FREEING UP INFORMATION THROUGH FOI

There are times in life when you need a crowbar to get at stuff not otherwise easily accessed. For Canadian journalists, current Freedom of Information legislation, passed by Ottawa in 1982, can function as that sort of device.

It is simply fact that governments do not issue press releases for everything that goes on within their purview. Sometimes politicians or civil servants do not want the public to know about a particular inside story. Other times, the stuff of the bureaucracy is just process that no one thinks to publicize.

Newspaper reporters who keep the FOI system in mind and make the filing of access requests part of their regular routine can reap valuable rewards, says Dean Beeby, deputy bureau chief for CBC in Ottawa. He ought to know. He files about 500 FOI requests a year.

Beeby reports that these days every jurisdiction in Canada has FOI legislation. And, because federal tentacles are everywhere, “you can shape a request that has to do with your own community or province, even though it’s federal”.

That said, the law remains a work in progress. A 2015 FOI audit by Newspapers Canada asserts: “Long delays, staff shortages, and frequent application of exemptions and exclusions have left an access regime that just doesn’t work.”

Under the audit, nearly 450 access requests were dispatched to federal government departments and crown corporations, ministries, departments and agencies in all provinces and territories, and to municipalities and police forces. It found “foot-dragging by police forces, and widespread resistance at all levels of government to releasing computer data in formats useful in the digital age”.

Standard response time was 30 days, and fees continue to be “a real barrier”.

The audit, detailed results of which are found here -http://newspaperscanada.ca/sites/default/files/FOI-2015-FINAL.pdf — reveals, “If you want to obtain information from Canada’s cities, you can expect reasonably speedy service. Provinces, on average, take a little longer, and the federal government trails far behind.

“Federal agencies, on average, take twice as long to reply as the municipalities, and that doesn’t include the requests that had not had a reply by the end of the audit.”

All such reservations notwithstanding, Beeby’s own experience suggests that FOI is an extremely handy tool for those journalists who make a point of using it. He says, “News is what people want to keep hidden, and everything else is publicity.”

FOI is about “digging for the news that people want to keep hidden.”

Moreover, FOI allows an enterprising reporter to “break from the path, to find news that’s exclusive to you and your newsroom.”

But the truth is, painfully few journalists are using FOI. According to a 2009-2010 Treasury Board report, the media accounted for just 10 per cent of the 35,000 access requests to federal departments and agencies made that year. And Beeby figures, maybe 10 journalists across Canada account for the vast majority of the media requests being made under FOI. Much bigger users are business people and lawyers.

Beeby posits three reasons why reporters are reluctant FOI users. First, they want a story today, not in the two months it might take to receive an FOI response. Second, good organization is required to keep track of the requests and when responses come due. A third factor relates to a lack of enterprise and creativity on the part of many reporters.

“Too many of us are looking for that obvious story… We read a press release or whatever and we want the story to be clear, to be laid out, we want to know its boundaries. But FOI doesn’t work like that at all.”

FOI is more like a fishing expedition, a shot in the dark. When it pays off with a great revelation, contends Beeby, “it’s like a drug. It’s like a real high,” often prompting the successful reporter to start using FOI every week or even every day.

Unlike the Newspapers Canada audit, Beeby has not found FOI-related fees to be problematic. Normally, he pays no more than the usual $5 filing fee, though photocopying fees are sometimes involved.

“The real problem with the Access to Information Act at the federal level is delays,” he says. Journalists usually wait between 61 and 121 days for responses. That is because “journalists are targeted,” with their requests getting red flagged as potentially politically dangerous or embarrassing for the government.

Their requests can get held up, with alerts being sent to the relevant minister’s office. Requests from Opposition politicians get the same treatment.

But those who complain and demand prompt service can make headway, says Beeby.

Journalists need to know that government is able, within the law, to deny release of certain categories of information.

Personal information almost always is off limits. International Affairs and Defense documents cannot be released if they might endanger national security or if the government is in talks with another government about security, trade or defence policy. Active RCMP or military police investigations cannot be accessed. Neither can material containing third-party commercial information provided by companies. Ministerial policy advice and Cabinet documents less than 20 years old also are confidential.

So, what sort of data should journalists try to get their hands on by way of FOI? “The most effective way to get ideas for requests,” offers Beeby, “is simply to read the newspaper.

