The pandemic is killing government transparency

OPINION: Canada’s freedom-of-information system has never been perfect, but we owe to it our freedom and democracy. Its erosion during COVID-19 is an erosion of our society
By Ethan Lou - Published on Nov 03, 2020
The FOI system allows anyone to request files from nearly any arm and level of government for a $5 fee. (Jonathan Hayward/CP)

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Maybe she just doesn’t talk to many people. 

“Not once has a Canadian asked me to put more resources into freedom-of-information [FOI] officers,” Patty Hajdu, the federal health minister and Thunder Bay–Superior North legislator, resolutely said in October. 

Please, Minister, talk to this Canadian.

As a journalist and frequent FOI-request filer, I see one of the most underrated consequences of the pandemic as the breakdown of the system that deals with such requests. And that matters to everyone, even if it does not get a lot of attention.

The system, which allows anyone to request files from nearly any arm and level of government for a $5 fee, may appear at first glance to be an insular, Ottawa-bubble issue. After all, when the Liberal Hajdu made her clever remark, she was bickering in the House of Commons with her Conservative colleague Michelle Rempel Garner, who had complained about delays with information requests from opposition parties — it already sounds boring.

But information uncovered through FOI requests has changed policy, ousted officials, and reopened criminal cases. The system has effected positive change. The fact that someone is watching also helps keep those in power honest. Canada’s FOI regime has never been perfect, but we owe to it our freedom and democracy. The erosion of that system under the pandemic is an erosion of our society.

In April and August, I filed at least 14 requests. Only two were completed within the legislatively mandated 30 days — one of them of the “we can neither confirm nor deny that the records you requested exist” type. Agencies do have the ability to invoke extensions, but what I experienced went beyond that.

Among the worst offenders is an Ontario ministry. I can find no information on the website on how to file such a request. So, at the beginning of August, I emailed to ask. An employee responded, “Please advise on the type of information you are seeking, so I would better be able to assist.” I responded within six minutes — and then never heard back from her.

I ended up filing a request anyway, making a guess at the procedure based on past experience — Ontario ministries, unlike some of their federal counterparts, require you to mail in your request with a cheque. That was what I did. Only toward the end of October did I get a response. The ministry has just started to work on it. The 30-day clock had just started ticking, two months after I had filed my request. I experienced that with one federal department as well.

Federally, the official term is Access to Information, while Freedom of Information is the nomenclature for provinces and municipalities, although FOI is informally used as a blanket term. Both systems have always been less than ideal. In the past, I have been on the receiving end of lengthy delays for my requests. But there was at least a timely acknowledgement and a reasonable level of responsiveness: “Yes, we have received your request. Now bugger off.” Amid the pandemic, I am seeing an unprecedented deterioration in the standards of the FOI process.

One federal department insisted that part of my request was “too broad.” I disagreed but did not press the matter. “I'll be happy to consider alternatives if you have any suggested rephrases,” I wrote. No response. 

To be sure, it’s not these government workers’ fault. They are overworked, probably dealing with thousands of other pesky people like me. In one instance, what appeared to be a federal departmental mix-up resulted in two different analysts working on my request, one month apart, seemingly unaware of each other’s existence.

In her exchange with Hajdu, Rempel Garner had brought up a Winnipeg Free Press report that says “less than half of national agencies and departments [are] fully processing freedom of information requests amid the COVID-19 pandemic.” Data the Free Press obtained “show the vast majority of federal departments opted against deeming FOI requests a critical service.”

In times of crisis, prioritizing certain services over others is understandable, even necessary. When lives and livelihood are at stake with the pandemic, we may be forced to abandon our higher principles. But there needs to be an end to that. States of emergency are meant to be temporary. 

Arguing purely on principle, there should be no need to provide a rationale for why a good FOI regime is necessary. Transparency is not a privilege but a right, and a right needs no justification, for the books of the government are the books of the people. 

But even if principle is abandoned: pragmatically speaking, without a strong FOI regime, something important is lost.

I have broken many stories through FOI requests, including the spy agency’s secret briefing to Parliament about Russian and Chinese interference, the snubbing of Sri Lanka by Prime Minister Justin Trudeau, and the possible non-depiction of the future King Charles on Canadian bank notes. I’ve revealed that the government extended its military deployment in South Sudan despite concerns about its soldiers’ safety — and even the entire mission's viability — after a senior official said that doing so served the Liberal party’s political goals. These are matters the public deserves to know.

A recent bombshell report in the Globe and Mail that revealed systemic racial bias in the prison system was based on an FOI request. In its wake, legislators from all parties on a House of Commons committee said they support a study on the matter. 

Another FOI-intensive effort is “Tainted Water,” a cross-media collaboration facilitated by Concordia University’s Institute for Investigative Journalism, which sparked immediate action from governments across the country on unsafe drinking water. 

The former vice-admiral Mark Norman, accused of leaking secrets, eventually had his criminal charges stayed through a legal strategy heavy on FOI requests. And there are plenty of other such examples.

Now imagine all these examples gone. Imagine all the sordidness lying undisturbed under the rug, all the wrongs that have not been made right, and all the evil-doers emboldened by the dark. Set against the greater threat of the pandemic, access to government documents may not mean much, but the erosion of the FOI system is one small step toward a meaner world.

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