Cracked
“There is a crack, a crack in everything. That’s how the light gets in.” - Leonard Cohen lyric in the song “Anthem,” from the 1992 album The Future.
This is the story of a crack where the light got in.
In 1980, the Liberal government of Pierre Trudeau introduced a bill to create the Access to Information Act. The bill included cabinet documents in its coverage.
In May 1982, Trudeau got cold feet. Worried about 1981 court decisions in Alberta and British Columbia that undermined cabinet secrecy, his government retreated. Cabinet documents now would be untouchable for 20 years after their creation.
The revised bill with the cabinet protections became law a month later – though with a crack.
Cabinet “discussion papers” containing background, analysis or policy options could be released under the Act four years after they were created – or sooner if the cabinet decisions had been made public.
The Access to Information Act came into force in 1983. But a curious thing happened: discussion papers were eliminated in a 1984 shakeup of the cabinet document system. So the crack closed soon after a law appeared that allowed citizens a peek inside cabinet.
Over the following years, background and analyses were sprinkled throughout various cabinet documents, but discussion papers as separate items were gone.
In 1998, a private company asked under the Act for cabinet records related to a decision affecting its product. They were refused. They complained to the information commissioner, who in 1999 said that even though there was no longer such a thing as a discussion paper, any relevant background, analysis or policy options that a discussion paper would have contained must be released.
The case went to court, and eventually the Federal Court of Appeal agreed with the commissioner. The appeal court ruled in 2003 that while the rubric of discussion papers was gone, the substance remained. If there were any significant sections of cabinet documents containing background and analyses, they must be released. The crack was open again.
Fast forward to 2012, and cabinet tinkers were at it again. In a major revamp of the cabinet document system, background and analysis was eliminated from all Memoranda to Cabinet or MCs, purged entirely. The crack was closed again. The 2012 cabinet-record system remains in place today, and no light can get in.
There may, however, be a weak spot. The 2012 reorganization allows for the occasional use of an “aide-mémoire … as a discussion paper when a Minister is seeking policy development input on a complex issue or in support of a proposal set out in an MC.”
So far as I am aware, no one has tested in court or elsewhere whether an aide memoire is the equivalent of a discussion paper as cited in the original 1983 legislation. Perhaps someone will poke that weak spot, and open a crack. We could use the light.
Feb. 10, 2022
