Critics fear secrecy-loving feds planning to tighten federal access law

Reprinted with permission from Canadian Press

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Saturday, August 25, 2001

Jim Brown

Canadian Press

OTTAWA (CP) - It's supposed to be a window for citizens to peer into the shadowy inner workings of government. But critics fear a planned overhaul of the federal Access to Information Act, ostensibly designed to nudge the window wider, will instead be used by Prime Minister Jean Chretien and his cabinet to slam it shut.

The access law, subject to only minor tinkering since it passed in 1983, has been targeted for review by a task force of bureaucrats who have been at work for a year.

Please see below for a primer on the federal Access to Information Act

A report is expected to go to cabinet sometime this fall, to be followed by legislative amendments that will be brought before the Commons.

Already, however, some observers are worried about the quality of advice the Liberal government is getting and the kind of legal changes that may be on the way.

"The task force is in a conflict of interest," declares Duff Conacher, head of Democracy Watch, one of a coalition of public interest groups lobbying for more open government.

"The representatives on the task force are bureaucrats regulated by the act. In no other policy-making exercise do we allow the institutions that are regulated to undertake a review of the regulations."

John Reid, the federal information commissioner who oversees the law, is also wary of the way the review has been conducted.

Reid has met with two external advisory panels set up by the task force. But he has had no consultations with the inner core of officials, headed by Andree Delagrave of the Justice Department, who ultimately control the exercise.

"This is an extremely closed process," Reid observed in an interview. "I can't enter into a consultation with them because I have no idea what they're proposing."

Reid does have some suspicions.

In his last annual report, tabled in June, he took the extraordinary step of outlining a series of so-called reforms that - if they are recommended by the task force - should be rejected out of hand.

"If you see them, you know the beneficiary is not Canadian citizens, it's going to be the insiders," he warned.

Among the measures he red-flagged were any increase in user fees, any expansion of cabinet secrecy provisions and any move to deny public disclosure in sensitive areas like national unity strategy.

There has always been a wide gap between theory and practice in the 18-year-old law.

In principle, the act allows any Canadian, upon payment of a $5 fee, to obtain a wide range of documents from government departments and agencies.

In fact, additional charges are common for handling complicated requests, delays can drag on for months or even years despite a supposed 30-day deadline and a lengthy list of exemptions allows the government to keep much information secret.

Nor are all requests treated equitably.

"The access requests made by journalists and opposition members of Parliament get slower service, closer scrutiny and more conservative treatment," Reid wrote in June.

That was especially noticeable during the furore last year over patronage and pork-barrelling in grants handed out by the Human Resources Department.

As demands for information grew, the flow of responses slowed - partly because of sheer volume, but also because senior bureaucrats wanted to ensure a media strategy was in place to explain away embarrassing facts before making them public.

Documents from all departments are routinely edited, as well, to delete material on foreign affairs, federal-provincial relations, national security, confidential cabinet deliberations, legal advice to ministers, commercial secrets and a variety of other matters.

Many Crown corporations, including the CBC, Export Development Corp., Atomic Energy of Canada and Canada Post, have never been covered by the legislation.

Other things that used to come under its purview no longer do, as Ottawa has spun off, contracted out and privatized services in recent years.

NavCan, the private entity that took over air traffic control from the Transport Department, doesn't have to comply with the act.

Nor does the Canadian Blood Service, established to clean up the national blood supply following the scandal over tainted transfusions that spread the HIV virus to unsuspecting recipients.

Getting such agencies under the umbrella of the access law is a key goal of open government lobbyists.

"We need to see more institutions covered and fewer exemptions," says Conacher. "If something serves a public function and receives government money it should be covered by the act."

Alasdair Roberts, an authority on the access law who taught at Queen's University before moving to Syracuse University in New York, agrees but isn't holding his breath.

"It's tough to see this government making improvements in any of these areas." says Roberts.

"This is the government that excluded all of these new institutions. Including them now would mean a reversal of their policy decisions."

Delagrave, the chairwoman of the federal task force, agrees the advent of a grey zone of public-private enterprise raises thorny issues.

The task force has commissioned a pair of research reports that concluded the law should be extended to cover such enterprises. But she won't tip her hand on her final recommendation to cabinet.

Delagrave does, however, bristle at suggestions her group is automatically biased in favour of secrecy because it is made up of public servants.

Her mandate, she insists, is to improve the law and not to gut it.

"The Canadian bureaucracy has a long and honourable tradition of impartiality and good service to Canadians. Certainly the task force intends to be part of that long, honourable tradition."

Those who have worked with her describe Delagrave as sincere and open-minded. But not all think that means the government is ready to fling open the doors to its vault of secrets.

"I don't think the fix is in," says one source familiar with the review.

"But the very nature of their research and their questions is influenced by the fact that they are government insiders. It really is stacked and it's worrisome."

Liberal backbencher John Bryden was worried enough to launch his own parallel review of the act, cobbling together an ad hoc committee of 14 MPs, including representatives of four of the five parties in the Commons.

His effort has been hampered, however, by the refusal of the government to let key civil servants appear before the committee.

An irate Bryden, in a recent letter to Liberal House leader Don Boudria, suggested senior cabinet ministers - including Chretien - are falling prey to an elitist, "blinkered mentality" that gives short shrift to the public's right to know.

For Bryden, the issue is not just the machinery of the access law but the right of elected MPs to hold cabinet as well as bureaucrats to account.

"It's something that really strikes to the heart of how the country functions, how Parliament functions," Bryden said after firing off his letter to Boudria.

"My heavens, what's wrong with having an open, public debate about government openness?"

He is not the only one to worry that the real problem lies not in the technicalities of the law but in the mind set of those in power.

Reid reported last year that his office was under "full counter-attack" from government officials - including some in the Prime Minister's Office - who paid no heed to the spirit of the access law..

He found no improvement this year, reporting again a "stubborn resistance at the top" and a determination to "do things the hard way in dealing with the commissioner."

Chretien's office is currently locked in a court case against Reid about whether the access law applies to the daily agendas that record all the prime minister's meetings.

Ironically, however, Reid rejects one solution proposed by others.

He doesn't want the legal right to simply order disclosure of disputed documents, preferring instead to rely on informal persuasion, mediation and recommendation.

The reasons for his stand are telling. Reid fears that if he started issuing orders the government would just carry every case to court and prolong the agony.

"It's a power without punch," he says. "Every order that you make would be appealable, so it really doesn't get you anything. All it does is create another stage."

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A primer on the federal Access to Information Act:

History: Passed in 1983, minor revisions since then but repeated recommendations for more thorough reform ignored.

In Theory: Any Canadian, for a fee of $5, can obtain records of government departments and agencies.

In Practice: Additional fees often charged for complicated searches; delays of months or years common despite 30-day time limit; many exemptions allow information to be kept secret.

Changing Times: Ottawa contracts out or has privatized many services, meaning records can no longer be accessed.

Federal Response: Task force of bureaucrats has been reviewing the law for a year, will deliver recommendations to cabinet this fall.

The Fear: Critics worry task force will gloss over need for reform or urge changes that further shield information.

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