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Access to information: An
asset for democracy or
ammunition for political
conflict, or both?
Article in Canadian Public Administration · June 2012
DOI: 10.1111/j.1754-7121.2012.00215.x
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Anne-Marie Gingras
Access to information: An asset
for democracy or ammunition for
political conflict, or both?
Abstract: More than twenty-five years after its adoption, the Access to Information
Act has become increasingly a cause for concern among public servants, experts,
scientists and the media. This article reviews the evolution of the access-toinformation regime since the 1980s, the issues that have arisen, the political
significance of information in democracy, and the enduring tension between its
democratic purpose and strategic value. The article also examines the issues of
centralization, control and secrecy within the state apparatus despite continuing
calls for transparency. Under Conservative governments since 2006, there has been
increased control and conflict over disclosure of information, which have spread
to a larger part of the state apparatus. Among those involved in conflicts over
information with the Prime Minister’s Office are members and officers of Parliament and parliamentary committees.
Résumé : Plus de vingt-cinq ans après son adoption, la Loi sur l’accès à
l’information constitue une source croissante d’inquiétude pour la fonction publique, les experts, les scientifiques et les médias. Cet article évalue les problèmes
liés à l’accès à l’information depuis les années 1980, la portée politique de
l’information en démocratie et la tension constante entre son objectif démocratique et sa valeur stratégique. Il se penche aussi sur les questions de centralisation, de contrôle et de secret gouvernemental au sein de l’appareil d’État dans
un contexte d’exigences accrues de transparence. Avec l’arrivée au pouvoir des
conservateurs en 2006, le contrôle et les conflits au sujet de la divulgation
d’information se sont étendus à une plus grande partie de l’appareil gouvernemental. De nouvelles questions ont surgi et parmi ceux qui sont en conflit avec
le Bureau du Premier ministre se trouvent les députés, les agents du Parlement
et les comités parlementaires.
Introduction
Canada’s Access to Information Act (ATIA) has never been fully implemented. Successive information commissioners and access-to-information
experts have expressed concerns over the administration of the Act and
the federal government’s secrecy. More than twenty-five years after its
adoption, concerns about this legislation have spread to several sectors of
society, including the civil service, experts, scientists, advocacy groups
The author is professor, Département de science politique, Université Laval. She would like
to thank Jean-Guy Prévost and the Journal’s anonymous reviewers for their useful comments.
CANADIAN PUBLIC ADMINISTRATION / ADMINISTRATION PUBLIQUE DU CANADA
VOLUME 55, NO. 2 (JUNE/JUIN 2012), PP. 221–246
© The Institute of Public Administration of Canada/L’Institut d’administration publique du Canada 2012
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ANNE-MARIE GINGRAS
and the media. The statute was promulgated in 1983 after more than a
decade of debates. It provides “a right of access to information records
under the control of a government institution in accordance with the
principles that government information should be available to the public,
that necessary exemptions to the right of access should be limited and
specific and that decisions on the disclosure of government information
should be reviewed independently of government” (R.S.C. 1985, c. A-1,
s. 2[1]).
The problems of the access-to-information regime have to be assessed
from a broad perspective that encompasses the political significance of
information and the development of the state apparatus as a whole. After
all, the access-to-information regime extends beyond the matters dealt with
by the Information Commissioner. Her opinion is sought only when
regular access is denied and complaints are filed; her work does not
provide the big picture of the access-to-information system. Access to
information includes regular requests for government information made by
journalists, experts and citizens, which require a response within thirty
days by all government departments and organizations. The requests are
not registered, and only dysfunctions (refusal, delay, and so on) become
a matter for the Information Commissioner. Access to information as a
system thus includes regular contacts between elected and administrative
officials, on the one hand, and the press, experts and citizens, on the other
hand. The system is thus not solely the concern of the Information
Commissioner, but her reports help to provide an understanding of the
specific problems encountered between claimants and government organizations, and the ambience in which information is circulated.
The first part of this article elucidates the political significance of
information in democracy and explains the enduring tension between
its democratic purpose and its strategic value. Indeed, the question arises as
to whether information is as much “sustenance for democracy” as it is
“ammunition in political struggles.” Although these concepts coexist,
information as sustenance for democracy has prevailed in the public mind
and is viewed as a pillar of democratic systems. Transparency and the
people’s right to know have become strong symbols of democratic governance. Freedom-of-information laws have been adopted in many countries,
and the number of unelected positions designed to increase transparency of
governments has risen.
The second part of the article deals with the issues of centralization,
control and secrecy. Although transparency has grown as a democratic
virtue over the last three decades, the development of the state apparatus
in the 1980s has also been marked by increased centralization and control.
Information is considered ammunition in political struggles, and so policy
making is affected by increased secrecy. This article will explain how
THE ACCESS-TO-INFORMATION REGIME IN CANADA
223
transparency requirements and secrecy nuts-and-bolts coexist, and will
discuss the tensions between centripetal and centrifugal forces regarding
the flow of information.
The third part of the article discusses how control of information has
increased since the Conservatives were elected in 2006. Conflicts over
disclosure of information have spread to a larger part of the state apparatus
and become more critical. New issues about control of information have
emerged: systematic vetting of all messages from the civil service, elected
officials and diplomats; non-compliance with the Act concerning delegation orders; and a strained relationship between the Prime Minister’s Office
and Parliament because of the former’s refusals to release the necessary
information for full debates.
The conflicting roles of information
in democracy
Information played a major role in the birth of liberal democracy. In the
United Kingdom, subjects of the Crown became citizens once they were
able to discuss cultural matters and then economic decisions made by
the government in an open forum called the “public sphere” (Habermas
1978). In the seventeenth and eighteenth centuries, merchants and traders
called into question government decisions about tariffs and trades. Habermas’ thesis on the birth of the “public sphere” for the bourgeois, though
open to discussion, highlights the role played by information and debates
in the transformation from feudalism to democracy. Although he postulates
that the public sphere was animated by rationality, transparency and
equality – a thesis that does not take into account social and economic
inequalities – his assumption that the people can govern themselves by
debating ruling principles and regulations is a central tenet of liberal
democratic societies (Gingras 2009: 307–9).
Today, although the public sphere is neither rational nor transparent, it
nevertheless is a place for debates about public issues. Information is
considered vital to democracy. “The free exchange of ideas is essential in
a liberal democracy. Only when we hear and listen to ideas being debated
can we begin to make any sort of intelligent judgment on a particular
issue” (Malcolmson and Myers 2002: 214–15). According to constitutional
expert Henri Brun (2005), access to political information has a constitutional dimension. Democracy relies on citizens’ capacity to express themselves, to choose and to vote, but this capacity would be useless without
substantial information on the res publica. In Dagg v. Canada (Minister of
Finance), [1997] 2 S.C.R. 403, Justice LaForest wrote, “The overarching
purpose of access to information legislation is to facilitate democracy by
helping to ensure that citizens have the information required to participate
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ANNE-MARIE GINGRAS
meaningfully in the democratic process and that politicians and bureaucrats remain accountable to the citizenry.”
