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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.
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