Freedom of Information (Cont’d)

Freedom of Information (Cont’d)Freedom of Information (Cont’d)

Promise and PerilsPromise and Perils

November 30th, 2006November 30th, 2006

Strategies of ResistanceStrategies of Resistance

malicious non-compliancemalicious non-complianceadversarialismadversarialism

amberlightingamberlighting



amberlightingamberlighting disclosure of identities of requestorsdisclosure of identities of requestors



amberlightingamberlighting disclosure of identities of requestorsdisclosure of identities of requestors pressure on ATIA officialspressure on ATIA officials



amberlightingamberlighting disclosure of identities of requestorsdisclosure of identities of requestors pressure on ATIA officialspressure on ATIA officials avoidance of record-keepingavoidance of record-keeping

Adversarialism – Avoidance of Adversarialism – Avoidance of Record-KeepingRecord-Keeping

““The management culture has changed dramatically over the The management culture has changed dramatically over the past 20 years from solid record-keeping, accountability and past 20 years from solid record-keeping, accountability and dedication to the public service and loyalty according to our dedication to the public service and loyalty according to our oath of office to Canada, to avoidance of record-keeping and oath of office to Canada, to avoidance of record-keeping and accountability, and dedication of loyalty to the individuals who accountability, and dedication of loyalty to the individuals who appointed you and can promote you.” appointed you and can promote you.”

Former Public Servant quoted in Gomery, Former Public Servant quoted in Gomery, RecommendationsRecommendations, 35., 35.

““Don’t write it if you can say it. Don’t say it if you can nod.”Don’t write it if you can say it. Don’t say it if you can nod.” ““We kept minimum information on the file in case of an access We kept minimum information on the file in case of an access

to information request.” to information request.” Chuck GuiteChuck GuiteTestimony to Pubic Accounts Committe, April Testimony to Pubic Accounts Committe, April

20042004


malicious non-compliancemalicious non-compliance adversarialismadversarialism neglect/maladministrationneglect/maladministration


malicious non-compliancemalicious non-compliance adversarialismadversarialism neglect/maladministrationneglect/maladministration

– ““Year after year, information commissioners have asked Treasury Year after year, information commissioners have asked Treasury Board ministers to provide adequate (not extravagant) funds to Board ministers to provide adequate (not extravagant) funds to enable commissioners to effectively discharge the duties enable commissioners to effectively discharge the duties Parliament gave them. The requests are routinely denied or pared Parliament gave them. The requests are routinely denied or pared down to bare bones. Year after year, the Information down to bare bones. Year after year, the Information Commissioner’s workload of complaints increases and, without Commissioner’s workload of complaints increases and, without adequate resources, the backlog of incomplete investigations also adequate resources, the backlog of incomplete investigations also increases. Now, it ranks at an all-time high; it represents more than increases. Now, it ranks at an all-time high; it represents more than a full year of work for every one of the commissioner’s 23 a full year of work for every one of the commissioner’s 23 investigators.” OIC, Annual Report, 2004-2005investigators.” OIC, Annual Report, 2004-2005

Explaining Government Explaining Government ResistanceResistancemedia (and Opposition) use of ATIAmedia (and Opposition) use of ATIA

more expertmore expert more aggressivemore aggressive more frequent/visiblemore frequent/visible more damagingmore damaging

– has media/opposition use of ATIA been has media/opposition use of ATIA been irresponsible?irresponsible?

what would Good say?what would Good say?

ATIA and the Sponsorship ATIA and the Sponsorship ScandalScandalDaniel Leblanc (Globe and Mail)Daniel Leblanc (Globe and Mail)

first ATIA request, September 1999first ATIA request, September 1999 provoked internal audit (requested February 2000)provoked internal audit (requested February 2000)

““Public disclosure of the Sponsorship Program Public disclosure of the Sponsorship Program was the result of efforts by a diligent journalist was the result of efforts by a diligent journalist whose access to information request resulted in whose access to information request resulted in knoweldge about the Program, to the public and knoweldge about the Program, to the public and parliamentarians alike, for the first time.”parliamentarians alike, for the first time.”

Gomery, Vol.1, Gomery, Vol.1, 431.431.

role of PWGSC ATIA officerrole of PWGSC ATIA officer

Freedom of InformationFreedom of Information

basic description of the FOI regimebasic description of the FOI regimeFOI and the context of the Sponsorship FOI and the context of the Sponsorship

ScandalScandal



Scandal (summary)Scandal (summary)– government resistance to FOIgovernment resistance to FOI

decreased concern that irregularities could be decreased concern that irregularities could be exposed by FOI requestexposed by FOI request



Scandal (summary)Scandal (summary)– government resistance to FOIgovernment resistance to FOI

decreased concern that irregularities could be decreased concern that irregularities could be exposed by FOI requestexposed by FOI request

– diligent media effortdiligent media effort successful (against the odds)successful (against the odds)



ScandalScandalFOI and the Gomery RecommendationsFOI and the Gomery Recommendations

