Feds Want a More Restrictive Transparency Regime

By Ken Rubin

October 9, 2017 - Successive bureaucrats have wanted to put dampers on the public use of access to information legislation. Now they have found hope in Bill C-58 and a willing dupe in Treasury Board President Scott Brison.

While Prime Minister Trudeau can be counted on to have flights of open government flowery rhetoric, faceless bureaucrats have held to their beliefs that access users are to be tamed.

With an accepting majority government, they can ram through phase-one Bill C-58 “transparency reforms”that included convincing a receptive Prime Minister and Ministers that even minimal administrative ministerial documents should not be part of formal access legislation coverage in Bill C-58.

The House' second reading debate on Bill C-58 late last month provided opposition parties a chance to vent. But the Liberals appear in no mood to grant any major concessions and seem overconfident that they can in the next two or three months smoothly get Bill C-58 after committee hearings made into the law of the land without significant amendments.

It has been left to outgoing Information Commissioner Suzanne Legault in her special report to Parliament to trash, clause by clause, Bill C-58 overtly anti-user and pro-secrecy amendments.

For Legault, the crowning indignity was that the commissioner's role would be brutally emasculated. It was that and declaring users persona-non-gratis for wanting real and full government data that made the bill largely regressive in her analysis. She saw the need for more, not less checks being placed on Ottawa's bureaucrats' secrecy practices although she stopped well short of advocating an end to Ottawa's top-down exemption regime.

An NGO coalition of 35 groups and 26 individuals, lead by Toby Mendel of the Halifax-based Center for Law and Democracy (CLD), has spoken up and demanded that Bill C-58 be withdrawn as inadequate.

But their opposition was in part muted by agreeing with Mendel that Bill C-58 still provided a slight three-point CLD-defined rating advance to transparency. That thumbs-up "increase" was largely based on a misreading of the proposed Information Commission's order powers as something to claim as an improvement. But it took away from the coalition's credibility and punch.

Fortunately, Legault's analysis pointed out the exact opposite, showing how the proposed Commissioner Office was being set up for failure and for the courts and government agencies to make mincemeat of the office's scaled-back review powers.

An April 28, 2016 Treasury Board access record I received had indicated the government and its bureaucrats would be proposing a “narrower” role for the information commissioner than the commissioner and others were seeking.

A Globe and Mail cartoon put out on International Right to Know Day on September 28 said it all. There, the Trudeau regime was portrayed as a guy wearing heavy boots with colorful red socks imprinted with a Pinocchio character increasingly lying about his government's openness.

That it would come to this should have been foreseen in third-party leader Justin Trudeau's private member's transparency Bill C-613 in 2014, where his proposals were not too progressive and even counter productive.

Whether the younger shining newly made party leader NDP Jagmeet Singh or the stop-all-Liberal-financial-and-environmental-schemes Conservative Andrew Scheer eventually fills Trudeau's boots remains to be seen. But would they too once in government equally repress any solid attempts at transparency advances?

British Columbia is a case in point where hopes of reform could be dashed by the NDP-Green Party government. The best indicator to look for to see if the new BC government is serious about a package of transparency reforms is if it includes and implements an effective legislated duty to document its key moves by the end of this year.

For that matter, is there anywhere in Canada where there is a government on the horizon with an appetite for dramatically wanting and implementing better FOI legislation?

The Trudeau government's disdain for transparency is well-illustrated by the sparse data it provides on its secretive infrastructure funding dealings. This deficit in infrastructure information was raised as a major failing by the Parliamentary Budget Officer in early 2017. 

Since then, the majority Liberal government rammed the Canada Infrastructure Bank Act through Parliament where government-corporate transactions can be legally dealt with in total secrecy. 

Now, a B.C. based Columbia Institute study by researcher Keith Reynolds has reviewed just how much contempt there is not just federally but in all Canadian FOI legislation for the public right to know about public-private partnership infrastructure projects.

I can draw on an example on just how reluctant governments and their corporate allies are when it comes to releasing infrastructure data from my own access experience.

The multi-national consortium Rideau Transit Group (RTG), whose building a $2.1 billion light rail transport project in Ottawa, wants only partially data released.

RTG has gone to the Ontario information commissioner to stop the rest of the data from being released.  I am fighting their commercial confidentiality objections and the City of Ottawa's none-too-thorough-a-search attempts to hide details on its construction job.

So it is not just the the establishment and financing of infrastructure projects that is largely censored, as the Columbia Institute study points out that's happening. It's also that data on how environmentally sound, how safe and how well-built these projects are that is being kept under wraps.

One bright spot has been successful pressure brought by groups like Open Pharma to get sunshine transparency legislation on the books that reveals health professionals,  doctors in particular, receiving extra incomes from pharmaceutical companies gifts, payments and perks.

Ontario is the first Canadian government introducing some disclosure requirements. Mind you, this is a baby step in revealing much about drug companies as most of the data on their products' safety, pricing and licensing is still hidden by public authorities.

Groups like Mining Watch Canada are fighting as well for better disclosure for problematic Canadian mining operations abroad. They are campaigning for an independent Canadian mining ombudsperson to review and report on company environmental, safety and brutal security practices.

But as access records reveal, mining companies are adamantly against the Trudeau government pushing for better corporate social responsibility measures that could shed light on some of the worse practices of companies operating abroad.

Further, groups like Open Media and the International Civil Liberties Monitoring Group (ICMLG) are pushing for greater public access to and restrictions on security agencies' use of hidden meta data and mass surveillance. The groups face an uphill battle in wanting restrictions on what security agencies can do being put in place in upcoming Bill C-59, the national security legislation.

So far, however, access records indicate the government does not want its security agencies to be under effective review or subject to greater transparency. This includes limiting what is provided to or reviewed by the as-yet-unnamed secretive parliamentarians' security and intelligence committee, a committee established under Bill C-22.

Groups like the BC Civil Liberties Association, along with the Privacy Commissioner Daniel Therrien, are fighting for better privacy protection legislation and greater transparency to expose companies and government secretive actions in using Canadians' personal data.

But companies like SCN-Lavalin Group Inc. and governments are soft pedaling greater transparency in prosecuting corporate wrongdoings. The current fury over potential high-import duties Bombardier could face in the United States has not in the slightest made Canadian governments willing to reveal much more about their full dealings with Bombardier.

The latest News Media Canada (NMC) annual audit of local, provincial, and federal freedom-of-information legislation gives the Trudeau government an even worse failing grade than it gave the Stephen Harper government for its delays that hold up timely public disclosures.

Bill C-58, News Media Canada says, will only add more obstacles, allowing rejection of access requests, not only as vexatious, but because of their size and scope. NMC wonders if Bill C-58 is just a restrictive coverup for bureaucrats' poor access-to- information performances and their resistance to access disclosure.

Bill C-58 wants to place the more pesky access users on a do-not-respond and shame list. It wants to avoid increasing Canadians' ability to obtain much government information. It demands more flexibility, less review and more authority in applying the over 500 ways of saying no. This is much to the delight of those senior officials, politicians and special interests wanting to continue lording it over the public.

It's definitely a time for access users and the public to double down and fight back in the trenches over growing secrecy and control efforts that threaten to break even further the access system, usage and accountability.

Ken Rubin has reviewed the limits of government access proposals since the nineteen-seventies, and here in The Hill Times for the last 15 years. He is an investigative public interest researcher, author and Senior Fellow at the Centre for Free Expression. Ken is reachable at kenrubin.ca

This story was first published by The Hill Times on October 9, 2017, and is republished here with the author's and The Hill Times' permission.