Foreign Affairs violating disclosure laws: experts
OTTAWA — Canada's Foreign Affairs Department has systematically prevented the release of hundreds of thousands of government records on everything from the mission in Afghanistan to the NATO briefing materials Maxime Bernier left at his girlfriend's home, Canwest News Service has learned.
Two legal experts say the Department of Foreign Affairs and International Trade (DFAIT) violated Canada's Access to Information laws when it decided to systematically charge "preparation fees" before responding to Access to Information requests, effectively creating a barrier to government records being sought by ordinary Canadians, academics, businesses and journalists.
An official with the Office of the Information Commissioner, Parliament's Access to Information watchdog, said it is investigating complaints that have been filed over the policy.
"There is an issue there over possible denial of access," Andrea Neill, the assistant commissioner of information, said Friday.
An official with the department, however, said it is applying fees within the bounds set by the federal Access to Information Act.
"DFAIT does not prevent the release of information," Marie-Christine Lilkoff, a spokeswoman for the department, said in an e-mailed statement late Monday.
"It administers requests in full respect of the Act, including the permissible fees directives."
Although other departments charge "preparation fees," usually for paper-based records, DFAIT is the only major federal government department insisting "preparation fees" be paid for routine computerized records before it will release censored versions of those records.
Someone making a request could pay hundreds of dollars to "prepare" the records only to receive documents that have been completely blacked out.
Preparation fees cover the cost of the censors — the actual act of blacking out sensitive government information. They do not cover the cost of searching for the documents or photocopying.
Ironically, Canwest News Service learned about DFAIT's policy to charge preparation fees for Access to Information requests through records disclosed because of an Access to Information request.
"This is illegal as stink," said Amir Attaran, a law professor at the University of Ottawa who has sued the federal government over its disclosure policies.
Attaran has used Access to Information laws to force the federal government to turn over important information about the way Canada was treating prisoners captured in Afghanistan. He is one of those who has received hundreds of pages of blank, blacked-out records as a result of one of his requests.
"This is totally against the essence, the very spirit of the law itself," said Michel Drapeau, a lawyer and retired colonel who worked on Access to Information files during his career with the Department of National Defence. Drapeau is the co-author of a textbook on Canadian Access to Information laws.
In January 2008, department bureaucrats, faced with a growing backlog of requests for information, decided that the best way to clear that backlog was to "more fully administer" fees it believes it can charge under Access to Information laws, according to documents obtained by Canwest News Service.
But bureaucrats themselves recognized their decision might be controversial, saying in one of the documents: "While there were speculations that the (Access to Information) office was attempting to discourage its clients from exercising their rights of access, the truth of the matter is that the . . . office was simply putting forward all efforts to reduce the workload . . . in order to provide a better service to its clients."
Both Attaran and Drapeau say the department's rationale — service will be improved if service to some is denied — makes no sense.
"They're doing this to discourage access to records," Drapeau said. "It's wrong. It's fundamentally wrong because it goes against the spirit of the act itself."
Within six months of implementing a policy of insisting those making requests pay what could amount to hundreds of dollars in "preparation fees" for what were in some cases routine government records, an interdepartmental memo says that 161,996 pages of records the department was getting ready to release did not have to be placed on the public record because the requests for information were abandoned because the preparation fees were too high.
"I do not consider this a success," Attaran said. "Instead I consider it systematic, illegal interference with Access to Information at DFAIT. The fact that (the department) admits instituting these measures on a department-wide scale to trim backlogs is alarming."
All government departments charge reproduction fees to cover the cost of photocopying records to be released under an access request and all apply a uniform formula for "search fees" if, for example, an employee has to comb through a large number of filing cabinets. But those making requests can get around those charges by, for example, asking for the records to be released in electronic form on compact disc or narrowing or fine-tuning their request to avoid search time.
But DFAIT is alone among major government departments in systematically applying fees for "preparation" simply based on the number of pages in a request.
Transport Canada, for example, processed more than 1,200 access requests in 2007-08, an increase of nearly eight per cent, but did not record a penny in preparation fees for the whole year.
At the Department of Public Safety, the number of access requests has tripled in the last five years but it, too, has not introduced a preparation fee policy.
In 2007, the Department of Citizenship and Immigration processed nearly 10,500 access requests and charged less than $90 in preparation fees for the whole year.
In the year ending March 31, 2008, DFAIT processed 2,696 Access to Information requests and released 449,000 pages of records.
DFAIT's own records show that any backlog that existed in its Access to Information division was not the result of a new flood of requests directly to the department but the result of requests from other government departments and from investigative bodies such as federal inquiries.
The documents obtained by Canwest News Service show that DFAIT personnel expected the total number of requests to increase by 13.2 per cent this year.
The Access to Information section within DFAIT has 42 employees. Managers of that section complain in one of the memos that "this will not be enough to address the current and projected workload."
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