freedom of information promise and perils (cont’d) march 30th, 2006

Freedom of InformationFreedom of Information

Promise and Perils (Cont’d)Promise and Perils (Cont’d)

March 30th, 2006March 30th, 2006


basic description of the FOI regimebasic description of the FOI regimeFOI and the context of the Sponsorship FOI and the context of the Sponsorship

ScandalScandalFOI and the Gomery RecommendationsFOI and the Gomery Recommendations

Trends – mid-1990s and early 2000sTrends – mid-1990s and early 2000s

trendstrends– slower processing timesslower processing times– more exempted materialmore exempted material– more complaintsmore complaints

66

68

70

72

74

76

78

80

93/94 94/95 95/96 96/97 97/98

Percentage of requests tomajor federal institutionscompleted within 60 days

100

200

300

400

500

600

700

93/94 94/95 95/96 96/97 97/98

Substantiated complaintsabout delay by majorfederal institutions



possible explanations?possible explanations?



possible explanations?possible explanations?– change in the way government “does business”change in the way government “does business”



possible explanations?possible explanations?– change in the way government “does business”change in the way government “does business”– costscosts



possible explanations?possible explanations?– change in the way government “does business”change in the way government “does business”– costscosts– government counter-attack against FOIgovernment counter-attack against FOI

Office of the Information Commissioner, Office of the Information Commissioner, Annual Report, 1999-2000Annual Report, 1999-2000

notes...notes...– ““The government’s palpable animosity towards the The government’s palpable animosity towards the

"right" of access (it would prefer to dole out "right" of access (it would prefer to dole out information by grace and favour in well-digested information by grace and favour in well-digested mouthfuls)...”mouthfuls)...”

– ““...the stubborn persistence of a culture of secrecy in ...the stubborn persistence of a culture of secrecy in Ottawa...” Ottawa...”


notes...notes...– ““The government’s The government’s palpable animositypalpable animosity towards the towards the

"right" of access (it would prefer to dole out "right" of access (it would prefer to dole out information by grace and favour in well-digested information by grace and favour in well-digested mouthfuls)...”mouthfuls)...”

– ““...the stubborn persistence of a ...the stubborn persistence of a culture of secrecyculture of secrecy in in Ottawa...” Ottawa...”


““There has been a worrisome hardening of attitudes and increased resistance to the There has been a worrisome hardening of attitudes and increased resistance to the Commissioner’s investigations as a result. When the Commissioner’s subpoenas, searches, Commissioner’s investigations as a result. When the Commissioner’s subpoenas, searches, and questions come too insistently or too close to the top, the mandarins circle the and questions come too insistently or too close to the top, the mandarins circle the wagons.”wagons.”

““Two years into this Commissioner’s term and the backlash has become tangible. [...] The Two years into this Commissioner’s term and the backlash has become tangible. [...] The Treasury Board officially discouraged public servants from bringing concerns about Treasury Board officially discouraged public servants from bringing concerns about wrongdoing under the wrongdoing under the Access ActAccess Act, to the attention of the Information Commissioner., to the attention of the Information Commissioner.

““For its part, the Privy Council Office (PCO) decided to resist and challenge almost all of For its part, the Privy Council Office (PCO) decided to resist and challenge almost all of the Commissioner’s investigative powers.”the Commissioner’s investigative powers.”

““Finally, there is a troubling "personal" aspect to the government’s counter-attack. The Finally, there is a troubling "personal" aspect to the government’s counter-attack. The future careers in the public service of the Commissioner’s staff have, in not so subtle future careers in the public service of the Commissioner’s staff have, in not so subtle terms, been threatened. The Commissioner has a fixed, seven-year term with the same terms, been threatened. The Commissioner has a fixed, seven-year term with the same insulation from retribution or influence as does a superior court judge. But the insulation from retribution or influence as does a superior court judge. But the Commissioner’s staff does not have those protections. This development is inexcusably Commissioner’s staff does not have those protections. This development is inexcusably unprofessional and profoundly troubling. If members of the public service come to believe unprofessional and profoundly troubling. If members of the public service come to believe that it is career suicide to work, and do a good job, for the Information Commissioner, the that it is career suicide to work, and do a good job, for the Information Commissioner, the future viability and effectiveness of the Commissioner’s office is in grave jeopardy.”future viability and effectiveness of the Commissioner’s office is in grave jeopardy.”

““In sum, then, there is a full counter-attack in progress against the office of the Information In sum, then, there is a full counter-attack in progress against the office of the Information Commissioner.”Commissioner.”