Information is also regarded as an accountability tool and a useful
mechanism for enhancing the quality of the civil service. Indeed, according
to the Trudeau government (in 1977), the ATIA would also provide an
element of monitoring that would help to maintain the probity of administration, the consistency of handling individual cases and the quality of the
analysis of policies and programs (John Roberts, as cited in Drapeau and
Racicot 2010: 13–15).
The communications policy of the Government of Canada emphasizes
the link between information and public participation in the policy-making
process and the capacity to form a sound opinion about public issues. It is
the policy of the Government of Canada to:
1. Provide the public with timely, accurate, clear, objective and complete information about
its policies, programs, services and initiatives . . .
8. Encourage public service managers and employees to communicate openly with the public
about policies, programs, services and initiatives they are familiar with and for which they
have responsibility. Openness in government promotes accessibility and accountability. It
enables informed public participation in the formulation of policy, ensures fairness in
decision making, and enables the public to assess performance. . . . Public service managers
and employees . . . serve the public interest best by communicating openly and responsively
about policies, programs, services and initiatives they help to administer, while treating
sensitive information with the discretion it requires. (Canada, Treasury Board of Canada
2006 [emphasis in the original])
The darker side of information has seldom been studied in recent years.1
Neither “propaganda” nor “manipulation” is found in most political
science or social science dictionaries. Yet information can mislead, deceive
and harm. It can serve as ammunition in political struggles. Both views of
information – as sustenance for democracy and as ammunition in political
struggles – were debated in the House of Common in the 1970s, when
access-to-information bills were tabled, until the Act was adopted in 1982
and promulgated in 1983.2 Arguments for and against access to information were advocated (see Table 1).
Politicians who favour access to information while in opposition usually
change their minds after taking power. They might also invoke both
concepts about information depending on the circumstances. Drapeau and
Racicot quote Pierre Elliott Trudeau who said, “Democratic process
requires the ready availability of true and complete information. In this
way people can objectively evaluate government policies. To act otherwise
is to give way to despotic secrecy” (2010, section 14: 12). But Trudeau’s
view of access to information was much more complex. Discussions on
access to information in the House of Commons began as early as 1965 yet
the statute was not enacted until 1983, almost on the eve of Prime Minister
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THE ACCESS-TO-INFORMATION REGIME IN CANADA
Table 1. Arguments For and Against Access to Information during the Debates on
Access to Information Legislation in the House of Commons in the 1970s
Arguments in favour
Necessary openness and transparency
in a democracy
Access by members of Parliament
and citizens to the civil service’s
work: a must
Civil service not the property of the
government of the day; it belongs
to the people
The government must be watched
Taxpayers must get their money’s
worth
The people’s participation depends
upon what is known about the
dealings of the government
Arguments against
Sensitive themes: national security,
defence, cabinet confidences, and
so on
Difficulty of balancing confidentiality
and disclosure
Efficient operation of the state
Protection of privacy
Impact on the relationship between
elected officials and civil servants
Source: Drapeau and Racicot (2010: section 14)
Trudeau’s resignation in 1984. It is highly plausible that Trudeau, being
conscious of the sensitive political fallout from the ATIA, resisted and
slowed its adoption for years. Considering his explicit view that the final
say over government information disclosure belongs to the executive (see
Drapeau and Racicot 2010, chapter 14: 24), he may have foreseen in the
access-to-information regime tremendous potential for finding faults in
government policies and practices.
Stephen Harper has also used both concepts of information. In November 2005, he said, “Information is the lifeblood of democracy. Without
adequate access to key information about government policies and programs, citizens and Parliamentarians cannot make informed decisions,
and incompetent or corrupt governance can be hidden under a cloak of
secrecy” (quoted in Stanbury 2010b). In April 2006, three months after
taking power, Harper had changed his mind regarding access to information. In a special report to Parliament, Information Commissioner John
Reid wrote, “All of the positions the government now takes in the
discussion paper are contrary to the positions the Conservative Party took,
and the leader espoused, during election campaign” (quoted in Stanbury
2010b).
Although information is both fuel for democracy and ammunition in
political struggles, the first sense has prevailed in the public mind and in
research. Transparency and access to information have become strong
symbols of democracy and major issues to be promoted in debates about
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ANNE-MARIE GINGRAS
democracy. Transparency International lists countries by level of openness
or corruption, the former being conceived of as a tool to fight the latter. Both
transparency and access to information are tools for enhancing legitimacy
in political systems that have suffered from a lack of public trust and low
voter turnout. According to Hood, “Transparency is a term that has attained
a quasi-religious significance in debate over governance and institutional
design. Since the 1980s, the word has appeared in the litanies of countless
institutional reform documents and mission statements” (2006: 3).
Transparency and new horizontal mechanisms for assessing the work of
the government have been demanded by both civil society and academics.
Reflecting on political representation and its many issues and looking for
new research, results and conceptions of representation, Manin, Przeworski
and Stokes write, “There are some things that we have learned. Perhaps
foremost is the importance of information” (1995: 20). They plead for
“horizontal mechanisms” for accountability to citizens and other government organizations (19) and promote the independence of information and
knowledge:
Even if elections give governments a broad authorization to rule, this authorization should
not extend to informing us. Our information must not depend on what governments want us
to know. The institutional implications are obvious: we need independent electoral commissions, independent accounting offices, independent statistical agencies. To coin a term, we
need “accountability agencies” independent of other branches of government and subject to
direct popular control, perhaps through elections (Manin, Przeworski and Stokes 1999: 24).
Since the 1980s, the number of unelected powers and horizontal mechanisms has skyrocketed in liberal democracies. Vibert (2007: 5) counted
around 200 unelected bodies in the United States and around 250 in the
United Kingdom in 2007. According to Collet, the creation of unelected
powers (autorités administratives indépendantes) is the state’s response to a
crisis based on accusations of partiality and lack of efficiency. If French
governments of all stripes (left- and right-wing) have agreed to cede their
prerogatives to institutions over which they have no leverage, writes Collet
(2007: 7), it is because they feel that their power is being threatened.
Another source of legitimacy – expertise rather than representation – is
called for to “rescue” governments.
