1. Final Exam Monday, April 17 th, 9:00-11:30 am, RCH 307 Monday, April 17 th, 9:00-11:30 am, RCH 307 weight weight – midterm (20%)/final (20%)...or... – midterm (15%)/final (25%)... –...whichever produces the highest mark! NOT cumulative NOT cumulative – covers lectures from March 2-March 30 th – Part IV

2. Final Exam 2 sections 2 sections – 3 answers – each of equal weight – Part A – mandatory question on the NPM – Part B – answer two questions from choice of three

4. Ethics in the Public Service (Cont’d) March 23rd, 2006

5. Public Service Ethics importance of the public service ethics regime importance of the public service ethics regime ethics and the context of the Sponsorship Scandal ethics and the context of the Sponsorship Scandal ethics and the Gomery Recommendations ethics and the Gomery Recommendations

6. Ethics and the Context of the Sponsorship Scandal “The problems in the administration of the Sponsorship initiatives were disturbing for two reasons: they revealed a breakdown of ethical standards, and they continued for so long without being stopped.” Gomery Report, Recommendations, 10. “The problems in the administration of the Sponsorship initiatives were disturbing for two reasons: they revealed a breakdown of ethical standards, and they continued for so long without being stopped.” Gomery Report, Recommendations, 10.

7. Ethics and the Context of the Sponsorship Scandal (According to Gomery) a breakdown of public service ethical standards a breakdown of public service ethical standards – adoption of private sector ethical standards

8. Ethics and the Context of the Sponsorship Scandal “One expert attributed the Sponsorship scanadal to excesses caused by what he called a “private business culture” or “entrepreneurialism” in the public service. This attitude has replaced a “public business” standards based on the public interest. In the Sponsorship Program, acccording to this theory, the Prime Minister and the Cabinet, with the best of intentions, encouraged the entrepreneurialism of certain public servants, who in turn stopped working for and by the rules of their department and cultviated relationships with private-sector sponsorship companies using a different set of rules and standards.” Gomery Report, Recommendations, 46. “One expert attributed the Sponsorship scanadal to excesses caused by what he called a “private business culture” or “entrepreneurialism” in the public service. This attitude has replaced a “public business” standards based on the public interest. In the Sponsorship Program, acccording to this theory, the Prime Minister and the Cabinet, with the best of intentions, encouraged the entrepreneurialism of certain public servants, who in turn stopped working for and by the rules of their department and cultviated relationships with private-sector sponsorship companies using a different set of rules and standards.” Gomery Report, Recommendations, 46.

9. Ethics and the Context of the Sponsorship Scandal (According to Gomery) a breakdown of public service ethical standards a breakdown of public service ethical standards – adoption of private sector ethics standards – individual self-interest of public servants

10. Ethics and the Context of the Sponsorship Scandal (According to Gomery) a breakdown of public service ethical standards a breakdown of public service ethical standards – adoption of private sector ethics standards – individual self-interest of public servants acceptance of political intereference acceptance of political intereference

11. Ethics and the Context of the Sponsorship Scandal “One legal expert spoke of the Government advertising program as having no rules or direction, suggesting that a ‘shift to a rule-of-law culture’ would shelter advertising programs from corruption. Such a culture would shift the balance towards public servants’ loyalty to the rules of the public service rather than to the wishes of their political superiors.” Gomery Report, Recommendations, 46. “One legal expert spoke of the Government advertising program as having no rules or direction, suggesting that a ‘shift to a rule-of-law culture’ would shelter advertising programs from corruption. Such a culture would shift the balance towards public servants’ loyalty to the rules of the public service rather than to the wishes of their political superiors.” Gomery Report, Recommendations, 46.

12. Ethics and the Context of the Sponsorship Scandal (According to Gomery) a breakdown of public service ethical standards a breakdown of public service ethical standards – adoption of private sector ethics standards – individual self-interest of public servants acceptance of political intereference acceptance of political intereference emphasis on policy rather than management emphasis on policy rather than management

13. Ethics and the Context of the Sponsorship Scandal (According to Gomery) a breakdown of public service ethical standards a breakdown of public service ethical standards – adoption of private sector ethics standards – individual self-interest of public servants acceptance of political intereference acceptance of political intereference emphasis on policy rather than management emphasis on policy rather than management –“...the road to career advancement for aspiring public servants is in the policy advisory field...” (106)

14. Ethics and the Context of the Sponsorship Scandal (According to Gomery) a breakdown of public service ethical standards a breakdown of public service ethical standards – adoption of private sector ethics standards – individual self-interest of public servants acceptance of political intereference acceptance of political intereference emphasis on policy rather than management emphasis on policy rather than management failure to “speak truth to power” failure to “speak truth to power”

15. Ethics and the Context of the Sponsorship Scandal (According to Gomery) a breakdown of public service ethical standards a breakdown of public service ethical standards – adoption of private sector ethics standards – individual self-interest of public servants acceptance of political intereference acceptance of political intereference emphasis on policy rather than management emphasis on policy rather than management failure to “speak truth to power” failure to “speak truth to power” –esp. DM of PWGSC

