Has the access commissioner accidentally handed the government another potential weapon in its fight against openness? (Graphic by Shutterstock.com)
Canada’s access commissioner Suzanne Legault thinks the federal government should have the power to disregard “frivolous, vexatious or otherwise abusive” record requests. But that power could be dangerously easy to abuse, as was recently demonstrated in Alberta.
Legault made that recommendation in her recent report on modernizing Canada’s decrepit Access to Information Act, the law that allows the public to obtain internal government documents.
But past commissioners have described frivolous or vexatious requesters as rare, with John Reid writing in his 1998/99 annual report, “There are, happily, none in the system” – despite government claims to the contrary.
Similarly, Legault recently told the committee that reviewed Newfoundland and Labrador’s access law that out of the around 9,000 files she’s seen “there may be one case where I would have considered whether that would be frivolous or vexatious.”
The commissioner is away from her office and, as a result, was unable to personally explain why she still recommended government have the power to dismiss such requests, a decision that could be appealed to her office.
Instead, in a response to a series of written questions, a spokesperson stated in an email that power would “ensure more efficient use of limited public resources and protect the access rights of other requesters.” But it could also violate those rights.
That recently happened in Alberta, where the government can disregard frivolous or vexatious requests with the approval of the province’s independent information commissioner – a weaker version of the power Legault has proposed federally.
Last May, Service Alberta, the ministry that administers the government’s records, asked for that approval when an opposition party researcher requested a summary of the living allowances and benefits given to employees over a three-year period.
The ministry claimed the researcher, James Johnson, had submitted “up to five times” more requests than other freedom of information applicants and that he had been using them in a “repetitious and systemic nature that unreasonably interferes with the operations of the public body.”
Johnson countered that he had only filed around 26 requests with Service Alberta over 25 months, adding that it’s his public duty to research the ministry on topics the public is concerned about.
In the end, the commissioner decided there wasn’t enough evidence for his newest request to be disregarded. But that process ended up taking three months, delaying Johnson from obtaining the information he had requested.
I suspect if officials in Ottawa had an even stronger power to disregard record requests, it might be abused in the same way, beaten into the service of secrecy.
After all, since the Access to Information Act came into force over 30 years ago, successive Liberal and Conservative governments have done the same thing to every exception in that law, without respect for public and press opinion.
Of course, Legault isn’t the first commissioner to recommend government should have the power to disregard frivolous or vexatious access requests. For example, John Grace did so in his fiscal 1993/4 annual report, as did Reid in his 2000/01 annual report.
But when those recommendations were made, they were chained to proposals to do away with the $5 fee to file an access to information request. The rationale was that if those proposals were accepted, government would need some means of discouraging trivial requests.
Legault’s recommendation for dealing with such requests doesn’t seem to make a similar linkage. That could make it easier for the Harper administration or its successors to take that piece of advice while ignoring others that would result in more transparency.
Asked about such opportunities for cherry picking, a spokesperson for the commissioner’s office stated Legault’s report – which also proposes eliminating freedom of information charges, needs “for the most part, to be read together.”
But the history of freedom of information in Canada has repeatedly demonstrated that any ambiguity becomes an opportunity for opacity.
The commissioner’s modernization report should have taken that into account by, at a minimum, recommending government seek her permission before disregarding frivolous or vexatious requests – a system similar to the ones used in Alberta, British Columbia, New Brunswick and Prince Edward Island. The commissioner must also ensure this recommendation is not acted on unless government makes freedom of information requests free.
Her report may have been, in the words of its title, attempting to strike the “right balance.” But when the scales of governance in this country are so tipped in favour of secrecy, achieving that balance requires a heavy counterweight of openness – something that doesn’t appear to have happened here.
• The World Justice Project has released a report ranking Canada as the seventh most open country out of 102 examined. But the same survey also puts Canada behind 20 other countries when it comes to our right to information. Those countries include all the other Anglosphere nations that were part of the survey.
• “The Federal Court says the government can no longer charge people fees for the search and processing of electronic government documents covered under access to information legislation,” reports the Ottawa Citizen. “The government has 30 days to decide whether to appeal the ruling and is reviewing [Justice Sean] Harrington’s decision in order to determine the most appropriate next steps, according to a spokesman from the Attorney General’s office. (hat tip: Joshua Sohn)
• The Canadian Press reports, “The genesis of the Harper government’s ‘Strong Proud Free’ slogan that is currently bombarding Canadian television viewers is considered a cabinet confidence and will be sealed from public scrutiny for 20 years.” (hat tip: Dean Beeby)
• The federal government has invoked a clause usually used in terrorism trials to keep information about the prime minister’s family from being made public, according to the National Post.
