The Decibel - Secret Canada: The information laws governments keep breaking

Episode Date: June 9, 2023

When Canada first passed legislation to create its access-to-information system, it was seen as a world leader in terms of transparency. But fast forward 40 years and that same system is sluggish, overwhelmed and preventing Canadians from their right to government information.Globe and Mail investigative reporters Robyn Doolittle and Tom Cardoso spent more than a year reporting on the state of the system and what’s behind all the bottlenecks. The Globe has also built a website that lets you explore more than 300,000 FOI summaries to help you navigate the system.Questions? Comments? Ideas? E-mail us at [e-mail] can access The Globe’s Secret Canada project here: https://www.secretcanada.com/

So, Robin, could you just start off? You've got something in front of you there on the table. Can you just describe what's happening here? Well, I wanted to bring an example of some of the stuff that we've been encountering while doing this reporting. And this is a response that I got back to a Freedom of Information request. Robin Doolittle is one of the Globe's investigative reporters. And she's filed a lot of freedom of information requests with the government. These are also called FOIs or ATIPs.

It is about an inch and a half of paper that is mostly blacked out. That, yeah, that's a lot of paper. And it's like, those are full sheets that are basically just black ink, I can see, like the top ones there. Yeah. That. A lot. Yeah. And where do you usually like you actually have this at your desk don't you? Actually this particular one props up my laptop. So it's a laptop stand. It's a laptop stand and a reminder every time that I sit down at my desk about why Tom and I are working on this project. Robin has been working with Tom Cardoso, who also works on the Globe's investigations team. And they uncovered that most people who try to use FOIs find out pretty quickly that this system is broken. And we're not just talking about journalists.

Anyone in Canada is supposed to have access to this information, whether they're looking to understand government decisions or even to get info about themselves. So Robin and Tom decided to investigate what was happening here. For more than a year and a half, they've been looking into how governments across the country have become increasingly secretive. And at a time of lagging trust in government, transparency is more important than ever.

Today, they'll tell us what they found. I'm Mainika Raman-Wilms, and this is The Decibel from The Globe and Mail. Robin, Tom, thank you so much for being here today. Thanks for having us. Yeah, it's been a while. Robin, this project is called Secret Canada. So let me just start by asking, why is it called that? Because this country has a very unhealthy relationship with access and transparency.

I think if I had to summarize all that we found through this 20 months of reporting is that public institutions across Canada are breaking the law every day when it comes to access to information. And they're doing it knowing that they're breaking the law. And I think that that's something that we don't think about often when we talk about FOI. It is an actual law. This is not a nice to have. This is not, it'd be nice if you did this. And for some reason, it's a law that is going completely ignored, a really important law that exists as the foundation of our democracy. So it's a default of secrecy as opposed to transparency, and we keep some stuff apart, but really the default, it sounds like, is to hide some stuff. That's well put. It's a default to secrecy.

Tom, before we dive into more of the specifics, I think many Canadians honestly might not think that much about access to information. I know as journalists, we talk about it, but a lot of people might say, you know, maybe this doesn't really affect me. What would you say to that? Yeah, it's funny. Before I worked on this investigation with Robin, I think I also had that point of view to a certain extent, but the numbers are really telling. Certainly more than half, and I would say the overwhelming amount of requests that get filed to the feds, to any province, to municipality, it's mostly normal people and businesses asking for this information. It's not journalists or academics.

It's not people whose job it is to professionally noodle around. It's normal people who want to understand why their trash is getting picked up less frequently. It's people wanting to get a copy of the police report for the car crash that they were in so that they can file for an insurance claim. It's businesses trying to figure out why they lost a bid for a lucrative, you know, provincial towing contract or whatever. Those are the things that people are filing FOIs for. And this is all stuff that people have a right to know, right? Well, this is the whole thing is that while it is, you know, recognized as a right by the courts, by the Supreme Court, the governments make a big point of making this argument that

this is a right. That's certainly not what we're experiencing, and that's not what we're seeing in the reporting that we've put together. There is a reason that freedom of information is often called the oxygen of democracy. FOI legislation enshrines into law this principle that as citizens, we have the right to know what our political leaders are doing, how they're spending our money. We can't meaningfully participate in society unless we can keep those checks and balances on power. So can we get into some concrete examples? Like, can you give us some times in the past where this kind of information learned through this system has actually helped improve things? Yeah, I mean, despite the fact that Canada's access regime is very broken, journalists and researchers have been able to use it to tell really important stories.

