Luke Neilson – Western Standard
Access to information and democracy go hand in hand. Freedom of information laws should encourage governments to obey our constitution and laws, to protect citizens against harmful policies and procedures and to provide citizens with the information they need to be informed democratic participants. Unfortunately, in Canada they do none of these things.
The Canadian freedom of information system is failing our democracy.
When freedom of information (FOI) requests are submitted to public institutions, those institutions are supposed to release whatever requested information can be legally released. While access laws in Canada recognize that some information can be legally withheld (to protect national security interests, for example,) the default is supposed to be openness and transparency. According to new analysis from the Globe and Mail, however, systemic shortcomings in our FOI system are leaving many Canadians in the dark.
In an analysis of 225 public institutions across Canada (including government departments and ministries,) the Globe and Mail found these institutions granted full document access to requesters only 21% of the time. They granted partial document access 49% of the time but they provided no documents, or they denied access altogether, a shocking 28% of the time. In another place, the Globe and Mail reported the Government of Alberta refused to respond to nearly two dozen FOI requests because the requested documents did not exist in “exactly” the same format as the ones possessed by the government. The governments of other provinces were more compliant.
Responses to FOI requests are sometimes appealed. In an analysis of 1,098 publicly available appeal decisions from 2022, the Globe and Mail found adjudicators often disagreed with government agencies about the legitimacy of withholding information from requesters. In cases where appellants expressed concern about the overuse of redactions, adjudicators found public institutions wrongfully withheld information in 59% of cases. The analysis also found that unnecessary redactions and exclusions had occurred in at least 68% of cases. Ninety-three percent of complaints about delays were found to be valid; public institutions conducted inadequate searches in approximately one-third of cases.
The legal framework for Canada’s freedom of information system ranks, according to The Centre for Law and Democracy, only 51st in the world.
Across Canada, freedom of information offices are underfunded and short staffed. As a result of backlogs, Canadian historians are often forced to learn about Canadian history through the national archives of other countries. Those who work in FOI offices are often inadequately trained. Public servants are advised by their advisors to wrongfully withhold information to avoid embarrassment or risk. While there may be severe consequences for violating privacy laws, there are insufficient legal or institutional penalties for failing to release information that can and should be released. Insufficient funding, inexperience, and disincentives all combine to create an inadequate and frustrating experience for Canadians wanting to learn about the activities of their public institutions.
In one case, a woman from Saskatchewan filed an FOI request to the Saskatoon Police Service to access the outcome of her own police complaint and the records she submitted to the police during the investigation. She was denied access to her own records. After two years, the records were finally released to her when an adjudicator determined that it “would be an absurd result” for the woman to be prevented from accessing her own information.
Her experience is the experience of many Canadians. Robyn Doolittle and Tom Cardoso of the Globe and Mail write, “Through hundreds of interviews, an analysis of thousands of government records and appeals decisions, as well as a national audit of FOI statistics and practices, this reporting has shown that — at a time of plummeting trust in government and institutions — every day, public bodies and governments at every level are breaking the law.”
John Carpay, president of the Justice Centre for Constitutional Freedoms and an advocate for government accountability says, “Every Canadian deserves the opportunity to access information about their public institutions. Canadian information belongs to Canadians, and it is disappointing to learn Canadian laws and institutions surrounding public information are prohibitive and secretive. This puts Canadians at a structural disadvantage in our country; secrecy empowers governments, not people.”
Public information belongs to Canadians, but a veil of secrecy is lying over our public institutions. Our democracy will fare the worse for it.
