Freedom of Information Promise and Perils March 28th, 2006

Freedom of Information basic description of the FOI regime basic description of the FOI regime FOI and the context of the Sponsorship Scanda FOI and the context of the Sponsorship Scanda FOI and the Gomery Recommendations FOI and the Gomery Recommendations

Freedom of Information What is it? What is it? – ATIA Access to Information Act Access to Information Act – provides right of access to government information

Freedom of Information – The Broad Issues Why FOI? Why FOI? – rights of citizens right to access right to access protecting citizens from arbitrary decisions protecting citizens from arbitrary decisions – improving public understanding of the policy-making process and improving public trust in government secrecy “distorts the thinking of the citizenry” secrecy “distorts the thinking of the citizenry” gives rise to unfounded conspiracy theories gives rise to unfounded conspiracy theories high level of mistrust of government high level of mistrust of government – enforcing sound public policy secrecy shields internal analysis from scuritny of outside experts secrecy shields internal analysis from scuritny of outside experts result – bad policy advice result – bad policy advice

Freedom of Information – The Broad Issues Why FOI? Why FOI? – rights of citizens

Freedom of Information – The Broad Issues Why FOI? Why FOI? – rights of citizens – “Government secrecy breeds stupidity, in government decision-making and in the thinking of some citizens.” Newsweek, 1998

Freedom of Information – The Broad Issues Why FOI? Why FOI? – rights of citizens – improving outcomes improving public understanding of the policy-making process and improving public trust in government improving public understanding of the policy-making process and improving public trust in government –secrecy “distorts the thinking of the citizenry” –gives rise to unfounded conspiracy theories –high level of mistrust of government enforcing sound public policy enforcing sound public policy –secrecy shields internal analysis from scuritny of outside experts –result – bad policy advice

Freedom of Information – The Broad Issues Why limit FOI? Why limit FOI? – the traditional bargain frank advice frank advice – relationships with other actors governments governments –domestic (federal-provincial) –international private sector organizations private sector organizations – regulatory and security functions – cost

ATIA in Canada – The Broad Issues FOI rights FOI rights – narrow or broad? start from presumption that government has discretion to control information but FOI outlines the terms under which that right may be excercised start from presumption that government has discretion to control information but FOI outlines the terms under which that right may be excercised start from presumption that public has right of access to all government information (except where there is an overriding public interest in not releasing information) start from presumption that public has right of access to all government information (except where there is an overriding public interest in not releasing information) – “Advocates of disclosure laws have underestimated the extent to which conflict over government records is often precisely that – a conflict precipitated by the clash of sharply opposed interests. Disclosure laws regulate this conflict, and aim to change the terms of the engagement in favour of non-governmental actors; but they cannot bring an end to the conflict itself.”Roberts, Gomery Research Studies Vol.2, 117

ATIA in Canada – The Broad Issues FOI rights FOI rights exemptions exemptions – categorical how broad are the categories of protected information drawn? how broad are the categories of protected information drawn? –public vs. private organizations –privacy rights –substantive exemptions S.21 – adviceS.21 – advice S.23 – solicitor-client privelegeS.23 – solicitor-client privelege S.24 – statutory prohibitionS.24 – statutory prohibition S.69 – cabinet confidencesS.69 – cabinet confidences – discretionary vs. injury test

ATIA in Canada – The Broad Issues example: s. 69 Cabinet Confidences example: s. 69 Cabinet Confidences – provisions of cabinet confidence secrecy –no disclosure required under ANY circumstances for 20 years –no independent review – determined by cabinet –no class test, no injury test – why? –candid advice –collective responsibility –freedom to manoeuvre

ATIA in Canada – The Broad Issues FOI rights FOI rights exemptions exemptions implementation/enforcement implementation/enforcement – resources – compliance/monitoring – fees – appeals procedure complaint driven vs. proactive complaint driven vs. proactive

Freedom of Information basic description of the FOI regime basic description of the FOI regime FOI and the context of the Sponsorship Scandal FOI and the context of the Sponsorship Scandal FOI and the Gomery Recommendations FOI and the Gomery Recommendations

Trends – mid-1990s and early 2000s trends trends – slower processing times – more exempted material – more complaints possible explanations? possible explanations? – change in the way government “does business” – costs – government counter-attack against FOI

/9494/9595/9696/9797/98 Percentage of requests to major federal institutions completed within 60 days

/9494/9595/9696/97 97/98 Substantiated complaints about delay by major federal institutions

Trends – mid-1990s and early 2000s trends trends – slower processing times – more exempted material – more complaints possible explanations? possible explanations?

Trends – mid-1990s and early 2000s trends trends – slower processing times – more exempted material – more complaints possible explanations? possible explanations? – change in the way government “does business”

Trends – mid-1990s and early 2000s trends trends – slower processing times – more exempted material – more complaints possible explanations? possible explanations? – change in the way government “does business” – costs

Trends – mid-1990s and early 2000s trends trends – slower processing times – more exempted material – more complaints possible explanations? possible explanations? – change in the way government “does business” – costs – government counter-attack against FOI

Office of the Information Commissioner, Annual Report, notes... notes... – “The government’s palpable animosity towards the "right" of access (it would prefer to dole out information by grace and favour in well-digested mouthfuls)...” – “...the stubborn persistence of a culture of secrecy in Ottawa...”

