Waiting for years: Canada's oh-so-broken access to information system

Canada’s Access to Information (ATI) system was broke long before Stephen Harper became prime minister in 2006 but the Conservatives, like the Liberals before them, have failed to fix the system that gives Canadians the right of access to records the government holds, creates, and collects on all our behalf. [For more on our broken ATI system, see “30 Years of ATI: And It’s Getting Worse”]

Indeed, despite promising to fix the ATI system in its 2006 campaign, the Conservatives have made it worse. Great example? Over at the Department of Foreign Affairs and International Trade, John Baird as much thumbed his nose at the Information Commissioner of Canada — an officer of Parliament, no less — when she told him earlier this year, in response to a complaint that I had made, that the steps his bureaucrats were taking to prevent the release of documents was flat out wrong, likely against the law, and that he ought to tell his bureaucrats to change their ways. [See: “Foreign Affairs Minister Ignores Information Commissioner’s Recommendations”]

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The Conservative Promise

Here’s what the Harper Conservatives promised Canadians they would do if they won government in 2006. It acted only on the third item in this list.

A Conservative government will:

• Implement the Information Commissioner’s recommendations for reform of the Access to Information Act.
• Give the Information Commissioner the power to order the release of information.
• Expand the coverage of the act to all Crown corporations, Officers of Parliament, foundations, and organizations that spend taxpayers’ money or perform public functions.
• Subject the exclusion of Cabinet confidences to review by the Information Commissioner.
• Oblige public officials to create the records necessary to document their actions and decisions.
• Provide a general public interest override for all exemptions, so that the public interest is put before the secrecy of the government.
• Ensure that all exemptions from the disclosure of government information are justified only on the basis of the harm or injury that would result from disclosure, not blanket exemption rules.
• Ensure that the disclosure requirements of the Access to Information Act cannot be circumvented by secrecy provisions in other federal acts, while respecting the confidentiality of national security and the privacy of personal information.

Source: Stand Up For Canada: Conservative Party of Canada Federal Election Platform 2006, pp 12-13

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There is little, sadly, that the Information Commissioner can do to force a government to change. The Commissioner’s chief power is the power of persuasion and shame, although, as we saw with Baird and DFAIT, the Tories appear to have no shame when it comes to a commitment to living up to both the spirit and the letter of our Access to Information Act.

Still, naming and shaming is the only power all of us — Information Commissioner included — have when it comes to trying to improve this system.

And that’s why I (and, I suspect, other frequent ATI users) end up playing the kind of bizarre bureaucratic games I am about to describe.

Here’s the upshot: On April 30, 2012 I received some records from Industry Canada that I had requested on June 27, 2008. Though I was in receipt of the records, I complained to the Information Commissioner that the long delay — 1,407 days compared to the statutory requirement to provide records in 30 days —  was tantamount to Industry Canada refusing to release the records. So though I had the record in my hot little hands, I was going complain that Industry Canada never game them to me. I know. Sounds weird. But that’s the only recourse a requester has to make the system work better.

The Information Commissioner dutifully investigated my complaint (after phoning me to make sure that I was complaining about not receiving the records though I had actually received them) and, on July 6, sent me a letter informing me that my complaint was “well-founded.” That’s it, though. The Information Commissioner can do no more than that. There’s no knuckles that can be rapped, no fines that may be levied, no sanctions at all.

Well, that last bit — no sanctions at all — isn’t entirely accurate. At the end of every year, the Information Commissioner will compile her annual report and publish some “report cards” on how individual government departments are doing when it comes to fulfilling their legal responsibilities under ATI laws. It’s my hope that my complaint — and the finding that it was “well-founded” — will show up as a black mark against, in this case, Industry Canada and that if enough black marks show up on Industry Canada’s record, someone, somewhere might fix things. So that’s the sanction I sought and received. Someone gets a black mark because of my complaint. (Notably, Industry Canada’s most recent report card, done in 2008-09 showed a “deemed refusal” rate of 8.7 per cent and that, overall, the InfoCommish thought the department was doing a good job, giving it 4 out of 5 stars.)

