The No Access to Information Act
TBS produces a nothing burger, two and a half years in the making
The Access to Information Act (ATIA) is Canada’s version of a widespread democratic practice of freedom of information laws. The ATIA was passed into law in 1983. Its problems have been compounded every year since with little effort to make substantive changes. The ATIA is now broken beyond repair, operated by an overwhelmed and under-resourced government workforce, beset by extensive, extra-legal delays, spitting out fragmented disclosures abetted by an extensive regime of exemptions and exclusions, facing a mountain of complaints beyond the ability of Parliament’s agent, the Information Commissioner, to deal with. The ATIA, pushed over the edge by government work restrictions following the COVID-19 pandemic, has become the NATIA—”No Access to Information Act.” I exaggerate, but not by much, and to a purpose.
First, why does a functioning ATIA matter? It is meant to be a key instrument of government transparency, democratic accountability, and citizen knowledge, not least of Canada’s history. Access to Information has the status of a quasi-constitutional right. That’s pretty powerful stuff. But don’t take my world for it.
Here is what the law states:
“The purpose of this Act is to enhance the accountability and transparency of federal institutions in order to promote an open and democratic society and to enable public debate on the conduct of those institutions.” (s2(1)
https://laws-lois.justice.gc.ca/PDF/A-1.pdf
What happened to that lofty idea?
In truth, it collapsed right out of the gate. Without anyone quite discerning the implications, the ATI regime created at its inception a form of “access capitalism.” It imagined individual consumers of information who would access a government owned and generated marketplace of data, based on their own interests and desires. The investment involved was one of time and knowledge on the part of these access consumers, going through the process of filing access requests and waiting to receive the desired goodies. The consumer product (the goodies) was an atomized chunk of information that would be the sole property of the access consumer/requester to do with as she or he desired. Somehow the notion was that individual access consumers would generate a broader pattern of societal knowledge of Canada’s governance and history. How this was to happen was given no thought. And it didn’t happen. Instead what was served up through Access was a million shards of personally hoarded information. That might be satisfactory to individual consumers (myself included on occasion) and to the media in particular, but it is hard to see the scheme as serving any broader public interest. Without making individual Access document releases automatically and permanently available to the wider public, the whole idea, was frankly, nuts.
But to be fair, the intention at the outset was not to make the new Access regime the only way to generate public records. It was never meant to replace a pre-existing system which provided for the release of government records after the passage of a period of time—what was known pre-1983 as the “thirty year rule” (a concept borrowed from British practice). The new Access process was meant to serve as a parallel and complementary instrument to a more general and systematic opening up of government records after a designated period of time, records which would then be released into the custody of Library and Archives Canada for safe keeping and public access. It was also meant to be a “last resort” appendage to significant amounts of proactive publication by the government.
The overall design was intended as a comprehensive, three-part system. Accessibility of the historical record would be ensured through systematic declassification after a specified period of time; more contemporary records would be made available through ATI requests; the government of Canada would take seriously a democratic practice of proactive publication.
Except, this never happened. The systematic opening up of historical records simply ground to a halt, without anyone paying much attention. Proactive publication remained limited, even after changes were made in 2019. Requester access to records was hampered by extensive delays and swiss-cheese redactions—the process whereby record text is deleted in accordance with one or more of the many exemption/exclusion provisions of the ATIA. Swiss cheese outcomes went to individual requesters via ‘access capitalism.’ The public did not benefit as any records released through Access, did not become public records, they just slipped back into the control of federal departments and agencies or Library and Archives Canada, retaining their original security classification. Come again? That’s right—records released under Access to individual requesters went to them alone, and in their original state back into government storage, slumbering until the next Access request came along.
This crazy outcome was partly a product of limited resources. The new Access system simply ate up whatever was available, and it was never enough even to provide for a functioning Access system, quite apart from a regime of declassification and release of records. Access capitalism proved (un)surprisingly expensive and resource intensive for the government. And there was no way out. Successive governments have always argued that even if (a big if) they wished to make records released to individual ATIA requesters public, it would be too costly to do so, not least because it would require all such records to be translated in both official languages. I am very doubtful about that reasoning, but it served as a good excuse for inaction.
