CURB YOUR ENTHUSIASM Liberal Leader Justin Trudeau has claimed his proposed Transparency Act will “raise the bar on openness and transparency for all Canadians,” helping fix the country’s long-broken freedom of information law.

But recent testimony by the country’s information commissioner and an interview with Scott Simms, the party’s open government critic, suggest one of the bill’s biggest promises may, at best, be a rhetorical flourish and, at worst, squander a chance to expand our limited information rights.

Trudeau introduced the Transparency Act last June, saying it would offer “tangible ideas to improve openness not only in Parliament, but in our government.”

Some of those laudable ideas include:

• eliminating the fees government can change when responding to an access to information request;

• forcing government to provide a detailed (rather than brief) explanation if it denies an access to information request; and

• giving the commissioner the power to order the government to release information it has improperly denied access to.

But Trudeau has also said his bill will make government information “open by default.”

That turn of phrase conjures up visions of millions of records flying off of government shelves and out of government computers for everyone to see. Indeed, National Newswatch columnist Don Lenihan told readers earlier this month that the Transparency Act would push the “doors to transparency and accountability wide open,” making public a “huge amount of information” that is now hidden.

So, depending on your political persuasion or naiveté, it may or may not surprise you to know the bill won’t do anything like that.

In an interview, Simms confirmed that, under the Liberals’ “open by default” principle, Canadians would still have to file access requests to obtain government records.

“It’s not like we’re going to create a whole new system from scratch. What we want to do is take the system we have right now and update it to the 21st century,” he said.

Part of that update proposes rewriting the federal access law so information would have to be “openly” available to the public in a “machine readable format” rather than just “available to the public.” The update would also change the law to state that exceptions to Canadians’ access rights should also be “rare” as opposed to simply being “limited and specific.”

But, when Liberal MP Ted Hsu asked information commissioner Suzanne Legault if she agreed with making those changes, this is what she said:

In my opinion, that’s the way the act is constructed as it is. I see what you’re saying in terms of amending the purpose clause. Most people who want to amend the act want to amend the purpose clause. Personally, I’m a lawyer. The purpose clause has been interpreted quite well by the courts in the last 30 years. I am somewhat leery of amending a purpose clause for that Act.

Indeed, if Trudeau really wanted to make information “open by default,” the Transparency Act would do something about the 75 different kinds of information government can or must keep hidden from the public.

These expansive exceptions to the “open by default” rule include everything from policy advice to internal audits. In other words, the Access to Information Act currently precludes public access to a many things the public actually cares about.

But the Transparency Act doesn’t lay a hand on those exceptions, something freedom of information researcher Ken Rubin also mentioned in a column for the Hill Times.

In fact, when I spoke with Simms, he repeatedly confirmed the Liberals are comfortable with the Access to Information Act’s existing exemptions and exclusions.

“I wouldn’t want to say this is exhaustive, it’s perfect, it’s fine, it’s just a matter of how you are applying it. But I think, for the most part, what frustrates Canadians is how the [exemptions and exclusions] are applied.”

Later in our interview, though, Simms said he wouldn’t want to endorse all of the exceptions. He also said, even if the Transparency Act doesn’t result in more transparency, it would still require the government to immediately review the Access to Information Act. That review would then be repeated every five years, creating an opportunity for future reform.

“It’s a step-by-step process to find out about all of these exemptions and rip them apart,” he said, adding that if history shows one of them “is one that does not comply with open government then so be it. Let’s have a look at that and change the act accordingly.”

But more than 30 years of freedom of information history in Canada – including numerous reports, reviews and recommendations by parliamentarians and past access commissioners – has already shown the existing exemptions and exclusions often don’t comply with the principle of open government.

Whoever drafted the Transparency Act would need to have ignorant to the limits of Canadians’ access rights to not know that. To think otherwise would tantamount to believing Treasury Board President Tony Clement’s claim that his government, which has been in office for almost nine years, ran out to time to review the Access to Information Act in a “meaningful” way.

Moreover, history has also shown political parties of all stripes often promise more openness in opposition and then deliver more secrecy once they form government. So I trust Simms will excuse me for predicting that, if the Liberals oust the Tories, their efforts to bring more sunshine into the corridors of power may very well both begin and end with the passage of the Transparency Act.

But much more is at stake here than Trudeau’s credibility as an access advocate and my own credibility as a political prognosticator.

The Conservatives, in their barefaced efforts to black out the inner workings of government, may have done the near impossible: turned freedom of information from an esoteric to a ballot box issue in 2015.

But, as American corporate and constitutional law professor Kent Greenfield recently said, “The energy for change is a finite resource.”

