Says PMO urged staffers to pare down Access to Information documents before release.
Cabinet ministers’ offices had been under orders to pressure bureaucrats to pare down the amount of information released under the Access to Information Act up until The Canadian Press recently broke the story on how one political staffer killed the release of a document, forcing the Prime Minister’s Office to get involved and to do some damage control, says one Conservative staffer.
“Since we formed government, the PMO has been pressuring us to take a hard line on ATIP requests,” the staffer, who did not want to be identified, told The Hill Times.
The claim of apparent centrally- directed political interference in Canada’s access to information system comes in the wake of a Feb. 7 CP story that reported on how Cabinet staffer Sébastien Togneri ordered the “unrelease” of a sensitive report on the government’s real estate portfolio last July.
At the time, he worked for then minister of Public Works Christian Paradis (Mégantic-L’Érable, Que.) and subsequently pressured officials to release only 30 pages of a 137-page document. Public servants, Justice Department lawyers and consultants had agreed there was no legal basis to withhold any of the document, CP reported.
The news agency filed a complaint with Interim Information Commissioner Suzanne Legault in October 2009, though the investigation began just a few weeks ago on Jan. 29, CP said.
“There are allegations of political interference and it’s a case that has priority status,” Ms. Legault told The Hill Times last week. “We will conduct investigation as quickly as possible.”
Ms. Legault said that, to her knowledge, this is the first complaint of political interference received by the Office of the Information Commissioner.
But the staffer who deals with ATI files told The Hill Times the Paradis incident was not an isolated one, but instead a standard operating procedure.
“Sebastian…has not, from my experience, done anything that is significantly different than what ministers’ offices are expected to do by the PMO,” said the staffer.
The source said the Prime Minister’s Office has pressured ministerial staffers to head off the release of explosive information.
“The PMO does get mad at ministers’ offices when there’s an ATIP that goes out that has more information than they believe it ought to have had,” the staffer said. “They’ll yell at ministers’ offices.
The PMO’s issues management’s wing, the staffer said, is at the centre of the governing Conservatives’ access restriction system. It is said to dispense tactical advice to ministers’ offices that will help persuade departments to release less information.
The Access to Information Act does not require departmental ATI officials to notify ministerial staff about outgoing documents, but departments generally give ministerial staffers a “head’s up” so they can prepare responses for when a story breaks. The staffer said, these notifications have become “consultations,” and staffers will try to convince officials to release less information than originally intended. The staffer called these exchanges “healthy debate.”“Notify, de facto, kind of means consult,” the staffer said. “Each office does have someone that is supposed to be vetting access requests, and if we feel as though the an exemption under the act has not been properly applied, or perhaps hasn’t been interpreted as broadly as it should be, yeah, there’s an expectation on us to tell the department.”
The staffer described a few of the tactics employed to restrict the release of information. After reviewing outgoing ATI documents before their release, the source said, staffers will suggest to ATI officers that they have not applied the Access to Information Act correctly, and that more information should be withheld. Often, he said, staffers will urge greater redactions, or the withholding of whole series’ of documents that were not requested in a very specific manner.
Another tactic is to say the release of documents will damage relations with the provinces or foreign governments, conditions under which the government is permitted to withhold information, the staffer said. In such cases, the file is sent to the Privy Council Office for further consultations.
“The PMO works their magic— and I don’t know how they do this—to try to get PCO to say: ‘Yeah that will hurt relations with a foreign government, can’t release it,” said the Cabinet staffer.
Though their arguments to withhold information may be weak, they are made nonetheless, the staffer said. “As political staff responsible for ATIPs, we’ll make arguments that aren’t very strong, but we’ll still make them because that’s the role we play in government: to protect our ministers and defend the government.”
The staffer said that though it is ultimately the decision of departmental ATIP officers to decide what is released, they routinely bend to pressure of political staffers to release less information.
“They compromise,” the staffer said. “I think that if they were planning to do 100 per cent, they’ll settle for 70 per cent, but they’ll never settle for zero.”
Ms. Legault said her investigation will be examining whether or not Sec. 67.1 of the Access to Information Act was breached which is an indictable or summary offence.
Speaking to reporters on Feb. 8, PMO spokesman Dimitri Soudas said staff have been reminded “to be aware of subsection 67.1,” and said adherence to the Access to Information Act is “a condition of continued employment within this government.”
