The Federal Court's decision that the government should release the information it has on former NDP leader Tommy Douglas is an important ruling that shows federal institutions have a lack of respect for access laws, say experts. "If we treated many of the laws the way we treat access we'd have some significant problems, and in this case it's not ordinary citizens that are not respecting the letter of the law of access, it's government institutions," said Michel Drapeau, a lawyer who specializes in access to information.
Canadian Press reporter Jim Bronskill began his fight against Library and Archives Canada over the release of files on the late Tommy Douglas, the first leader of the federal NDP and the politician credited as the father of Canadian medicare in the fall of 2005. He made an access to information request to Library and Archives Canada, a few months ahead of the 20th anniversary of Mr. Douglas' death—a date which, due to privacy provisions, would mark an easing up on the strict closed-door policy on Mr. Douglas' files.
"I put it [the access request] in a bit before, a few months before, in 2005, and said look, this anniversary is coming up, I would like this file and could you start work on it," said Mr. Bronskill.
In early December 2005 Library and Archives wrote to Mr. Bronskill and informed him an extension of up to 390 days was needed to respond to his request, due to necessary consultations with CSIS.
Under the Access to Information Act, a government institution has 30 days to respond to an access request but, as was applicable in this case, if it's believed that information requested may contain "trade secrets" of a third party a consultation with that third party must take place.
The requested files on Mr. Douglas were gathered by the RCMP Security Service who shadowed Mr. Douglas for decades, attending his speeches and listening in on his private conversations. The RCMP Security Service was replaced by CSIS in 1984, after the Mountie intelligence service was disgraced by an inquiry into illegal acts by agents. The file on Mr. Douglas spans from the late 1930s up until just before his death in 1986; CSIS continued to shadow Mr. Douglas after taking over in 1984.
As a result of the necessary consultations with CSIS, as set out under section 27(4) of the access act, an extended time limit could be sought.
Mr. Bronskill, a well-seasoned access to information requester, said in his experience "extensions are the norm" but that 390 days is "a rather long one." Mr. Bronskill said in fairness, the files on Mr. Douglas were rather large, 1,142 pages. Size, coupled with the need for consultations, made it understandable that an extension would be needed, he said.
According to the Office of the Information Commissioner, the percentage of cases in which federal officials complete requests within the 30 day time frame has fallen in the past eight years, from nearly 70 per cent to 56 per cent.
"I would even go back 10 years ago. Somebody requesting a 60 day or a 90 day extension to a request, that would be the exception, maybe five or 10 per cent of the requests would be subject to this. Now, it's not unusual to receive a letter back asking for 150, 180 days, and almost 90 per cent of the requests are subject to this kind of extension," Mr. Drapeau said. "It's almost as if there is no embarrassment."
In December 2006, more than a year after Mr. Bronskill's ATI request, Library and Archives wrote him to indicate that 456 records from Mr. Douglas's file could be disclosed but that the remainder of the records were being withheld under section 15 and 19 exemptions provided by the Access Act.
Under section 15 of the Access Act, which grew to become the main section of concern in Mr. Bronskill's fight, the head of a government institution can refuse to disclose any records containing information which could "reasonably be expected to be injurious" to "the detection, prevention or suppression of subversive or hostile activities," among other things, which includes information collected for the purpose of intelligence. Section 19 relates to personal information.
Unlike the United States and the United Kingdom, Canada does not have a declassification process for dated records, so even though the majority of records requested by Mr. Bronskill on Mr. Douglas were well over 30 years old, the government could still invoke section 15 of the act to keep them under wraps.
"There were hundreds and hundreds of blank pages. Of that 1,142 pages, we really only got about a third of it and the rest was blanked out," said Mr. Bronskill. "This is one of those stories where time is on your side, it's a historical story."
In her 2010-2011 annual report, Information Commissioner Suzanne Legault wrote, "fewer than one-fifth of all requests currently result in all information being released." In the past decade, the percentage of cases in which all information requested is disclosed has dropped significantly, from 40 to 16 per cent.
In January 2007, Mr. Bronskill made a formal complaint about the ATI response to the information commissioner, whose role it is to investigate and resolve complaints concerning ATI requests, as established by the Access Act.
"Tommy Douglas is an iconic politician and he will be no matter how many years it takes me to pursue this, so I complained," said Mr. Bronskill.
However, it wasn't until the end of August 2009, more than two years after Mr. Bronskill made his complaint, that the information commissioner wrote to inform him his complaint had been found to be unjustified, and moreover, that they found the records to be "properly withheld" under section 15 of the act and as a result they found it wasn't "necessary" to consider the government's use of section 19 exemptions.
Needless to say, Mr. Bronskill was "disappointed" by the response.
