In a recent Special Report , Information Commissioner Suzanne Legault points out a major focus of concern for the public’s right to timely access to government information – the political “sign off”.
I can recall when I was Director of Access to Information and Privacy (“ATIP”) with the Correctional Service that, immediately prior to release of the redacted information that our staff had recommended, the matter would go upstairs for final, two or three-day review in the Minister’s office. To me, this meant, primarily, that the Minister should be getting a very quick “heads up”:
a) so as to be prepared to respond to the information after it was released, and,
b) to some extent, in order to have the chance to offer comments that might cause my ATIP staff to reconsider, as authorized under the Access to Information Act, what might be released.
This was a fair approach, in my view, and did nothing to seriously impede the operation of the Act.
Apparently, consistent with the current culture of the Government, the role of the politicians in the decision-making process has become more direct, and more inappropriate.
Ms. Legault’s Office investigated a series of cases that led her to important findings concerning political interference.
- She found appointees of Ministers, who have no authority under the Act, had ordered concealment of information, disregarding the determinations of departmental ATIP offices – and they were obeyed.
- She found that a department had given the Minister’s office an undue period to review draft findings, often up to 30 days, thus failing to accommodate the right of the requester to receive records in a timely fashion.
- She found that a department was denying the existence of a record which had been created by that department because, at the time of the request, it was physically located in the Minister’s office. [ In fact the Supreme Court had long hence clarified that the content of information and not its location, dictates who has control of it, and therefore whether it should be revealed]
All of these practices are a usurpation of the legal authority and obligations of departmental ATIP Coordinators to provide information . They are clear examples of tactics intended to circumvent and delay timely access to information for political motives.
Moreover such actions may involve a diliberate attempt to block information, which is an offence under the Act:
67. (1) No person shall obstruct the Information Commissioner or any person acting on behalf or under the direction of the Commissioner in the performance of the Commissioner’s duties and functions under this Act.
(2) Every person who contravenes this section is guilty of an offence and liable on summary conviction to a fine not exceeding one thousand dollars.
67.1 (1) No person shall, with intent to deny a right of access under this Act,
(a) destroy, mutilate or alter a record;
(b) falsify a record or make a false record;
(c) conceal a record; or
(d) direct, propose, counsel or cause any person in any manner to do anything mentioned in any of paragraphs (a) to (c).
The Report found, in essence, that departments are less than forthright in laying charges where the offences are committed by non-public servants.
The above speaks volumes about political interference and how it has increased of late. If those who have selfish interests in concealing information can directly or indirectly control whether and when information is made public, the basic value of access to information is undermined – and the accountability of the elected to the people is seriously weakened.
I think all this goes even farther, though.
I think it points out the need for a complete removal of the ATIP function from departmental control. Those who review access to information requests ( and personal information requests under the Privacy Act) should not be accountable to departmental authorities, either mandarins or Ministers. They should have complete access to all records in any department or agency and the power to compel production or records or sanction failure to comply with requests. While they might consult politicians on the determination of requests they would not be subject to politicians’ directions in any way.
The leadership and management of ATIP coordinators and staff, wherever physically situated, would be provided by an independent Officer of Parliament. This Officer, and the ATIP professional who work for him, would remain subject to the oversight and investigations of the Information and the Privacy Commissioners.
Absent some such arrangement no one can guarantee what will become of the public’s right to know.
 “Interference with Access to Information, Part 2” – April 10, 2014 http://www.oic-ci.gc.ca/eng/media-room-salle-media_news-releases-communiques-de-presse_2014_1.aspx