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Transparency, the Risk of Setbacks: The Case of Canada
Conference: Mexican National Transparency Week
John Reid, Information Commissioner of Canada
August 30, 2006
Estoy extremadamente contento al estar hoy con ustedes, en su celebración de la Semana Nacional de la Transparencia. Para mi es un honor, al poder compartir mis pensamientos con ustedes.
I am extremely pleased to be here today to join you in your celebration of National Transparency Week. I am honoured that you asked me to share my thoughts with you.
Before I left Canada to join you, I was immersed in the preparations for Canada’s Right to Know Week, which is coming up in September. These national celebrations of openness should cause all citizens to pause and consider how important the right to know is, as well as how fragile it can be.
I have been Canada’s Information Commissioner for a little over eight years now and I am coming to the end of my final term next month. Over those eight years, one reality has been driven home to me over and over again. That is, a strong freedom of information law is essential, but insufficient in itself, to the task of changing an entrenched bureaucratic culture of secrecy. As well, there must be tangible, clear leadership from the elected and non-elected heads of government in support of openness.
In the time allotted to me today, I am going to share with you some examples of how the right to know, the right of access to information, has improved the transparency of government in Canada and how it supports and strengthens other important democratic rights. I will also share with you some of the challenges that we have faced, and continue to face, which will, no doubt, also be challenges which Mexico will face.
I am anxious to focus on the infrastructure on which a healthy open government régime rests; that is: adequate resources; careful training; professionalism in the creation, retention, use, disclosure and disposal of records and readiness of senior officials to stay out of disclosure decisions so that the processing of access requests becomes a routine embedded process within government. Weakness in any of these areas will undermine even the strongest of freedom of information laws.
Canada has had, from the very beginning of its Access to Information Act, on July 1, 1983, a solidly-entrenched bureaucratic culture of secrecy. Despite changes of government over the years, and despite my, and my predecessors’, best efforts, this culture of secrecy remains strong in our federal government. The most recent example in Canada is that it took the bureaucracy less than two months to convince our newly-elected government to back away from most of its election promises to be more open and to strengthen our access to information law. Yet despite this entrenched culture of secrecy, the doors and windows of government in Canada have slowly, but steadily, opened and the light of knowledge has begun to illuminate the workings of government.
Let me give you an example of this from very recent history. In the mid-1990s, the government began a secret program to spend money in the province of Quebec to discourage separatist sentiments which had resulted in an extremely close referendum vote on the issue of Quebec’s separation from Canada. Many millions of dollars were spent by the federal government on events and advertisements promoting national unity. Yet, there were quiet suspicions that some of this taxpayer money may have been simply wasted or, worse still, funnelled into the coffers of the then-governing Liberal Party.
In 1999, a reporter for a Canadian national newspaper, the Globe and Mail, began making requests, under the Access to Information Act, about this program. This led to a series of articles which stimulated public discussion and concern about possible corruption in the administration of the program. The access requests led to audits, the audits confirmed the suspicions and resulted in the establishment of a national judicial inquiry, RCMP investigations, criminal trials, convictions and imprisonments. Courtesy of the Access to Information Act, and the processes it engendered, Canadians learned about serious corruption in the administration of a government program, political kick-backs for government largesse and deliberate actions by public officials to avoid compliance with several federal statutes, including the Access to Information Act.
Even the judge who presided over the national judicial inquiry, Mr. Justice Gomery, credited the exposure of this scandal to the access to information request made by the journalist. He documented in his reports, the internal manoeuvring by bureaucrats to try to manage the request, limit the information released, and bully the bureaucrat responsible for administering the access law in the department responsible for federal contracts. But, in the end, the requested information was released and the rest, as they say, is history, including the fall of the then incumbent Liberal government to minority status and now to opposition status.
The right to know may be in need of repair, but, when it works, it performs its functions very well. That, of course, is why no government likes freedom of information laws. That is why all governments seek, over time, to widen the net of secrecy and close the window of openness (to mix my metaphors!). But, more of this later.
This vital, fundamental link between information rights and democratic health is eloquently captured in these words from a 1997 decision of the Supreme Court of Canada:
“The overarching purpose of access to information legislation … is to facilitate democracy. It does so in two related ways. It helps to ensure, first, that citizens have the information required to participate meaningfully in the democratic process, and secondly, that politicians and bureaucrats remain accountable to the citizenry”.
The recent events in Canada, which I have just recounted to you, bear eloquent witness to the truth of the Supreme Court’s words.
This brings me back to the topic of this panel, “Transparency – the risk of setbacks.” Despite each victory for transparency, despite the election promises of political parties, governments usually end up making skeptics of open government advocates. 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, and around the world, have found it profoundly challenging to "walk the walk".
This reality prompts my first caution: Do not become complacent just because a freedom of information law is on the books. Passage and adoption of an open government law guarantees nothing. It is but a first step; media vigilance, citizen pressure, academic attention, judicial support – all the forces which achieved the passage of access laws must remain organized, and fiercely determined to push back the inevitable “secrecy creep” that will emerge.
The second caution I wish to offer is that the new law will fail if there is a lack of adequate resources to do the mandated job. Chronic under-funding of the “access to information” program has been a problem in Canada, both for departments and the Commissioner’s office, since the inception of our Act in 1983. Year after year, Information Commissioners have asked ministers to provide adequate (not extravagant) funds to enable Commissioners to effectively discharge the duties Parliament gave them. The requests were routinely denied or pared down to bare bones.