That means the Liberals could be wasting such energy with their Transparency Act – a piece of legislation that may do just enough to win the votes of those fed-up with government secrecy but not enough to make a major difference in the amount of information accessible to Canadians.

SQUIBS (FEDERAL)

• Canada is more open with its data than 69 other countries, according to this year’s Open Data Barometer. But it’s also less open than six other countries, including the United States and the United Kingdom. Among Canada’s failings: the low availability of data related to government accountability, as well as the low impact open data has had on improving social policy. (hat tip: IntegrityBC)

• The Harper administration has taken a strong stand for freedom of information in other countries. But, according to the Toronto Star’s Susan Delacourt, “there’s ample evidence already to illustrated that this freedom is somewhat more cherished at long distance by this government than it is at home in Canada.”

• The Globe and Mail unfavourably compares the opacity of Canada’s drug approval process to the transparency that exists in the United States, writing, “Health Canada treats nearly every aspect of the drug approval process as a state secret.” (hat tip: IntegrityBC)

• “The more security agencies grapple with terrorist threats, the less they appear to be telling Canadians,” according to the Ottawa Citizen, which looks at “four current examples of secrecy.”

• The Canadian Press reports, “A New Democrat MP is raising the spectre of a political coverup in asking the federal information watchdog to investigate the Canada Revenue Agency’s systematic deletion of employee text messages.”

• The New Democrats round up some quotes to prove that, even though the Liberals and the Conservatives say they’re in favour of openness, they have often ended up “governing in the same old secretive style, breaking all their promises to fix the Access to Information Act.”

• Ottawa Citizen columnist James Gordon shows off his “favourite” freedom of information response on twitter, adding, “Access to information in this country is a disgrace.”

• In response to a freedom of information request, Aboriginal Affairs and Northern Development Canada sent Canadian Press reporter-editor Steve Rennie a CD with two blank pages on it.

SQUIBS (PROVINCIAL)

• New Brunswick’s Tory opposition is worried a review of the province’s Right to Information and Protection of Privacy Act may reinstate fees for access requests. Reporting on those concerns, the Telegraph-Journal stated the Tories did away with such fees in 2011, making New Brunswick the only province where such requests are free.

• The BC Freedom of Information and Privacy Association has asked the province’s information commissioner to investigate the government’s decision to not post “at least two embarrassing reports because of ‘reputational interests’ of various public servants or public figures.”

• The Winnipeg Free Press takes the Manitoba government and the city’s school board to task for not publicly disclosing details about safety and violence in the education system.

• The Canadian Press reports, “Ontario’s New Democrats plan to introduce legislation next month to force the government to disclose the names of physicians who bill the province’s health insurance system and the amounts they charge each year.”

• The Northern Light wants the RCMP to share information about a police shooting that happened in Bathurst, N.B. “as soon as possible.” According to the newspaper, a spokesperson for the Mounties said on Jan. 13 that the findings of the investigation into that shooting may not be made public. But the spokesperson later reversed that position saying, “When the investigation is complete…it will be a matter…of public interest so it will be made public.”

SQUIBS (LOCAL)

• Earlier this month, Waterloo, Ont. city councillors were encouraged to ask budget questions during closed door meetings “designed to sidestep open meeting rules” under the province’s Municipal Act. The Waterloo Regional Record also reported one of those councillors was so “frustrated with an inability to get budget information from [city] staff” that he resorted to the Freedom of Information Act to get his questions answered.” But, following that coverage, Waterloo Mayor Dave Jaworsky decided to put an end to those secret meetings, which the province’s ombudsman described as a “transparent, amateurish attempt at just flaunting the law.”

• Ontario’s information commissioner is “still investigating allegations that Toronto school board trustees interfered in the release of an audit of their expenses.” The Toronto Star requested that audit under the province’s freedom of information legislation.

• The Parksville Qualicum Beach News says local councils in some Vancouver Island communities are “too quick to go in camera.” Moreover, according to the newspaper, under British Columbia law, the “list of circumstances in which a council can close meetings…is a long one. Too long, we’d submit. In fact, one could make an argument every piece of business a council conducts could fall into one or more categories that allows for in camera proceedings.”

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: I’m pleased to announce that, beginning today, this weekly summary of freedom of information news will be syndicated on J-Source. As a result, I’m moving the publication time for this column from Sunday to Monday.

Correction: In last week’s column, I reported the Blytheville Courier News – which sent a copies of the Arkansas Freedom of Information Handbook to the state’s freshmen elected officials – had a circulation of just over 4,000. In fact, that circulation has dipped to “about 2,500,” according to the newspaper’s managing editor Mark Brasfield.

 

SIZE MATTERS? Can a government be too small to need a lobbyist registry? Elaine Taylor, Yukon’s deputy premier, thinks so. But the deputy mayor of a much smaller jurisdiction in Ontario has a different opinion.

The Whitehorse Star reports Taylor made that observation in response to the NDP’s call for a law that would force anyone paid to influence Yukon politicians to disclose their activities. Speaking in the legislature, the deputy premier said, “This is a relatively small jurisdiction. We do not see the need in resolving issues such as this through legislation, regulation.”

But Collingwood Deputy Mayor Brian Saunderson, whose town had a population of just 19,241 in 2011 compared to the 36,667 souls who currently reside in the Yukon, doesn’t seem to think size matters.

Earlier this month, Saunderson recommended his town should look at creating a registry, a proposal that has been discussed before, according to the Collingwood Connection.

“[This is about] making sure this community, and this council in particular, is constantly on the lookout for ways to improve our transparency and accountability,” he told the newspaper.

THROWING A BOOK AT THEM Canadian news outlets can seem shy about calling for greater freedom of information in this country – especially when measured against some of their American counterparts.

An example: earlier this month, Blytheville Courier News, which has a circulation of just over 4,000, sent freshmen elected officials in Arkansas a copy of the state’s freedom of information handbook.

The reason: according to the newspaper’s managing editor Mark Brasfield, “We feel it’s important to educate elected officials what the law requires regarding public records and public meetings.”

That’s because “many violators just simply do not know the law, which is not just a tool for members of the media, but anyone who wants a copy of a public record or is interested in attending a particular meeting.”

By comparison, three similarly-sized newspapers included in the Canadian Newsstand database – the Cranbrook Daily Townsman, the Nanaimo News Bulletin and the Sherbrooke Record – appear to have been much quieter about defending their readers’ right to know.

I searched those newspapers for articles with the words “access to information” and “freedom of information” in them over the past year. That search turned up just two opinion pieces pushing for more openness in government – an editorial from the Nanaimo News Bulletin and an op-ed that was published by the Sherbrooke Record but penned by the Quebec Professional Federation of Journalists.

SQUIBS (FEDERAL)

• Medicine Hat News reporter Peggy Revell juxtaposes the terrorist attack on French satirical newspaper Charlie Hebdo with the federal government’s clampdown on information access, writing, “There’s more ways to muzzle freedom of speech than by the barrel of the gun, to end freedom not with a bang, but a whisper.”

• CBC News reports a Federal Court judge has ruled that records “filed by oil companies on safety-related incidents in the Newfoundland offshore can be kept off-limits from the public.”

• University of King’s College journalism professor Dean Cobb celebrates the 20th anniversary of a Supreme Court of Canada decision that ruled bans on publishing evidence presented in court “should be the exception, not the rule.”

• “A New Democrat MP is accusing Citizenship and Immigration Minister Chris Alexander of thwarting her efforts to learn more about how the government deals with visa applications,” according to CBC News. (hat tip: Ian Bron)

• The Shareholder Association for Research and Education and Ryerson University’s Institute for the Study of Corporate Social Responsibility are hosting a panel discussion on political spending as a corporate issue. (hat tip: Samara Canada)

SQUIBS (PROVINCIAL)

• “All Freedom of Information requests submitted by journalists, opposition politicians and anyone who might publicly discuss their findings are singled out for special treatment by the province’s transportation ministry,” according to records obtained by the Toronto Sun.

• The Toronto Star reports a legislative loophole has allowed Ontario hospitals to “handle [privacy] violations internally” rather than reporting them to the province’s information and privacy commissioner.

• A National Post investigation has found that just a “tiny fraction of [medical errors] are publicly acknowledged and usually only in the form of antiseptic statistics. For most serious gaffes, not even the sparest of details is revealed, making the vast problem all but invisible.”

• According to the Calgary Herald, Alberta Premier Jim Prentice has told reporters his government will be expanding its sunshine list to include high salaries at post-secondary institutions, school boards and Alberta Health Services.

• The Edmonton Journal reports, “Alberta’s Wildrose opposition has asked the Information and Privacy Commissioner to investigate after Alberta Justice revealed Wednesday the department sought to cancel outstanding access-to-information requests to address a severe backlog.”

• Ryerson’s new Privacy and Big Data Institute is holding an “inaugural seminar on Privacy by Design” on January 22. The institute is headed by former Ontario information and privacy commissioner Ann Cavoukian.

SQUIBS (LOCAL)

• New Maryland Mayor Judy Wilson-Shee has told the Daily Gleaner the New Brunswick government should compensate local communities for the cost of responding to freedom of information requests. Wilson-Shee made that suggestion after an unnamed law firm filed a request for information that has involved village staff reading 2,000 pages, as well as a $3,000 legal bill. There are no fees associated with such requests in New Brunswick.

• The Edmonton Journal’s Paula Simons reports the city’s police force kept the homicide of 35-year-old aboriginal woman Freda Goodrunning a secret for four months, only telling the public about it at an “odd pre-Christmas news conference.” According to Simons, police have suggested that secrecy “somehow helped them.” But the columnist writes, “We don’t need more secrecy about the deaths of aboriginal women. We need more honesty. And more answers.”

• The Winnipeg Free Press reports, “The City of Winnipeg is rethinking its refusal to divulge part of the rationale for pursuing the $210-million Winnipeg police headquarters project.” The province’s ombudsman had earlier criticized that refusal.

• The Alberni Valley Times reports Port Alberni “could be releasing more information about closed-door meetings” if the British Columbia city’s councillors “approve a change to in-camera meetings.” A discussion about that change was scheduled to take place on January 12 but the minutes of that meeting have yet to be published.

• The Powell River Regional District’s board of directors is reviewing “what records are publicly available and what records require special written requests for release.” Audits and auditor reports are among the records that are currently only available via a freedom of information request, something that – according to the local newspaper  – appeared to surprise regional district director Russell Brewer.

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

In their recently published book Your Right to Know, journalists Jim Bronskill and David McKie have done yeomans’ work explaining how Canadians can use freedom of information requests to get government secrets. But, at the federal level, it’s work they shouldn’t have needed to do – pointing to another problem with Canada’s broken Access to Information Act.

Introduced in 1980 by Pierre Trudeau’s Liberals, that legislation gave Canadians a limited right to request government records. The bureaucracy’s filing cabinets could now metaphorically be opened by anyone – unless the records in them included 75 different kinds of information that would still be considered secret.

But, even with those limits, the Trudeau administration seemed to have little interest in telling voters about their newfound rights or how to exercise them.

Just before the Act came into force, the Globe and Mail told readers the government would be “placing posters in post offices and public libraries” to advertise the new program. But “it plans nothing else in the way of public information,” a deficiency noted by information commissioner Inger Hansen in her first annual report.

At a news conference announcing the fees for access to information requests, then-Liberal cabinet minister Herb Gray seemed unconcerned about that lack of advertising, smiling when he told reporters, “That’s why we invited you here.”

Nor did the government give the information commissioner the power to aid journalists in the job of educating the public about their information rights, with Hansen writing her office had no mandate or funding to do so.

As a result, Hansen stated, “The public appears unaware of the meaning of the Act and the role of the Information Commissioner to mediate complaints and take proceedings to the Federal Court. Indeed, many who have tried to use the Act soon gave up because the found procedures too complicated or too slow.”

Nevertheless, more than 30 years later, Hansen’s successors still don’t have that mandate, despite repeatedly requesting it. A spokesperson for the Treasury Board of Canada Secretariat, which administers the Access to Information Act, didn’t provide a direct answer when asked why those requests hadn’t been acted on.

By comparison, our country’s privacy commissioner can “foster public understanding” about the collection, use and disclosure of personal information by organizations outside government. Spending on that mandate totaled more than $3-million in the past fiscal year, with past expenditures resulting in the publication of a graphic novel and cartoons about privacy issues, as well as presentation packages for teachers and a youth video contest.

The government doesn’t currently publish anything comparable about Canadians’ access rights. The Treasury Board Secretariat spokesperson stated in an email that individual departments do have instructions on their Websites about how to file an access request, as well as a legal requirement to assist applicants. But the manual bureaucrats use to interpret and often restrict Canadians’ right to know dwarfs those brief instructions.

The secretariat’s access advice, for example, weighs in at just 389 words. But 57 of the manual’s 133 pages are devoted to what kinds of information must or can be kept secret. Moreover, the government currently doesn’t spend any money advertising Canadians’ information rights – instead relying on news releases, speeches and tweets to do that job.

As a result, responsibility for popularizing that right continues to be principally shouldered by journalists such as Bronskill and McKie, as well as the handful of non-governmental groups concerned with freedom of information issues.

So it’s near miraculous that, according to government statistics, 59,947 access requests were filed in the past fiscal year. But that still means just 169 requests were filed per 100,000 persons in Canada. By comparison, during 2012/13, 222 requests were filed per 100,000 persons in the United States.

That means Americans – who have considerably greater access to government records without using freedom of information requests – are using their right to know law 31 percent more than we are. And that’s probably just the way Canada’s paternalistic public officials want it.

After all, for them, the fewer Canadians who understand how to file freedom of information requests the better. At their best, the responses to those requests tell us what’s really happening behind the closed doors and drawn curtains of government. And, at their worst, they remind us just how little the government cares about our right to know – a secret parties of all stripes have been trying and failing to cover up for years.