Freedom of Information

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

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

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

6. Freedom of Information – The Broad Issues • Why FOI? • rights of citizens • right to access • 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” • gives rise to unfounded conspiracy theories • high level of mistrust of government • enforcing sound public policy • secrecy shields internal analysis from scuritny of outside experts • result – bad policy advice

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

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

9. Freedom of Information – The Broad Issues • Why FOI? • rights of citizens • improving outcomes • 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 • secrecy shields internal analysis from scuritny of outside experts • result – bad policy advice

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

11. ATIA in Canada – The Broad Issues • 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 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

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

13. ATIA in Canada – The Broad Issues • 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

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

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

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

17. 80 Percentage of requests to major federal institutions completed within 60 days 78 76 74 72 70 68 66 93/94 94/95 95/96 96/97 97/98

18. 700 600 500 400 Substantiated complaints about delay by major federal institutions 300 200 100 93/94 94/95 95/96 96/97 97/98

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

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

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

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

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

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

25. 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.” • “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.” • “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.”

26. 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.” • “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.”

27. Strategies of Resistance • malicious non-compliance • adversarialism • amberlighting

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

31. 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. • “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

32. Strategies of Resistance • malicious non-compliance • adversarialism • amberlighting • disclosure of identities of requestors • pressure on ATIA officials • 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.

33. Strategies of Resistance • malicious non-compliance • adversarialism • neglect/maladministration

34. Strategies of Resistance • malicious non-compliance • adversarialism • 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

35. Explaining Government Resistance • media use of ATIA • more expert • more aggressive • more frequent/visible • example – uncovering the Sponsorship Scandal • Daniel Leblanc (Globe and Mail) • 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.

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

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

38. Gomery Recommendations re: FOI • mandatory record-keeping • earlier effects of FOI on record-keeping

39. Gomery Recommendations re: FOI • 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.”

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

41. Federal Accountability Act, 2006? • 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.  • 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 • 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. • 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.

43. Implications of FOI Reform? • criticisms... • shifting values?

44. Values of the New Public Management

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

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