Rubin: Exposing Library and Archives Canada’s dismal transparency record

Another illustration of how broken ATIP is:

When I first came to Ottawa in the mid-1960s, I started going to the National Archives to access government records. I met Archives personnel who were trying to get the federal government to adopt better electronic record management to meet the growing demands for information.

But their efforts were largely ignored as more and more government record management came under the Treasury Board Secretariat (TBS) authority. There, record retrievals became more difficult and descended into a confusing and conflicted state of instability.

This was at a time when government department libraries were disappearing. My ability to freely wander the shelves and stacks and to get reference help ended when the access-to-information regime took over in the mid-1980s. Agency record collections became secret and inaccessible to the public.

By then, the Treasury Board Secretariat had firmly taken control of overall information management policy, with National Archives playing second fiddle. TBS sought to “standardize” and sanitize federal information holdings at a cost of many millions of dollars.

With the 2004 merger of the National Archives and the National Library, the new Library and Archives Canada (LAC) took on the attributes of a regular government agency under the Treasury Board’s tight control, driven by the latest software and ever-increasing secrecy practices.

Just another obedient agency

When Daniel Caron—neither a professional librarian, nor archivist—was put in charge at the LAC in 2009, he accelerated this deference to government powers, acting more like a TBS lieutenant.

He pressed for greater “modernization,” clumsily and at great expense transmitting LAC holdings into electronic file holdings. Caron didn’t fight the cuts imposed on LAC’s professional archivists and librarians, and seemed to relish reining in any staff’s independent actions to help the public. Nor did he fight the Public Works demand that LAC’s auditorium and meeting facilities be reserved only for federally sanctioned events and not for public use (Justice Paul Rouleau’s inquiry on the use of the Emergencies Act is currently taking place in the Library and Archives Canada building on Wellington Street).

Caron’s end came in 2013 after I obtained access to records that showed he was, at taxpayer expense, taking Spanish lessons. When he refused to end the language training, the heritage minister at the time fired him.

Eventually, LAC got a professional head and some of their former information reference service capacities were restored. But it was much too late for LAC to gain an influential central role under the Access to Information Act.

One example of how LAC had become just another obedient agency is how it took little interest in even housing or publicly listing and preserving past completed access-to-information requests.

That task, ignored for 20 years, was eventually done though the so-called open government portal, though the actual records received under access requests were never posted, just the titles of thousands of requests. The result is that much of the unofficial—at times very valuable and of historic record—of what the government did was destroyed without Canada’s retainer agency or historic records, LAC, giving one iota.

Not so well known was that for many years archive authorities had secret deals. One such arrangement that I have written about previously was that ministers’ “personal” and “political” past records deposited at LAC were allowed to remain secret for multiple years—even permanently—as demanded by ex-ministers and prime ministers.

LAC continues to make available public funds, office space, and staff to past prime ministers who assemble their so-called “personal” and “political” records. Such “private donations” get charitable income tax receipts. It’s not clear whether LAC has ever pushed back on prime ministers on ministerial claims made, Trump-style, about those records really being their personal property, a highly questionable practice in the first place.

Another long-standing deal is with the House Speaker, allowing in-camera parliamentary committee records to be hidden and housed at LAC for long periods of time.

A more recent 2018 secrecy arrangement with the Supreme Court of Canada favours many of the judges’ deliberation records remaining secret for a minimum of 50 years or more.

If that were not contentious enough, LAC has also turned its back on acquiring and preserving residential school records. Instead—and likely a better arrangement—many of those government records were sent to the University of Manitoba’s National Centre for Truth and Reconciliation in 2015. LAC, however, still has many residential school records in its possession and has been slow to get those and other federal records processed and out, especially those records held tightly by the federal Indigenous departments.

Which brings us to the 2018 Dagg case where LAC issued consultant Michael Dagg an 80-year wait-time, given the estimated 780,000 records dealing with the RCMP’s Project Anecdote, a 10-year investigation on secret commissions, money laundering and corruption, including in real estate, an investigation which ran out of steam and from which no charges were ever laid.

Dagg complained about the excessive delay to Information Commissioner Caroline Maynard, who then requested LAC take a mere 65 years to respond. The delay issue went to the Federal Court for appeal. Sadly, it was discontinued upon Dagg’s death this past September.

