By Jayme Poisson
2016 Greg Clark Award Recipient
Frustrating. That’s how I would describe my experiences using Canada’s access-to-information laws—laws that are supposed to help the public obtain government-held records.
Since I first started filing requests I have been denied information that seems to fit within the very definition of the public interest, like a request for police reports that deal with officers who turn off their in-car cameras. Replies have included fee estimates that ran tens of thousands of dollars, like one of my requests for reports about people with disabilities who have been physically restrained in government care. Other requests have been delayed by years, like a request for reports on funding projects in Libya that took two years to come back. I received a single page of information.
That’s why, last year I applied for the Greg Clark Award, which allowed me to spend time in the offices of the Ontario and federal information commissioners with the goal of better understanding my frustrations with this system, and to possibly learn how to alleviate some of them.
Thanks to the generosity of the people working in both offices—particularly Ontario commissioner Brian Beamish (pictured bottom left) and federal commissioner Suzanne Legault (pictured in left photo, left side, with the author)—I’m now more confident in managing my current requests and making future ones.
Although my frustrations haven’t gone away, my experience taught me two things:
1) Using access-to-information, while imperfect, can work for you if you work with it.
2) It would work a whole lot better with the implementation of some long-suggested improvements that journalists should be fighting harder for.
How the system can work if you work with it:
During my time at both offices, I was able to talk off-the-record with the dedicated public servants who are experts in the access-to-information laws (which govern what records should and should not be released) of Ontario and Canada.
These conversations taught me that successful requests are directly related to understanding the laws themselves, while keeping on top of decisions and materials produced by the commissioners’ offices, as well as the courts.
For example, while the acts provide a general right to access records, they also include many exemptions (provisions that allow or require a public institution to deny the records.)
One exemption in the provincial act allows a public institution to refuse the release of records that deal with “advice or recommendations” given by other government employees. The subsection of this exemption, however, has an exception for “factual material.” This can be helpful to journalists, who can request the underlying facts — such as a study or survey — that informed a government decision. I like to think of it as a workaround, or the next best thing to documents that would fall under “advice.”
There are also several exemptions in both acts that do not apply where there is “a compelling public interest” that outweighs the purpose of the exemption.” This is a good one for journalists.
For example, Toronto Police initially rejected my colleague Jesse McLean’s request for police notes created during the Rob Ford investigation, citing an exemption that protects personal privacy. On appeal, the adjudicator agreed that
the public interest outweighed the purpose of that exemption and ordered many of the requested records released. Here is Jesse’s story
based on those records. Being aware of recent decisions, like this one, can give journalists ideas for the types of records they may want to request in the future.
Materials prepared by the offices can also be a useful resource. For example, this guide,
prepared by the Ontario office, explains how governments can “de-identify” data so that it may be released without breaching personal privacy (another exemption). I’ve found it to be a helpful reference when crafting requests for data.
Employees I spoke with at both offices, as well as access-to-information experts I have been in touch with as a result of this experience, have also encouraged me to spend more time identifying the types of records a public institution has in its possession.
As a result, I am now working with a group of reporters at the Star, requesting something called “record retention schedules” from institutions across the country. These retention schedules are essentially the record-keeping blueprint of an institution and are helping us identify records we never knew existed.
One expert in access-to-information law directed me to this research study
from the UK that found access requests were more successful for routine applications than asking for information through more informal methods.
I don’t know if the results of this study would hold true in Canada. But I do think that the built in checks that come with making a formal access-to-information request, including the option for appeal or complaint, can ensure institutions comply. I cannot see another scenario in which the police would have just handed Jesse notes from their officers.
How can the system be improved?
Neither the Ontario
access-to-information laws (they are similar but each have their own distinctive features and the Ontario laws also cover municipalities in the province) have been substantially updated since they were introduced in the 1980s. Commissioners Legault and Beamish have made dozens of recommendations. Here are Legault’s 85 recommendations
. In his 2015 annual report,
Beamish also makes a series of recommendations. The unfortunate reality is that many of these recommendations are not new. Access experts have been making them for years.
Until recently, there has been little political will to make these changes. The federal government has now promised to update Canada’s act, and a parliamentary committee made 32 recommendations
in June. It’s unclear how many recommendations the government will implement, though, to their credit, they recently did away with fees that can make requesting information prohibitive. Federal requests now cost $5, and that’s it.
But while commissioner Beamish has called for a review of the act, the Ontario government has made no moves to do the same. This is disappointing.
I discussed some of the recommendations that I believe would make it easier for journalists to obtain government-held records in a guest blog
I wrote for Commissioner Legault and on a recent panel at Carleton University.
They include, but are not limited to:
• Putting into place a stronger public interest override clause that applies to all exemptions.
• Narrowing overly broad exemptions like “advice and recommendation” in the federal act. Commissioner Legault has recommended an institution have to show releasing the records would cause injury.
• In the Ontario act, I would like the see a provision that carves documents related to employer-employee relations out of the scope of the act re-written. I believe this provision is being used to deny the release of important records (such as police reports dealing with officers who turn off their in-car cameras).
• Expanding coverage of the acts (the Prime Minister and Ministers’ offices are not covered by it. Neither is the Canadian Olympic Committee, even though it receives millions of dollars in government funding.)
• Shortening lengthy timelines.
The panel I spoke on, with fellow journalists Sean Holman, now a Mount Royal University journalism professor, and Justin Ling, features editor at Vice Canada, commemorated Right to Know Week – an annual week intended to raise awareness of the public right to access government information.
Holman, who is writing a book on the history of access-to-information in Canada, talked at length about the historical failings of journalists to advocate for better access-to-information laws. (His research on this subject is fascinating. You can watch his remarks and the rest of the panel here.
My time in the commissioners’ offices taught me how the shortcomings of our laws, and government inaction, have had serious consequences: Information that is of a vital public interest continues to be kept secret.
I hope that I can continue to learn about and advocate for access-to-information in Canada. As frustrating as it is, I believe now more than ever that it’s something worth fighting for.
Watch Jayme Poisson speak about Freedom of Information in Canada on TVO’s The Agenda
To read more about the Greg Clark Award, visit the award page.
The Canadian Journalism Foundation would like to thank the following for for their generous support of the 2016 Greg Clark Award: