Inside job

Today marks two decades since the release of a $3-million report reviewing Canada’s Access to Information Act, perhaps the most ambitious effort ever to revamp the geriatric legislation.

The Access to Information Review Task Force was a huge undertaking, with 14 members, two advisory committees, and 29 commissioned research studies. Announced in August 2000 by then-justice minister Anne McLellan, the group led by government lawyer Andree Delagrave spent about 18 months doing intensive work. The 225-page final report appeared on June 12, 2002, with 139 broad-ranging recommendations.

The tome has been gathering dust on the shelf ever since. And that is perhaps a good thing.

“Once again we are, with this Task Force Report, confronted with the reality that bureaucrats like secrets – they always have; they will go to absurd lengths to keep secrets from the public and even from each other.”

That was the assessment of then-information commissioner John Reid, in his September 2002 rebuttal to the report. Reid, like many critics, called the task force an inside job, run by bureaucrats for the benefit of bureaucrats.

Delagrave did assemble an “external advisory committee” of nine people, to give outsider perspective. But three of them were former deputy ministers. Only two were actual users of the Act, one of them a frequent user. That was me.

As I sat down to the first of a handful of meetings in Ottawa, it immediately became clear that we users were getting short shrift, and that public servants were driving the bus. We were never told what those final 139 recommendations would be, were never asked to comment on them. We certainly had no opportunity to challenge any of them. I saw the final report the same time everybody else did.

Some in the FOI community had suggested I resign from the committee once it became clear that users’ voices were minimized. But I felt I was carrying a torch for my fellow journalists and for our profession. After seeing the report, I realized I had failed miserably. (Full disclosure: I declined all payments for attending the Ottawa meetings. I did accept reimbursement for travel expenses from my base in Halifax, because the task force declined to hold regional meetings, requiring me to travel while others did not.)

The task force report made a minor splash in 2002, drawing much criticism, then faded away. The report’s recommendations for administrative reforms were sometimes lauded, but the proposed legislative changes drew jeers. And like almost every major review of the Act, both inside and outside government, the findings and recommendations were mostly ignored.

I say ‘mostly’, because there were a handful of restrictive recommendations that the bureaucracy pounced on. For one, an amendment was passed in 2006 to protect draft audits. Another amendment that year set a time limit of 60 days for making a complaint to the information commissioner.

One recommendation in particular exemplified the report’s pro-bureaucracy perspective. The task force pressed for an amendment that would protect the notes made by public servants. I was also annoyed that the task force commissioned no studies from Alasdair Roberts, a brilliant political scientist whose empirical research often skewered the poor administration of the Act.

The task force’s work has been relegated to the dustbin of history, but there’s an enduring lesson for today. More than any other piece of legislation, the Access to Information Act requires genuine input on reform from citizens, and not just pro forma box-ticking. After all, it’s a law that is supposed to empower us. Any process that puts public servants in the control room is bound to fail ordinary Canadians.

And that’s exactly what’s happening once more. The Treasury Board launched a top-to-bottom review of the Act in June 2020, putting the bureaucracy back in charge. Public servants have conducted the so-called public outreach, which has been amateurish and poorly informed. So here we go again: the insiders are circling the wagons to preserve secrecy, frustrate users and kill true reform.

June 12, 2022