• The Canadian Press reports lawyer Jack Gemmell filed an access request for legal opinions and memos spelling out why the government believes its anti-terrorism bill is consistent with the Charter of Rights and Freedoms. But, according to the wire service, “Gemmell was disappointed when the Justice Department asked for $4,772.80 in Access to Information fees just to get his written request to the next step.” (hat tip: Althia Raj)
• “Spokesmen for federal whistleblowers are crying foul after the Harper government appointed a judge with a Conservative background to a key panel,” according to CBC News. “Peter Annis, a Federal Court judge, was appointed in late February to the Public Servants Disclosure Protection Tribunal, effective March 3 for a four-year term, serving part-time.”
• The Globe and Mail reports on attempts to block its investigation into the friendly fire death of Sgt. Andrew Doiron.
• The Guelph Mercury predicts information commissioner Suzanne Legault’s call to modernize the Access to Information Act is “unlikely to become a hot public talking point for the federal government as it readies for a re-election bid. But Canadians should press for Legault’s report becoming a catalyst for political action and legislative reform.”
• CBC News reports, “Canada’s pipeline regulator took a ‘big step forward’ on a promise to be more transparent with the release of a map of spills and other incidents. But gaps in the data still exist.” (hat tip: Ian Bron)
• The Canadian Journalists for Free Expression has organized an event at Ryerson University in Toronto that will “look at the current challenges to creating, accessing, and sharing information in Canada, and work to create a path forward.” The event will take place on May 8.
• CBC News’s Dean Beeby tweets that he asked for the Treasury Board’s plans to “deal with surges” in the number of access to information requests. “Got blank back, cuz it’s a secret!”
• The Calgary Herald reports new Alberta government rules requiring the disclosure of government contracts that aren’t tendered contain an apparent loophole allowing the Tories to “keep details of large-dollar deals secret from taxpayers.”
• As part of its bid to form government, the Wildrose Alliance Party of Alberta is promising to expand the province’s sunshine list – which discloses the salaries departmental employees earning six-figures – to include government agencies, boards and commissions.
• The Alberta New Democratic Party is promising to “create a public Infrastructure Sunshine List to show how school and hospital projects are prioritized.” The list would include the “standards used to make the decisions, and will identify when and how changes are made to those priorities.”
• The Montreal Gazette reports a series of coming hearings connected to the Charbonneau Commission’s final report will be subject to a blanket publication ban. The commission has “spent more than three years examining corruption and collusion in Quebec’s construction industry.”
• “The B.C. government has made a funding agreement to ensure that 33,000 boxes of important documents will finally be archived,” reports the Times Colonist. “The deal with the Royal British Columbia Museum means court records, executive correspondence and documents about commissions of inquiry can be archived.”
• “The Centre for Law and Democracy has praised Newfoundland and Labrador’s amended Right to Information legislation, saying the province has done ‘a major about-face’ and has taken ‘bold steps’ to improve the law,” according to CBC News.
• The Toronto Star reports that Mayor John Tory promised to “maintain a weekly, easily accessible schedule.” But “one year and an election victory later, his staff instead email daily itineraries to the media, which occasionally say only ‘There are no public events scheduled’ and provide no information about the mayor’s activities.”
• The Montreal Gazette reports, “The number of complaints is mounting about a lack of transparency at city hall. Access to public information appears to be controlled, delayed or blocked by the mayor’s office, said Lise Millette, president of the Federation professionnelle des journalistes du Quebec, representing close to 1,800 journalists in the province. She pointed to several complaints in recent weeks from journalists and news groups, particularly from a broad range of weekly newspapers on Montreal Island, about the Coderre administration.”
• Kamloops This Week reports, “Data collected during a review of president Alan Shaver won’t be released to faculty at Thompson Rivers University. Brian Ross, chairman of TRU’s board of governors, said a request by journalism assistant professor Shawn Thompson to release the information has been denied. Ross said Thompson was asking the university to violate an employee’s right to privacy.”
• A London, Ont. councillor is pushing the city to create a lobbyist registry. But, in an interview with the London Free Press, Martin Horak, the head of the University of Western Ontario’s local government program, wondered whether such a registry worthwhile in a city of London’s size.
• The Tribune paraphrases Dalhousie, N.B. Mayor Clem Tremblay as saying the Restigouche Regional Service Commission is not “open enough” because it doesn’t allow for a question period for journalists and the public after the conclusion of its regular monthly meeting.
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