The record of the governance of Canada thus suffered two fates after 1983. One was that a vast bulk of records remained closed and inaccessible. The other was that parts of the repository of government records were picked over by access consumers chasing shiny shards of personal interest and then making off with them. Think magpies. Even so the shard hunt would prove increasingly frustrating.
Efforts to fix the Access system have never gone back to examine first principles—to take a hard look at the craziness of applied “access capitalism” and the absence of systematic declassification. The many studies of the Access system since 1983 have mostly documented the problems and sought solutions to make an unworkable hunt by Access users more workable.
One previous example of this approach was a report by an “Access to Information Review Task Force,” completed twenty years ago in 2002.
https://publications.gc.ca/collections/Collection/BT22-83-2002E.pdf
The Task force stands at the mid-way point of the history of the Act. It produced a bulky report with numerous recommendations. But because the task force consisted entirely of public servants (with two advisory committees—one external, another consisting of ADM level officials) it took a cautious approach. Notably, it found that the Access system, “is still basically sound in concept, structure and balance.” The Task Force report did convey an understanding that the Access system should be considered a “last resort” for providing information to Canadians, advocated for more proactive publication, but stopped short of arguing for a return to a systematic ‘30 year rule’ style of document release. It simply punted that problem to Library and Archives Canada for further study.
For the record, I wrote an expert report for the Review Task Force, on declassification of national security and intelligence records. It was ignored—except for a ridiculous effort to rebuke me for such temerity, conveyed in a sit down meeting with the then assistant Security and Intelligence Coordinator at PCO. Time flies, but I will never forget that one.
The original of the report exists on a CD. But some kind soul has produced a digital copy, so you can find it here:
https://www.jeremylewis.org/FOIA/CanATI/Wark02paper-intelligence1-e.html
An effort to diagnose the broken mechanics of the Access system, rather than its principles, is again at the heart of the latest undertaking by the government department in charge of the federal system, the Treasury Board Secretariat (TBS). The TBS is presided over by a Cabinet Minister. The current placeholder is Mona Fortier, best known perhaps for being the unassailable occupant of one of the safest Liberal seats in the land, the riding of Ottawa-Vanier, which she first won in a by-election in April 2017, following the death of the veteran MP Mauril Belanger.
By way of background to the current review, the Liberal government promised, in 2017, a two phase modernization of the Access to Information Act. The first phase would make some modest changes, primarily to enhance a limited range of proactive publications—essentially low hanging fruit. This was accomplished by Bill C-58, “An Act to Amend the Access to Information Act and the Privacy Act,” passed in June 2019.
https://www.parl.ca/DocumentViewer/en/42-1/bill/C-58/royal-assent
The promised second phase of modernization was embodied in statute (again Bill C-58), to require a review of the Act every five years. As part of that review undertaking, which began in 2020, the TBS engaged in a series of consultations in the spring and summer of 2021. The public-facing consultations were managed by a team of fresh-faced youth from the consulting firm Hill and Knowlton Strategies. Very nice they were, but totally lacking in any substantive knowledge of the Access system and guided by cream-puff questions set out by bureaucrats from TBS. The process was a complete waste of time, in my humble opinion, and that of knowledgeable colleagues and Access users who also took part.
See a Globe and Mail Op Ed written by myself and other colleagues who took part in the consultations:
https://www.theglobeandmail.com/opinion/article-canada-has-an-access-to-information-system-in-name-only/
But TBS forged ahead in the usual way and produced a “What we Heard Report” in late December 2021—full kitchen sink variety.
https://www.canada.ca/en/treasury-board-secretariat/services/access-information-privacy/reviewing-access-information/the-review-process/ati-review-interim-what-we-heard-report.html#toc5-3-1
While I have no doubt that it captures the conversation across four workshops and with multiply participants, what emerges is a grab bag of ideas, only some of which would actually improve the Access regime. Expanding the Access system to allow for universal participation (the Act is currently restricted to Canadian users), would only further break its back. Nor would expanding the coverage of the Act produce a better system—it would just produce more dysfunction.
