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Rights + Justice

Feds Compiled 110 Pages on My Moves as I Filed Info Requests

Why Canada’s new transparency law already needs a redo.

By Ethan Lou 3 Jul 2019 | TheTyee.ca

Ethan Lou’s first book, Once a Bitcoin Miner, a memoir through scandal and turmoil in the cryptocurrency Wild West, will be published in 2020 by ECW Press.

“When you gaze long into the abyss, the abyss gazes also into you.” So said the 19th century German philosopher Nietzsche. Let me update that a bit. When you keep tabs on the government, you soon learn that, in some way, the government also keeps tabs on you.

I would know. One federal department has accrued at least 110 pages associated with me.

I used to regularly file hundreds upon hundreds of freedom-of-information requests, or, as they are federally known, access-to-information requests. That process, enshrined into our laws and those of like-minded countries, allows anyone to request any piece of government document, making it a great tool for journalists and the public to keep administrations honest and accountable — in theory, at least.

In reality, that process in Canada is often laden with absurd delays, and the resulting documents are often black seas of redaction.

The government also actively sticks its nose and hands in the middle. Its spin doctors scrutinize ATI requests from media and keep files on how to deal with the potential impact of resulting news stories.

All of this I’ve experienced myself, as have many others. Despite the spirit of transparency behind ATI laws, the request process almost systematically keeps information out of the hands of the public, information that people, not just the media, have a right to know.

Critics, often frustrated journalists, call the process “broken.” That description can also be fittingly applied to the current Liberal government’s promise to fix it, the update to Canada’s ATI regime passed by Parliament last month, Bill C-58.

The invisible hand

In the middle of 2017, along with some federal documents I requested, I received a curious note. “Analyzed on: May 29, 2017,” it read. “Level of Concern: Low / Considerations: Contents are either approved... messages or known facts.” That analysis, evidently not meant for my eyes, was done by a “communications advisor.” What was additionally interesting was that the internal document was not an analysis on my request. It was on someone else’s.

Later, I quizzed a federal ATI analyst on the matter, who responded: “It is a communication note prepared by our communication sections on certain requests, particularly those of a sensitive or hot-topic nature.” That note had been accidentally sent to me. Curious, I filed a request to see what the communication notes on my requests, if any, looked like. Up to the middle of 2017, there were 110 pages of them, in which some requests were scrutinized by several different sections within the department.

My experience is, unfortunately, not unheard of. Nor is it considered the worst way forces outside the ATI office insert themselves into the process. In 2009, under the then-Conservative government, a minister’s political staffers — who come and go with elected officials and are separate from the department’s career civil servants — exerted pressure to “unrelease" documents whose disclosure they deemed to potentially cause reputational harm.

FOI regimes for other levels of government are administered separately and are unaffected by Bill C-58, but they, too, suffer from the same issues. In 2017, the office of Alberta’s justice minister, occupied by the New Democratic Party, demanded that the wider ministry show it all records requested by media or the opposition.

And that is a problem. “Surveillance opens up the potential for abuse. If government knows who is filing the request, it opens up the door to treating those requests differently than they would any other request,” Sean Holman, a freedom-of-information expert at Mount Royal University, told the CBC.

But while the 2009 incident resulted in a federal police investigation, keeping tabs on potentially sensitive requests, as was the case of the 110 pages, is largely legal. The federal information commissioner, the authority on such matters, has said giving certain requests special treatment is OK if doing so does not delay the process. Some ATI requests, unfortunately, will always be more equal than others.

In 2016, Global News did a story that used an ATI request to get an inside look into public input for images on a new banknote. There was no significant embarrassment brought by that story to Bank of Canada, but it did note some public suggestions were “downright racist.” The bank quickly swooped into the middle of that ATI request. “In a letter accompanying the documents, the Bank of Canada was careful to note that ‘these commentaries are not the views of the Bank of Canada’ — an unusual addition,” Global reported.

After that, the same year, the central bank was designing another note, the first to feature a woman other than the Queen, and was soliciting public input on who that new face should be. I sent an ATI request for public submissions, hoping to mimic the previous Global story. I was told the Bank of Canada had hired a contractor to handle public submissions; as private companies are not subjected to ATI laws, the central bank had no records to provide me.

When I asked what Bank of Canada's rationale was for using a contractor, noting that it came after the Global story and that it appeared more than a coincidence, a spokeswoman said it was because of the “scope, timeline and process” of the matter, without going into further detail. She added that the letter that came with the release package was “not at all unusual.”

Who the public thinks should be on a money is a relatively minor issue, seemingly uncontroversial, and perhaps the Bank of Canada should be given the benefit of the doubt — that outsourcing its image-submission process was not a deliberate attempt to make it immune to ATI requests.

But think about that for a moment, how easy it could be for governments to skirt the rules and hide in the dark.

What if governments used outsourcing as a tactic to gain more opacity on issues with more policy or security implications? That is a scary prospect. It is no wonder that countries with no ATI laws are also those with abysmal human rights records.

