Monday, February 22, 2010

Access to information breakdown

More access to information manipulation in the news yesterday:
A series of internal emails in the NAFTAgate scandal were obtained by The Canadian Press under the Access to Information Act. Many of the emails were heavily censored, and the released file does not include a response from Brodie to Wilson.

The records were provided to the news agency more than 19 months after they were requested - and more than a year later than required by law.

Wilson and Brodie have since left government. (emphasis added)
A year later than required by law. Almost two years after the date they were requested. It's your anti-democratic, lawless Harper government in action, delaying an access to information request over a very politically embarrassing incident.

No wonder they wanted to keep these documents far removed from the incident, time-wise. Former ambassador Michael Wilson seemed to rebuke Harper's chief of staff and the PMO in an email at the time for the way the NAFTAgate incident was unfolding. He thought he was being made a scapegoat for NAFTAgate by the PMO. That's quite a nugget, that our ambassador in the U.S. thought he was being undermined by the PMO, a former Mulroney Progressive Conservative learning how the Harper Conservatives roll. That's the big political revelation here. The initial jubilation over the damaging memo to Obama's campaign, followed by CYA efforts and concern about the Obama team's reaction that are also disclosed in these emails are quite insightful as well. When caught, say whatever it takes, irrespective of the truth, to cover.

This report is also yet another illustration of how toothless the Access to Information Act is when it comes to enforcing timely disclosure of requested documents. This is a statute that is begging for an amendment or two - or ten - to bring it into the modern era. Why isn't it an offence under this Act for a government to so egregiously breach the time requirements? The ongoing breaches we are witnessing seem to cry out for a severe penalty in order to deter the behaviour in the future. Stale information becomes useless information. NAFTAgate is like an historical curiosity now.

The offence section is limited to obstruction of the Information Commissioner (or its representatives) and then wilful breaches, where there is some intent to refuse access via destruction, falsifying, or concealing of documents (s. 67). Recall that there is an investigation of Christian Paradis' office, as former Public Works Minister, going on pursuant to the obstruction offence provision in respect of one of his aides overruling the access to information officials in the Public Works department. There was a delay beyond the time requirement for disclosure in that case too: "82 days later than allowed under the law."

Time delay is considered, for all intents and purposes, as a "refusal of access" (s. 10(3)) for which the remedy is a complaint to the Information Commissioner (s. 30) and then beyond that, it may end up in Federal Court. So while there is a process to deal with time delay, you can see how a government can game such provisions, as the Harper government has indeed been doing.

It's not clear in the Canadian Press story here whether they did file a complaint on the NAFTAgate documents or whether there has been any kind of investigation undertaken by the Information Commissioner's office on this situation. It's certainly a situation that warrants one.

Access to information is one of the pillars of any democratic system. There's no excuse for a modern democracy to enable delay as a tactic to "rag the puck," to use some Olympic vernacular, in order to defeat the intent of the Act. Nor is there any excuse for the political pressure from the PMO driving it all. For more on that, see the Hill Times today. A Conservative staffer is singing.