Governments know a lot of stuff. But it’s sometimes very difficult to pry any of that knowledge away from them.
The early 1980’s marked the start of the openness era for many governments, including Canada which introduced the Access to Information Act and the Privacy Act (collectively known as ATIP) in 1983. The Privacy Act enables individuals to request personal information that the government holds about them, whereas the Access to Information Act enables anyone to request government records generally, subject to numerous exceptions.
Canada has more recently followed the lead of other countries with “Open Data” projects that put government gathered data - often of a statistical nature - into the public domain, so that others can make use of it. Though some data remains closely guarded. And we lag behind other places in putting raw documents (or really much of anything of a timely nature) online for easy download.
For a while I served as Canada’s Director of E-Business Development. Not surprisingly, our Electronic Commerce Branch of Industry Canada had a series of website pages explaining what we did, and containing links to useful sources. In essence, we were in charge of the Internet from the Government of Canada’s perspective. Think I was able to change even one word on that website during my entire tenure as Director? Nope.
Government putting it all out there online (even for sensitive private matters that might cause legitimate pause in Canada) is especially prevalent in the United States where the then world leading Freedom of Information Act was implemented as early as 1966. The White House even puts its legal opinions online (though by retaining private counsel this openness can be somewhat circumvented)!
So Canada’s governments (and really any governments outside the U.S.) can be a little slow at information dissemination. Governments are often more reactive, than proactive, when it comes to information sharing. But government functionaries can actually be quite helpful if you know who and how to ask for the right information that you need.
Getting a useful response to an ATIP request involves a lot more than luck. As an information and privacy lawyer, who used to work inside government on such requests and who now assists private clients in getting information out of government, here as my top 5 rules for writing winning requests. I actually call these “rules” rather than “tips” because if you ignore these points, you likely won’t be getting any useful results for your efforts.
While this post is focussed on federal Government of Canada access to information and privacy laws, its principles would apply equally to provincial government access and privacy legislation which often works in quite similar ways.
1. Target Correct Government Department for Information
The government operates in silos. Contrary to what you might think from watching TV shows about high tech pan-government all-knowing data systems displayed on giant screens in darkened rooms - modern version’s of Kubrick’s Dr. Strangelove bunker warroom - at least for Canada government information systems are often old, creaky and not interconnected.
The government doesn’t operate in the cloud, because the government doesn’t trust the security of the cloud. But the result at least some of the time is old file servers in dusty closets and paper files of undigitized information.
With luck, a single government department knows what information it possesses. But it definitely doesn’t know what’s in the hands of other government departments. And government departments often don’t like to share or play well together
So the first principle of good access and privacy requests is to get the department right where you think the information you want resides. If you’re not sure, make requests to multiple departments. It’s cheap fun. Depending, of course, on your idea of fun.
2. Be Precise About Subject & Date Range of Information You Need
Don’t be too general in your request for information. The easier you make the government workers’ jobs in finding you the information you want, the more information you’re likely to get.
If you want a specific record, name it. If you want records on a specific topic, be precise about that topic. Likewise be precise about the date range for records.
The Access to Information Act defines “record” as “any documentary material, regardless of medium or format.” So asking for “records” is probably your best bet, rather than a long winded description of emails, power point presentations, briefing notes, and the like.
There is a balancing act between being too precise in your request so that you get nothing, and not being precise enough so that again you get nothing. Generally speaking it’s better to be too precise than too general.
Too precise might require you to draw back a bit and submit a second slightly more general request, but the government’s access to information coordinators can actually be quite helpful in shaping requests to make them more responsive. Give them a specific record target, and they will work with you. Give them a dump truck of information that you want, and they may not be so accommodating.
3. Ensure Right Person is Making Request for Information
Under the Privacy Act, you can only request your own information. Under the Access to Information Act, only a person or corporation inside Canada can request information. Using an authorized agent inside Canada with a Canadian address to request the information for you is fine. Just don’t try to get the government to provide information to you outside Canada or as a non-Canadian. Work with a Canadian inside Canada (like a lawyer) if you are outside Canada or a non-Canadian.
Send along a use of a representative signed authorization form if you are working with an agent or lawyer to request information for you, since the government needs official authorization to send the requested information to someone other than you.
4. Resubmit Redrafted Request if You Don’t Get What you Need
Because of my “cheap fun” point above, unlike a legal procedure like a court action which has a huge cost to recommence from the start if it fails, and might not even legally be possible to get going again because of res judicata, nothing stops you from resubmitting variants on earlier ATIP requests. Use a different date range. Use different keywords. Think of it like a very slow Google search.
Maybe the information you’re looking for doesn’t exist. Or maybe you just didn’t ask for it in the right way.
Sending in hundreds of additional requests for information are likely to be deemed frivolous, and eventually the government will stop working with you. But a couple of additional requests, aiming at slightly different targets on the government information rifle range, might score a bullseye where your first request totally missed the mark.
5. Be Prepared to File Complaints on Exemption Claims to Information or Privacy Commissioners
Appeals of denials of information - either under access or privacy requests - can be a lot of hassle, and take a lot of time. Better first to just work with the government department in question to see if you can resolve the issue amicably. Maybe documents can be edited to give you some information, rather than sending you reams of blank sheets in response to your request.
When I was responsible for responding to one legal demand for disclosure of a voluminous government operations manual as part of a court case, I spent days blanking out page after page, or leaving in a line here and there, concerned that putting it all out there would compromise government security. I later found out the litigant had also made an Access to Information Act request outside of the court process, for the exact same material, and received about 90% more information than I was ready to release because that government department had stacks of pre-vetted “sanitized” operations manuals pre-printed just sitting in a warehouse, waiting for someone to ask for them.
So don’t assume that access to information coordinators are there to frustrate you. On the contrary, they’ll probably be way more helpful than lawyers like me would be who always tend to take conservative views of public disclosure. Access coordinators have as a primary role the promotion of the release of information, not its suppression.
But sometimes you’ll run into a wall, being told information does exist within government, but that you’re not going to get it because of one of a few notable exemptions. The most commonly cited exemptions are:
a. information obtained in confidence from another government;
b. information injurious to conduct of federal-provincial affairs;
c. information injurious to conduct of international affairs or defence;
d. law enforcement information;
e. information injurious to economic interests of Canada including contractual negotiations;
f. personal information (as defined in the Privacy Act);
g. third-party trade secrets, financial, commercial, scientific or technical information “treated consistently in a confidential manner by the third party,” or which could reasonably be expected to prejudice the competitive position of a third party or interfere with contractual or other negotiations of a third party;
h. advice, recommendations or plans for government operations;
i. solicitor-client privileged information.
Government invoking one of these exemptions to information disclosure could be quite legitimate. But the statutory language of the exemptions is very technical, thus whether they apply or not might involve nuanced judgment calls subject to arguable disagreement.
Complaints over refusals (or unreasonable demands for production fees) may be made to either the Information Commissioner (for Access to Information Requests) or the Privacy Commissioner (for Privacy Act Requests). They both have investigative powers and the ability to make recommendations on disclosure. Court action on information denial is also possible.
Following these “rules” may not get you everything your want every time out of an access to information or privacy request, but they should at least maximize your prospects of success of getting something responsive, instead of just a stack of blank pages.
Gordon S. Campbell is an information and privacy lawyer who assists clients throughout Canada with obtaining information from all levels of government. He has served with the Department of Justice Canada, the Attorney General of Ontario, the RCMP, the Canadian Armed Forces and Global Affairs Canada, as well as litigated public law cases up to the level of the Supreme Court of Canada. Learn more at www.acmlawfirm.ca.