Fixing access to information is much more complicated than repealing one piece of legislation
There’s going to be a lot of talk about access to information in the next few months.
That’s a good thing.
Premier Tom Marshall has promised a full review of the access to information system in the coming months. I hope you get involved in the conversation. I hope you show up to the public consultations. I hope you send an email to Public Engagement Minister Steve Kent (email@example.com) or Marshall (firstname.lastname@example.org)
But please, do me a favour: stop demanding that the government repeal Bill 29.
On Twitter yesterday, as I was posting details of the review during Marshall’s news conference, somebody responded by saying that a review wouldn’t go far enough, and only a full repeal of Bill 29 would fix the Access to Information and Protection and Privacy Act (ATIPPA).
I’ve been filing access to information requests for five years in this province. Some of those requests have gone well. A lot of them have been frustrating. But I think it’s really important for everybody to know that the ATIPPA system was broken before Bill 29, and just repealing Bill 29 wouldn’t make things better. In fact, in some ways, it might make things worse.
You’re welcome to disagree, of course. The beauty of political debate is that all sorts of people get to have all sorts of opinions and we all hash it out and come up with a solution. I wouldn’t consider myself an expert on access to information policy; all I know is my own adventures with the system. This is going to be a long-ish blog, and we’re going to venture down into the weeds of the legislation. If you’re interested in government secrecy and information issues, I hope you’ll learn something. Whether you agree or disagree, I hope you’ll stick with me.
The principle behind access to information is that all government information is really yours to begin with. Essentially, every piece of paper and every bit of data on government servers is there because you paid your taxes. As a citizen, you’re a shareholder in the government; you’re not a client, you’re an owner. So when you make an access request to the government for a sheaf of emails or a quarterly report, you’re not really requesting to be given a document that the government owns. What you’re doing is demanding to see a document that you own because you helped to pay for it. So, as a matter of principle, all government information belongs to you, because you pay taxes and you (hopefully) vote, and you’re a citizen in the province.
Of course, you can’t have everything. You’re not entitled to see individual government employees’ personnel files, because that would be an invasion of their privacy. If a business is working with government and they’re required to share a lot of proprietary information about how they run their operation, you’re not allowed to see that either, because that could put the business at a massive competitive disadvantage.
And, as far as accessing cabinet documents does, as a matter of principle pretty much everyone agrees that it’s best if the cabinet can have free, wide-ranging discussions on policy without fear that the public will be looking over their shoulders and judging every word they say. When the final decision is announced, the public gets to know that, but the substance of deliberations remain secret, just like they would with a judge or a jury in a court case.
Access to information policy is all about striking that balance between the fundamental principle — the government doesn’t own it; it’s your information, dammit — with the practical consideration that sometimes it’s in everybody’s best interest to keep a lid on some stuff.
Before Bill 29
Back in the halcyon days of 2011, before Bill 29 was passed, I filed an access to information request for three days’ worth of emails sent and received by then-environment minister Ross Wiseman. At the time, there were some unsubstantiated allegations that Wiseman had sent a staffer to Brad Cabana’s house to threaten him into not running for the PC party leadership. I thought I could find out if there was any truth to the allegations if I saw Wiseman’s email trail.
Remember, your tax dollars and mine pay Wiseman’s salary. They pay for his office budget. They pay for the salaries of all his staffers. Our taxes pay for the servers that operate the email system and our taxes pay for his BlackBerry. Ross Wiseman is our employee; we hired him during the last election, and we can fire him in the next one if we want to. We’re entitled to see what’s in his emails if we want to.
When the request for documents came back, I got a total of five emails for that three-day period. Two of those emails were spam. It absolutely defies belief that in total, Wiseman only sent and received six emails over a three-day period in January. It’s just too ridiculous to even contemplate.
When I started asking questions, I learned that there were more emails — I have no idea how many — but they weren’t given to me because of an exemption built into the system that protects politicians from disclosing anything regarding constituency issues or political operations. (Essentially, the theory is that we’re entitled to all documents about government operations, but political party stuff is off-limits; all documents within the Liberal and NDP caucus offices are off-limits under ATIPPA too, for the same reason.) I still find it absolutely impossible to believe that a minister of the Crown would only get five emails about government operations in a three-day period (two of them spam.)
