Finally! Reforming Politics: The BC Blueprint
A Fraser Institute Conference,
November 22, 2001, Vancouver, BC, Canada
[Contents]
Remarks to: Reforming Politics: a British Columbia Blueprint
Hon. John M. Reud, P.C.
Information Commissioner of Canada
I am extremely pleased to be here to meet with such a distinguished group of delegates and to share ideas on such an important topic, reforming politics. Thank you for inviting me.
As you know, I am intimately acquainted with both politics and politicians having been a Member of Parliament and a Cabinet Member. Now, as an Officer of Parliament, I still deal with politics and politicians on a daily basis, but from a totally non-partisan perspective. This panel has for its mandate a discussion of "Checks on Government." My new perspective leads me to the theme of my remarks today – transparency, accountability and access to information.
It has been a humbling realization to me to discover that, what parliament has asked me to do, as Information Commissioner, is to keep our democracy healthy by enforcing the "right to know". Oh! yes, I know full well how important a step we took 18 years ago in this country when parliament passed the Access to Information Act. As a member of parliament, I worked with Walter Baker, Ged Baldwin and others to craft an enduring, powerful tool which would radically shift power from the state to the individual. But I did not fully comprehend what a central place this law would come to occupy in our democracy. Three years after its passage, the House Justice Committee reviewed the law; in its unanimous report it asserted that the Access to Information Act is of "similar significance" to the Canadian Charter of Rights and Freedoms. The Supreme Court of Canada recently referred to the Access law as being "quasi constitutional".
Members of Parliament, the judiciary members of the media, academics, business people and the public at large now recognize that the Access to Information Act is one of the cornerstones of our democratic process and one of the best tools available to provide accountable and transparent government. I am told that the principal tool used by members of parliament (in all parties), to gain information about government activities and decisions, is the Access to Information Act.
Responsible decisions regarding voting and daily interaction with the government can only be made if adequate and accurate information is available. While informal methods of dissemination of information provide much of what is necessary, the more formal and independently reviewable method, provided by the Access to Information Act, is essential to the free-flow of information and to good, responsible government.
Let me open a parenthesis here to underline the distinction between "government" and "governance". In the years to come, we will want to extend the right of access to a large number of quasi-governmental and private sector firms which wield increasing power over our lives. To close the parenthesis, and return to our topic, I want to give some historical perspective on access to information.
While Canada has had a federal Access to Information Act for eighteen years, since 1983, we are relative latecomers to the process. The United States passed its Freedom of Information law in 1966, Denmark and Norway passed their laws in 1970 and Holland and France passed theirs in 1978. Australia and New Zealand got their acts in 1982. Then, aside from Canada, there was a hiatus until 1992 when Hungary passed its law. Since then, there has been, if not a flood, then certainly an increasing stream of countries enacting, or considering enacting, access to, or freedom of, information laws.
Currently, there are almost forty countries with legislation and more are on the horizon. This includes such unlikely, at least until recently, countries as Argentina, Belize, Bosnia and Herzegovina, Bulgaria, South Korea, Nepal, Pakistan and the Russian Federation. Who could have predicted this list when Canada passed its law in 1983?
I've left mentioning one country to the last – Sweden – because it is so unique. Sweden has had access to information legislation since 1766. Yes, you heard that right, 1766. Sweden's long-standing and firm commitment to access to information was one of the stumbling blocks to it joining the European Union in 1995 and has been a constant source of friction between Sweden and the other member countries since it did join.
Access laws are remarkable achievements. It takes courage and self-confidence for a government to subject itself and its bureaucracy to such transparency. Yet, even governments cannot ignore the reality that access laws have become an essential cornerstone to a vibrant and healthy democracy. The benefits of such laws are tangible and profound and they are transforming the way in which public business is done. There is greater care, frugality, integrity and honesty in government because of access laws.
Unfortunately, while more and more countries are opening up to their citizens, there are still well over 100 countries with no freedom of information laws and, worse still, some governments, including our own, are attempting to close the doors and windows that have already been opened. For example, last year, seemingly verifying Sweden's fears, the European Union proposed new rules to limit access to official EU documents. These rules are still being fought over. The most recent example, in Canada, is the proposed anti-terrorism legislation... more of that later.
Thus, at the same time that access to information laws are blossoming like wild flowers after a spring rain, there is still a climate of hostility towards them by the bureaucracies and governments sworn to foster and uphold them. At the federal level in this country, after eighteen years under the Act, and of governing in what may seem to them to be a fishbowl, the government, and the bureaucracy, is still not comfortable with the régime of access to information. Perhaps no government ever will be. The noble principles and the flush of enthusiasm that reigned when the Act was put into force in 1983 rapidly gave way to the forces of expediency, secrecy and, from time-to-time, all out hostility against the Information Commissioner and the Act.
