Paul Einarsson couldn’t agree more with Canada’s latest ranking in the world for upholding freedom of information laws. According to a 2012 study by the Centre for Law and Democracy it has fallen to 55th place of 93 countries worldwide.
“It’s only getting worse in my opinion.” says the COO of Calgary-based Geophysical Service Incorporated. Einarsson has years of experience dealing with access to information requests, but has run into more than his share of delays, roadblocks and refusals.
“If it were not for the Access to Information process which is meant to hold government accountable we would be in big trouble”
GSI found out about dozens of instances where someone was stealing or dealing in the company's seismic data without authorization. But the Office of the Information Commissioner which investigates complaints from users is understaffed and does not have the resources to address the number of different agencies that are abusing the process. It results in thousands of complaints being handled by a couple of dozen investigators.
GSI has experienced a huge increase in late responses, abuse of extensions, redactions of information without using exemptions or redactions using exemptions improperly. Einarsson says one agency has provided false information on several occasions.
“The Access to Information Coordinator for this agency is also its legal counsel which presents a huge conflict of interest.” explains Einarsson. “GSI is in a legal action with this agency and this person attempted to block our access to the information claiming GSI was trying to get the information for its case. The fact is the request had to do with a totally unrelated matter but the abuse of power and obstruction from this person happened anyway.” He adds that this matter has still not been resolved.
Michael Karanicolas is the Legal Officer for the Centre for Law and Democracy, a Halifax based human-rights groups which has issued three report cards since 2011 on Canada’s standing in the world with regard to the so-called right to know legislation.
“Legally the government should not discriminate based on the requester, but there are perfectly legal ways to delay and deny access. Public authorities can extend their timeframes for response virtually indefinitely, leading to waits of months or even years. They can also refuse requests altogether, forcing users to appeal to the Information Commissioner, another process that takes years to resolve. ” says Karanicolas.
“For businesses filing a request for commercial reasons or journalists working under a deadline, this can effectively render the information useless.”
For Einarsson that is most often the case. He frequently files access to information requests in his fight to protect GSI`s ownership of seismic data. It’s what the company licenses to clients in the oil and gas industry for its livelihood. Using access to freedom of information legislation is a crucial tool for GSI to pursue those who have used or sold the company’s intellectual property without any right to do so because frequently they are doing it with the cooperation of government agencies. But when the requests are directed at federal or provincial government entities, the response can mean long delays or excessive censorship.
“In some cases I have waited for up to eighteen months for a response and then seventy-five percent of what I asked for is omitted. The amount of redactions in some of these documents is incredible and the excuse is that the information is irrelevant, when it’s clearly not.” says Einarsson.
Some agencies are committed to obstructing the spirit and intent of the act by simply responding untruthfully or when there should have been an “and” rather than an “or” they use the wording to obstruct the request.
Einarsson offers one example from his own experience of filing access to information requests to demonstrate how the word game can be played.
You make a request to provide copies of documents showing benefits to mice or to rats by the government. In this case, if there were benefits to mice but none to rats the government civil servant could use the “or” against you and say well, I can pick which one I want. So I pick rats. The response you would get back would be “No information”. Now if you had said “and” you would get the information you wanted about the mice and the rats rather than one, or the other.
Einarsson offers this advice. “With particularly tricky agencies like the one mentioned above, I will sometimes submit the same thing worded differently and approaching the information from several angles to get what they should have given me in the first place.”
And the disclosure of information doesn’t guarantee any access to categories of sensitive information which could expose ongoing malfeasance or something that might be embarrassing to a government.
As reported in the Canadian Press two years ago, at least three government departments were being investigated for alleged political interference in the release of documents.
The access to information law requires a response with-in 30 days but government agencies regularly grant themselves extensions of 90 or 120 days.
Einarsson fully supports one of the key recommendations in the Centre’s report which reads, “Public authorities should be limited to one extension of no more than 30 days, applicable only in appropriate cases.”
And the system needs reforming because it is an antiquated paper chase. The legislation reflects the non-digital world of the 1980s. Under the Access to Information Act any resident of Canada can request government controlled information for an initial five dollar fee. But the system generally prevents citizens from filing electronically and compels them instead to submit an application with a paper cheque to cover fees and to send their requests by mail.
Paul Einarsson also has a warning for anyone submitting a request for access to information, especially for businesses, the fee might end up being a lot more than just five bucks.
“Fees can run into the hundreds and thousands of dollars. One agency tried to bill GSI $20,000 to provide us with information about what GSI seismic data it had in its possession. Chances are if we agreed, they would send us thousands of pieces of redundant paper, redacted blacked-out sheets, and you have to pay for that useless pile of tree killing paper.”
While the latest report from the Centre for Law and Democracy won praise from Canada’s information commissioner Suzanne Legault who called the analysis a useful tool in her own investigation into freedom of information issues, her office does not win any praise from GSI’s Paul Einarsson.
“Her department is one of the worst for responding slowly, or for not responding at all. Poor investigations are conducted that miss the point of the complaint, or they are misled by the agency being complained about.” according to Einarsson. On the other hand Einarsson is sympathetic and lays most of the blame on the agencies that he is sure also obstruct and mislead the under staffed and resource choked Office of the Information Commissioner.
“Clearly they need more resources and they need better tools to dictate to government agencies.”
Legault is on record herself, as saying the purpose of the act is being lost as overworked bureaucrats focus on the technical application of loopholes to withhold information.
“We have lost sight of the purpose of the act.” she said. (Canadian Press Jan 09.11)
Einarsson agrees wholeheartedly.
“The Information Commissioner plays a general oversight role, and will hear complaints against misconduct, but her powers to improve Canada's overall system are limited. Successive information commissioners have called for root-and-branch reform, to no avail.” explains Karanicolas. “What is needed is political will, which can only come from public pressure and engagement on this very important issue.”
Alasdair Roberts, a Canadian professor at Suffolk University Law School is Boston was quoted in a landmark volume of freedom of information as saying the current lack of effective criticism actually encourages senior civil servants to actively resist the law.
“Parties on both sides have realized you can renege on promises on reforming the law and there’s no political consequences.” he said. (Canadian Press Jan 09.11)
Meantime the Harper government is dismissing the latest ranking from the Centre for Law and Democracy saying it has a sterling record for openness.
GSI’s Paul Einarsson easily refutes that claim. He also has some advice on what Canadians should be doing to break this culture of secrecy especially in his case where he has found abuse of power, core evasion of rules and laws, and law-bending, if not law breaking on the part of certain government bureaucrats and agencies.
Einarsson says “I am committed to strengthen the Access to Information system with more resources, more powers, better ombudsman’s, better auditors, and with more assistance for civilian “whistle blowers” who find corruption, abuse of power, and law breaking on the part of government bureaucrats or agencies. So much so I am starting a non-profit to advocate for this and serve as a help desk to victims. It is called the Centre for Responsible Government. I cannot wait to hear all the stories from people and to try to help them with the experience I have gained.”
Guest Columnist Greg Bohnert is a freelance writer, communications consultant and broadcaster in Calgary, Alberta