Frustration with the application of exemptions and exclusions was well to the fore. The general sentiment was summed up in the need for a full, review of the current system of exemptions and exclusions, including the generous latitude provided for exemptions with regard to policy making advice (s21 of the current act). For those to familiar with how this particular barn door is locked, here is the language in the Act:
Operations of Government
Advice
21 (1) The head of a government institution may refuse to disclose any record requested under this Part that contains
(a) advice or recommendations developed by or for a government institution or a minister of the Crown,
(b) an account of consultations or deliberations in which directors, officers or employees of a government institution, a minister of the Crown or the staff of a minister participate,
(c) positions or plans developed for the purpose of negotiations carried on or to be carried on by or on behalf of the Government of Canada and considerations relating thereto, or
(d) plans relating to the management of personnel or the administration of a government institution that have not yet been put into operation,
if the record came into existence less than twenty years prior to the request.
Parallel to this exemption, there is an exclusionary clause (s69) prohibiting the disclosure of Cabinet confidences, a concept that lacks any real definition and is thus subject to widespread abuse.
Mounting delays in responding to access requests—here the system is truly broken—have helped sustain a view that the real problem is with a culture of secrecy that is deliberately impeding the work of the Access system. While there is no doubt that a culture of secrecy exists, it is given legitimacy and latitude by the generous exercise of generous exemptions and exclusions in the Act. The appearance of a secrecy agenda is further aided and abetted by the lack of resources applied to Access by the government and the limitations on professional talent in the system. It is not secrecy per se that has resulted in the NATIA (No Access to Information Act), but the very structures of the Access regime itself.
One area that TBS inexplicably failed to include in its workshop discussion concerned the importance of a declassification system for records, especially for Canada’s historic national security, defence and intelligence files. But the ‘What we Heard’ report couldn’t ignore it entirely, thanks to a forcible submission made by the Information Commissioner—hold this thought. More to come.
The “What we Heard” report concluded with an elastic promise—that the Government of Canada was “listening.”
The subsequent report of the Access to Information Act Review provided to Parliament in December 2022, put that promise to the test. The result—a big disappointment. Two and a half years were consumed in producing a “nothing burger.” That’s probably not a record—but still.
The review report is brief (35 pages, including two annexes). It opens with a “commitment” from the President of the Treasury Board to uphold the principles of openness, transparency and accountability. There is, notably, no specific “commitment” to improve the Access system, but Ms. Fortier encourages us all to “read this report.” Ok, then.
https://www.canada.ca/en/treasury-board-secretariat/services/access-information-privacy/reviewing-access-information/the-review-process/access-information-review-report-parliament.html
I read it, and re-read it, and put it down, shaking my head.
The Review identifies many problems (21 in total, conveniently listed in Annex A). But if fails to offer any solutions or proposed amendment to the Act and there is no sense of urgency. In some critical areas the Review trips over itself. This is especially true in the discussion of the importance of declassification of records, where there are repeated references to the fact that the sensitivity of records declines over time. Yet these references fail to account for the fact that the most recent update of the TBS Directive on Security Management (2019) deliberately removed all references to the impact of the passage of time on declining sensitivity and the related security classification of records.
(See Annex E.2.2.2.2, https://www.tbs-sct.canada.ca/pol/doc-eng.aspx?id=32611)
Someone didn't get the memo, I guess.
The outcome of a failure to engage in systematic declassification is clearly set out in the Review report:
"Currently, departments and agencies do not regularly assess their records for declassification purposes. As a result, records are classified indefinitely at the security level they were assigned when they were created.” (p.16)
The Review further notes that “these challenges are acute among Canada’s National Security and Intelligence institutions.” Canada is identified as the only Five Eyes country that does not have any systematic approach to declassification. Such records sit unopened, especially at Library and Archives Canada, with no resources or available expertise to handle them. There is a pilot project underway, led by Public Safety, concerning declassification of a distinct set of historically significant national security and intelligence records, but the Review provides no details of the nature of this pilot project, its progress, or its timelines (p. 16).