In his 1996-97 Annual Report, my predecessor, John Grace, in what now seems like a flash of prescience, referred to a pessimistic, and provocative, book by Jean-François Revel titled, The Flight from Truth; the Reign of Deceit in the Information Age. Revel wrote that "the withholding of truth, which is falsehood in its elementary form" is directed "first of all against public opinion." Why? Because, as Simon Bolivar observed, "The first and foremost of all forces is public opinion."
This comment was reaffirmed more than a century later by Thabo Mbeki, now President of South Africa, in a panel discussion in Time magazine in 1996 on the impact of information technology on the art and practice of government. He acknowledged that access to information will change the way in which leaders will deal with their people. He said, "Before you had the politician as a professional, an expert who mediated understanding of events." Now, instant access, unfiltered through either government or press, "reduces the mystique that surrounds a politician." He went on to conclude that it is easier to govern "if the population is ignorant." During the same discussion, United Nations Secretary-General, Kofi Annan, went even further by commenting about access to information, "if you are into control, it's frightening. This thing cannot stop."
It should not be a surprise that some of those who wield power also recoil from the accountability which transparency brings. Over and over again, we learn the lesson, even in the most vibrant democracies, that a few public officials seek private advantage from their positions of trust. Almost without fail, selfish motives are masqueraded in the garments of "public interest."
Ethical conduct cannot be enforced; conduct can only be scrutinized. Any society aspiring to be free, just and civil must depend upon and nurture a wide array of methods for exposing, and imposing sanctions on, ethical failures. Thus is the need for a free and skeptical press, irksome and even irresponsible as it can be; thus the need for a fiercely independent judiciary and legal profession; a professional public service, a freely elected legislature and an informed, engaged citizenry.
In one way or another, all the checks and balances designed to limit abuses of government power are dependent upon there being access by outsiders to governments' insider information. Perhaps I misspeak myself when I refer to it as "governments' insider information", for the information doesn't belong to government, nor to the bureaucracies, the managers, the public servants who create it. Indeed, it belongs to all of us who live in this country, who pay the salaries of those who create and then jealously guard that information from our prying eyes. A government, and a public service, which holds tight to a culture of secrecy is a government and public service ripe for abuse. Too many of our senior public servants, still subscribe to the views of Sir Humphrey in Yes, Minister, when he told his Prime Minister, "You can have good government or you can have open government. But, Prime Minister, you can't have both."
There is one shining exception to this culture, at the provincial level. Alberta is one of the very few jurisdictions in Canada where the leader of the government is a vocal supporter of the public's right to know. Premier Klein was premier when the Alberta Freedom of Information and Privacy Act was passed. By his own admission, he has been "FOIPed" more than anyone else in the province, yet he is proud to say that the passage of this Act is one of his most important accomplishments. When the Alberta Act was passed, Premier Klein appeared in a video, looked directly into the camera, and told public servants to embrace openness, obey the new law and get on with it. No Canadian Prime Minister has urged his ministers and officials to make the federal access law work.
Since few government insiders are fans of the public's right to know, I was troubled when the Minister of Justice chose to entrust a reform of the Act to bureaucrats. I fear that the temptation will be great for them to address their own agenda for relief from what they sees as "onerous" obligations and to do so in the guise of reform. Our Access to Information Act is too important, with the basics too well-crafted, for us to tolerate a wolf-in-sheep's-clothing package of reforms. A legitimate fear, then, is that a reform proposal, cobbled together by government insiders without the benefit of a full, public, parliamentary review, will address the concerns of the bureaucracy at the expense of the concerns of the public. If this should happen, then no reform would be, by far, the better option. Stay tuned; the Task Force report is due to be released before year's end.
To further complicate the reform process, the events of September 11th in the U.S. have occasioned Bill C-36, popularly referred to at the "Anti-Terrorism Act." This statute amends many other acts of Parliament, including the Access to Information Act, in an attempt to combat terrorism. The proposal to amend the Access to Informatin Act represents an entirely unexpected, and yet to be explained, weakening of the Access law. This bill proposes that the Attorney General of Canada be given the power to issue a certificate, the effect of which would be to exclude any information from the Act for the purpose of protecting international relations, national defense or security. The certificate would prevent the Information Commissioner and the courts from reviewing the documents to see if, indeed, secrecy is justifiable. Under the proposal, there is no need to demonstrate injury from disclosure and there is no end to the period of secrecy.
Thus, there will be no meaningful, independent review of government decisions to refuse disclosure of any records which it considers to fit into these catagories, just as there is currently no meaningful recourse if the government certifies a record to be a Cabinet confidence. With no independent review, there is every likelihood that this new exclusion would be applied to a broader range of records than intended by Parliament, that after all, is the experience with the Cabinet confidence exclusion. Worse still, is that no one but the bureaucrats applying the exclusions may ever know the truth. While Cabinet confidences receive protection for 20 years, information covered by an Attorney General certificate could remain secret forever.
Let me give you a stellar example of why I feel it is reasonable to expect that the certificate proposed in Bill C-36 is likely to be abused. The example is drawn from the provision already in the Act, allowing the Clerk of the Privy Council to certify that records are cabinet confidences and, hence, excluded from the right of access.
