Remarks to the University of Alberta’s 2006 Access and Privacy Conference’s Appreciation Dinner - “The Future of Accountability – The Federal Government’s Accountability Act and Discussion Paper and the Open Government Act”

EDMONTON, ALBERTA

[2006-6-14]

I am pleased to be here today to discuss with you what I feel is an extremely important and urgent topic: “The Future of Accountability – the Federal Government’s Accountability Act and Discussion Paper and the Open Government Act.” 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 at the federal level in Canada.

Earlier this year, everything looked rosy for the future of access to information reform. We had just changed governments again, after our second election in two years, and the appetite was 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, all advocated, as a central feature of their initiatives to improve accountability, a stronger Access to Information Act. Both Gomery and the government advocated certain, quite far-reaching, changes to how records are managed in government – also as a means of improving accountability. And there was a broad measure of agreement among all parties – endorsed by the Gomery Report – that the preferred model of transparency reform was 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.

Earlier this year I wrote, “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 stays true to its promise to strengthen the Access to Information Act, in the manner described in its accountability platform, or whether it succumbs to early pressure by the bureaucracy to pull back.” I think we now have the answer and it is deeply disappointing.

After all of this build-up, all of this consensus and all of these promises it appears to have been for naught. Somehow, while we were feeling pretty good about the future of accountability through transparency, it all seems to have fallen apart. Or, maybe it was simply hijacked by bureaucrats who saw their culture of secrecy seriously threatened for the first time in decades. Let me back up a bit and review what has happened and the current status of access to information reform at the federal level.

In the dying days of the Martin government, in despair that the government would ever get around to tabling much-needed amendments to the Access to Information Act, the Standing Committee on Access to Information, Privacy and Ethics asked my office to draft a model bill for them. The result was the proposed Open Government Act that I presented to the Standing Committee in October, 2005. My reform proposals contain the following features:

1. 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.
2. 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.
3. 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.
4. 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, would be abolished by the proposed Open Government Act.

This Open Government Act was well-received by the Standing Committee, which passed a motion urging the government to adopt it as its own and pass it before the looming election. That didn’t happen. What did happen was that the Conservative Party, which was soon to form the next government of Canada, promised the following which is an excerpt from their platform “Stand Up For Canada”:

The Plan

A Conservative government will:

• Implement the Information Commissioner’s recommendations for reform of the Access to Information Act.
• Give the Information Commissioner the power to order the release of information.
• Expand the coverage of the Act to all Crown Corporations, Officers of Parliament, foundations and organizations that spend taxpayers’ money or perform public functions.
• Subject the exclusion of Cabinet confidences to review by the Information Commissioner.
• Oblige public officials to create the records necessary to document their actions and decision.
• Provide a general public interest override for all exemptions, so that the public interest is put before the secrecy of government.
• Ensure that all exemptions from the disclosure of government information are justified only on the basis of the harm or injury that would result from disclosure, not blanket exemption rules.
• Ensure that the disclosure requirements of the Access to Information Act cannot be circumvented by secrecy provisions in other federal acts, while respecting the confidentiality of national security and the privacy of personal information.”

As well, the Conservative Party Platform, had this promise to make with respect to wrongdoing reported under the whistleblower protection legislation:

“A Conservative government will: …

• Require the prompt public disclosure of information revealed by whistleblowers, except where national security or the security of individuals is affected.”

Further support for the approach taken in the Open Government Act and the Conservative election platform came in the form of the second report of the Gomery Commission. You may recall that part of Justice Gomery’s mandate was to study and make recommendations concerning changes to the Access to Information Act, which would improve the accountability of government and assist in deterring and identifying wrongdoing and mismanagement in government.

Justice Gomery made public the results of his inquiry into the access to information part of his mandate, on February 1, 2006. He endorsed the reforms proposed in the Open Government Act and in the Conservative election platform.

Alas, the Open Government Act was not included as part of Bill C-2, the new government’s proposed Federal Accountability Act. Bill C-2 does propose to add additional Crown Corporations and Officers of Parliament to the coverage of the Access to Information Act, but it also includes such broad provisions for refusing access to the records held by these organizations as to put into question the good faith of the exercise. As well, Bill C-2 provides blanket exemption (no need to demonstrate injury from disclosure) for records held by government arising from reports of wrongdoing and for draft audit reports and audit working papers. In the latter case, secrecy is required for 15 years, in the former, it is required forever.