““...governments continue to distrust and resist the ...governments continue to distrust and resist the Access to Access to Information Act Information Act and the oversight of the Information Commissioner. and the oversight of the Information Commissioner. Vigilance, by users, the media, academics, the judiciary, Vigilance, by users, the media, academics, the judiciary, information commissioners and members of Parliament, must be information commissioners and members of Parliament, must be maintained against the very real pressures from governments to take maintained against the very real pressures from governments to take back from citizens, the power to control what, and when, back from citizens, the power to control what, and when, information will be disclosed.”information will be disclosed.”

““There continues to be a deep distrust of the There continues to be a deep distrust of the Access to Information Access to Information Act Act at all levels in government and, most regrettably, in Parliament. at all levels in government and, most regrettably, in Parliament. In particular, the vigor of the Act’s exemptions, to protect In particular, the vigor of the Act’s exemptions, to protect information which should be kept secret, is doubted. As a result, information which should be kept secret, is doubted. As a result, whenever governments propose laws which involve sensitive whenever governments propose laws which involve sensitive information, there is often a knee-jerk decision to add new information, there is often a knee-jerk decision to add new exemptions to the Act, remove records from the coverage of the Act exemptions to the Act, remove records from the coverage of the Act or weaken the commissioner’s (and court’s) oversight of decisions or weaken the commissioner’s (and court’s) oversight of decisions to keep such information secret.”to keep such information secret.”

Strategies of ResistanceStrategies of Resistance

malicious non-compliancemalicious non-complianceadversarialismadversarialism

amberlightingamberlighting


malicious non-compliancemalicious non-complianceadversarialismadversarialism

amberlightingamberlighting disclosure of identities of requestorsdisclosure of identities of requestors pressure on ATIA officialspressure on ATIA officials problems in record-keepingproblems in record-keeping

Adversarialism – Problems in Adversarialism – Problems in Record-KeepingRecord-Keeping

““The management culture has changed dramatically over the The management culture has changed dramatically over the past 20 years from solid record-keeping, accountability and past 20 years from solid record-keeping, accountability and dedication to the public service and loyalty according to our dedication to the public service and loyalty according to our oath of office to Canada, to avoidance of record-keeping and oath of office to Canada, to avoidance of record-keeping and accountability, and dedication of loyalty to the individuals who accountability, and dedication of loyalty to the individuals who appointed you and can promote you.” appointed you and can promote you.”

Former Public Servant quoted in Gomery, Former Public Servant quoted in Gomery, RecommendationsRecommendations, 35., 35.

““Don’t write it if you can say it. Don’t say it if you can nod.”Don’t write it if you can say it. Don’t say it if you can nod.” ““We kept minimum information on the file in case of an access We kept minimum information on the file in case of an access

to information request.” to information request.” Chuck GuiteChuck GuiteTestimony to Pubic Accounts Committe, April Testimony to Pubic Accounts Committe, April

20042004


malicious non-compliancemalicious non-compliance adversarialismadversarialism

amberlightingamberlighting disclosure of identities of requestorsdisclosure of identities of requestors pressure on ATIA officialspressure on ATIA officials problems in record-keepingproblems in record-keeping

– ““...federal institutions have developed techniques for ...federal institutions have developed techniques for managing politically sensitive requests which now managing politically sensitive requests which now undercut basic principles of the ATIA.”undercut basic principles of the ATIA.”

Alasdair Roberts, Gomery, Vol.2, 117.Alasdair Roberts, Gomery, Vol.2, 117.


malicious non-compliancemalicious non-compliance adversarialismadversarialism neglect/maladministrationneglect/maladministration


malicious non-compliancemalicious non-compliance adversarialismadversarialism neglect/maladministrationneglect/maladministration

– ““Year after year, information commissioners have asked Treasury Year after year, information commissioners have asked Treasury Board ministers to provide adequate (not extravagant) funds to Board ministers to provide adequate (not extravagant) funds to enable commissioners to effectively discharge the duties enable commissioners to effectively discharge the duties Parliament gave them. The requests are routinely denied or pared Parliament gave them. The requests are routinely denied or pared down to bare bones. Year after year, the Information down to bare bones. Year after year, the Information Commissioner’s workload of complaints increases and, without Commissioner’s workload of complaints increases and, without adequate resources, the backlog of incomplete investigations also adequate resources, the backlog of incomplete investigations also increases. Now, it ranks at an all-time high; it represents more than increases. Now, it ranks at an all-time high; it represents more than a full year of work for every one of the commissioner’s 23 a full year of work for every one of the commissioner’s 23 investigators.” OIC, Annual Report, 2004-2005investigators.” OIC, Annual Report, 2004-2005