So I complained to Ed Ring, the province’s information and privacy commissioner. He’s supposed to be the independent watchdog for all of this stuff. If I’m convinced that the government isn’t playing by the rules and giving me everything I’m entitled to under ATIPPA, I can complain to Ring, and he can investigate. Under the law right now, Ring can’t force the government to pony up documents if they don’t want to give them out; all he can do is look into the situation and issue a report which either says that the government did everything properly, or that the government broke the rules. If he says the government broke the rules, he can recommend that the documents should be released, but he can’t force them to do anything.
So Ring’s office started an investigation, and the first thing they did was go to the minister’s office in the Department of Environment and ask for all of Wiseman’s emails. They said they weren’t going to release them publicly — under law, they wouldn’t be allowed to do that — but they wanted to examine all of the emails that were withheld to make sure that the government held those back appropriately.
The minister’s office politely told Ed Ring to get stuffed. They refused to hand over the emails, so Ring’s office couldn’t do an investigation. Long story short, the Ring took the government to court, asking the Supreme Court to order the minister’s office to hand over the documents so that he could do his investigation. Ring lost the court case. Essentially, the way the law is written, Ring can ask for the documents to review, but if the government doesn’t feel like handing them over, they don’t have to. This is a massive hole in the system. In court, Ring’s office argued that if he can’t “satisfy himself” that the government is doing thing’s right, it undermines and neuters the power of the office in a huge way.
“There’s no independent review unless he can satisfy himself,” lawyer Anna Cook said. “Otherwise, my lord, you’re left with the public body’s say-so that it is, indeed, what it is.”
Remember, all of this happened before Bill 29. I can regale you with plenty of other examples of how the system was dysfunctional and broken before June 2012 when Bill 29 was passed. This is one of the reasons why repealing Bill 29 is a misguided goal. Bill 29 has come to symbolize government secrecy and all of the problems within the ATIPPA system, but the system was secretive and broken before Bill 29 ever came along. Sure, in some ways, Bill 29 made a bad situation worse. But in some ways, it fixed things that were broken. If Premier Tom Marshall woke up tomorrow and repealed Bill 29, he’d just be re-breaking some of those things.
Bill 29 fixed some things
Before Bill 29, journalists would play a little game of hide-and-go-seek with politicians.
Every time there’s a cabinet shuffle, the new ministers get a big fat briefing book from their bureaucrats, which brings them up to speed on everything going on in their new department. Journalists — myself included — would file ATIPPA requests for those briefing books, because they’d often contain an honest, frank overview of the state of the government department, all condensed in one place. This basic request was so common that I’ve got the boilerplate text memorized: “All briefing materials prepared for or provided to Minister (BLANK) on assuming responsibility for the Department of (BLANK.)” Over the course of a few years, I must have filed that basic request at least 20 times, and got back fat stacks of government briefing material.
But then, journalists started noticing a weird trend. Instead of big fat briefing books, we were getting slides from PowerPoint presentations. Sometimes, we’d get nothing at all.
Why? Because the government was so worried that grubby journalists would get their grubby hands on those briefing documents, new ministers were opting to receive oral briefings from officials. No paper, no records, nothing to have to fork over when the inevitable access to information request comes.
Paul Oram — who’s now musing about running for the PC party leadership — pulled this trick when he took over the Department of Health. He assumed control of a $2.6-billion department of government and didn’t want any paper briefings; he was convinced it was good enough to just have his officials tell him things verbally, and he’d remember them. Charlene Johnson — now the finance minister — did the same thing when she took over the Department of Child, Youth and Family Services in 2011. Same thing for Joan Shea when she became minister of education.
When Bill 29 came along, it created a specific exception to end this game. Now, the government could withhold any document which was “a record created solely for the purpose of briefing a member of the Executive Council with respect to assuming responsibility for a department, secretariat or agency.”
Now, in a perfect world, I wish politicians believed in the principle that the public has the right to know what’s going on in government, and believed it strongly enough that they agree we should be entitled to read the same briefing materials that they get to read. The minister runs the department, but as taxpayers, you and I own it. In a perfect world, we should be entitled to know what the heck is going on. But on a purely practical level, if somebody is taking over a $2.6-billion government department, I think they need frank and fearless information about what’s going on. They need to be brought up to speed on the good, the bad and the ugly — potential scandals, problems and everything. I want to have confidence that ministers are getting the best information, and if that means that I shouldn’t be able to get their briefing books, then maybe that’s OK. (This is, of course, a matter of opinion. You’re more than welcome to disagree. It’s always about striking a balance, and there’s no clear sense of where that balance is.)
