June 16, 2002  Elaine O'Connor

The X-ed Files

It could be any reporters desk. Cluttered and cramped, strewn with tools of the trade-tapes and clippings, notes and papers piled in tumbling stacks near the computer or in leaning towers on the floor. Amid the organized chaos sits a sheaf of paper a foot high-documents obtained under the Access to Information Act, easily the most important tool of all. Only there’s something missing: the information. On every second sheet selected names and dates have vanished. In their place are meticulously whited-out columns stamped “Exemptions Apply” and “Non-Responsive.” Some pages are blank save for these pale red stamps layered like bricks. Hardly enough to build a story with. Hardly worth the trouble-and the cost-of trying.

 

…………………….Jacques Poitras could never have predicted the trouble he was in for when he made a freedom of information request back in 1994. The New Brunswick Telegraph-Journal reporter had been looking into a federally funded business development organization called the Atlantic Canada Opportunities Agency. While writing stories on the ACOA president’s hefty travel expenses, Poitras found a report stating the agency had doled out more than $2 billion to 10,000 businesses over a five-year period, creating an estimated 42,000 jobs. The key word was “estimated.” Poitras wanted to know how many actual jobs had been created. He figured public money equals public access. He figured wrong. After a week of unreturned phone calls he got the message. On May 3, 1994, he wrote his $5 application fee cheque and filed a standard access request. Then he waited.

Ask any reporter about the pitfalls of using Canada’s access law and you’ll get the same answer: delay, obfuscation, denial. When the act came into effect July 1, 1983, it was envisioned as a last resort-a way for the public to get information it has a legal right to if government fails to release it. At the time it was cutting-edge legislation that put Canada at the forefront of information law. Nearly 20 years later, journalists, researchers, academics, and public interest groups claim it functions more as a deterrent than anything else.

Call it FOI chill. The act, long neglected, is in critical condition. It’s been weakened over time by an ever-expanding list of legal exemptions (up from 38 in 1986 to 50 in 2000) and the exclusion of a growing number of agencies (Atomic Energy Canada Ltd., Air Canada, Petro-Canada, and Canadian Blood Services, to name a few). Recent complications threaten to pull it off life-support. The new Anti-Terrorism Act, for example, promises to cut huge swaths out of access law by allowing the justice minister to create permanent state secrets.

Jacques Poitras’s ordeal lasted five and a half years-through four ACOA ministers, four ACOA presidents, and two information commissioners. While he waited, he held four different positions at the Telegraph-Journaland lived in three cities in two provinces. With the commissioner, Poitras fought his case in two federal courts and amassed boxes of documents that followed him like shadows. Looking back, Poitras, now the provincial affairs reporter for CBC Radio in New Brunswick, finds his whole experience absurd and “kind of funny.” He wasn’t laughing at the time.

 

…………………….Most journalists greet questions about access with a similar mix of humour and horror. In his 10 years of filing requests, Toronto Star reporter Kevin Donovan has found the process uniformly “hideous.” For his first major investigative story in 1990, he requested Transport Canada documents on an embezzling scam that sent a crown trucking company into bankruptcy. The 30-day deadline for response-the legal limit under the law-came and went. Two months later, Donovan finally got a phone call. Instead of waiting for the mail, he jumped in a car with fellow reporter Nick Pron and drove straight to Ottawa. He needn’t have hurried. “Ninety percent of the stuff they released were newspaper clippings,” he recalls. “It took two months to disclose newspaper clippings and they blacked out the names. That was sort of my entry into FOI.”

It wasn’t an isolated case. Years later, the records he and Pron got from Citizenship and Immigration on a fugitive murder suspect looked eerily familiar. “We waited months…and we got blank pages and Xeroxed copies of our own stories,” Pron recalls with disbelief. “Could you imagine getting back your own fucking stories?” Donovan is considerably wiser now. “It’s the Protection of Privacy Act,” he deadpans, “not the Freedom of Information Act.”

Donovan’s colleague Rob Cribb goes further. “Getting information in this country is a horror show,” says Cribb. The investigative reporter and president of the Canadian Association of Journalists is sitting in the Star cafeteria, seeming tense, but not distracted. It’s been only two days since the September 11 attacks, and he’s talking about the only thing so important to him that it could pull him away from the newsroom at a time like this: access to information, or rather the lack of it. “I probably had the worst experience of my life,” he says bitterly, remembering the “Dirty Dining” series he wrote in February 2000. “It was almost a six-month battle and it was relentless, it was almost every day.”

