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"Moving Beyond the Access to Information Act"
Remarks to the Annual Finance and Corporate Services Mess Dinner for the Department of National Defence and the Canadian Forces
Robert Marleau, Information Commissioner of Canada
Ottawa, Ontario
February 21, 2008


I am truly honoured to have been invited to be your Guest of Honour and to speak to you this evening.

Usually the first thing I think of when I’m asked to speak at an occasion like this is, “What message do I want to convey?” This time my first question was, “I wonder if my tuxedo still fits.” You can see the answer for yourself.

When pondering on both - my tuxedo and my speech, I took several things into account. First, I’m speaking to you after pre-dinner drinks, a very fine meal, wine, after-dinner port and toasts and March Pasts. And, as soon as I finish speaking, the formal part of the dinner will be over. For all those reasons, I will keep my remarks short and sweet.

When I was asked to say a few words this evening about issues to do with Canadians’ access to information on the military and the Department of National Defence, little did I know that DND would be at the centre of so much media coverage about the issue of what information should - or should not - be revealed about its military activities. It has been hard to pick up a newspaper or turn on the radio or TV in the last month or so without coming across coverage of the war in Afghanistan or an area that the military handles - you guys really have been in the line of fire!

I am also very aware of the fact that I am speaking to a group of people who are all committed to their work, know exactly what their role is, understand their mission and their orders like no one else in the public service of Canada. In short I believe you are a tough audience for an information commissioner.

As you may know, one of my roles as Information Commissioner is to investigate complaints when Canadians believe they are not getting fair access to the information about government policies, decisions or activities. But, appreciating the hard work you are doing and the challenges you face, I am not here to do battle about nitty gritty details. Instead, I’d like to use this opportunity to raise a few fundamental questions about how government information is shared, not just with the media, but with Canadians in general, that go to the heart of our democracy. Along the way, I’d like to challenge you to think again about access to information, and ponder its critical contribution to the basic freedoms some of your comrades are literally fighting for.

We are all aware of the highly sensitive nature of some of the information that the Department of National Defence handles. But how much do you think Canadians should have the right to know about the work you are doing - the policies and the activities?

I’m sure everyone in this room is familiar with the Afghan detainee issue and the recent criticisms because of a change in the government’s policy. The treatment of detainees is a sensitive problem and a difficult responsibility for any nation in modern times.

Churchill defined “prisoner of war” as a man who tries to kill you and fails, then asks you under international conventions not to kill him. But, when it was decided, for all the right reasons, not to hand the Afghan detainees over to local authorities, nothing was released to the public until it came out recently by accident.

An old adage goes: “No news is good news.” But surely the fact that Canada decided not to turn over any more detainees to the local authorities in Afghanistan, thereby removing the risk of them being tortured, was good news. Lately, it’s beginning to seem as if the government has adopted the, “Good news is no news at all adages”

The Globe and Mail and CBC - amongst other media - have suggested that this failure to disclose information is indicative of a fog of secrecy hanging over the government.

I think that is too simplistic an assumption particularly as it applies to Afghan military operations. At the same time we’re finding so little information being proactively revealed that it’s leading to the impression that there is a thick fog over any available information. To put it in meteorological terms, visibility is severely limited, with transparency close to zero.

Perhaps you are wondering: “What’s all this got to do with the Information Commissioner of Canada? As long as no- one is complaining about an access to information request gone sour, what’s the problem? Let me explain.

As an advocate of Canadians’ right to access to information, I would like to see a change of mindset so that the government goes from only releasing information on a “need to know” basis, to recognising everyone’s ‘right to know’.

Before the Access to Information Act came into force in 1983, people made informal requests for information, and got it, in a variety of ways. For example, by going to reading rooms, being sent a press release or attending a news conference. The Access to Information Act recognizes these are valuable ways of obtaining information and the Act is not intended to replace existing means of accessing government information or limit the type of government information normally available to the general public.

Yet, despite this clear message from Parliament, today, in the 25th anniversary year of the Act, it is beginning to seem as if the Act is the only way to gain access to government-controlled information, and then often with a struggle. This is not how it should be.

The Act’s message is clear. The public should not be forced to put in an access request to find out about what the government is doing. That should really be a last resort. If governments are proactive in developing good relationships with parliament, the media and the public in general, there will be less need for access requests and Canadians won’t need to lodge a complaint with my Office about the lack of information they’re receiving.

This is not just my opinion. A unanimous recommendation of the Manley Report from a distinguished “Independent Panel On Canada’s Future Role In Afghanistan”, was that “The Government should provide the public with franker and more frequent reporting on events in Afghanistan, offering more assessments of Canada’s role and giving greater emphasis to the diplomatic and reconstruction efforts as well as those of the military.”

If we have reached the point where even good news is not released, then we are doing a disservice to the soldiers and personnel who, every day, are working hard for the achievements and progress they are making. We are also not fully sharing with the public the challenges they face in reaching their goals. Public support for our troops is very high, support for what they are doing can only grow and be positive if the Canadian public is fully aware of the contribution, in combat or humanitarian effort.

Of course the government should not reveal any information that could bring harm to those who serve in Afghanistan, or any other information that could compromise our safety and security. But Parliament thought of this issue 25 years ago when it passed the Access to Information Act which recognizes the importance of protecting such information and contains exceptions and exemptions, which can be used by departments like National Defence or Foreign Affairs and International Trade, that handle the most sensitive and secret information. I and my Office exist as an independent arm’s length party to assist in doing this and ensure these exceptions are being applied appropriately and fairly. This has worked in the past and in 25 years there has never been, to my knowledge, a leak from my office through the investigative process.

Some details of records such as travel and hospitality expenses and awarded contracts are routinely being made available, which is a good start. But much more remains of interest to Canadians that is hidden from easy view, when disclosure should be the norm.

Perhaps by now you are thinking: “OK. But what does this all have to do with us? Surely the Information commissioner understands that the civilian authority determines such policy matters!”

Indeed, few people in this room have the means or the reach to influence government policy on disclosure. I know that and I’m not that naïve. But almost everyone in this room works for, and is paid by, Canadians. If we want to dispel the myth of the “culture of secrecy” it can start with a change in mindset in the rank and file.

What I’m asking you to do when you go back to your offices is to think and talk about is this notion of openness about information in the spirit of good government and true transparency. The right to know is part of what we are preaching in Afghanistan even if this means disclosing awkward or embarrassing information from time to time.

The most precious asset a citizen has in our form of democracy is his or her vote. Truthful and accurate information is the currency that changes hands in a democracy and allows the citizen to vote with knowledge. Timely access to information also allows the citizen to consent to the rule of law. Without reliable and verifiable information, democracy is an empty shell.

So the next time an access to information request comes across your desk take a moment to reflect on this basic value of Canadian society. However frustrating, distracting, vexatious, frivolous, time-consuming or expensive you might conclude that request to be, remember that someone is simply exercising his or her right to know and more importantly for those of you in the military, remember that your comrades are in harms way working to offer the same opportunity and democratic value to the people of Afghanistan.