When Canada enacted its Access to Information Act (AIA) in 1983, it was at the vanguard of the "right to know" movement in modern democracies. For the first time in Canada, citizens were granted the right to see the records produced by their government.
But now, 30 years later, Canada has fallen behind the curve. Government institutions are increasingly missing deadlines for responding to information requests from the public. The country is falling in international rankings of transparency. And there are even signs that the government is deliberately avoiding leaving paper trails that may be later subject to access requests.
“It’s not a secret to Canadians that this is the most secretive government that we’ve ever had,” says a clearly frustrated Elizabeth May, a member of parliament for the Green Party who represents the British Columbia community of Saanich-Gulf Islands.
Canadian Information Commissioner Suzanne Legault – essentially Canada’s Access to Information ombudsman – announced this week that her office will investigate complaints that Prime Minister Stephen Harper's government has been restricting government scientists from speaking to the public about their work.
Chris Tollefson, the executive director of the University of Victoria's Environmental Law Centre, which filed the complaint along with advocacy group Democracy Watch, told the Associated Press that research into suppressed science revealed that it "represents a significant departure" in government practice over the last five to seven years.
But the government's resistance to transparency is not limited to government scientists. The Centre for Law and Democracy released a report last fall which analyzed Canada’s openness versus other countries. The report found that Canada ranked 55th out of 93 countries tested, putting it right behind Mongolia and Colombia, according to the Halifax, Nova Scotia-based center. The placement marked a drop from the previous year, when it ranked 40th of 89.
“[Centre for Law and Democracy] believes that the problems with the current legal regime for the right to information are profound, and that a serious and far reaching response is warranted,” reads the report.
Information Commissioner Legault welcomed the center's report as a necessary step toward repairing Canada’s 30-year-old "right to know" system. Legault is expected to table her own comprehensive report into Canada’s access to information laws by the fall.
And last month the multiparty Standing Committee on Procedure and House Affairs in the House of Commons found that Canadian “parliamentary privilege” has been widely abused in favor of secrecy. The committee put forward recommendations calling for more stringent rules for how this privilege should be handled when considering access requests.
Noting that “at times” parliamentary privilege may seem “at odds with contemporary values and principles,” the committee report goes on to say, “your Committee believes that parliamentary privilege can be exercised in a manner that will ensure that it does not needlessly impair other fundamental principles of our democratic system of government, such as freedom of access to information held by the government.”
'Why don't you just drop it?'
One persistent criticism of the access to information system is that it takes too long for many government agencies to handle requests. Under the law, government institutions have 30 days to fulfill a request, but many opt for the “reasonable extension” allowed for under the act. It is not uncommon now for requests to take 120 days or more, with some dragging on for years.
In fact, a request by the news agency the Canadian Press for the government response to the center’s early findings took five months to be released.
“We’re quite frustrated,” says Ms. May, who figures she is the heaviest user of the access to information system among MPs. “How often has my staff had the coordinators and the information officers say, ‘You know what, why don’t you just drop it? Because by the time you get those files they’re going to be knee-deep in cabinet confidences, and then you’re going to undergo a mandatory six-month period of consultation with the Privy Council, and you probably won’t get anything at all.’”
The Privy Council is the top layer of the bureaucracy in Canada, giving advice to the prime minister and various government agencies. The Privy Council is supposed to be non-partisan, but the same chorus of voices that accuse Mr. Harper's government of being secretive say that the Privy Council Office has become politicized in recent years, and is part of the problem.
May’s estimation that the Harper government is the most secretive government in Canadian history, tightly controlling the information it lets out, is one shared by Canadian Journalists for Freedom of Expression (CJFE), who released their own damning report earlier this year.
In "A Hollow Right: Access to Information in Crisis," CJFE decries the “politicization” of the access system, and suggests further that certain requests on sensitive topics are flagged and put in color-coded folders if they come from journalists and critics. The report sites at least one case where a department tried to “unrelease” a request already approved.
According to the CJFE, time delays for requests increased 44.7 per cent of requests, up from 36.8 per cent in 2000.
So why all the secrecy and delays in fulfilling access requests? Critics of the government point to the blistering pace in which the majority Harper government has been able to pass several pieces of highly controversial legislation, known as omnibus bills, into law, affecting everything from sentencing laws, to First Nations governance, to the nation's budget, or in the case of the government scientists, cuts to funding environmental research. This has sent journalists, opposition MPs, and members of the public looking to access to information for answers.
A worrisome trend?
One unique way that Canadian access laws are maybe being compromised is through the increased use of BlackBerry mobile device PIN-to-PIN messaging (also known as “peer-to-peer” messaging). BlackBerry, headquartered in Waterloo, Ontario, is the preferred smart device used by Canada’s civil service and members of government.
The Green Party’s May claims that she has heard from “very senior people” within the bureaucracy, in different departments, that BlackBerry pin messages are routinely used in a “deliberate effort to avoid a paper trail that could be accessed by access to information.”
“If that’s an increasing trend – which I believe it is – that’s something we have to look at in terms of access to information,” added May, who points out that her office increasingly receives the answer, “no records found” even when requesting information on major policy files.
The department with ultimate responsibility for Canada’s Access laws is the Treasury Board Secretariat. According to a spokesperson for the secretariat, BlackBerry Pin-to-Pin messages are considered “records,” and so should be accessible under the act.
The increased use of electronic peer-to-peer messages by civil servants and members of the Harper government is apparently significant enough to prompt the Information Commissioner’s office to launch an ongoing investigation into the practice. Currently there is no government-wide policy on the use of electronic messaging by public officials.