The Walrus

A Love Affair with Secrecy

The Access to Information Act was supposed to get government documents into the hands of Canadians. Instead, it has created a state in which there are often no documents to get.

by David Berlin · Photographs by Olaf Blecker
Politics · From the November 2004 magazine
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The Liberal government reconvened Parliament this month with the memory of the sponsorship scandal still rankling many Canadians. During the election, Prime Minister Paul Martin staked his party’s reputation on addressing the ethical lapses that occurred under its watch. More ambitiously, he claimed that his government would act decisively to rectify Canada’s “democratic deficit.” “If Martin is serious about democratic renewal and willing to extend his agenda beyond parliamentary reform,” wrote Tom Axworthy, chairman of the Centre for the Study of Democracy at Queen’s University, “he might be promoting the most galvanizing political idea since Pierre Trudeau’s advocacy of a ‘just society.’”

For a start, Martin could heed the words of Auditor General Sheila Fraser. In her testimony to the judicial inquiry into the sponsorship scandal in September, Fraser stated, “The sponsorship program was never mentioned in a departmental report until the year 2001.” This, for a project that had operated out of the public works department since 1997. Without proper documentation, Fraser insisted, auditors are hamstrung and Parliament cannot hold government to account.

Remarkably, Canada has no legislation that deals explicitly and comprehensively with the creation and maintenance of government records. To enact such legislation would substantially improve accountability and help put real teeth into our Access to Information Act. As it stands, the rhetoric of transparency has no grounding; ministerial directives and guidelines on record keeping and information management can be so easily circumvented that politicians and civil servants who prefer to have their names, points of view, and decisions kept off the record routinely do so.

Federal Information Commissioner John Reid is the ombudsman responsible for investigating complaints from people who have been denied access to government information. He has the weighty responsibility of seeing to it that Canadians have an open window on their government. Reid is now six years into a frustrating seven-year term that has given him plenty of time to ponder the smudges on that window.

This spring, Reid made his way to York University’s campus in north Toronto to speak at a conference convened by the Ginger Group, a gathering of liberals seeking to open up democratic processes within government. Reid was invited to lecture on the sponsorship scandal which continued to dominate headlines, but his opening remarks made it clear that he was less interested in the scandal’s details than in its structural underpinnings.

“The [Access] Act has now been in operation for almost twenty-one years and, despite its many successes . . . governments and bureaucrats have still managed to find ingenious ways to wiggle and squirm to avoid the full operation of the law,” Reid said. “The hrdc grants mess . . . the gun registry fiasco, the ongoing sponsorship scandal . . . have been allowed to occur and fester at least in part due to a lack of adequate record keeping and timely public disclosure.”

Had Reid given the speech a few months later, he might have added Canada Post to his blacklist. Auditor General Fraser alleged that the president of Canada Post, André Ouellet, had spent two million dollars in unrecorded expenses. “This was an honour system,” Ouellet wrote in a letter released to the media. “People were trusted. This was exactly the same system used at the time for ministers.”

The current state of affairs began taking shape in 1983, when the Access Act first came into force. Before that, it would not have been unusual to find memos in which deputy ministers pointed out the many mistakes in their bosses’ policy initiatives. An interdepartmental memo from a deputy to his ministerial master was often a beautiful thing, running to dozens of pages of well-articulated analysis and criticism. Details were sometimes so lush that a reader’s knees buckled. In one incident, an exasperated Lester Pearson, then a senior official at External Affairs, fired off a note to his deputy minister demanding to know how he could advise the prime minister on vital affairs of state if he was forced to “spend two hours each day talking about the cost of Désy’s table linen or the salary of the newest stenographer.”

By the time the federal government finally introduced the current Access law, it was well behind the curve for Western democracies. France, Denmark, Finland, and the Netherlands already had such laws in place, and Sweden, the grandfather of such progressive innovations, has had access laws on its books since 1766. By 1982, twelve countries, including the U.S. (1966), had enacted modern legislation.

Even so, in the backrooms of Parliament Hill, whisperers claimed that passage of the Access Act had little to do with pulling Canadian democracy up by its bootstraps and even less to do with transparency. Instead, Ottawa insiders contended that the notoriously private Prime Minister Trudeau had finally put the Access Act into force only to undermine his Progressive Conservative successor. Trudeau’s “gift” to Brian Mulroney threatened to rend government secrecy from its age-old moorings.

After the Access Act was passed, few politicians had any clue what its limits were, and whether they could write memos to each other without risking that the substance of its contents would appear on the front page of a newspaper six months later. According to Reid, government record keeping started slipping as officials became adept at finessing ministerial guidelines. On the condition of anonymity, one retired MP told me, “When [the Access Act] was first legislated, I stopped getting and sending memos altogether. When I was asked to file a report on government activities, I sent one note —very formal, and clean as a whistle. My real concerns, criticisms, and analysis I put into a personal letter that was protected by the Privacy Act. After all, why would I want to place incriminating evidence that could be accessed by the media or by the opposition parties down on paper? ”

Describing record - keeping practices at an interdepartmental intelligence committee of the Privy Council Office, Deputy Information Commissioner Alan Leadbeater told me that the last time he checked, “they had ceased keeping minutes . . . . The members of the committee [which included officers from Foreign Affairs] loved that decision.” At the end of the day, if a problem arose with a mission, Leadbeater explained, there could be no way of knowing who had authorized its deployment in the first place.

In some cases, bureaucrats went so far as to destroy extant records — as in the tainted-blood scandal of the mid-1980s. The uproar over that fiasco, combined with the findings of the Somalia Inquiry, forced the government to append a clause to the Access Act in 1998, making it a federal offence to destroy, falsify, or conceal public documents. And yet, no new record-keeping legislation was initiated, and Ottawa remained on a course toward an infinitely mutable and variable oral culture.

