Remarks to the Ginger Group

TORONTO, ONTARIO

[2004-3-26]

In 1997, in the Dagg decision, the Supreme Court of Canada said that there is a vital and fundamental link between information rights and democratic health. It said:

"The overarching purpose of access to information legislation … is to facilitate democracy. It does so in two related ways. It helps to ensure, first, that citizens have the information required to participate meaningfully in the democratic process, and secondly, that politicians and bureaucrats remain accountable to the citizenry".

This is the essence of transparency. The Access to Information Act is the means by which government and bureaucratic opacity is changed into transparency much as the medieval alchemists changed lead into gold.

The Act has now been in operation for almost 21 years and, despite its many successes, about which you read in the press daily, governments and bureaucrats have still managed to find ingenious ways to wiggle and squirm to avoid the full operation of the law. Some of these are:

inflated fees
inadequate searches
delays
excessive censoring
destruction, alteration and hiding of records
not creating records
bad records management

The government, and we as a people, are now reaping what has been sown over the last 21 years of neglect, both benign and active, of access to information. Just three of the most egregious examples of late are:

the HRDC grants mess, referred to as the "billion dollar boondoggle"
the gun registry fiasco
the ongoing sponsorship scandal

All of these have been allowed to occur and fester at least in part due to a lack of adequate record keeping and timely public disclosure. The Auditor General herself has noted, especially in relation to the chaos at the gun registry, that she can’t do her job if there are no records or if the records that do exist cannot be found. This same lack of records, or the inability to find records makes nugatory the right of access.

The challenge for any government, but especially the new government, given the current political climate, is to find a way to restore our democracy to health and to make our access law vibrant. I suggest that there are several ways in which this can be accomplished.

leadership from the top. No prime minister has ever spoken out in support of a strong access to information law, it is time one did.

expand the coverage of the Access to Information Act. Billions of Canadian tax dollars and vital decisions affecting public health and safety fall under institutions which are not subject to the Access to Information Act, examples include the Millennium Foundation, Canada Post, Via Rail, NavCanada. That must end.

It is essential that Parliament pass a recording-keeping law which makes mandatory the creation and preservation of records by public officials. The oral culture in Ottawa must end.

It is time for the government to start obeying Parliament’s wishes and the Court’s directives that cabinet secrecy be curtailed. Cabinet deliberations should be given a measure of protection, but cabinet secrecy was never intended to be a carpet under which to sweep embarrassing information.

We also must confront the myth that the Act interferes with the provision of full and candid advice by officials to Ministers. Most recently this old chestnut is being expressed by Professor Donald Savoie, one of the new government's advisors. In fact, the Act already has strong protection for the internal advice giving and deliberative process. And in recent judicial decisions, the courts have reinforced the right of government officials to give private advice to ministers. If public officials don't have the courage to speak "truth to power", and to put the public interest above the wishes of ministers, it is not because the access laws!

We are still in the early days of this new government and, despite the atmosphere of defensiveness in the face of scandal, there are some positive signs that may bode well for transparency and access to information. These are:

the review of the exclusion of Crown corporations from the purview of the Act, and
the publication of the travel and expense claims of top bureaucrats and Ministers

Yet even these initiatives are tentative. The government needs to go much further, it needs to move quickly to modernize and strengthen the Access to Information Act. Other positive signals to the public and the bureaucracy would be for the new Prime Minister to reverse the Chrétien policy of keeping Ministerial records out of the reach of the Act and to rectify the former government's effort to cripple my office, by minimizing our resources and, thereby, our ability to be a watchdog instead of a lapdog. To assess whether the new Prime Minister is serious about addressing the democratic deficit and improving the accountability and transparency of government, these are the developments I will be watching for. The stakes are very high in all this. The health of any democracy depends on the ability of citizens, the media and elected representatives to know what their government is up to.

I will be pleased to expand on these points during the time for questions.