He fought for Toronto Public Health Department restaurant inspection records under municipal access laws, and says that in his experience, problems with municipal and provincial access laws and their administration are similar to those at the federal level. Originally, after suffering from food poisoning after a meal at a local restaurant, he asked only for records from one establishment, simple information every diner is entitled to. Health officials refused. Incensed, Cribb asked for health inspection reports on disk for every restaurant in the city for the previous two years. The health department insisted the material didn’t exist in that format. After months of debate, officials finally conceded not only that the data existed electronically, but it was entirely public and they had to release it in full-which they did in November of 1999, but not before trying to charge the reporter $20,000. “It was scurrilous,” says Cribb, “because again you’re talking about information that is collected by public officials in the public interest that is managed and maintained in the public interest and which could not be released to the public.” He eventually bargained the price down to $300, proving how arbitrary the fee structure is.

And yet the act, when it works, has, time and again, proven its worth. It’s helped expose government cover-ups including the Somalia and Canadian Blood Committee scandals (where public documents were destroyed), and the Walkerton, Shawinigan and Ipperwash debacles. But journalists who use it repeatedly bemoan the fact that they can hardly get anything worthwhile in a time frame that makes it useful. “By and large the biggest problem is that I have never had contact back in 30 days in five years,” sighs Russell Wangersky, news editor of the St. John’s Telegram. Wangersky insists that the reticence of government to divulge public information has grave repercussions for what the public gets to read. “It’s not a question of what kind of story is affected. It’s, what isn’t?”

 

…………………….The effect on Jacques Poitras’s story was immediate-it was stonewalled. ACOA’s response was a swift refusal. That 42,000 statistic, he discovered, was extrapolated from a poll of 606 companies conducted for ACOA by Price Waterhouse in October 1992. The agency claimed the numbers were confidential, arguing their release could undermine businesses involved. Poitras wasn’t convinced. “If they were willing to say that this company was receiving $1 million to create 100 jobs,” he says, “why were they not willing to say whether those jobs were or were not created?”

ACOA didn’t see it that way. In its letter dated May 1994, it offered to give Poitras aggregate numbers and methodology-everything but the breakdown he had requested. In response, Poitras did what every requestor has a right to: he complained. On June 13, he sent a letter to then-information commissioner John Grace, outlining his grievance with ACOA. As the country’s access watchdog, the commissioner ensures government complies with the legislation. “The agency has explained its refusal to me by saying that while the estimated job figures are public information…actual job creation figures are not,” Poitras wrote. “The logic of this argument escapes me. How is the public to assess whether ACOA is fulfilling its mandate if the information on job creation is kept secret?”

 

…………………….Sergio Poggione sees firsthand how requests are treated behind closed doors. An information coordinator for the Immigration and Refugee Board, he’s dealt with the access system every day for 13 years and can attest to systemic flaws. The average caseload per officer, according to the information commissioner’s 1996-97 report, “should not exceed approximately 100 complete requests per analyst.” Poggione’s employees (he has a staff of seven, down from 11 in 1996, before cutbacks) average 335. “It has become cumbersome,” he says, with decided understatement.

Poggione is president of the Canadian Access and Privacy Association, a group that advocates for greater accountability in information service, so he isn’t shy about discussing the system’s shortfalls. When he asks for data, he says, officials in the government departments routinely complain: “We don’t have the time or the resources to do this.” If they can find the time, they can’t find the document. The filing system is “atrocious”-the same immigration policy file often has a different reference number in each region. But the system’s most insidious flaw, Poggione says, is its culture of secrecy. He’s aware government departments fashion loopholes in the law in order to withhold data. “At times, whether a coordinator has a good exemption or not,” he says, “the legal department may become inventive at that point.” Some departments even flag applications from so-called troublesome requestors for special review. The government secrecy journalists despair of, Poggione insists, is a reality. It’s “not just a misapprehension,” he says emphatically. “It is very, very true.”

