Nearly 400 pages of email records at the federal government's central computer agency were deleted after a public request for their disclosure, one of several disturbing new developments unveiled Thursday by the nation's information watchdog.
Canada's democratic institutions are "showing signs of decline" when it comes to transparency, according to Information Commissioner Suzanne Legault’s new report released June 8.
She expressed disappointment that the Trudeau government's promised reforms have been indefinitely delayed. The commissioner, who announced in April that she would not seek reappointment after her term expires, now sees “a shadow of disinterest on behalf of the government."
"Canadian democracy is looking for oxygen," said Legault, in remarks at an Ottawa press conference. Canada's disclosure regime was failing to live up to the spirit of the law to foster accountability and trust, she said.
Several cases involving deleted records, problems with obtaining files from ministers' offices, a failure to document decisions and lengthy delays in disclosure proved that Canada's access to information law is "being used as a shield against transparency,” said Legault.
Canada’s access to information law allows for the public release of a wide range of financial, political and bureaucratic files, such as ministerial briefing notes, emails and presentations, in exchange for a $5 fee.
But since coming into force 1983, the law hasn’t been significantly updated, leading to criticism that the federal transparency regime has become clunky and slow-moving.
Prime Minister Justin Trudeau won a majority mandate in 2015 in part on a campaign promise to make government information "open by default." After coming into power, Trudeau instructed his Treasury Board president, Scott Brison, to start a process to give the information commissioner more power.
Last year, Brison released an interim directive that waived extra filing fees and ordered officials to release user-friendly data. After a public consultation, the government appeared to be moving forward with plans to introduce legislation by late 2016 or early 2017.
But in March this year, it indefinitely delayed any legal reforms, saying such fixes would have to be “carefully crafted.”
"Comprehensive reform of the Act is essential and long overdue," said Legault in her comments to the press. "A lot of work needs to be done before this government delivers on its transparency promises."
Asked for his reaction on Parliament Hill, Brison said the government still agreed with the commissioner that the Act needed to be modernized.
“We will present the legislation to do so,” he said, emphasizing in remarks made in French that the government would do so “soon."
“We are going to be the first government for more than 30 years to make the changes for access to information," he said.
Transparency matter referred to attorney general
Legault’s report showed the number of access to information requests has been on a steep climb, up 81 per cent from five years ago to 75,400.
The Office of the Information Commissioner received “over 2,000 complaints” last year. It said overall institutional performance showed a three-per-cent decrease in 2015-16 from 2014-15.
One of several examples of a lack of transparency or accountability laid out by the commissioner in her report was a previously-undisclosed case of hundreds of email records at Shared Services Canada (SSC) being deleted, something she said in her remarks was an "extremely serious matter.”
In May 2016, SSC, which is responsible for handling centralized email, data and networking services for government departments and agencies, received a request for employee emails mentioning the “Liberal Party,” either federally or provincially.
Eventually an employee provided 12 pages of records to the access to information office. But it was only after the agency’s leadership carried out a “backdoor security search, including a search of backup tapes” that they found 398 pages of deleted email records that were relevant to the request.
Shared Services determined those emails had been deleted roughly a month after the employee had provided the original 12 pages of records.
The matter had been referred to the attorney general, said Steven MacKinnon, Parliamentary secretary to the minister of public services, speaking in the House of Commons on Thursday.
"Our government expects our employees to meet the highest level of ethical behavior and decision making," said MacKinnon.
"Shared Services Canada took this situation very seriously, immediately launched an investigation, and notified the information commissioner."
In another example, Fisheries and Oceans Canada did not ask the minister’s office to hand over records that had been requested, but instead leaned on the requester to pull out certain staff from the request.
Minister’s offices aren’t covered by the access law, noted Legault's report, but some records inside them are. Yet the department, the report stated, claimed that because the staffers weren’t departmental employees, the request couldn’t be processed.
“This is exactly what the Supreme Court stated should not occur,” said Legault’s report, pointing to a 2011 decision by the Court.
A call for an "honest conversation" on transparency
Sean Holman, a journalism professor at Mount Royal University who researches Canada's freedom of information law, said Legault's report was not unlike the final reports issued by her predecessors.
Each of them left office seemingly disappointed by the government of the day’s inability to practice what it preached when it came to openness, he said.
"As Canadians, I think we need to have an honest conversation about the fact that all political parties, when they are in opposition, pretend they will introduce transparency and accountability reforms if they form government,” said Holman.
“And, for our part, we in the media pretend they will do just that. But their practice is often very different from those promises. The seduction of secrecy, which is an inherent part of our system of government, is too strong."
Holman said the report provided Parliamentarians and the public with “example after example of circumstances where our right to know has been frustrated.” The case of Shared Services was one example of this, he said.
Last weekend, CBC News reporter Deen Beeby was given the Charles Lynch Award at the annual Press Gallery dinner, for his work using the access to information law to uncover stories. In his speech, he said the law has “never been in worse shape.”
Beeby told the CBC that after he gave the speech, Trudeau shook his hand and said he would be fixing the law.
It was difficult to say what impact the report would have on the Trudeau government, said Holman. He said Beeby's comment that Trudeau had promised fixes meant that reforms still may happen.
“But if the past is any predictor of the future, it won't."