Transparency in government isn’t a nice-to-have – it’s law

If anyone needs convincing that our freedom of information system is dysfunctional, and arbitrary, let me tell you about that time I sent the same FOI request to half a dozen police services – all of which possessed the same set of records – and only one responded with all the documents.

The others either didn’t reply, falsely claimed that the information was protected under various exemptions, or only provided portions of what I was asking for. Six FOIs. Six different answers.

Thankfully, because one FOI coordinator followed their legal obligations and released the requested documents, I was able to learn – through 250 pages of e-mails between a national network of media relations officers – that law enforcement agencies across Canada had coordinated a response to an investigation I was working on about police and sexual assault cases. Moreover, it was suggested that police services form a united front and refuse to comment on the Globe story.

I wrote a story, How Canadian police forces co-ordinated one response to The Globe’s queries, about this back in 2017. It’s one of my all-time favourite stories for several reasons. One, those e-mails provided an unfiltered look at the way that police communications officers view the media and their responsibility to be transparent. It showed that while, publicly, police services were promising change, privately, they had been annoyed at addressing questions about their conduct. Two, it showed the importance of FOI. Without such laws we would never know how some of these officials really felt. (I also used hundreds of FOI requests to collect the statistics in the Unfounded series.) And three, the fact that half a dozen other services ignored the FOI was such a clear example of how the system needs an overhaul.

The foundation of every access to information act in Canada (each province and territory as well as the federal government has its own legislation) is supposed to be that records are public by default – except in specific circumstances. For example, a private citizen’s personal information can’t be released through FOI. Access laws also protect against the release of records that could compromise national security, or a business’s trade secrets or an ongoing police investigation. These protections are enshrined through exemptions and they are supposed to be applied narrowly. 

Note: There is no exemption for “embarrassment.”

And yet, this is the reason, I suspect, that the other police services tried to keep me from getting those emails – because the conversation made them look bad. Sure, it’s possible there are other explanations. Maybe they had poor record-keeping and the files couldn’t be located. Or perhaps the FOI analyst was inexperienced and didn’t understand the legislation. Whatever the reason, the result is a loss of trust. 

And this is what is at stake. 

If people don’t trust government, they’re more likely to become swept up in conspiracy theories and fake news. And when media can’t access information that holds government to account, people become suspicious of the press. I think everyone understands that trust in institutions is cratering right now, which is why I’m so perplexed that our political leaders are not aggressively taking steps to be more transparent. To me, almost nothing is more important at this moment.

As part of the Secret Canada project, The Globe and Mail conducted an audit of how ministries and departments across Canada handle FOI. The results show that institutions are regularly missing their statutory deadlines, overusing redactions and failing to conduct proper searches. If the reason is a resource problem, then investments must be made – because this is about following the law. (Judges are not huge fans of the ol “we can’t comply with the law because it’s expensive” argument.)

I think this is the idea that’s missing whenever the topic of Canada’s broken access to information system comes up. Government transparency and openness isn’t a nice-to-have, it’s the law. When institutions make overzealous redactions or knowingly withhold records that should be released, they’re breaking the law. 

Public institutions belong to the people. The information those institutions hold belongs to the people. Politicians and public servants are working for and being paid by the people. And we have a right to know how our money is being spent and how our institutions are being run.

Look, I get it. Talking about the problems with freedom of information sounds like boring, inside baseball journalism speak. But FOI is the foundation of democracy. It’s long-past time to start treating access laws with the importance that they deserve.

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