Explaining Government Explaining Government ResistanceResistance

media use of ATIAmedia use of ATIA– more expertmore expert– more aggressivemore aggressive– more frequent/visiblemore frequent/visible

example – uncovering the Sponsorship Scandalexample – uncovering the Sponsorship Scandal– Daniel Leblanc (Globe and Mail)Daniel Leblanc (Globe and Mail)

first ATIA request, September 1999first ATIA request, September 1999

– ““Public disclosure of the Sponsorship Progrma was the result Public disclosure of the Sponsorship Progrma was the result of efforst by a diligent journalist whose access to information of efforst by a diligent journalist whose access to information request resulted in knoweldge about the Program, to the request resulted in knoweldge about the Program, to the public and parliamentarians alike, for the first time.”public and parliamentarians alike, for the first time.”

Gomery, Vol.1, 431.Gomery, Vol.1, 431.


basic description of the FOI regimebasic description of the FOI regimeFOI and the context of the Sponsorship FOI and the context of the Sponsorship

ScandalScandalFOI and the Gomery RecommendationsFOI and the Gomery Recommendations

Gomery Recommendations re: FOIGomery Recommendations re: FOI

mandatory record-keepingmandatory record-keeping– earlier effects of FOI on record-keepingearlier effects of FOI on record-keeping


mandatory record-keepingmandatory record-keeping– Recommendation #16: The Government should Recommendation #16: The Government should

adopt legislation requiring public servants to adopt legislation requiring public servants to document decisions and recommendations, and document decisions and recommendations, and making it an offence to fail to do so or to making it an offence to fail to do so or to destroy documentation recroding government destroy documentation recroding government decisions, or the advice and deliberations decisions, or the advice and deliberations leading up to decisions.”leading up to decisions.”


mandatory record-keepingmandatory record-keepingamendments to ATIAamendments to ATIA

– extension to federal government institutions not extension to federal government institutions not currently coveredcurrently covered

– limiting of exemptionslimiting of exemptions reorientation from categorical exemptions to injury testreorientation from categorical exemptions to injury test reduce the kinds of records subject to injury testreduce the kinds of records subject to injury test

– broadening the IC’s powersbroadening the IC’s powers

Federal Accountability Act, 2006?Federal Accountability Act, 2006?

Implement Information Commissioner’s recommendations for reform of the Access to Implement Information Commissioner’s recommendations for reform of the Access to Information Act. Information Act.

Give the Information Commissioner the power to order the release of information. 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, Expand the coverage of the act to all Crown corporations, Officers of Parliament,

foundations and organizations that spend taxpayers’ money or perform public functions. foundations and organizations that spend taxpayers’ money or perform public functions. Subject the exclusion of Cabinet confidences to review by the Information Subject the exclusion of Cabinet confidences to review by the Information

Commissioner Commissioner Oblige public officials to create the records necessary to document their actions and Oblige public officials to create the records necessary to document their actions and

decisions. decisions. Provide a general public interest override for all exemptions, so that the public interest is Provide a general public interest override for all exemptions, so that the public interest is

put before the secrecy of the government. put before the secrecy of the government. Ensure that all exemptions from the disclosure of government information are justified 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 only on the basis of the harm or injury that would result from disclosure, not blanket exemption rules. exemption rules.

Ensure that the disclosure requirements of the Access to Information Act cannot be Ensure that the disclosure requirements of the Access to Information Act cannot be circumvented by secrecy provisions in other federal acts.circumvented by secrecy provisions in other federal acts.

Implications of FOI Reform?Implications of FOI Reform?

criticisms...criticisms...– shifting values?shifting values?

Values of the Values of the New Public ManagementNew Public Management

New PublicManagement

Traditional PublicAdministration

Values entrepreneurship,flexibility, creativity

prudence, stability,probity,accountability

Risk Tolerance risk taking risk averse

Accountability accountability byresults

processaccountability

Structures decentralized,partnerships,contracts

hierarchical,centralized

Implications of FOI Reform?Implications of FOI Reform?

criticisms...criticisms...– shifting values?shifting values?– breaking the bargain?breaking the bargain?

...the End!...the End!

Thank you very much and have a Thank you very much and have a great summer!!great summer!!

freedom of information promise and perils (cont’d) march 30th, 2006

Documents

information commissioner

commissioners office

commissioners term

commissioners staff

commissioners investigations

commissioners subpoenas

businesstrends mid

businesscoststrends