Day 6

Told to wait 80 years for RCMP records, Ottawa researcher takes federal archives to court

Access to information consultant Michael Dagg is appealing to the Federal Court, asking a judge to order Library and Archives Canada speed up his freedom of information request — which the 73-year-old has been told will take decades.

After complaint to the information commissioner, archives sped up estimate — to 65 years

In 2018, Ottawa consultant Michael Dagg made a freedom of information request for documents related to the RCMP's Project Anecdote. Library and Archives Canada told him it would take 80 years to complete, an estimate later revised to 65. (Adrian Wyld/The Canadian Press)

Ottawa consultant Michael Dagg is appealing to the Federal Court, asking a judge to order Library and Archives Canada to speed up his freedom of information request. 

The federal institution originally quoted Dagg an 80-year turnaround time for his 2018 request. That meant the now 73-year-old wouldn't see his request fulfilled until at least his 150th birthday.

"I was shocked because, essentially, what they've done is tell me that my right to access doesn't really apply," he told CBC Radio's Day 6. "Essentially, they're using a bureaucratic ploy to deny me my right of access to important information."

Dagg requested documents related to the RCMP's Project Anecdote, an investigation into money laundering and public corruption that was launched in May 1993. "Project Anecdote was a major project," he said. "They spent 10 years researching it. We're entitled to get answers."

No charges were laid, and the Mountie files were turned over to government archives.

According to his lawyer Paul Champ, Library and Archives Canada "had no intention of actually giving the file to him," given little work has been done on Dagg's file since the initial 2018 request.

Dagg runs a small information business and is a frequent user of the Access to Information Act. He's previously challenged decisions made under the legislation, including a landmark case in 1997 that went to the Supreme Court of Canada.

A man walks past a sign that reads 'Royal Canadian Mounted Police'.
Dagg requested information on the RCMP's Project Anecdote, a decade-long investigation that began in 1993. No charges were laid in the massive probe. (Ben Nelms/CBC)

"For many people who use Canada's access to information system, it is often a bad joke," said Champ, an Ottawa-based human rights and constitutional lawyer. 

"This one is just so absurd, it's farcical." In a response to his 2018 application, Library and Archives Canada (LAC) told Dagg it required 29,200 days — which would see the files delivered in 2098 — to process a minimum of 780,000 document pages to review, in addition to audio and video recordings. It also said additional time to consult with various government agencies may be required.

Last March, the timeline was revised down to 65 years. 

In his notice of application to the Federal Court filed last month, Dagg says LAC "has failed to establish any valid basis for the extraordinary extension of time" to his access to information request. Champ expects the case could be before a judge by the fall.

The federal Access to Information Act requires government institutions to respond to requests, either by providing records or a valid reason for an extension, within 30 days of receipt. Experts say that rule is routinely ignored.

In a statement, LAC told CBC Radio it could not comment on the case as it's before the courts.

Canada's FOI system plagued with issues

When it comes to the Dagg case, Mike Larsen, president of the B.C. Freedom of Information and Privacy Associaiton, says the slow response time points to the request's "attenuated information value."

Essentially, the information that Dagg has requested about Project Anecdote has far more value now than it will decades in the future.

"It's something of public interest, perhaps something that is relevant in the current context. It probably won't have the same value in 80 years, so a system that gets it to him in that timeframe is just broken," said Larsen, who is also co-chair of the criminology department at Kwantlen Polytechnic University in Surrey, B.C.

Federal Information Commissioner Caroline Maynard oversees complaints about federal access to information requests. Maynard found that a complaint made by Dagg was "well founded." (Government of Canada)

Larsen called Dagg's experience an egregious example of the hurdles that can arise when accessing public information that hurt public trust.

"It's not doing what it's intended to do. It's intended to provide timely and comprehensive access to information, public records, that are property of the public and held by public institutions," said Larsen

Canada's access to information (ATI) system has been plagued by delays and what experts say is increasing secrecy for years. There is also no upper limit on extensions, Larsen says.

The Treasury Board of Canada, which tracks performance standards for ATI requests across the federal government, found that just over 30 per cent of requests were "closed beyond [the] legislated timeline, including extensions" in the 2020-2021 fiscal year. That number is slightly down from 2019-2020, but up 11 percentage points compared to 2016-2017.

In 2016, the Liberal government eliminated processing fees for the time it takes to fulfil large requests, beyond the standard $5 application fee.

It should be seen as a citizenship right, and it allows for us to know something about the conduct of government that we wouldn't otherwise- Kevin Walby, researcher and University of Winnipeg professor

Before appealing to the Federal Court, Dagg filed a complaint with federal Information Commissioner Caroline Maynard in 2018.

In an October 2021 decision, Maynard determined LAC's request for an extension was unreasonable, and that Dagg's complaint was "well founded." 

"LAC did not meet the requirements of a time extension … therefore, its time extension was invalid," wrote Maynard. "In the absence of a valid time extension, institutions are required to respond to an access request within 30 days, which LAC also failed to do."

Maynard's report provided two recommendations, including that LAC should complete processing of Dagg's request. LAC's chief librarian and archivist responded that completing the request is "simply not possible without severely impacting LAC's operations, and particularly its capacity to maintain equitable services in the fulfilling the requests of other Canadians."

Bad for democracy: professor

Part of the problem with the access to information system is a chronic lack of resources, says Kevin Walby, an associate professor in the department of criminal justice at University of Winnipeg.

"When I call an FOI office, and they just have one person working as a staff, or maybe two, but they're a giant unit, obviously they're not going to be able to keep up with everything," said Walby.

"More importantly — and more officially — a lot of FOI commissioners in their annual report have been flagging this as an issue for years."

Experts also say the act, which was introduced in 1983, has seen few updates that would ensure it keeps up with changes in technology.

Prime Minister Justin Trudeau campaigned on improving the access to information system back in 2015. Former prime minister Stephen Harper did too. But beyond waiving large fees, little has changed since.

"Access to information laws look a lot different ... when people are going to start making requests about the actions of your government," said Champ.

A public consultation on the federal access to information system started in March 2021, and the Treasury Board released an interim report in December. Participants recommended the release of more information, proactive disclosure of documents and improvements to the system's capacity.

On its website, the Treasury Board lists a number of "key actions" taken by the government, including a $12.8 million commitment in the 2021 budget to improve access to information. 

President of the Treasury Board Mona Fortier speaks during Question Period in December 2021. Fortier released an interim "What We Heard" report featuring recommendations to fix issues within Canada's federal access to information system last month. (Adrian Wyld/The Canadian Press)

"The government has committed to a full and complete review of access to information and will take the necessary time it needs to meet this commitment," said Treasury Board spokesperson Martin Potvin. "Next steps include engaging with Indigenous organizations and peoples, on which the government will also report publicly." A president's report to Parliament will be released in 2022, Potvin said.

Ultimately, the system's problems harm democracy, Walby says.

"It should be seen as a citizenship right, and it allows for us to know something about the conduct of government that we wouldn't otherwise," he told CBC Radio.

As problems with the system continue, Larsen believes the idea that Canadian governments lack transparency is becoming normalized. 

Written by Jason Vermes. Interviews with Michael Dagg and Paul Champ produced by Pedro Sanchez.