The Decibel - Canada’s broken information laws keep history in the dark

Episode Date: November 10, 2023

It can be incredibly frustrating trying to get access to historical records in Canada. There are often lengthy delays and confusing inconsistency. That’s in large part because Canada’s historical records are tied up in our access to information system, which has a lot of problems.The Globe’s investigative reporter Robyn Doolittle has been reporting on the country’s struggling access to information system through the Secret Canada project. Today, she explains why it’s so difficult to access records that are decades – even centuries – old, and why it’s so important that we can see what happened in the past.Questions? Comments? Ideas? Email us at [e-mail]

So the file I was working on was a court case from 1918. It involved conscription in the First World War. And it was shocking to me that I could not get access to court files and public documents from 1918. Patricia McMahon is a legal history professor at York University. And she's had a lot of trouble trying to research Canadian history. I requested documents for my case that I was working on in 2011. That was the first time I submitted an access request. I heard back informally in about a month, but I was told that I couldn't have access to any of those documents because they included personal information. And so an entire government record was withheld from me

as a result of so-called personal information. And so I had to file a formal request that took, you know, another 90 days and then another six months after that to even get a response. And the response I got at that point was that half the documents were going to be withheld as a matter of solicitor-client privilege. So when I finally got the file, half of it was either redacted or blank. I had no idea that it would be this involved, this time-consuming.

I had never anticipated having this kind of back-and-forth over 100-year-old documents. In total, it took her six years to get all the documents. And this kind of thing is common among historians in Canada. But it's not just that it can take an incredibly long time. Sometimes the documents that come back are confusing. One of the most frustrating things using the Act is that you'll get one

release package that has some documents open in it and others are closed. This is Timothy Sale. He's a history professor at the University of Toronto. And then when you file another request for similar material, maybe from another department that was looking at the same issue, a different analyst will have gone through that release package and made different decisions about what we can see today. So you'll end up with copies of the same document from the 1950s that have different sanitizations or redactions. This isn't just important for historians. This matters for the entire country. Among democracies, Canada is one of the most difficult places to get historical documents. That's in large part because it's tied to our

access to information system. And that has a lot of problems. Robin Doolittle is an investigative reporter with The Globe. She's been looking into Canada's struggling access to information system as part of The Globe's Secret Canada project. Today, Robin joins us to explain why it's so hard to get historical records in Canada and why it matters that we're able to see what happened in the past. I'm Mainika Raman-Wilms, and this is about Canada's access to information laws. But today we're talking about historians. So connect

the dots for me here. What does the Secret Canada project have to do with historians? So one thing that we did that was pretty unique with the Secret Canada investigation was that we announced we were doing it as journalists. You don't usually do this. You want to surprise people, right? But about a year ago, we put a call out and said,

if you have stories to tell about Canada's freedom of information system, we want to hear from you. And the biggest group that I started contacting us was historians. And I had no idea. They were hopping mad, salty, angry academics. It was incredible. And so we started interviewing them, my colleague Tom Cardoso and I, who's my reporting partner on this. And it was just very clear that there's a million things wrong with Canada's broken FOI system.

But the chaos around how we treat historical records is at the very top of the list. And we heard from some historians in the intro just about the difficulties they've had trying to get documents. But I guess, like, give us more of a sense of why they're so upset. Like, what is it like trying to get these historical records. In other democracies around the world, among Canada's allies, there are these declassification programs which deal with the security designation of a record or sunset clauses. You might have heard of these. It's, you know, after a set period of time, records can be released, whether it's 20 or 30 or even 50 years. And sometimes you get a flurry of news stories about them, like, oh, the records from the fall of the Berlin Wall are being opened. Canada has nothing like that, which means

