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Government Unfairly Slows Access to Information, Information Commissioner Concludes

3-9-2008

Investigation Upholds Newspapers’ Complaint that Delays Stifle Public’s Right to Know

OTTAWA, Sept. 3 /CNW Telbec/ – Canada’s Information Commissioner has upheld a newspaper industry complaint that government practices of tagging requests for information as “sensitive” create “unfair and unjustifiable delays in the processing of those requests,” and has urged government departments to stop holding up information.

The finding marks the conclusion of an unprecedented three-year investigation into 21 government departments triggered by a complaint from the Canadian Newspaper Association in September, 2005, alleging that “secret rules and procedures (…) contravene the (Access to Information) Act, (and) result,
more importantly, in unfair and unjustifiable delays in the processing of media requests for government information to which the public has a right in our democracy.”

“This is a major victory in that the Commissioner confirms there is a serious problem in the way information that has the potential to embarrass the government can be obstructed,” said David Gollob, CNA’s Senior Vice President, Policy and Communications.

“The Access to Information Act is a critical tool for investigative journalists, as well as parliamentarians, NGOs, and others who seek to hold government to account. But delay kills stories and frustrates journalistic inquiry. Whenever something is allowed to undermine transparency in this way, the system of democratic accountability in which newspapers play such an important role is weakened,” he said.

The Information Commissioner’s report, released simultaneously to the CNA and to the government, emphasizes that the investigation did not find that media requests are singled out for special treatment, because requests from parliamentarians and lawyers are also more likely to be treated in this way.  The Commissioner, an Officer of Parliament with an ombudsman’s role in investigating complaints under the 25-year-old Access to Information Act, also finds that there is nothing illegal in the practicably.

While applauding the Commissioner for shining a light on labelling of requests as “sensitive” (also known as “red-flagging” or “amber-lighting”), the CNA questions the finding that media requests are not specifically targeted, and that such practices do not amount to a system of “secret rules” which have no legitimacy under the Act.

The CNA notes, in its own separate analysis of data collected by the Information Commissioner, that more than one in four of all requests designated for special handling comes from media requesters, even though fewer than one in six requests overall come from the media. In fact, media requests are about twice as likely to get the tougher treatment as requests overall.  Canadian newspapers have reported a significant rise in impediments to government information to which the public has a right in recent years.  Successive Information Commissioners have complained in Annual Reports about “chronic” and “crippling” delays.

The Commissioner’s report, coinciding with the 25-year anniversary of Canada’s Access to Information Act coming into effect, highlights the increasing dysfunction of a system originally designed to ensure transparency and the need for tougher freedom of information legislation to reverse the trend. The CNA has been lobbying for reforms to the Access to Information Act for over a decade.

Background

The Access to Information Act is one of the most important tools available to journalists and other researchers to see beyond official spin and find important facts that underlie government decisions.  After the CNA complaint was filed in September, 2005, the Office of the Information Commissioner selected 21 federal departments and agencies for scrutiny. Of those, 16 acknowledged they had a system to designate certain requests for special handling, with labels such as “amber light,” “of interest” and “high visibility.” Reasons for doing so included the need to notify superiors or the Minister’s office, or the desire to have media relations officials prepare “communications products” prior to the release of documents.
The Access to Information Act makes no provision for such special processes, which have been layered on top of the proper legal process by government bureaucrats. The CNA is pleased that the Commissioner has shone a light on the practice of “amber-lighting” certain requests, but questions the conclusion that media requests are not singled out.  Furthermore, the CNA questions the rationale for giving the appearance of endorsing “amber-lighting” by issuing recommendations on how to administer it in future. The CNA believes that such extra-legal systems add needless layers of complexity and delay to a process that is already notoriously unresponsive. Based on an analysis of request data from the agencies that were investigated, the Commissioner concluded that a variety of types of requesters are affected, and in particular, parliamentarians, lawyers and media. He rejected the view that media are singled out.  The CNA points out in its own analysis of the data, however, that more than one in four of all requests designated for special handling comes from media requesters, even though fewer than one in six requests overall come from the media. In fact, media requests are about twice as likely to get the tougher treatment as requests overall.  This was among the conclusions of an independent review of the investigation data prepared for the CNA by University of King’s College journalism professor Fred Vallance-Jones, who also found that media requests take longer to process than others, even if they are not officially tagged for special handling. They are also more likely to be subjected to administrative obstacles such as requests for time extensions, and deletion of some of the material prior to release. The Commissioner’s report doesn’t address these issues, although the office was provided with the Vallance-Jones report. The Commissioner’s report comes at a time of crisis in the entire access-to-information regime. It has become routine for departments to demand long time extensions, to the point where media requests routinely take months to process, whereas thirty days is the standard established in the legislation, unless extensions are warranted. “The evidence suggests that media requests are delayed as a matter of routine,” Mr. Vallance-Jones said. “Even when they are not ‘sensitive,’ they take longer.”

