The unwanted offspring
Historically, Canada drew inspiration for its governmental structures from the British parliamentary model, in which power is concentrated with the prime minister, the Privy Council, and the cabinet. As the name Privy Council might suggest, executive secrecy and information control were long the norm here. Then, in the early 1980s, amid a deteriorating economy, a constitutional crisis, and a scandal in the ranks of the rcmp, the Trudeau Liberals passed a “good government” bill, the Access to Information Act (ati). The act came into force in 1983, permitting Canadians to retrieve information from government files, establishing what information could be accessed, mandating timelines for response, and creating the Office of the Information Commissioner to investigate complaints.
The legislation was controversial, in part because it contained several very large holes. The so-called Mack Truck clause excepted all cabinet documents, including “discussion papers containing background explanations, analyses of problems or policy options, cabinet agendas and minutes, communications between ministers, briefing papers and draft legislation.” Crown corporations, too, were exempt. Though his party supported an open government act in principle, then ndp justice critic Svend Robinson voted against the Liberals’ offering, arguing that it was “useless and even more damaging than no bill.” On the other side of the aisle, justice minister John Crosbie sneered that the ati law would be a tool for “mischief-makers” who would “embarrass political leaders and titillate the public.” The first information commissioner, Inger Hansen, warned early in her term that the act was in danger of becoming the “unwanted offspring in Ottawa.”
That said, freedom of information was not universally embraced at first in the US either, but it gained traction because of the country’s diffusion of power among the legislative, judiciary, and executive branches. In the 1950s, a frustrated Democratic Congress, seeking access to Eisenhower’s records, began pushing for a transparency law, with strong backing from the media. Then, in the mid-1960s, a young Republican congressman named Donald Rumsfeld, annoyed that the Johnson administration was withholding information, began fighting for the same. “That was before he never met a secret he didn’t love,” says Dan Metcalfe. Indeed, by 1974 Rumsfeld, in his capacity as Gerald Ford’s chief of staff, was advising the new president to veto a post-Watergate amendment to the act that mandated judicial review of executive secrecy claims, among other improvements. Congress ultimately voted to override the veto, crystallizing a strong, if imperfect, act.
In Canada, the adequacy of the act has been in question from the outset, and it hasn’t improved much since the 1980s. “Compared with the US and Britain,” says University of Ottawa law professor Amir Attaran, who has worked on several recent high-profile cases involving transparency issues, “Canada’s system of disclosure is far inferior.” A 2008 study by the caj and the Canadian Newspaper Association actually ranked this country’s access law behind those of India, Mexico, and Pakistan. Among the most significant problems the report cited were the information commissioner’s inability to compel the government to release documents, and the exclusion from the act of about a hundred important government-affiliated bodies, including Canadian Blood Services and the Nuclear Waste Management Organization. The study further found fault with Section 21 of the act, which gives ministers broad rights to withhold records on the internal decision-making processes, deliberations, and advice of government.
A different report, issued that same year by the Public Policy Forum, traced the ways in which successive governments since Trudeau’s have allowed the ati act to decay. In practice, ati offices within federal bureaucracies have become “isolated, under-resourced, [and] under-professionalized,” succumbing far too often to a mindset that says, “when in doubt, cross out.” The ati law has spawned such fear and contempt in Ottawa that some civil servants now communicate orally or use sticky notes to avoid creating a trail. These approaches speak to the overarching need of Canadian bureaucracies to control their information at all costs, lest something damaging come out on the floor of Parliament or in the media. One tactic in particular — delay, delay, and delay — has created such a massive logjam of requests that it threatens to crash the entire access system.
The amber-light district
One of the most important provisions of the ati act requires the feds to release information within thirty days, though it allows for reasonable extensions when necessary. For sensitive requests, delays are common, however, and high-profile agencies such as the Privy Council Office and the Department of Foreign Affairs now routinely rely on extensions of four to nine months, with reports of four years for some departments — plenty long enough to quash many stories being written on daily deadlines.
Filing an ati request is supposed to be straightforward: fork over $5 and petition the appropriate government agency to release specific files. Requests can be submitted by any Canadian seeking the kind of hard information rarely found in the press releases and talking points favoured by communications personnel and high-ranking officials. In the past few years, the law has been used, for example, by the Vancouver Sun to show how a suspected carcinogen banned in pesticides is still available in some bottles of lice treatment shampoo used mainly on children. Another recent ati-based report by the Canadian Press revealed that abandoned explosives from bygone military training exercises (including World War II–era bombs, anti-tank mortars, and even torpedoes) might be scattered across more than two dozen native reserves countrywide.
Delays in fulfilling requests are not always tactical, of course. Government information storage methods can be outdated and Byzantine, petitions are not always phrased with enough precision or directed to the right place, and departments are often too understaffed or undertrained to respond expeditiously. However, the system is oriented not toward overcoming such hurdles, but toward lessening the political risk requests might entail. “Everything in the bureaucracy works against the release of information,” says Ross Hodgins, a senior adviser with the information commissioner’s office.
When an ati petition is filed, it initially goes to an access coordinator. The ati officer’s job is to work with the department holding the documents, in order to decide how much information must be released. When amber lighting happens, the request works its way to the minister’s office, where it stalls until approval is granted — or not. When Hodgins worked as an adviser with the Treasury Board Secretariat, he often dealt with access coordinators. “They were very much under stress to redact information that could be politically embarrassing,” he says.
The sponsorship scandal was a case in point. In 2000, Globe and Mail reporter Daniel Leblanc submitted an ati request for the budget of a federal sponsorship program, based on a tip from an insider. Anita Lloyd was the access coordinator tasked with shepherding the document through the bureaucracy. “Anita was put under tremendous pressure because the information she wanted to release was politically embarrassing,” Hodgins says. But Lloyd refused to back down. On the stand, she told Justice Gomery that withholding the information “would be misleading the applicant... I thought it wasn’t legal and I thought it wasn’t ethical.”
By 2007, things were so out of hand that a high-ranking official tried to suppress documents showing that then rcmp commissioner Giuliano Zaccardelli had billed the force $80 for a shot of cognac. “If the rcmp does not respect the Access to Information Act, who will?” asked Christian Picard, the access coordinator who fought to release the brandy-stained documents, during his official testimony in the matter. “I fought epic battles with senior managers. That was not always easy within a paramilitary organization like the rcmp.”