The right to know in a timely fashion

Reprinted with permission from the Ottawa Citizen

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Tuesday, May 7, 2002

Alasdair Roberts
The Ottawa Citizen (op/ed)

Canada's right-to-information laws are supposed to give every Canadian equal access to documents by government departments. But many who use these laws suspect that in reality there is a double standard on access to information -- and now there is more evidence that they're right.

The complaint voiced by journalists is that government departments often give them second-class treatment by delaying responses or being less generous with information. In one recent study, journalists suggested that delays were sometimes "bureaucratic strategies intended to kill stories by letting them drift into irrelevance."

Canada's provincial and federal Information Commissioners also worry about a double standard. Ontario's Commissioner, Ann Cavoukian, said in her last annual report that provincial ministries seemed to have special procedures for requests filed by the media or opposition politicians that resulted in slower and more restrictive decisions. Cavoukian called this a "systemic problem" in Ontario government.

In 2000, federal Information Commissioner John Reid alleged that recurring delays in responding to media requests to the Department of National Defence had been caused by the attempt to manage "political considerations, including the communication needs of the minister." Reid also criticized Human Resources Development Canada for delays in processing requests relating to the grants and contributions scandal, which Reid said were driven by the government's "reflexive need to control the story."

In fact, a recent internal report on the federal law concedes that some requests are singled out for special treatment. In some departments, senior officials are given weekly updates about incoming requests and impact statements that alert them to the anticipated consequences of disclosing information. The computer systems used by departments to handle requests support these practices by categorizing incoming requests by the type of requester and sensitivity.

Our research, to be published in Policy Options magazine this month, gives clearer evidence that these procedures result in differential treatment for some requests. We used the federal access law to obtain internal data on the processing of over two thousand requests completed by one major department -- Human Resources Development Canada -- between 1999 and 2001. The analysis looked for patterns of differential treatment, controlling for other factors -- variations in workload or the breadth and type of request -- that also influence the handling of requests.

The results suggest that requests filed by the media or political parties received worse treatment, even when other relevant factors are taken into account. If a request was submitted by a journalist, processing time increased by an average of three weeks. For requests from political parties, processing time increased by twenty-four days.

HRDC's computer system allows it to explicitly tag requests as sensitive -- a feature that the department used in 1999 but not in later years. Processing time for requests tagged as sensitive increased by an additional two weeks.

Similarly, the results show that HRDC was more likely to violate statutory response deadlines if requests came from the media or political parties. For enquiries about government policy proposals, the chances that response time would exceed statutory deadlines were at least seventeen percent higher in 1999, fifteen percent higher in 2000, and twenty percent higher in 2001. The analysis also suggests that HRDC was more likely to exercise its right to extend statutory deadlines if requests came from the media or political parties.

These disparities in response time are a serious problem. As the government's 1977 white paper on access to information observed: "The essence of the so-called 'freedom of information' idea is not simply access to government documents, but timely access." Timely access is obviously crucial to journalists and opposition parties. A delay of a few weeks can make a world of difference in politics, because the agenda can shift quickly.

Our findings are not surprising, because the access law's enforcement mechanisms are not effective in coping with problems of slowness. In fact, it wouldn't be an exaggeration to say that there is no effective remedy for problems of delay. The Office of the Information Commissioner, staggering under a burgeoning workload, took over three months to resolve complaints about delay last year. Even then, there is little that the Office can do to remedy the harm done by delay. It can't reverse time so that requested information regains its relevance.

There are better ways to deal with problems of delay and differential treatment. One is publicity. The Information Commissioner could require that departments produce more informative statistical reports on the processing of requests. His office could also undertake inexpensive statistical work that reveals the impact of internal procedures. Such publicity would generate pressure for better and more even-handed administration.

The Commissioner also needs better tools for dealing with departments with a habit of non-compliance. The best approach would be to give him the explicit authority to require that non-compliant departments publish plans for improving their internal practices. Authority to impose further sanctions may not be necessary. Departments would become publicly accountable for deficient performance and their failure to take remedial action.

Legislators must also share responsibility for problems such as these. For years, federal Commissioners have implored Parliament to oversee the operation of the access law more closely. John Grace complained in 1993 that the law "lacks visible champions of openness in Parliament," and suggested that his reports "might as well be put in a spaceship to Mars." In 1999, Commissioner John Reid chastised the Commons Justice Committee for its "historical lack of interest in fulfilling its legal responsibilities toward the access law." The committee, said Reid, "has not been doing its job."

Perhaps it's poetic justice. Of all Canadians, Members of Parliament are in the best position to undertake the oversight needed for fair and consistent implementation of the access law. For years, they've squandered the opportunity. Now, the evidence suggests that political parties have become one of the two main groups demoted to second-class status.

Alasdair Roberts is an associate professor at the Maxwell School of Syracuse University. This study will appear in the May 2002 issue of Policy Options magazine.

 Copyright 2002 The Ottawa Citizen

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