Category Archives: Freedom of Information

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.”2Ibid, 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.”3Ibid, 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. Ibid, 3
3. Ibid, 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.

DISCERNING THE TRUTH

Demonstrators marching in the street holding signs during the 1963 March on Washington for Jobs and Freedom. (Photograph by Marion S. Trikosko)

If you’ve been a reader of this site, you’ll know I’ve been busy working on a dissertation about the early history of freedom of information in Canada. So I’m very excited to announce I’ll be sharing some findings from that work next week. This coming Thursday, I’ll be presenting a paper entitled “The falling currency of democracy: information as an instrument of control and certainty in the postwar and post-truth eras” at Mount Royal University and Medicine Hat College’s second Liberal Education Conference. This year’s conference theme is “Can a liberal education make you a better discerner of the truth?”

BIG BROTHER AND THE PEOPLE’S RIGHT TO KNOW

The threat and fear of Big Brother contributed to the rise of the right to know. (Photograph by 20th Century Fox)

Transparency scholars and advocates have often said that freedom of information laws are a reaction to a growth in government – something I’ve found can be seen at the very beginnings of the modern right to know movement.

In a 2015 paper, public administration professor Alasdair Roberts wrote that such growth happens “either because the country confronts some new challenge, or has the opportunity to adopt some new technology of administration. These movements create risks, such as the possibility that an expanded or more complex bureaucracy might slip from the legislative or public control. Sometimes there are scandals or abuses that give evidence of these new risks. Then there is a countermovement, concerned with the imposition of openness requirements and procedural checks,” which include transparency measures such as freedom of information laws.1Alasdair Roberts, “Too much transparency? How critics of openness misunderstand administrative development,” (paper prepared for the Fourth Global Conference on Transparency Research, Lugano, Switzerland, June 4-6, 2015).

In the United States, just such a countermovement began in earnest in the early 1950s, as journalists, politicians and others started expressing concerns about the “omnipotent administration” of the “superstate,” which was “so vividly pictured by George Orwell in his novel 1984.”2House Committee on Government Operations, Twenty-Fifth Intermediate Report of the Committee on Government Operations, 74. That countermovement included the publication of The People’s Right to Know. Commissioned by the American Society of News Editors in October 1950 and printed three years later by Columbia University Press, it was the first “scholarly, legally documented presentation on the subject” of freedom of information in the United States.3James S. Pope, Forward to The People’s Right to Know: Legal Access to Public Records and Proceedings by Harold L. Cross (New York: Columbia University Press, 1953), ix.

The 405-page book “nearly sold out within a week of its publication date,” despite a weighty US$5.50 price tag – just over $50 in today’s money.4J.R. Wiggins, “An arsenal of arguments for the right to know,” The Washington Post, April 26, 1953. Reviewing the book in The Washington Post, the paper’s managing editor James R. Wiggins remarked that such popularity wasn’t surprising since it contained “information so essential to the exercise of a fundamental right.”5J.R. Wiggins, “An arsenal of arguments for the right to know,” The Washington Post, April 26, 1953. Yet it was New York Times general Louis M. Loeb who offered the most insight into that purported popularity. In his own review of the book, Loeb described it as a timely and helpful text because its publication coincided with Americans’ search for a  “new balance” between “the citizen and his Government owing to the tremendously enlarged field in which the Government enters the life of every citizen”6Louis M. Loeb, “The Need for Facts,” The New York Times, May 17, 1953. – foretelling one of the principle arguments that would be made in favour of the public’s right to know.

References   [ + ]

1. Alasdair Roberts, “Too much transparency? How critics of openness misunderstand administrative development,” (paper prepared for the Fourth Global Conference on Transparency Research, Lugano, Switzerland, June 4-6, 2015).
2. House Committee on Government Operations, Twenty-Fifth Intermediate Report of the Committee on Government Operations, 74.
3. James S. Pope, Forward to The People’s Right to Know: Legal Access to Public Records and Proceedings by Harold L. Cross (New York: Columbia University Press, 1953), ix.
4, 5. J.R. Wiggins, “An arsenal of arguments for the right to know,” The Washington Post, April 26, 1953.
6. Louis M. Loeb, “The Need for Facts,” The New York Times, May 17, 1953.