The proposed Federal Accountability Act adds ten new exemptions, and 2 new exclusions, authorizing additional reasons for secrecy to the Access to Information Act. Keep in mind that the current law only has a total of thirteen exemptions and two exclusions. Of the ten new exemptions, eight are mandatory exemptions, contain no requirement to demonstrate any injury at all from disclosure, are not time-limited and contain no public interest or consent overrides. Only one exemption such as this currently exists in the Act and it is consistently abused. Two of the new exemptions are discretionary, but contain no injury test and one of the two has a 15-year time limit before the information may be disclosed. Compare this information with the promises in the Conservative election platform.

Much has been made about the fact that 19 new entities, including my office, have been added to the list in Schedule I of the Act of organizations subject to the Act. This is progress, but what the government giveth with one hand, it taketh away with the other. For example, by-and-large, the new Act gives a right of access to information about the general administration of the added Crown Corporations and Officers of Parliament. But, it prohibits access to information about the mandated activities of these institutions. In other words, access as of right is given primarily to information which already appears, or should appear, on websites and in public, corporate reports.

I am entirely convinced, as was Justice Gomery, that there is no sensitive commercial, financial, corporate or client information held by Crown Corporations and other quasi-public institutes not now covered by the Act, which cannot be protected by the already-existing exemptions or those proposed by the Open Government Act. The difference is that the government does not appear to want these Crown Corporations to have to discharge the burden of proving that the information they want to keep secret is truly sensitive and truly needs to be kept confidential. This greater zone of secrecy for Crown Corporations, as well as for Officers of Parliament and for those who conduct internal audits or investigations of wrongdoing, does not serve the goal of greater accountability, nor does it serve the public interest.

I’d like to turn for a moment to what has been left out of the Federal Accountability Act which is of equal concern to me as what has been put in. Of the approximately 100 amendments to the Access to Information Act which I have proposed in the Open Government Act, the government has included (to some degree) in the Federal Accountability Act only 10 of them. The government has explained its decision not to include comprehensive access reform in the Federal Accountability Act by saying it is a complex piece of legislation and any changes need broad consultation.

What are we to make of the government’s stated purpose for delaying comprehensive access reform? How are we to view the government’s decision to propose to add 12 new secrecy provisions to the Access to Information Act (without the benefit of any public consultation) while refusing to add even one new openness provision? How are we to view the government’s decision not to include in the Federal Accountability Act even those provisions of the proposed Open Government Act which have not been disputed in the government’s discussion paper?

Nothing disappoints me more than the government’s failure to require the creation of basic records to document the decisions and actions of public officials. Justice Gomery, the Auditor General, the National Archivist, previous information commissioners, the Standing Committee on Access to Information, Privacy and Ethics – even the government itself in its discussion paper – say that key records are not being created. Everyone recognizes that an oral culture has grown up in the federal government designed to avoid the rigors of independent audit, access to information, judicial inquiry and Parliamentary scrutiny. Above all else, this “cancer” is destroying the health of the access law and the public’s ability to hold governments to account. Yet the new government chose not to deal with this in Bill C-2.

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.

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. The clear lesson of these past years is that governments, even very new 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.

I fervently believe, that all the fine initiatives to improve government accountability, which were put forward by Justice Gomery, by the parties during the election and by the government in response to the sponsorship scandal, require the nourishment of unfiltered knowledge about what goes on in government. There can be no true accountability, or true disincentive for corruption and maladministration, without the bright light of transparency.

It saddens me, as I near the end of my service as Canada’s Information Commissioner, to report that the light of transparency has dimmed. Yet, as I meet with groups like this, and speak with Canadians across the country, my faith is constantly renewed in the power of individuals to rekindle the light. Perhaps somewhere in this room is the future leader who will have the self-confidence, as Pierre Trudeau did in 1982, to reject Sir Humphrey’s point of view and affirm that the very best government is the most open government. That possibility should give us all hope, and keep us all motivated to stand up for the public’s right to know.

Thank you for your kind attention. I will be happy to answer questions.