Bill 29 also added the infamous “frivolous and vexatious” clause, which I actually think is a good thing.
A couple years ago, I wrote a five-dollar cheque and requested two-and-a-half years worth of cabinet records relating to the cod fishery. (Documents more than 20 years old are not protected by cabinet secrecy. I wanted to know what was being discussed around the cabinet table in the months and years leading up to the cod moratorium decision, and what was being said in the months after John Crosbie made the announcement.) For five bucks, I started the ball rolling, and a bureaucrat had to go back through *years* worth of paper documents to dredge up whatever they could find about cod. It took a while, but eventually I was told that there were several hundred pages worth of records that I could have. It was going to cost The Telegram about $400 to get them all; one of the rules is that if a request takes more than four hours of work to fill, you’ve got to pay for the government employee’s time to make it happen. We were happy to pay, and it looked like it was all going to happen; I was planning on doing a big series of stories about this stuff and roll it out over the course of a couple weeks.
Then, the government announced a proactive disclosure policy that means all access requests are posted online three days after they’re sent to the requester. So, The Telegram would be paying $400 for all these documents, and then three days after we got them, everyone else would get them for free. We decided to abandon the request.
(It’s important to say that on principle, I think posting ATIPPA request documents online is a great policy. More information for everyone makes the world a better place. But I think the policy needs tweaking; if somebody is spending hundreds or thousands of dollars on an access to information request, they should have it for more than a few days before everybody else gets it for free. Otherwise, it essentially serves to stifle people from shelling out a lot of money to make those big requests.)
But stop and think what happened here: I paid five bucks, and by law, a government employee was forced to spend a bunch of time digging through old documents. They had to read hundreds and hundreds of pages to figure out what stuff fit my request and what stuff didn’t. Then, before I had to pay up, I just walked away from it all. (I feel awful about this, by the way. If you’re the ATIPPA co-ordinator reading this, I sincerely apologize. Sorry.)
Here’s the thing, though. If I was an evil-minded person, I could write a bunch of requests for five bucks each and force government workers to scurry all over the place, assembling massive reams of documents and complying with the letter of the law. Then, when it came time to pay for all the documents I requested, I could walk away.
There’s a reason why the government should be allowed to ignore “frivolous and vexatious” requests. The problem is, nobody trusts the government to use that power sparingly and responsibly. (To their credit, I haven’t heard any complaints about that section of Bill 29 being abused in the two years since it came into law.)
Covering this stuff for the past two years puts journalists in an awkward spot. On the one hand, we’re supposed to provide objective coverage. On the other hand, journalists are one of the primary constituencies for access to information legislation. It’s kind of like trying to get chemotherapy patients to provide objective coverage of the health-care system.
Objectively, Bill 29 increased the government’s ability to keep documents secret. For example, it vastly increased what they can classify as cabinet documents, and therefore keep them from the public. Under Bill 29, any document recording “consultations or deliberations involving officers or employees of a public body” can be withheld. Stop and think about that. Any consultation or any deliberation by any government employee can be kept secret. Depending on how broad your definition is, that could be just about anything, couldn’t it?
It’s harder to say, objectively, that the government has been abusing this power. I’ve had some dysfunctional dealings with the government on ATIPPA requests. But then, I’ve had plenty of dysfunctional dealings with the government before Bill 29 was passed, too.
I can tell you that they routinely break the law by failing to respond to requests within 30 days like they’re supposed to. Public Engagement Minister Steve Kent recently boasted to me that they meet the deadline 93 per cent of the time. That means seven per cent of the time the government is breaking the law. Can you think of any other law that you’re allowed to break seven per cent of the time without any negative consequences?
On the bright side, Premier Tom Marshall legitimately seems interested in listening to the public on this. Of course, at this point he’s doing damage control after two years of relentless erosion of the PC party’s political image. But even if it’s driven by political pragmatism, I’m hopeful that the review announced this week will be truly independent, and will truly listen to the people who come forward. Whoever the new PC party leader is, hopefully they’ll listen to the recommendations and amend the legislation.
And hopefully, they won’t just repeal Bill 29, because that wouldn’t fix very much.