Inside Politics

Where to draw the line on information requests?

When allegations surfaced from two University of Ottawa professors that someone was using access to information to spy on them, it got me thinking uncomfortable thoughts about a law that I defend as an advocate, use as a journalist and teach as an instructor.

Reports Feb. 11 revealed professors Amir Attaran and Errol Mendes were the subjects of voluminous Ontario Freedom of Information requests demanding files such as expenses and teaching records.

On the surface, such a demand should not be considered newsworthy, except perhaps for the scope and volume of the requests. But what really raised eyebrows was the professors' suspicion that federal Conservatives were behind the requests, though they had no proof and the Conservative Party denied having anything to do with it. The Prime Minister's Office refused to comment on the matter.

You see, by Ontario law, the identity of requesters is supposed to remain a secret, something a spokesperson in the PMO rightly pointed out. Mendes and Attaran suspect they were targeted because they have been outspoken critics of the Conservative government and are seen by some as Liberal sympathizers. Attaran, for instance, used the Access to Information Act himself to dig up lots of material regarding Afghan detainees, an issue that many suspect moved Prime Minister Stephen Harper to prorogue Parliament last year.

Whether the suspicion of political skullduggery should have made news is not the reason for this column. Instead, the allegations point to some of the contradictions and pitfalls inherent in a law that at worst is ill-defined and archaic, and at best, a catalyst for democracy. Indeed, these large requests have potential consequences, and not all of them good. Here's what I mean.

It's no sin to use the law to - and let's be blunt - dig up dirt on someone. Political parties do it. Non-governmental organizations do it. Lawyers do it. PhD students do it. Journalists do it. Full disclosure: One media organization has a campaign on the CBC, and the CBC has been criticized by the information commissioner and by Heritage minister James Moore for not responding to information requests quickly enough. We all live in glass houses.

Probing requests can lead to embarrassing headlines about dubious expense accounts and over-the-top bonuses that demonstrate poor judgment or a lack of fiscal responsibility.

While technically speaking there's nothing wrong with using the act this way, it's not the smartest way to proceed. These requests usually involve a huge volume of records, many of which can be personal and subject to exemptions, and tie up officials for months and months, possibly resulting in large price tags that may be too rich for the requester. As someone who teaches cash-starved journalism students how to use the law, I advise against using the act this way for the reasons I've just outlined. It's much better to conduct some research for the kinds of records you're seeking, and then craft a precisely worded request with a specific time frame.

This creates less work for bureaucrats and ensures results, and, at the end of the day, a possible story.

My point to students is that rather than use access to information as an unwieldy fishing net, it's better to employ more efficient means of obtaining those records.

Fishing expeditions paint requesters in a bad light and provide fodder for government officials who argue that the law should be amended to restrict requests because many tend to be vexatious, mean-spirited and time-consuming. The history of access to information is filled with such arguments. And I've been a part of those discussions, where I've argued that access should be opened up. A requester's motivation has nothing to do with it.

I suspect that one of the reasons the law hasn't been amended in any significant way is because of this fear regarding vexatious requests. Open the floodgates and requesters with nothing but embarrassment and revenge on their minds will come rushing through. I don't think I'm overstating the case, though others may disagree.

There seems little doubt the law could be used as a weapon in an age when politics, journalism and other endeavors seem to line up sharply on either side of the great ideological divide. A politician or a journalist can be demonized for being too right-wing or left-wing. The tone can be nasty, and the level of reflection extremely shallow. Here, the losers are not politicians and journalists caught up in the argument, but Canadians who depend on responsible and reasoned political discourse for the decisions they make.

And here's a danger that may seem counter-intuitive: In order to thwart requesters, departments at all levels may be tempted to follow the lead of B.C. Ferries and publicly release all material immediately after providing it to the requester, such as an enterprising journalist.

"Why should any applicant pay thousands of dollars in FOI fees only to lose all of the records' value when government sends it out to the world to co-opt the applicant?" argued investigative journalist Stanley Tromp in an opinion piece that examined the issue.

Of course, there are those who argue that these massive document dumps would be a good thing. But I agree with Tromp. Such a move would dissuade requesters from investing the time and money to craft requests if they gain little advantage from obtaining the records for a period of exclusivity, say a week or two. Fewer people using the act, means fewer people pressing governments to make reforms. This is not idle speculation. Canadian and American journalists are scared governments will attempt to thwart access with these massive, proactive releases.

One of the most popular listservs for investigative journalists has been buzzing with this conversation.

And, finally, let's not forget our current political context.

The allegations from Attaran and Mendes come at a time when the Harper government is facing real and important questions about political interference in other access requests, were a former political aide told bureaucrats in public works to "unrelease" a file that was going to be released to The Canadian Press.

Given the allegations of political interference - the Information Commissioner is investigating and due to report soon - academics' concerns about being targeted become, if nothing else, points for discussion. The government has denied it's up to anything - and it shouldn't have to deny or confirm anything because, by law, the identity of a requester must remain secret.

The fact that such denials are greeted with suspicion is indicative of the low level of trust that has descended upon the nation's capital and its political discourse.

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