It was an access request that raised allegations that Canadian soldiers had abused Afghan detainees. It was an access request that kickstarted the sponsorship scandal back in 2004, which revealed that the Liberal government had been awarding contracts to companies linked to the party for doing little or no work. It was an access request that showed that the Canadian government knew hemophiliacs were being infected with HIV through contaminated blood, even as the government continued to use untreated and untested blood. This is all rooted in Canadians' ability to get records from their public institutions. So Tom, I understand as part of this investigation, you looked at how the system is actually working now. Can you tell me about what you found? Yeah. So Robin and I, in May of last year, we filed more than 200 FOIs to every ministry and department at the federal and provincial level across the country. And we asked them all for

the same thing. We asked them for copies of their FOI tracking systems because we wanted to understand how many FOIs they were receiving, how long they took to process those requests, how many of those requests were redacted, how did they redact them. And it's really interesting. What we found was that only 50% of requests were being completed within 30 days. Now, most jurisdictions require a decision to be made within this timeframe. So half of all requests are blowing their deadline. We know that on the high end, requests can take years. I mean, Tom and I both have requests that are years old. The audit also found that only 21% of FOI requests were being granted in full. Another 46% are coming back with redactions. This is the redaction that we were talking

about before, yes. Yeah. And we have no idea how much of those pages are blacked out. For example, the giant stack of blacked out paper that's sitting in front of me, this would count as me getting something released, you know, and it's, I'm telling you, it's a lot of black ink. There's no actual information on that. Yeah, exactly. And the other really interesting thing that we saw was something like a quarter of the responses that people were getting back were saying that there were no records responsive to the request. And that seems quite high. And I thought what was interesting is, you know, when we filed these 250 some odd requests, the entire province of Alberta refused to reply to our audit request.

They were the only ones. Everyone else did it. And their reason was that they had no records. So I think that there's a lot in this audit that is screaming, fix me. We also took a look at the appeals filed on FOI. So Robin and I read all of the publicly available appeals for every province, territory, and the federal government in 2022. And this is essentially, so if you get an FOI back, you don't get a lot of information. You can appeal to get more access, essentially.

Right. It's FOI court, basically, except it's not court. It's a complex tribunal-type system in some cases or whatever. And what we found was that the appeals bodies disagreed with the redactions and basically told the government that they had inappropriately withheld information roughly 60% of the time. Well, has our system always been this broken? Like, was there ever a time since access to information laws were established here that when it actually worked? When the federal government passed access to information law in 1983, it was with mixed reviews. People were delighted that they'd taken the step. We were the eighth country in the world to pass such legislation. But at the same time, they inserted an exemption at the very last minute that would protect cabinet records and the records

relating to kind of the prime minister's office. So what I'm getting at is it was always a little bit like not perfect in people's minds. The other thing is the law was written at a time when people weren't sending emails, when people weren't sending text messages and Slack messages and WhatsApp. The idea of a record in 2023 is very different than in 1983. And the system has not expanded and kept up with what that means for people having to analyze and find these records. Yeah, it would take a lot longer now if you have to go through emails and Slack messages and all that kind of stuff. Exactly. You know, you're Citizen X and you're sending in a request for files about bike lanes in your city. I mean, that might have looked extremely different now because how many different types of things can relate to that? Yeah.

I think there's also, there's two things here too, to keep in mind. There's the issues with the laws that are not broad enough in some cases. They may be overly broad in others. And there are always small modifications that people talk about constantly, like Robin mentioned, cabinet records being exempt at the federal level. That's long been a complaint. But along with the problems with the actual legislation, there's this administrative rot, which is what we've been exploring a lot more of.