‘Some baloney’

In 2017, the ruling Liberals introduced Bill C-58, legislation for, in their words, “the most comprehensive reform of Access to Information in a generation.” “These changes will put more government information in the hands of Canadians and provide greater transparency on the use of public funds,” the press release read.

The relevant cabinet minister at the time, Scott Brison, said the law fulfilled an election promise made three years ago by his then-third-place party. But if you’re not a Liberal, you might disagree.

The Liberals had promised to make the offices of the prime minister and his cabinet open to ATI requests. Bill C-58 only made those offices do “proactive disclosure,” meaning they choose what information they want to make public; the offices themselves remain closed to ATI requests.

That proactive disclosure does make politicians release more information than previously, and that in itself is a good thing. But those files are disclosed outside the usual ATI covenants such as deadlines and the oversight of the information commissioner, even as they remain subject to the same redactions and withholdings. The Canadian Press, which tracks truthfulness in politicians’ words, rated the Liberals’ praise of the bill as having “some baloney.”

When it was proposed, Bill C-58 ignored a key recommendation from the then-federal information commissioner for a provision that would override traditional exceptions to disclosing documents if they contain information in the public’s interest. Bill C-58 also allows agencies to deny any request that is “vexatious, is made in bad faith.” Who determines what constitutes bad faith? The government, of course.

The then-president of the Canadian Association of Journalists said his profession hopes for a more transparent government, and “C-58 will not get there.” The then-federal information commissioner said the law could “result in a regression of existing rights.” Ryerson University’s Centre for Free Expression said, “We are deeply disappointed.”

The federal NDP also weighed in, saying, “Once again, the Liberals have failed to keep a black-and-white election promise.” But the provincial NDP in Alberta has been accused of political interference in freedom-of-information requests when it was in power. The NDP in British Columbia faces similar accusations.

This is clearly not a partisan issue or a matter unique to one level of government. An opposition party accuses the government of opacity, yet if and when it takes power, it becomes subject to the same accusations, often from the party that used to receive them.

Rather aptly, the BC NDP government’s predecessors, the provincial Liberals — who promised freedom-of-information reform, but were criticized for transparency after they came into power — called the alleged actions of the new administration “complete political hypocrisy.” Such is the circle of FOI life. Knowledge is power. You covet it when you’re in opposition; you hoard it when you’re in government.

The looming darkness

For all the federal Liberals’ boasts about making its government more transparent, its annual reports show that has not always been the case. Since 1983, when the ATI law came into effect, about one quarter of the documents released for nearly one million requests were free of any redactions. But for 2017, the first full fiscal year the Liberal government was in power, only about one fifth of requested files were completely disclosed, although that figure did rise back to the average in 2018.

By other metrics, however, the current Liberals have fared worse. Ever since the party came into power, the percentage for requests closed within “established timelines” — the statutory 30 days or within an extension period given by the government — fell nearly 10 percentage points to 76 per cent.

The Treasury Board Secretariat, the federal department in charge of ATI, did not immediately respond to a request for comment. The department’s then-minister Brison, however, did concede to the CBC in 2017 that his government’s changes to ATI do not live up to what stakeholders wanted, but added he has done all he could. "Don't let perfection be the enemy of the good," he said.

To its credit, the government has backed down on parts of Bill C-58 that required filers to meet a level of precision that critics said were unreasonable. The then-federal information commissioner said those parts could hamper efforts by Indigenous groups to settle land claims which involve archival documents whose format may be unclear.

That is just one example of how inadequate ATI laws can colossally erode a free, democratic society. Using ATI requests, the National Observer uncovered off-book government meetings with an oil lobbyist, ultimately resulting in the restart of the review process of a pipeline.

In a collaboration with other outlets, the Observer revealed through ATI laws that the Alberta Energy Regulator gave inflated liability estimates to industry; the organization announced the resignation of its head after that report. FOI requests were heavily used in the Globe and Mail’s “Unfounded” series that revealed police dismiss one in five sexual assault claims as baseless, prompting the reopening of many cases.

Those are just the few among many. Now imagine all of that gone, if those stories never existed. Imagine the conversations that would go on in smoky backrooms, the handshakes done under the tables and the palms greased behind backs. Imagine all the information voters do not know when they head to ballot boxes. When nobody is watching, people tend to act as if nobody is watching.

Yet such a day may be looming. Bill C-58 was the first-ever change to the ATI legislation. If the next one happens at all, or if the rules for lower levels of government change, too, some of us may not live to see it. And there may not be much worth seeing.

Given that nearly all governments, even those that campaigned on transparency, have been accused of lacking that quality, who is to say any future change will be in the direction of more openness? It would not be long before Bill C-58 becomes the new normal and our bar for transparency goes down a notch. Little by little, we slip deeper into darkness, and every step we take is one that will be more difficult to walk back.  [Tyee]

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