everything that is not released by government is sealed forever until someone asks for it through an FOI. Okay. Well, okay. So I guess let's dig into this. Like, what is causing this? And I think maybe we should start, too, by reminding people what FOI is, because what is causing this? And I think maybe we should start too by reminding people what FOI is, because this is not something that, you know, everyday people actually deal with on a regular basis. Right. So freedom of information laws exist in jurisdictions across Canada and in countries around the world. They are the legal process by which people can access public records from their public institutions. They're essentially enshrining into law this principle that we as the people have a right to know how our public institutions and our

governments and our political leaders are running things, how they're spending our tax dollars. But within FOI laws around the world, there's also exceptions because we understand that for government to function, some things need to be kept secret. We need to have communications with, say, foreign governments confidential in order to maintain current diplomatic relations. We need to have active police investigations, not public. That makes sense. That's why there's exceptions within the law. But there's also an understanding that information becomes less secret, less risky to release over time. So a diplomatic communication between Canadian officials and, say, British officials from the 1950s is not going to pose a diplomatic risk to Canada today. So why not

release those records? That's what happens in other countries. There's these built-in sunset clauses or declassification process for records that are held by government after a certain period of time, you know, a flip switches and we're saying, okay, these are not sensitive anymore. That's what Canada doesn't have. Okay. So how did this happen? Like, why is our system like this without these sunset clauses? So what's really interesting is that we used to have them back in the 1970s. There was a series of cabinet directives that established a 30-year rule. After 30 years, there was an understanding that various records were not sensitive anymore and could be released to the public. Before that, records were also being released on more of an ad hoc basis.

But there was a process in place to obtain public records from the past. And ironically, it was the passage of the Federal Access to Information Act that did away with the 30-year rule. So 1982, the Canadian government passes AATIP, or access to information law, and suddenly all these records that once had been open overnight became closed to the public. And as it stands right now, this means that every record that is not proactively released by government is sealed to the public forever until someone asks for it through an FOI. And access to information laws are not designed to evaluate the sensitivities of records that are decades and decades old. So it's actually the law that was supposed to bring in freedom

of information, access to information, that kind of ended up shutting down the access to all of these historical records then, ironically. Yeah. And it was interesting because at the time, I think there was a lot of optimism within quarters within the Canadian government that like, oh, it's going to it's going to open up so much more. People aren't going to have to on them and were legally required to be scrutinized through this new legislation. And it's just created this massive backlog because you can't process records with the same speed. And what also happened at the same time was that federal departments were suddenly going, oh, wow, this is a tremendous amount of work. We don't want to deal with that and started shipping vast amounts of paper to Library and Archives Canada, then called the National Archives. And, you know, we talked to people who worked there at the time who were saying, like, literally thousands of boxes were arriving. Archivist Paul Marsden told me that, you know, in one day in late 1983, 15,000 feet of records ended up at the National Archives.

The volume of annual transfers tripled almost overnight between 1983-84. And it maintained that tripled pace for several years afterwards. And these boxes weren't always labeled properly. In those days, without a list, a type list, you're at sea, completely at sea. We don't even know what's in some of these boxes. And this volume of transfers just kept up for years and years, and we have never been able to dig out of that hole. So wait, we've just got boxes of like unlabeled boxes of information that we just don't really have access to now because we also don't know what's in them?

I think one of the most shocking things that I've ever encountered in this entire secret Canada investigation was through this specific story. And it was Library and Archives Canada, when I started talking to them about this, said, why don't you come to one of our warehouses? And so I went to this warehouse in Gatineau, and it very much looks like, if you've ever seen Indiana Jones, Raiders of the Lost Ark,

the last scene where they're kind of wheeling the Ark, spoiler alert, into this kind of like massive, you know, hangar basically and dropping it off. Like that's sort of what it looks like. And it's just rows and rows and rows and shelves and shelves and shelves of cardboard boxes. And we don't know what's in all those boxes. We don't know what's in a lot of those boxes.