 

…………………….In early July, less than a month after Poitras’s complaint was assigned to an investigator, a package arrived at his office, unannounced. Most reporters approach such deliveries with trepidation, but Poitras was elated: inside was ACOA’s three-inch-thick quarterly report, listing every grant in the agency’s history. Apparently, the Office of the Information Commissioner had considerably more clout than he. Poitras held his breath. Surely somewhere in the 726-page document he could find what he was looking for. He flipped the pages, scanning columns of numbers, but found not one reference to actual job figures. “They gave me everything but,” Poitras says. “Everything but the key information.” The letter that followed put ACOA’s reasoning in writing: “Price Waterhouse and ACOA have consistently treated these records in a confidential manner and it is the Agency’s intention to continue treating this information in such a manner.”

That’s when things got ugly. On September 14, 1994, complaints investigator Dan Dupuis sent a letter to ACOA stating that its claim to confidentiality didn’t meet the legal definition-specifically Section 20 (1)(b) of the Act, which addresses third-party confidentiality. The fact that ACOA had told the grant recipients it would be confidential didn’t justify holding it back. Even so, ACOA’s corporate secretary responded that the agency would continue to withhold the data. Poitras remained determined. “At a certain point a journalist becomes even more motivated to want to know. It didn’t deter me. It certainly crystallized that it can be very difficult for a journalist to get information. Of course, in mid-1994,” he adds ruefully, “I didn’t know it was going to be this long.”

 

…………………….Social policy professor Alasdair Roberts has long had an interest in access law. Over the course of his career Roberts has heard scores of bitter stories about the system, but the evidence was entirely anecdotal, so while teaching at Queen’s University he compiled some hard statistics. In his landmark 1998 study, “Limited Access,” and subsequent reports on Canada’s access system, he found requests were taking longer, costs were rising, public services were increasingly exempt and departments repeatedly denied reasonable requests. In 1993-94, for example, the federal government responded to 62 percent of requests within the 30-day legal limit. Three years later it was down to 48 percent, while delays of more than 60 days increased. Roberts attributes the “significant slowdown in response times” to federal cutbacks, which in turn boosted complaints.

Among government agencies, ACOA’s track record was one of the worst. Roberts’ study showed between 1994 and 1998, the number of FOI requests to ACOA doubled, while processing speed dropped and disclosure became more restrictive. In one year alone, ACOA used six different exemptions in an average request (more than any other agency) to justify denying information-giving it one of the highest complaint rates.

Overall, there were so many complaints throughout the 1990s that even the commissioner’s response time lagged. Things have improved since Roberts’ 1998 study, but because the volume of requests has risen (up from 12,206 in 1998 to 20,789 in 2001), the number of complaints has skyrocketed (up from 768 in 1994 to 1,680 in 2000). Even when a complaint is eventually resolved, the lack of detailed records means there is no way of knowing whether or not it was to the requestor’s satisfaction.

Yet it’s not the statistics, but the lack of them that irks Roberts. “We shouldn’t let anecdotes shape our debate about the law,” he says. “One of the really unfortunate things is that we don’t have better research about how the law works.” Government spends more than $28 million a year on administration of the law, he says, but little, most years almost nothing, is spent on research. It’s hard to fix the system if you don’t document what’s wrong with it.

 

…………………….The longer ACOA stalled, the more determined John Grace became. Acting with the instincts of a journalist, he decided to do a little research of his own. ACOA had argued that revealing job statistics would somehow devastate their client companies. To test their claim, Grace wrote to all 606 companies in late 1994, asking them if they objected to the release of job creation figures and signing each letter personally. “I’m sure he wore out his hand,” Poitras says, chuckling. But it worked. Just 36 businesses wrote back with minor objections.

In February 1995, ace in hand, Grace sent a letter directly to ACOA’s then-president, Mary Gusella, calling her bluff. “The Federal court has ruled that a promise of secrecy cannot, in and of itself, justify secrecy,” he wrote. “It is the provisions of the access law which determine whether records may remain confidential. To conclude otherwise would enable government and third parties to circumvent the access law.” Then he laid down his hand, informing Gusella that “fewer than six percent…objected to disclosure of the information” and demanded the records be released.

