Annual Report: 2003-2004

Governments make skeptics of Information Commissioners. Time after time, régime after régime, scandal after scandal, government leaders raise expectations by promising to be more accountable and transparent. Just as routinely, governments maintain their deep addiction to secrecy, spin, foot-dragging and decision-making by nods and winks. When it comes to honoring the public’s "right to know", governments have found it profoundly challenging to "walk the walk".

Since the coming into force of the Access to Information Act, on July 1, 1983, one Conservative administration (that of Brian Mulroney) and one Liberal administration (that of Jean Chrétien) have struggled, with varying degrees of success, to respect (or ignore--depending on perspective) the letter and spirit of Canada’s "right to know" law. During those two decades, three successive Information Commissioners have made annual reports to Parliament describing the poor state of health of the public’s right of access to government-held records. In those reports, commissioners recommended administrative actions governments should take to make the access law work with the vigor Parliament intended, and legislative amendments Parliament should pass to strengthen the law in the light of changing forms of governance and new information and communications technologies. Alas, as one former commissioner opined, Information Commissioner reports might just as well be put on a rocket ship to outer space, for all the effect they have on governments.

In this reporting year, the tenure of a new Prime Minister, Paul Martin, began. Prime Minister Martin came to office with an express intention to improve the quality of Canada’s democracy--including the transparency of its federal government institutions. Words such as "openness", "transparency", "accountability", "integrity" are on his lips. Is there reason for optimism? Will Prime Minister Martin’s government be sufficiently self-confident, courageous and honest to beat the secrecy addiction to which governments fall victim? Early in the game, there are some positive signs.

For example, the Martin government announced a policy of proactive disclosure of the travel and hospitality expenses of ministers, their staff and senior public servants. As well, in response to the Auditor General’s report concerning the sponsorship program, the Martin government announced that it would study the issue of making Crown Corporations subject to the Access to Information Act.

With respect to Crown Corporations, action is long overdue. The issue was carefully assessed by a committee of the House of Commons in 1986 and resulted in a unanimous recommendation that Crown Corporations be made subject to the right of access; every intervening Information Commissioner has made the same recommendation; 13 private members’ bills have been introduced seeking to make Crown Corporations’ subject to the right of access; Auditors General have recommended that Crown Corporations be made transparent. Only government insiders--and Crown Corporations--resist. Kudos, then, to the Martin government for getting on with it!

As well, there have been some signals from the government that it will end the foot-dragging on making all officers of Parliament (the Auditor General, the Chief Electoral Officer, the Commissioner of Official Languages, the Privacy Commissioner and the Information Commissioner) subject to the Access to Information Act. The scandal surrounding the actions of former Privacy Commissioner Radwanski, and some of his officials, gave graphic testimony to the imperative of removing the shroud of secrecy which covers these important institutions. In this regard, there was a backward step when Parliament recently passed a bill creating a new Officer of Parliament, the Ethics Commissioner, which would not be subject to the right of access. The irony of this move is that the Office of the Ethics Counsellor, which is to be replaced by the Ethics Commissioner, was subject to the right of access.

While the Martin government did not signal whether or not it would be open to general review and reform of the Access to Information Act, there has been a clear recognition by his government that a vibrant access law is a key ingredient to the recipe for ensuring accountable government.

In this regard, it should be remembered that the Supreme Court of Canada has pointed out that the purpose of the access law is to hold public officials accountable. And, too, it should be remembered that the access law has been instrumental in enabling MPs, journalists, academics and researchers to bring to light wrongdoing and mismanagement in government, including the so-called "billion dollar boondoggle" at HRDC, the cost overruns at the Firearms Registry, the former Prime Minister’s dealings with the Business Development Bank and the recent sponsorship scandal at Public Works and Government Services. There is simply no question that a strengthened Act will lead to a higher degree of accountability and integrity on the part of elected and appointed public officials.

