Remarks to the Managing Government Information 4th Annual Forum - “Federal Access to Information at the Crossroads – A Commissioner’s Perspective”

OTTAWA, ONTARIO

[2006-2-27]

I am pleased to be here today to be part of this important conference.

My topic, today, is:  “FEDERAL ACCESS TO INFORMATION AT THE CROSSROADS – A COMMISSIONER’S PERSPECTIVE”.  I believe that we find ourselves at one of those truly “life changing” moments in our history – insofar as it comes to the future of governmental accountability through transparency in Canada.

We have just changed governments again, after our second election in two years, and the appetite is great for change.  Amongst the changes that were promised by all parties in the last election were changes to strengthen the mechanisms of transparency and accountability of government.  And, too, the second report of the Gomery Commission provided further fuel for change in this area.  The Gomery report, the La Forest report on the Offices of the Information and Privacy Commissioners and the new conservative government, advocate, as a central feature of their initiatives to impact accountability, a stronger Access to Information Act.  Both advocate certain, quite far-reaching, changes to how records are managed in government – also as a means of improving accountability.  And there is a broad measure of agreement among all parties – endorsed by the Gomery Report – that the preferred model of transparency reform is that contained in the “Open Government Act”, which my office drafted last year and tabled before the Standing Committee on Access to Information, Privacy and Ethics in September of 2005.

I have put forward specific changes and pushed hard for reform because the clear lesson of my almost eight years of service as Canada’s Information Commissioner, is that – by-and-large – public officials just don’t get it!  They don’t get the basic notion that, in passing the Access to Information Act in 1983, Parliament wanted a shift of power away from ministers and bureaucrats to citizens.  Parliament wanted members of the public to have the positive legal right to get the facts, not the “spin”; to get the source records, not the managed message; to get whatever records they wanted, not just what public officials felt they should know.

Ministers and bureaucrats, regrettably, didn’t get the memo on this one!  Still, after almost 23 years of living with the Access to Information Act, the name of the game, all to often, is how to resist transparency and engage in damage control by ignoring response deadlines, blacking-out the embarrassing bits, conducting business orally, excluding records and institutions from the coverage of the Access to Information Act and keeping the system’s watchdog overworked and under funded.

No; of course not – it is not all bad news.  There has been progress.  But, the clear lesson of these past years is that governments continue to distrust and resist the Access to Information Act and the oversight of the Information Commissioner.

Vigilance, by users, the media, academics, the judiciary, Information Commissioners and Members of Parliament, must be maintained against the very real pressures from governments to take back from citizens, the power to control what, and when, information will be disclosed.

Will the new government be different?  They say they will be and I hope that they are.  The litmus test will be whether or not the new government delivers on its promise to strengthen the Access to Information Act.

I fervently believe, that the other fine initiatives to improve government accountability which were put forward by Justice Gomery, by the parties during the election and by the Liberal government in response to the sponsorship scandal – require the nourishment of unfiltered knowledge about what goes on in government, if they are to be truly effective.  There can be no true accountability, or true disincentive for corruption and maladministration, without the bright light of transparency.  That was the motivation for the changes my office has suggested to strengthen the Access to Information Act.

At the heart of my suggested changes is my plea for, my insistence on, a return to professional record making and keeping in the government of Canada.  Many of you in this room have toiled long and hard to garner, for information management issues, the profile they so desperately need if our democracy is to be healthy, our governments accountable, our decision-making high quality and our history well documented.  Small steps (such as the adoption of the MGI Policy) resulted – there were no giant leaps – no real success in getting near the top of either the PM’s or the Clerk’s priority lists.  I call the MGI Policy a small step because no one outside the MGI community knows about it; its provisions (such as the requirement to create records) are largely ignored; TBS seems to have washed its hands of monitoring the policy’s implementation; shockingly little money has been devoted to managing the government’s records; and there is no grand plan, with specific target milestones, for solving our information management crisis.

All that, I predict, is about to change.  A mandatory requirement to create records, backed up by penalties, is in the cards.  I have proposed it, Justice Gomery has proposed it, the Standing Committee on Access to Information, Privacy and Ethics has proposed it, and Stephen Harper has promised it.  Once adopted, one of the top priorities of the public service – if not the government – will be to establish record creation and record-retention protocols for every business line and activity of government – from staffing and classification, to pay and benefits, to contracting, to grants and contributions, to investigations and audits, to policy development and advice giving and to managerial activities.  Why will all this be a priority?  Because accepted record creation and retention standards for all our business lines will be a prudent defence against accusations of failure to comply with this new duty to create records.

Surely this is the direction we have been wanting to go in all along!  We desperately need to establish these record standards as a prerequisite to building the policies and technical infrastructure to govern their effective management.  I applaud the many very good experts throughout the system – I have been giving them kudos in annual reports for seven years – but now is the time to get serious about “finishing the check” – gathering and synthesizing our experience and setting up the end-game plan.  This small, scary, legal nudge – this lawful obligation to create records to document what we, as public officials do – is just what the information management doctor ordered!  At least, that’s how I see it.

Justice Gomery also saw this critical link between records management and good, accountable governance.  This is what Justice Gomery had to say:

“The Commission concurs with the Information Commissioner that there should be mandatory record-keeping in government, and that the obligation to create a “paper trail” should be something more than a matter of policy.  It should be an explicit part of the law of Canada.”