So, too, is it for the small offices in each department which receive access requests from the public, search for records, apply exemptions, seek approvals and send answers. They were not adequately resourced. Answering access requests fully and quickly is a resource intensive business. Every department must be given the people necessary to answer the average annual workload of access requests within response deadline – in Canada, 30 days. When there are unusual peaks in workload, there must be a process for pulling together additional resources for the short term workload increase.
Since the Canadian access law came into force in 1983, until last year, the government – by definition the target of all my office’s investigations – had the power to set my office’s budget. Such was the fatal flaw in the care taken by Parliament to make my office independent of government. While it is true that the government continues to set my office’s budget, we have begun a two-year experiment in Canada in which a panel of representatives of all parties represented in Parliament, reviews our resource requests and makes recommendations to the government. During this experiment, the government has agreed to give serious weight to the panel’s recommendations. That process bore fruit last year and, now, for the first time in 23 years, my office is adequately resourced to investigate complaints from members of the public with thoroughness and speed.
The third caution I wish to offer is that any lack of attention to training of government ministers, government bureaucrats, access to information administrators and frequent user groups, will weaken the effectiveness of an access law. Let me speak first about the need for specialized professional training and certification of the full-time access and privacy administrators. These officials are, in every jurisdiction, the unsung heroes of openness. They are the “ham in the sandwich”, squeezed between bosses who do not want records disclosed and requesters who do, all the while being investigated and second-guessed by the Commissioners to whom dissatisfied requesters may make complaints.
In Canada, very unsatisfactory official training has been made available to them. As a result, because these administrators are not armed with the necessary knowledge base, professional attitude and ethical good sense, they are no match for the forces of secrecy in their departments. No problem has preoccupied me more than this during my tenure as Canada’s Information Commissioner. And, I am proud to say that we have made some progress in Canada, which may offer benefits for Mexico as well.
Over the last several years, my office has partnered with the University of Alberta in preparing course materials and the infrastructure for their Information Access and Protection of Privacy Certificate Program offered via the Internet. Since the program’s inception, many federal and provincial access and privacy officials, plus others from around the world, have taken and completed this certificate program, leading to better educated staff and more knowledgeable decision-making.
Our goal in Canada is to create a new professional group – the information rights administrator. A national committee has been struck to develop educational standards and a professional certification process. That work will be completed by the Fall of 2007. Thereafter, we hope to see the development of one or more professional schools to provide the needed education and to be centres of academic thought and research into information rights issues. My sense is that the University of Alberta will be at the forefront of this new profession and I was pleased to learn that it has been in talks with Mexican authorities concerning the development of a training package for information rights professionals in Mexico.
My plea to you is this: Do not repeat Canada’s mistake; do not wait 23 years to ensure that your access to information and privacy administrators are suitably educated and certified professionals.
A fourth caution, and this is a delicate area, is that you must be careful not to let the fear of, or the fight against, terrorism to be used as an excuse to unreasonably, or unnecessarily, diminish the hard-won right of access to information. All access to information régimes have built into them legitimate exemptions for information that may prove to be injurious to law enforcement or national security. In Canada, we feel pressure from our allies to throw heavy blankets of secrecy over any information remotely connected with the so-called war on terrorism. I urge you to resist such temptations and to insist that the advocates of secrecy always bear the burden to demonstrate the reasonable likelihood of injury from any disclosure.
The final flag of caution I wish to raise is that an absence of good records management, including the initial, crucial step of record creation, will render an access law meaningless. In my view, there is no greater threat to transparent and accountable government than poor practices with regard to the creation and life-cycle management of government records. The challenge is especially pressing with respect to electronic records.
When records documenting the actions, decisions and considerations of public officials are not created; when such records are created but are not included in an indexed institutional system of records or when the disposition or archiving of records is left to the unguided whim of the records creator, then there can no longer be an effective right of access to information no matter how strong the words of the law may be.
As well, all the other mechanisms of accountability, too, will suffocate from the lack of information oxygen. In Canada, our Auditor General keeps warning Canadians and Parliamentarians, in ever more urgent tones with each passing year, that the audit function cannot be carried on with confidence in the absence of paper trail. Parliamentarians and Parliamentary committees are expressing consternation about the unavailability of government records to assist them in their deliberations. Journalists are becoming less able to obtain source records and data and more reliant on the carefully managed information releases from government communications spin-doctors.
The topic of information management may not seem – at first – to have much sex appeal. But we all should be passionate about it, because on it hinges our very ability as democratic societies to have transparent and accountable government. It is one of the first steps to dealing with the “democratic deficit” in any jurisdiction. Further, the failure to create appropriate records will have a negative effect on the ability of the government to operate efficiently and effectively. Poor records management leads to poor decisions!
In the Canadian federal public sector, there have been some positive developments, there is a positive momentum and our challenge is to keep pushing ahead. One way in which I have been pushing is by urging the government to amend the Access to Information Act to make it mandatory for officials to create records. Here is the provision I have recommended: “Every officer and employee of a government institution shall create such records as are reasonably necessary to document their decisions, actions, advice, recommendations and deliberations.” I have also recommended that it be made an offence to fail to comply with this requirement with the intent to deny a right of access. These recommendations are the subject of study by a Parliamentary Committee.
I hope this message of caution, this call to vigilance, will not be discouraging. You should be enormously proud of what you have accomplished and I extend my sincere congratulations to the people of Mexico on your new right to receive government records, subject to limited exemptions and subject to independent review. This new right contains the power to enrich the Mexican democracy because it takes power away from governments to control the message. Yet, for that very reason, governments will try to reclaim lost power and the new law will face challenges.
It is my hope that the lessons of the Canadian experience, which I have shared with you, will help you meet the challenges ahead. I feel sure that, in the years to come, Canada will be learning important lessons from Mexico about how to govern in the open.