Office of the Information Commissioner, Annual Report, notes... notes... – “The government’s palpable animosity towards the "right" of access (it would prefer to dole out information by grace and favour in well-digested mouthfuls)...” – “...the stubborn persistence of a culture of secrecy in Ottawa...”

Office of the Information Commissioner, Annual Report, “There has been a worrisome hardening of attitudes and increased resistance to the Commissioner’s investigations as a result. When the Commissioner’s subpoenas, searches, and questions come too insistently or too close to the top, the mandarins circle the wagons.” “There has been a worrisome hardening of attitudes and increased resistance to the Commissioner’s investigations as a result. When the Commissioner’s subpoenas, searches, and questions come too insistently or too close to the top, the mandarins circle the wagons.” “Two years into this Commissioner’s term and the backlash has become tangible. [...] The Treasury Board officially discouraged public servants from bringing concerns about wrongdoing under the Access Act, to the attention of the Information Commissioner. “Two years into this Commissioner’s term and the backlash has become tangible. [...] The Treasury Board officially discouraged public servants from bringing concerns about wrongdoing under the Access Act, to the attention of the Information Commissioner. “For its part, the Privy Council Office (PCO) decided to resist and challenge almost all of the Commissioner’s investigative powers.” “For its part, the Privy Council Office (PCO) decided to resist and challenge almost all of the Commissioner’s investigative powers.” “Finally, there is a troubling "personal" aspect to the government’s counter-attack. The future careers in the public service of the Commissioner’s staff have, in not so subtle terms, been threatened. The Commissioner has a fixed, seven-year term with the same insulation from retribution or influence as does a superior court judge. But the Commissioner’s staff does not have those protections. This development is inexcusably unprofessional and profoundly troubling. If members of the public service come to believe that it is career suicide to work, and do a good job, for the Information Commissioner, the future viability and effectiveness of the Commissioner’s office is in grave jeopardy.” “Finally, there is a troubling "personal" aspect to the government’s counter-attack. The future careers in the public service of the Commissioner’s staff have, in not so subtle terms, been threatened. The Commissioner has a fixed, seven-year term with the same insulation from retribution or influence as does a superior court judge. But the Commissioner’s staff does not have those protections. This development is inexcusably unprofessional and profoundly troubling. If members of the public service come to believe that it is career suicide to work, and do a good job, for the Information Commissioner, the future viability and effectiveness of the Commissioner’s office is in grave jeopardy.” “In sum, then, there is a full counter-attack in progress against the office of the Information Commissioner.” “In sum, then, there is a full counter-attack in progress against the office of the Information Commissioner.”

Office of the Information Commissioner, Annual Report, “...governments continue to distrust and resist the Access to Information Act and the oversight of the Information Commissioner. Vigilance, by users, the media, academics, the judiciary, information commissioners and members of Parliament, must be maintained against the very real pressures from governments to take back from citizens, the power to control what, and when, information will be disclosed.” “...governments continue to distrust and resist the Access to Information Act and the oversight of the Information Commissioner. Vigilance, by users, the media, academics, the judiciary, information commissioners and members of Parliament, must be maintained against the very real pressures from governments to take back from citizens, the power to control what, and when, information will be disclosed.” “There continues to be a deep distrust of the Access to Information Act at all levels in government and, most regrettably, in Parliament. In particular, the vigor of the Act’s exemptions, to protect information which should be kept secret, is doubted. As a result, whenever governments propose laws which involve sensitive information, there is often a knee-jerk decision to add new exemptions to the Act, remove records from the coverage of the Act or weaken the commissioner’s (and court’s) oversight of decisions to keep such information secret.” “There continues to be a deep distrust of the Access to Information Act at all levels in government and, most regrettably, in Parliament. In particular, the vigor of the Act’s exemptions, to protect information which should be kept secret, is doubted. As a result, whenever governments propose laws which involve sensitive information, there is often a knee-jerk decision to add new exemptions to the Act, remove records from the coverage of the Act or weaken the commissioner’s (and court’s) oversight of decisions to keep such information secret.”

Strategies of Resistance malicious non-compliance malicious non-compliance adversarialism adversarialism amberlighting amberlighting

Strategies of Resistance malicious non-compliance malicious non-compliance adversarialism adversarialism amberlighting amberlighting disclosure of identities of requestors disclosure of identities of requestors pressure on ATIA officials pressure on ATIA officials problems in record-keeping problems in record-keeping

Adversarialism – Problems in Record-Keeping “The management culture has changed dramatically over the past 20 years from solid record-keeping, accountability and dedication to the public service and loyalty according to our oath of office to Canada, to avoidance of record-keeping and accountability, and dedication of loyalty to the individuals who appointed you and can promote you.” Former Public Servant quoted in Gomery, Recommendations, 35. “The management culture has changed dramatically over the past 20 years from solid record-keeping, accountability and dedication to the public service and loyalty according to our oath of office to Canada, to avoidance of record-keeping and accountability, and dedication of loyalty to the individuals who appointed you and can promote you.” Former Public Servant quoted in Gomery, Recommendations, 35. “Don’t write it if you can say it. Don’t say it if you can nod.” “Don’t write it if you can say it. Don’t say it if you can nod.” “We kept minimum information on the file in case of an access to information request.” Chuck Guite Testimony to Pubic Accounts Committe, April 2004 “We kept minimum information on the file in case of an access to information request.” Chuck Guite Testimony to Pubic Accounts Committe, April 2004

