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Suing for Access

Posted by Don McLenaghen on April 17, 2013

The making information inaccessible


While it is too early to say things may be getting better in our government…in the arena of providing information to its citizens about what it is doing…or at least funding to have done. There may be a light at the end of the stone-walling tunnel.

PBO-department-responsesI have often talked about the shutting down of the flow of material/information by government agencies and employees to the public. Information essential for the operation of a rational democratic nation. Be it the suppression of our scientist, the delaying tactics used by House committees or even Harper’s own created Parliamentary Budget Office (who is currently in the course demanding documents to allow it to do the job it was set up to do).

Well, in a response to a complaint filed jointly by Democracy Watch and University of Victoria’s Environmental Law Clinic, Canada’s Information Commissioner, Suzanne Legault, announced her office will be investigating whether the Harper government is living up to the law of the land.

In this case, The Access to Information Act, states that an access to information request must be answered within 30 days but allows departments to grant themselves extensions.

acco_repparl_2011accessinformationact_image_2_1347596657712_engEarlier this year Legault publicly complained that even with generous terms given the Government, they were still exceeding their own ‘extended’ deadlines. She noted that the response times have increased notably since the Conservatives gained a majority.

Just to give context, the law states that all requests MUST be fulfilled within 30 days, however it does provide each department a ‘get out of jail free card’ in allowing them to extend that deadline (for really any reason). SO, when they don’t meet a deadline, that is the arbitrary deadline they themselves created.

Government officials complain the nature of the requests and complexities of government make requests harder to fulfill.

Legault dismisses this stating that there’s no clear evidence that requests are becoming more complex to process. It should be noted that improvements in digital records should actually increase efficiency and reduce response times[1].

acco_repparl_2011accessinformationact_image_3_1347596726196_engBesides this complaint, The Information Commissioner is taking the Department of Defense to court over an information request which the department slapped with a 1,100 day extension…so, the 30 day deadline was extended to over 3 years.

An extension that is being argued as deliberately obstructive and violating the principles of the Access to Information act. You must wonder what they are hiding.

In an interview on CBC, it was pointed out that by 2011, less than 20 percent of access to information requests made to federal departments and agencies were met with a full disclosure of the information requested.

RedactedLet’s put that into context. So you may have seen online ‘information request responses’ where there are large parts blacked out…for security reasons I am sure <not!>…what this is saying that even when they do provide you the requested document, 80% of the time it is edited (and often heavily edited). We are all familiar with the word ‘redacted’ by now.

So it’s perhaps not surprising that an international survey last year ranked Canada 55th out of 93 countries in terms of its access to information laws.

A press release by Reporters Without Borders, in a ranking of countries on its media freedom survey dropped Canada 10 positions from the previous survey to No. 20 out of 90. This group cites as the reason for the drop was due to obstruction of journalists during the so-called ‘Maple Spring’ student protests and to continuing threats to the confidentiality of journalists’ sources and internet users’ personal data, in particular, from the C-30 Bill on cyber-crime.”

Torstar Redaction ComicRemember C-30 where Harper’s parrot stated “your either with us or the terr…er, pedophiles! Damn commies” <sorry parts are editorial; he did compare those who believe in privacy as supporters of pedophilia>.

Our access to information law was created in 1983 and has not been updated since. When first promulgated it was the envy of the world, now we are the old man in the corner saying inappropriate things at the international conferences. I.e. most nations have far surpassed our standards, most notably updates because of the information technology revolution.

According to a report card issued by Legault last year on the timeliness that requests that were fulfilled, the Canadian Food Inspection Agency, the department of Northern and Indian Affairs, and Transport Canada were given “F” grades.

downloadIn response to the many loopholes that exist in the Access to Information Laws across Canada, the lack of enforcement and lack of audits to ensure people are following the law in some jurisdictions, in their entirety to the Information Commissioner, Democracy Watch and the Open Government Coalition call for the following 8 key changes:

  1. If the government partly pays for it, is involved in it, it’s a result of government legislation or it significantly impacts public interests, then a record of actions must be created by said entity.
  2. The default position is ALL documents should be publicly available unless it fails a “harms test” and even then, if public interest is paramount, should be made available in their entirety.
  3. All entities, previously defined, are compelled to create a detailed record of all decisions, actions, transactions, factual research, policy research and correspondence. That such a record should be efficiently and promptly indexed. There should be nameable individuals responsible for the creation of the records and the index.
  4. The database created by point 3, should be accessible by anyone without restriction for those who undertaking “authorized” reporting or research, and only a token fee (to prevent frivolous use applied to individual citizens.
  5. Anyone who does research, factual or policy, should have unfettered and free access to discuss their research to the media and public.
  6. Responsible individuals who fail to create records, indexes or accessible database should be subject to severe penalties. Individuals responsible for unjustifiable redaction or delays should also be subject to severe penalties.
  7. The Information Commissioner should be given power commiserate to their positions. This would include the ability to levy penalties of individuals, departments or entities who fail to uphold the Access to Information Acts. They should also have the power to order the immediate release of information that has been deemed unjustifiably classified, redacted, or delayed. The Commissioner should also be empowered to compel departments to enact procedures to ensure compliance to the law.
  8. The funding to ensure compliance with Access to Information requests (including the necessary documentation and indexing) be a priority in all budgeting.
  9. Parliament must be required to review the ATI Act every 5 years to ensure that problem areas are corrected.”

This gets even more convoluted when we factor in the perhaps intentional collateral blocks. Legault, who has been at her job for three years, says her office — which suffered an 8 per cent budget cut — has dealt with about 7,000 complaints with another 2,000 left to go.

14059_562029463815641_1642093719_nFirst, that works out to over 6 complaints a day. The government itself states that information requests have doubled over the last decade. This is because what was once publicly available information has now been put behind the “Great FireWall of Harper” of information, data that would have previously been readily available on government/institution/academic websites is now considered “government secrets” and thus is only available IF someone makes an information request. Of course, because this is new to the Canadian political landscape, the number of requests for information request has also increased.

Legault says that in the last six months, she’s seen a sharp rise in the number of complaints about departments that improperly delay responses to access-to-information requests. Which she attributes to budget cuts…which leads to staff cuts…which leads to reduction of service, in this instance the information you are requesting.

MAC2083-1024x866And here is where we end, the circle complete. Harper wants to shut down the flow of information about what government is doing for/to the people. The Conservative government can use its soft power by rewriting loyalty oaths directing departments to ‘shut up’. This will inevitably run up against the ‘loyal to Canada and not Harper’ bureaucracy (yes, I still have faith that some public servants what to do a good job) who are providing push back against these oaths. So to help nursemaid the process…the silencing of the information…the Harper government continues to cut funding to departments, which results in a reduction of staffing. Less people to do the work means an increase to response time to information requests…at least until the next election or parliamentary vote has passed…or so I imagine Harper thinking.


[1] Unless, of course, the Harper government is worried that something might slip out that is either negative to his conservative agenda or may run contrary to the Harper line. Therefore, EVERYTHING sent out must first be reviewed (by politicos) to ensure the purity of the message.


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