Access to Information reform: "Let's get it right"

by Anne Kothawala

(Remarks to the Riley Information Services Seminar on Access to Information, Ottawa, September 8, 2005)

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Tom, I have to say first of all that I am really impressed with the quality of individuals that you have brought together here today. And I don’t just mean the speakers, who are impressive in their own right. I mean all our participants, in this room.

It’s a privilege to be among you, and I thank you for letting Canada’s daily newspaper industry engage with you in dialogue. For that is what I hope this day will achieve – a dialogue. I will know we have been successful when views from all sides get discussed in depth. And so I hope that none of you see yourselves as passive listeners, but as active participants, warmly encouraged to join in.

Tom referred to a national discussion on access to information reform, a discussion that the Canadian Newspaper Association has been encouraging for close to a decade. Let me say a few things about how we see this issue from our perspective in the newspaper industry, and in so doing give credit to some of the people who I think have helped us solve a mystery.
Information is the raw material of news. Freedom of information and freedom of the press are two freedoms hewn from the same stone. To impede one is to frustrate the other. To deny access is to prevent us from playing the watchdog role that citizens tell us is our core function and also their main expectation from us. We hear this from citizens across the social spectrum, from ordinary people reading their daily newspaper at the bus-stop, to the people on the bench of the Supreme Court of Canada.

It’s also a fundamental underpinning of our democratic system. No other industry I know is protected under the Charter of Rights and Freedoms. The drafters of our Charter understood that an informed public is a critical strand in the DNA of democracy.
The CNA has been lobbying for reforms to the federal Access to Information Act since 1997. Our purpose has been to remove barriers that journalists encounter when seeking information about government decisions, information the public has a right to in law.

We are not alone in this campaign, but it’s not a crowded field either. I want to give credit to several people - you will actually hear from some of them today. They are not the only ones who have worked to move the national discussion on ATI forward. But each of the people I will mention has contributed one of the pieces to solve a puzzle that has preoccupied newspapers for some time.

Ann Rees, journalism instructor at Kwantlen University College in Langley, British Columbia, and a former journalist as well as Atkinson Fellow, found the first piece of the puzzle. Her ground-breaking research into the federal government’s Access to Information management systems revealed for the first time how media requests and others deemed “politically sensitive” are flagged for special treatment. If you have not read Ann Rees’s work, published in the Toronto Star in the Fall of 2003, I encourage you to do so.

Next: an academic and scholar who has worked closely with CNA on a number of projects and whose forthcoming book on new challenges to open government is eagerly awaited across North America and around the world. You must have guessed I am talking about Alasdair Roberts, formerly of Queen’s and now Associate Professor in the Maxwell School of Citizenship and Public Affairs at Syracuse University. We are honoured that Al has found time to share his insights with us today. Few scholars have explored the Byzantine pathways of Canada’s federal bureaucracy as painstakingly as he has, armed with nothing more than a pencil flashlight, cool intellectual curiosity, and an unwavering belief in the public’s right to know.

Among Al’s many research papers and studies I want to pick just one to focus on in my remarks this morning. That was the work he did to build on and broaden Ann Rees’s discovery of the hitherto secret practice of “amber-lighting” or filtering of media requests. In a paper published last year, he analysed ATIP management data collected by federal departments and agencies - which he obtained by making an ATIP request to each institution. His analysis of this data showed that these secret rules do actually result in “unjustifiable delays in the disclosure of information.” He also found that the deemed refusal rate for media requests was more than twice as high as the average for other users of ATI.

The next person I want to mention is a witness for the Gomery Commission. Justice Gomery heard evidence last November from an Access to Information coordinator – an individual who I believe should be celebrated for her brave insistence on upholding the law. Until Anita Lloyd gave her testimony, we had no real insight into how secret procedures for filtering media requests functioned in operational terms. The Gomery Commission laid bare a level of political interference enabled by the filtering systems, including attempts to thwart the release of information deemed politically embarrassing.

Now, the access request under discussion that day at the Gomery Commission had been made by the Globe and Mail’s Daniel Leblanc, whose investigative work with Campbell Clark on the sponsorship story earned his newspaper the prestigious Michener Award last spring. We are honoured that Daniel has found time from his grueling schedule to share his experiences with us today.

If it weren’t for the dogged persistence of newspaper journalists like Daniel, the sponsorship scandal would never have come to light. In this case, fortunately, the trail did not go cold despite delays of up to two years in processing information requested.

Taken together, these “pieces of the puzzle” - these discoveries and revelations - provide compelling evidence of something newspapers have long suspected: that media requests for government information take longer to process because they are subjected to such a degree of scrutiny and even censorship, that often whatever prompted the request in the first place loses relevance or ceases to be topical.

The law is supposed to be applied fairly and without discrimination. How ironic that secret rules are being applied to legislation that is meant to counter secrecy!

With the government working on draft legislation to reform the Access to Information Act, now is clearly the time to get the issue of these secret rules on the table. For this reason, in a letter I will deliver today, the CNA will ask Information Commissioner John Reid to formally investigate the way media requests are treated, as a matter of urgency.

In his last annual report Commissioner Reid said he received 50% more complaints regarding delays than in the previous year. The report cites “top-heavy approval processes, including too much ‘hand wringing’ over politically sensitive requests and too-frequent hold-ups in ministers’ offices” as one of the causes.

Earlier this year, as many of you know, the CNA conducted the first-ever nationwide audit of Canada’s freedom of information systems, federally and in the ten provinces. You have copies of the final report in your kits and the results have been widely publicized so I will not dwell on them. But I just want to note in passing that our information requests were deliberately designed to be as simple and as uncontroversial as possible. Even with that, five provinces and six out of eight federal departments failed to respond within the statutory period for compliance.

Delay is particularly injurious to media. It can kill a story, for stories are temporary constructions of fact that collapse without the support of critical information. Stories also depend on context for survival. Information that could anchor the structure one day can become useless and irrelevant when the context shifts. Delay kills stories, and as it does, it kills transparency and accountability. More importantly delay erodes the confidence of media in government and in laws designed to ensure openness.

Which is why we say: access delayed is access denied.

Now, the Justice Minister has promised a bill this fall, and we are eager to see it. We are hoping the government will get it right when it reforms the act. We hope at a very minimum the bill will contain John Reid’s top priority items for reform One: Expand coverage to all Crown corporations, all officers of Parliament, all foundations, and all organizations that spend taxpayers' dollars, or perform public functions.

Two: Establish the Cabinet-confidence exclusion and make it an exemption subject to review by the information commissioner

Three: Establish a duty on public officials to create the records necessary to document their actions and decisions.

Four: provide a general public interest override for all exemptions. That is to say that the public interest should triumph the secrecy of government in those cases where it clearly does.

Five: make all exemptions discretionary and subject to an injury test.

. Indeed, the government would be making a very good start by heeding the input of the most knowledgeable person in Canada today on Access to Information: our own Information Commissioner, the final name on my “honour roll.”

Born in Fort Frances Ontario, John Reid was the youngest MP in Parliament when he was elected in 1965, serving through six elections to 1984. He was one of the architects of Canada’s Access to Information Act, introduced by Francis Fox, (now Senator Fox), and he’s enjoyed the unusual distinction of being both a founding father and an ombudsman for freedom of information in Canada. His tenure as Commissioner has been marked by a steadfast commitment to defending the public’s right to know, and an enthusiasm for his work that is unfortunately all too rare.

Ladies and Gentlemen, let us give a warm welcome to John Reid!

Anne P. Kothawala is president and CEO of the Canadian Newspaper Association (CNA). The Association represents the voice of the newspaper industry.