26 February 2009

Freedom from information: the federal case

The federal information commissioner released his report card today on the performance of federal departments under the access to information law.

Six of 10 departments sampled failed to meet the minimum standard. The commissioner identifies reasons for these failings, mostly having to do with staff and resources.

Some of the issues faced by applicants will be familiar to anyone who has tried to use the access laws in Newfoundland and Labrador to garner information held by the provincial government.

While the federal problem appears to be one of resources, what is happening locally is an entire culture that is oriented toward preventing disclosure.

Officials do not merely seek to ensure that records that ought not to be released under the law (mandatory and discretionary exemptions) are withheld.

Instead, they seek to avoid releasing any information which government does not wish to release for reasons that go well beyond the ones provided in legislation.

It started in 2003-2004 with the Premier's insistence that government would not release public opinion polls.  The law was explicit on the subject: polls could not be withheld.  He ignored the law and only finally relented under considerable public pressure.

In subsequent examples, officials have simply invented ways of frustrating applicants and preventing disclosure.  Informal means of accessing information don't exist.  They have simply been abolished. One can only access information by filing out a form and paying money up front.

Even then, there is no guarantee of getting information even if the applicant knows the information exists and asks for it specifically. The Telegram’s request for purple files are a case in point.  The department simply determined they will not provide the records and claims that there are no records they will release on the request.  There are no “responsive records”, as they put it using that notion found no where in the province’s access laws.

It's pure contrivance, pure fiction.

The intent of the officials is unmistakable, however.  They simply do not wish to comply with the law as passed by the legislature.

In some instances the excuses are laughable.  Officials provide a computer print-out of the requested information yet deny that the information is stored electronically.

Departments are able to act outside the law since they do so with the consent - implicit or explicit as the case may be - of the politicians in charge. This seems patently obvious but it bears pointing out: if the people in charge did not sanction the approach to access requests being taken, they would change it.

Take, for example, a request for information on an administrative review that was never publicly announced.  The minister responsible uses an invented excuse to deny access:  the information cannot be released because the review is not completed. One would be naive to draw any conclusion but than that the politicians have something there they do not wish the public to see.

In Ottawa the freedom from information problem requires money to fix.  In Newfoundland and Labrador, any changes to the freedom from information problem will require something much more difficult to bring about:  a change in some people’s attitudes.

When that might occur is anyone’s guess.