Category Archives: Protection of Privacy

DEBATING CANADA’S DO NOT DISTURB SIGN

JOURNALISTS PUSH BACK AGAINST PR TACTICS

An average Canadian bureaucrat's response to questions from the news media. (Photograph by Shutterstock.com)

A typical Canadian bureaucrat responds to questions from the news media. (Photograph by Shutterstock.com)

THE NEWS MEDIA NEEDS UNMEDIATED ACCESS The Canadian Association of Journalists wants Ottawa to “allow civil servants to freely speak to members of the media without interference or involvement from communications staff” — a reform news media representatives in the United States also want their government to adopt.

On June 30, in a letter to Treasury Board President Tony Clement, the Canadian Association of Journalists stated such limitations have been compared to censorship — which would be at odds with the Harper administration’s open government ambitions (disclosure: I drafted and then, as one of the association’s regional directors, co-signed that document).

Now, 46 open government and journalism organizations south of the border are also asking the United States government to remove such restrictions. In a letter sent to President Barack Obama, the groups urged “changes to policies that constrict information flow to the public, including prohibiting journalists from communication with staff without going through public information offices, requiring PIOs to vet interview questions and monitoring interviews between journalists and sources.”

According to the letter, “when journalists cannot interview agency staff, or can only do so under surveillance, it undermines public understanding of, and trust in, government. This is not a ‘press vs. government’ issue. This is about fostering a strong democracy where people have the information they need to self-govern and trust in its government institutions.”

BACK IN THE GOOD ‘OL DAYS Civil servants in the United States and Canada haven’t always been so restricted in speaking with the news media. As an example, the Canadian Association of Journalists cited guidelines issued by then-prime minister Joe Clark in 1979.

Those guidelines stated that talking to reporters “was part of the duties and responsibilities of managers in the public service.”

That directive, which was upheld by Pierre Trudeau when he succeeded Clark as prime minister, was meant to “encourage open and responsive behaviour among public servants in their day-to-day dealings with the public, including particularly members of Parliament and representatives of the news media.”

The Globe and Mail reported those guidelines “made no mention of [civil servants] having to get prior clearance from press officers” to speak with journalists.

So there was a bit of a hue and cry five years later when Clark, as then-prime minister Brian Mulroney’s external affairs minister, tried to forbid his bureaucrats from discussing “’any aspect of policy formulation or implementation or any departmental activity or operation with any member of the media, unless the departmental employee has been designated to do so by the press office. This directive applies to all contacts with the media, including social.”

Soon after that directive became public, it was superseded by a somewhat looser government-wide gag order on civil servants.

THE KIDS ARE ALRIGHT? In Canada, as in many other Western democracies, there’s been concern about declining youth voter turnout. But haven’t young people always been less likely to show up to the polls? And aren’t they simply engaged in politics in different ways?

Well, according to Maria Grasso, a lecturer in politics and quantitative methods at the University of Sheffield, the answer is no and no to both those questions in some European countries.

Grasso “applied cutting-edge statistical analysis to data from the European Values Study 1981-2008, which tracked the political activity of individuals born in ten advanced Western European countries, Belgium, Denmark, France, West German, Great Britain, Ireland, Italy, the Netherlands, Spain and Sweden.” Here’s what she found:

While it’s true that in general younger generations are less likely than older groups to engage with traditional political parties, when it comes to participating in social movement organisations, demonstrating, or signing a petition, the 1960s-70s generation is more active than the 1980s generation, which in turn is more active than the 1990s generation. Coming of age in the radical and ideologically polarised period of the late 60s has left its mark on the 1960s-70s generation. But what this means is that older people are not merely more likely to be involved in formal politics, they are also more engaged with informal politics too.

INFORMATION RIGHTS BLOCK BUSINESS GROWTH? Opponents of openness and accountability often try to thwart Canadians’ right to know by arguing that privacy is a necessity for public and private institution to function properly.

The latest examples comes to us from Hamilton, where there is a proposal that would require those trying to influence city decision-makers to publicly disclose their activities.

That may not seem like a controversial idea. But, in a column for Hamilton Business, Flamborough Chamber of Commerce executive director Arend Kersten questions whether that lobbyist registry — represents another “nail in the coffin of economic development” in the city. Specifically, Kersten states:

Within the context of a global economy, municipalities face fierce competition in the race for new commercial and industrial economic development, complete with additional jobs and tax revenues.

One essential component of that competitive process is absolute confidentiality.