Strategies of Resistance malicious non-compliance malicious non-compliance adversarialism adversarialism amberlighting amberlighting disclosure of identities of requestors disclosure of identities of requestors pressure on ATIA officials pressure on ATIA officials problems in record-keeping problems in record-keeping – “...federal institutions have developed techniques for managing politically sensitive requests which now undercut basic principles of the ATIA.” Alasdair Roberts, Gomery, Vol.2, 117.

Strategies of Resistance malicious non-compliance malicious non-compliance adversarialism adversarialism neglect/maladministration neglect/maladministration

Strategies of Resistance malicious non-compliance malicious non-compliance adversarialism adversarialism neglect/maladministration neglect/maladministration – “Year after year, information commissioners have asked Treasury Board ministers to provide adequate (not extravagant) funds to enable commissioners to effectively discharge the duties Parliament gave them. The requests are routinely denied or pared down to bare bones. Year after year, the Information Commissioner’s workload of complaints increases and, without adequate resources, the backlog of incomplete investigations also increases. Now, it ranks at an all-time high; it represents more than a full year of work for every one of the commissioner’s 23 investigators.” OIC, Annual Report,

Explaining Government Resistance media use of ATIA media use of ATIA – more expert – more aggressive – more frequent/visible example – uncovering the Sponsorship Scandal example – uncovering the Sponsorship Scandal – Daniel Leblanc (Globe and Mail) first ATIA request, September 1999 first ATIA request, September 1999 – “Public disclosure of the Sponsorship Progrma was the result of efforst by a diligent journalist whose access to information request resulted in knoweldge about the Program, to the public and parliamentarians alike, for the first time.” Gomery, Vol.1, 431.

Freedom of Information basic description of the FOI regime basic description of the FOI regime FOI and the context of the Sponsorship Scandal FOI and the context of the Sponsorship Scandal FOI and the Gomery Recommendations FOI and the Gomery Recommendations

Freedom of Information basic description of the FOI regime basic description of the FOI regime FOI and the context of the Sponsorship Scandal FOI and the context of the Sponsorship Scandal FOI and the Gomery Recommendations FOI and the Gomery Recommendations

Gomery Recommendations re: FOI mandatory record-keeping mandatory record-keeping – earlier effects of FOI on record-keeping

Gomery Recommendations re: FOI mandatory record-keeping mandatory record-keeping – Recommendation #16: The Government should adopt legislation requiring public servants to document decisions and recommendations, and making it an offence to fail to do so or to destroy documentation recroding government decisions, or the advice and deliberations leading up to decisions.”

Gomery Recommendations re: FOI mandatory record-keeping mandatory record-keeping amendments to ATIA amendments to ATIA – extension to federal government institutions not currently covered – limiting of exemptions reorientation from categorical exemptions to injury test reorientation from categorical exemptions to injury test reduce the kinds of records subject to injury test reduce the kinds of records subject to injury test – broadening the IC’s powers

Federal Accountability Act, 2006? Implement Information Commissioner’s recommendations for reform of the Access to Information Act. Implement Information Commissioner’s recommendations for reform of the Access to Information Act. Give the Information Commissioner the power to order the release of information. Give the Information Commissioner the power to order the release of information. Expand the coverage of the act to all Crown corporations, Officers of Parliament, foundations and organizations that spend taxpayers’ money or perform public functions. Expand the coverage of the act to all Crown corporations, Officers of Parliament, foundations and organizations that spend taxpayers’ money or perform public functions. Subject the exclusion of Cabinet confidences to review by the Information Commissioner Subject the exclusion of Cabinet confidences to review by the Information Commissioner Oblige public officials to create the records necessary to document their actions and decisions. Oblige public officials to create the records necessary to document their actions and decisions. Provide a general public interest override for all exemptions, so that the public interest is put before the secrecy of the government. Provide a general public interest override for all exemptions, so that the public interest is put before the secrecy of the government. Ensure that all exemptions from the disclosure of government information are justified only on the basis of the harm or injury that would result from disclosure, not blanket exemption rules. Ensure that all exemptions from the disclosure of government information are justified only on the basis of the harm or injury that would result from disclosure, not blanket exemption rules. Ensure that the disclosure requirements of the Access to Information Act cannot be circumvented by secrecy provisions in other federal acts. Ensure that the disclosure requirements of the Access to Information Act cannot be circumvented by secrecy provisions in other federal acts.

Implications of FOI Reform? criticisms... criticisms... – shifting values?

Values of the New Public Management

Implications of FOI Reform? criticisms... criticisms... – shifting values? – breaking the bargain?

...the End! Thank you very much and have a great summer!!