Canada: Good at Bureaucracy, Bad at Transparency

I made an access to information request. What I got back was almost entirely redacted. Why is the system so broken?

A wall of filing cabinets with some drawers open.
The Walrus / iStock

In April of 2017, I filed an access-to-information request—a request to obtain documents closely held by various arms of the federal government. I logged on to an online portal, filled out my name and address, gave them my credit-card information for the $5 fee, and indicated what records I was seeking.

The Access to Information Act gives Canadian citizens and permanent residents—even corporations—the right to ask for documents ranging from departmental memos and email correspondence to financial statements and notes from high-level meetings. Access-to-information requests are among the best tools we have for finding the real stories behind policy decisions or for cutting through spartan political talking points. I would wager that most people have never used them—though we’ve all seen the fruits of that labour. Access-to-information requests by journalists have unearthed probable political interference in a decision to not fund an aid group; a report revealing that inadequate inspections took place before a pipeline rupture; and the existence of a secret database used to stop travellers at the US–Canada border.

I was looking for internal documents detailing the Trudeau government’s purported efforts to modernize the access-to-information regime itself—a metarequest, I realize. Justin Trudeau had promised to improve and expand the system. He told the country, prior to the 2015 election, that, under the government of then prime minister Stephen Harper, secrecy and centralization had become the norm—and that he would fix this with openness and transparency. His election platform promised to make government information “open by default, in formats that are modern and easy to use.” The Liberals promised to give the information commissioner teeth, “giving them the power to issue binding orders for disclosure.” The party promised to eliminate almost all fees and to make the act apply to not only ministers’ offices, but the Prime Minister’s Office itself. And it promised a full legislative review of the act, which would ostensibly take aim at the wildly abused exemptions and perpetually ignored time limits therein.

More than a year into power, however, that vow had yet to materialize. Hence my request. I wanted to get a glimpse at the internal machinations of a system operating under enormous strain. Two months later, the documents I requested arrived. (The act technically requires that requests be answered within thirty days, but provides departments almost unending latitude to extend and frustrate that deadline.) Dozens of pages were withheld. Others were whited out almost entirely. Even a page titled “Status of ATI Phase I,” which—I can only assume—recapped the progress made thus far on improving the system, was redacted entirely.

So I filed a complaint. Under the system, if a requester feels their right to access the documents was unfairly limited, they can complain to the information commissioner. More than a year after my initial complaint, the commissioner concluded that information had been improperly withheld. The office of the commissioner managed to get more pages released. When they arrived, I scoured them. Then I saw it. Two sentences floating, mid-page, in a sea of nothing. A string of typed words floating in a sea of whiteout.

I complained again. In December 2018, the information commissioner responded again. I had, for a second time, won my crusade for information. I ripped open the manila envelope to find a CD, dug out an old laptop with a drive capable of reading that CD, and opened the single PDF it contained. The sea of white around that lonely paragraph had been dried up. The whole page was now legible. It was a letter from Treasury Board President Scott Brison addressed to Conservative MP Blaine Calkins, chair of the House of Commons standing committee on access to information, privacy, and ethics. The letter, in short, said: “Thank you.”

Another thirty-five documents remained secret and withheld—despite the fact that this “Phase I” legislation had already come out. It had been introduced in Parliament in June 2017, two months after I filed my original request. The government was, paradoxically, keeping information secret even after it had become public.

These sorts of Kafkaesque episodes are not bugs of the system but features of it. Departments have a litany of exemptions they weaponize to withhold information—statutes allow them to redact anything tangentially related to national security, ongoing investigations, information on third parties, even information that departments deem potentially harmful to Canada’s “financial interests.” In the 2017/2018 fiscal year, the federal government closed a little over 97,000 requests, but managed to apply more than 117,000 exemptions and exceptions. Statistics also show that delays are getting more endemic.

Canadians who regularly use access-to-information and freedom-of-information (its provincial and municipal equivalent) systems know that they are broken. There’s even a hashtag to organize the frustration: #cdnfoi. “Just got a #cdnfoi request back that said the department in question refused to search for the records I requested. Their justification was that if the records existed they wouldn’t give them to me so there was no point in looking. So that’s where it’s at,” Star Phoenix reporter Zak Vescera tweeted the same month.

