By Jamie Brownlee and Kevin Walby
Under Canadian law, every citizen has the right to request information from federal, provincial/territorial, and municipal governments. Gaining access to tightly controlled government information is critical in promoting social justice.
All orders of government are subject to the protocols set out in the Access to Information Act (ATIA) at the federal level or Freedom of Information (FOI) legislation at the provincial/territorial and municipal level. These legal instruments allow individuals to request records, policy documents, and correspondence that show how these agencies operate. ATI/FOI data is different than the open-source material found on government websites, in politicians’ speeches, and the sanitized information packages of public relations firms. It is information that illustrates how power works in government and exposes the often secretive dealings between state and corporate elites. These are some of the findings of our new book Access to Information and Social Justice: Critical Research Strategies for Journalists, Scholars and Activists.
ATI Research in Canada: Early Successes
ATI/FOI requests are being used more frequently to gather information. According to Treasury Board statistics, ATI requests at the federal level increased by 43 percent between 2006 and 2011. With this growing interest has come an increasing number of successes, defined here as instances where the public has become aware of an event or issue because of information uncovered through these kinds of investigations. Stanley Tromp (2010), freedom of information caucus coordinator of the Canadian Association of Journalists, has compiled a list of Canadian news stories that were made possible through information requests filed under Canada’s ATIA between 2006 and 2010. These listings illustrate that the use of the ATIA has led to stories on major public issues as diverse as health and safety, government financial waste, policing and security, and environmental risks. One could cite thousands of similar ATIA stories dating back to the law’s inception in 1983.
In more recent years, ATI investigations have continued to inform stories on a diverse range of public interest issues. Early in 2014, documents obtained by the John Howard Society of Canada revealed that inmates with acute mental illnesses were being locked up in prolonged isolation and “grossly inadequate” conditions in Canadian mental health facilities.
One example of corporate interests, the state and sites of resistance are the investigations of the Alberta Tar sands. A CBC news investigation unearthed a 2011 report about a TransCanada gas pipeline rupture in northern Alberta. The investigation showed that federal regulators had intentionally buried the report, likely due to government concerns about TransCanada’s negotiation of the contentious Keystone XL Pipeline proposal. This disclosure is relevant in light of two other recent ATI exposés. The first involved data obtained from the National Energy Board (NEB) showing that the rate of safety-related incidents on federally regulated pipelines doubled during the 2000s, while the rate of reported spills and leaks increased threefold. The second was a series of documents detailing over 9,000 environmental violations in the tar sands since 1996, and the fact that less than one percent of these infractions have been subject to prosecution. Equally troubling was the discovery that the federal government has been spying on anti-tar sands activists as well as Indigenous and environmental organizations across Canada. These are groups that the government considers to be its “adversaries,” a fact that was also brought to light through documents obtained under ATI.
These successes show that journalists, researchers, and activists can make change in the world through their research, and that they can work together and learn from one another in the process. Yet while successes of ATI/FOI-based research are noteworthy, it is important to understand that journalists, researchers, and activists obtained these results in spite of challenges associated with ATI in Canada.
Canada’s ATI Regime: Current Challenges
While the ATIA may have been “cutting edge” 30 years ago, it has yet to be updated and, as a result, the Canadian ATI regime has “fallen behind” from an international perspective. On a number of measures, such as the scope of Canada’s ATI legislation (e.g., the number of excluded agencies and the capacity of governments to evade the laws), Canada ranks near the bottom. Almost all of the 95 countries under review—with the exceptions of Australia, Iceland, China, Greece, and Tajikistan—made more government information available to their citizens than Canada.
The rankings established by the Centre for Law and Democracy show that Canada performs especially poorly in the “exceptions and refusals” category. This category measures how often information is withheld and under what circumstances. A related problem is exemption and redaction, or the removal of information from government documents prior to release. For example, there are blanket exemptions for certain political offices. Any time that information involves the work of a minister’s office or a cabinet decision, it can be withheld. Today more and more documents are claimed to be a matter of cabinet or ministerial confidence, and some government bodies, like the Prime Minister’s office, are not subject to ATI laws at all. Instances where requesters received no information at all increased by nearly 50 percent between 2007 and 2011. As a result of these challenges, there have been repeated calls for changes to ATI/FOI protocols over the past few years.
It is not only the federal government that is struggling with poor ATI performance. In September 2014, the British Columbia Information and Privacy Commissioner Elizabeth Denham published a report on the systematic failings of the FOI regime in that province. Six months earlier, the provincial government in Alberta was accused of deliberately interfering with FOI requests. The annual FOI audits conducted by Newspapers Canada continue to unearth deficiencies in ATI regimes across the country.
All of these challenges point to how government agencies control information in Canada. Researchers, citizens, and journalists cannot avoid these barriers, but they must be able to mitigate them in order to use ATI and FOI processes effectively.
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Jamie Brownlee and Kevin Walby are the editors of Access to Information and Social Justice Critical Research Strategies for Journalists, Scholars, and Activists. Jamie Brownlee has a PhD from Carleton University and Kevin Walby is Associate Professor and Chancellor’s Research Chair, University of Winnipeg, Department of Criminal Justice.
Access to Information and Social Justice Critical Research Strategies for Journalists, Scholars, and Activists by Jamie Brownlee & Kevin Walby
Friday November 6th, 7:30 pm
McNally Robinson, Grant Park
Also available at arpbooks.org