“It will begin to occur to you that the news you read every day or watch on television tends to have a document behind it.”

Here are some examples of stories Beeby snared, just by thinking a bit about the news he was hearing.

• When then-Defence Minister Art Eggleton handed out medals to crew members of HMCS Toronto, returning from a four-month 1998 Persian Gulf mission, Beeby went fishing. He filed a request for “a post-deployment report” on the mission, only to discover two months after filing his request that the crew initially had been deployed to Norway but changed missions en route and, as a result, were without the clothing and medicines needed for a tropical assignment in the Persian Gulf. Outrageously, such necessities were denied to them by the government for cost reasons. Great story.

“In the end, this story cost $5, plus a postage stamp, and did not take an awful lot of time.”

• On a slow news day, Beeby had read something about the Bank of Canada having an audit department and, “out of idle curiosity,” he filed a 2001 FOI request seeking information about the bank’s audit system. He was sent a response that provided a list of audits and a request that he specify which audit results he sought. He sent off a second request zeroing in on an audit title he found intriguing — about “currency production services, $1,000 note destruction”. And he hit paydirt.

Beeby learned the Bank of Canada, executing a program to phase out $1,000 bank notes that were largely being used by drug dealers, had lost $1 million worth of the $1,000 bank notes. As a result, the bank had decided to beef up its security procedures, a story that Beeby suddenly had an exclusive on.

• In 2007, Beeby opted to test a government extension of its access information legislation to crown corporations. He wondered if anything new was happening on the high-speed rail front at Via Rail, and asked for any work done on the issue in central Canada. He received a report that, by chance, had just been completed, recommending that it was time to stop studying the high-speed option on the Montreal-Ottawa route and start making some decisions.

• Beeby read a newspaper report, again in 2007, about a small fire that had caused $600,000 in damage to the Royal Canadian Mint’s Winnipeg facility. He sent an FOI to the mint, requesting a record of the related investigation. The response from the mint came in the form of a report which revealed that, following an earlier fire in 2005, the wrong sprinklers had been installed, resulting in the fire-suppression system being ineffective during the mint’s second costly blaze.

Some practical help on filing an FOI request: The first task is to locate the particular FOI department within the government ministry or agency you are probing.

Beeby recommends using online FOI forms, which then have to be printed and mailed in. Treasury Board-provides a two-page request form, available here: https://www.tbs-sct.gc.ca/tbsf-fsct/350-57-eng.asp Alternatively, a letter of request is also acceptable.

Quite a few federal departments lately have begun accepting requests for access that, instead of being mailed in, can be fully filed online, as noted here: https://atip-aiprp.apps.gc.ca/atip/requesterInformation

On the form tick the box indicating that the request is for copies of original documents and, to avoid excessive photocopy fees and time delays, be as specific as possible about what you are requesting. Another, less convenient option on the form is to view the desired documents at a local government office.

Ask for “all records of investigation” as a catch-all phrase that potentially could net photos, videotape, emails as well as printed documents.

A $5 cheque, made out to the Receiver-General of Canada, should accompany the mailed-in request. Be sure to include your own detailed contact information.

The reporter should then keep an eye on the calendar and make inquiries regarding a response if the process is taking an excessive amount of time. “It’s up to you to keep on top of those files and make sure deadlines are being respected,” says Beeby. “And, if they’re denying you the information, you should review with them why those decisions were made and challenge them … You want to be a bit of a gladfly in the process.”

If a reporter is not satisfied with a response from a federal or provincial government department or agency, complaints may be submitted to the relevant federal or provincial ombudsman who, on occasion, may go so far as to take a case to court on the reporter’s behalf in a bid to have the sought-after material released.

Another tip: When exploring issues that have an American angle, reporters can file a Canada-related FOI request to a U.S. department or agency and sometimes receive information that the Canadian government had been reluctant to release. While a reporter must be a citizen or landed immigrant to access the FOI system in Canada, no such requirement exists in the U.S.

Recap:



• Absolutely anything related to public governance can form the basis of an FOI request, which is inexpensive and easy to file, and often provides exclusive and intriguing information that cries out for publication. Act on hunches and whims; it often pays off;

• The trick in filing is to direct the request to the right department, to ask for copies of original documents and to be as specific as possible about the information being requested, to minimize time delays and photocopy fees.