A decade ago, in his 1993-94 Annual Report to Parliament, former Information Commissioner John Grace reflected on a year not unlike this reporting year--this was the end of the 34th Parliament, a general election and a change of Prime Minister. Commissioner Grace summed up the performance of the outgoing Mulroney régime as follows:

"Alas, guided by often hostile ministers and a foot-dragging bureaucracy, some departments began to manage exemptions rather than promote openness. Access to some information previously routinely available was shut down: ostensibly to protect the privacy of individuals and corporations. Politicians and bureaucrats looked to the access law with its, at times, legalistic, ponderous approach, as the baseline for responding to the public. One ploy, used in the Privy Council Office and elsewhere, when dealing with a troublesome client was to force the individual to make a formal request and to draw out the process as long as possible." (Annual Report 1993-94 at p. 4)

Substitute the name Chrétien for Mulroney and the words are just as apt a summary of the Chrétien government’s performance. It is interesting to note that, in the 1993-94 report, former Commissioner Grace threw this challenge to the new Chrétien government: "Have the self-confidence to be scrutinized and the fortitude to be forthright. No government can safely or successfully ignore the truism that an accountable government is an open government." (Annual Report 1993-94, at p. 4) And now, in 2004, as Parliamentary Committees, public inquiries and the RCMP work to sort through the entrails of scandal from the Chrétien years, it seems clear that Dr. Grace’s challenge fell on deaf ears. Indeed, the Chrétien government made unprecedented, targeted efforts in the courts and, by withholding adequate funding, to cripple the effectiveness of the Information Commissioner’s office. More on that later.

The "déjà vu" is also felt when one recalls the 1993 Liberal Party platform "Creating Opportunity" (the so-called red book). It described "openness" as the "watchword of the Liberal program" and it recognized that "people are irritated with governments that do not consult them, or that disregard their views, or that try to conduct key parts of the government business behind closed doors." Nothing undermined the right of access more, in the past twenty years, than the disdain shown for it by two long-serving Prime Ministers. Their destructive example spread like a cancer through successive PMOs, PCOs and the senior bureaucracy. For twenty years, Canadians seeking information--especially about any subject the government considered "sensitive"--have been met by a wall of obstruction, obfuscation and delay. Recently, Mr. Charles Guité testified under oath, before the Public Accounts Committee, that sponsorship records were not kept in order to evade the Access to Information Act.

To his credit, Prime Minister Martin began to confront, head on, the attitude in influential places that the Access to Information Act is a pain in the neck and that openness is something to be avoided even to the point of abandoning the professional duty to keep good records. He has been clear that ends do not justify the means, that good record-keeping is essential to good governance and that politicians and bureaucrats should be open about the public’s business.

It is true that investigations by the Information Commissioner (and, even, the government’s own internal studies) show that departments often don’t bother with reasons to support secrecy, unless and until there is a complaint. Departments have often not taken seriously their obligation to follow a two-step approach before applying discretionary exemptions. Too often, departments have been content to address only the question: "May the requested records be kept secret?" The new Prime Minister has made it clear, as does the access law, that officials should also be asking: "Even if they may, why should the records be kept secret?" Most troubling, too many senior officials (elected and appointed) consciously evade public accountability by making sure there is no paper trail.

For a new government to be successful in achieving a culture of openness, it will have to dispel the myths that senior officials--and past Prime Ministers--have held and perpetuated. The major myths are these: the law is being abused; government is being overwhelmed by requests; the law is too expensive and the law interferes with the giving of unreserved advice on a full range of options.

Perhaps some facts will help a new Prime Minister cut through the mythology which is likely to find its way into the briefings he receives from the bureaucracy.

First, Canadians are highly responsible users of the right of access. It took ten years before the government received, in cumulative total, the number of access requests (50,000) that it planned to receive in the first year. At present, all departments and agencies of government receive less than half that predicted annual number of requests. In 2002-2003, some 23,000 access requests were received by government.

Second, Canadians make focused requests for small numbers of records. A study in 2002 showed that eighty percent of all access requests result in the release of fewer than 100 pages. Only one percent of access requests were for more than 1,000 pages of records. Moreover, ninety percent of requesters make fewer than seven access requests per year--most make only one request. Indeed, only thirty-five percent of requesters make more than one request per year.

Third, less than ten percent of requests result in complaints to the Information Commissioner, and the total cost of the whole system--including the Commissioner’s office--is less than one dollar per year per Canadian.

Despite this outstanding record of user responsibility, a recent report prepared by government insiders proposed that using the Access to Information Act be made harder, more expensive, slower and more controlled by government. Resistance to openness has no shame!

We can only hope and urge a new government to ignore the self-serving folklore within the bureaucracy and reject the initiatives the bureaucracy is proposing to penalize a user community which, the statistics clearly demonstrate, has been restrained and responsible.