And that just shocked me. I remember turning to someone and going, is that not in, like, what if something really crazy is in there and we have no idea? Wow. Okay. Let's talk about, I guess, the importance here of this, Robin. What are some of the consequences of not having a system where we can declassify documents in our records? What happens as a result? Yeah. This is the most important thing to focus on, right? It's like this isn't just about historians being able to finish a PhD and sound smart at a party or something. This has major consequences for our current world. In this reporting, we interviewed dozens of historians and academics, researchers, archivists, including Paul Marsden and Patricia McMahon and Timothy Sale.

And they make the point that this isn't just about historians or academics. This impacts all Canadians. As a society, as a civil society, we need to have an understanding of our historical past. It's really important that we have evidence-based history so that we know about our past and so that we can take account of mistakes that have been made in the past. It's important to know what governments have done, what people have done, so that we do have some sense of collective responsibility and understanding. I think that being able to access these historical records,

I mean, it is important for understanding Canadian history, certainly, but it's bigger than that. It has to do with Canada's place in the world then and today. We'd be far better off, I think, if more Canadians understood this past and became expert in it and could make that contribution to both our public political debate, but also bring that expertise into government. Many through the years have warned about the risks of not learning the lessons from the past and that you're doomed to repeat the mistakes of the past if you don't learn from history.

In Canada, our history is trapped inside these warehouses, right? And we talked to many academics and historians who pointed to this most obvious example right now, which is the war in Ukraine. During the Cold War, Canadian experts and diplomats and officials thought through in great detail what would happen if a nuclear weapon detonates on European soil. What would Canada do? How would we react? There are detailed plans and memos and briefing notes about all of this. Very little is known about it. Now, it's not to say that government officials couldn't go and research those papers, but it doesn't have the historical analysis of experts putting those decisions and plans in the context of wider history and learning from what

other countries were doing. I mean, you can see the obvious implications because we're asking those same questions today, and we are not benefiting from all of this expertise that existed in the past. We'll be back after this message. So there's really that lack of access is we can see that there's a big impact from that. Also, you mentioned there's a huge backlog. We also heard from a historian in the intro, too, about the inconsistency in what's being released. Why is that such an issue? So there's two things here, and they're related. So the access to information laws in Canada have a lot of discretion built into them.

So an institution may release a record if X, Y, and Z, rather than they shall or shall not release. So there's a lot of discretion there. And that discretion, coupled with the public service, public servants are very risk averse. And then the fact that we don't have this declassification system, we don't have these benchmarks of an agreed upon point in which a record is no longer considered sensitive. So what you see is public servants analyzing these requests and going, well, I'm going to err on the side of caution and continue to hold this back because they don't want to get in trouble. There are very serious consequences for releasing information that shouldn't be released.

And there are literally no consequences for withholding a public record that should be released. So what you see is because there's not that clarity, depending on the desk of which FOI coordinator gets a request, they're going to have different opinions on what is sensitive or not. It's just a very nonsensical system. And I think the other big point there is that we have people being paid to go through paper that is already open, but there's no record of what's already open. So we have analysts across this country doing the same work over and over and over and over and over again. Wow. Yeah. You mentioned also, Robin, that the FOI system, those laws weren't meant for historical records. What do you mean by that? Like, why doesn't that work so well for historical records? So let's take the example of solicitor-client privilege. I think we can understand what this

is, right? This is that a client needs to be able to communicate with their lawyer without fear of those very sensitive conversations being made public. So there are protections in law for governments talking with their lawyers about ongoing policy issues. Solicitor-client privilege should not apply to records from the First World War, right? Like, why are we protecting government communications with lawyers from 100 years ago? Or people might not even be alive anymore. They're definitely not alive anymore is the thing. So that's an example of if you have to evaluate a historical record through the context of modern FOI legislation, you have to go by the wording of modern FOI legislation that talks have to go by the wording of modern FOI legislation that talks about