As was the case in other liberal democracies, some “unelected powers”
were instituted in Canada to enhance the government’s legitimacy and
increase trust in the political system. Officers of Parliament (and other
bodies) were created to fulfil a variety of roles (ombudsman, auditing,
liaison, monitoring, promotion, education, court intervention), all of which
rely on information and knowledge: the Language Commissioner (1970),
the Information Commissioner (1983), the Privacy Commissioner (1983),
the Conflict of Interest and Ethics Commissioner (2007), the Public Sector
Integrity Commissioner (2007), and the Commissioner on Lobbying (2008),
THE ACCESS-TO-INFORMATION REGIME IN CANADA
227
among others. These new positions in the Canadian parliamentary system
were created with the objective of informing members of Parliament and
the public about the government’s policies and actions.
In the 1980s, the access-to-information regime was also implemented,
creating new tools for accessing government information based on the idea
that the public has a “right to know.” According to Hazell and Worthy, “In
the past two decades freedom of information legislation has moved from
being a legislative ‘luxury’ enjoyed by a few advanced democracies to
becoming an accepted part of the democratic landscape. Around ninety
countries now have access to information regimes in place and another
fifty have legislation pending” (2010: 352). The appetite for transparency
has grown over the years, and it has resulted in the launching of “open
government” in the United States, the United Kingdom, New Zealand,
Australia, France and other countries.
The current situation, in which institutional counter-powers assess the
work of elected officials and the civil service, is the equivalent of a system
of checks and balances, or “counter-democracy.” As Rosanvallon argues, “a
complex assortment of practical measures, checks and balances, and informal as well as institutional social counter-powers has evolved in order to
compensate for the erosion of confidence, and to do so, by organizing distrust”
(2008: 4, emphasis in the original). Counter-powers have indeed developed
alongside – and in opposition to – formal elective and representative
democracy, and can be found within both civil society and the structure
of representative government. They have become permanent features of
contemporary liberal democracies. Counter-democracy is therefore not the
opposite of democracy, but rather “a form of democracy that reinforces the
usual electoral democracy as a kind of buttress, a democracy of indirect
powers dissimulated throughout society” meant to complement “the episodic democracy of the usual electoral-representative system” (Rosanvallon
2008: 8). Rosanvallon considers both civil society counter-powers and
institutional counter-powers. The former can rely on the access-toinformation system to obtain documents from various governmental organizations, assess their content and criticize the elected officials or the civil
service. As for the latter, Rosanvallon observes, “If government is to be
truly credible and efficient, neutral watchdogs must oversee the work of
the people’s representatives. In other words, democracy can flourish only
if it acknowledges the risks of dysfunctionality and equips itself with institutions
capable of subjecting its own inner workings to constructive evaluation” (2008:
74–75, emphasis in the original).
In a similar vein, Vibert contends that the rise of unelected bodies (in the
United States, the United Kingdom, Australia and the European Union)
“reflects the arrival of a new branch of government and a new kind of
separation of powers in government” (Vibert 2007). Political science used
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ANNE-MARIE GINGRAS
to take for granted the classic separation of executive, legislative and
judicial powers. Vibert writes that the new separation does not simply
reflect the arrival of a new class of executive organizations, but “stands for
something much more fundamental”: “a new branch within systems of
government with a special responsibility for the handling and dissemination of information, the analysis of evidence and the deployment and use
of the most up-to-date empirical knowledge” (2007: 12).
Whereas Rosanvallon considers indirect powers disseminated throughout society, Vibert focusses on institutional “unelected bodies” – the very
same “horizontal mechanisms” promoted by Manin, Przeworski and
Stokes – among which are selected audit and inspection bodies and
whistleblowers.3 All of these bodies reduce the information asymmetry
between government and civil society, and between the executive and
legislative powers. In other words, they focus on information and knowledge as a means for enhancing democracy. Besides helping citizens make
an informed opinion, disclosure of information by officers of Parliament
can serve as an accountability tool. Indeed, according to Stanbury (2010a),
officers of Parliament can provide authoritative, relevant and timely information that helps members and senators hold the government to account.
Vibert (2007: 13) notes that unelected bodies make judgments based on
knowledge, whereas elected officials make judgments based on values and
principles.
Unelected bodies and the access-to-information regime highlight the
importance of mediation in liberal democracy – an issue that also concerns
civil society actors who use government information. Institutional counterpowers, such as officers of Parliament, as well as civil society actors, the
media, experts, interest groups, political parties and other intermediaries,
have a very specific function in democracy: by assessing or discussing
public policies, they help people form opinions. They participate in the
ongoing public discussion between government and civil society, one of the
trademarks of the “democracy of the public” according to Bernard Manin
(1995: 303). It seems obvious that, in a context of information abundance
and over-specialized public relations management, citizens rarely make
personal and original judgments on public policies but rely on intermediaries to help them form opinions. Mediation – conceived of as an
intermediary structure that supplies framed conceptions of anything political – is thus fundamental in any democratic system.
Institutional counter-powers’ work constrains, to a certain extent, the
partisan dimension of public debates. While the legitimacy of elected
officials relies on representation, unelected bodies’ legitimacy stems from
expertise and standard procedures (Vibert 2007: 64). The officers of Parliament who are part of the new branch of government achieve legitimacy
through the development of standards appropriate to their own particular
THE ACCESS-TO-INFORMATION REGIME IN CANADA
229
role. Since each unelected body is part of a “larger scientific community,”
experts working for these organizations have “a reputation to protect
rather than an election to win.” It is in their interest to release rather than
withhold information, since public understanding helps them get support
for what they do; it not only allows them to deal with the interests that
they regulate or look after, but also protects them from interference from
their political masters: the politicians (Vibert 2007: 91).
Some officers, such as the Information Commissioner, “provide citizens
with an expanded possibility of using the system of justice to obtain
redress in cases of grievance rather than having to turn to politicians for
political redress” (Vibert 2007: 62). Institutional counter-powers occupy
a new space between politics and the law, having taken some of the
functions of the elected branch and some of the courts (Vibert 2007: 62).
The unelected bodies’ connection with information and knowledge is thus
summarized:
. . . what lies at the heart of the rise of the unelected are the advantages that independent
bodies have in gathering and presenting information, analysing evidence and linking them to
the current state of knowledge. In turn, the benefits of a more systematic and authoritative
mobilization of knowledge in society flow through the public in terms of a more reliable and
trustworthy information on the components of public policy and a much better possibility to
distinguish evidence-based judgments from value-judgments (Vibert 2007: 54).
Centralization, control and secrecy
The big picture
Since the 1980s, although the state apparatus of liberal democracies has
improved with institutional counter-powers acting as transparency bodies,
another trend has emerged. The centralization of policy making and
decisions by a central government apparatus has intensified in a context
in which information is increasingly seen as ammunition in political
struggles, meaning that the less opponents know about an issue, the more
the government can proceed with minimal dissent. Leaks in the press and
the rise of the twenty-four hour news cycle in the 1990s have also become
major concerns for the government’s information services.