The myth that the Access to Information Act removes the ability of public servants to give ministers private advice is the most widespread and pernicious of all. It has no foundation in law, yet it is used by public officials to justify increasing reliance on oral briefings, decreasing the keeping of meeting agendas and minutes and broadening an official zone of secrecy for public officials.

In fact, the Access to Information Act now has a very strong protection for the confidentiality of advice and recommendations developed by officials for ministers. The exemption, set out in section 21 of the Act, is the third most frequently used of the Act’s 13 exemptions to justify secrecy. It has been the subject of litigation, and the Federal Court of Appeal has rendered decisions which have confirmed that this is a strong exemption. The Act recognizes and supports the need for candour between officials and ministers as an element of ministerial accountability, which is a core element of the Westminster style of parliamentary democracy.

Yet, despite the clarity of the law on this point, and despite the reality that advice and recommendations are rarely disclosed (and, then, only when ministers want to make such information public), the myth persists. An eminent scholar, author and adviser to Prime Minister Martin (Professor Donald Savoie) gave a radio interview on March 1, 2004, in which he asserted that "speaking truth to power" is far more difficult for deputy ministers in the context of our access to information régime. He went on to say that, before the Access to Information Act, advice to ministers used to be private; whereas, now, it is in the open. Professor Savoie may be correct that officials find it more difficult to speak truth to power, but he is simply wrong to assert that the reason is because the access law removed a pre-existing zone of secrecy as between ministers and senior officials.

The minister responsible for the administration of the Access to Information Act across government is the President of Treasury Board. In this reporting year, the Access to Information and Privacy Policy Centre in the Treasury Board Secretariat (TBS) was integrated with the Information Policy Centre under the umbrella of the Chief Information Officer Branch.

This integration is a positive development, coming as it does on the heels of Treasury Board’s approval of a new policy on the management of government information. TBS has recognized the vital link between effective information rights (i.e. right of access and right to privacy) and effective records management. A key element of the TBS information management policy is that public officials must create records to document decisions and decision-making processes throughout the evolution of policies, programs and service delivery.

TBS also took the lead in implementing the government’s policy to proactively disclose, on websites, travel and hospitality expense information for senior public officials. It is examining the possibility of making other categories of information available on a proactive basis, such as information on contracts, grants and contributions. These are positive initiatives. However, TBS has been reluctant to undertake proactive on-line disclosure of its database on access to information requests which is used by central agencies to monitor and coordinate responses to requests. The system, known as CAIR (Coordination of Access to Information Requests), is technically ready for public on-line access, but TBS continues to resist "throwing the switch". If public officials across government have the ability, through access to CAIR, to know what access requests are being made, why shouldn’t members of the public? The most recent information from TBS is that the matter is under study until June 2004.

Much good work is underway within TBS and elsewhere in government to document the information management "deficit" and to identify best practices, audit tools, skills, training, and needed resources to address the "deficit". Some six million dollars over two years have already been earmarked for accelerated implementation of the information management policy. Representatives from 18 departments and agencies comprise the "IM Leadership Initiative" to keep priority focus on addressing the information management deficit.

For an Information Commissioner, all this is cause for optimism. The designated minister responsible for delivering the right of access understands the need to focus on information infrastructure, skills and training. This is not the kind of "sexy" work that earns ministers good press or public recognition; it is, however, vital to delivering quality governance: good decision-making and accountability through transparency. Kudos to Minister Reg Alcock, and the former Minister, Lucienne Robillard, for rolling up their sleeves and getting to work on the fundamentals!

As described in previous annual reports, the Chrétien government, for the past four years, has pursued some 27 applications in Federal Court against the Information Commissioner, seeking to curtail his investigative powers. Those 27 applications may be grouped into seven categories of applications seeking to:

1. remove the commissioner’s powers to have access to records held in ministers’ offices during his investigations;
2. remove the commissioner’s powers to subpoena ministers and members of a minister’s staff during his investigations;
3. remove the commissioner’s power to review records, which the government claims to be subject to solicitor-client privilege, unless the commissioner can show that such access is "absolutely necessary";
4. remove the commissioner’s powers to ask government witnesses to express opinions about matters of government policy;
5. remove the commissioner’s powers to make and keep copies (until the end of the investigation or related court proceedings) of records provided to it by government during investigations;
6. remove the power of the commissioner to impose confidentiality orders upon witnesses who are questioned during investigations; and
7. remove the power of the commissioner to complete an investigation before the matter under investigation may be brought before the court for determination. In this case, the government asked the court to decide that records held in ministers’ offices are not subject to the right of access.

