In the United Kingdom, which has had a national freedom of information law for just five years, the rate of full disclosure in 2008 was 60 per cent. In the U.S., where Lyndon Johnson signed the Freedom of Information Act into effect in 1966, 43 per cent of requesters received everything they asked for in 2008. Legislation differs from country to country, as do exemptions, so of course it’s not an apples-to-apples comparison. But Canada’s anemic disclosure rates, delay-ridden system and weak enforcement clearly put us near the back of the pack when it comes to government transparency.
Alasdair Roberts, a professor of law and public policy at Suffolk University in Boston, rattles off a lengthy list of areas where Canada has fallen behind: the discretionary nature of its exemptions, the lack of a mechanism to allow disclosure when information is clearly in the public interest, total cabinet secrecy, no electronic filing or monitoring of requests (the Tories axed the federal access database in 2008, claiming it was little used and too costly). “Why can you track a FedEx package on the Web, but you can’t find out the status of an ATI request?” he asks.
But none of these observations are new. “The problem in Canada isn’t that they’re not quite sure how the law could be improved,” he says. “The deal-breaker in Canada is the lack of political force to compel government to enact those changes.” In the absence of a strong, external “sunshine” lobby like in the United States, where academics, monied foundations, newspaper chains and civil liberties organizations work in concert to improve access, reform in Canada is left up to the politicians. Leaders who talk a good game in opposition, but learn to loathe scrutiny once in power. And rank-and-file MPs who still won’t let taxpayers see how they spend their generous travel and office budgets.
“The key issues with the system have remained the same over the years,” acknowledges Legault, citing understaffed and underfunded ATI departments, long delays, and her office’s limited powers and mandate. (For example, falling full-disclosure rates aren’t within her purview, and her office doesn’t even track the stats.) And new wrinkles are still developing. Her recent report sounded a warning about blossoming “consultations” between departments about what can and can’t be released; a bureaucratic punt that piles delay upon delay.
Legault is not among those who think ATI is irrevocably broken. When ministers and senior bureaucrats make the system a priority it still works fairly well, she says, pointing to the examples of the Department of Justice and Citizenship and Immigration, which both received A grades in her report.
But in something as massive as a government, even strong leadership has its limitations. When Barack Obama took office in January 2009, his first act was to issue a presidential memo on freedom of information, directing civil servants to re-dedicate themselves to openness, and err on the side of disclosure. The results, however, have been decidedly mixed: a recent FOI audit by George Washington University found that only four of 28 government agencies are now clearly releasing more, and withholding less, information. And vast parts of the national security apparatus remain outside all public scrutiny.
Legault believes the future lies in the broader international movement for “open government,” harnessing technology to make all sorts of data proactively available via the Web for free. “I think there is a groundswell movement asking for this. I think the government is going to have to respond,” she says.
It would be nice to think so. But in the midst of a dramatic parliamentary standoff in Ottawa, where the Speaker has essentially accused the Prime Minister of acting more like an absolute monarch than a democratically elected leader, the evidence of public interest in freedom of information is scant. This week’s Angus Reid poll has the Tories at 35 per cent, seven points ahead of the Liberals, the gap unchanged since March.
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