Monday, February 08, 2010

Harper-Proofing Canadian Democracy: Accountability for Information

There's been no lack of talk lately about Canada's federal access to information procedures, and the recommendations of the Standing Committee on Access to Information, Privacy and Ethics offer at least one set of proposals worthy of action. But there's a more fundamental issue at play which doesn't seem to have been addressed - and I'll suggest that it makes for the most important possible safeguard against the likes of the Cons.

Currently, the access to information system contains two main outlets to try to ensure that governments actually provide the public with access to information as required by law. The first is the review process which provides for recourse to the Information Commissioner and ultimately the Federal Court against any decision by a government institution to deny access. But that process leads to no final result other than the disclosure of whatever documents should have been released in the first place (and perhaps an award of costs to merely account for the expenses of actually pursuing the case). Which effectively invites an unscrupulous government which wants to keep its actions secret to simply refuse to release information until forced to through the courts.

In principle, that impulse is supposed to be checked by ministerial accountability for access to information within a department - with theoretical political consequences for a minister who consistently suppresses information. But that kind of moral suasion is obviously rendered ineffective when it's applied to a government with no shame.

What's more, the notion of political costs as the consequence of failing to provide required information only encourages a government to see access to information in political terms, and to centralize its operations for partisan benefit as the Cons have done. If each minister exercises practical control over his or her department, then it might be easier to actually hold accountable the ones who are more secretive. But if all of them simply pass along documents for redaction by the PMO while being able to point fingers elsewhere without practical consequences, then political self-preservation may well weigh in on the side of playing along with information suppression even if a particular minister wouldn't be inclined in that direction.

That's where we are now: a system with no sense of individual responsibility where the statutory processes which theoretically provide access to information can be flouted by a government which simply declines to follow the law. So let's make it unmistakably clear that ministers and departmental officials are in fact individually responsible for their actions in dealing with information.

It would seem to be a simple enough matter to set up a system of regulatory penalties for noncompliance with the Access to Information Act, with ministers or other institutional heads bearing explicit supervisory responsibility for what happens within their departments.

Of course, the idea wouldn't be to create automatic punishment for any delayed response or disagreement as to what ought to be redacted - factors which could be taken into account by providing defences for good-faith action and reasonable reliance on the advice of officials. And it would make sense to create a filter for frivolous accusations by ensuring that the Information Commissioner gets to determine which cases actually justify prosecution (similar to the process under the Canada Elections Act where the Chief Electoral Officer has to refer matters to the Elections Commissioner for investigation).

But in the case of officials and institutional heads who might deliberately suppress information without a legal basis to do so, the difference between facing no repercussions other than losing an argument in court and facing personal legal liability would create a strong incentive to make decisions on the departmental level in accordance with the law. And since the cost of withholding information in bad faith would be personal rather than political, there would be far less inclination to farm out decisions to the PMO or any other department on the assumption that the government can get away with whatever it wants as long as it sticks together.

In sum, before Parliament spends much more time tweaking the types of exemptions or orders available under the current system, it would be well served to first take the single step which is most likely to force even a government as controlling as Harper's to take notice of the consequences of depriving Canadians of their right to information about how their country is run. And if the result is a system where all departments are motivated to set up better-functioning access to information systems which last under future governments, then so much the better.

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