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Third International Conference of Information Commissioners
Remarks by John Reid, Information Commissioner of Canada
February 21, 2005
I am pleased to be here to take part in the Third International Conference of Access to Information Commissioners and also very pleased to be in Mexico in February when it is minus 30 in Ottawa. Most governments speak well of the public’s right to know, but resist mightily the loss of power to manage the timing and content of any public release of information. This conference is a wonderful opportunity to recharge our batteries, establish solidarity of purpose and resolve and learn new strategies for changing strong cultures of secrecy in all our countries.
In the short time available to me, I am going to concentrate on three areas: first the actual usage and cost of the Canadian access to information régime, second the attitude of government and the bureaucracy towards the law and third the rise of secrecy in the name of national security.
In 1983, when Canada’s Access to Information Act was proclaimed in force, and in the debates leading up to the passage of the Act, the government predicted that the number of requests per year would be in excess of 50,000. Resources, procedures and policies were premised on that prediction. It was feared that the Act would be used in frivolous and malicious ways to tie up departments completely, keeping them from providing their core services to the population of Canada.
These fears proved to be totally groundless. In fact, Canadians have proven to be extremely, perhaps inexplicably, restrained in their use of the Access to Information Act. The first year, 1984, saw 2,229 requests. Even after almost twenty-two years in force, there has yet to be the 50,000 requests anticipated in just the first year. By contrast, the U.S., received over two million requests last year. Based on population, Canada should have received 200,000 requests in the same period, but only received some 29,000.
Furthermore, Canadians have been making focused requests for small numbers of records. Eighty percent of all access requests result in the release of fewer than 100 pages. Ninety percent of requesters make fewer than seven requests per year and only thirty-five percent make more than one request per year. Less than ten percent of requests result in complaints to my office. Finally, the total cost of delivering the access to information system, government wide, including the costs of my office, as of 2002, was 28.8 million dollars. This is less than $1.00 per year, per Canadian and the per request costs are dropping.
Given the above, you should be surprised to learn (but likely will not be!) that the government and the bureaucrats want to punish requesters for their record of responsible use by making it harder and more expensive to use the right of access and by increasing the reasons for secrecy. The most recent review of our Act was done in 2002 by a Task Force of government bureaucrats and the resulting report recommends that the law be “reformed” to make it work better for government officials rather than for citizens.
Since the Report, there has been a private-member’s bill introduced into Parliament to modernize our Act, and withdrawn on government promises to come forward with a comprehensive package of substantially similar reforms. It remains to be seen if this will happen since it would appear that the regressive recommendations in the Report will be the basis for a government reform bill promised for the spring.
The second bit of Canadian experience I’d like to share with you concerns the hostile and distrustful attitude of the federal government, and its bureaucracy, towards the Access to Information Act and my office. You probably caught a hint of this in my remarks I just made on the cost and usage of our access system. That is just the tip of the iceberg.
Governments make skeptics of Information Commissioners. Time after time, régime after régime, scandal after scandal, government leaders raise expectations by promising to be more accountable and transparent. Just as routinely, governments maintain their deep addiction to secrecy, spin, foot-dragging and decision-making by nods and winks. When it comes to honouring the public’s "right to know", governments in Canada have found it profoundly challenging to "walk the walk".
Nothing undermined the right of access more, in the past twenty years, than the disdain shown for it by two long-serving Prime Ministers, Brian Mulroney and Jean Chrétien. Their destructive example spread like a cancer through the senior bureaucracy. For over twenty years, Canadians seeking information--especially about any subject the government considered "sensitive"--have been met by a wall of obstruction, obfuscation and delay. The recently retired former Prime Minister of Canada, Jean Chrétien, initiated some 25 court cases against my office seeking to circumscribe my powers, especially to investigate ministers and the Prime Minister. Happily, the courts have been supportive of the Access Act and my office.
The depth of the culture of secrecy is such that our right of access law in Canada is administered by officials as if it were a secrecy law. In the face of a request for records they ask themselves, too often, "may the requested records be kept secret?" The access law makes it clear that officials should also be asking: "Even if they may, why should the records be kept secret?"
I hasten to add that front line officers and middle managers are starting to get on with the job. Public servants at these levels are, for the most part, service-oriented, comfortable with a client-centered philosophy of public administration and take pride in delivering the access to information program as successfully as they deliver other programs to Canadians.
Yet, at the senior level of government, there remains, at least until recently, a more hostile attitude towards the right of access. Of course, generalities are unfair and fail to acknowledge that, even at the senior levels and in Cabinet, there are self-assured individuals who lead by example when it comes to respect for the Access to Information Act.