FREEDOM OF INFORMATION AND THE FRENCH ATOM BOMB

The dangers of atomic bomb tests like this one – conducted by France in the Sahara on February 13, 1960 – contributed to the rise of the right to know movement. (Photograph by ITAR-TASS News Agency/Alamy Stock Photo)

“The obligation to endure gives us the right to know.”1Rachel Carson, Silent Spring (Boston, MA: Houghton Mifflin, 1962; New York, NY: Mariner Books, 2002), 14. Anyone who has read Silent Spring, the 1962 book that “ignited”2Eliza Griswold, “How ‘Silent Spring’ Ignited the Environmental Movement,” The New York Times, September 21, 2012. the environmental movement, will remember that phrase. Indeed, it was one of author and biologist Rachel Carson’s favourites.3Samuel A. Tower, “Rachel Carson is Pictured on New 17-Cent Issue,” The New York Times, May 31, 1981. Since then, it has been repeatedly used to argue for the disclosure of information about how science, corporations and governments may be damaging us and our environment.4David C. Vladeck, “Information Access – Surveying the Current Legal Landscape of Federal Right-to-Know Laws,” Texas Law Review 86, no. 7 (June 2008): 1787. But French scientist and philosopher Jean Rostand, who coined that phrase on April 21, 1960 while accepting the Kalinga Prize for the popularization of science,5 The UNESCO Courier, “Jean Rostand Receives Kalinga Prize,” The UNESCO Courier, June, 1960 was concerned with a specific kind of damage.

Earlier that month, on April 1, France completed its second atomic bomb test. The test, which took place at the atomic proving grounds at Reggan in southwestern Algeria, exploded with a force of “less than 19,000 tons of TNT, which was the power of the United States atomic bomb that was dropped on Hiroshima.”6W. Granger Blair, “Compact A-Bomb Closer in France: Sizable Step Taken Toward Operational Device with Second Sahara Blast,” The New York Times, April 2, 1960. That explosion, and the 16 others that France detonated in the Sahara, “vitrified vast tracts of desert with heat and plutonium and left a legacy of uncontained radiation that is still crippling inhabitants.”7Johnny Magdaleno, “Algerians Suffering from French Atomic Legacy, 55 Years After Nuke Tests,” Al Jazeera, March 1, 2015, http://america.aljazeera.com/articles/2015/3/1/algerians-suffering-from-french-atomic-legacy-55-years-after-nuclear-tests.html accessed March 12, 2018

At the time of the second detonation, representatives of 22 Asian and African nations called for a special session of the United Nations General Assembly to consider those tests.8Special to The New York Times, “French A-Tests Scored: Africans and Asians Again Ask Special U.N. Session,” The New York Tines, April 6, 1960. But, on April 14, those representatives only had 36 of the 42 votes they needed to do so, out of the 82 nations casting ballots. According to The New York Times, one reason for the defeat of the special session was a feeling that since French President Charles de Gaulle was going to be in the city between April 26-27 “it would have been discourteous to take this means of protesting his decision to make France a nuclear power.”9Thomas J. Hamilton, “Neutrals in the U.N.: Asian-African Differences Pointed Up by Defeat of Move on Atom Tests,” The New York Times, April 17, 1960.

That vote happened just seven days after an American Chemical Society symposium designed to “describe in detail the path of nuclear particles from bombs through the soil, plants, food, animals, and milk into human bone and tissue.”10Frank Carey, “85 per cent of fallout now down,” The Washington Post, April 8, 1960. During the symposium, Columbia University geochemistry professor John Laurence Kulp said that plants used for food may have picked up “less radioactive poison than earlier calculations indicated.”11Editorial, “Qualified Comfort,” The Cincinnati Enquirer, April 7, 1960. However, Wright Haskell Langham, the group leader for the Los Alamos Scientific Laboratory’s biomedical research division, also said fallout from past nuclear weapon tests may have increased “the incidence of bone cancer and leukemia 5 to 10 per cent in the generations presently growing up.”12Editorial, “Qualified Comfort,” The Cincinnati Enquirer, April 7, 1960.