Faster info declassification a good first step to change

LAC, as Dagg, I, and others well-discovered, has become a typical unresponsive and obstinate bureaucratic agency quite willing to severely censor our tax-paid records under legislated secrecy claims.

Maynard’s scathing investigation report on LAC, released on April 26, 2022, readily confirms LAC’s unacceptable long wait-times to access requests, amounting to LAC regularly not meeting its legal obligation under access legislation.

The minister responsible for reporting on LAC activities, Heritage Minister Pablo Rodriguez, responded to Maynard’s report recommendations by refusing to take responsibility to correct LAC’s poor access-to-information services. He declined to put forward a strategic plan to quickly correct LAC’s laggard and disgraceful access-to-information record.

Maynard’s report scolded LAC and the Government of Canada (read the Treasury Board Secretariat, the Privy Council Office, and the Prime Minister’s Office) for not taking the lead to quickly declassify records it holds and receives from government agencies. Maynard recommended that the federal government establish a strong declassification directive as a crucial element to the functioning of access legislation.

However, LAC no longer seems up to the task of promptly declassifying those records it has in its possession. That’s even if agencies send any those records at all.

It would be helpful if the information commissioner could get tough on LAC for failing to declassify their records for public use on a timely basis, and if she, along with a rejuvenated LAC’s help, could penalize those government agencies that don’t bother to keep written records, that alter them, or that refuse to hand over records to LAC.

Another serious problem is that LAC quietly follows TBS’s 40-year practice of massive record destruction. Hundreds of thousands of draft records annually don’t make it at all to LAC as TBS orders agencies to regularly destroy draft transitory operational records.

One thing that LAC still does a relatively good job doing is collecting outside legally required deposited information from those publishing and that includes letting the public know about those published records.

Once seen as an arm’s-length agency keeping check on the PMO and the Treasury Board Secretariat’s all-powerful grip on federal records has simply wilted and been cast aside by the same cabal.

LAC has fallen in line with the centralized secrecy commands that rule Ottawa, and has even outdone many other government agencies in their dislike to giving Canadians access to their records on a timely and fuller basis.

Can LAC become more than a secrecy shill for the government? At the very least it would help if LAC, who holds the vast majority of government historical records, gets going in declassifying more records for release. That would be a start.

LAC badly needs to change course and become an independent record manager force with integrity, a pro-disclosure champion for the fulsome and quick release of federal information.

Respect and trust would follow.

Ken Rubin is a long-time observer of transparency and secrecy trends in Ottawa. He is reachable via kenrubin.ca

Source: Exposing Library and Archives Canada’s dismal transparency record

Does the federal government fund and support racially discriminating groups and individuals?

Drawing the contrast between the relative kid glove treatment of the “Freedom” Convoy and providing them a further platform in the Rouleau Commission:

Federal funding of hateful messaging has been in the news lately after Prime Minister Justin Trudeau condemned the comments of a senior consultant who was working on a federally funded anti-racist project. As a result of Laith Marouf’s anti-French and anti-Semitic postings, the $130,000 funding of the group, the Community Media Advocacy Centre, was suspended. This happened, despite the federal government apparently knowing about Marouf’s past.

Contrast that to the multi-million dollar federal Public Order Emergency Commission inquiry into the federal government temporary use of the 1988 Emergencies Act this past February to remove the Freedom Convoy protesters from downtown Ottawa.

Yet the Freedom Convoy group antics, which paralyzed Ottawa’s downtown core for more than three weeks this past January and February, forced authorities to spend millions of dollars in policing costs. The Freedom Convoy leaders are now wanting even more money than could be granted under Treasury Board guidelines and are asking for $450,000 of their $5-million in donations to be unfrozen, now held in escrow. This request may actually happen even though it’s a bit rich when such participation brings with it more propaganda for their disruptive causes.

In addition to the Rouleau inquiry giving the Freedom Convoy legal standing and funding, this federally funded commission is encouraging written submissions from Freedom Convoy supporters. The federally funded commission has made a point of encouraging Freedom Convoy supporters to make written submissions to it

The federal commission’s lead question on its website asks for those on side of the Freedom Convoy “protest” to describe their experiences. Those who were affected by the “protest” activities are asked secondarily to offer their experiences.