Because the truth is that the way the law was administered in the 1980s is not the way it's administered now. And successive generations of prime ministers, premiers, mayors, public servants, deputy minister, everyone have slowly eroded this whole system to the point now that, you know, I'm still arguing for records that I filed for in 2020, 2019. I'm sure Robin has FOIs that just went into the black hole and never came out. We'll be back in a minute. Okay, so through your audit, we can see that things are pretty bad with our freedom of information system. So, Tom, I'm wondering, where do things get stuck? Like, where are the biggest bottlenecks in the process? The biggest thing that keeps coming up when we speak with public servants and with people at appeals bodies is staffing. It's resources, which I guess

is ultimately money. But really, there's not enough bodies in these offices to do the work in a lot of cases. We spoke with people who told us it takes a year or two to bake someone into shape so that they're actually a useful FOI coordinator or appeals adjudicator. And most people going into these offices may not even last that long. These FOI jobs are seen as menial kind of data entry style positions that are administrative in nature, and people may start there before trying to piggyback onto a different career as a policy advisor or an analyst or a career bureaucrat. I mean, it sounds like there's kind of a culture of the idea that these aren't necessarily important roles or an important job,

even though they can be dealing with really important information here. Right. Well, it's funny because it's a real thorn in the government side. A lot of public servants really don't like it. It's very annoying to them when they're trying to do their actual job to get an email from a random FOI coordinator they've never heard of before saying, you have to stop everything you're doing. I need you to pull these 12 reports and all your emails about those reports from three years ago. That's very disruptive. I mean, this is also essential to the functioning of democracy. So it really is part of their jobs. But I think it's fair to say that there is a view within government that it isn't their job, and it's not something they should

be having to do in a lot of cases. And that's a big tension that's come up a lot in our interviews. The other big thing is there's zero consequences for not following FOI law, which means there's no incentive to take a risk. If you're a public servant and you get this request, and the legislation, by the way, gives a lot of discretion to the FOI coordinator and the public body about whether they want to release something. If you're faced with that choice, do you want to release something that might upset your boss or upset the minister's office or cause problems for you down the line? Are you going to do that? No, you're going to choose the path of least resistance because there is nothing bad that's going to happen to you if you do that. And there are consequences if you accidentally

release personal information or something that you shouldn't. Career consequences right up to, you know, firing that can happen. So what we heard from people who work in the system is that if in doubt, just deny it. And if they want to appeal, they can happen. So what we heard from people who work in the system is that if in doubt, just deny it. And if they want to appeal, they can appeal. Wow. Yeah, the incentives are all built in the direction of non-disclosure or of hyper-redaction. Well, this is what we're talking about before, how the default is kind of secrecy here, it sounds like.

Right. We keep talking about a culture of secrecy when we talk to, this term keeps coming up, not even of our own volition in our interviews, because it is so pervasive. I mean, the whole system is designed so that if you withhold something that could be potentially damaging or embarrassing to the government, that may actually be seen as a positive. You know, maybe not, you won't get a medal for it or anything, but there is an understanding, I think, that you're protecting the government, you're protecting the public body's interests. And so that's something worth doing, which is obviously not the point of FOI law. But on the other side of things, though, I mean, there's a reason why the ability to redact stuff exists, right? Like we don't want all the government secrets out in public, because some could probably, I don't know, jeopardize national security, something like that. Like, isn't there an argument for that

side of things as well? The law recognizes that some information needs to be withheld in order for government to function. So there are obvious ones, like you mentioned, national security, solicitor-client privilege, an ongoing law enforcement investigation. It recognizes that a citizen's personal information shouldn't be released, that trade secrets of businesses need to be protected in order to ensure that they're able to compete. There's a protection for ministers that they need to be able to get into a room and debate policy without fear of being embarrassed if something were to come out. All of those are perfectly reasonable redactions and exemptions. The problem is that what we have found in our

reporting is that they're being abused, that if anything kind of touches in this area, it's just being withheld. And you see that in reflection in the audit that we did, where one of the most common exemptions that was being cited was this advice to government. So anything that is given to government suggesting various policy decisions. I mean, this is kind of like the nuts and bolts of why you want FOI. You want to know what government is considering and why they're choosing the right course of action.