Forty years ago, centralization of power appeared to be a practical –
albeit authoritarian – response to mounting demands from civil society
inspired by a legitimate appeal for democratization. For political and
economic leaders, concerns about an ebullient and changing Western
society were expressed with force in the 1975 trilateral report, “The
Governability of Democracy,” written by Crozier, Watanuki, and Huntington. The authors identified three types of challenges to democratic functioning: contextual issues (arising from the external environment), social
trends, and the intrinsic characteristics of democracy. They contended that
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ANNE-MARIE GINGRAS
these challenges led to “the delegitimation of governmental authority,
mounting political demands that pointed to the overload of government,
the fracturing and disaggregation of political parties and political purposes, and intensified parochialism and disagreement among democracies
on international issues” (Huntington 2000: xxiii). Issues of trust in government, political institutions and democratic principles have since become
a major strand of political science research. Twenty years later, OECD
countries complained about “intense pressure from citizens, transmitted or
provoked by the media and demanding rapid responses” (OECD 1996,
quoted in Roberts 2006a: 100). A so-called overload of requests and
insufficient administrative mechanisms further contributed to the feeling
that centralization was necessary to maintain the support of the electorate
and give timely answers to the media.
In Canada, central agencies of the federal government – the Privy
Council Office (PCO), the Treasury Board Secretariat (TBS) and the Department of Finance – began to extend and exert more power over line and
staff departments in the 1980s (Savoie 1999). After years of studying the
machinery of government, Savoie labelled the extreme centralization of
political power “court government,” in which “effective political power
now rests with the prime minister and a small group of carefully selected
courtiers” (2010: 226–33). It is also
. . . a shift from formal decision-making processes to informal processes made in cabinet
involving only a handful of key actors. We now make policy by announcement, and we
manage government operations by adjusting administrative and financial requirements to the
circumstances of the day. . . . Court government is different from cabinet government. . . .
Authority is highly concentrated in the hands of prime ministers and their courtiers . . . drawn
from the cabinet, from partisan political staffers, from the bureaucracy, and from outside,
including selected lobbyists and think tanks (Savoie 2008: 16).
Court government promotes “an undisciplined process” (Savoie 2008:
16) and is thus different from the regular, formal policy process called
horizontal government, which is formulated through the civil service and
involves consultations with stakeholders. Two policy processes coexist: an
informal fast track for the prime minister and a regular and democratic
process subjected to transparency requirements. “Court government provides quick and unencumbered access to the levels of power to make
things happen and to pick and choose those political, policy, administrative issues that appeal to prime ministers or that need a resolution because
the media are demanding immediate answers” (Savoie 2008: 231). Prime
ministers have tended to prefer informal processes because they are fast,
free from transparency requirements, more efficient and more secretive
than formal processes. Informal processes help to prevent leaks in the
media and ensure perfect control of information in the face of horizontal
government.
THE ACCESS-TO-INFORMATION REGIME IN CANADA
231
Centralization and horizontal government have grown simultaneously.
Horizontal government that demands an interdepartmental perspective
burdens policy making with the requirement of consulting the “policy
community” – other government organizations, civil society stakeholders
and sometimes provinces. The concept of policy community draws
“attention to the important role that organized interests and other nongovernmental actors play in the Canadian policy process” (Skogstad 2003:
963). Public debate among groups, organizations and businesses is thus
an essential feature of horizontal government. This type of process
implies trade-offs, which means that the result may be a far cry from the
original intention.
Court government and horizontal government complement each other.
As the formal policy-making process becomes less efficient, the centre
looks for speedier and more discreet policy making. And it is not unreasonable to believe that the more power is concentrated and the more
government information is out of reach, the more social actors and journalists will become skilful at digging up this information. Pressure on
central agencies from social actors and the media to release government
information prompts these agencies to avoid transparency requirements as
much as possible.
Over the last three decades, both control of and access to information
have gained ground in Canadian democracy. It is clear that centripetal
(court government) and centrifugal (horizontal government) forces
collide, and each has affected information flow in a different fashion.
On the one hand, informal decision making – a central feature of court
government – resembles a closed-circuit process, involving consultations
with persons or groups from whom the prime minister wants to hear and
with no transparency requirements. Its authoritative nature is clear: information management is easier, message control is tighter, and uncontrolled
information leaks to the press are next to impossible. For court government insiders, information is limited to its instrumental character; it is
mostly, or exclusively, ammunition for political struggles. It is widely
recognized that although information has long been viewed as a source
of enlightenment – freedom of information ensures a vibrant public
sphere in which citizens can make informed opinions – it is also a vital
tool for obtaining or preserving power, and this dimension now prevails.
Information has a strategic value for defending a project or enhancing
one’s stature. Setting an agenda, imposing a frame, being the primary
definer (Hall et al. 1978: 56–58) of an issue and having inside information
are all good methods for keeping a politician safe from his or her
enemies. For the prime minister and his or her courtiers, access to information is perceived as a strategic tool used by opponents of all stripes to
embarrass the government.4
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ANNE-MARIE GINGRAS
On the other hand, formal processes and consultations are natural steps
in a democracy and involve transparency requirements that “thicken”
horizontal government. Official decision making requires more time and can
become quite complex, even frustrating, but it is also in line with democratic
ideals. From this perspective, access to information is a tool to open up
government to civil society, in compliance with the letter and the spirit of
the law, as well as with the TBS’s policy on communication, which links
disclosure of government information to increased citizen participation (see
http://www.tbs-sct.gc.ca/pol/doc-eng.aspx?id=12316&section=text#cha1,
last consulted on 25 July 2010). An OECD study on new technologies in
public policies establishes a clear framework for consulting citizens at
various stages of policy making. Information matters a great deal, especially
during the stages of agenda setting and analysis (McIntosh 2003: 27–37).
Disclosure of government information on the entire range of options for a
policy problem or cost analysis of an option facilitates discussion and citizen
participation. To sum up, whereas open government reflects the need for
transparency and legitimacy in a democratic system, the strategic dimension
of access to information in court government serves efficiency in policy
making.
The specifics of control and secrecy
The centralization described above is translated into very specific practices,
most of them informal but nonetheless efficient. Indeed, avoiding transparency requirements has been an unadmitted objective at the highest level
of the civil service and in ministers’ offices since implementation of the
ATIA in 1983. Information Commissioners John W. Grace (1990–98) and
John Reid (1998–2006), as well as access-to-information experts Alasdair
Roberts and Michel Drapeau, have identified a series of problems with
access to information, among which routine extensions of deadlines for
disclosure is the first concern. All experts and observers agree that a culture
of secrecy has prevailed despite implementation of the ATIA (Drapeau
2009; Stanbury 2009a, 2009b; Hazell and Worthy 2010; Canada, Office of the
Information Commissioner 2006, 2008, 2010; Roberts 2003, 2005, 2006a,
2006b, 2010).