Rouleau is, in effect, placing the Freedom Convoy participants in an important, if not equal, position to those who were affected by the convoy, giving them more space and prominence than they deserve.

Canada’s Public Safety Minister Marco Mendicino, meanwhile, according to highly redacted cabinet minutes, saw the Freedom Convoy protesters falling into two categories: the “harmless and happy with a strong relationship to faith communities,” and the “harder extremists trying to undermine government institutions and law enforcement.” However, it seemed as if the police in Ottawa were siding with the Freedom Convoy protesters during February’s occupation.

Mendicino did not comment on the tacit mix and dynamics of the happy folks and extremists who occupied downtown Ottawa for more than three weeks.

Does this leave federal authorities less than neutral or too easy on the illegal activities of the Freedom Convoy participants? Do we not remember the federal government’s past racist actions with residential schools or the internment of Canadian Japanese citizens during the Second World War?

The federal government continues to mount ineffective anti-racist “campaigns” and decries anti-Semitic activities without taking action.

It’s also standing idly by when it comes to Quebec’s racist Bill 21 and its overt discrimination against minorities and those, for instance, who teach and wear hijabs being ousted.

The Freedom Convoy protesters appear to be treated as official interveners.

So let’s call the feds for what they are: a bunch of yellow-shrinking-stand-by con artists.

Ken Rubin founded the Ottawa People’s Commission to hear from residents about the harm incurred during last February’s Freedom Convoy siege in Ottawa, though the views expressed here are his own personal ones.

Source: Does the federal government fund and support racially discriminating groups and individuals?

Rubin: While the Charter lets us dream, the Access to Information Act is a nightmare

Tend to agree, given my much more limited experience from outside government. Of course while in government, I dreaded the extensive vetting I had to do for some files:

Two pieces of once-promising Canadian legislation have turned out very differently 40 years on. One is Canada’s Charter of Rights and Freedoms, enacted on April 17, 1982, and the other is Canada’s Access to Information Act, given royal assent on July 7, 1982.

Both claimed to advance and protect individuals from the state’s excesses; one by placing Canadians’ rights in a Supreme Court-guided constitutional framework, and the other a government-controlled law claiming to give Canadians new access to government records –while in reality gatekeeping what Canadians are allowed to know.

Both acts were born under Pierre Trudeau’s Liberal government, one through his leadership and legal beliefs (the Charter); the other (the Access Act) was delegated to his finance minister Mitchell Sharp, secretary of state Francis Fox, and their senior mandarins. These public officials disliked access-to-information legislation (ignoring the public’s demand for it) but needed a legal secrecy code to protect against the growing government leaks.

As part of the access-to-information lobby group, ACCESS, I remember that debate well.

The senior mandarins were the real winners and birth fathers of restrictive public access to government records. An earlier attempt at an Access Act by the Joe Clark government bore their imprint.

The Access to Information Act allowed bureaucrats to run the show. Public officials and corporations gained special privileges and consultation rights, allowing little leeway for the public to gain a glimpse into Ottawa’s information holdings.

Corporations successfully lobbied for special rights to object and to prevent the release of commercial data held by government.

The provinces also had a hand in drafting the secrecy provision in intergovernmental relations affecting them, making those records mandatorily exempt. They agreed with federal authorities that the vast number of federal-provincial agreements and meeting records were outside coverage of any access acts. In 40 years, it has never been suggested that all jurisdictions should agree to regularly work together to adopt more progressive disclosure terms.

Other special interest groups also gained rights. Lawyers were increasingly granted special secrecy for a range of solicitor-client privileges. Crown corporations, both federally and provincially, negotiated more favourable and broader exemption terms. Law enforcement and security agencies, especially after Sept. 11, 2001, successfully pushed for more secrecy.

And at every turn, bureaucrats broadened their policy advice protection terms. They successfully lobbied for excluding immediate release of draft or final unpublished internal government audit reports, thus diminishing the role of their internal watchdogs.

This in contrast to the Charter of Rights and Freedoms, where law enforcement agencies were not given freer rein, bureaucrat and PMO plans received no free passes, lawyers had to make public cases of their arguments, and Crown corporations–even Parliament—could not expect special privileges without a challenge.