And in this case, “fixing” the ATI function at Industry Canada does not seem to require a major attitude shift as is the case with DFAIT. Industry Canada, like so many of the government departments I deal with on ATI issues, needs more resources, namely more people and more money, to handle ATI requests. More money and more people is ultimately an issue for the department’s deputy minister and minister. They decide how to allocate their department’s budget and they need to put more money into this important function.

Here’s what happened to my request:

I asked on June 27, 2008 for three weeks worth of memos and e-mail “authored by or received by” a senior bureaucrat — a director general —  in one of Industry Canada’s policy branches. This is not asking for the moon and, when I finally got records, it amounted to all of 295 pages.

Under the law, Industry Canada should have provide me with these records by July 28, 2008. Still, the law is flexible enough that ATI advisors within the department can claim “an extension” if they need more time to find and/or process the documents. (See Section 9 of the Act) ATI advisors  must be able to justify the length of the extension. In my case, an ATI advisor said they would be claiming an extension of 140 days beyond the 30-day period. So now, at a minimum, I would be looking at 170 days. So records I’d asked for in late June, the department was promising to provide to me in early December of 2008. Remember: I would not actually get them unit the middle of 2012.

So what happened? How did it take Industry Canada four years to process less than 300 pages of garden-variety records?

The Information Commissioner, in its investigation has some answers.

First, on both July 21, 2008 and again on August 11, 2008, the department put my request “on hold”. ATI users will often get phone calls from the people processing their files asking that the file be put “on hold” for this or that reason. Putting the file “on hold” means that the user and the department agree to essentially stop the statutory clock.

“Our investigation revealed that the two hold which [Industry Canada] levied  on your requests were invalid. Both holds were placed on the file as a result of planned employee absences, such as vacation or during holidays. The Act does not recognize this as a valid reason to delay processing of a request, even if consents from requesters are received,” Information Commissioner investigator Carmen Garrett wrote to me.

I did not know that. And I’ve agreed over the years to dozens of “holds” while my processor went on holiday. Sorry. Can’t do that anymore. Clearly, the department has a responsibility to find the appropriate staffing levels to account for “planned employee absences.”

As for the 140-day extension, Industry Canada claimed it for the reasons most often cited by any ATI advisor at any department for delays: Because the records I sought involved bureaucrats at other government departments or involved issues that might be important to other government departments, they  are required to “consult” with those departments. The InfoCommish investigation discovered that, in this case, Industry Canada had to consult with five other “government institutions.”

Why do they consult? Government censors can black out information on the records you’ve requested for all sorts of reasons — disclosure of a trade secret, information was passed on in confidence from an aboriginal government, protection of the privacy of someone who doesn’t work for the federal government, etc. — but the all-time favourite has to be Section 69 (1) which I will quote for you:

This Act does not apply to confidences of the Queen’s Privy Council for Canada, including, without restricting the generality of the foregoing,
(a) memoranda the purpose of which is to present proposals or recommendations to Council;
(b) discussion papers the purpose of which is to present background explanations, analyses of problems or policy options to Council for consideration by Council in making decisions;
(c) agenda of Council or records recording deliberations or decisions of Council;
(d) records used for or reflecting communications or discussions between ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy;
(e) records the purpose of which is to brief ministers of the Crown in relation to matters that are before, or are proposed to be brought before, Council or that are the subject of communications or discussions referred to in paragraph (d);
(f) draft legislation; and
(g) records that contain information about the contents of any record within a class of records referred to in paragraphs (a) to (f).

This is the well-used “cabinet confidences” clause and basically it means that anything a cabinet minister is talking about with his or her colleagues — or even likely to be talking about — can be shielded from the ATI process. And remember: Back in 2006, the Conservative promised that it would allow the Information Commisioner to rule on whether these “cabinet confidence” exemptions were being appropriately applied. Six years later — now with a majority government — there’s no indication the Conservatives will honour that early commitment to transparency and accountability.

