Curb excuses for secrecy
There’s good reason for Ottawa to keep some cabinet documents secret: Ministers must feel free to discuss policy in a frank manner without worrying about bad publicity. But a troubling new study shows there has been a dramatic jump in claims of cabinet confidentiality, triggering understandable suspicion that this has become a handy excuse for hiding documents from the public.
The numbers are in the latest annual report from Canada’s information watchdog, Suzanne Legault. She found that government departments and agencies invoked cabinet secrecy more than 3,100 times in 2013-14, in response to requests for disclosure of federal records under the Access to Information Act. This represents a 49-per-cent jump in confidentiality claims over the previous year, which itself saw a 15-per-cent jump from the year before that.
What’s especially disturbing is that even Legault, in her capacity as federal information commissioner, is forbidden from seeing the documents involved.
So there’s no way for her to review the matter and determine if cabinet secrecy is being properly cited.
Prime Minister Justin Trudeau has pledged to deliver a government that is more open and answerable to the public. A good start would be to challenge this trend established by the former Conservative government, and bring increased accountability to the issue of cabinet secrecy.
The situation became especially murky after July 2013, when the Harper government stopped having an expert group in the Privy Council Office decide which documents should be held back for reasons of cabinet confidence.
Instead, this function was handed to government lawyers working within each department or agency.
The change raises concern over how consistently access rules are being applied and it might well account for the big jump in cabinet secrecy claims in 2013-14.
The public has been left with no choice but to take a government lawyer’s word that there’s no coverup.
With all due apologies to the legal profession, this hardly inspires confidence that Canadians’ right to know is being adequately protected.
Cabinet secrecy has become so widely cited in rejecting Access to Information requests that people seeking records are specifically asking institutions to avoid processing documents that contain cabinet confidences. Legault found more than 1,700 examples of this since 2013.
The purpose of such self-censorship is to speed up release of available records by pre-emptively avoiding rejection on cabinet-related grounds. But it does nothing to advance the principle of open government.
Quite the opposite: it amounts to surrendering to the forces of constraint.
Legault has several recommendations for boosting accountability by giving the Access to Information Act more teeth, including:
Revising the Act so that cabinet confidences are no longer “excluded” from the law. Instead, they would be “exempted.” This would give the information commissioner the right to carry out full investigations in a dispute over secrecy, including seeing relevant documents, ensuring that cabinet confidentiality is being properly invoked.
Any exemption from disclosure due to cabinet confidences should apply only to information necessary to protect cabinet deliberations. Purely factual or background information should be released.
An exemption for reasons of cabinet confidence would no longer apply to federal records that are 15 or more years old.
Prompt adoption of Legault’s key recommendations, especially those pertaining to cabinet secrecy, would be a bold way for Trudeau to turn his election promises into action.
Reform is needed. As Legault has pointed out in the past, the heart of accountability is transparency. And at the core of that is effective access to information.
A good start in delivering a government that’s accountable would be to challenge the trend of ministerial secrecy