny ways’ does indeed shine much-needed light on Canada’s government.”

• Writing in the Hill Times, long-time freedom of information advocate Ken Rubin states Trudeau must “act quickly to introduce transparency legislation as majority governments become more defensive and secretive over time. So far though, Trudeau has announced as his first legislative priorities a law to give income ‘relief’ to middle class earners and an amended anti-terror Bill C-51.”

• In an op-ed published in the Chronicle-Herald, University of King’s College journalism professor Fred Vallance-Jone and freelancer Emily Kitagawa states there is “reason for skepticism” about the federal Liberals promise to reform the Access to Information Act.

• The Winnipeg Free Press’s editorial board writes it won’t be surprised if the federal Liberals fail to live up to their lofty promise to be open and accountable. “It is, after all, just part of tradition in this country.”

• Science journalist Margaret Munro writes that even a “modest improvement” in the federal government’s communication with the media will be welcome. “But a return to more open government will require not only new policy, but also a new mindset in the bureaucracy the Conservatives have left behind.” (hat tip: Ian Bron)

• The Globe and Mail’s Marsha Lederman writes, “It is crucial that this trend of limiting media access be reversed. Journalists at the very least act as a proxy for citizens; we have access – or should – to those in power. In order to hold governments to account, reporters require access to those governments. This is how journalists can expose bad behaviour – systemic or individual (the senate scandal, Rob Ford) – and effect change. When journalists are cut off, society suffers.”

• “Restoring the mandatory long-form census in time for the 2016 survey is doable,” according to two former chief statisticians of Statistics Canada who spoke to the Globe and Mail.

• Two people working on Kennedy Stewart’s campaign asked Global BC reporter Catherine Urquhart and her cameraman to leave the NDP MP’s office on election night, reports Burnaby Now.

• CBC News reports air passenger rights advocate Gabor Lukas is “calling on the Transportation Safety Board to release more information about a Porter Airlines flight that made an emergency landing in Sydney [N.S.] earlier this week.”

• The Calgary Herald’s Darcy Henton tweets that Alberta’s environment ministry wants $1,423 for records about what options it considered before deciding to repair the Kananaskis Country Golf Course. (hat tip: Erika Stark)

SQUIBS (PROVINCIAL)

• Last month, British Columbia’s information commissioner released a investigation report that found staff in Premier Christy Clark’s government “delete emails response to access to information requests,” “wilfully or negligently” failed to produce records responsive to those requests and failed to “keep any sent emails, irrespective of the topic.” In response, Clark has ordered her cabinet minister and all political staff to save their email.

• Following the release of that report, columnists and editorial boards were critical of what BC NDP Opposition leader John Horgan called a culture of deception, deceit and “delete, delete, delete” in the Clark administration. Among them were the Vancouver Sun, the Times Colonist, the Vancouver Sun’s Vaughn Palmer, the Globe and Mail’s Gary Mason, the National Post’s Brian Hutchison, the Province’s Michael Smyth, The Tyee’s Paul Willcocks, the North Shore NewsKamloops This Week, the Peace Arch News and the Cowichan Valley Citizen’s Andrea Rondeau.

• In an open letter to Clark, the Union of BC Indian Chiefs writes that it is “shocked, alarmed and deeply offended” that records about the Highway of Tears were among those deleted by the Clark administration.

• The Times Colonist reports the head of the province’s public service also “apparently never kept any records related to the firing of eight drug researchers during the two-year period when the provincial government was under heavy fire for its handling of the case.”

• In the wake of these revelations, the Georgia Straight reports the BC NDP is “collecting a growing body of evidence that proves a Liberal government practice of deleting emails was ‘systemic’ and explicitly for the purpose of preventing the release of information to the public.”

• The Times Colonist’s Les Leyne reports British Columbia’s information commissioner is swamped with complaints about the handling of access requests by the province’s government.

• In an interview with CKNW’s Jon McComb, the minister responsible for introducing British Columbia’s freedom of information law Colin Gabelmann speaks about the history of that legislation.

• Newfoundland and Labrador’s information commissioner has ordered that province’s government to release records about how much an external consultant charges for information technology work.

SQUIBS (LOCAL)

• CBC News reports a retired New Brunswick high school teacher is “fighting what he calls ‘ridiculous’ secrecy at one of the province’s school districts for failing to disclose information over the naming of a new school in Woodstock.”

• The Ubyssey reports that lack of answer around University of British Columbia president Arvid Gupta’s resignation has resulted in a “deluge” of freedom of information requests at the post-secondary institution.

• “How much the District of Muskoka [Ont.] is setting aside for capital projects could become shrouded in secrecy to prevent skewed bids from contractor,” according to the Bracebridge Examiner.

Have a news tip about about the state of democracy, openness and accountability in Canada? You can email me at this address.

Author’s note: Publication of this column was cancelled last week due to illness.