The Information Commissioner, Caroline Maynard, has been on this problem for a number of years. Her first foray dates to February 2020, based on a report that I wrote for her office:
https://www.oic-ci.gc.ca/en/resources/reports-publications/declassification-strategy-national-security-and-intelligence-records
Ms. Maynard recently produced a special report to Parliament in April 2022 that again highlighted the need for a declassification program, with special reference to national security and intelligence records held at Library and Archives Canada. The Heritage Minister, in responding to the report, passed the buck to the President of the Treasury Board.
https://www.oic-ci.gc.ca/sites/default/files/2022-04/LAC-SpecialReport-EN-OIC-2022_1.pdf
The Information Commissioner pointedly stated that “I expect that the ongoing access to information review will result in proposed amendments to the Act.”
So what does the TBS Review have to say on this issue? An affirmative nothing:
“A systematized approach to declassification supports government transparency and accountability, enhances access to Canada’s history, and improves the agility of the ATI regime and security of information systems.”
This language, full of meaningless words and phrases—“systematized,” “agility",” “security of information systems”—would make George Orwell proud.
Another critical failing of the current system, regarding exemptions and exclusions permitted by the ATIA, gets a similar, ‘nothing doing,’ treatment. It acknowledges the importance of public interest (which is not baked into the current ATIA) and again references the ‘passage of time’ as an important factor in declining sensitivity. But comes up with this non-statement:
“Alongside the public interest, the passage of time is a critical determinant in what information may be publicly disclosed and when. A relationship can be established between the application of exemptions and the responsibility to declassify or disclose records that are no longer sensitive.”
A critical determinant. A relationship is it? Memo to the President of the Treasury Board Secretariat. As a first step, rewrite your own hopeless “Directive on Security Management” to make this relationship crystal clear. And then, do something about it.
How is the TBS review report to Parliament in every instance a “nothing burger?” It does, tepidly, identify a whole host of problems. Does that make it at least a something burger? No—because there is not a single concrete promise to find remedies.
But it gets worse. The Review actually suggests no desire on the part of the government to make any changes to the core principles and functionality of the Act. Rather, what the government clearly intends, is to improve its internal data management capacity. There is no guarantee that even if such fixes, however worthwhile, were made, they would make any difference to the Access system itself. In fact, the idea of improving information management as an aid to the Access to Information regime is an unoriginal repeat of a similar recommendation made in 2002. Suffice it to say, the problem has grown worse, not better.
The other clear indication from the Review report is that the government has a special interest in advancing its reconciliation agenda with Canada’s indigenous peoples through targeted (if vague) changes to ensure that the Access system better serves their needs. While this is important and laudable, there is no indication that any benefits that might accrue to indigenous users of the Access system would have any spillover effects.
Maybe we should just can the whole thing and produce an Access system for indigenous-relevant records? At least it would serve a distinct public interest.
I am not really serious about that, only despairing.
The current Access system will, by all accounts, continue to stagger along, caught up in its absurdities and its dysfunction. The only hope on the horizon is for a real declassification regime that would truly open up government records and return the Access system to what is was originally meant to be—a supplementary (‘last resort’) process, operating alongside proactive publication and wide-spread declassification and public availability of historical records. Even then, Access has no public interest value unless ways can be found to severely limit exemptions and exclusions, handcuff a culture of secrecy, speed up processing and release of records, and ensure that all records made available through Access are automatically placed in the public domain and held in safe-keeping by Library and Archives Canada.
Canadians, in keeping with the lead provided by Parliament’s agent and oversight office, the Information Commissioner, should expect significant amendments to the Access to Information Act. They should also expect, given the record of the current leadership of the Treasury Board, to be disappointed.