“Global Affairs Canada has oh-so-helpfully informed me it is taking a *one year* extension on a request of mine to search for *three days* of records related to one specific incident earlier this year,” tweeted Global News journalist Amanda Connolly in July.

“Briefing note to @scottbrison on how the new #cdnfoi system will proactively release lists of briefing notes,” tweeted Toronto Star reporter Alex Boutilier in 2018. Attached was a picture of a blank page, all the words redacted.

It was this byzantine system that Trudeau pledged to fix—a system that takes the information that underpins what our government does, how it thinks, and how it operates, and places it firmly behind a wall, protecting it from prying eyes. The access-to-information system was created to thwart governments’ basest instincts to hide and obfuscate; instead it has become the embodiment of exactly that desire.

To date, the Liberal government has fulfilled precisely two of its access-to-information promises: to review the law every five years and to eliminate all fees associated with requests apart from the initial $5 application cost. Every other promise has either been ignored or half-addressed. As the government has dragged its feet on these reforms, the quality of this system has declined. The Harper government was openly hostile to reporters, clamping down on Parliament Hill journalists’ ability to question ministers. The current government has changed the tone while ramping up the obfuscation.

The federal government is amassing more data than ever before. Ottawa is using algorithms to filter immigration requests. New initiatives will let its intelligence agencies conduct offensive cyberoperations. Ever-more money is being spent through big new investment tools for technology and infrastructure. The tool designed to keep the government honest and transparent, however, is falling apart. Trying to get transparency on any of those big initiatives is now a mug’s game. And that seems to be how Ottawa wants it.

Canada’s Access to Information Act dates back to 1983. Back then, Ottawa vowed that the bill would be revolutionary, enshrining access to information under three pillars, according to then Treasury Board President Herb Gray.

“The first is that Canadians should have a right of access to information in government records,” he said, at a press conference, in 1983. “The second is that the necessary exceptions to this right of access be as limited and specific as possible. The third is that decisions on the disclosure of government information should be reviewed independently of government.”

But, from the moment the system launched, there were calls to fix and expand it. In 1987, the justice committee published a report containing more than 100 recommendations, many of which would never be implemented. The Chrétien government ordered a task force to study the act. Their report, published in 2002, sat on a shelf. The Harper government would be the first to significantly update the act. It increased the number of agencies captured by the act and offered the information commissioner slightly expanded powers, but left the rest of the system largely as is.

The reports kept coming. There was a 2009 report, from the standing committee on access to information, privacy, and ethics, which recommended, among other things, the right to go to court if access is refused. More recently, there was a 2016 report, from the same committee, which issued another thirty-two recommendations. That was matched, the same year, by the information commissioner’s annual report. Suggestions also came from the Liberal government’s public consultations, which saw individuals and associations submit pointed criticisms (“ATIP staff are using the exemptions too broadly, costing all parties time, money, and, ultimately, good will”) and offer specific recommendations (“All records—even those that are initially earmarked as classified or protected—should be opened at some point”). The government largely ignored the results of these consultations.

To date, there have been dozens of reports on how to fix this system. Many of the same recommendations have been repeated since the 1980s—limit the exemptions to the act, let requesters go to court if their requests are being frustrated, expand the types of documents that can be captured by requests, amongst a litany of other things. Yet, somehow, these recommendations are ignored time and time again.

And new problems have cropped up. A common complaint is that the system hasn’t kept up with the internet. Some departments still only accept requests via mail with cheques attached. Those departments that do accept online requests are split between two different online portals. Requests, when at last delivered to requesters, are usually in either printed or CD form, the latter of which contain nonsearchable PDFs. In my experience, few departments send requests via email. By contrast, most American departments deal with these requests entirely over email.

The sum of all those failures is Bill C-58, heralded by the government as modernization and reform. The bill, which became law in June, does nothing to actually improve Canadians’ right of access—it codifies existing proactive disclosure rules into law, provides some new powers to the information commissioner, and requires automatic statutory reviews of the act. At the same time, it also empowers departments to refuse and reject requests. The head of the Fédération professionnelle des journalistes du Québec called the bill a “failure across the board.” The information commissioner herself called it “a regression of existing rights.”

Some of these problems are bigger than just changing the law. Each government department runs its own access-to-information regime with its own staff and, often, even its own document-management software. That complexity makes real modernization hard. And, in the meantime, the system continues its slide into disrepair and neglect.