Before a judgment on the merits was issued by the Federal Court Trial Division, some four years of litigation intervened. Procedural issues were dealt with by six judges of the Trial Division, six judges of the Court of Appeal and three judges of the Supreme Court of Canada. Most recently, on March 25, 2004, Justice Dawson of the Trial Division issued a 179-page decision disposing of the merits of the five remaining issues, i.e. items 3-7 described above. Items 1 and 2 were disposed of at earlier stages, in the commissioner’s favour. In other words, government may not prevent the commissioner from reviewing records held in the offices of the Prime Minister or ministers and may not prevent the commissioner from compelling oral evidence from ministers or ministerial staffers.

With respect to issues 3-7, Justice Dawson found as follows:

3. Right of Access to Solicitor-Client Material

   The government asked the court to find that the Information Commissioner may only compel production of records which are covered by solicitor-client privilege, if he can demonstrate that such access is "absolutely necessary" to the related investigation. Justice Dawson based her decision on an examination of the purpose of the Act, the role of the commissioner and the words of subsection 36(2) of the Access to Information Act.

   The purpose says that decisions on the disclosure of government information should be reviewed independently of government. Justice Dawson concluded that the "absolute necessity" test would impose a significant restriction on the ability of the commissioner to conduct his investigation and independent review.

   With respect to the role of the commissioner, the court noted that he is under a strong statutory obligation of confidentiality and has no power to order disclosure of government records. According to the court, there is no loss of privilege when solicitor-client records are provided to the commissioner. For this second reason, then, Justice Dawson rejected the "absolute necessity" test.

   Finally, the court looked at the words of subsection 36(2), which provides that the commissioner is to have access to any record he requires, "notwithstanding any other Act of Parliament or any privilege under the law of evidence". Justice Dawson concluded that to impose the "absolute necessity" test in the face of these clear words would circumvent the intention of Parliament.




4. Propriety of Questions

   The government asked the court to find that the commissioner had exceeded his authority when questions were put to Jean Pelletier and the Honourable Art Eggleton calling for opinions on a matter and, in one case, inviting comment on the opinion of another witness.

   Justice Dawson declined to impugn the questions (some had been answered, some withdrawn) because there was no allegation that the questions went beyond the commissioner’s jurisdiction or were asked for an improper purpose. As well, since the objection to the questions was based on "relevance", that is an evidentiary ruling which should not be challenged until the end of an investigation when it can be seen whether or not improper evidence was relied upon. Justice Dawson summed up her rejection of the government’s application on this point, as follows: "I see no public interest which would warrant determining the issues raised in these applications". (paragraph 324)

    

5. Power to Make Copies

   The government asked the court to find that the commissioner has no right to make copies of records he obtains during his investigations. In the government’s view, the commissioner may only keep records for 10 days after a request for their return is made by government.

   Justice Dawson interpreted the provision of subsection 36(5) of the Act (requiring the commissioner to return records within 10 days of a request for return being made) as applying only to original records. She concluded that this provision does not preclude the commissioner from making and keeping copies of records to facilitate his investigations. Justice Dawson expressed her ruling on this point, as follows:

   "… considering the efficiency and benefits that derive from allowing documents to be photocopied, I am satisfied that the power to photocopy documents is required as a matter of practical necessity for the accomplishment of the commissioner’s responsibilities under the Act." (paragraph 280)

    

6. Confidentiality Orders

   During his investigations, the commissioner sometimes issues confidentiality orders to Crown counsel (for the purpose of ensuring that their only loyalty is to the witness and not the witness’ employer) and to witnesses (to avoid tainting of evidence, to protect the confidentiality of evidence, to protect witnesses from improper influence and retaliation, to protect the integrity and privacy of the investigation). The government did not challenge the commissioner’s power to issue confidentiality orders to counsel. However, it did challenge the commissioner’s jurisdiction to issue confidentiality orders to witnesses. The government argued that such orders constitute an unreasonable limit upon witnesses’ Charter right to freedom of expression.

