Government Unfairly Slows Access to Information Commissioner Concludes

Ottawa - Canada’s Information Commissioner has upheld a newspaper industry complaint that government practices of tagging requests for information as “sensitive” create “unfair and unjustifiable delays in the processing of those requests,” and has urged government departments to stop holding up information.

The finding marks the conclusion of an unprecedented three-year investigation into 21 government departments triggered by a complaint from the Canadian Newspaper Association in September, 2005, alleging that “secret rules and procedures (...) contravene the (Access to Information) Act, (and) result, more importantly, in unfair and unjustifiable delays in the processing of media requests for government information to which the public has a right in our democracy.”

“This is a major victory in that the Commissioner confirms there is a serious problem in the way information that has the potential to embarrass the government can be obstructed,” said David Gollob, CNA’s Senior Vice President, Policy and Communications.

“The Access to Information Act is a critical tool for investigative journalists, as well as parliamentarians, NGOs, and others who seek to hold government to account. But delay kills stories and frustrates journalistic inquiry. Whenever something is allowed to undermine transparency in this way, the system of democratic accountability in which newspapers play such an important role is weakened,” he said.

The Information Commissioner’s report, released simultaneously to the CNA and to the government, emphasises that the investigation did not find that media requests are singled out for special treatment, because requests from parliamentarians and lawyers are also likely to be treated in this way. The Commissioner, an Officer of Parliament with an ombudsman’s role in investigating complaints under the 25-year-old Access to Information Act, also finds that there is nothing illegal in the practice.

While applauding the Commissioner for shining a light on labelling of requests as “sensitive” (also known as “red-flagging” or “amber-lighting”), the CNA questions the finding that media requests are not specifically targeted, and that such practices do not amount to a system of “secret rules” which have no legitimacy under the Act.

The CNA notes, in its own separate analysis of data collected by the Information Commissioner, that more than one in four of all requests designated for special handling comes from media requesters, even though fewer than one in six requests overall come from the media. In fact, media requests are about twice as likely to get the tougher treatment as requests overall.

Canadian newspapers have reported a significant rise in impediments to government information to which the public has a right in recent years. Successive Information Commissioners have complained in Annual Reports about “chronic” and “crippling” delays.

The Commissioner’s report, coinciding with the 25-year anniversary of Canada’s Access to Information Act coming into effect, highlights the increasing dysfunction of a system originally designed to ensure transparency and the need for tougher freedom of information legislation to reverse the trend. The CNA has been lobbying for reforms to the Access to Information Act for over a decade.
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Background
The Access to Information Act is one of the most important tools available to journalists and other researchers to see beyond official spin and find important facts that underlie government decisions.

After the CNA complaint was filed in September, 2005, the Office of the Information Commissioner selected 21 federal departments and agencies for scrutiny. Of those, 16 acknowledged they had a system to designate certain requests for special handling, with labels such as “amber light,” “of interest” and “high visibility.” Reasons for doing so included the need to notify superiors or the Minister’s office, or the desire to have media relations officials prepare “communications products” prior to the release of documents.

The Access to Information Act makes no provision for such special processes, which have been layered on top of the proper legal process by government bureaucrats.

The CNA is pleased that the Commissioner has shone a light on the practice of “amber-lighting” certain requests, but questions the conclusion that media requests are not singled out.

Furthermore, the CNA questions the rationale for giving the appearance of endorsing “amber-lighting” by issuing recommendations on how to administer it in future. The CNA believes that such extra-legal systems add needless layers of complexity and delay to a process that is already notoriously unresponsive.

Based on an analysis of request data from the agencies that were investigated, the Commissioner concluded that a variety of types of requesters are affected, and in particular, parliamentarians, lawyers and media. He rejected the view that media are singled out.

The CNA points out in its own analysis of the data, however, that more than one in four of all requests designated for special handling comes from media requesters, even though fewer than one in six requests overall come from the media. In fact, media requests are about twice as likely to get the tougher treatment as requests overall.

This was among the conclusions of an independent review of the investigation data prepared for the CNA by University of King’s College journalism professor Fred Vallance-Jones, who also found that media requests take longer to process than others, even if they are not officially tagged for special handling. They are also more likely to be subjected to administrative obstacles such as requests for time extensions, and deletion of some of the material prior to release. The Commissioner’s report doesn’t address these issues, although the office was provided with the Vallance-Jones report.

The Commissioner’s report comes at a time of crisis in the entire access-to-information regime. It has become routine for departments to demand long time extensions, to the point where media requests routinely take months to process, whereas thirty days is the standard established in the legislation, unless extensions are warranted.

“The evidence suggests that media requests are delayed as a matter of routine,” Mr. Vallance-Jones said. “Even when they are not ‘sensitive,’ they take longer.”

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For more information or to receive a copy of the reports mentioned email: info@cna-acj.ca  

For interviews: email dgollob@cna-acj.ca or tel. 613-301-6162

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