This article appears in the 2014-15 Review of Free Expression in Canada. Read the full Review here.
By Dean Beeby
For years, journalists, community activists, opposition politicians and others have seen the federal access to information (ATI) system grow frail and unresponsive, and they have urgently prescribed tough medicine to revive it. But two recently proposed cures are threatening to kill the patient.
In December, several Conservative MPs called for significant increases in application fees—perhaps $200 for a single request that now costs just $5.
The proposal—which had the hallmarks of a coordinated campaign by the government—was made at a House of Commons committee hearing where Suzanne Legault, Canada’s information commissioner, testified that she is so overwhelmed with complaints about the handling of ATI requests that she has run out of cash to investigate them properly.
But the real motive behind fee increases is to discourage people from filing requests in the first place. Even the massive hikes being proposed would cover just a fraction of the $1,000 average cost of processing a request. But higher fees would effectively reorient the system to favour requesters with deep pockets (and access to business tax deductions) while shutting out everyone else.
Legault valiantly countered that application fees should be eliminated completely. But she offered her own dubious cure in her March 2015 recommendations for modernizing the Access to Information Act (ATIA): she’s recommended that the commissioner be allowed to disregard some complaints at her discretion. Currently Legault is legally obliged to investigate each and every complaint, though not necessarily in the order they are received.
Each of these “cures” is an attempt to cope with the record numbers of requests and complaints pouring into the system, overwhelming staff and exacerbating already onerous delays in responses. Almost 60,000 requests arrive each year, more than double the number in 2006, the year the Stephen Harper–led Conservatives first formed a government.
Any government serious about transparency and accountability would find ways to meet the demand, not stifle it. But so broken is the system that those responsible for it are perversely looking for ways to choke the flow of ATI requests, which, after three decades, are now predominantly from the public rather than specialists such as lawyers, tax consultants and journalists, as was the case in the past.
Users also report subtle efforts at discouraging requesters from burdening overstretched Access to Information Act (ATIA) office staff. Many departments now urge requesters to remove anything that might be a cabinet document from the scope of their requests. Under Section 69, cabinet documents are largely excluded from the reach of the ATIA, and any such record cannot be reviewed independently by Legault’s office. So, not surprisingly, use of Section 69 has grown by leaps and bounds as departments now withhold material that was once released routinely.
Requesters who want to avoid delays caused by an administrative process to certify records as cabinet documents will often accede to a department’s suggestion to exclude records even suspected of containing such documents from the scope of their request. By agreeing not to ask for this type of document, requesters reduce their waiting time by weeks or months. But this course of action effectively makes requesters complicit in the effort to widen this insidious loophole, though for deadline-driven journalists, it’s a perfectly reasonable strategy.
Treasury Board president Tony Clement, who has never conceded any serious problems with the ATI regime, touts the government’s new online request-and-pay process as a boon to users.
Launched in April 2013, the online system now covers almost 30 departments, though inexplicably excludes key government bodies such as Public Works and Government Services Canada and the Privy Council Office. The site allows users to frame their requests, pay the application fees by credit card and send the requests to the appropriate departments digitally.
The poorly designed website, however, is tilted against the bulk filing of requests. Bulk filing is a strategy adopted by many journalists. It often now takes 10, 20 or more requests to get a single story, thanks to excessive blacking out and delays. But the online system does not allow users to register their contact or financial information, forcing them to fill out labour-intensive forms for each separate request. At least paper-based requests, which are still permitted, can still be filed in bulk.
And then there’s the growing problem of databases. Many departments throw up roadblocks to ATIA requesters seeking digital data by releasing PDF images or even paper copies that are useless to digital journalists, who are therefore unable to sort the data efficiently and easily by computer.
Despite the myriad problems that requesters face, the federal government argues the system is working just fine. “The ATI program continues to perform well, providing requesters the information they are looking for, in an effective and responsive manner, even though there has been a significant year-over-year increase in the number of ATI requests,” Clement wrote to Legault in November 2014, rejecting repeated criticisms from almost every player in the system, including the information commissioner herself.
Increasing the odds with bulk requests
So if the system is so broken, and prospects for a fix so dismal, why are requesters filing more than ever? Journalists, for example, filed 8,421 ATIA requests in 2013-14, more than twice the number from 2006-07—even as many newsrooms grew smaller over this seven-year period.
Steve Rennie, a reporter and an editor at Metro Ottawa and previously a Canadian Press reporter, is among the journalists who have stepped up their ATIA game. He now files up to 1,500 requests annually—tripling his output from a year ago—despite the constant headaches.
“Could the system be better?” Rennie asks. “Of course it could. But I don’t let the perfect be the enemy of the good. Better to use the system we have, flawed as it may be, than not to use anything at all. Because the best way to get nothing is to file nothing. And I’ve upped my output because I find sheer volume is the best way to guarantee I’ll have something waiting in my mailbox every day.”
Alex Boutilier at the Toronto Star’s Ottawa bureau says he continues to file about 20 requests a month, despite “wild discrepancies” in the service he gets from different departments. He has also been faced with the “hugely problematic” suggestion by ATIA officers that he exclude cabinet confidences from the scope of his requests. “You have to make these choices with the state of the system just in order to stay ahead of the competitors, ahead of the government,” he says.
Information commissioner needs more power
The Ottawa Citizen’s Lee Berthiaume echoes many of the complaints of his colleagues, noting that Legault’s office remains largely powerless in the face of bureaucratic obstinacy. “We need some teeth in the system. We have no leverage,” he says. “In the end, there’s nothing to compel government departments [to release documents].”
Legault, in fact, told the Commons committee in December that she favours acquiring order-making powers through an amendment to the Act. “I believe the commissioner should have the power to order the release of records, and we should have an order-making power model as we have in other jurisdictions in Canada,” she said.
Legault also told MPs the system suffers because she cannot review cabinet confidence decisions by government; indeed, her March report proposes the commissioner be given this new power.
Rennie agrees Legault’s office needs a big stick to keep departments in line, rather than relying on occasional report cards that name poor performers. “It’s pretty clear to me that publicly shaming departments isn’t working,” he says.
Prospects for change are dim in an election year. Almost certainly, there will be no serious attempt to raise ATI fees, either, as no government wants headlines about a lack of transparency and accountability. Yet, so far, no party has put forward serious proposals to update the Act itself, just as the three main parties in the 2011 election—Conservatives, NDP and Liberals—were all silent on fixing the legislation.
In the meantime, a small group of determined journalists is not giving up the fight. Says Berthiaume: “Maybe that’s just the nature of journalism, to be stubborn.”
Dean Beeby (@deanbeeby), an Ottawa author and a journalist with CBC News, is a long-time user of freedom of information laws, as well as a frequent panellist and seminar leader on the use of the Access to Information Act.
Read this article and more in the Review of Free Expression in Canada.