Hinds speaks at Right to Know event

Friday, October 03, 2008

Ontario's Information and Privacy Commissioner hosted the third annual Right to Know Week luncheon in downtown Toronto on Thursday, October 2, an event honouring the public's right to know about the doings of its government.
 
Speaking at the event were Ann Cavoukian and Brian Beamish of the province's Information and Privacy Commission; Mark Vale, Chief Information and Privacy Officer for Ontario's Ministry of Government Services; David McKie of CBC News’s investigative unit; and John Hinds, chief executive officer of the Canadian Newspaper Association and the Canadian Community Newspapers Association.

Below is a transcript of the speech, "The right to know and the means to know: why good laws have not good access made," given by Hinds at the luncheon.

Thank you for inviting me to speak here today.

As you know, the newspaper industry has long been an advocate of freedom of information reform in Canada.

As newspapers, we believe strongly in the principles of transparency and accountability.

Fortunately, we are not alone.

Among Canadians today, there is a consensus that transparency is a good thing.

Canadians want to protect themselves from the abuses that attend secrecy, and to that end, they want government officials – whether they like it or not – to operate in a glass house.

But how far can we take this transparency principle? What information might we allow to be withheld from us?

* * *

Over the past 25 years, our lawmakers have laid down some fairly solid ground rules on freedom of information. We now have laws guaranteeing access to information in every province and territory. In fact, we now have what the Supreme Court of Canada recognises as a "quasi constitutional right" to access public records.

Some of the Access laws are more comprehensive and up-to-date than others. In practice, none of them is perfect.

But to get to the point I’d like to make today: somehow, somewhere along the line, the original spirit of the legislation began to erode.

Indeed, for many citizens, and particularly for journalists, these laws created to foster a culture of openness and transparency are now undermining that same objective. Far too often, the laws are disabling or delaying access rather than enabling it. They have added a daunting, often expensive process to the already onerous task of locating and deciphering government records in a vast bureaucracy.
 
In short, a task that is beyond the capacity or the patience of most citizens.

Here, the case jumps to mind where Citizenship and Immigration Canada was requiring applicants to appeal to freedom of information laws to access their own medical records.

The Access to Information regime should not be the principal means of obtaining information about our government. It was never intended as a hoop that must be passed through, a hurdle that must be leapt over, a form that must be filled out. It does not proscribe a bureaucratic process.

ATI laws were created to underwrite our right to information. Appealing to it should be a final recourse in rare cases when information is wrongfully refused.

In other words, if information can be disclosed under ATI – and the vast majority of it can be – it should be disclosed upon request.

This misconception about the role of ATI laws is exceedingly frustrating to those of us in the newspaper industry, and I believe it is inhibiting the freedom and undermining the integrity of the press in this country.

The reality is that many small newspapers and harried reporters simply don’t have the time or resources to wade through a bureaucratic morass to obtain public information.

* * *

As many of you know, CNA has been advocating on this issue for a number of years, and every year since 2005, we have commissioned a National Freedom of Information Audit.

This audit surveys Canadians’ experiences with information accessibility.

In the first phase, seekers of information put the request to the official directly and in person.

What we have found is that for the most part officials are unaware of the law, or when aware, don’t know how to handle it. Perhaps from fear of making a mistake or from sheer defensiveness, they frequently force the seeker to submit a formal request under the access law, even when the law says the information should be disclosed outright.

This simply doesn’t make sense. It is like forcing pedestrians to fill out a form to cross the street. If they are entitled to visit any neighbourhood in the town, why have them fill out forms at every intersection?

Public records belong to the public. Using formal access procedures should be the exception, not the rule.

In our audit, we have also found that while in many cases information is duly provided without question, when written requests are demanded, the outcome is less predictable.

Many requests are not answered on time, and others are refused.

The modus operandi at most Canadian jurisdictions continue to be confusion, inconsistency, and a very flawed understanding of the importance of transparency to the democratic system.

The federal government ranks last among Canadian jurisdictions when it comes to meeting freedom of information obligations, and provided only 17 per cent of information requested by journalists. By contrast, provincial government in Prince Edward Island and Saskatchewan provided 100 per cent of records requested.
 
This year, we are working with the journalism school at King’s College in Halifax to expand the scope of the audit. Stay tuned for results.

* * *

I would like to share with you one example of how the system continues to stifle the public’s right to know.

It’s a case that highlights the importance of the federal government’s leadership on this file – something for us to consider as yet another election draws near.

The federal information commissioner recently upheld a complaint we made about the "secret rules and procedures" that "contravened the Access to Information Act and resulted in unfair and unjustifiable delays in the processing of media requests for government information to which the public has a right in our democracy."

Given the substance of the complaint, lodged in September 2005, perhaps it’s not surprising that we only got a response last month.

But let me summarize actions taken on this specific issue in the past few years:

• In September 2005, the CNA launched a complaint to the Office of the Information Commissioner (OIC) alleging discriminatory practices in the management by federal bureaucrats of media requests under the Access to Information Act

• In January 2007, the CNA received data from the first part of the OIC’s investigation – a database and accompanying texts on government management of ATI requests over a 2-year period

• CNA asked two distinguished experts (Prof. Al Roberts and Ann Rees) to prepare a brief memo analysing this data within the extremely narrow (1 month) timeline allowed for this purpose. The analysis showed the government subjects media requests to discriminatory practices, intensive scrutiny, resulting in delays.

