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Privacy Commissioner Jennifer Stoddart (Sean Kilpatrick/The Canadian Press/Sean Kilpatrick/The Canadian Press)
Privacy Commissioner Jennifer Stoddart (Sean Kilpatrick/The Canadian Press/Sean Kilpatrick/The Canadian Press)

Five years later, information access is still stalled Add to ...

Next month, Prime Minister Stephen Harper's unfulfilled promise to strengthen Canada's access-to-information laws will be five years old.

The pledge stands out among the Conservative pledges made during the 2005-06 election campaign that brought Mr. Harper to power, because most have since been checked off. The Harper government's first piece of legislation was a broad package of accountability rules, yet stronger access laws were left for another day.

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The Conservatives now show little interest in the file. The government says it remains "committed to transparency and openness" but has thwarted repeated attempts to reform the access-to-information system. It argues reform is complex and requires extensive consultations.

No governing party or public servant eagerly turns over embarrassing documents. But Mr. Harper promised to be different from the Liberals, who left a system that was declared in need of a massive overhaul.

Instead, political interference in access requests has forced the resignation of a cabinet aide and the number of complaints received by the federal Information Commissioner is up 17 per cent since the Conservatives came to power. Major government departments have hired outside consultants to clear the backlog of delayed files, often by asking journalists and other requesters to simply abandon their requests.

The Harper government has a reputation for controlling information, but some Conservatives question whether its worth it.

"I think Canadian politics puts too much on confidentiality," Tom Flanagan recently told The Globe. The University of Calgary academic led Mr. Harper's office while in opposition and played senior roles in Conservative campaigns. "But I don't claim any moral high ground. I enforced rigid confidentiality when I was Stephen's chief of staff. I guess I try to do the job I'm being paid to do."

This week before the Supreme Court of Canada, the government showed how far it has strayed from its opposition demands on access to information. It carried on a legal battle started by the Liberals to prevent the release of prime minister Jean Chrétien's agenda books. The case involves an access request filed more than 10 years ago by Reform Party researcher Laurie Throness, who is now a veteran chief of staff in the Conservative ranks.

THE PROBLEM

Reporters and others with an interest in obtaining information about government initiatives continue to be stymied by long delays, high search fees, blacked-out documents and outright refusals.

Meanwhile Canada's other key law related to government documents - the Privacy Act - is also badly outdated. Privacy Commissioner Jennifer Stoddart noted this week that her pleas for reform are ignored. Neither the Access to Information Act, nor the Privacy Act, has any teeth.

Evidence of this came when Ms. Stoddart's office found Veterans Affairs bureaucrats violated the Privacy Act in widely sharing a veteran's mental-health information in briefing notes related to his advocacy work. No one was identified, no one was punished and Ms. Stoddart said her mandate prevents her from commenting on the motives of the anonymous bureaucrats.

Inside each department, small teams of access and privacy co-ordinators are caught in the middle. They must ask powerful bureaucrats to sign off on the release of documents and endure delays as political staff in ministers' offices review what's going out. They receive little training and are experiencing high turnover.

When they are overruled by bureaucrats over what can be released, there is virtually nothing they can do.

"Somebody has to be in charge of kicking butt," said Mike Dagg, an expert on Canada's access laws who frequently takes the government to court for refusing documents.

Sharon Polsky, the national chair of the Canadian Association of Professional Access and Privacy Administrators, said cases of access workers being forced to break the rules are the exception, not the rule - but it happens.

"The majority of experienced access and privacy professionals have the integrity, strength of character, and good judgment necessary to resist being bullied into submission," Ms. Polsky said, after canvassing some of her members for this story. "But the reality is that some may feel obligated to comply or fear retribution when a superior gives direction to do - or not do - something incorrect or unwarranted."

THE PROPOSALS

The 2006 Conservative platform promised to fix all this by giving the access commissioner "the power to order the release of information" and to let the commissioner see cabinet records to ensure government claims of cabinet confidentiality are justified. Both had been advocated by then-commissioner John Reid.

Instead, just one of eight proposals were adopted: expanding the law to cover a number of new institutions, including the CBC and the Wheat Board.

Mr. Reid was livid. In a special report to Parliament, he wrote that the Accountability Act will "increase the government's ability to cover up wrongdoing, shield itself from embarrassment, and control the flow of information."

A year later, Mr. Reid's successor, Robert Marleau, said public complaints to his office were doubling year over year and documents were being held up in the Privy Council, the central department that reports to the prime minister.

Mr. Marleau presented the House of Commons Access to Information, Privacy and Ethics committee with a list of 12 recommendations for reforming the ATI law. In the spring of 2008, the committee began a study of those suggestions that wrapped up a year later.

The MPs on the committee, which like all other Commons committees is dominated by opposition members, supported 11 of Mr. Marleau's recommendations and submitted a report to Parliament in June of 2009, which it called the "first steps" toward ATI renewal.

The response of Justice Minister Rob Nicholson, who is responsible for the act, made clear that the wait for reform has no end in sight.

"The government's view remains," he told the committee in June, "that implementing the proposals recommended in the committee's report would be neither quick, nor easy."

HUMAN-RIGHTS DATA DELAYED NEARLY 3 YEARS

Delays in the release of documents requested under access-to-information legislation are routine, but some are more egregious that others.

Ken Rubin, an Ottawa researcher who is an access expert, asked the Canadian International Development Agency in March, 2007, for the so-called "watch lists" of human-rights violations committed by foreign countries in 2006.

These are notes sent to the president of CIDA and the cabinet minister responsible for the agency.

The documents were finally delivered in December of 2009.

The delay was never explained, though the request was vetted by the Privy Council, the bureaucratic arm of the Prime Minister's Office, which slows the process.

"A lot of it was based on rather mundane material that could have been obtained from public reports," Mr. Rubin said, "but it did have some clues about those countries and their violations so it would have been useful to get it much earlier."





With a report from Jane Taber

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