Routine extensions of deadlines have long been targeted as the major
flaw in access to information. In his 1996–97 annual report to Parliament,
Information Commissioner Grace reported that delays in responding to
access requests had reached “crisis proportions.” In 1998, the next commissioner, John Reid, established an evaluation system for the access-toinformation regime. On the grading scale of the Office of the Information
Commissioner (OIC), the Privy Council Office (PCO) rated a “D” (“below
standard compliance”) in 2002 and an “F” (“red alert”) in 2003, 2004 and
2005.
THE ACCESS-TO-INFORMATION REGIME IN CANADA
233
Extensions of deadlines, however, are only a symptom. A broader
analysis of the flaws in the access-to-information regime reveals two general
modes of resistance to freedom-of-information legislation. Roberts identifies
“direct challenges to the right of information, by amendment or legislation”
and “informal administrative response which, while maintaining a public
pretence of conformity to the law, have the effect of limiting its significance
in practice” (2006b: 109). Administrative shortcomings, such as inadequate
records management, under-resourcing of access-to-information offices, and
lack of training for access-to-information officers in government organizations could be added to the first two methods of resistance.
In 2001, the Liberal government issued a formal notice which deemed
many ministerial advisors exempt from application of the ATIA and
engaged the Information Commissioner in prolonged and costly litigation
to attain judicial support for its position (Roberts 2006b: 111). Informal
modes of resistance were established, all under the centre’s closed control.
As with every administrative endeavour, leadership plays a major role in
access-to-information performance.
Indeed, the centre of government (PCO, TBS, Department of Finance)
has all the levers it needs to enhance or limit access to information. The
centre allocates human, technical and economic resources to the Information Commissioner and to most access-to-information offices within government institutions. According to its official Internet site, “The Treasury
Board is responsible for accountability and ethics, financial, personnel and
administrative management, comptrollership, approving regulations and
most Orders-in-Council.” The president of the Treasury Board “carries out
his responsibility for the management of the government by translating the
policies and programs approved by Cabinet into operational reality and by
providing departments with the resources and the administrative environment they need to do their work” (see http://www.tbs-sct.gc.ca/tbs-sct/
abu-ans/tb-ct/abu-ans-eng.asp, accessed on 22 September 2011). The PCO
has three main roles, one of which is to ensure “that Canada and Canadians are served by a quality public service – that delivers advice and
services in a professional manner, and strives to meet the highest standards of accountability, transparency and efficiency” (see http://www.
pco-bcp.gc.ca/index.asp?lang=eng&page=about-apropos, accessed on 22
September 2011). The Department of Finance plans and prepares the
federal government’s budget according to the centre’s priorities. Like any
organization, the government also has informal rules, a reality that lends
itself to decision-making sources other than the formal one with regard to
information disclosure.
Roberts has studied informal practices designed to slow down or
prevent information disclosure, which illustrate the fact that information is
considered ammunition in political struggles. He writes,
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. . . experience suggests that the passage of time provides officials with the opportunity to
develop a broader range of techniques for dulling the disruptive potential of new disclosure
rules. Contests over official information are fought as fiercely as they were before the
introduction of FOI law. . . . Not only do government officials become more adept in
managing disclosure requirements, they become more articulate in expressing their reasons
for resistance (Roberts 2006b: 118).
Among these informal practices are the use of a Blackberry, the development of an oral culture (a problem also raised by the Information Commissioner), and the destruction of documents (Roberts 2006a: 86–93;
Roberts 2010: 259–62).
In 2005, the Gomery Commission, examining the sponsorship scandal,
brought to light how access to information was obstructed. Documents
were destroyed at the Department of Public Works, and a posteriori
directives were crafted to make it look as if the rules had been followed.
Inquiries into the Somalia and contaminated blood scandals also revealed
destruction of administrative documents (Roberts 2006b: 112; 2010: 262).
Among practices of resistance to access to information, “special” processing of politically sensitive requests was considered one of the most
“efficient.” It was probably implemented in the 1990s, and has been well
documented over the years. Toronto Star reporter Ann Rees (2003) obtained
internal documents revealing how politically sensitive access requests were
handled at Citizenship and Immigration Canada. Alasdair Roberts then
provided data on the existence of special procedures for sensitive accessto-information requests likely to fuel controversy. He analyzed 2,120
requests made to Human Resources Development Canada from 1999 to
2001 and shed light on an “internal law of administration” that undermined the principle of equal treatment at the core of the ATIA (Roberts
2003: 186). His analysis “found a clear evidence of connection between the
chances of a deemed refusal and the profession of the requester, as well as
the perceived sensitivity of the request”: requests by the media or opposition parties had a significantly longer processing time, as did those that
were politically sensitive; that is, likely to embarrass the minister (2003:
189). This kind of practice, which takes into account the identity of the
applicants, contravenes both the spirit and the letter of the law.
Special processing of politically sensitive access requests involved political interference at several levels of administration of the ATIA: a notice was
sent to ministers’ offices, requests could be tagged (or “amber lighted”),
media lines were developed for department officials and house cards were
prepared for ministers (Roberts 2005: 6–9; 2010: 263–64). “The task of
overseeing requests within the Privy Council Office was handled by a
‘communications coordination group’ that included representatives from
the Prime Minister’s Office, other senior ministerial aides, and top communications officers” (Murphy 2002).
THE ACCESS-TO-INFORMATION REGIME IN CANADA
235
The complete “disclosure package” – including documents which are to be released to the
requester, along with the “communications products” – is sent to the Minister’s Office for
review. The role of the Minister’s Office at this final stage is a sensitive matter for ATIA
officers. The formal position is that the purpose of this review is to give the Minister’s Office
a warning or “heads up” about the impending release, and not to allow an opportunity to
question the ATIA officer’s disclosure decisions. In practice, however, the Minister’s Office
may raise questions about disclosure decisions as well as communication strategy. After
approval by the Minister’s Office, the disclosure package is returned to the ATIA office, and
then sent to the requester. At the time of the disclosure, the ATIA office also sends an email
notice that contains the communications products for the request to senior officials within the
department (Roberts 2005: 7–8).
In the special report on the investigation of a complaint by the Canadian
Newspaper Association, the Information Commissioner concluded,
. . . that access requests that are labelled as “sensitive,” “of interest,” “amber light” or with
some other label indicating a need for “special handling,” whether they are made by the
media or any other group, are subjected in most government institutions we investigated to
unwarranted delays in processing. The media is not singled out but is a part of a wider
problem affecting other groups as well, including Parliamentarians, organizations, academics
and lawyers (Canada, Office of the Information Commissioner 2008).