Gomery Recommendations re: FOIGomery Recommendations re: FOI

mandatory record-keepingmandatory record-keeping– necessary due to earlier effects of FOI on necessary due to earlier effects of FOI on

internal record-keepinginternal record-keeping


mandatory record-keepingmandatory record-keeping– Recommendation #16: The Government should Recommendation #16: The Government should

adopt legislation requiring public servants to adopt legislation requiring public servants to document decisions and recommendations, and document decisions and recommendations, and making it an offence to fail to do so or to making it an offence to fail to do so or to destroy documentation recording government destroy documentation recording government decisions, or the advice and deliberations decisions, or the advice and deliberations leading up to decisions.”leading up to decisions.”


mandatory record-keepingmandatory record-keepingamendments to ATIAamendments to ATIA

– extension to federal government institutions not extension to federal government institutions not currently coveredcurrently covered

– limiting of exemptionslimiting of exemptions reorientation from categorical exemptions to injury testreorientation from categorical exemptions to injury test reduce the kinds of records subject to injury testreduce the kinds of records subject to injury test

– broadening the IC’s powersbroadening the IC’s powers

Federal Accountability Act Federal Accountability Act (Proposed) 2006(Proposed) 2006

Expand the coverage of the act to all Crown corporations, Officers of Expand the coverage of the act to all Crown corporations, Officers of Parliament, foundations and organizations that spend taxpayers’ money or Parliament, foundations and organizations that spend taxpayers’ money or perform public functions. perform public functions.

Give the Information Commissioner the power to order the release of Give the Information Commissioner the power to order the release of information. information.

Subject the exclusion of Cabinet confidences to review by the Information Subject the exclusion of Cabinet confidences to review by the Information Commissioner Commissioner

Oblige public officials to create the records necessary to document their Oblige public officials to create the records necessary to document their actions and decisions. actions and decisions.

Provide a general public interest override for all exemptions, so that the public Provide a general public interest override for all exemptions, so that the public interest is put before the secrecy of the government. interest is put before the secrecy of the government.

Ensure that all exemptions from the disclosure of government information are Ensure that all exemptions from the disclosure of government information are justified only on the basis of the harm or injury that would result from justified only on the basis of the harm or injury that would result from disclosure, not blanket exemption rules. disclosure, not blanket exemption rules.

Ensure that the disclosure requirements of the Access to Information Act Ensure that the disclosure requirements of the Access to Information Act cannot be circumvented by secrecy provisions in other federal acts.cannot be circumvented by secrecy provisions in other federal acts.

Federal Accountability Act (Tabled) Federal Accountability Act (Tabled) 20062006 Expand the coverage of the act to all Crown Expand the coverage of the act to all Crown

corporations, Officers of Parliament, foundations corporations, Officers of Parliament, foundations and organizations that spend taxpayers’ money or and organizations that spend taxpayers’ money or perform public functions. perform public functions.

provide a duty for institutions to assist requesters provide a duty for institutions to assist requesters without regard for their identity, and clarify the without regard for their identity, and clarify the time limit for making a complaint under the ATIAtime limit for making a complaint under the ATIA– no penalties or mechanisms to ensure complianceno penalties or mechanisms to ensure compliance

release a discussion paper to “highlight a variety release a discussion paper to “highlight a variety of issues and options for discussion”of issues and options for discussion”

Federal Accountability Act Federal Accountability Act (Proposed) 2006(Proposed) 2006

Expand the coverage of the act to all Crown corporations, Officers of Expand the coverage of the act to all Crown corporations, Officers of Parliament, foundations and organizations that spend taxpayers’ money or Parliament, foundations and organizations that spend taxpayers’ money or perform public functions.perform public functions.

Give the Information Commissioner the power to order the release of Give the Information Commissioner the power to order the release of information. information.

Subject the exclusion of Cabinet confidences to review by the Information Subject the exclusion of Cabinet confidences to review by the Information Commissioner Commissioner

Oblige public officials to create the records necessary to document their Oblige public officials to create the records necessary to document their actions and decisions. actions and decisions.

Provide a general public interest override for all exemptions, so that the public Provide a general public interest override for all exemptions, so that the public interest is put before the secrecy of the government. interest is put before the secrecy of the government.

Ensure that all exemptions from the disclosure of government information are Ensure that all exemptions from the disclosure of government information are justified only on the basis of the harm or injury that would result from justified only on the basis of the harm or injury that would result from disclosure, not blanket exemption rules. disclosure, not blanket exemption rules.

Ensure that the disclosure requirements of the Access to Information Act Ensure that the disclosure requirements of the Access to Information Act cannot be circumvented by secrecy provisions in other federal acts.cannot be circumvented by secrecy provisions in other federal acts.

Implications of FOI Reform?Implications of FOI Reform?

criticisms...criticisms...– shifting values?shifting values?

Values of the Values of the New Public ManagementNew Public Management

New PublicManagement

Traditional PublicAdministration

Values entrepreneurship,flexibility, creativity

prudence, stability,probity,accountability

Risk Tolerance risk taking risk averse

Accountability accountability byresults

processaccountability

Structures decentralized,partnerships,contracts

hierarchical,centralized


criticisms...criticisms...– shifting values?shifting values?– breaking the bargain?breaking the bargain?


criticisms...criticisms...– shifting values?shifting values?– breaking the bargain?breaking the bargain?– what will determine whether one is particularly what will determine whether one is particularly

concerned about shifting away from NPM or concerned about shifting away from NPM or breaking the traditional bargain???breaking the traditional bargain???

Freedom of Information (Cont’d)

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