Federal government plans to keep more public records secret

Including documents on advertising sponsorship

Reposted with permission from the Hill Times

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Monday, June 24, 2002 

Ken Rubin
The Hill Times

The Chrétien Government has just received its internal Treasury Board's Access Task Force Report and plans to use it as the basis for ramming through regressive amendments this fall to Canada's 1982 Access to Information Act. This means more public records will be cut off, including ones exposing government waste in the sponsorship program.

The $4-million dollar, two-year exercise was set up as a brokered Privy Council Office deal to help shut down greater public access. Right from the start, the sponsors of the task force -- Treasury Board and the Justice Department -- made it clear that its hand-picked task force would not be changing the "sound balance" of the Access Act, just fine-tuning it.

Now the government wants to sell the task force's findings as reasonable and "bold." That's because they recommend expanding the Access Act's coverage to records held by Cabinet, Parliament, the Information and Privacy Commissioners, the Auditor General, and some federally-funded agencies.

But what is unsaid is that very few such records will become available. And most Cabinet records would not even be considered for release until 15 years later -- if the Prime Minister okays this proposal. However, the Prime Minister Office's records and most ministerial records most adamantly still remain excluded.
True to its mission, the task force endorses every existing Access Act exemption and adds more.

The task force's new ways to deny access include creating a brand new exemption to refuse release of records concerning cultural and heritage sites. They also, incredibly, want officials' "personal" jot notes to become classified as secret and that could put a big smile on the faces of those public servants who have always wanted to legally keep a second set of records squirreled away.

So-called draft audits, until thoroughly vetted, are also deemed secret. Consultant reports become exempt because they would now be considered policy advice. More data from foreign authorities and "critical infrastructure" data also become exempted. The section that allows other acts to be added to override the Access Act is also retained.

The law enforcement exemption would be greatly expanded despite my having won a Federal Court of Appeal ruling in 1998 restricting its application once specific investigations are completed. Now, the government's task force wants to permit all "foreseeable" future legal and consumer regulatory investigations to qualify for exemption.

The task force also wants officials to spend more time classifying records in advance for security purposes. And the task force did not protest or resign en masse last fall when the government's anti-terrorist bill incorporated into it Attorney General powers to issue secrecy certificates for 15 years that order courts not to disclose undefined security related matters applied for under the Access to Information Act.

Some of their other suggestions amount to exemptions, too. The task force wants time extensions to delay releasing data when access requests "interfere" with their normal departmental operations. Applications that are considered frivolous, vexatious or abusive can be excluded, and they want powers to ensure that requests are "focused efficiently," and to their liking.

But for the government itself, the task force recommends considerable extra public monies for "effectively" processing requests. However, it rejects its own access operations being subject to conduct codes or being penalized for lousy service. But it still demands control over how they are to be evaluated and suggests the Information Commissioner's Office join them in inside evaluations and cast aside doing any more critical independent assessments of departmental compliance with the Access Act.

The task force, on the other hand, however, has no hesitation in telling Information Commissioner John Reid what's wrong with his operation. I should say, there's no doubt that the Commissioner's Office needs an overhaul, greater transparency, better mediation procedures and binding order powers, but it's hardly the role of those currently at war and in court with the Commissioner over matters like the releasing of the PM's daily agendas to be pushing changes, some of which, like restricting the Commissioner's subpoena powers, are to their selfish advantage.

For his part, the Information Commissioner, in a brief release last week, called the task force report "timid" and was rather restrained in stating some suggestions expanded the government's "zone of secrecy."

Meanwhile, nowhere in the task force report is there a plan to increase public use which is now stuck at a little more than 20,000 applications a year. Instead, the task force report looks more to official training retreats, better notifications going to corporations, and more "guidance" being put on official websites.

The task force avoids changes that would promote open government such as suggesting whistle-blower protection, open meetings, mandatory record-keeping, retrieval requirements, or placing freedom of information into the Charter of Rights and Freedoms. It also ignores the wealth of external access experience and successes.

If the federal government proceeds with the report it will only lead to further public cynicism and mistrust, and will ultimately suppress, rather than advance open government in Ottawa.

Ken Rubin is an access to information advocate. His e-mail address is kdrubin@cyberus.ca

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