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Opinion: No access gained from tepid Information Act review

If it is true that you can’t teach an old dog a new trick, I have regrettably discovered you can at least trick an old dog.
Freedom of information lacks the glamour of a pipeline protest or the heft of a trucking convoy.

If it is true that you can’t teach an old dog a new trick, I have regrettably discovered you can at least trick an old dog.

Here I find myself, hoaxed by a government I mistakenly thought was serious about its stated intention to improve upon a law crucial to the public interest – in this case, the federal Access to Information Act.

Instead, the two-and-a-half-year Treasury Board review of the law is the sort of walk-by one of the bored royal family members would conduct of a stiff-bodied military regiment in the colonies. It is decorous, ceremonial, uneventful and principally for show.

The review released shortly before Christmas could have been written years in advance – a milquetoast word-salad of “conclusions” about the law’s attributes in the guise of an examination that ultimately keeps safe the culture of denial by federal governments of all stripes since the law’s inception four decades ago.

Not a cage is rattled, not a practice critiqued.

My folly was in participating belatedly in a parallel review as a witness in November before a House of Commons access-to-information committee on the assumption that the Justin Trudeau government – Treasury Board included – was intent on further repairing the shambles of the law governing our right to know. It’s two hours I can’t get back and beyond me how a committee led by an opposition Conservative MP can eventually influence a government that produced such a tepid review while it was conducting its work.

I feel pranked, as I expect other committee witnesses might feel, as the committee itself should rightly feel.

The act is the lone instrument for the public to employ its right to seek information our federal government would wish not to release. The inherent conflict of interest, the inherent charade of the situation, is that the same self-interested government determines the boundaries of the law that might occasionally discomfort it. As you might expect, it has created quite the small sandbox in which we play.

Bill C-58 in 2019 made a modest effort to mitigate the law’s steady decline since its 1983 inception – it was helpful in reducing user fees. But the amended law’s first required review didn’t lay a glove on the undisputed legislative champion of concealment.

There is not one recommendation, not one commitment, not one directive.

The closest phrasing to any nudge into action in the 49-page report is that there should be “consideration” to better training and guidance for the public service on the value of open data. The closest phrasing to any criticism is that the government’s management of data “is the single greatest pain point” for the law.

The law suffers several staggering flaws, most of them fixable if the right culture were in place. There are hundreds of categories of records exempted from disclosure. There are many reasons the government can give to deny access. There are serious delays in processing requests for records. There are elements of the public service, including political aides, who are not subject to it. The law is best defined by what it doesn’t do.

Yet for journalists and others there is often no other choice but to resort to a request for records when government refuses to disclose. Newsrooms I’ve managed have filed more than 10,000 such requests – I’ve signed off on more than 3,000 of my own – but the insights they’ve yielded wouldn’t fill a thin book, so advantaged is government in the chase.

And this is not a Trudeau government issue. Conservatives and Liberals alike have treated the law as little more than a nuisance to thwart.

And this is not a federal government issue. The provincial Liberal and NDP governments have never made a serious pledge to it. The Canadian Association of Journalists even proclaimed the BC NDP government under John Horgan recipients of the 2021 Code of Silence award following amendments that created application fees for requests and exempted Horgan’s office from its reach. New premier David Eby hasn’t moved to walk back the damage.

In a discussion with Glacier Media journalists last week, BC Liberal leader Kevin Falcon reiterated he would fix the law, in particular to eliminate fees associated with it in his first 90 days as premier. Falcon asserted that he actually wants journalists to hold government accountable, to uncover mistakes in order to improve the standards of public office. He said it with a straight face, and if we get a chance after the next election, we will hold him to it.

As for the federal law, the Treasury Board report to Parliament clearly shows there are no imminent improvements to expect – no broadening of the law’s scope, no hastening of institutional response to requests, no changing of the culture that has made a mockery of its original ambitions.

Someone asked me the other day why governments get away with this. It’s because of us, I answered – us meaning journalists in part and the public in large measure. There are no public demonstrations of support for the right to know, no placard-waving pickets of government offices, no serious court challenges of the legislation’s exaggerated claims of access.

Freedom of information lacks the glamour of a pipeline protest or the heft of a trucking convoy; it is a nerdy, wonkish realm that has failed to mobilize the public into a lather about what it doesn’t get to know.

For its part, government has done well to neutralize public qualms by creating a mirage of partisan expression posing as important information. It stages the release of just enough policies and pronouncements to occupy our occupation’s time so as to impede us from investigation. The result is that we cover too much and uncover too little, which is exactly what every government of all persuasions prefers. Shame on them, shame on us.


Kirk LaPointe is publisher and executive editor of Business in Vancouver and vice-president, editorial, of Glacier Media.