Our culture of secrecy
Experts will tell you that freedom of information legislation is crucial if we are to hold our governments — on all levels — to account. But when 89 reporters across Canada tested it, the results were disturbing
Robert Cribb, Fred Vallance-Jones and Jonathan Fowlie Vancouver Sun May 28, 2005
Canadians seeking basic government information about class sizes, restaurant inspections or complaints against police are up against a culture of secrecy, a national audit of openness shows.
In the country’s first practical test of transparency, 89 reporters from 45 newspapers across Canada visited city halls, police forces, school boards, and federal government offices to test how bureaucrats obey laws enshrining the public’s right to know. Reporters found a confusing patchwork of policies across the country, ranging from a manager at the Vancouver school board refusing to give information unless he knew exactly how it would be used, to an almost perfect rate of disclosure in Alberta. Across the country, officials handed over records in response to just one in three requests made by reporters showing up unannounced at offices of public bodies such as health authorities and police departments. The rest of the records remained locked in government filing cabinets as reporters were told they had to file time-consuming — and often expensive — formal requests under provincial or federal access laws. Experts in the field say that reluctance to hand over documents should be watched carefully, because FOI legislation is one of the key ways citizens can hold their government to account. “There is a very important public interest involved here around accountability and transparency,” David Loukidelis, B.C.’s Information and Privacy Commissioner, said in an interview this week speaking in general terms of the importance of FOI legislation. “When we see all this talk about the democratic deficit, and ensuring greater transparency and accountability, I think that all levels of government have to continually ensure that these legal obligations are respected,” he added Shawnigan Lake resident Mary Desmond agrees. More than a year ago, Desmond heard that Land and Water B.C. was reviewing the idea of selling parts of the provincial Crown land in her area, and that some of that land could possibly be going to a developer wanting to build a resort town, something she worried could cause serious problems for the local water supply. Desmond, who is president of a small community group called the Shawnigan Lake Watershed Watch Association, says she initially tried to get information from Land and Water B.C. about the plans for Crown land in her area, but was denied. As a result, Desmond said, her group resorted to filing a written request for information under the provincial Freedom of Information and Protection of Privacy Act. Most formal information requests — more than 75 per cent — are filed by citizens such as Desmond, and businesses, federal statistics show. Media requests account for about 10 per cent and other organizations, such as labour unions, file close to 15 per cent. In B.C. last year, individuals filed 50 per cent of all requests for general information from the government. That number does not include requests people made for personal information. Media organizations accounted for 17 per cent of those general requests in 2004, followed by law firms at 10 per cent, special interest groups at eight per cent and businesses at six per cent. Political parties, which had accounted for as much as 30 per cent of requests in previous years, accounted for only four per cent of all general requests last year, a dramatic drop that started immediately after the opposition was reduced in the 2001 election. In her letter, Desmond also asked that the fee for her request be waived, something the act says can happen if the information is in the “public interest” or if the applicant cannot afford the payment. In response, Desmond said, the people handling the request wrote back asking for $810 in fees, an amount she said was well beyond her means. She added that the letter she received explained the fee would not be waived because the issue was not of interest to enough people in the province. It was a response that left Desmond and her group “absolutely dumbfounded” and has caused them to take the matter to Loukidelis for review. Gayle Downey, a spokeswoman for Land and Water B.C., said Thursday her department gave the Shawnigan Lake group selected reports about the project — a review that, she said, never involved a developer, and was intended only to identify parcels of land suitable for sale — including information on the environmental impact. The group wanted more information, Downey said, adding its members had asked to see the entire report on the project. “It was a huge, broad-sweeping request,” she said, explaining the entire report was “voluminous.” She added the $810 fee estimate was to photocopy 2,000 pages, and for 13 hours of labour, all amounts that are in accordance with the legislation. The matter has yet to be resolved by the Information and Privacy Commissioner, she added. In the recent audit conducted by newspapers across the country, reporters, acting as private citizens, sought public records on such routine information as school bullying incidents to road repair schedules in an effort to test how bureaucrats administer freedom of information laws, especially for the type of requests that would be of interest to regular citizens. During that audit, government clerks handed over records in only 32 per cent of in-person visits. Even when the reporters then filed formal access requests, only 62 per cent of the information sought was released, and even then sometimes only part of what had been requested was handed over. As is the case with many citizens who attempt to navigate the complicated and often adversarial process of obtaining public records, reporters were confronted with an array of barriers, from fees that reached into the thousands of dollars to bureaucratic intransigence to outright refusals. “There’s still a very strong culture of secrecy in these organizations,” says federal Information Commissioner John Reid. “They all run on the basis of loyalty, and that means not rocking the boat.” Loukidelis said he too thinks public bodies often needlessly withhold information. “Public bodies have to recognize, and perhaps be reminded, that the default position is the right of access and it is up to them to prove that, according to the law, something cannot or must not be disclosed,” he said. “I think . . . they have to reverse their attitudes and make it available unless there is pretty clear evidence that they simply cannot disclose it,” he said. Throughout the CNA audit, as reporters set out to test the openness of the system, the results varied. If you live in Prince Edward Island, you face a particularly high resistance to getting at government information, the audit shows. Reporters were unsuccessful in seven of nine attempts to obtain public information on school violence, police conduct or road repairs. Two requests were abandoned when high fees were demanded. The chance of accessing public records are dramatically better if you live in Alberta, where at least some information was provided in 93 per cent of the cases. Manitoba officials were almost as forthcoming, releasing at least some records in 87.5 per cent of requests. B.C. trailed this, with an overall disclosure rate of 71 per cent, though individual results by municipality showed Vancouver to be well above that, as public bodies handed over information in 87.5 per cent of requests. The greater openness in western Canada is partly a function of newer laws and greater support among top officials and politicians, Reid said. “The western provinces have this concept of populism and whatnot, and that pays off in terms of making things available,” he said. Loukidelis added that B.C.’s legislation has the widest coverage in Canada in terms of public bodies covered, as it applies not just to government ministries but also to self-governing professions and occupations such as those that oversee doctors, lawyers and dentists. The results also show that provinces that fared poorly in the audit — such as P.E.I., Nova Scotia and New Brunswick — are choosing the most expensive way of handling public disclosure of records, Reid said. It is far cheaper to release records routinely than to process formal requests under the information laws. “The way you make it more efficient is by answering people’s questions,” he said. Inconsistencies in how officials followed disclosure rules were evident even within certain provinces. In Ottawa, for example, a reporter was told it could take months and more than $1,000 in fees to obtain restaurant inspection records. In Toronto, as in Vancouver, such information is regularly posted on a public website. According to the audit, about 50 per cent of requests for information on road repairs and class sizes were released informally after one or more visits to the public counter at city halls and school boards. On the other hand, none of the requests for the number of sick days taken by police officers was satisfied through an informal visit. When the informal route didn’t work, reporters filed formal freedom of information requests. That increased the success rate. But still, fewer than 50 per cent of the requests for information on police sick days resulted in the release of any information. Among the audit findings that surprised Reid was the degree of questioning bureaucrats directed at people requesting information, including who they were and why they wanted it. Information laws across the country say the identities of those making the requests — and their reasons for wanting information — should not factor into decisions about disclosure of public records. “It raises a big flag for me,” he said. “There may well be some backside protection going on here . . . . Everybody’s law says you’re supposed to get it without question. It doesn’t matter who you are . . . . The office is there to serve you, not the other way around.” Freedom of Information © Copyright 2005 The Vancouver Sun