The only government department that invoke the “cabinet confidence” exemption is the Privy Council Office, the bureaucratic arm of the Prime Minister’s Office. So, as I was asking for some records at Industry Canada that had to do with some policy options, inevitably Industry Canada would have had to “consult” with PCO to see if what I wanted might involve a “cabinet confidence” and would therefore be shielded from my prying eyes.

Now here’s where we get into some monster delays. PCO is the only government department that can adjudicate on “cabinet confidences” and since the “cabinet confidence” Sec. 69 clause is so vague and broad, it gets tons of “consultation” requests from every government department. It becomes the bottleneck for hundreds of ATI requests. As result, PCO has the worst record in government when it comes to turnaround time on ATI requests. Again: Should the Clerk or the prime minister himself think this was an important function, enough money and staff would be applied to PCO’s ATI office to speed up turnaround times.

But back to my request: Despite indicating that it would have to consult with five other government institutions, the Information Commissioner found that it never did so! And then, on April 6, 2012 — nearly four years after I’d made my request – I get a call from an Industry Canada ATI advisor advising me that I could be facing more delays while I wait for these consultations (though I did not know at the time Industry Canada had not even started them). One of the institutions still to be consulted was PCO . So, I did what I now do almost any time I learn that an ATI request is off for a PCO “consultation”, I “re-scoped” my request by essentially letting an Industry Canada censor black out any part of the records I wanted that Industry Canada thought might be a cabinet confidence. Remember: Only PCO can actually say for certain whether this bit of info or that bit of info is, in fact, a cabinet confidence, but PCO’s delays (and their heavy use of the censor’s pencil) have worn me down to the point that I simply give up and waive my right to inspect records that might, just might, contain a cabinet confidence.

On that April 6, 2012 phone call I also tried to speed up the processing of my long-overdue request by agreeing to final or most recent drafts of any memos that might have popped up.

And now the sad story of neglect as investigator Garrett at the Information Commissioner’s office recounts the reason for the delay for my June 2008 request:

Our investigation determined that although over 1400 days were taken by IC [Industry Canada] to respond to your request, much of that time was not used for processing. In fact, our review of the processing file determined that active processing of your request … accounted for only 61 days.

IC initially made good progress on the file; however, after notifying you of the time extension [of 140 days] on July 21, 2008, your file remained largely inactive for long periods of time, the lengthiest being 675 days from Dec. 22, 2008 to Oct 28, 2010 [nearly 2 years!! – Akin]

The sad thing is: This is not an aberration. It happens all the time! Some of the more egregious delays:

• On May 20, 2008, I asked Industry Canada for three weeks worth of documents produced by a director in the department. I got them 1,396 days later on March 16, 2012.
• On Jan 5, 2008, I asked Industry Canada for some information about how Canadian businesses were benefitting from military procurement. I got those records 1,536 days later on March 20, 2012.
• On Sept 11, 2007, I asked Industry Canada for some material on the issue of “lawful access”, the ability of police and government to intercept your Internet communications. I got that information 1,578 days later on Jan 6, 2012.
• On Feb 8, 2008, I asked DFAIT for a list — just a list — of documents put on the International Trade Minister’s desk during the month of January and got that four-page list 1,446 days later on Jan 24, 2012.
• On Oct 31, 2008, I asked for what just about every reporters asks for after for a new cabinet is sworn in: The Briefing Books given to each minister by the department to bring them up to speed on current issues; describe key officials in the department; show them where the bathroom is, etc. The Department of Finance provided me with Minister Flaherty’s briefing books 552 days later on May 6, 2010. The briefing books for the guy who was Transport Minister after the 2008 election — John Baird — were provided to me 850 days later on Feb 28, 2011, long after Baird was shuffled out of that job in August 2010 to become Government Leader in the House of Commons.