For further information: or to receive a copy of the reports mentioned
visit our website at http://www.cna-acj.ca or email: info@cna-acj.ca

MORE… History

Canada’s Privacy Commissioner George Radwanski was hounded from office amid a firestorm of allegations about expense account abuses.

Press hacks and politicians continue to nip at his heels accusing him of misleading parliament and “intimidating” his staff. One Member of Paliament suggested he deserved jail time or even execution.

Why such ferocity?

George Radwanski had been a valiant and eloquent opponent of the Canadian government’s new initiatives for repressive public surveillance. His courageous leadership is the reason he has been tarred and feathered. The real scoundrels are the Canadian politicians and press who have abjectly betrayed the public trust.

In January 2003, Radwanski warned Canadians that the government “regrettably has lost its moral compass.” Although Canada hasn’t had a terrorist attack, planned initiatives will result in the loss “not only of privacy rights that we take for granted but also of … freedom as we now know it.”

He warned “September 11 is being invoked as a kind of magic incantation to stifle debate, disparage critical analysis and persuade us that we suddenly live in a new world where the old rules cannot apply.”

“The Government is doing all this in blatant, open and repeated disregard of the concerns that it is my duty to express…” Radwanski said.  He revealed that American pressure was to blame, and urged Canadians to assert their sovereignty.

”  The right of privacy is at the core of the basic freedoms of our society. Freedom of speech, of thought, of association, to name just a few, are grounded in the idea that we have a private sphere of thought and action that is our business and nobody else’s — not our neighbours’, not our employers’, not some telemarketer’s, and certainly not the state’s. In Canada today that fundamental human right is under unprecedented assault.”

He foresaw the potential uses of surveillance for political repression. While only thousands march against globalization today, what if millions wanted to demonstrate in the future?

Radwanski compared the “war on terror” to Orwell’s 1984, “which takes place against the background of a mysterious chronic war in which it is never clear just who the enemy is or who is winning or losing.”

The bottom line is this: If we have to live our lives weighing every action, every communication, every human contact, wondering what agents of the state might find out about it, analyze it, judge it, possibly misconstrue it, and somehow use it to our detriment, we are not truly free.

That sort of life is characteristic of totalitarian countries, not a free and open society like Canada. But that is where we are inexorably headed, if the Government’s current initiatives are allowed to proceed.”

CONCLUSION

No one can read this excerpt without being ashamed. As Canadians, we have behaved like little children. We have clapped while our champion has been struck down and humiliated. We will discover that our freedom is a lot easier to squander than it is to regain.

We don’t recognize the danger facing us because conditions are still pretty good. But these measures are not planned for good times. They are designed for the bad times that are in store.

Sept. 11 was an audacious act on the part of the world’s financial elite. It served the double purpose of providing an excuse to subjugate the Moslem world while at the same time creating an enemy to justify political repression at home.

The crumbling twin towers signalled the final stage in a long-term plan for a world police state governed by the superrich. The New World Order is the work of the devil, and Canadians brought it a step closer last week.

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