30 years of ATI: And it's getting worse

Canada has had a federal Access to Information law for nearly 30 years, long enough for University of Laval political scientist Anne Marie Gingras to review the act and the ongoing tensions between governments that do not want to release information to citizens and citizens who believe governments have a duty to do so.

Gingras’ reviews the Act in the essay, “Access to information: An asset for democracy or ammunition for political conflict, or both?” published in the latest issue of Canadian Public Administration.(It’s behind a very expensive paywall but your local library ought to be able to dig this up for you).

Gingras notes that judges, academics, journalists, and so on are all united in the belief that more information about government’s activities is an unqualified Good Thing:

In Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403 [pdf], Justice LaForest wrote, “The overarching purpose of access to information legislation is to facilitate democracy by helping to ensure that citizens have the information required to participate meaningfully in the democratic process and that politicians and bureaucrats remain accountable to the citizenry.” 

But governments have failed us in this regard ever since the introduction of the Act in 1983. This is Gingras’ view and, as a frequent ATI user, this is my view as well.

Since the 1980s, although the state apparatus of liberal democracies has improved with institutional counter-powers acting as transparency bodies, another trend has emerged. The centralization of policy making and decisions by a central government apparatus has intensified in a context in which information is increasingly seen as ammunition in political struggles, meaning that the less opponents know about an issue, the more the government can proceed with minimal dissent. Leaks in the press and the rise of the twenty-four hour news cycle in the 1990s have also become major concerns for the government’s information services. 

… In Canada, central agencies of the federal government – the Privy Council Office (PCO), the Treasury Board Secretariat (TBS) and the Department of Finance – began to extend and exert more power over line and staff departments in the 1980s.

All experts and observers agree that a culture of secrecy has prevailed despite implementation of the ATIA. [Here, Gingras cites 12 studies or reports going back to 2003, three years before the Harper Tories took office.]

In 2001 [for example] the Liberal government [of Jean Chretien] issued a formal notice which deemed many ministerial advisors exempt from application of the ATIA and engaged the Information Commissioner in prolonged and costly litigation to attain judicial support for its position. Informal modes of resistance were established, all under the centre’s closed control. As with every administrative endeavour, leadership plays a major role in access-to-information performance. 

Among these informal practices are the use of a Blackberry, the development of an oral culture (a problem also raised by the Information Commissioner), and the destruction of documents. In 2005, the Gomery Commission, examining the sponsorship scandal, brought to light how access to information was obstructed. Documents were destroyed at the Department of Public Works, and a posteriori directives were crafted to make it look as if the rules had been followed. Inquiries into the Somalia and contaminated blood scandals also revealed destruction of administrative documents.

That said, Gingras makes the case the it has only gotten worse under the current prime minister, Conservative Stephen Harper, despite promises on the campaign trail by Harper that he would improve information access and transparency:

Harper … in November 2005, … said, “Information is the lifeblood of democracy. Without adequate access to key information about government policies and programs, citizens and Parliamentarians cannot make informed decisions, and incompetent or corrupt governance can be hidden under a cloak of secrecy”. In April 2006, three months after taking power, Harper had changed his mind regarding access to information. In a special report to Parliament, Information Commissioner John Reid wrote, “All of the positions the government now takes in the discussion paper are contrary to the positions the Conservative Party took, and the leader espoused, during election campaign.”

… The Privy Council Office’s access-to-information performance had been poor under the Liberal government, but the Information Commissioner’s data show that it got worse when the Conservatives came to power.

Ironically, though;

…The current access-to-information system needs to be repaired, and the 2005 electoral platform of the Conservative party could be used as a guideline

Gingras’ essay is decent enough but it reads very much like the work of someone who has never filed an ATI request herself (If she has, she does not mention it in the piece) and relies heavily on secondary sources instead of doing some original research and investigation. As someone who files plenty of ATI requests every month, I think she misses out on some of more insidious ways in which the current government has worked against the ATI process.

For example, the Department of Foreign Affairs and International Trade (and possibly other departments) are now trying to frustrate ATI requests by requiring “preparation fees.” I complained about this to the Information Commissioner, the Commission saw the sense of my reasoning, and called on Foreign Affairs Minister John Baird to get his department to modify its practices. He told Commisioner Legault to forget about it.

I responded in a column across our chain that began this way: “Only in the odd, upside-down, un-reality world in which government bureaucrats live could the idea flourish that they are doing a better job by not doing their job at all.”

University of Ottawa law professor Amir Attaran has fought similar battles with DFAIT. Gingras may have wished to review some of Attaran’s attempts (like this one) to get the Federal Court a little more excited about the ATIA.

More from this blog on ATI:

• Another damning report on Canada’s federal access-to-information performance
• Openly mocked: How federal politicians have imposed an information blackout