The problem with democracy is that it cannot be guaranteed to function as it is supposed to, that is to keep the populace convinced that they are in control and know what is going on. Sometimes the populace can get grumpy and convinced that they are being screwed. Access to information may confirm their grumpiness. In the interests of keeping the people happy then, we must have an Access to Information Act (to assure people that they can know what is happening) but one that really denies them access to information (to guarantee that they cannot know what is happening).
Access to Frustration
AMIR ATTARAN
From Tuesday's Globe and Mail
June 10, 2008 at 7:55 AM EDT
Next month is the 25th anniversary of Canada's Access to Information Act. But there is little to celebrate, as the system, which underpins Canadians' right to know what their government is doing, is more damaged and dysfunctional than ever. Sadly, the man whose job it is to defend that system, Information Commissioner Robert Marleau, is proving to be a large part of the problem.
Earlier this month, Mr. Marleau delivered his first annual report to Parliament. It showed that the queue of Canadians unable to receive information from the federal government now numbers 2,318, longer than ever before. That backlog almost doubled in Mr. Marleau's first full year in the job. What this means is that thousands of Canadians, including journalists, professors, parliamentarians, businesses, and concerned citizens, are waiting longer than ever before for information that is increasingly out of date. The act says that Canadians are entitled to have the government fully answer an information request within 30 days. But several government departments, in particular the Privy Council Office, are routinely extending that deadline by half a year. The Department of Foreign Affairs is sending out letters informing Canadians their requests will be abandoned unless they insist otherwise.
Delays of a year are common.
How is it that a right to access information in 30 days can turn into a wait of years? Simply put, the federal government is exploiting a loophole.
Under the act, no Canadian who believes he or she has been wrongfully denied information by the government may apply to the courts for a remedy, unless he or she first complains to the Information Commissioner, who must then carry out an investigation before any court action can proceed. Earlier this decade, such investigations were said to take 30-120 days, but Mr. Marleau is letting complaints languish for months or years.
The commissioner is frank: "I can tell you that I have and will have a bias against going to court," he testified to Parliament, shortly after Prime Minister Stephen Harper asked him to take the job. "It usually costs the taxpayer a lot of money and the outcomes are typically unpredictable." By dolorously sifting through the 2,318 public complaints in his queue, Mr. Marleau stalls those complainants from reaching court and keeps information secret - which suits his "bias" and delights the government, too.
The latest statistics show Robert Marleau's working style is more lapdog than watchdog. Not only is he obstructing citizens from having their day in court, but in his first full year in the job, he initiated zero court cases against government secrecy. He also initiated zero complaints against government departments that have systemic problems meeting their access to information obligations. By comparison, a year earlier, during which his predecessor mostly ran the office, there were 393 complaints of the systemic kind.
Instead of dealing with these issues, Mr. Marleau has been busy trying to revamp the system, to make it more exclusive and consensual, and less answerable to ordinary people.
Today Mr. Marleau is holding a closed-door, invitation-only, off-the-record meeting in Ottawa's Rideau Club to brainstorm on modernizing access to information. Among his suggestions to solve the backlog problem is a proposed "triage" system for which Mr. Marleau is seeking endorsement. As part of that plan, a limited number of complaints from parliamentarians and journalists would be "put in a priority queue," while ordinary Canadians wait their turn.
This elitist idea should be rejected. The thousands of Canadians who make access to information requests are not to blame for the system's parlous state, and are exercising a right the courts have repeatedly called "quasi-constitutional." Mr. Marleau proposes a quasi-constitutional principle that divides Canadians into two classes: those who are entitled to timely information about their government, and those who are not.
Not every problem with the access to information system is Mr. Marleau's fault. The job is difficult, and has become much more so, with the current climate of secrecy in Ottawa and recent amendments to the act. But on his watch, the right to government information has suffered greatly.
Parliament should demand explanations, backed by rational evidence, for Mr. Marleau's anemic performance. Parliament could then decide whether to fire him, as, regrettably, may be best.
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