• OIC asked government to respond; government took 5 months to respond, hiring four research firms with a mandate to attack and discredit CNA’s analysis; this report was received in June 2007

• In July and again in August 2007, CNA objected to the course the OIC investigation had taken and the misuse of the CNA’s preliminary analysis; specifically CNA objected to the fact that OIC intended to limit its “investigation” to discussion of the CNA memo and the government’s response to it

• In November, 2007, OIC backed down and agreed to interview journalists to obtain first-hand evidence of the management of media requests

• In the meantime, CNA worked with Fred Vallance-Jones, an acknowledged expert on government databases and currently a professor of journalism at King’s College, Dalhousie, to prepare an in-depth analysis of the government research firms’ analysis of the data

At issue here more than anything else was the rampant practice of "amber-lighting," where certain requests, usually from journalists, are flagged as sensitive and subsequently delayed, censored or refused.

After our complaint was filed, the information commissioner found that, of the 21 federal departments and agencies she singled out for scrutiny, 16 of these had a system to designate certain requests for special handling. They had labels such as amber light, of interest or high visibility. The reason cited for this procedure was the need to notify superiors, the minister’s office or to have PR people prepare communications products before releasing the documents.

Of course, the Access to Information Act makes no provision for such special processes.

The practice is most pervasive among requests from media and requests for records held by the federal government.

We have found that one in four cases of "amber-lighting" concerns a media request, even though fewer than one in six requests overall comes from the media.

Our research also shows that media requests take longer to process than others, whether or not they are flagged for special handling. They are also more likely to face administrative obstacles such as requests for time extensions and censorship of certain passages or data prior to release.

We were disappointed that some of these issues were not addressed in the Commissioner’s report.

What the report does recognize, though, is that we are facing a crisis in the federal Access to Information regime.

Indeed, we continue to be troubled by the current Prime Minister’s unwillingness to fulfil his pledge – made during the 2006 election campaign – to reform the Access to Information Act.

Specifically, the Conservative Party committed to:

•  implement the Information Commissioner's recommendations for reform of the Access to Information Act.

•  give the Information Commissioner the power to order the release of information.

•  expand the coverage of the act to all Crown corporations, Officers of Parliament, foundations and organizations that spend taxpayers' money or perform public functions.

•  subject the exclusion of Cabinet confidences to review by the Information Commissioner.

•  oblige public officials to create the records necessary to document their actions and decisions.

•  provide a general public interest override for all exemptions, so that the public interest is put before the secrecy of the government.

•  ensure that all exemptions from the disclosure of government information are justified only on the basis of the harm or injury that would result from disclosure, not blanket exemption rules.

•  ensure that the disclosure requirements of the Access to Information Act cannot be circumvented by secrecy provisions in other federal acts.

The Conservative Party’s original intent was to include the above reforms in the Accountability Act.  When that act was introduced in April 2006, the reforms were absent from it.

Since then, the government has had a number of opportunities to implement these reforms, but has failed to do so. In fact Conservative MPs voted against motions by the opposition to table reforms to the Act.

The Conservatives were elected on a platform of accountability and transparency, and in a recent letter to Stephen Harper, the CNA asked whether the PM planned to live up to that promise.

So far, we have no response.

* * *

We are also concerned with some new practices creeping into federal legislation.

Here I refer to the dreaded Schedule II Section 24, the portion of the Act laying out exemptions.

Recently we succeeded in having sections of Bill C7 defeated at Committee Stage.

The bill proposed changes to the Aeronautics Act that would shift records of airline safety under the mandatory exclusions of Schedule II, section 24.

Specifically, it would make commercial airlines responsible for filing safety audits, a task currently performed by Transport Canada.

The transferring of public records to private hands is a worrisome trend.

We are concerned about similar changes in the administration of food inspection. The recent listeriosis crisis has served to highlight the importance of the public’s right to know.

* * *

As someone who represents almost 1,000 newspapers in this country, in every community in Canada, I must also talk about what is happening on the ground, and the real barriers that newspapers face very day in delivering information to their readers.

It is clear that many journalists in this country do not enjoy a culture of access and transparency.

For many of these men and women, the focus of their interest is not the machinations of Ottawa, but the community in which they live – the activities of their school boards, their hospitals, their municipal councils, their police forces, and their court houses.

And here again, we see the absence of a true culture of openness.

All too often freedom of information is treated as a quid pro quo, or a privilege that can be withdrawn from wayward editors.

The following case would be funny if it weren’t so disconcerting.

A local newspaper staked out the Tim Horton’s and reported on the time that police officers spent there. In retaliation, the police refused to give access to their radio.

In another case in Alberta, local media and the RCMP had reached an agreement where all incidents would be e-mailed to the local media. However, recently in Taber, AB, an accident that sent five people to hospital was not reported to the town’s newspaper.

We are seeing some progress. CNA has lobbied hard in New Brunswick, where the MUSH sector (Municipalities, Universities, Schools and Hospitals) was recently brought under the Act.

In Ontario, we have pushed the province to expand the Act to include the university and healthcare sectors, which it has done.

We laud these advances, but still, the system remains too far from perfect.

We need reform, and we need it now, to facilitate the free flow of public records from the dusty file cabinets and computer databases of our government offices into the hands of its citizens.

Thank you.

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