Mel Cappe is a professor at the Munk School of Global Affairs and Public Policy and a former clerk of the Privy Council. James Mitchell is an adjunct professor at Carleton University and a former assistant secretary to the Cabinet, Machinery of Government.
The Globe and Mail has done Canadians a service by exposing the serious shortcomings in federal and provincial freedom of information (FOI) regimes. The reporting done as part of the Secret Canada project has shown that Canadians cannot get timely access to the information held by governments that they need, and to which they are legally entitled. Either the governments are egregiously slow in responding to access requests or, in far too many cases, they simply fail to provide the information requested. These delays are not simply frustrating; in far too many cases, they affect the material interests of Canadians who need to know what the government knows about them.
This problem is an important challenge to democratic governance in this country. But the solutions may not be obvious.
For example, simply adding more people, working millions more hours, to beleaguered access/FOI units in the federal and provincial governments will not solve the problem. Moreover, our Westminster system of government differs in fundamental ways from the municipal-government-style model with which most Canadians are familiar: Westminster government is cabinet government, where there is a fundamental requirement for secrecy to enable frank discussion among ministers and collective responsibility before the legislature, while municipal councils do their business in the open, as they should. But the obligations of openness differ in important ways between these two forms of government, and this can cause confusion.
To figure out solutions, we must understand the source of our access/FOI problem – and that lies with two fundamental features of the current regimes operated by both the federal and provincial governments.
First, the system we have is governed by the assumption that documents belong to government and are protected unless they can be allowed to be released. The result is that officials are obliged to spend an enormous amount of expensive time examining and redacting documents to protect information that, frankly, has no need of protection. Instead, governments should accept that the information they hold is inherently public, unless it falls within a limited set of exceptions to that rule, and make this information easy to access for citizens.
The second and more fundamental problem is that the laws were written, and governments are operating, in an analog world of paper and paper-based processes, while the needs and expectations of citizens reflect their experiences in a 21st-century digital world.
Today, people expect that information will be available instantly online. The notion that the information that someone is seeking from government is sitting in a filing cabinet somewhere in a remote government building seems laughable – but sadly, it is accurate. The fact is that today, a request for information is, in most cases, actually a request for a paper document that must be located then examined by a government official, then perhaps redacted in some way or other, and then physically transmitted to the person who made the access request. That process takes a huge amount of time and effort, and what’s more, it’s expensive: A recent Treasury Board study revealed that the estimated per-page cost of a document released under the federal access to information program is $11.40, and pegs the total cost to administer the program at $195-million a year. Pro-active disclosure, by contrast, would cost a federal department or agency only $64,000 a year on average.
To solve the problem, we should first recognize a clear distinction between information that should be accessible – namely, almost all of it – and information that, for good reason, should be protected.
We should also recognize that different kinds of information require different forms of protection. Tax data require privacy protection, for instance; this is an essential obligation of government to citizens and is fundamental to our “self-reporting” system of tax collection. Discussions in cabinet and advice to ministers need protection to enable the giving of frank advice and to allow for candour around the cabinet table. National security and intelligence records need protection to protect the security of the country; commercial negotiations, as well as federal-provincial and international negotiations, require protection so as to protect individual and national interests.
All these protections should be pretty much absolute. After that, one can apply a harm test to protect the information, if that is necessary. Otherwise, the default position should be that the information held by governments is readily accessible.
Furthermore, in our digital world, not every digital artifact in government should be deemed a “record” for the purposes of access to information. For example, every e-mail and every telephone call inside government is currently regarded, in principle, as a digital record. These should not be considered a record, for the purposes of the Act. Why not? Well, not every request for access is benign; some requests are motivated, quite legitimately, by a political or journalistic interest in simply embarrassing the government or finding information on a competitor. And if all exchanges among public servants were made public, then people simply would not communicate digitally any more. If casual exchanges among public servants are to be accessible then fear of embarrassing the government or themselves would be a chill on frank exchanges.
So how can we best reform the access/FOI regime at the federal or provincial level to better respect the rights and expectations of citizens, while still protecting the legitimate interests of individuals, governments and the country?
Firstly, as noted, start by recognizing the principles of confidentiality of ministerial discussions that underpin Westminster parliamentary democracy.
Secondly, change the default position for access/FOI from one of protecting secrecy to that of making records releasable unless this would violate clearly defined principles of secrecy or privacy. In cases of doubt, apply a clearly defined justiciable harm test for disclosure.
Thirdly, set out well-defined categories of protected documents (e.g., cabinet confidences, national security and intelligence information, and tax information and other records protected by privacy concerns) in the law.
And finally – and perhaps most importantly – begin the essential task of changing the information holdings of government from analog to digital, and amend search and disclosure processes in the same manner. Emphasize the creation of searchable databases which allow for low compliance costs in government and what is equally important, low private search costs. Recognize the social and public costs of compliance in government (high) vs. the private costs of private search of public records (low).
The Globe is right – the system is broken. Canadians are not being well-served. But we can’t fix the system by simply opening it up. We must understand why it’s broken and what it should look like in future if the interests of Canadians are to be protected.