The draft bylaw for the lobbyist registry allows for exemptions (at the sole discretion of the registrar). But many in the “real world” fear those who desire to invest will simply bypass Hamilton for a more business-friendly jurisdiction where absolute confidentiality is a sacred trust.

PRESS PROBES POLITICIAN’S BEDROOM Speaking of privacy, when can journalists invade it if they are reporting on the lives of public officials?

In an interview with Vancouver-based freelancer Bob Mackin, I stated, “It’s too easy to say, ‘Well we don’t want to go down the pathway of the U.K., we don’t want to go down the pathway of the U.S.’” where those lives are on greater public display.

“But we also have to ask what not going down that pathway costs us, because there is a cost and the cost is that some things that should be reported on, may end up unreported.”

You can read Mackin’s full article, which analyzes the controversy over the coverage of Vancouver mayor Gregor Robertson’s marital woes, here.

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: Given the slowness of the summer news cycle, I’ll be publishing this column biweekly instead of weekly until September.

PRIVACY POST APPOINTEES NO STRANGER TO SCANDAL

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Daniel Therrien now guards the locks on Canadians' private information. But he's not the first to have been put in that position under a cloud of scandal. (Graphic by Shutterstock.com)

Daniel Therrien now guards the locks on Canadians’ private information. But he’s not the first to have been put in that position under a cloud of controversy. (Graphic by Shutterstock.com)

HISTORY REPEATS ITSELF AT PRIVACY COMMISSIONER’S OFFICE The Harper administration’s selection of Daniel Therrien as Canada’s next privacy commissioner has been the subject of much understandable concern from critics and the country’s commentariat.

After all, Therrien, a former assistant deputy attorney general at the Department of Justice, will now be watchdogging government agencies he once advised and policies he helped develop.

But it’s worth remembering past appointments to that same post have stirred up comparable controversy.

For example, in 1991, then Prime Minister Brian Mulroney’s ex-communications director Bruce Phillips was named privacy commissioner.

The Globe and Mail and the Ottawa Citizen’s editorial boards opposed that hiring, with one of the capital city newspaper’s columnists arguing the commissioner must be a “standard-bearer not a spin doctor.”

Meanwhile, Liberal and New Democrat MPs described Phillips — who was once CTV News’s Ottawa bureau chief — as a “lap dog” and a “Tory hack,” voting against his appointment.

Nevertheless, after seven years, there was widespread opinion that Philips had done a good job — so much so that he was unanimously reappointed.

And, two years later, Phillips was described by the Globe and Mail’s Hugh Winsor as leaving his job “with stars on his epaulettes.”

His successor George Radwanski would depart under different circumstances.

Like Phillips, Radwanski was a former journalist.

But, like Phillips, he also had a partisan background, advising Liberal leaders John Turner and Jean Chretien when the Grits were in opposition.

And, like Phillips, his candidacy was questioned by the opposition and the press because of that background, with columnist Jim Travers writing that the privacy commissioner’s role should “not be diminished by real or imagined political conflicts.”

“While Radwanski, like Phillips before him, may succeed despite political ties, the government is needlessly risking the position’s most valuable asset, its credibility.”

Ultimately, it was questionable spending rather than partisanship that jeopardized that credibility, resulting in Radwanski’s resignation in 2003.

But, regardless of what Phillips and Radwanski’s records were as privacy commissioner and what Therrien’s will be — the shared controversy over their appointments demonstrates a long-ignored need to reconsider how that office is filled.

Indeed, during the flap over Phillips’s connection to Mulroney, the Globe and Mail reported Liberal senators were “considering the introduction of a bill to require consensus from all political parties when appointments are made to key parliamentary offices.”

Twenty-three years later, it’s still not too late to make that happen.

MERGER INTERRUPTUS? Last week, BC Freedom of Information and Privacy Association executive director Vincent Gogolek questioned whether Prime Minister Stephen Harper might merge the offices of Canada’s information and privacy commissioners — making Thierren responsible for both briefs.

But proposals for such a merger have failed in the past. In a 2005 report for then Attorney General Irwin Cotler, former Supreme Court justice Gérard La Forest summarized that history this way:

In 1985 and 1986, the idea of merging the two offices was considered by the parliamentary committee responsible for the three year statutory review of the [Privacy Act and the Access to Information Act]. The committee recommended that the offices be kept separate in order to avoid any real or perceived conflict of interest in the discharge of the commissioners’ mandates.