solicitor-client privilege. Yeah. And I would imagine too, like if you have, you know, a public servant trying to figure out if this is sensitive or not, if you can't talk to the people who were involved at the time, like that really makes their job really difficult too. Well, that's the other big thing is when you're dealing with modern records, if an FOI analyst is looking at a request and goes, gee, you know, I don't know, like there's discretion here and I don't really know if this is sensitive or not. They can call the department. They can call the originating person and say, what's this going on? If you're dealing with a record from the 1850s, you can't do that. And so then this just delays everything because within the departments, there isn't the expertise, let alone the actual person who wrote the document. Yeah. And so Robin, you mentioned that this is pretty unique to Canada. So why is that? Like, why do we have this problem and other countries don't seem to have it? Oh, my God, I have no idea. It's, it's one of those things. I mean, I think you can take a cynical look at why governments don't want to make very obvious improvements to FOI legislation,

because it could open them up to more scrutiny. They should do it, but you can see cynically why that would be a problem. I cannot figure out why we alone are not doing this. And when I say we alone, you know, the UK, the US, France, New Zealand, Australia, Germany, Sweden, the list goes on and on. All of these countries have processes in place to open up historical records. We alone don't. And our government has been asked for decades to do this because we used to have one and it worked well. I don't know why they won't do it. It makes no sense to me. So what has the federal government said about this? Like, have they talked about bringing in a system that would declassify things? Like,

what have they said about this in general? I think everyone knows it's a massive problem. The information commissioner did a large investigation, a systemic investigation into Library and Archives Canada because there was so much of a backlog. And in her report, she identifies some things that library and archives could be doing better, particularly around how they consult with different departments around whether a record should be released. But in her report, she says there's at the same time, like library, the archives cannot do this all on their own. And then in her report, she writes in bold, like Canada is an urgent need of a declassification system. And they've been asked over and over and over again for this.

They just completed a review of access legislation. And one of the recommendations was a declassification system. And government has just not heeded any of that advice. Have they said when they're going to, I guess, address it at all? Or is this just not really something that has been talked about? Nope. They've said that they're going to look at access information legislation again in 2025. Okay, so let's say Canada does decide to bring in a declassification system for our records. If this does happen, how would that change things? boxes sitting in warehouses would magically appear online open to the public. A declassification system just, you know, removes the sensitivity of some documents. And, you know, it might move like

a top secret to just a general classified. It doesn't mean that someone's not going to necessarily have to have eyes on a piece of paper. But what we hear from archives is that it's going to create system-wide clarity on what's sensitive or not. It'll just move things along much, much faster. And I'm not trying to suggest that you could snap your fingers overnight, have sunset clauses built into the law or declassification system built into the law, and it's going to be necessarily super easy. It might require some financial investments, but we are also spending so much money on the duplication of processing records that have already been released. We have warehouses full of quote unquote classified documents that are innocuous material, that there are high security costs of maintaining classified documents. There is money to be saved if we also spent a little money. Okay. I guess just lastly, Robin, we started off by talking about these historians

who are having such trouble actually doing their work and their research. What does the way that the system is now, what does that mean for people who are trying to study Canadian history? Well, this is one of the scariest things that we heard in this reporting What does that mean for people who I want to study this issue in Canadian history because they just don't know if they're going to get the material in time to complete their PhD. So they're choosing to study other countries. And we heard from academics who do focus on Canadian history that they rely on the archives of other countries to get access to Canadian records, which is just such an embarrassment for us. We used to be a leader on access to information. You know, we were among the first countries in the world to adopt federal FOI or access legislation in 1982. And today, what Secret Canada has shown unquestionably is that we are bottom of the barrel among democracies that have FOI ongoing. The other thing is, we are clearly missing out on so much from our past that could really help us

make better policy decisions going forward. I think it is pretty terrifying to think that our scholars and historians and researchers and students are not looking at Canadian history because it is trapped in cardboard boxes. This was really interesting, Robin. Thank you so much for being here today. Thank you. That's it for today. I'm Mainika Raman-Wells. Our producers are Madeline White, Cheryl Sutherland, and Rachel Levy-McLaughlin. David Crosby edits the show.

Adrienne Chung is our senior producer. And Angela Pachenza is our executive editor. Thanks so much for listening, and I'll talk to you next week.