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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

As a result, the op-ed stated:

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

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

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

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

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

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,” 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,” 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,” 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.

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,” 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,” 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,⁵UNESCO Courier, “Jean Rostand Receives Kalinga Prize,” 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,” 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,” 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,” 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,” 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,” 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,” 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.