16. Public Service Ethics importance of the public service ethics regime importance of the public service ethics regime ethics and the context of the Sponsorship Scandal ethics and the context of the Sponsorship Scandal ethics and the Gomery Recommendations ethics and the Gomery Recommendations

17. The Ethical Framework: Post- Sponsorship, Pre-Gomery The Tait Report, A Strong Foundation The Tait Report, A Strong Foundation

19. The Ethical Framework: Post- Sponsorship, Pre-Gomery Values and Ethics Code for the Public Service, 2003 Values and Ethics Code for the Public Service, 2003

24. Gomery Recommendations Re: Ethics Values and Ethics Code Values and Ethics Code – lengthy – public servants cannot easily relate to it – cannot be fully comprehended – does not define terms adequately (e.g. impartiality, loyalty, integrity) – does not provide guidance on how to determine the public interest in a specific situation – does not provide guidance on how to reconcile conflicting values

25. Gomery Recommendations Re: Ethics Recommendation #2: The Government should adopt legislation to entrench into law a Public Service Charter. Recommendation #2: The Government should adopt legislation to entrench into law a Public Service Charter. short, simple statement of essential values short, simple statement of essential values will... will... –signal and symbolize strong political support for the Charter; –promote greater public, parliamentary and media discussion of, familiarity with and respect for Charter; –inform the public about the values for which public servants stand and their rights and responsibilities in relation to politicians; –provide a firm legal basis for promoting and requiring compliance.

27. Assessing the Gomery Ethics Recommendations a comparative assessment a comparative assessment

28. UK Civil Service Code “...revealingly, the introduction of the Code, while hailed as “Whitehall’s Cultural Revolution,” has in fact produced remarkably little change. Only six complaints have been forwarded to the Civil Service Commissioners in the seven years the Code has been in operation and, according to the head of the Civil Service Commission for the UK, “the Code has not seeped into the culture – it has not changed the way people behave or respond.” Sossin, Gomery Research Studies Volume 2, 61 “...revealingly, the introduction of the Code, while hailed as “Whitehall’s Cultural Revolution,” has in fact produced remarkably little change. Only six complaints have been forwarded to the Civil Service Commissioners in the seven years the Code has been in operation and, according to the head of the Civil Service Commission for the UK, “the Code has not seeped into the culture – it has not changed the way people behave or respond.” Sossin, Gomery Research Studies Volume 2, 61

29. Assessing the Gomery Ethics Recommendations a comparative assessment a comparative assessment the broader context – political leadership on values and ethics the broader context – political leadership on values and ethics

30. Political Leadership and Values and Ethics Conflict of Interest Code for Public Office Holders Conflict of Interest Code for Public Office Holders – 1994-2004 – applies to ministers but not to parliamentarians – not enshrined in law – administered by the Office of the Ethics Counsellor appointed by PM (at pleasure) appointed by PM (at pleasure) Bill C-4 Bill C-4 – Code of Conduct for Parliamentarians March 2004 March 2004 – created Ethics Commissioner appointed by Cabinet appointed by Cabinet serves 5 year term during good behaviour (may be removed for cause) serves 5 year term during good behaviour (may be removed for cause)

36. Freedom of Information Promise and Perils March 28th, 2006

38. 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

39. 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

40. 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

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

42. Freedom of Information – The Broad Issues Why FOI? Why FOI? – 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

43. Freedom of Information – The Broad Issues Why not FOI? Why not FOI? – frank advice – relationships with other governments domestic (federal-provincial) domestic (federal-provincial) international international – communication relationships with other organizations – regulatory and security functions – cost

44. ATIA in Canada FOI rights FOI rights – narrow or broad exemptions exemptions – public vs. private organizations – privacy rights – substantive exemptions S.21 – advice S.21 – advice S.23 – solicitor-client privelege S.23 – solicitor-client privelege S.24 – statutory prohibition S.24 – statutory prohibition S.69 – cabinet confidences S.69 – cabinet confidences

45. ATIA in Canada exemptions -- cabinet confidences exemptions -- 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

46. Access to Information FOI rights FOI rights exemptions exemptions implementation implementation – resources – compliance/monitoring – fees – appeals procedure complaint driven vs. proactive complaint driven vs. proactive

47. 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

48. 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

49. 66 68 70 72 74 76 78 80 93/9494/9595/9696/9797/98 Percentage of requests to major federal institutions completed within 60 days

50. 100 200 300 400 500 600 700 93/9494/9595/9696/97 97/98 Substantiated complaints about delay by major federal institutions

51. Office of the Information Commissioner, Annual Report, 1999-2000 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...”

52. Office of the Information Commissioner, Annual Report, 1999-2000 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...”

53. Office of the Information Commissioner, Annual Report, 1999-2000 “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.”

54. Office of the Information Commissioner, Annual Report, 2004-2005 “...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.”

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

58. 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

59. 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

60. 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.

61. 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, 2004-2005

62. 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.

63. 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

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

65. 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.”

66. 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 examptions 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

67. 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.

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

69. Values of the New Public Management

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