There is, nevertheless, a troubling trend, especially at senior levels, to avoid writing things down, for fear of access. This trend, coupled with annual rounds of budget cuts, has given rise to a crisis in records management in the Government of Canada which, more than anything else, threatens the very existence of a meaningful right of access. If records are not created, included in properly managed systems of records and properly preserved, what good is a right of access!
The right of access is, despite all resistence, cherished and championed in Canada by academics, the media, the judiciary, Members of Parliament, the legal community and the public at large. The Supreme Court of Canada has defined the primary purpose of the law to be to hold public officials accountable and it has considered the law to be quasi-constitutional in nature and vital to a healthy democracy. The Canadian lesson is this: get the law right at the beginning, because governments won’t want to strengthen it later. But there is a corollary, this law, once in place, is almost politically impossible to kill. Once the power is shifted from the state to the individual, to decide what governmental-held information should be disclosed, there is no going back and citizens are enormously fortunate for that.
To his credit, our current Prime Minister, Paul Martin, has begun to confront, head on, the attitude in influential places that the Access to Information Actis a pain in the neck and that openness is something to be avoided even to the point of abandoning the professional duty to keep good records. He has been clear that ends do not justify the means, that good record-keeping is essential to good governance and that politicians and bureaucrats should be open about the public’s business. The early signs, then, are hopeful, but much work needs to be done.
Finally, I’d like to mention the third area of experience in Canada, one that is shared by most countries in the world since the events of September 11th, 2001. That is the increasing rise of secrecy, in the name of national security, which is being driven by the U.S. war on terrorism.
Since the terrorist attacks in the United States on September 11, 2001, the Canadian government has taken a number of initiatives designed to restrict public access to information and restrict the ability of the Information Commissioner to independently review government refusals to disclose information. In , Parliament passed the Antiterrorism Act which gave the Minister of Justice the authority to issue a certificate which would not only cloak information in secrecy, but also terminate any ongoing investigation by the Information Commissioner related to such information.
To date no such secrecy certificates have been issued under the antiterrorism legislation to terminate access investigations. Yet it is only a matter of time before governments use these secrecy tools to the fullest.
Canadians continue to complain about excessive secrecy on the part of government institutions which play a role in ensuring public safety. In the Canadian Senate, the Standing Senate Committee on National Security and Defence undertook an examination of security at Canadian airports.
In January of 2003, the Senate Committee issued a report entitled: The Myth of Security at Canada's Airports. Here is what that report has to say about the government's refusal to disclose security-related information:
"The Committee recognizes the need to balance the public's right to know against the interests of national security. But unreasonable secrecy acts against national security. It shields incompetence and inaction, at a time that competence and action are both badly needed. The Parliament of Canada Act designates Parliament as the primary agent in providing Canadians with good, balanced government. The Committee sees itself as helping to perform this role on behalf of all Canadians, and considered the resistance of some people who chose to hide behind a false wall to be most inappropriate."
This excessive caution continues to lead to an overwhelming push for ever more secrecy in anything to do with potential threats to national security. Of course, national security can be misused to avoid public accountability for spending and exercise of state power. At the moment, there is a public inquiry, being held in Canada, into what has come to be known in Canada as the Arar affair. Mr. Maher Arar is a Syrian-born Canadian citizen who was apprehended in the U.S. on suspicion of having ties to Osama bin Laden’s terrorist network and was deported to where he says he was systematically tortured over the course of several months. He was allowed to return to Canada in the autumn of 2003.
The public inquiry was called to determine what role, if any, the RCMP and CSIS,Canada’s spy agency, had in the deportation and subsequent torture, in Syria, of Mr. Arar.
Since the public inquiry began, much of the testimony has been held in secret at the insistence of the Canadian Government. Seemingly frustrated with the secrecy surrounding his public inquiry, the presiding judge announced his intention to release a 12-page summary of the closed-door testimony. The Canadian government objected to even this amount of disclosure and has asked the Federal Court to order that portions of the 12-page summary be kept secret.
Freedom of information laws were intended to move us beyond a form of government accountability based solely on trusting the word and good faith of public officials. While trust in our public officials is important, and usually deserved, openness laws allow citizens to verify that their trust is well-placed. All of us involved in ensuring compliance with freedom of information laws have a high calling and I’m deeply grateful that we have this occasion to renew our resolve to be wise and courageous in our work.
I thank you for your kind attention and welcome any questions you may have.