There is a line in there about what should be protected to make sure that our political leaders have the ability to weigh all the options without fear of being embarrassed, but they're being abused, we think. The fear of being embarrassed, does that come up a lot? The embarrassment redaction comes up all the time. You hear this, we interviewed well over 200 people for this story, people who work in FOI or in appeals bodies, really high-frequency users. And we heard a lot from FOI coordinators where they would send a file up the chain for final approval and hear back. Yeah, I think you should take a second look at that.

How do we compare against, say, the U.S. in terms of access to information? It's very funny to go to American journalism conferences or talk to reporters who do the kind of work Robin and I do in the U.S. because, you know, they rail against their FOI system as well, but they are a perfect utopia compared to Canada, honestly. It's so much better in the U.S., either because they have a policy of disclosure by default in a lot of cases. Robin sent me a link yesterday to a bunch of federal and state contracts that were just posted online as a matter of course. That's not the case in Canada. There are still big issues around delays and redaction and whatnot. But I've FOI'd in the States and I've FOI'd in Canada. And

I was very pleasantly surprised by the experience in the U.S., even though, you know, in a lot of cases, I got back a lot of redacted stuff. There is a significant difference. Americans' relationship to access to information is very much tied to freedom. I mean, in the United States, it's just, this is my government. and of course I get to see what they're doing. Interesting. And in Canada, it's much more of, listen, let's just not rock the boat. We're going to trust our institutions. Although I think this is like a big alarm bell for institutions, that people are trusting institutions much, much less these days.

The trust rates are at absolute lows. And so that's why they should be taking heed of that and changing course. I think it's very telling that in the US, the federal law is called the Freedom of Information Act, which is why a lot of people say FOI, Freedom of Information. But in Canada, the federal law is called the Access to Information Act. So people talk about AATIP, which is an Access to Information and Privacy Request. There's a big difference in the language there, freedom of information versus access. Access sounds like a, you know, a nice thing that the government's doing for you. Freedom sounds like, you know, an inalienable right. Okay, just lastly here,

I know this is a big question, especially given that you've dived into all the ways the system is broken here. But can you just give me one or two ideas of how we can fix things? Like what if people on the inside of the system told you about what would help? Okay, solutions. In future stories, we are going to unpack this in depth. But, you know, high-level stuff, some of the complaints we heard, understaffing is a huge issue. Underresourcing, not enough money, not enough training, not enough standardization, and kind of some, some mushy wording in the act that we're really proud of. And this is the secretcanada.com website. This is this unprecedented data set that we have compiled through hundreds of requests. A big flaw in the system is that, you know, you can file, you know, a request for information

and get it released, but no one else knows that you did that. And when we were doing our audit, as we were going through the responses and what people were asking for, we realized people are constantly asking for the same pieces of information. And there are, I think right now, more than 300,000 FOI summaries online. And from there, we make it really easy

to kind of press a button and it'll create a letter for you that you can just mail off and get that record. And in some cases, some jurisdictions in Canada do do a better job of kind of posting completed documents online. If that is the case, we're going to point you to the document, you can get it yourself. And if you need help filing something that's not on there, we walk you through those steps. I like to think of this website as the globe's own act of, you know, civil disobedience when it comes to FOI.

My greatest hope is that people will use the resources that we've built, the guides that we poured our heart and soul into to file FOIs and learn about the process. And if they do that, I think they should get in touch with us and let us know because we are hoping to keep this thing growing and to build it up further. And any kind of feedback like that will be enormously valuable. Robin, Tom, thank you so much for joining me today. Thank you.

Yeah, always a pleasure. That's it for today. I'm Mainika Raman-Wellms. Our summer producer is Nagin Nia. 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.