Secrecy and the Conservative
government: New issues in
information control
With the election of the Conservative government in 2006, the relationship
between the government and the press on Parliament Hill became tense as
Stephen Harper refused to allow press conferences to be presided over by
a member of the Ottawa press gallery, a long-time custom. Journalists had
to register in advance to ask questions when press conferences were held
by the prime minister, and some journalists never got to ask questions, as
Conservative political staff would pick and choose those who could
intervene. The Conservatives also favoured local and Internet media,
and many announcements were made outside Ottawa. Scrums were
avoided and cabinet meetings kept secret to avoid having ministers
encounter journalists in a wide-open forum (Martin 2010: 64–65).
While the omnibus federal Accountability Act extended access to information to nineteen new entities – the Canadian Broadcasting Corporation,
Canada Post, the officers of Parliament, and so on – it also added new
exemptions, excluded mandated activities and did not provide new
resources to the Office of the Information Commissioner (OIC). It did create
a “duty to assist” for access-to-information officials, but it is a difficult task
to enforce.
In a five-year assessment of the government’s access-to-information
performance, Stanbury wrote,
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Harper has led a government which continued to play these games [resist transparency and
engage in damage control by ignoring response deadlines, blacking out the embarrassing bits,
conducting business orally, excluding records and institutions from the coverage of the ATIA,
and keeping the system’s watchdog overworked and under-funded] with alacrity. . . . His effort
to reform the ATIA Act made it worse – with the exception of expanding its scope to some
Crown Corporations. There is a chasm between what Harper promised before coming to office
and what he has delivered on the vital matter of access to information (Stanbury 2010b).
Conflicts over the release of information spread to a larger part of
the state apparatus soon after promulgation of the Accountability Act,
and new issues about control of information have emerged. Before describing those new issues, dysfunctions in access to information recorded by the
Information Commissioner, who deals with complaints related to noncompliance with the Act, will be summarized.
The Privy Council Office’s access-to-information performance had been
poor under the Liberal government, but the Information Commissioner’s
data show that it got worse when the Conservatives came to power. For the
first eight months of fiscal year 2006–07, the PCO “slipped deeper into ‘Red
Alert,’ ” defined as “so many major deficiencies that a significant departmental effort is required to deal with their resolution or many major
persistent deficiencies that have not been dealt with over the years”
(Canada, Office of the Information Commissioner 2007).
In a special report issued in February 2009, the commissioner at the time,
Robert Marleau, indicated that extensions to the statutory deadline had
become the norm rather than the exception, and that “some of the
institutions reviewed this year took an average of 120 days to respond to
requesters.” The OIC’s analysis showed a trend toward greater use of
deadline extensions and for longer periods of time (Canada, Office of the
Information Commissioner 2009).5 In 2010, interim Information Commissioner Suzanne Legault observed, “This right – access to information – is at
risk of being totally obliterated because delays threaten to render the entire
access regime irrelevant in our current information economy” (Canada,
Office of the Information Commissioner 2010: 2).
In the 1990s, lack of leadership was identified as one of many problems.
The more observers and institutional watchdogs scrutinized the access-toinformation regime, the more the focus was on the centre, which meant
that the highest level of the political or administrative hierarchy was
involved in day-to-day administration of the ATIA. In the 2010 OIC special
report, Out of Time, the interim Information Commissioner noted:
Leadership is clearly the single most important determinant of how well institutions fulfill
their obligations under the Act. Senior management’s commitment to the access regime
determines the level of resources allocated to their access program as well as the degree of
institutional openness. . . . Where institutions are doing well, strong leadership overwhelmingly predicates success. . . . However, these institutions represent the minority (Canada,
Office of the Information Commissioner 2010).
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237
Since 2006, new issues in information control have emerged, and three
recurrent problems illustrate a deterioration of the government’s accessto-information performance: mandatory consultations with the PCO for
every message coming out of the government, delegation orders, and a
strained relationship between the Prime Minister’s Office (PMO) and
Parliament concerning disclosure of information for full debates on public
policies.
First, the processing of politically sensitive requests was transformed
into a system of mandatory consultations with the PCO for any message
coming from the civil service and diplomats, meaning that administrative
and technical information are now treated as politically sensitive. This
situation was publicly contested in the media and by academics (CampionSmith 2008; Cornellier 2008; Whittington 2008; Stanbury 2009b; Buzzetti
et al. 2010; Davis 2010a). A “Message Event Proposal” (MEP) must be
completed for every event or message, including details on the following
items: event, event type, desired headline, key messages, media lines,
strategic objectives, desired sound bite, ideal speaking backdrop, ideal
event photograph, tone, attire, rollout materials, background, and strategic
considerations (Blanchfield and Bronskill 2010; Davis 2010a; Martin 2010:
59; Simpson 2010). Not only has the PMO had the upper hand in message
control, but the prime minister himself often seems involved, according to
experienced analysts (Cornellier 2008; Simpson 2010). Once submitted, the
MEP is studied by PMO and PCO officials, often bouncing back and forth
among ministerial aides and civil servants before getting final approval.
The system erases the traditional line separating public servants and
politicians, according to political scientist Jonathan Rose (cited in Blanchfield and Bronskill 2010). Massive centralization has caused logjams, delays
and frustration in the civil service:
. . . there is a pervasive fear within this government – fear of making a mistake, of saying
something ever so slightly off-message or creating the mildest unexpected controversy.
Within the federal public service, there is widespread disgust at this centralized mania for
message control, since it leaves public servants feeling neutered, their expertise unwanted.6
They are replaced instead for explanatory purposes about policy by young ministerial staffers.
. . . (Simpson 2010).
The notion of secrecy expanded such that plans for the new Museum of
Human Rights were kept from public view, and “Canada Post . . . rejected
an access to information request to disclose the cost of posties’ uniforms,
claiming the information is ‘trade secret’ ” (Stanbury 2009a). Other information has been published on the sly: for example, public health studies
by twenty experts who challenged the government’s views on climate
change were made “public” in the midst of the summer holidays in 2008
and never put on Health Canada’s Internet site. After the 2 May 2011
election, the situation did not change (Plecash and McDonell 2011).
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Institutional cards from the Information Commissioner show that in
2007–08, all institutions surveyed for access-to-information compliance
complained about mandatory consultations with the PCO, which delayed
processing of access-to-information requests and negatively affected their
ability to respond to requesters on time. “Cabinet Confidences Counsel
plays a key role in the access to information system, since federal institutions must consult with this group to exclude information under section 69
of the Access to Information Act. Consequently, PCO bears added responsibility to ensure that its practices do not unduly affect the workings of the
system” (Canada, Office of the Information Commissioner 2008).
Control of information appeared to be a routine process, as did interference in formal access-to-information requests (Davis 2010b). In October
2009, a journalist filed a complaint for political interference against Sébastien Togneri, a ministerial aide to then-Minister of Public Works and
Government Services Canada Christian Paradis. Information Commissioner Suzanne Legault investigated the case:
As a result of her investigation, the Commissioner concluded that a member of the Minister’s
office interfered with the release of records under the Act by instructing officials to retrieve
the original release package and later directing them to release only one chapter of the report.