Judges blossom under Charter, rubber-stamp under Access Act

The Charter let the courts blossom with progressive purpose interpretations and few disappointments. But on the Access Act side, the courts have mainly sided with the secrecy claims of governments and corporations to the public’s disadvantage.

Just look at the Newfoundland and Labrador Supreme Court which recently ruled the province’s information commissioner has no business in reviewing solicitor-client numerous cases of secrecy (the Newfoundland commissioner is appealing the ruling). Or look at how the Supreme Court of Canada (John Doe v Ontario (Finance), 2014) approved Ontario and other jurisdictions’ application of broader policy advice exceptions. This ruling emboldened provinces like Quebec and British Columbia to amend their Freedom of Information Acts and bring in wider policy advice exemption terms.

Further, in access cases, the courts are unable to review cabinet records or in-camera hearing secret evidence. Even in matters like ministerial mandate letters which Prime Minister Justin Trudeau has released for his cabinet, but Ontario Premier Doug Ford wants his kept secret, the courts’ hands are tied. While the Supreme Court recently gave challengers leave to appeal, it is unlikely it will go against the lower courts and buck cabinet confidentiality to order the release of Ford’s mandate letters.

Judges may be seen as too powerful under the Charter, though they mainly take their decisions from precedents, society and from the hope and purpose that the Charter offers. Judges in Access cases have bleak precedents, little leeway and may not even get to see the most key records hived off as cabinet or security-enabled secrets.

What’s also possible in Canadian Access acts aided by the provincial legislatures is the ability of a growing number of laws passed that override access laws. One such act concerns the Canada Infrastructure Bank, whose operations are largely secret.

Passed in 2019, Bill C-58, an Act to amend the Access to Information Act and the Privacy Act, neatly hived off whole realms of public information, like records in the PMO, from ever publicly surfacing.

In the early days, the media greeted access legislation as a wonderful tool, giving Canadians legal access to public records. It did not take long, especially once more journalists began using access legislation, to realize that these access laws really did not stand for public disclosures. People like me tried to warn the media that access laws were primarily secrecy laws. Back in September 1975, before joining ACCESS, I presented a brief to the Joint Committee for the Scrutiny of Regulations on the federal government’s excessive secrecy. Even then, I realized that legalizing public access to government records would mean officials creating laws very similar to Canada’s vaguely-worded Official Secrets Act.

Over 500 ways to say ‘no’

The dark aspects of the Charter’s notwithstanding clause have rarely come to the forefront, whereas the over 500 ways of saying “no” under access legislation are a daily occurrence. The tools of review under access legislation are kept weak. Access users are considered wards of the state rarely given access to government records. Whereas a litigant under the Charter can use it to challenge prevailing laws and gain greater rights.

The Charter provides a place for sorting out issues that top-down government officials alone cannot handle. Access laws are the exact opposite—they’re an exercise in executive-style government predominating, with only some rights to independent review of record denials.

While the Charter has not brought about, for instance, all Indigenous rights and recognition changes needed, it tries. Canada’s access laws hardly try to allow the public, including Indigenous people, real legislated access or rights. Bureaucrats are in control and do not want access laws being extensively used, even if it is for access to historic data on land claims.

Access laws stifle Canadians’ right to information. Bureaucrats’ daily subversion of public access largely goes on without being penalized and no one effectively challenges their failure to record much government activities.

The Charter is more welcoming and well-regarded. It lets you dream, fight and win better rights that can effect everyday living. In contrast, Access laws only speak of reasonable secrecy and limited service to assist, knowing full well that the public becomes the loser, the state the clear winner.

Rarely have I, in court actions, referred to the Charter. In one case, though, I cited the Charter’s Sec. 15 equality provision in an unsuccessful challenge for gaining equal costs as a lay litigant (Rubin v. Canada (Attorney General), 1990). In another case, in Ontario, I was successful in citing the Charter’s Sec. 2 (b) guarantee of freedom of expression provision in an action that sought to have my filing FOI requests declared as libellous and subject to damages because the commercial party did not like my seeking under municipal FOI his government contracts (Sept. 20, 2019, Ontario Superior Court court ruling, CV-18-595693)).

The Charter protects my right of access to the courts. Most access laws now allow exclusion of users whom they and the information commissioner consider as abusive, frivolous, too-frequent users or as putting in requests in bad faith.

