I'd like to begin by thanking the committee for inviting the Canadian Association of Journalists to comment on what we feel is one of the most fundamental challenges facing our democracy, namely, a lack of good information about what our public officials in public institutions are doing.
As was mentioned, I'm vice-president of the association, but I'm also an assistant professor of journalism at Mount Royal University, where my research has focused on the early history of the Access to Information Act, as I was mentioning to Mr. Long. I'd like to begin my presentation by talking about the past, because I think it will help inform our present discussion about the future of open government in Canada.
The history of freedom of information in Canada began in 1965, more than 50 years ago. That's when NDP MP Barry Mather introduced the country's first administrative disclosure bill. It's also when Carleton University political science professor, Don Rowat, presented an academic paper about the need for such a law. Back then, powerful societal forces including the consumer, environmental, and participatory democracy movements of the 1960s and 1970s were demanding more and more information from the state. In Canada, these demands were heightened by the increased availability of information in the United States, where freedom of information legislation had been signed into law in 1966.
Pierre Trudeau's government, which was in power during much of this time, wasn't completely unsympathetic to providing more information to the public. In so doing, it saw a solution to the problems of public ignorance and mistrust, the latter of which increased following the Watergate scandal. But the idea of introducing a freedom of information law in Canada was resisted by a political culture and system that has always favoured secrecy over openness.
For example, a 1974 Privy Council Office study recommended against such a law because the existence of cabinet necessitated a degree of built-in confidentiality in government decision-making. Three years later, a green paper on public access to government documents also stated that such confidentiality was necessary to ensure the civil service's advice was frank, not fearful; full, not partial; disinterested, not partisan.
When it was introduced in 1980, the Access to Information Act conformed to the contours of these twin concerns rather than challenging them. As a result, Rowat predicted that the sweeping mandatory exemptions for cabinet and related documents, and the broad permissive ones for deliberations, advice, or plans, would keep the public ignorant of anything that was happening at the summit or even the foothills of government in this country.
Indeed, within just two months of the law coming into force, that prediction had become both a prophecy and a punch line. In the Toronto Star, one writer quipped that the Access to Information Act's loopholes—you have to remember this was within two months of the act coming to force—were so wide that the Goodyear blimp could float through them without touching on either side. However, for the electorate, it was also a tragedy.
In the 1984 study testing the spirit of that law, public interest researcher Ken Rubin found the Canadian Government was still not willing to share much of the information it had collected at taxpayers' expense. In fact, Rubin wrote, “I have been able to detect that less information, not more may now be released”.
This history challenges the established narrative that Canada has gone from being a global leader in freedom of information to a laggard. Instead, we have always been and continue to be a laggard. That's because, in many ways, the Access to Information Act legally fortified the secrecy that is an inherent part of Canada's political system and culture.
Over the past 30 years, those fortifications have been buttressed by practices that allow public officials and institutions to thwart even the limited transparency the legislation provides. For example, in 1983, former Tory MP Gerald Baldwin, the father and grandfather of the Access to Information Act, wrote, “It will be a very sorry day when those obliged to make important decisions are so fearful of having their motives and their assumptions challenged that they will make such decisions on facts given orally.”
However, that sorry day is already upon us. Earlier this year, the country's information commissioners warned about an emerging culture of oral decision-making, where the activities of public institutions go undocumented.
At the same time, the government has constricted other means of accessing such information. For example, in 1979, then prime minister Joe Clark directed public officials to frankly discuss information within their areas of responsibility with the media, but today even the most routine requests for information usually have to be filtered through communications departments.
When taken together, such measures don't just thwart the public's right to know, they also threaten our democracy.
As such, the Canadian Association of Journalists recommends the government take five priority actions that address this threat.
First and foremost, the CAJ recommends the government close or shrink the 75 loopholes in the Access to Information Act, which public institutions use to censor records before they are released to the public. Of particular concern to the CAJ are the exemptions and exclusions that create an expansive zone of secrecy surrounding the government's decision-making processes. Section 21 of the Access to Information Act permits the government to refuse access to any advice or recommendations developed for public officials, as well as accounts of their consultations or deliberations for a 20-year period. In addition, section 69 prohibits access to any records related to cabinet, government's principal decision-making body. Together, these sections mean that Canadians often only know what the government lets them know about the reasoning behind the decisions and actions it takes.
The Canadian Association of Journalists recommends replacing those loopholes with a single discretionary exemption for policy advice or accounts of policy deliberations by public officials. This exemption would only apply to records that have been in existence for fewer than five years, or which relate to a decision or action that has not yet been made, whichever happens sooner. In addition, to apply this exemption, the disclosure of those records would have to substantially inhibit the free and frank provision of advice or exchange of views in government.
The CAJ further recommends that ministers' offices, and by extension the records they hold, be brought within the scope of the Access to Information Act.
Secondly, the Canadian Association of Journalists recommends public officials be required to document their decision-making, with penalties for those who don't. After all, an access to information act is useless if there is no information to access.
Thirdly, the Canadian Association of Journalists recommends public institutions be required to regularly, promptly, and proactively release broad categories of records in a machine-readable format. Neither the public nor the media should have to go on fishing expeditions to find out what their government is doing, by filing access to information requests for records that may or may not exist. Instead the government should simply publish records such as briefing notes, ministerial calendars, audits, and studies as a matter of course.
Fourthly, the Canadian Association of Journalist recommends the government permit and encourage federal employees to freely communicate with the media and the public, without the involvement of political or media relations officials. The government has already issued such a directive to its scientists, but we see no reason why this policy should not be clearly applied to all public officials.
Finally, the Canadian Association of Journalists is in agreement with those who have recommended the Information Commissioner of Canada be given order-making power. While the association feels it is more important to reform the loopholes in the Access to Information Act, we also feel it is important the commissioner be given greater authority to ensure the government does not abuse the remaining exemptions in that legislation.
But more important than any of these recommendations is the need for government and members of this committee to be willing to challenge the assumption that secrecy is necessary for decision-making. That happened in the 1960s and 1970s, when Canadians questioned the necessity of conventions and traditions such as cabinet and civil service confidentiality. If we want a government that is truly open in this country, you need to start asking those questions again.
Thank you for your time.