Venting at a Commons committee

This blog is a longer version of remarks I made on Dec. 7, 2022, as a witness at a meeting of the House of Commons Access to Information, Privacy and Ethics committee (ETHI), which is studying the Access to Information Act and its administration. You can also watch the video of testimony here; a transcript of the testimony is here; and here’s a Globe and Mail article about the hearing.

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This inquiry, by my count, is at least the 16th broad review of the Access to Information Act since the legislation was passed in 1982. In this country, we love to study transparency laws thoroughly to ensure we don’t actually get around to fixing them.  

I’m an independent journalist with long experience of using the Act. I speak from a journalist’s perspective, though my frustrations with the Act mirror those of other users, including Indigenous peoples, environmentalists, immigration specialists, civic activists – even backbench MPs.

Journalists have been abandoning access to information in droves lately. The desertion began before COVID hit. The pandemic chased away the stragglers.

Less than five per cent of all requests filed in 2020-21 came from the media. That’s half the level of five years earlier, and a third that of a decade ago.

Why are reporters giving up?

Because, as study after study has shown, turnaround times are terrible and getting worse. MPs who passed the law in 1982 expected most requests could be answered in a month, with some exceptions. Since then, the reality for journalists is the reverse. Requests answered in 30 days are the rare exception, with most taking longer, far longer.

Bureaucrats also now realize they face a much bigger blowback from releasing information than from withholding it. And the law provides them a rich menu of excuses to keep things buried.

So when stale-dated access documents finally do arrive on a reporter’s desk, they’ve been picked clean of meaningful content.  

Imagine telling your editor that you won’t know whether you’ll have an FOI-based story for at least six more months, maybe a year or longer. Meanwhile, the rest of the newsroom reporters are scrambling to get a scoop out before noon.

The editor’s raised eyebrow says it all: why are you wasting my time?

The news business has been caught in a death spiral for 15 years. Journalists are being thrown overboard to lighten sinking ships. Sizable communities no longer have local reporters watching for fraud in town councils.

At the same time, governments are ever more bloated with spin doctors, social-media gurus, image consultants.

It’s not a fair fight. And it’s not just journalists down on the mat. Democracy is getting a bloody nose as well.

Let’s consider some advice for reform already given to the committee.

You’ve been told that the law needs a reverse onus – information should be released unless the government can show that it shouldn’t. But the law already has reverse onus, in Section 2(a): “government information should be available to the public …  [and] necessary exceptions to the right of access should be limited and specific.” New words saying the same thing in a different way won’t save the day.

You’ve been told the information commissioner should become a “transparency czar,” with broader responsibilities. But the commissioner can’t even discharge her current mandate. She takes too long to resolve complaints, as much as 10 years. Let’s not burden her with more responsibilities until she can deliver on the existing ones.

You’ve been told the law should apply to ministers’ offices and the office of the prime minister. We all thought it already did – until a disappointing Supreme Court ruling in 2011 said it didn’t. Users like myself pressed for an amendment to get ministers’ offices into the Act.

Then a breakthrough: Justin Trudeau in the 2015 election campaign promised to do just that: “We will ensure that Access to Information applies to the Prime Minister’s and Ministers’ offices …”

But we were duped. The Liberal government in 2019 changed the Act merely to require pro-active disclosure of just a few ministerial documents. The government chose which kinds of documents it would release, and the timetable for their release. The 2015 election promise was broken, despite the government’s claim otherwise.

You’ve also been told that pro-active release of more documents is a solution to a dysfunctional access system. If government pushes out more documents, citizens won’t need to pull them using access requests.

This is a false hope. Governments may willingly release downstream documents that are innocuous and safe. But upstream documents tied to decision-making will never be made pro-actively available unless, of course, they’ve been scrubbed clean. That’s why we have freedom of information laws, so citizens aren’t stuck with records that have been sanitized in government’s interest.

My own prescription for reform is to stay clear of long checklists, where too many proposals will only trigger access-to-information study No. 17, or No. 18 or No. 19.

Instead, I suggest focusing on a few key changes:

1.     Pull down the brick wall protecting cabinet records. Limit the protection period to 10 years. Stop withholding records that have nothing to do with deliberations, that are factual or background. Give the information commissioner access to cabinet records so she can review any decision to withhold them.

2.     Put a time limit on the information commissioner’s investigations, say six months. If she hasn’t finished by then, let complainants go to court.

3.     Set tougher limits on a department’s ability to delay. If an institution blows past a deadline, for example, take away their authority to claim exemptions. If a request requires consultations with another department, restrict that department’s timeframe for a response – and take away their right to invoke exemptions if they violate their deadlines.

4.     Define “advice” in the law much more narrowly, so departments can’t use it as a catch-all for withholding information.

Just getting these few things done would start us down the road to reform. It would also give a dwindling number of journalists a better shot at holding governments to account.

Dec. 7, 2022