Part 2: Freedom of Information From Osama To Ottawa
Even though our freedom of information legislation has not been thrust into the spotlight as violently as it did in the United States recently, we, as active citizens and civic participants, should take a closer look at our right to access information about governmental services in a timely and accurate fashion. Over the last few years, the federal government has taken a controversial, and often criticized, position on freedom of information.
The issue of governmental openness was front and center in the recent Supreme Court decision, Canada (Information Commissioner) v. Canada (Minister of National Defence), which was aptly summarized by my colleague two weeks ago. Thus, my post will build on my earlier post about the release of Osama bin Laden’s death photos, applying it to the Canadian context with guidance from that recent SCC decision. Ultimately, this post will address reasons why Canada’s access laws were ranked behind those of India, Mexico and Pakistan, “crying out for an overhaul for years.”
In one way or another, we lived in a climate of fear this past decade. After the terrorist attacks of September 11, 2001, patriotism was renewed in the United States, with rows upon rows of American homes blanked by colours of red, white and blue across the country. Facing an enemy that was very much unknown to Americans up until then, the government encouraged fear mongering and exploited those fears to make the government increasingly secretive. One can easily point to the war in Iraq; over time, various media undertook private investigations to expose the Bush administration as misleading Americans as to why the invasion of Iraq took place.
It seems as though the Bush administration blazed a path for the Conservative Party in Canada. In 2006, this newly elected government took strides to block the release of any information regarding Canada’s operations in Afghanistan. The chief of defence staff then, General Rick Hillier, deemed the release of any documents dealing with captured detainees to be a threat to Canadian troops – not just photos. (In the United States, the public, led by news agencies and journalists, had their eyes on securing photographs of detainees in American prisons in Afghanistan and Iraq. We Canadians had much less.) It was the Globe and Mail that broke the story that prisoners in Afghanistan were being abused and tortured. Even if indirectly – Canadian soldiers often handed prisoners over to Afghani authorities, who would subsequently torture them – this still amounted to a violation of the Geneva Convention.
Why Canada is in the dark
Some historical reasons are offered as to why we Canadians have let the government shroud itself in darkness. First, Canada’s answer to America’s Freedom of Information Act, which was enacted in 1967, has a curious name; we called it the Access to Information Act. The Americans yoke “freedom” with “information,” rendering “information” an indelible right by virtue of that metaphor. “Access,” on the other hand, assumes that a channel needs to be opened by someone. Sixteen years later in 1983, Canada, under the leadership of Pierre Trudeau, moved one step in the right direction, but only very hesitantly.
Some legal scholars have pointed to our British heritage as providing some insight on the issue of governmental accountability. Unlike the United States, where power is distributed among three branches of government, the executive, legislative and judicial, power is concentrated with the prime minister, the Privy Council and the cabinet. (Again, looking at the words used, the word “privy” connotes privilege, exclusivity and secrecy.) As well, our borrowed system undercuts civic ownership, namely the fact that we do not consider the government “mine,” “ours,” “his” or “hers.” Our government is Her’s – the Queen’s, that is. Thus, there are not as many checks in place to the exercise of executive power as we would find in the United States. We do not put pressure on governmental bureaucracy or ask questions more generally as readily as our peers.
The law itself
Lawyers and legal scholars in Canada generally agree that our freedom of information laws, which can vary between province to province, are much more lax than those in the United States. The power of the Access to Information Act, as a whole, is often illusory. For example, the information commissioner, who handles requests to disclose governmental data, cannot compel the government to actually release them. While the Freedom of Information Act in the United States lists eight specific exceptions, the ATIA excludes hundreds of important government or government-affiliated bodies, such as the Nuclear Waste Management Organization. Along the same vein, the inner workings of the government are closed off to the public; the records of cabinet discussions are excluded from the scope of the freedom of information law in only two Commonwealth countries, Canada and South Africa. Another hurdle that Canadians must jump over to access governmental data is the bureaucracy. It is not well known that government is synonymous with bureaucracy. Most countries in the world enjoy a response time of only two weeks; eight nations mandate a reply within 10 days. In Canada, however, public bodies are required to reply within 30 days, with the option of extending this for another 30 days. This has created such a huge backlog of requests that it threatens to crash the entire access system – literally and figuratively.
The conclusion that one can draw from the picture above is that Canada has failed to fulfill Trudeau’s promise that the government will operate openly, transparently and responsibility. One article from 2006, “Fallen Behind: Canada’s Access to Information Act in the World Context” by Stanley L. Tromp,” gravely concludes that: “Canada fails to meet international standards of freedom of information law.” Specifically, Canada falls short of meeting Article 19 of the UN Special Rapporteur on Freedom of Opinion and Expression.