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Opinion: Why the Access to Information Act isn't providing access to information

"The exercise of the law to extract important information is often like panning for gold under a pitch-black sky."
"The defensive culture of government communications contributes to public suspicion and mistrust that not only sparks the most vulgar of our social media but also plays a role in low voter turnouts and participation in political parties," argues Kirk LaPointe.

Credit where credit is due: The federal government took a baby step in 2019 to recapture part of the spirit of the law that permits us access to its information. 

Now, a House of Commons committee is exploring how it might recommend further amendments to support our right to know.

There is good reason to be skeptical, even cynical when governments profess a commitment to openness. History has not been kind to the pledge. And our freedom of information laws at the federal, provincial and municipal levels are prime examples of how the talk isn’t walked.

On short notice, I was invited to appear before the committee last week. I presented ideas based on my experience over three or so decades of filing more than 3,000 requests and managing newsrooms that have filed at least another 15,000. 

More on them in a bit. But first, the news.

Little did I realize when I was paired in testimony with Michael Wernick – only three years ago the country’s most powerful public servant as Clerk of the Privy Council – that he would provide a provocative prescription for a vastly more transparent, encompassing, proactive law. I was expecting a defence of the realm, not a parlay upon it. Good on him.

Wernick believes the Access to Information Act ought to apply to the offices of the prime minister and his ministers – not just departmental and agency records – and to political aides and not just public servants. He argued for the federal Information Commissioner to be rebranded a Transparency Commissioner to oversee a regime of fuller-fledged disclosure of records to help the public understand the operations and policies from those who serve it.

I doubt Wernick would have, even could have, fought this fight during his 28 years inside government, but in knowing the terrain he obviously feels emboldened outside of it now to cite the potholes and argue for the construction of a smoother road.

The 1983 law permits people to ask for internal government records, but there are hundreds of exempted pockets of government and types of records, and the required 30-day responses to requests are often delayed by months, even years. Too many public servants have seen their role as protecting bureaucracy and political masters. A law written before the internet could not have anticipated that technology, particularly encrypted apps and email, permitted the traditionally paper-committed footprint of history to be digitally erased, overwritten or shielded. 

The exercise of the law to extract important information is often like panning for gold under a pitch-black sky.

Until Bill C-58 in 2019 successive federal governments had largely imposed increasingly restrictive amendments legally and operationally to thwart the law’s intention and letter.

I can understand why politicians don’t wish openness. Even if the Pope has relinquished the concept of infallibility, even if pencil manufacturers attach erasers to their products, most politicians believe the admission of a mistake is fatal. The savagery of social media and even the judgmental responsible media doesn’t soothe their worries, either. 

The 2019 bill eliminated fees for requests beyond the five-dollar application – a healthy step forward, because fees could be huge – and prompted a modest routine disclosure of some records to save the chore of requesting them. Hardly ground-breaking, and while the cumbersome and confusing law has foundered during these nearly four decades, governments have spent significantly to promote their images through various forms of self-congratulatory vanity press. One of my proposals was for the disclosure of how much this fluff and puff costs and to tie its spending to increased investment to support the law’s efficiency. The committee’s silence suggests I needn’t hold my breath.

But I have more hope for something Wernick and I each proposed: A reduction in the 20-year period in which cabinet records are sheltered. I argued 12 or 15, and he trumped me by suggesting even 10 years was sufficient.

I told the committee that each government announcement or legislation should be accompanied by the release of the records that created them: The studies, the public opinion research, the internal and external correspondence, everything but the confidential cabinet discussion. Mostly these are records we have to hunt down many months later; there is little reason they can’t be released when the government initiative is unveiled. 

Internally conducted audits ought to be released within 30 days, too, I argued – not as they are now, much later and often salted down. These are important value-for-money assessments.

Most journalists I know who try to use the law quickly and frustratingly give up; no wonder only about 10 per cent of all Access to Information Act requests come from our craft. The largest users are businesses snooping on each other or into government operations. There has also emerged an industry of brokers and resellers of information that casts a wide net in requests – Wernick likens them to trawlers of the ocean floor – that then markets the results for profit.

I suggested a help desk could be established to assist requesters on how to find the records and phrase applications for them. And I proposed an arbitration panel to review the often extensive redactions to government records in its responses. 

Ideally, I told NDP MP Peter Julian (New Westminster-Burnaby) when he raised a proposal I’d made years ago, Canada would pattern its law on one in the city-state of Hamburg, Germany. It requires opponents of disclosure to argue why information can’t be released. It would be the ultimate judo move to create proactive information law. 

Which raised my other recommendation: That the committee call out the abuses, like unreachable personal email for government business, apps to avoid any review of discussions, oral briefings instead of written reports and the vesting of copyright with contractors instead of the contracting department. Wernick, now the Jarislowsky Chair in public sector management at the University of Ottawa, chimed in that Canada could introduce a law based on one in the United States to restrict devices and software to outlaw “off-book” communication by public servants and political aides.

The defensive culture of government communications contributes to public suspicion and mistrust that not only sparks the most vulgar of our social media but also plays a role in low voter turnouts and participation in political parties. We need a stronger law for the public good, even if it discomforts those who serve it. 

Kirk LaPointe is publisher and editor-in-chief of BIV and vice-president, editorial, of Glacier Media.