Gusella wrote back that same month, offering a terse reply. “I wish to advise you that the Agency does not intend to comply with your recommendation….Yours sincerely, Mary Gusella.” She simply said no. She could. Under the law, the commissioner can’t compel an agency to release information. Grace’s sole weapons against ACOA were to shame it into compliance with a critical review in his office’s annual report-which he did, calling the state of the system “a festering, silent scandal”-or to take it to court, a different game altogether.

 

…………………….Any government system that functions more like a card game than a legally regulated bureaucracy is a system crying out for reform. Hamilton-area MP John Bryden, a journalist turned Liberal backbencher, may be crying the loudest. The politician, who has been crusading for reform since elected in 1993, rails like a preacher against the secrecy of his government. Private Member’s Bill C-206, his most recent attempt to increase openness, had a second reading on June 6, 2000, but died after a mysterious memo trumping up privacy concerns landed on the desks of MPs before the vote. No one knew where the memo came from, but it sent panic through the House, and the bill was defeated, 178 to 44. Bryden was crushed. Just days later, the government announced it was setting up a 12-member, $1.5-million Access to Information Review Task Force to study the act and recommend amendments. A government review, even an internal one, sounded like a step in the right direction.

To gain some say in the reform process, Bryden set up his own all-party standing committee. Only it wasn’t given any standing. In August 2000, just after the task force was struck, the government house leader forbade all federal government bureaucrats from testifying before Bryden’s committee. In other words, an entire group of users and administrators, arguably the ones who know the system best, were effectively muzzled. “To deny me as an individual backbencher MP access to government bureaucrats when I’m trying to gather information in the public interest-there are no precedents for this,” Bryden says, fuming. When asked about the debacle, Sergio Poggione, the information coordinator at the immigration board, said regrettably he couldn’t comment: “I’ve been told not to.”

Bryden’s committee released a scathing report on November 1, demanding that the prime minister and his government support openness. It stated that cabinet confidences and all Crown corporations should be included under the act, solicitor-client privilege exemptions should be reined in, and all government data should be released after 30 years. Apparently, the task force is looking at it, but that’s the extent to which Bryden has been permitted to participate.

If MPs think they have little say in the reform process, the public feels they have less. “It’s not a public review,” says Alasdair Roberts, clearly frustrated with the exercise. “The whole thing is sort of making a travesty of the principles that the act is supposed to stand for. There has never been any sort of constructive engagement with the public. They’ve solicited comments from the public, but that’s quite different from encouraging a conversation about how well the law works.”

There’s another irony: of the 12 task force members, only one, a former journalist, has regularly used the act. Yet no one in government seems concerned. Former Justice Minister Anne McLellan stood firmly behind the review. “While the task force is run internally,” her communications director wrote on her behalf in an e-mail interview, “its work is transparent. Summaries of all the consultations, including those conducted within the public service, are posted on the task force’s website.” Task force members offer similar assurances. As a Treasury Board advisor on access issues since 1989, task force director Mary Anne Stevens calls herself “one of the experts. The idea that because we’re internal to the government, we can’t operate in the public interest is absurd,” she scoffs. “I mean that’s what public servants do.” She points out that the review process has been public wherever possible. The public was invited to send submissions to the website, and selected users were asked to three discussions led by the Public Policy Forum, an Ottawa think tank.

Journalists invited, however, argue the consultations weren’t truly public. Southam News reporter Jim Bronskill recalls he was told he could take notes, but had to ask permission to quote members by name. TheStar‘s Rob Cribb was also invited, but had to read the fine print. The type at the bottom of his invitation stated: “This session is off the record.” Even Poggione wasn’t impressed. “They asked us to put everything on the table and we did. Now, what they did with it, nobody knows.” If the comments of the task force’s chair, Andree Delagrave, are any indication, the answer is not much. After comparing the act with similar legislation in other jurisdictions both at home and abroad, Delagrave says the task force realized “a lot of the unhappiness comes at times from its administration. It does need improvements, probably, but overall it stands very well.”

 

…………………….In March of 1995, John Grace decided to play his remaining trump card. He sent a letter to Jacques Poitras, offering to take ACOA to court. Poitras was relieved. The Telegraph-Journal could never ante up enough money just to prove a legal point. “A small newspaper would not spend however many thousands of dollars to hire a lawyer and pursue it,” he explains. “The Globe and Mail might, the CBC might, but for a small newspaper it’s prohibitively expensive to deal with these things.” This point is not lost on truant agencies that can usually count on their deeper pockets to act as a deterrent. In 2000-01, the commissioner’s office brought two cases to federal court?a fraction of complaints, but enough to send a signal.

