Why Canada’s Access to Information Must Be Improved
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This year marks the 30th anniversary of the Access to Information Act.
At the act’s inception, Canada was heralded as a progressive body for freedom of information, but modern times have proven otherwise.
A combination of factors, like reports of organizations simply failing to acknowledge requests, has marred the face of freedom of information in Canada. Yet while things may seem dire, not all hope is lost for Canadian transparency.
Since 2005, advocacy group Newspapers Canada has performed an annual audit to determine the state of access to information in Canada. Among other things, the audit looks at the speed at which requests are returned and the amount of information provided.
The 2012 audit gave Quebec a C-grade for its speed of disclosure and an F for the completeness of the returned requests, placing them second-to-last nationally in both categories.
At the federal level, Canada received a D for the length of timeliness, and only a C for the completeness of the requests. Perhaps the most shocking thing is that these grades aren’t that shocking.
A Need for Reform
According to Concordia journalism professor Alan Conter, it’s not out of the ordinary for Western countries to score low grades on audits like the ones done by Newspapers Canada.
“Countries that have initiated access to information legislation as a human right tend to have more rigorous access [standards], so Western democracies don’t score as well,” he said, noting that reforms are necessary if things are going to improve.
Calls for reformation of the ATI Act have been echoing for years, with organizations like the Halifax-based Centre for Law and Democracy and the B.C. Freedom of Information and Privacy Association making pleas for modernization, as well as government bodies like the House of Commons Standing Committee on Justice and Human Rights.
“All of the information officers from the mid-90s onward have been calling for reform, and they pretty much get ignored,” Conter said, adding that access to information under the Harper government has been particularly bad despite 2006 promises to reform the act.
In the latest annual report by Suzanne Legault, Canada’s information commissioner, she notes that there has been a “clear deterioration” in Canadian access to information, pointing to the 42 per cent increase in administrative complaints from the previous year.
Organizations like the RCMP have stopped acknowledging requests within the 30-day period guaranteed under the act, Legault reported, which is consistent with what freelance journalist Tim Groves has experienced.
“They’ll delay, delay, delay and they often don’t get back to you for much longer,” Groves said.
In Legault’s 2012 report, numerous organizations cited budget cuts and understaffing as reasons why ATIs were not acknowledged or responded to within a reasonable period. For Conter and Cooper however, that isn’t a valid excuse.
“[McGill] said it’s a huge bureaucratic challenge for them, they don’t have enough resources, [that it’s because of] underfunding of universities, and yet they [allegedly] hire a bunch of new staff,” Cooper said.
“[It’s like] running a hospital but you fired half the doctors, and you’re surprised that health care isn’t being properly delivered,” said Conter.
There are countless ways the ATI system could be reformed—the Centre for Law and Democracy has outlined specifics that are in need of updating, like how Parliament itself is exempt from the act. The recent Senate scandal alone shows that needs to change, said Conter.
Groves sees modernization as a hugely important step, saying that needless redactions of information create unnecessary obstructions.
“I won’t get a spreadsheet, I’ll get a photocopy of a spreadsheet, with each page printed individually,” he said.
“If the system were pressured to allow spreadsheets and data released in a data-readable format, it would do such a service to people.”
McGill and ATIs
For Allison Cooper, it’s a question of how open organizations want to be. The former Students’ Society of McGill University VP Clubs and Services filed her first ATI while working on the Nov. 10 Independent Student Inquiry, which looked into the events that occurred on McGill’s campus during the 2011 Day of Action.
Riot police clashed with protesters, and students occupied the James Administration Building for several hours following a tens-of-thousands strong, peaceful march.
“If public bodies were actively publishing their information beforehand, we could just search it for what we needed,” Cooper said, referencing the model followed by OpenOakland, a California-based organization that tries to promote open government.
Cooper was one of 14 respondents named in a motion filed by McGill earlier this semester, where the university argued that based on the “systematic nature of the requests,” as well as their “abusive character,” they should be granted the right to refuse requests already filed by the group, as well as future requests that could “reasonably be associated.”
McGill claimed that there was a coordinated effort from certain publications, including The Link, to not only gather information for stories, but “as a retaliation measure against McGill in the aftermath of the 2011-2012 student protests.”
McGill and the motion’s respondents went before Quebec’s Commission d’accès à l’information to argue their case, and on Oct. 7 the commission ruled that the university did not have the authority to block requests at their discretion—a welcome sign for Cooper.
“The last result from the commission [said] that one of McGill’s requests to outlaw future requests was absurd, and yes, it was absurd,” she said.
The university is still in mediation with the respondents regarding outstanding requests that have not yet been returned.
“[Overturning part of the motion] was really promising, in that it’s serving the purpose of the law,” said Cooper, adding that she hopes things stay that way.
Among other things, McGill used the broad nature of the requests being made to justify their motion. For Conter, filing specific requests is one way to combat the lagging or nonexistent response rate.
“A request that’s very sweeping offers the opportunity for the agency to move slowly on it,” he said.
Groves pointed to the importance of understanding the system you’re filing with.
“When you’re requesting records, you have to keep [in mind] that people are working on those ways [to block information],” he said. For him, it’s key to understand those barriers and find ways to work around them. In other words, it’s about being realistic.
The Myth of the Smoking Gun
Groves doesn’t believe the ATI system is as broken as many say, and doesn’t see the complaint-based narrative as useful.
“I’d love a system where you could get even more records and it was easier, [but] what does [that narrative] serve when people complain about the access to information request system?” he said.
News organizations regularly use ATIs as a way of gathering information, and while Groves pointed out that, “rarely are you going to get the smoking gun,” he also emphasized that people still receive completed requests.
“It doesn’t mean that [information is] always as good as you want […] but it’s not broken in the sense that it’s a useless system,” he said.
The narrative surrounding the ATI system is damaging, Groves said, and it often prevents people from exploring ATIs themselves.
“When I do workshops on filing ATI requests, I see how scared people are,” he said.
“They bring up these stories about how broken the system is […] as a way of stopping themselves from filing their first request.”
While he’s had some bad experiences within the ATI system, Groves doesn’t think it’s helpful to perpetuate the idea that filing is a waste. He pointed to the importance of pressuring the government as a way of bringing about change, something Conter agrees with.
As Groves says, the key is to simply start filing requests.“[There should be] pressure on departments so long as people start using the system,” he said, mentioning that the first request is the most daunting, but that the more you file, the easier it gets.
“It’s something that’s in reach for everyone and could be put to use in many cases.”
Conter also thinks journalists have an important role to play.
“They need to attempt to make it more of a public issue in writing about it,” he said, adding that it’s the media’s responsibility to make sure the public is aware when things have been denied, and what barriers are being put up.
Bureaucratic secrecy can be a significant block, but if the media continues to pressure the government while reminding people that access to information is a right, changes could happen.
“The media ought to be stomping their feet a little more loudly,” said Conter.
“Access to government information is a right, not a privilege.”