   Justice Dawson noted that section 35 of the Access to Information Act requires the commissioner’s investigations to be conducted "in private". She concluded that "in private" has the same meaning as "in camera" and that these terms may place various obligations on witnesses. She found, however, that these words do not go so far as to constitute a "blanket regime which precludes a person from communicating for all time any information touching upon their testimony and appearance before the commissioner". (paragraph 154) According to Justice Dawson, a blanket regime of this sort would constitute an unreasonable infringement of the 2(b) Charter right to freedom of expression.

   However, Justice Dawson also noted that Parliament, in section 34 of the Act, gave the commissioner virtually unfettered discretion to determine the procedure to be followed in the performance of his duties and functions. In her view, this broad discretion authorizes the commissioner to determine, in appropriate circumstances, that some form of confidentiality order should be imposed upon a witness. Justice Dawson found that the imposition of a confidentiality order is a procedure which the commissioner may follow when exercising the power in paragraph 36(1)(a) to compel a person to give evidence. In her words: "…the confidentiality orders are a procedural tool used to ensure a proper and fair investigation of the right of access". (paragraph 182) She also found:

   "… the objectives sought to be achieved (by the confidentiality orders) relate to pressing and substantial concerns in a free and democratic society. I conclude that the objectives (of the confidentiality orders) are of sufficient importance as to warrant, in some circumstances, overriding the constitutionally freedom of expression". (paragraph 209)

   Although the court found that the commissioner has the authority to issue confidentiality orders, it also found that the orders issued in this case were too broad. Justice Dawson noted that the confidentiality orders:

   1. did not have a definite termination date; and
   2. did not make it clear that they only covered questions asked, answers given and exhibits shown.

   However, the court declined to immediately quash the confidentiality orders for being overly broad, pointing out that it does not know the commissioner’s investigation plan, which witnesses may need to be recalled, what further witnesses will be required, or which, if any, conflicts exist in the testimony given to date. Instead, Justice Dawson decided as follows:

   "In my view, the public interest in preserving the integrity of the commissioner’s investigations justifies making an order quashing the confidentiality orders, but on terms that the operation of such order be suspended for a period of 30 days from the date of these reasons. Such date may be extended by the court if so convinced on proper motion brought by the commissioner. The purpose of this suspension is to permit the commissioner to consider the need for confidentiality orders and, if still required, to issue orders which are not overbroad in scope and which are demonstrably justified". (paragraph 244)

    

7. Are Records in Ministers’ Offices Subject to the Right of Access?

   This was the main issue for the government in its attack on the jurisdiction of the commissioner. It asked the court for a declaration that records held in the office of the Prime Minister and ministers are not records under the control of the departments over which these public officials preside. It was the government’s contention that the court should not have to wait for the commissioner’s investigative finding on this very issue before making a ruling. In other words, the government believed that it could avoid the rigors of the commissioner’s investigations by asking the court to issue a pre-emptive ruling on the very issue under investigation by the commissioner.

   Justice Dawson refused to grant the declaration sought by the government. She reasoned that the issue of "control" of records is not to be determined solely on the basis of the "geography" of where records are held. Rather, she found that the issue of "control" is a question of mixed fact and law and, among other facts to be considered, is the content of the records themselves (in this case ministerial and prime ministerial agendas and notes of meetings of the M5 Committee, a regular meeting of the most senior officials of National Defence). Justice Dawson noted that the government had not filed any of these records with the court.

   Justice Dawson also found that granting the declaration sought by the government would be inconsistent with the scheme of the Access to Information Act. In particular, she found that it is up to the commissioner to make the initial determination of threshold jurisdictional issues, such as "control". Under the Act’s scheme, the commissioner may only make recommendations; consequently, Justice Dawson found that the government would not suffer any prejudice from allowing the commissioner to finish his work and from allowing the issue of control to come before the court, if at all, by the route set out in sections 41 and 42 of the Access to Information Act. In this latter regard, Justice Dawson reaffirmed that any preemptive declarations of the sort sought in this case by the government would, if granted, deprive the government, complainants and the court of the benefit of the commissioner’s investigation and report.

As directed by Justice Dawson, the Information Commissioner issued new confidentiality orders to witnesses which will end when the related investigations end and which cover only the questions asked, answers given and exhibits shown. For its part, the government has appealed the portion of the judgment dealing with the commissioner’s authority to compel production of records alleged to qualify for solicitor-client privilege. As well, it has launched new court actions seeking to quash the new confidentiality orders issued by the commissioner.