It was against this backdrop, at UNESCO House in Paris, that Rostand – whose father was the author of Cyrano de Bergerac – said, “Any distinction between the man of science and the ordinary man is no longer admissible, any more than a form of segregation based on an inequality of knowledge. Whether we like it or not, the laboratory henceforward opens right onto the street. Science not only affects us at any given moment of our day-to-day existence, it dogs us, it pursues us. Have we not all of us been transformed into involuntary guinea pigs ever since atomic fission, without asking our opinion, began to plant harmful particles in our bones?”13Jean Rostand, “Popularization of Science,” Science 131, no. 3412 (May 20, 1960): 1491.

As a result, he continued, “The obligation to endure gives us the right to know. The time is clearly coming when the man in the street will have his say with regard to the great social, national, international and moral issues latterly raised by certain applications of science; and it may be that the specialist himself, weary of bearing on his own the weight of his too-heavy responsibilities will rejoice at finding understanding and support in public awareness.”14Jean Rostand, “Popularization of science,” Science 131, no. 3412 (May 20, 1960): 1491.

References   [ + ]

1. Rachel Carson, Silent Spring (Boston, MA: Houghton Mifflin, 1962; New York, NY: Mariner Books, 2002), 14.
2. Eliza Griswold, “How ‘Silent Spring’ Ignited the Environmental Movement,” The New York Times, September 21, 2012.
3. Samuel A. Tower, “Rachel Carson is Pictured on New 17-Cent Issue,” The New York Times, May 31, 1981.
4. David C. Vladeck, “Information Access – Surveying the Current Legal Landscape of Federal Right-to-Know Laws,” Texas Law Review 86, no. 7 (June 2008): 1787.
5. The UNESCO Courier, “Jean Rostand Receives Kalinga Prize,” The UNESCO Courier, June, 1960
6. W. Granger Blair, “Compact A-Bomb Closer in France: Sizable Step Taken Toward Operational Device with Second Sahara Blast,” The New York Times, April 2, 1960.
7. Johnny Magdaleno, “Algerians Suffering from French Atomic Legacy, 55 Years After Nuke Tests,” Al Jazeera, March 1, 2015, http://america.aljazeera.com/articles/2015/3/1/algerians-suffering-from-french-atomic-legacy-55-years-after-nuclear-tests.html accessed March 12, 2018
8. Special to The New York Times, “French A-Tests Scored: Africans and Asians Again Ask Special U.N. Session,” The New York Tines, April 6, 1960.
9. Thomas J. Hamilton, “Neutrals in the U.N.: Asian-African Differences Pointed Up by Defeat of Move on Atom Tests,” The New York Times, April 17, 1960.
10. Frank Carey, “85 per cent of fallout now down,” The Washington Post, April 8, 1960.
11, 12. Editorial, “Qualified Comfort,” The Cincinnati Enquirer, April 7, 1960.
13. Jean Rostand, “Popularization of Science,” Science 131, no. 3412 (May 20, 1960): 1491.
14. Jean Rostand, “Popularization of science,” Science 131, no. 3412 (May 20, 1960): 1491.

THE “CURRENCY OF DEMOCRACY”

Martin Grove Brumbaugh shared his ideas on education and democracy when he was the superintendent of public schools of Philadelphia. (Photograph courtesy of Library of Congress Prints and Photographs Division)

The aphorism “information is the currency of democracy” has often been used by transparency advocates to lobby for openness in government. Most attribute that phrase to consumer advocate Ralph Nader.1Senate Subcommittee on Intergovernmental Relations of the Committee on Government Operations, Hearings on S. 1637 to Establish Standards and Procedures for Government Advisory Committees, 92nd Cong., 1st sess., 1971, 985; Washington Bureau of The Sun, “Flaws in Congress are Next Target for Nader’s Band of Reformers,” The Baltimore Sun, November 3, 1971; Ralph Nader, “The Underachievements of Congress,” The New York Times, December 23, 1971. Nader used that phrase on October 11, 1971 while testifying before a Senate subcommittee. He used it again and more publicly during a November 2, 1971 speech to the National Press Club where he announced the launch of “the most comprehensive and detailed study of the Congress since its establishment.” Others misattributed it to Thomas Jefferson.2Thomas Jefferson Encyclopedia, s.v. “Information is the Currency of Democracy (Spurious Quotation),” accessed March 2, 2018, https://www.monticello.org/site/jefferson/information-currency-democracy-spurious-quotation. The Thomas Jefferson Foundation, a non-profit corporation that owns and operates the American Founding Father’s former plantation, currently has “no evidence to confirm that he ever said or wrote, ‘Information is the currency of democracy.’” As a result, it has labelled it a spurious quotation. But I’ve found what appears to be an antecedent of sorts to the saying. In his 1908 annual report, the superintendent of public schools of Philadelphia, Martin Grove Brumbaugh wrote:

Two individuals can participate in a common cause only to the extent that they possess common sentiment and common knowledge. To increase their effective participation requires a broadening of their common knowledge. To make participation impossible requires only the absence of common knowledge. This holds true throughout. Hence our democracy depends upon the possession by all its individual participants of a fund of common knowledge, which fund is the currency of democracy; and the function of the public school is to impart such a fund of common knowledge to all that participate in our democracy as to make facile the interchange of ideas and the reciprocal regard of each for the other. The initiation into democracy should always be contingent upon the possession of this common knowledge. For that reason the stranger from without should serve an apprenticeship in the American public school before he is invested with the toga of American citizenship. Likewise any one in our midst, native or foreign born, that has neglected to fit himself for participation in our democracy should be denied what his own neglect prevents him from comprehending.

Moreover, the growth of democracy, as well as its security, depends upon the widening of this fund of common knowledge. Hence the specific means of promoting the best traditions in our national life will be found to lie in the increased efficiency of the schools. What the school is as the creator of common thought and common sentiment determines what our democracy is. Upon this basis the state supports the school, and the system of education is maintained by taxation prescribed by the laws of the state. The measure of this financial support is the measure of our belief in democracy. When any citizen opposes an equitable, indeed, a liberal support to the schools, he opposes the government itself.3Superintendent of Public Schools of the City of Philadelphia, Annual Report of the Superintendent of Public Schools of the City of Philadelphia for the Year Ending December 31, 1908 (Philadelphia, PA, 1909), 18.

Brumbaugh, who “drastically reorganized the ways schools operated and taught children by building additional primary and secondary schools, reforming academic programs in the high schools, and raising teacher salaries,” would go on to become the Republican governor of Pennsylvania.4The Encyclopedia of Greater Philadelphia, s.v. “Martin G. Brumbaugh,” accessed March 2, 2018, http://philadelphiaencyclopedia.org/archive/education-and-opportunity-2/3c09824v/.

References   [ + ]

1. Senate Subcommittee on Intergovernmental Relations of the Committee on Government Operations, Hearings on S. 1637 to Establish Standards and Procedures for Government Advisory Committees, 92nd Cong., 1st sess., 1971, 985; Washington Bureau of The Sun, “Flaws in Congress are Next Target for Nader’s Band of Reformers,” The Baltimore Sun, November 3, 1971; Ralph Nader, “The Underachievements of Congress,” The New York Times, December 23, 1971. Nader used that phrase on October 11, 1971 while testifying before a Senate subcommittee. He used it again and more publicly during a November 2, 1971 speech to the National Press Club where he announced the launch of “the most comprehensive and detailed study of the Congress since its establishment.”
2. Thomas Jefferson Encyclopedia, s.v. “Information is the Currency of Democracy (Spurious Quotation),” accessed March 2, 2018, https://www.monticello.org/site/jefferson/information-currency-democracy-spurious-quotation. The Thomas Jefferson Foundation, a non-profit corporation that owns and operates the American Founding Father’s former plantation, currently has “no evidence to confirm that he ever said or wrote, ‘Information is the currency of democracy.’” As a result, it has labelled it a spurious quotation.
3. Superintendent of Public Schools of the City of Philadelphia, Annual Report of the Superintendent of Public Schools of the City of Philadelphia for the Year Ending December 31, 1908 (Philadelphia, PA, 1909), 18.
4. The Encyclopedia of Greater Philadelphia, s.v. “Martin G. Brumbaugh,” accessed March 2, 2018, http://philadelphiaencyclopedia.org/archive/education-and-opportunity-2/3c09824v/.

INFO WATCHDOG’S PARTING SHOT ECHOES PAST CRITICISM

Suzanne Legault isn’t the first and likely won’t be the last information commissioner to give the federal government a parting shot. (Graphic by Office of the Information Commissioner of Canada)

During her last week as Canada’s fifth information commissioner, Suzanne Legault excoriated the federal government’s secrecy and the Liberals’ failure to make it more open.1Daniel LeBlanc, “Information watchdog blasts Liberals ahead of her retirement,” The Globe and Mail, February 21, 2018, https://www.theglobeandmail.com/news/politics/information-watchdog-blasts-liberals-ahead-of-her-retirement/article38060282/ (accessed February 22, 2018). But she’s far from the first commissioner to do so on their way out of office, a reminder of how long the federal freedom of information system has been broken and the equally long chances of it ever being fixed. For example:

  • in her final annual report, which was released on May 18, 1990, Canada’s first information commissioner Inger Hansen wrote that she remained convinced “the political will in support of freedom of information could be stronger,” “the bureaucratic resistance to freedom of information could be stronger” and “the tendency to withholding government information should give way to attitudes favouring disclosure;”2Office of the Information Commissioner of Canada, Annual Report Information Commissioner 1989-90 (Ottawa, ON: Office of the Information Commissioner of Canada, 1990), 2.

  • in his final annual report, which was released on June 4, 1998, Canada’s second information commissioner John Grace wrote, “A culture of secrecy still flourishes in too many high places even after 15 years of life under the Access to Information Act. Too many public officials cling to the old proprietorial notion that they, and not the Access to Information Act, should determine what and when information should be dispensed to the unwashed public. If bold boasts are to be believed, some have taken to adopting the motto attributed to an old New York Democratic boss: ‘Never write if you can speak; never speak if you can nod; never nod if you can wink;’”3Office of the Information Commissioner of Canada, Annual Report Information Commissioner 1997-1998 (Ottawa, ON: Office of the Information Commissioner of Canada, 1998), 3. and

  • in his final annual report, which was released on June 13, 2006, Canada’s third information commissioner John Reid wrote, “After almost 23 years of living with with the Access to Information Act, the name of the game, all too often, is how to resist transparency and engage in damage control by ignoring response deadlines, blacking-out the embarrassing bits, conducting business orally, excluding records and institutions from the coverage of the Access to Information Act, and keeping the system’s watchdog overworked and under-funded.”4Office of the Information Commissioner of Canada, Annual Report Information Commissioner 2005-2006 (Ottawa, ON: Office of the Information Commissioner of Canada, 1998), 6.

Even Robert Marleau, who failed to finish his seven-year term as the country’s fourth information commissioner and was criticized for being “more lapdog than attack-mutt,”5Greg Weston, “PM is the biggest muzzle master yet,” Whitehorse Star, March 16, 2009. wrote, “Much more is needed to bring about a true culture of openness and transparency, and allow Canada to regain its status as a leader in the area of access to information.”6Office of the Information Commissioner of Canada, Annual Report 2008-2009: Maximizing Compliance for Greater Transparency (Ottawa, ON: Office of the Information Commissioner of Canada, 2009), 1. As such, the question isn’t when the government will do that, since both the Liberals and Conservatives have repeatedly demonstrated they won’t. The question is whether Canadians care.

References   [ + ]

1. Daniel LeBlanc, “Information watchdog blasts Liberals ahead of her retirement,” The Globe and Mail, February 21, 2018, https://www.theglobeandmail.com/news/politics/information-watchdog-blasts-liberals-ahead-of-her-retirement/article38060282/ (accessed February 22, 2018).
2. Office of the Information Commissioner of Canada, Annual Report Information Commissioner 1989-90 (Ottawa, ON: Office of the Information Commissioner of Canada, 1990), 2.
3. Office of the Information Commissioner of Canada, Annual Report Information Commissioner 1997-1998 (Ottawa, ON: Office of the Information Commissioner of Canada, 1998), 3.
4. Office of the Information Commissioner of Canada, Annual Report Information Commissioner 2005-2006 (Ottawa, ON: Office of the Information Commissioner of Canada, 1998), 6.
5. Greg Weston, “PM is the biggest muzzle master yet,” Whitehorse Star, March 16, 2009.
6. Office of the Information Commissioner of Canada, Annual Report 2008-2009: Maximizing Compliance for Greater Transparency (Ottawa, ON: Office of the Information Commissioner of Canada, 2009), 1.

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.