On April 2, 2001, the Federal Court, Trial Division issued its decision inInformation Commissioner of Canada v. Minister of Environment Canada and Ethyl Canada Inc. (T-1125-99) Trial Division. That case arose after Ethyl Canada Inc. made a request under the Access to Information Act for access to the background, analysis and options material presented to Cabinet when Cabinet decided to ban the fuel additive known as "MMT". Cabinet confidences are excluded from the right of access except in the circumstances described in subsection 69(3) of the Act which are:
1) 20 years have elapsed since the confidences came into existence, or
2) if the confidences are discussion papers presenting background explanations, analysis of problems and policy options to Cabinet and if
i) the decision to which such confidences relate have been made public, or
ii) otherwise, if four years have elapsed since the related decision.
Ethyl Canada Inc. believed that the conditions set out in paragraph 69(3)(b) of the Act were satisfied since the government's decision to ban MMT had made public when a Bill for that purpose was introduced in Parliament and, eventually passed.
The Minister of Environment Canada, to whom the request was made, acknowledged that she had documents relevant to the access request but refused to disclose any portions of the records, on the basis of advice from the Privy Council Office (PCO). Environment Canada based its refusal on the ground that Discussion Papers no longer exist and on the ground that the documents found relevant to the request were not stand- alone records bearing the appellation: "discussion papers". The records were withheld from access as being memoranda to Cabinet and records used to brief ministers of the Crown in relation to matters before the Privy Council.
My office investigated the matter and concluded that the former content of Discussion Papers (which Parliament said should be disclosed) had been moved within days of the passage of the Access to Information Act, primarily into the Analysis section of the Memorandum to Cabinet. I concluded that the Privy Council Office had attempted to extinguish a substantive right merely by changing the name of a record, and brought an Application for Review in the Federal Court seeking an order for disclosure of this information.
In his finding, Mr. Justice Blanchard agreed with the Information Commissioner's position and stated: "Being the master of its own economy, Cabinet is free to use whatever Cabinet Paper System it chooses and is equally at liberty to modify its paper system at will to fit the practical reality of the day. But such liberty cannot extend to a paper system that, in my view, results in a circumvention of the intent of Parliament, namely the elimination of "discussion papers" as a document only to include similar background information in another part of the Memorandum to Cabinet and thereby prevent its release as required by law and in accordance with paragraph 69(3)(b) of the Access to Information Act or paragraph 39(4)(b) of the Canada Evidence Act."
The Court saw through the subterfuge that had been used by the most senior officials of government to subvert the will of Parliament. The Court recognized that Parliament had decided that the people of Canada should have access to these important records (which where then called "discussion papers") and the Court also recognized that officials, by fiat had endeavoured to unilaterally remove such records from access by renaming them. Despite this decision, the government continues to refuse to disclose the requested records and has appealed the decision.
In his final report to the House of Commons entitled: Reflections on a Decade of Serving Parliament, Canada's Auditor General, Denis Desautels, also recognized this growing culture of secrecy when he said:
"Other countries are rapidly strengthening accountability, and Canada is in danger of being left behind. Part of the problem is the nature of Canadian politics. There is a reluctance to let Parliament and the public know how government programs are working, because if things are going badly you may be giving your opponents the stick to beat you with. And even when a Minister is not personally concerned with this, senior public servants assume this fear on the Minister's behalf. The people who write government performance reports seem to try to say as little as possible that would expose their department to criticism."
All of what I have been saying comes down to this: a strong right of access to government-held records is vital to a healthy democracy. Yet, no matter how well-crafted a freedom of information law may be, it will not be effective unless the leader of Government and the head of the Public Service insist that openness becomes part of the culture of governance. Without an insistence on openness from the top, the culture of secrecy will thrive. If employees feel that compliance with the Access to Information Act is not a priority for the leaders you will see delays, inflated fees, antagonism towards requesters, inadequate searches and increasing numbers of complaints. When the leaders decide not to keep minutes of meetings, when they tell others not to write things down, when they perpetuate the myths about abusive requesters, when they tolerate giving the Minister's needs priority over legal rights, when they do not foster a culture of openness in general — their employees get the message loud and clear.
So often I hear senior officials say: "I don't have to like this law; I only have to obey it!" — and that grudging attitude is infectious in destructive ways at lower levels. No matter how well crafted an access law may be, it will only be a good law if public officials make it work.
I believe that the courts, the public, members of Parliament, the media, almost every group in society, believe strongly in the right of access, they support a strengthening of these laws, they are convinced that openness makes our governance better, our democracy stronger. I am not so sure that those groups are paying enough attention to the challenges which this right now faces.
Consequently, I make this plea: In these difficult times of international conflict and domestic terrorism, be as vigilant to protect the rights of a free society as you are to protect property and loved ones. I am grateful to you for allowing me to reflect today upon the importance to a free society of the right to know.
Thank you for your kind attention.
[Contents]
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