"I waited more than twice as long for the Information Commissioner to review it than I did Library and Archives. They came back and said, 'You're not entitled to any more,'" Mr. Bronskill said. "I was hopeful that more would be released."
Unsatisfied with the information commissioner's finding, and recognizing the importance of the fight ahead, in late 2010 Mr. Bronskill decided to take the matter to Federal Court.
"There haven't been that many cases in Federal Court involving access to information," he said. "In this case the provisions applied were dealing with things like security, international affairs, defence, and it puzzled me as to how all of that could apply to historical records that really were no longer active, and I thought it was important that those issues be aired and discussed."
Paul Champ, one of Mr. Bronskill's lawyer's in the fight against Library and Archives Canada, said Mr. Bronskill's case was "immensely important" in dealing with the access Canadians have to "significant historical documents."
"It was clear that if Library and Archives Canada was not prepared to turn over documents of Cold War vintage about Tommy Douglas there would be all kinds of documents that would forever remain hidden from Canadians, and for that reason it just seemed like the right case to take on that issue," said Mr. Champ.
In the early stages of the court proceedings, the government requested that the matter be adjourned for 90 days in order to give them a chance to review the documents "in good faith" to determine if additional information should be released. Following this second review, and ahead of a late February 2011 court hearing, the government released additional, though still heavily edited, files from Mr. Douglas' dossier.
In the court proceedings, Judge Simon Noël said the government's, specifically Library and Archives Canada's, approach to Mr. Bronskill's ATI request was "worrisome" and said the "consistency in the withholding of documents and information is a clear concern of the Court."
During a conversation with The Hill Times, Mr. Bronskill highlighted a problem of inconsistency in the government's handling of ATI requests, saying, "you'll deal with agency A that's very good and helpful and courteous, timely, [and that] takes the act seriously. And then agency B will be the exact opposite. Why are there no service standards?"
The Federal Court said it was concerned with the use of an "overboard definition" of section 15 which sets out the "prevention and detection of subversive or hostile activities" as a reason to withhold information in this case, and furthermore found there to be a "lack of discretion" on the part of the government when it came to withholding information.
Moreover, the court said information was withheld "in a manner that runs counter to the act's principles" and further said that withholding documents of "historical significance" ran counter to the Library and Archive Canada's mandate to aid the "acquisition, preservation and diffusion of knowledge."
"There is no reasonable ground for injury preventing the release of these documents," the court decision said. "The fears of socialism leading up to the Second World War, and the Cold War context that followed it do not constitute the threats with which Canada is confronted today."
On Aug. 11, Judge Noël ordered the government to rethink their approach to Mr. Bronskill's access to information request, giving them 90 days to conduct a new review. The court also ordered that Library and Archives Canada has 30 days to inform Mr. Bronskill, in writing, if additional information on Mr. Douglas exists in their control.
"I think it's a terrific decision on many fronts, first and foremost with respect to Tommy Douglas, the court has essentially ordered Library and Archives Canada to disclose nearly everything they have. That's my interpretation of it and we will see how they respond," said Mr. Champ. "The court has set out a very strong precedent that will provide guidance in [the] future. ... The court went back to basics and affirmed extremely important principals about the responsibility of government to preserve and protect documents for the benefit of Canadians."
Information Commissioner Suzanne Legault was not available for an interview, but a statement on the office's website quoted Ms. Legault saying, "This decision will no doubt lead to the release of more information to Canadians who have a right to know about their national history, all the while ensuring the safety of our country," and furthermore said the court decision provides "useful guidance ... to all government institutions on the sound application of the national security exemption."
The government still has the opportunity to appeal the Federal Court's decision in Mr. Bronskill's case, something Mr. Champ said he hopes won't happen and that instead the government will decide "to simply comply and respect the law."
Over the years a number of people, including former information commissioner John Reid, have advocated that changes are needed to the Access to Information Act. In their 2006 election platform, the Conservative's campaigned on a promise to introduce an Open Government Act which would include amendments to strengthen the Access to Information Act.
And while some amendments have been made to the act since 2006, such as an extension to include CBC and Canada Post under Access laws, the campaign promise has largely not come to fruition.
Mr. Bronskill said he thinks one thing that could be built into the act is with regard to the lack of penalties for the handling of ATI requests.
"Departments miss deadlines all the time, they don't give you records by the deadline that they set for themselves, even when it's a lengthy extension sometimes," he said. "When you don't pay your bank on time, or your cable bill on time it gets cut off. Well when a federal agency misses an access to information deadline what's the penalty? Absolutely nothing."
However, not everyone thinks changes need to be made to the act.
"The only thing that is wrong with the act is the inability or unwillingness of many government institutions to basically apply it as it is," Mr. Drapeau said.
Origin
Source: Hill Times
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