Government Unfairly Slows Access to Information, Information Commissioner Concludes

    Investigation Upholds Newspapers' Complaint that Delays Stifle Public's
    Right to Know

    OTTAWA, Sept. 3 /CNW Telbec/ - Canada's Information Commissioner has
upheld a newspaper industry complaint that government practices of tagging
requests for information as "sensitive" create "unfair and unjustifiable
delays in the processing of those requests," and has urged government
departments to stop holding up information.
    The finding marks the conclusion of an unprecedented three-year
investigation into 21 government departments triggered by a complaint from the
Canadian Newspaper Association in September, 2005, alleging that "secret rules
and procedures (...) contravene the (Access to Information) Act, (and) result,
more importantly, in unfair and unjustifiable delays in the processing of
media requests for government information to which the public has a right in
our democracy."
    "This is a major victory in that the Commissioner confirms there is a
serious problem in the way information that has the potential to embarrass the
government can be obstructed," said David Gollob, CNA's Senior Vice President,
Policy and Communications.
    "The Access to Information Act is a critical tool for investigative
journalists, as well as parliamentarians, NGOs, and others who seek to hold
government to account. But delay kills stories and frustrates journalistic
inquiry. Whenever something is allowed to undermine transparency in this way,
the system of democratic accountability in which newspapers play such an
important role is weakened," he said.
    The Information Commissioner's report, released simultaneously to the CNA
and to the government, emphasises that the investigation did not find that
media requests are singled out for special treatment, because requests from
parliamentarians and lawyers are also more likely to be treated in this way.
The Commissioner, an Officer of Parliament with an ombudsman's role in
investigating complaints under the 25-year-old Access to Information Act, also
finds that there is nothing illegal in the practice.
    While applauding the Commissioner for shining a light on labelling of
requests as "sensitive" (also known as "red-flagging" or "amber-lighting"),
the CNA questions the finding that media requests are not specifically
targeted, and that such practices do not amount to a system of "secret rules"
which have no legitimacy under the Act.
    The CNA notes, in its own separate analysis of data collected by the
Information Commissioner, that more than one in four of all requests
designated for special handling comes from media requesters, even though fewer
than one in six requests overall come from the media. In fact, media requests
are about twice as likely to get the tougher treatment as requests overall.
    Canadian newspapers have reported a significant rise in impediments to
government information to which the public has a right in recent years.
Successive Information Commissioners have complained in Annual Reports about
"chronic" and "crippling" delays.
    The Commissioner's report, coinciding with the 25-year anniversary of
Canada's Access to Information Act coming into effect, highlights the
increasing dysfunction of a system originally designed to ensure transparency
and the need for tougher freedom of information legislation to reverse the
trend. The CNA has been lobbying for reforms to the Access to Information Act
for over a decade.


    The Access to Information Act is one of the most important tools
available to journalists and other researchers to see beyond official spin and
find important facts that underlie government decisions.
    After the CNA complaint was filed in September, 2005, the Office of the
Information Commissioner selected 21 federal departments and agencies for
scrutiny. Of those, 16 acknowledged they had a system to designate certain
requests for special handling, with labels such as "amber light," "of
interest" and "high visibility." Reasons for doing so included the need to
notify superiors or the Minister's office, or the desire to have media
relations officials prepare "communications products" prior to the release of
    The Access to Information Act makes no provision for such special
processes, which have been layered on top of the proper legal process by
government bureaucrats.
    The CNA is pleased that the Commissioner has shone a light on the
practice of "amber-lighting" certain requests, but questions the conclusion
that media requests are not singled out.  Furthermore, the CNA questions the
rationale for giving the appearance of endorsing "amber-lighting" by issuing
recommendations on how to administer it in future. The CNA believes that such
extra-legal systems add needless layers of complexity and delay to a process
that is already notoriously unresponsive.
    Based on an analysis of request data from the agencies that were
investigated, the Commissioner concluded that a variety of types of requesters
are affected, and in particular, parliamentarians, lawyers and media. He
rejected the view that media are singled out.
    The CNA points out in its own analysis of the data, however, that more
than one in four of all requests designated for special handling comes from
media requesters, even though fewer than one in six requests overall come from
the media. In fact, media requests are about twice as likely to get the
tougher treatment as requests overall.
    This was among the conclusions of an independent review of the
investigation data prepared for the CNA by University of King's College
journalism professor Fred Vallance-Jones, who also found that media requests
take longer to process than others, even if they are not officially tagged for
special handling. They are also more likely to be subjected to administrative
obstacles such as requests for time extensions, and deletion of some of the
material prior to release. The Commissioner's report doesn't address these
issues, although the office was provided with the Vallance-Jones report.
    The Commissioner's report comes at a time of crisis in the entire
access-to-information regime. It has become routine for departments to demand
long time extensions, to the point where media requests routinely take months
to process, whereas thirty days is the standard established in the
legislation, unless extensions are warranted.
    "The evidence suggests that media requests are delayed as a matter of
routine," Mr. Vallance-Jones said. "Even when they are not 'sensitive,' they
take longer."

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