Art (Eggs) Eggleton making noise about red tape

Reprinted with permission from Esprit de Corps

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Tuesday, October 16, 2001

Bill Beswetherick
Esprit de Corps 

Parliament in 1983 recognized that an open government and an informed public were essential to effective democracy, and passed into law the Access To Information Act (ATI) which allows Canadians to request records from government departments, including DND. In 1997 Doug Young, then the Minister of National Defence, promised DND would, "comply unequivocally and proactively with the spirit and the intent of the law regarding access to information." Despite this assurance, however, the Office of the Information Commission (OIC) has stated DND "offered a case study of how not to administer access rights," and for the past five years has rated DND as one of the most complained-against government departments, primarily because it regularly takes more than the 30 day limit to respond to most requests.

Despite repeated expressions of support by the current minister, many senior officers oppose ATI. Lieutenant Colonel Brett Boudreau, a senior Public Affairs (PA) officer at NDHQ, reflects the views of many of these officers. He has published articles in DND publications (The Canadian Military Journal and Army Doctrine and Training Bulletin) in which he severely attacked ATI and defended DND's failure to meet its legal obligations. He attacked the motives of those who use ATI, made unsubstantiated claims about its costs, and questioned the competence and motives of the OIC. It appears ATI is more of a threat to Canada's military than was Germany in two world wars. Many of Boud-reau's comments, however, are unsupported by facts and reflect a siege mentality about all criticism.

Malicious Media

Boudreau claims media use ATI primarily to reveal "minor public servant and departmental failings." Because of the media's use of ATI, however, Canadians learned of such issues as the murder of an unarmed Somali and the circumstances surrounding the poisoning of ex-WO Matt Stopford which involved serious ethical questions and called into question DND's commitment to reform. Boudreau also claimed media revelations have lowered morale, as though the reporting of fraud, abuse, and incompetence caused this rather than the actions themselves.

He charged that media were interested primarily in "the curiously trivial as against the dull important," but also noted their requests were "the most time-consuming to process, because they generally reflect broader, more complex issues" even though the OIC wrote in 1999: "As for the complexity of requests, Treasury Board collects no statistics on this subject."

Independent and adversarial media are essential in a democracy. Perhaps Lieutenant Colonel Boudreau and other senior CF officers prefer Canadian media be controlled in the same manner as DND does with its publications, such as the Maple Leaf. The OIC has attacked "The paternalistic belief by many public officials that they know best, what and when to disclose to citizens, remains strong." ATI is required because DND has failed to provide Canadians the information they require to debate major defence issues even though there are more PA officers in NDHQ than there are journalists in the entire Parliamentary press corps. Peter Kasurak, a senior Auditor General official, recently criticized DND for not providing information and noted "excessive secrecy was the problem."

Colonel Ralph Coleman (left) was the branch head of Public Affairs during the most controversial period of military scandals and coverups. (dnd)

Boudreau also believes there is a concerted media effort to attack DND. He claimed many ATI requests come from "agents acting as proxies for the media." However, DND recently stated it had no records to substantiate this allegation. Nevertheless, media may have valid reasons to use proxies to hide the identity of their requests. During the Somalia inquiry, DND altered records and denied others existed when media requested them. Currently, the Minister's staff are provided the names and addresses of those making requests.

ATI Interferes With Operations

Like other critics of ATI, Boudreau exaggerates the burden it creates. The Prime Minister claimed that "every day hundreds and even thousands of information requests are made." However, fewer than 45 requests are received each working day by all 150 government departments.

DND's problems with ATI do not result because of a large number of requests. In 1999-2000, DND, a department of 100,000 employees, processed 1252 requests, or about five per working day. The OIC has noted that DND's volume of requests "is in the normal range compared with other large departments." However, although it receives less than 8 percent of all requests annually, it accounts for 20 percent of all complaints.

DND's Concerns About Costs

Lieutenant Colonel Boudreau made the astounding claims that "ATI easily costs the federal government hundreds of millions of dollars per year to administer"and that "ATI costs to DND alone would easily be tens of millions of dollars a year." The Treasury Board document he referred to, however, stated that the total cost to all 150 government departments was only $22 million in 1994, a figure the OIC considers exagerrated. Treasury Board made its calculations based on estimates provided by departments that it did not check and that it acknowledged it did not discuss with the OIC.Whatever the cost, it is a minor and essential expenditure to ensure an effective democracy. The government spends more on the bonuses it pays senior officials each year. In addition, critics of ATI make no allowance for the financial benefits which have occurred because of greater frugality and honesty. It is difficult for DND to criticize the costs of ATI when it can find funds for frivolous projects such as a study on a combat bra that cost taxpayers $2.4 million. If DND is concerned about the excessive cost involved in keeping Canadians informed, it should consider disbanding the PA branch.

Kenny Calder (left), as the Assistant Deputy Minister of Policy and Communications for the past 15 years, has controlled the "non-flow" of information. (dnd)

Enemy At The Gates

Because of the actions of staff in DND and Health Canada, Parliament recently passed a law which makes it a criminal offence to destroy, alter, falsify, or conceal records. Boudreau warned of "the frightening ease" with which someone so inclined can now 'set up' public servants for stiff fines or even jail time." He failed to note, however, that staff face little prospect of such punishment because the government allows departments to investigate themselves and decide whether to notify law enforcement agencies if records had been deliberately altered or destroyed.

He charged the OIC "had no idea how the Act is being manipulated" to interfere with government even though the Commissioner has noted: "The old myth persists that the law is being abused by frivolous and vexatious requesters there are, happily, none in the system. No case is known of an access requester whose purpose is to attack, punish or interfere with the administration of any government institution."

Spies Everywhere

Boudreau believes the potential consequences of security breaches resulting from the ATI could threaten "the very survival of the nation" because it does not differentiate between "a citizen a terrorist or a muckraker." His solution, I assume, would be to deny everyone the right to request records. He failed to explain that ATI contains over 40 sections that allow departments to refuse to release information. Of the 1252 responses DND processed in 1999-2000, it exempted all or parts of 647. Despite his concern about the matter, there is little danger Canada's secrets will be obtained through a $5 ATI request unless DND fails to review responses adequately.

OIC Competence criticized

Boudreau harshly criticized the fact the OIC is exempt from the provisions of the very act it enforces because its records are not available to the public. Parliament did this to prevent reprisals against complainants and employees involved in investigations. Such fears were well founded. The OIC recently reported to Parliament that government officials had threatened the future careers of his staff. Boudreau also criticized the CF Ombudsman for requesting exemption from ATI, but failed to explain that he has been subject to all of its provisions since June 1999.

He accused the previous Commissioner of "a fundamental ignorance or willful blindness" to the adverse effects of ATI, and claimed the current Commissioner, John Reid (who, as a Liberal MP, played a key role in developing ATI), "has no idea how the Act is being manipulated." He also charged "it would be in [OIC's] best interest to overstate the depth and scope of Access problems... thereby perpetuating their office, budget and influence/power." These are amazing statements from a serving senior officer about officials appointed by the Prime Minister to administer a law passed by Parliament.

ATI Essential To Criticism

The records which ATI provides enhance the credibility of critics. The OIC praised Scott Taylor's "systematic, intelligent" use of ATI for his book Tarnished Brass: Crime and Corruption in the Canadian Forces and noted that without it his allegations would have been dismissed as "hearsay, unsupportable grumblings of the disgruntled ... much of the book was based on original records, source documents and signed invoices. That is why it was taken so seriously."

The Deputy Information Commissioner, Alan Leadbeater, noted about Boudreau's comments: "The author's vantage point will be taken into account by readers when judging the objectivity and credibility of the articles." This author asked DND, under provisions of ATI, to provide all records which would substantiate the claims made by Boudreau. DND stated: "A review of our files failed to identify records specifically responsive to your request." However, they did provide a note from Lieutenant Colonel Boudreau who explained that, because his article was originally written for a university course, "it is not subject to the Act. Therefore, I do not have any records which would answer the specific query of the requester." He would have been advised to remember the comment of Winston Churchill: "When presenting an argument, it is helpful at times to use correct information."

Paraphrasing the old adage that "If you want to get out of a hole, you've got to stop digging," Nose's advice to DND's senior management is "If you want to survive a P.R. shitstorm, you've got to stop spinning."

* director general, public affairs

When government officials argue against access rights, motives should at least be questioned. Boudreau is part of a group which has been amongst the major abusers of ATI. The OIC has written: "DND officials, including PA officers, have altered or destroyed requested records, grossly inflated the number of hours spent researching and reviewing records, giving requests the narrowest possible interpretation thus breaking the spirit of the law, not writing things down, conducting inadequate searches, providing the Minister's staff the names and addresses of requesters, delaying requests until PA has developed media responses, publicly attacking the motives of requesters, and delaying responses beyond a year so the requester cannot use the courts."

Conclusion

Although DND has made significant improvements in how it handles requests, it continues to receive a failing grade from the OIC largely because it takes more than the 30-day limit to answer most requests (I requested records 2 August 1996, but DND did not send them until 10 March 1999). The OIC noted these delays were a deliberate effort to "thwart the clearly expressed will of Parliament." They occur only because of the acquiescence of some senior officers. Major improvement is possible. Health Canada, despite a 67 per cent increase in requests received last year, reduced from 57 to 3 the percent of requests that resulted in complaints. During the same period DND reduced complaints from 69 to 38 per cent.

Even Boudreau [at times] finds ATI useful. In a recent Ottawa Citizen article, journalist David Pugliese referred to an NIS investigation that stated Boudreau alleged Captain Bruce Poulin had released information to the media. Boudreau acknowledged the newspaper comment "reflects what is in the report" but objected to the accuracy of the DND record: "I take issue with what is written in the report." It is ironic that a severe critic of the ATI and the media would learn of inaccurate information about himself in a DND record only because of an ATI request made by a journalist.

Much criticism of ATI is whining. DND has had 17 years to adjust to it, and the Supreme Court has stated it is an indispensable tool for ensuring an accountable government and a healthy democracy. The efforts of senior officers such as Boudreau to limit the effectiveness of ATI would leave the 100,000 personnel in DND and its $10 billion budget largely exempt from public scrutiny and from pressure to implement reforms. Criticism is the most effective means to prevent and correct error; unfortunately, too many senior officers oppose ATI because it opens their actions to review.

DND has every right to encourage debate on issues which affect the CF and its members; however, articles which appear in CF funded publications should contain reasoned arguments and accurate information. Lieutenant Colonel Boudreau's attacks on ATI appeared to be a diatribe rather than a judicious analysis of its effects on DND.

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