Ministerial staff members have no authority to make any decision under the Act or give any
direction to institution officials.
The Commissioner also found that the actions and inaction of some PWGSC officials
resulted in an unjustified delay of several months in releasing the requested information. This
is contrary to the legal duty of all public officials to assist requesters to receive information
in a timely manner, as set out in the Act. (Canada, Office of the Information Commissioner
2011: vii)
The Information Commissioner also condemned civil servants’ obedience
to ministerial staff and made some recommendations, one of them dealing
with her lack of authority in processing requests to the RCMP when an
offence is observed (2011: vii).
Second, the Information Commissioner mentioned “delegation orders”
as a problem in 2010 (2010). They raise issues similar to the blatant political
interference described above, except that this type of overstepping the line
between civil service and partisan work has an official veneer. Heads of
government departments and institutions delegate powers, duties and
responsibilities to someone inside the organization for administering the
Act, and it is understood that section 3.2(2) of the statute opens the door
to political interference. During discussions on access to information in the
1970s, the most crucial issue was that of ultimate authority for allowing
information disclosure. Pierre Elliott Trudeau thought that only the executive should decide what Canadians should know (Drapeau and Racicot
2010, section 14: 24). The ATIA barely applied to his government, as the
statute was promulgated in 1983. After more than twenty-five years, the
THE ACCESS-TO-INFORMATION REGIME IN CANADA
239
issue of ultimate authority for allowing information disclosure remains
paramount. The report of the Office of the Information Commissioner
sheds light on “oral evidence of delegation orders with multiple layers of
review and approval which, in some instances, resulted in additional and
unwarranted delays. . . . Greater guidance is also required to achieve
appropriate, efficient and transparent delegation orders and prevent
improper influence on the processing of access requests.” In her review of
the PCO’s performance, the Information Commissioner recommended that
authority for disclosure decisions be given to the director of the accessto-information office, which means that civil servants with appropriate
experience and knowledge of jurisprudence are not the ones making
information disclosure decisions at the Privy Council Office, the highest
administrative level (Canada, Office of the Information Commissioner
2010).
Finally, the PMO has had a strained relationship with Parliament
because of its refusal to disclose information to the House, the committees,
and the officers of Parliament. Information is seen exclusively as ammunition in political struggles and not as an asset for democracy (for debates
or as an accountability tool). Debates have been avoided, reduced or
eliminated as much as possible in many ways while the communications
unit of the PMO has had increased its resources (Chiasson 2010). Six
documented cases of conflict over information disclosure illustrate this
reduction in debate in Parliament.
First, large omnibus bills including more and more issues are tabled.
This procedure reduces the time allotted for discussing the issues at stake
in a detailed fashion. C.E.S. Franks is critical of how the Conservatives
have tabled budget implementation acts:
Between 1995 and 2000, budget implementation acts averaged 12 pages in length. From 2001
to 2008, they averaged 139 pages. In 2009, the two acts added up to 580 pages – 32 per cent
of Parliament’s legislative output that year. The 2010 Budget Implementation Act, Bill C-9,
contains 883 pages of varied and unrelated legislative provisions. It could form close to half
the pages of Parliament’s legislative output for 2010. These omnibus budget implementation
bills subvert and evade the normal principles of parliamentary review of legislation (Franks
2010).
It is difficult to assess the degree to which political debate has shrunk as
a result of omnibus bills since it is impossible to evaluate non-events.
Franks explains that the rush to get Bill C-9 through Parliament limited the
review of provisions that were detailed and involved complex technical
matters. In addition to reducing debate, the tabling of omnibus bills has
fall-out that could result in judicial recourse or unintended effects. According to Franks, “Poorly drafted legislation will mean more confusion and
more court cases” (2010).
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Second, in the fall of 2009, Conservative members of Parliament boycotted a parliamentary committee to avoid discussing the management of
Afghan prisoners by the Canadian Armed Forces. The issue at stake
concerned knowledge by the Canadian government of the alleged abuses
of Afghan detainees transferred to Afghanistan’s National Directorate of
Security (ANDS) by the Canadian Armed Forces. The Geneva Convention
states that the detaining power is responsible for the treatment of prisoners
of war and cannot hand over detainees to an organization if mistreatment
is known to be standard procedure in this organization. Indeed, diplomat
Richard Colvin testified in November 2009 that he had knowledge of
possible mistreatment by ANDS and that the Canadian Armed Forces
could not possibly keep track of the detainees handed over to the Afghan
authorities. The Canadian government refused to disclose documents
pertaining to the issue, and in December, MPs voted 146 to 129 in favour
of a motion to set up an official public inquiry, a demand that went
unanswered. The House was prorogued that month. In April 2010, the
Speaker of the House declared that the refusal to disclose documents
related to the treatment of Afghan detainees amounted to a breach of
parliamentary privilege:
It is the view of the chair that accepting an unconditional authority of the executive to censor
the information provided to Parliament would, in fact, jeopardize the very separation of
powers that is purported to lie at the heart of our parliamentary system and the independence
of its constituent parts. . . . Furthermore, it risks diminishing the inherent privileges of the
House and its members, which have been earned and must be safeguarded (Milliken 2010).
In July 2010, a special committee of the House was set up to discuss
which documents related to Afghan detainees could be released without
any harm to national security. Liberal, Conservative, and Bloc Québécois
MPs worked under the guidance of three justices, among them Frank
Iacobucci and Claire L’Heureux-Dubé. In June 2011, approximately 4,000
documents (from a total of 40,000 documents) were disclosed, and Foreign
Affairs Minister John Baird declared that the process was over and had
shown that accusations of improper conduct were unfounded. This declaration was challenged by opposition parties (Chase and Curry 2011)
given that approximately 36,000 documents were not reviewed by the
committee. It seemed that, contrary to what was asserted by the government, there were indications that the government had been repeatedly
warned about the issue (Stanbury 2009c).
Third, in 2010, Harper “issued an order stipulating that staffers and
advisers in his office could not be called to testify before parliamentary
committees” (Martin 2010: 253). This followed allegations of political
interference by an assistant to then-minister Christian Paradis, Sébastien
Togneri, which were examined by the Standing Committee on Access to
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241
Information, Privacy and Ethics. Dimitri Soudas, the prime minister’s
director of communications, refused to testify, and the order was perceived
as a protective shield for him and other staffers. According to the rules
of the House of Commons, any citizen must appear when he or she is
called to testify before a parliamentary committee (Canada, House of
Commons n.d.).