No one has ever been charged with an offence under the Access to Information Act.
Mr. Paradis told CP on Feb. 8 that Mr. Togneri remains on his staff, but has been disciplined and stripped of his duties to review such files. Mr. Paradis said he was unaware of the incident when it occurred.
“What my employee tells me here is that he really lacked judgment,” Mr. Paradis said. “He is an employee who has exceptional Parliamentary skills. But he won’t be in charge of access-to-information files anymore. …He does have an explanation so I told him, listen, you will submit that to the commissioner.”
Amir Attaran, a law professor at the University of Ottawa and a frequent user of access system, is critical of the Information Commissioner’s Office and said the apparent interference by Mr. Togneri is more than shocking.
“He clearly counselled the concealment of the records, that’s a nobrainer, and it’s a question of what defence he has,” Prof. Attaran said.
Dean Beeby, the CP reporter who broke the story on how his access request was handled by Minister Paradis’ office, is a veteran ATI user who has been using the system since it came into force in 1983. He said the ATI system has “pretty much ground to a halt” and that he’s “never seen the system to broken.”
“Back in the eighties, when I first started using it, governments were more naïve about it and were unclear about what strategies were available to them,” he said. “Over the decades, governments have gotten much smarter about ways in which the act can be circumvented or subverted…. and successive governments have become more sophisticated at finding the loopholes.”
Jim Bronskill, another CP reporter and frequent ATI user, pointed out that the Conservatives have not followed through on their ambitious 2006 campaign promises to overhaul the ATI system, with the exception of opening up Crown corporations to ATI.
“Right now there is no penalty, essentially, for failing to obey the Access to Information Act: Government breaks the law almost every day, and yet there are no real consequences,” Mr. Bronskill said. “It’s human nature: If no one going to rap you on the knuckles for breaking a law or making a mistake, people are going to take advantage of that and led things slide.”
Canwest News Service Hill reporter David Akin said he was unsurprised by the Paradis incident, adding that it’s par for the course for both this Conservative and previous Liberal governments.
“It’s not that the Conservatives are particularly bad at this compared to any other group: governments are bad, I can’t stress that enough,” he said. “Governments, historically, do not want to tell the public what’s going on in a lot of areas.”
Both Mr. Akin and the Conservative staffer agreed, it is the deputy ministers who must increase the size and professionalism of departmental ATI offices to improve the system. However, Mr. Akin said, for bureaucrats and political staffers alike, “You do not get promoted based on your ability to move access requests through the system.”
To try and uncover political interference in their access requests, Mr. Beeby said, he has begun filing access requests on how his own access requests are handled. This is how he broke the Paradis story.
Mr. Beeby said the paper trail revealed “all the hallmarks of political interference,” and said he will be watching for interference in the future, though he expects staffers will be take additional measures to hide their actions.
Meanwhile, after seeing Mr. Togneri hung out to dry, the Conservative source told The Hill Times extra caution will be taken not to leave a paper trail.
“I’m a lot more careful now with any conversations I have with my ATIP officer,” the staffer said. “They’re all in person now, whereas before I would sometimes send emails.”
The PMO declined to discuss with The Hill Times its management of the Access to Information Act system.
Days after the CP story, Mr. Soudas spoke with reporters about the government’s commitment to respecting the spirit and letter of the Access Act.
“Obviously around Access to Information, due diligence is and should be done by public servants and not political staff,” he said. “The Access to Information process should be followed and respected by all.”
Guy Giorno, the prime minister’s chief of staff, also sent a memo to all ministers’ offices just after the CP story broke “reminding them that all political staff members of their responsibility to respect access to information process” said Mr. Soudas.
In addition, Mr. Giorno raised ATI issues at the weekly Cabinet chiefs of staff meeting two weeks ago, issuing orders to review the principles of the ATI system with their respective staffs.
The staffer said the government has effectively “thrown Sebastian under the bus.”
The staffer said the government moved quickly to “preemptively insulate” itself, with Mr. Paradis denying knowledge, and the PMO sending these memos. The effect, the staffer said, is to leave Mr. Togneri face the wrath of the information commissioner alone.
The practical effect of this fracas, the staffer said, is that the Access to Information system will likely improve. After all, the next time a political staffer tries to exert influence over outgoing ATI documents, departmental officials can push back, reminding them they are under express instructions not to interfere.