In August 2000, the Ministry of Justice and the president of the Treasury Board launched a task force to review the Access Act. The committee’s report, delivered in June 2002, found “a crisis in information management” within government. The review concluded that the public’s right of access to information is not part of government culture and is considered an unnecessary burden by many civil servants. One of the reports the task force considered, published by the National Archives in August 2001, observed that at meetings of the Canadian Environmental Advisory Council, minutes were kept, but only in the most perfunctory fashion. The council established guidelines that exempted references to individuals’ names unless those individuals specifically requested inclusion. This same report described record keeping of a federal - provincial Atlantic fisheries committee as inconsistent — undertaken not by a permanent secretary, but by members who rotated the responsibility.

When asked to explain why record keeping has become so erratic, Reid topped off accounts of a downsized civil service with horror stories about a hybrid system that simply does not work. Information management is one part electronic and one part paper: on the one hand, government information technology people complain long and hard about overstocked hard drives and defunct e-mail programs; on the other hand, government records are often nothing more than tiny slips of paper and crumpled receipts stuffed arbitrarily into stock files. To be sure, upgrading the electronic system and retooling the record-management system is both necessary and desirable, but it is also costly and not one of the government’s first priorities.

The lack of tough record-keeping legislation strikes at the heart of governance itself. This much can be gleaned from the Auditor General’s report: “We found a memo in one file,” Fraser wrote, “indicating that the minister’s office had overturned a decision by program staff not to sponsor an event; the memo said the minister’s office would inform the event’s organizer. The file did not show who in the minister’s office had made the decision and why, or how the level of sponsorship funding had been determined.”

“When you don’t know who ordered what, when, and why,” Reid said, “what you are doing is not governing, but flying by the seat of your pants, which is the case for much of what goes on in this town.”

Equally troubling is the manner in which some civil servants have learned to use secrecy as a method of garnering the boss’s attention. A researcher at the Ministry of Defence told me that his colleagues will often stamp files “Top Secret” or “Confidential,” not because anyone thinks they are essential to national security, but as a ploy to get senior management to look at them. The net effect is the same: public information becomes private.

Reid believes these practices are not merely strategic. Rather, he suggests that the government is carrying on a love affair with secrecy and finds the title of the massive 2002 task-force report —“Making It Work for Canadians” — ironic, given that it was created almost exclusively by government insiders predisposed to entrench the culture of secrecy. In the report, Reid’s concerns are dismissed as “perceptions,” and the current lack of trust between Reid’s office and government is described as “mostly reflective of a lack of communication.” Reid responded in seventy-five pages of tightly argued prose accusing the task force of relying on “the foxes to advise on the security arrangements for the hen house.” If the report’s recommendations were to be accepted, a significant power shift over information, away from citizens and back to the state, would come into effect. Needless to say, the already limited role of the Information Commissioner would be further reduced. Several senior civil servants with whom I spoke confirmed Reid’s assessment, but refused to do so for the record.

To get important government documents made public, Reid’s office has been forced to fight the pmo, the Minister of Defence, and the Attorney General all the way to the federal court of appeal. In the past, government has been notoriously bad at keeping to the thirty-day deadline, and costs associated with making records accessible have sometimes gone through the roof. In one case, the feds invoiced a client more than a million dollars.

In February, Université de Moncton professor Donald Savoie was seconded by the Treasury Board to advise its president, Reg Alcock, on government accountability and management practices. Savoie’s 2003 book, Breaking the Bargain, makes many observations similar to Reid’s. He agrees that faulty record keeping translates into the loss of organizational memory so necessary for proper decision making and management. Savoie outlines the extent to which a chill has infected government activities: there is a reluctance to put anything in writing, including e-mail, that might find its way into public discourse.

But to Savoie, public access to information ought not to compromise ministerial confidences, and it is precisely at that juncture that he and Reid are at loggerheads. “We must also confront the myth that the Act interferes with the provision of full and candid advice by officials to ministers,” Reid told the Ginger Group. “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 . . . . 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 of the access laws!”

The embattled Information Commissioner submits an annual report to Parliament that includes dozens of government breaches of the Act, recommendations to strengthen it, and ideas for improving record keeping and management. In The Friendly Dictatorship, Jeffrey Simpson characterizes the official reception of Reid’s report as a charade: “The report becomes the opposition’s plaything of the moment . . . . Ministers do their best with feigned concern to assure Parliament that they are indeed taking the commissioner’s suggestions seriously, all the while knowing that this fury of denunciation from across the aisle will pass like a summer storm.”

Just the same, between 2003 and 2004, Liberal-turned-Conservative MP John Bryden headed an all-party committee of backbenchers that considered a host of improvements and updates to the access law. The result is Bill C462, the Open Government Act, which seeks to extend the Access Act’s jurisdiction to cover the Canadian Wheat Board, Atomic Energy of Canada, Ltd., the cbc, and many other presently excluded Crown corporations. The new legislation would also bring Cabinet confidences, ministers and their entire staffs, and the travel and hospitality expenses of MPs and senators under the act. Bryden tabled the bill shortly before dissolution of Parliament in May, and it passed a second reading unanimously. Though Bryden is no longer in the House, New Democrat MP Pat Martin, with the support of parliamentary colleagues, wants the bill reintroduced.

But even if this new and improved Act were to pass, Reid says, there must also be a change in the surrounding culture. As it stands now he says, “The attitude has truly become,’Why write it when you can speak it? Why speak it when you can nod? Why nod when you can wink? ’
David Berlin is a Toronto writer and the founding editor of The Walrus.