The federal Access to Information Act dates back to 1983. Proposals to put more teeth into the rules for when the government must release documents started with the very first review of the law in 1986, and have kept coming ever since. Countless committee reports and expert studies have proposed ways to force more openness. When the Conservatives won the 2006 election on a platform promising a sweeping access-to-information overhaul, the time for real change seemed finally to have arrived. After settling into power, though, Stephen Harper’s government decided against implementing most of the promised changes in its early batch of accountability reforms. Since then, the Tories have seemed content to let the issue slide down their priorities list to obscurity.
Enter Suzanne Legault, the blunt-talking new interim information commissioner appointed by Harper in June. Legault might have been expected to take up the two-decade-old cry for fundamental changes to the system her office oversees. Instead, she has a surprising message for those hoping for root-and-branch reform: forget about it. “That won’t happen,” she told Maclean’s. “Nothing is going to change, that’s my experience.” And what about all those sincere, detailed blueprints for strengthening the access act that are always floating around Parliament Hill? “They’ve been saying the same things for 25 years,” she said. “So let’s try to tackle it differently.”
That pitch for a new approach is Legault’s bid to distinguish herself from her frustrated predecessors. Past information commissioners have been thwarted by successive governments, both Liberal and Conservative, who didn’t much like the notion of having more of Ottawa’s inner workings exposed to public scrutiny. The 1983 law offers them plenty of ways to avoid releasing sensitive paperwork. For instance, the act doesn’t cover so-called “cabinet confidences”—a huge exclusion that allows governments to refuse to release not just records of deliberations among cabinet ministers but also a vast array of background documents and discussion papers prepared for them.
Rather than pleading for a rewrite of the rule book, Legault plans to make the best of the imperfect tools she inherits. In a wide-ranging interview, she laid out her strategy for prying open recalcitrant federal departments. It builds on the efforts of her predecessor, Robert Marleau, who concentrated in recent years on the unspectacular work of streamlining and modernizing the Office of the Information Commissioner.
Legault aims to first expose the cluster of federal departments and institutions that show the greatest disinclination to release documents, and then map out what they must do to become much more transparent. It might sound straightforward, but this approach differs markedly from the view of some outside critics—from the open-government advocacy group Democracy Watch to the Canadian Newspaper Association—who tend to view the entire system as flawed to the core. Legault doesn’t see it that way. She says her probe of the worst-performing departments won’t end in calls for massive change. “It’s not going to be, ‘Everything is broken,’ ” she said, “because I don’t think everything is broken. I have 250 institutions subject to the act. Out of those, I get complaints against probably about 30.”
So Legault has launched a systemic investigation of just two dozen federal departments and institutions whose refusal to release documents prompted five or more complaints last year. Those in her crosshairs range from the apex of bureaucratic power, the Privy Council Office, to departments charged with guarding undeniably sensitive national security information, like Defence. The results of the probe will be made public next February or March. “We’re going to look at the real issues in each institution, the main problems, and then we’re going to make recommendations,” she said. “It’s going to be fact-based and it’s going to give us a better target for solutions.”
But Legault doesn’t have as much money as she’d like to pursue this so-called systemic investigation. The way her office’s budget was constrained suggests the government isn’t eager to fund this sort of analysis of how and why documents are withheld. Budget requests from officers of Parliament—including the information, privacy and official languages commissioners, plus the auditor general and chief electoral officer—are vetted first by an all-party panel of MPs. The process is meant to shield them from limits that might be imposed for the wrong reasons by the government they are supposed to be keeping honest.
Last spring, the panel approved increases for the information commissioner for 2009-10 and beyond. But soon after, the cabinet ministers on the Treasury Board, which makes final spending decisions, rejected a key component of the panel’s recommendation, slashing about $500,000 a year that had been earmarked mainly for those highly sensitive systemic investigations. Legault said only the reallocation of scarce resources from other parts of her operation allowed the intensive work on widespread problems to continue.
Her detailed probe of the more opaque parts of the government is not her only challenge. The information commissioner’s office has been revamped since she joined in 2007, after a career as a government lawyer and, before that, criminal law. Her staff is adjusting to a reorganization meant to focus its work on conducting those systemic investigations, working through a backlog of difficult old complaints, and moving more quickly to resolve fairly routine new ones.
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