The Charter, in the courts, has been used to challenge governments’ day-to-day controls and has in judgments developed a living doctrine approach to grow and protect individual rights. In contrast, it is government information management directives that limit access, giving marching orders to government agencies to delay, delete and uphold secrecy.

The Treasury Board’s federal directives, for instance, offer dry defensive language designed to say “no” and prevent public employees from serving the public, properly documenting their actions. Daily, I have to contend with getting small morsels of information about the behind-the-scene efforts of hundreds of agencies, third parties and governments.

I would like to see access laws given a constitutional underpinning, an enshrined purpose which would help put Canada on the path to much greater disclosures. Access to information would become a full-fledged public right and a common tool of free expression and inquiry.

While the Access to Information Act and Charter of Rights and Freedoms were born from the same parent a few months apart, they have not acted together as one co-operative friendly force. Forty years have passed and even greater gulfs growing between the two acts.

The Canadian Charter garners international respect as a model to adopt; the Access to Information Act ranks dismally low as a model to avoid.

It’s time to put the two acts on the same page so that Canadians’ rights to know can no longer be ignored, trampled on or based on the state controlling what Canadians get or not get disclosed.

Ken Rubin has followed both the Access to Information Act’s rough 40 years and the Charter’s 40-year evolution. He can be reached at kenrubin.ca

Source: Rubin: While the Charter lets us dream, the Access to Information Act is a nightmare

Pandemic pretext: More delays in long-awaited access to information answers

ATIP is far too often late and, as the examples below indicate, sometimes very late, in responding, with COVID-19 providing further excuses for delay:

Federal departments that have stalled access to information requests for three years or more are now citing the pandemic as the reason for further delays.

Emails are going out to people who make access to information requests, notifying them the requests are now “on hold.”

“We cannot send consultations out because most third parties, other government departments (municipal, provincial, territorial and federal) are closed or reduced to minimum employee capacity,” the department now says.

“So until we are given the green light to start processing consultations again, we won’t be able to process any of the records for your request. But in the meantime, we would like to know if you still wish to proceed with your request or if you wish to abandon.”

Rubin says Health Canada owes him answers to about a dozen requests dating back for years — one from 2014 about adverse pharmaceutical reactions including some deaths, one on drug licensing from 2015, others from 2016 and 2017. They now warn him of “possible delays in treating your request,” due to the pandemic.

“Openness, transparency and accountability are guiding principles of the Government of Canada. However, our ability to respond to requests within the timelines mandated by the Access to Information Act and the Privacy Act may be affected” by the pandemic, the department says.

The Finance Department wrote him using the the exact same words.

National Defence says it has reduced staff in the access office and hasn’t enough secure lines to handle his requests remotely. They asked for Rubin’s consent to put the request on hold. Rubin said no.

“You have to push back,” he said. “A lot of people don’t consider this a human right. But it’s not just administrative.”

Public Service and Procurement Canada (PSPC) has several aging Rubin files, and he hadn’t heard about them either, until this month’s message that “PSPC’s network is currently limited to essential and critical services such as pay, pension and procurement. While we are committed to respecting your right of access and are actively looking for solutions to maintain operations, we have little to no capacity at this time.”

One department told him: “despite all our efforts, we will not be able to respond to your ATIP request within the legislated timelines.” The legislated timeline ended years ago.

“Our access to information legislation is so flawed that it’s possible for access to information requests to be delayed and delayed and delayed, which turns the whole purpose of the legislation into a joke,” said James Turk, director of the Centre for Free Expression at Ryerson University.

“The fact that people who haven’t heard for a year or two years are now getting a notice that it’s been delayed because of COVID reveals how badly flawed” it is.

“I like Ken’s remark that oh, it’s good to hear from you.”

He also noted that the lockdown shows the unevenness of government services, as some are cut off from paper documents while others shift to digital documents.

This newspaper asked Environment Canada more than a year ago for internal emails involved in sending out a single news release on climate change. This month, after our request passed its first anniversary, we asked how long it would take.
The answer: They were just about to send us the information, and then the lockdown hit.
The department promises a speedy answer once its office reopens.

Source: Pandemic pretext: More delays in long-awaited access to information answers