Freedom of Information (Cont’d)

4. Freedom of Information (Cont’d) Promise and Perils November 30th, 2006

5. Strategies of Resistance • malicious non-compliance • adversarialism • amberlighting

8. Strategies of Resistance • malicious non-compliance • adversarialism • amberlighting • disclosure of identities of requestors

10. Strategies of Resistance • malicious non-compliance • adversarialism • amberlighting • disclosure of identities of requestors • pressure on ATIA officials

11. Strategies of Resistance • malicious non-compliance • adversarialism • amberlighting • disclosure of identities of requestors • pressure on ATIA officials • avoidance of record-keeping

12. Adversarialism – Avoidance of Record-Keeping • “The management culture has changed dramatically over the past 20 years from solid record-keeping, accountability and dedication to the public service and loyalty according to our oath of office to Canada, to avoidance of record-keeping and accountability, and dedication of loyalty to the individuals who appointed you and can promote you.” Former Public Servant quoted in Gomery, Recommendations, 35. • “Don’t write it if you can say it. Don’t say it if you can nod.” • “We kept minimum information on the file in case of an access to information request.” Chuck Guite Testimony to Pubic Accounts Committe, April 2004

14. Strategies of Resistance • malicious non-compliance • adversarialism • neglect/maladministration

15. Strategies of Resistance • malicious non-compliance • adversarialism • neglect/maladministration • “Year after year, information commissioners have asked Treasury Board ministers to provide adequate (not extravagant) funds to enable commissioners to effectively discharge the duties Parliament gave them. The requests are routinely denied or pared down to bare bones. Year after year, the Information Commissioner’s workload of complaints increases and, without adequate resources, the backlog of incomplete investigations also increases. Now, it ranks at an all-time high; it represents more than a full year of work for every one of the commissioner’s 23 investigators.” OIC, Annual Report, 2004-2005

16. Explaining Government Resistance • media (and Opposition) use of ATIA • more expert • more aggressive • more frequent/visible • more damaging • has media/opposition use of ATIA been irresponsible? • what would Good say?

17. ATIA and the Sponsorship Scandal • Daniel Leblanc (Globe and Mail) • first ATIA request, September 1999 • provoked internal audit (requested February 2000) • “Public disclosure of the Sponsorship Program was the result of efforts by a diligent journalist whose access to information request resulted in knoweldge about the Program, to the public and parliamentarians alike, for the first time.” Gomery, Vol.1, 431. • role of PWGSC ATIA officer

18. Freedom of Information • basic description of the FOI regime • FOI and the context of the Sponsorship Scandal

19. Freedom of Information • basic description of the FOI regime • FOI and the context of the Sponsorship Scandal (summary) • government resistance to FOI • decreased concern that irregularities could be exposed by FOI request

20. Freedom of Information • basic description of the FOI regime • FOI and the context of the Sponsorship Scandal (summary) • government resistance to FOI • decreased concern that irregularities could be exposed by FOI request • diligent media effort • successful (against the odds)

21. Freedom of Information • basic description of the FOI regime • FOI and the context of the Sponsorship Scandal • FOI and the Gomery Recommendations

22. Freedom of Information • basic description of the FOI regime • FOI and the context of the Sponsorship Scandal • FOI and the Gomery Recommendations

23. Gomery Recommendations re: FOI • mandatory record-keeping • necessary due to earlier effects of FOI on internal record-keeping

24. Gomery Recommendations re: FOI • mandatory record-keeping • Recommendation #16: The Government should adopt legislation requiring public servants to document decisions and recommendations, and making it an offence to fail to do so or to destroy documentation recording government decisions, or the advice and deliberations leading up to decisions.”

25. Gomery Recommendations re: FOI • mandatory record-keeping • amendments to ATIA • extension to federal government institutions not currently covered • limiting of exemptions • reorientation from categorical exemptions to injury test • reduce the kinds of records subject to injury test • broadening the IC’s powers

26. Federal Accountability Act (Proposed) 2006 • Expand the coverage of the act to all Crown corporations, Officers of Parliament, foundations and organizations that spend taxpayers’ money or perform public functions. • Give the Information Commissioner the power to order the release of information.  • Subject the exclusion of Cabinet confidences to review by the Information Commissioner • Oblige public officials to create the records necessary to document their actions and decisions. • Provide a general public interest override for all exemptions, so that the public interest is put before the secrecy of the government. • Ensure that all exemptions from the disclosure of government information are justified only on the basis of the harm or injury that would result from disclosure, not blanket exemption rules. • Ensure that the disclosure requirements of the Access to Information Act  cannot be circumvented by secrecy provisions in other federal acts.

27. Federal Accountability Act (Tabled) 2006 • Expand the coverage of the act to all Crown corporations, Officers of Parliament, foundations and organizations that spend taxpayers’ money or perform public functions. • provide a duty for institutions to assist requesters without regard for their identity, and clarify the time limit for making a complaint under the ATIA • no penalties or mechanisms to ensure compliance • release a discussion paper to “highlight a variety of issues and options for discussion”

28. Federal Accountability Act (Proposed) 2006 • Expand the coverage of the act to all Crown corporations, Officers of Parliament, foundations and organizations that spend taxpayers’ money or perform public functions. • Give the Information Commissioner the power to order the release of information.  • Subject the exclusion of Cabinet confidences to review by the Information Commissioner • Oblige public officials to create the records necessary to document their actions and decisions. • Provide a general public interest override for all exemptions, so that the public interest is put before the secrecy of the government. • Ensure that all exemptions from the disclosure of government information are justified only on the basis of the harm or injury that would result from disclosure, not blanket exemption rules. • Ensure that the disclosure requirements of the Access to Information Act  cannot be circumvented by secrecy provisions in other federal acts.

31. Implications of FOI Reform? • criticisms... • shifting values?

32. Values of the New Public Management

33. Implications of FOI Reform? • criticisms... • shifting values? • breaking the bargain?

34. Implications of FOI Reform? • criticisms... • shifting values? • breaking the bargain? • what will determine whether one is particularly concerned about shifting away from NPM or breaking the traditional bargain???