In the 1992 budget, the Government announced an intention to merge the two offices as part of an effort to streamline government and “encourage a balancing of interests between the two objectives of privacy and access to information.”

The Government planned to use section 55 of the Privacy Act to appoint the Information Commissioner as Privacy Commissioner. Information Commissioner John Grace spoke in favour of the proposal.

The proposal was criticized, however, by a number of parties (including Privacy Commissioner Bruce Phillips, privacy advocates, and the Canadian Bar Association), and it was not implemented.

In the mid-1990’s, the Government considered the idea of merging the Information and Privacy Commissioners’ offices with the Canadian Human Rights Commission. This proposal too was ultimately rejected.

The Government returned to the idea of merging the Information and Privacy Commissioners’ offices in 1998, but again no action was taken.

In 2001, an ad hoc parliamentary access to information committee recommended the merger of the two offices, but the government did not respond publicly to the proposal.

Lastly, in October 2003, Information Commissioner John Reid authored a position paper advocating the merger of the two offices. The Government, however, did not move forward on this proposal.

La Forest also recommended against such a merger. So, if Harper did consider combining the information and privacy commissioners’ offices, the weight of history would be strongly against him.

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

THE WEEK THAT WAS — NOVEMBER 23, 2013

THE UNKNOWABLE COUNTRY

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Suzanne Legault, the country’s information commissioner, is demanding more openness from government. But how important is that openness to Canadians? (Photograph by Office of the Information Commissioner)

“Freedom of information is the expression of Canadians’ core values. It is fundamental to the functioning of democracy.”

Canada’s information commissioner, Suzanne Legault, made that pronouncement earlier this month in a news release urging a modernization of the laws that allow public access to public records.

But, while it’s undeniable that transparency is the mother of accountability, our core values — and whether freedom of information expresses them — are debatable.

Legault’s office hasn’t polled Canadians to test that contention. A spokesperson for the office said it doesn’t have a mandate to survey citizens about their attitudes toward information issues — unlike the country’s better-funded privacy commissioner.

But the best indication of our core values might not be found in any poll. Instead, it might be found in our continued support for Canada’s predominant political system — which is 116 years older than the country’s access to information law.

In that system, decision-making rarely happens in the sunshine of our legislatures.

Instead, it happens in dark, private spaces — such as caucus and cabinet meetings — whose secret proceedings are protected by pledges of confidentiality and fortified by the force of law.

It is there, and often only there, that our representatives can express dissenting views. But even then they may risk punishment for doing so.

Outside those spaces, our representatives are usually expected to vote and voice the party line — regardless of whether it’s inconsistent with their views and those of their constituents.

That means a party with a majority has the power to get whatever it wants in our legislatures — public spaces where government decisions are disclosed but almost never defeated or amended without the government’s consent.

The underlying assumption behind this political system is that privacy is necessary for decision-making.

It’s an assumption expressed in our freedom of information laws, which put Canada’s most informative records under lock and key.

For example, the federal Access to Information Act doesn’t allow access to caucus documents and it usually protects cabinet documents from prying eyes for 20 years.

The act also allows the government to refuse access to any documents that contain advice for cabinet ministers.

And it can keep accounts of “consultations or deliberations” that include cabinet ministers or their staff out of public hands.

In other words, on paper, our top political officials are ghosts in the machinery of government.

It is they who pull the levers. And, yet, their fingerprints are often rendered invisible to the citizens they supposedly represent.

It’s easy to disagree with such opacity — making it easy, as Legault has, to conclude that freedom of information is the expression of our core values.

Yet I wonder how many Canadians would disagree with the assumption that privacy is necessary for decision-making?

Because once you accept that assumption, as many of our political leaders have, it becomes easier to reject requests for information about such decisions.

What that says about our core values is admittedly debatable. It suggests freedom of information is not an expression of those values or, at the very least, that we have conflicting values.

But what’s undeniable is that, at the beginning of the twenty-first century, we find ourselves residents of an unknowable country.

It is a nation of the governed rather than the self-governed – a place where transparency is routinely sacrificed on the high altar of peace, order and what some would call good governance.

In this monthly column for J-Source and The Tyee, I’ll be continuing this conversation, mapping the boundaries of openness and accountability in Canada and exploring what they mean for the people, the press and the powerful.

I invite you to be a participant online and at the column’s Facebook page, as well as at The Tyee and J-Source, where this column is syndicated.

Sean Holman's Unknowable Country

mapping the boundaries of government secrecy in Canada