“Accordingly, the Commission agrees that the Access to Information Act should be amended to include an obligation on the part of every officer and employee of a government institution to create records that document decisions and recommendations, and that it should be an offence to fail to create those records.  Going further, the Commission believes that there should also be free-standing record-keeping legislation which would require public servants and persons acting on behalf of the Government to collect, create, receive and capture information in a way that documents decisions and decision-making processes leading to the disbursement of public funds.  This would make it possible to reconstruct the evolution of spending policies and programs, support the continuity of government and its decision-making, and allow for independent audit and review.  Such record-keeping legislation should state clearly that deliberate destruction of documentation and failure to comply with record-keeping obligations are grounds for dismissal.”

“The reason for the creation of legal obligations to maintain and not to destroy government records, in addition to similar rules in the access to information regime, is that the rationale for mandatory record-keeping does more than facilitate public access to information:  it ensures good government and accountability, a requirement consistent with the theme of the Commission’s overall recommendations.” [Gomery Report #2 at pp. 180-181]

I, too, believe that the legal requirement to create records is a vitally important first step – but only a first step.  The entire life cycle of recorded information held by government requires regulation.  The good guidance given in the MGI Policy has not been implemented in practice to an acceptable extent.  I, too, support a comprehensive information management Act which will enshrine accountabilities for monitoring and enforcement – accountabilities which are, at present, highly confusing.

At present, the only statute which specifically mandates a minister to pay attention to how the government’s information is managed, is the Access to Information Act.  I suspect that few of you are aware that section 70 of the Act contains this provision:

Section 70(1) “… the designated Minister (President of Treasury Board shall

(a) cause to be kept under review the manner in which records under the control of government institutions are maintained and managed to ensure compliance with the provisions of this Act and the regulations relating to access to records.”

This is the statutory basis for the TBS policy activity with respect to information management and, yet, to my knowledge, no President of the Treasury Board, in the 23 years since the Act’s passage, has ever caused a single study to be made into the effect on access rights of information management practices.  Yes, there have been efficiency studies and e-government studies and procurement initiatives and standards, and all the other good and important initiatives undertaken over the years by the Chief Information Officer Branch of TBS – but virtually no attention paid to the statutory mandate.

My office is intending to devote some considerable attention to monitoring how TBS is fulfilling its statutory obligations under the Access to Information Act and this is, perhaps, the most important of those obligations.  The other obligation placed on the TBS by law is to ensure that all government institutions capture and report annually statistics on how the Access to Information Act is being administered.  For almost 23 years, the TBS has been content to capture only basic descriptive information such as numbers of requests, categories of requesters, exemptions invoked, and so forth.  Statistics which reveal performance deficits or successes are not captured.  For example, government institutions are not required to publish the percentage of requests received which are answered late – a highly reliable predictor of the state of health of access administration in any institution.  If the proposed Open Government Act is adopted, some gathering of basic performance data such as this would be mandatory.

Now might be an appropriate time to bring these comments to a close by summarizing the main elements of ATI reform which, it is my hope, will soon be coming before Parliament.

I believe that the proposed new Open Government Act that I presented to the Standing Committee on Access to Information, Privacy and Ethics in October, is the right blueprint for reform.  My reform proposals contain the following features:

• All exemptions should contain an injury test and be discretionary.  As well, all exemptions should be subject to a public interest override.  In this way, Parliament would send the clear message that this is an openness law not a secrecy code and that the default position is disclosure.
• Public officials should be required to document their decisions, actions, considerations and deliberations.  This law, this right of access, means nothing if public officials don’t keep appropriate records and conduct governance in an oral culture.
• The last vestiges of unreviewable government secrecy – i.e. cabinet confidences – should be brought within the coverage of the law and the review jurisdiction of the Commissioner.  Cabinet confidentiality risks being broadly, and too self-servingly, applied by governments when it is free from independent oversight.
• The coverage of the Access law must be made comprehensive to all the mechanisms of government through which public funds are spent or public functions discharged.  Of course, I refer here to all Crown Corporations, Foundations, Agents of Parliament as well as Ministers’ offices and the PMO.  The right to know is at profound risk when governments have the discretion to decide which entities and, hence, which records, will be subject to the right of access and which will not.  The very purpose of the Access to Information Act was to remove the caprice from decisions about disclosure of government records; now we must remove the caprice from decisions about which entities will be subject to the Act.
• Connected with this notion, that the coverage of the Act should be comprehensive, is the notion that the Act should be a complete code setting out the openness/secrecy balance.  No longer should we permit secrecy provisions in other statutes to be mandatory, in perpetuity, without meeting any of the tests of secrecy in the Act’s substantive exemptions.  Section 24 of the Access to Information Act, which sets out this open-ended, mandatory, class exemption, should be abolished.

To restate my theme, then, before closing:  We are about to get, in this country, a modernized, strengthened Access to Information Act.  Yet, you in this room and your colleagues throughout government, will have more to say about the effectiveness of our “right to know” than will the strongest of new legislative provisions.  Why?  Because this right of access, this quasi-constitutional right at the heart of a free society, depends on their being records – records which can be found quickly; records which are in retrievable formats; records which are complete, accurate and up-to-date and that there be an auditable records disposal system.  And all of that basic foundation building is within the care of this community of professionals.  I have spent my entire term trying to put what you do on the front burner of the government’s priorities.  As my term comes to an end, I realize that there is no group of professionals in the public service that is so undervalued by the leaders of the government and public service.

I have tried to change that, because I believe that the future of the public’s right to know – the future of the shining ideal of open government in this country – is largely in your hands.  You have my thanks and you will always have my deep respect.

Thank you.