Fourth, in March 2011, International Cooperation Minister Bev Oda
offered a convoluted explanation for her decision to deny funding to a
longstanding charitable organization, KAIROS, saying she was not
involved in the decision although it appeared later that she was. House
Speaker Milliken (2011) said that the government seemed to have withheld
information from parliamentary committees and that “International Cooperation Minister Bev Oda may have misled the House.” The 2 May 2011
election prevented a parliamentary committee from studying the matter
further.
Fifth, from fall 2010 to spring 2011, the Conservatives refused to disclose
the cost estimates of crime bills and of F-35 fighter jets to the finance
committee. They also refused to explain the impact of corporate tax cuts on
the federal treasury. In March 2011, Speaker Peter Milliken ruled that, “on
its face, the government withheld information from a parliamentary committee. . . . There is no doubt that the government had failed to comply
with a parliamentary committee’s demand for costs related to the Conservatives’ crime bills. . . . This is a serious matter that goes to the heart of the
House’s undoubted role in holding the government to account” (Milliken
2011). On 25 March 2011, Liberal leader Michael Ignatieff tabled a motion
of contempt of Parliament against the Conservatives; the motion was
adopted by a vote of 156 to 145 and led to the dissolution of Parliament
and the May 2 election.7
The principle at stake in this debate goes to the heart of parliamentary democracy: the
obligation of a government to provide members of this House with the information they need
in order to hold the government accountable to the people of Canada.
We are the people’s representatives. When the government spends money, the people have
a right to know what it is to be spent on. Parliament does not issue blank cheques (Ignatieff
2011).
Sixth, in tabling his spring and status reports in June 2011, Interim
Auditor General John Wiersema explained that his office’s investigation
discovered that “Parliament was never given a consolidated picture of how
much funding was requested to host the G8-G20 summits in June 2010”
(Auditor General 2011). Thirty-two projects were approved for funding
(some in municipalities located in Tony Clement’s riding, more than 60 km
away from the summits’ locations8) without any documentation by the
federal government. “Supporting documentation is important for transparency and accountability,” said Wiersema, whose personnel were told that
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no civil servant had been involved in the selection process for the projects.
In August 2011, information disclosed through the Ontario Access to
Information Act showed that documentation related to the funding of
the projects was in the riding office of then-Infrastructure Minister Tony
Clement and that public servants had been involved in the process of
project attribution (Bourgault-Côté 2011; Curry 2011).
Conclusion
Access to information is a mechanism for opening up government to
citizens and enhancing transparency, and it is part of a new machinery in
which information and knowledge play a central part. A new system of
checks and balances has come into existence, with access-to-information
and institutional counter-powers in line with Rosanvallon’s concept of
counter-democracy. The new forms of authority address the need for more
transparency, a trend officially endorsed by many Western governments,
although effective transparency raises huge challenges. In the Canadian
federal government, however, informal rules about control of information
have overtaken statutory democratic objectives. Information is not conceived, first and foremost, as a useful democratic mechanism by elected
officials (Roberts 2006a, 2006b; Stanbury 2009b, 2010b; Buzzetti et al. 2010)
but rather as ammunition for political struggles.
The current access-to-information system needs to be repaired, and the
2005 electoral platform of the Conservative party could be used as a
guideline. Harper’s party promised to implement the Information Commissioner’s recommendations for reform of the Access to Information
Act; give the Information Commissioner the power to order the release
of information; subject the exclusion of cabinet confidences to review by
the Information Commissioner; oblige public officials to create the
records necessary to document their actions and decisions; provide a
general public interest override for all exemptions; eliminate blanket
exceptions rules; and ensure that the disclosure of requirements of the
ATIA cannot be circumvented by secrecy provisions in other federal
statutes, while at the same time respecting the confidentiality of national
security and the privacy of personal information, among other actions
(Stanbury 2010c).
Had elected and administrative officials fully grasped the importance of
the implementation of institutional counter-powers and civil society’s need
for transparency, had they realized that “democratic societies require a
variety of forms of authority and the new separation of powers represent
a major new dimension to decision-making in democracies” (Vibert 2007:
12), they would have implemented proactive disclosure for most government information – that is, “open government” – and protected politically
THE ACCESS-TO-INFORMATION REGIME IN CANADA
243
sensitive information. Instead, the central apparatus of government has
moved in the opposite direction and has imposed mandatory consultations
with the PCO for almost all access-to-information requests, even those
without any political fallout. This decision has caused major information
jams and civil service frustrations. In a recent assessment of the performance of freedom-of-access laws in the United Kingdom, New Zealand,
Australia, Canada and Ireland, Hazell and Worthy noted that Canada
“comes last as it has continually suffered from a combination of low use,
low political support and a weak Information Commissioner since its
inception” (2010).
Notes
1 It was, however, studied quite extensively after the Second World War.
2 NDP MP Barry Mather tabled a bill on access to information in the mid-1960s; Conservative
MP Gerald Baldwin, in 1974 and 1977; Lincoln Alexander, in 1976; Frank Oberle, in 1977; Ian
Waddell, in 1980; and Walter Baker, in 1982 (Drapeau and Racicot 2010, section 14, p. 4).
3 Vibert (2007: 20) includes among unelected bodies independent risk assessors (such as the
Canadian Nuclear Safety Commission), independent service providers (such as the CBC),
and selected watchers of boundaries between state and market (such as the CRTC).
4 Donald Savoie, whose work relies on interviews with high civil servants and elected
officials, echoes this idea in his books.
5 The 2008–09 statistical report published by the Treasury Board Secretariat (TBS) stated that
only 57.1 per cent of all requests were responded to within the statutory period of thirty
days. According to Suzanne Legault, the current Information Commissioner, the Achilles’
heel of the access-to-information system is extension of deadlines (Canada, Office of the
Information Commissioner 2009). An Information Commissioner’s assessment of response
delays by twenty-four federal institutions representing 88 per cent of all requests for
information in 2008–09 shows that seven organizations responded within an average delay
of between 31 and 60 days; six, between 61 and 90 days; six, between 91 and 120 days; and
five, between 157 and 163 days (Canada, Office of the Information Commissioner 2010).
6 In October 2010, the Professional Institute of the Public Service of Canada launched an
Internet site on the use of public science for the public (http://www.publicscience.ca/
portal/page/portal/science/aboutus), which aims to inform Canadian citizens of the work
of government scientists. This initiative illustrates the need to better communicate with the
public on science matters.
7 Communications tricks and interference with access to information, because of their
complexity and details, have not yet attracted strong popular consideration.
8 Among the questionable projects funded were $274,000 on public toilets 20 km from the
summit site, $100,000 on a gazebo an hour’s drive away, $1.1 million for sidewalk and tree
upgrades 100 km away, $194,000 for a park 100 km away, and $745,000 on downtown
improvements for three towns nearly 70 km away (see Bryden [2011]).
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