The pathetic state of Canada's Access to Information Act
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By Ken Rubin
The Hill Times Canada's Access to Information
Act turned 15 years old on July 1, but it's acting like a battered
15-year-old delinquent, slamming doors closed, perpetually late, and
willing to disappear altogether out the back door.
The act has been through the
wringer of several unenthusiastic governments, including two information
commissioners who had different styles of taking on the government
and a third, John Reid, who came on board last week.
The act has only had a handful
of requesters, most of whom are from the corporate world and it has
not been a tool for millions of Canadians.
An established access bureaucracy
has been spawned yet there are even greater delays in response time
now, and blank pages are still a daily part of replies received.
Numerous controversies have erupted
over the years even on matters as seemingly straight forward as releasing
public opinion polls.
Canadians have even been exposed
to the most cynical efforts at record destruction and hiding as in
the case of the HIV and hepatitis C tainted blood scandals and in
terms of getting at events before and after Somalia.
At the same time, immense changes
have occurred since the Access Act's 1983 implementation, particularly
with the increasing use of electronic technology in government agencies,
and with the transfer of many public services to the private sector
and to alternate "arms-length" hands.
These changes have not been positively
taken advantage of and have tended to wreck havoc on public access.
The electronic technology makes important record retrieval harder
not easier unless it's considered safe and sanitized enough these
days to release officially on government web sites.
Rarely are significant public
access rights negotiated when increasingly records are transferred
to the private sector, such as in the Nav Canada case. New legislation
creates bodies like the Canada Pension Plan Investment Board whose
operations are totally excluded from the Access Act.
Yet Canada's Access Act can still,
at times, inconvenience some of the plays behind closed doors.
In the last five years, for instance,
I for one have dug up data exposing the Canadian government's role
in registering tobacco strains for cigarettes, its push to establish
a type of national ID client number for the poor, its manipulation
of the drug patent review hearings in favor of the multi-national
brand-name companies, its go-ahead on the sale to China of two nuclear
reactors despite incomplete environmental data, and its planning efforts
to limit its liability and universal health protection legislation
by de-emphasizing and deregulating safety requirements for much of
Canada's food, drug and medical devices.
But make no mistake. The Access
Act's primary intention has been from Day One to provide special interests
groups from bureaucrats, corporations, law enforcement agencies and
other institutional forces, many legal ways to saying no to public
access.
The political will is not there
to grant Canadians an interactive or open information service.
Prime Minister Jean Chrétien
has been captive of special interests, his PCO advisers want more
"efficient" costly information management devoid of disclosure risks
and his political advisers prefer to make deals privately far from
the public eye.
The Liberal front bench has voted
against even small progressive initiatives proposed in two private
members' bills, one to toughen penalties for record tampering, and
the other on to force some of Ottawa's most secret agencies like the
Canadian Wheat Board, the Export Development Corporation and the Atomic
Energy Canada Ltd. to be under the Access Act.
Parliament too, has not exactly
been an upholder of the Access Act, passing many statutes with confidentiality
provisions and overriding the Act while not subjecting itself to coverage.
These days, Parliament is patting
itself on the back for having just taken a baby step forward by getting
a last-minute advance role in reviewing the government's politically-chosen
nominee as Canada's third Information Commissioner for the next seven
years. This is far removed from the Parliament that months ago wanted
to actively recruit and interview candidates drawn from all over,
selecting the best possible choice as its agent under its own budget
to champion the interests of open government.
Expect some government legislative
housekeeping and none-too-progressive changes to eventually be put
forward. Don't look for a Parliament intensively pushing for real
changes or set on conducting a frontal investigation into Ottawa's
secrecy practices.
One bright spot, in the past,
has been the federal courts which have served to check government
efforts to hide records. For example, last November, I won a most
significant legal judgment under the Access Act despite the opposition
encountered from the government and the Information Commissioner.
The Federal Court of Appeal in
that ruling, ordered the long-delayed release of the 1991 Nationair
Post-Accident Safety Report, and forcefully reminded government not
to jump to applying exemptions, as is common in Ottawa, but to look
first and foremost to releasing records for the public's benefit and
safety.
The Nationair report released
in February showed evidence of a problem plagued airline and inept
inspection which Transport Canada attempted to cover up.
Fifteen years later, Canadians
should be ashamed that there are those in Ottawa who have been only
too willing to manipulate the Access Act for the benefit of a few
and to let it continue to suffer a slow decline and death.
The Access Act does not have
to commit suicide before someone checks out what absolutely pathetic
state it is in.
This is one democratic tool that
need not be forgotten and buried. It can be reinvigorated and revived.
It can provide everyday public scrutiny.
The public's right to know is
at the crossroads, and it can grow or end at far too young an age.
Ken Rubin has been a long
time user and critic of Canada's Access Act.
The Hill Times