Sanitized

‘Pro-active disclosure’ is one of those hollow phrases politicians toss around to make themselves sound open, honest and forthright.

It’s an insidious concept because it suggests officials are diligently anticipating citizens’ demands for government information, when it’s often just a ruse to undermine information rights.

Case in point: the ‘pro-active’ publication of ministerial briefing books.

New ministers in the federal cabinet each get a briefing book, to quickly bring them up to speed on operations, responsibilities and urgent issues in their departments. These officials, after all, have to sound competent in the cut-and-thrust of Question Period in the House of Commons.

Briefing books are written by public servants, and can be requested by citizens under the Access to Information Act. Journalists often ask for them.

The Trudeau government, in an effort to burnish its transparency credentials, passed amendments (Bill C-58) in 2019 to the Access to Information Act to ‘pro-actively’ publish ministerial briefing books within 120 days of a minister’s appointment. Journalists were asking for them anyway, so why not get ahead of the curve?

How has that worked out? Judge for yourself.

There’s a sheriff in place to police formal requests made under the Access to Information Act. The job of the information commissioner of Canada is to ensure departments obey the law. Aggrieved requestors can go to her with complaints and get a fair hearing.

But there’s no sheriff for pro-active disclosure. No independent watchdog is responsible for monitoring whether departments adhere to self-imposed deadlines, for example. Some departments violate those due dates. The government has lately claimed COVID-19 as an excuse for missing its own deadlines.

When a department denies a citizen information requested under the Access to Information Act, it must – under the law – explain exactly why, citing the specific section of the law that authorizes a redaction. Again, the information commissioner can independently verify whether a department appropriately applied the law, and can make binding orders to correct violations.

Not so under the pro-active regime created by Bill C-58. Departments redact information in accordance with the Access to Information Act, but need not cite what sections of the law they rely upon. Nor can the information commissioner ascertain whether those censoring decisions comply with the legislation. The commissioner has no jurisdiction over the pro-active regime. It’s a just-trust-us protocol. In the case of ministerial briefing books, large chunks of text routinely disappear, replaced only by [*]. Was that advice? Personal information? A cabinet confidence? Or was it just politically embarrassing?

So pro-active disclosure is loosey-goosey. No hard deadlines, no transparency, no accountability, no independent review of decisions. The Access to Information Act was passed in 1982 to bring those safeguards into play, giving citizens information rights so they no longer had to make do with sanitized handouts. But the pro-active regime is regressive, erasing the hard-won accountability imposed by the Act.

Mandated pro-active disclosure is insidious in another way. Public servants create ministerial briefing books and other such documents in the full knowledge the material must eventually be made public, by law. This fish-bowl factor inevitably impacts content and phrasing choices, and effectively sanitizes documents in advance – again reverting to the pre-1982 period when governments enjoyed unfettered control of information flows. So pause a moment the next time you hear a politician boasting about pro-active disclosure. It may be a con job.

Feb. 27, 2022