Inside Politics

SCOC says no: ministerial agendas off-limits

In a unanimous decision, the Supreme Court of Canada has ruled that journalists, or anyone else for that matter, have no right to records such as personal agendas that reside in the offices of the Prime Minister and his or her cabinet ministers.  

The news is good and bad.

By the time this decade-long case reached the high court last October, it had already become impossible for requesters to obtain a host of records that had become off-limits because they existed in the office of a cabinet minister. 

Officials who handle requests had admitted during my many off-the-record conversations that they feared departments were using this provision as a way to avoid releasing information that was more embarrassing than sensitive.

Now this practice will continue. Information deemed to be too sensitive, perhaps because it's too embarrassing to make public, will be dumped into a black hole known as the Prime Minister's Office, or the office of anyone else who sits around the cabinet table.

That's the bad news.

The good news is that perhaps the Supreme Court decision will finally end fishing expeditions, where requesters simply ask for everything that was ever produced on a particular file.

The whole idea behind the access to information system is to give citizens the right to records produced in federal institutions such as government departments and Crown corporations.

By law, those institutions can use a host of exemptions or exclusions to shield information considered to be too personal. And this is where the agendas come into play.

When Jean Chrétien was prime minister back in the mid-nineties, he was in a heap of political trouble, fending off conflict of interest allegations and questionable spending controls at the government department responsible for job programs.

Some journalists and the then-Reform Party smelled blood, and began demanding the personal agendas of Chrétien and some of  his key ministers.

The government said no, arguing that the agendas were personal and therefore beyond the scope of the law.

The high court agrees, but makes it clear that if officials in a department have access to ministerial records, Canadians should as well. Personal agendas have nothing to do with departmental officials, goes the argument. So they remain secret. 

When crafting broadly-worded requests, journalists, for instance, hope to obtain records that explain what advice ministers are given. In short, they're looking for documents that uncover political moves that could produce headline-grabbing news stories.

The court ruling makes it clear that you can't have records deemed to be the exclusive domain of a minister. That means it's necessary to do a bit of legwork to find out which records have been distributed to officials such as deputy ministers. So you may not be able to obtain a personal agenda, but perhaps you can still obtain a briefing note, memorandum or report that has also been circulating in a department.

In this case, an access-to-information request that is sharper and more tightly worded may be less likely to be subject to delays beyond what is now considered to be normal. This is the advice the access officials have given me during those many off-the-record conversations where they, too, admit frustration over their inability to track down records.

So look at this way: forcing journalists to craft better requests can be good news. I've begun doing so, and have plenty of material for background information and stories. But I operate in the real world and must admit that this doesn't always work. When in doubt, governments err on the side of withholding information. It's just the way it is.

There is ample evidence that the Harper government has gone to great lengths to keep information secret. Just before the recent federal election, the information commissioner asked the public works minister to refer a case of alleged political interference involving the former aide to ex-public works minister Christian Paradis to the RCMP. 

Commissioner Suzanne Legault is also investigating other cases of suspected political interference. 

As I did earlier this week, I would like to end on a hopeful note.  I used this space to suggest that now might be the time to turn the concept of open government into an initiative that actually means enhanced access to government records. 

The feedback to that column was interesting, with at least one person saying that I was hopelessly naive for suggesting that any government would be in favor of opening up access.

That may be the case. But perhaps the Conservatives, who first came to power in 2006 promising more access, will finally deliver now that they hold a majority.

After all, it was a former Reform Party researcher who helped start the battle that led to today's high court ruling. If Reformers were demanding more access back then, why can't Reform's successor, the Conservative Party, turn those demands into action now that it has the power to do so?

I also suggested that the government might heed the calls of a succession of information commissioners, MPs and advocates who have been pleading for a stronger Access to Information Act.

Admittedly, the government could go either way: it could use this judgment to tighten the screws on access even more, or change the law to finally reflect the expectations of a society that demands more information from its governments, not less.

David McKie can be reached at david_mckie@cbc.ca.

 

Comments are closed.