The access-to-information system is the responsibility of the president of the Treasury Board, arguably the most powerful member of cabinet after the prime minister. They are responsible for most of the functions of government, overseeing public services across departments. For most of Trudeau’s mandate, that job fell to political stalwart Scott Brison. It was under his reform that Bill C-58 was brought in and the delays worsened. Upon his retirement, in January, the job fell to Jane Philpott, whose tenure lasted all of two months. She was replaced, in turn, by Joyce Murray.

Murray’s optimism is almost enticing. At the start of our call, she invited me to “note just how much it has already gotten better.” Her office provided new stats, highlighting just how many more pages have been released under the Access to Information Act—an improvement of nearly one third since the previous government left power. But that is a function of the request process moving online, away from paper requests, and not thanks to any particular policy from this cabinet. “I think there has been a huge step forward over what was happening during the Harper years,” Murray says. Political staff won’t meddle in requests anymore, she insists.

Yet, when pressed with the deficiencies identified in the bill and presented with the empty promises from the election campaign, Murray urges patience. “We are by no means declaring that the whole job is done,” she told me. But anyone who regularly uses the system, as I do, can tell you that the job has barely started.

Murray says it “makes sense” for Ottawa to “update our whole data management.” But that, she says, will be more of a long-term solution. She insists that all the problems, all the unnecessary redactions, and all the delays can be addressed in the Liberals’ next mandate, after the first statutory review is conducted. “It’s not so much that the system is broken—it’s that the flood of requests . . . has been enormous,” she adds.

Murray’s explanation doesn’t carry much water given that the complaints about the system now go back three decades, over six governments. What’s more, the endemic problems are just as common for departments that receive tens of thousands of requests—like Immigration, Refugees, and Citizenship Canada—as they are for departments that handle just hundreds, like Health Canada.

The government has tried to play up its so-called open-government portal. Such openness initiatives can be invaluable, as the United Kingdom has shown. On the UK site, you can find quarterly information on which outside meetings were taken by ministers of the crown, published on time in a readable spreadsheet. You can find updated staffing numbers for various government departments, police statistics from across the country, the carbon footprints of government staff—useful information for researchers, scientists, and journalists.

By comparison, Ottawa’s portal is more like an empty storefront. Canada largely breaks its portal into three parts: open by default, open information, and open data. In 2017, the government launched an open-by-default portal as a pilot project, claiming that the documents released in the pilot would offer a “backstage pass to the work of four government departments.” Yet, two years later, it still a pilot, it contains fewer than 600 documents, and most of these documents are trivial—such as web-traffic reports for the portal itself or PowerPoint presentations given years prior.

The open-information portal isn’t much better. Most of the information found within it was already available elsewhere on government websites and has now simply been centralized—but, even still, some departments and agencies only have one or two documents. Quarterly information is posted weeks after the end of the quarter. Some entries, like details on how much veterans can claim in disability or updates on influenza from the Public Health Agency of Canada, are just links to policy documents on other government websites. And reporting is asymmetrical: nearly 80 percent of the entries come from ten departments and agencies, with some of the largest government departments not participating at all. There is even a warning, on the top of the page, that the portal is far from complete and that you may be better off searching elsewhere.

Finally, the open-data portal is at least impressive-looking, with more than 82,000 data sets. Yet 85 percent of those come from Natural Resources Canada, which primarily uploads geospatial data (again, information already available on their website). Of the remaining data sets, the most useful, like data on monthly rail shipments, are also available on the Statistics Canada website in more legible formats.

In other words, for all the self-congratulations the government awards itself for a system that will help researchers, academics, and journalists alike—nothing has really changed. We are scarcely more open than we were a decade ago.

In 2015, the Liberal Party heralded its own plan for the Access to Information Act as a “sweeping agenda for change.” It was a plan for modernization, the party said. “Transparent government is good government. If we want Canadians to trust their government, we need a government that trusts Canadians,” its platform trumpeted. Today, this reads like a damning indictment of Trudeau’s own government—a government that, on this front at least, is neither good nor trusting.

Justin Ling
Justin Ling (@Justin_Ling ) is a freelance journalist based out of Toronto, covering politics, security, defence, and people screwing up.