Grace told Poitras he decided to pursue this case because he feared it could set a dangerous precedent. “Because government was outsourcing more and more of this kind of work and continues to do so,” Poitras recalls, “it became feasible that in the future the government would say, ‘Well, that’s not our information. That information belongs to the accounting firm that we hired to do it.'” So Grace and ACOA pitted one branch of government against the other, with taxpayers footing the bill. The discovery process ran through late 1995, and the case was finally heard in the Federal Court of Canada in February 1996. On March 18, Poitras got his answer. Madame Justice Donna McGillis ruled that the information was private. Access denied. The reporter was crushed, if not surprised. John Grace was undaunted. He decided to appeal, and then the case stalled-for over three years. Poitras, who foresaw his request lying forever in bureaucratic limbo, let it go. “I didn’t forget about it, but it had sort of run its course.”

 

…………………….Poitras’s struggles came at a time when there was little pretext for a crackdown on access. Post September 11, that crackdown has begun, and journalists, legal experts, and activists are worried progressive reforms will languish in this political climate. They’re even more afraid of what the new regime will do to government accountability.

It’s not an unfounded fear. The government is already rebuffing access requests with the political equivalent of a curt “Do Not Disturb” sign: Busy, Due to Terrorism. Please Call Again. Ian McDougall, a Toronto Sunreporter, made a request to the solicitor general’s office on October 2 and was told the information would not be released for just this reason. Transport Canada asked for a 300-day extension on a narrow request that Dean Beeby, the Halifax bureau chief for Canadian Press, made on September 17. It read: “Due to significant demands placed on certain areas of the department since the recent terrorist attacks, it has become necessary to adjust the priority given to a number of departmental obligations.”

The Ministry of Justice also altered its priorities with the announcement of Bill C-36 on October 15. Among other things, the bill gives the justice minister power to exempt material impinging on national security from public or judicial review forever. Many worry government will use the current crisis to concentrate power at the expense of public rights. The sharpest legal minds in the country believe the new Anti-Terrorism Act will do that and more.

 

…………………….It’s 8:30 a.m. on a clear fall Saturday morning, a time when the promise of sleep, or coffee and the newspaper, outweighs the fear of terrorism and state secrecy. Fewer than 100 people have assembled in the Isabel Bader Theatre for a University of Toronto Faculty of Law conference on Bill C-36. Above them, foot-high letters spell out “Definition of a Terrorist Activity,” the topic du jour of the Security of Freedom conference. The panelists, all top lawyers and law professors, rise and each present versions of “It’s flawed, and I don’t trust it” to the sparse crowd, who, in the habit of undergraduates everywhere, have studiously avoided the front row.

“This is a huge aggregation of a huge variety of state powers and it should be resisted,” says Don Stuart, a craggy law professor from Queen’s. “It won’t make Canadians safer; indeed it’s much more likely to endanger the freedoms of the most vulnerable Canadians.” When Stuart notes matter-of-factly that “there’s something smelly about the law,” he is met with cheers. As the auditorium fills with stragglers, the panelists discuss information rights dealt with under various clauses of the bill, or rather, what will be left of them once the executive fiat is on the books. Because under the new law, not only will the public never know what information has been deemed off-limits, but they’ll never know if, or when, the government decides to turn once-public information into a state secret. The new legislation would brush aside the time-honoured process of judicial review, leaving the government executive to answer solely to itself.

“I think that one of the big problems is that it removes any scrutiny of the exercise of the powers,” says University of Toronto law professor Lisa Austin, “so the response of ?Trust us not to abuse this power’ isn’t very helpful. It certainly goes far beyond any need to prevent disclosure of information.” John Bryden argues that it goes beyond any need of a democracy. “There’s no way of understating the fact that in dictatorships this is precisely the power they seek,” he says. “There’s a fundamental principle here, and that is that in a democracy you can’t allow a government to keep secrets forever, period. There has to be disclosure eventually.”

Not anymore. Amid dire warnings from the CAJ, the Federation of Law Societies of Canada, the Canadian Bar Association and a host of citizen’s groups, the bill was pushed through the House of Commons on November 28 and rushed through the Senate in six days. In the end, a five-year “sunset clause” critics argued was crucial to cap government powers was applied to only two provisions. Predictably, the justice minister’s executive fiat wasn’t one of them.

 

…………………….Five and a half years after his initial request, Jacques Poitras got a phone call one morning from the information commissioner’s trial lawyer, Daniel Brunet. The appeal was being heard that day, November 17, 1999, but Brunet warned it would probably take another six months to get a decision. At the end of the day, the phone rang again. “He called me and said, ‘That’s it, it’s done, you won,”‘ Poitras remembers. In just one day, a panel of three judges in the Federal Court of Appeal ruled on his case from the bench. “It is regrettable if those surveyed were misled by this undertaking, but they were aware that the information was being gathered for a government agency,” wrote Justice Barry Strayer in his decision. “By law, such information became part of a government record subject to the Act. The appeal will therefore be allowed.”

Poitras was thrilled-so much so he did a little victory dance in his office. “I was worried that we would lose again. And that now there would be this sort of precedent-setting decision limiting access to information. And I would have left this dark legacy for Canadian journalism,” he says, laughing grimly. ACOA had the option of appealing to the Supreme Court of Canada. It didn’t. But for Poitras, the most personally satisfying moment came the morning after the decision: “I got to call ACOA and say, ‘Well, how do I pick up this information?’ It was sweet.”

Finally, Poitras could publish “The Figures ACOA Didn’t Want You to See,” or so said the headline on the front page of the Telegraph-Journal. But by this time, the news was so stale it was closer to history than journalism. The piece revealed that in terms of actual job creation, the smaller ACOA grants had the best results, while many of the larger grants were less effective. Poitras also discovered that some jobs were included in the total but had ceased to exist when companies went belly-up. Was this the expose that ACOA fought so vehemently to forestall? “The numbers themselves didn’t show a pattern of really bad investment decisions,” Poitras admits, “and [the information] was six years old. It wasn’t an earthshaking story.”

And there’s the rub: ACOA wasn’t trying to cover up a scandal-in the end, its employment figures differed from the estimates by just a few thousand. The agency played cat and mouse with public information not because it had something to hide, but because it wanted to act like a private corporation, to avoid public scrutiny and accountability-because it thought it could. ACOA officials eventually admitted the methodology used to estimate the 42,000 figure was itself flawed, as it was dependent on a survey that many respondents didn’t complete correctly. “How valid was the survey,” Poitras asks, “if ACOA itself was admitting that the people filling out the survey forms may have got it wrong?” More importantly, how valid is the access to information system if the people who use it have to battle five years for a public document?

 

…………………….Journalists are a tenacious lot, but the unfortunate truth is that most can’t or won’t take on such a fight. Indeed, many go their entire careers without ever filing a single FOI request. And there’s no shame in that. But every time a reporter decides not to file a request, or gives up midway through an application, another filing cabinet is effectively locked. And the less government is called to account for its actions, the more it can act with impunity.

This is one of the reasons freedom of information issues barely register with the average Canadian: lack of public awareness erodes access. “Denials of information affect how little we know about how we’re governed, and about the air we breathe, the water we drink, and how our tax dollars are spent,” says Rob Cribb. “But the issue of access to that is sort of one step away from people dying in Walkerton. It’s not on the radar screens for members of the public.”

Some argue that if the public isn’t aware of the issues, journalists have to shoulder some of the blame. “Why can’t the media be farsighted enough to realize that if they don’t do something today they are going to lose their right to information?” asks Alasdair Roberts. Some do. The CAJ, for one, regularly issues press releases damning government secrecy. But overall, Roberts says the industry could do more, not only by publishing FOI-related stories, but by funding organizations that lobby for transparency.

Reporters like Rob Cribb, Kevin Donovan, and Jacques Poitras may win the occasional battle to get access issues and stories onto the front page, but the bottom line is that the subject just isn’t sexy enough to sell newspapers, and on the whole, the public is losing the war. The casualties are good journalism, an informed citizenry, and an open democracy. In all those blacked-out names and whited-out paragraphs, in all those blank and missing pages, the dark legacy Poitras fears is becoming a reality.