Inside Canada’s broken freedom-of-information system: ‘An affront to democracy’

A developer from Cornwall, Ont., is perplexed to find that his building permits are suddenly being denied. He files a request under freedom-of-information law for copies of any city records about him or his company. Three months later, he’s told he will need to pay a $1,963.50 processing fee. When he does, he receives pages of mostly blanked-out paper, a full box of his own building applications and files and a note that 3,500 records are being fully withheld.

In Saskatoon, a woman wants to learn about the outcome of a police investigation in which she was a complainant. She submits a freedom-of-information request and specifically asks for a copy of her witness statement, as well as copies of e-mails that she had provided as evidence. In response, the police service refuses to release those records without redactions, because of privacy concerns – privacy concerns about records she supplied.

A wildlife protection organization is skeptical of an Alberta government claim that scores of wild horses need to be culled to prevent ecological damage. They believe the assertion is based on data that was given to the government by a ranchers’ association. The activists request those records, and are told they will need to pay the association for a copy. The price tag: $110,022.15.

These cases, which are among hundreds reviewed by The Globe and Mail, are a snapshot of the frustrations and stonewalling Canadians encounter every day when trying to access public information using the legal framework governments have created.

Freedom-of-information laws – sometimes called access-to-information laws – give people the right to obtain records from public institutions. These laws exist in every jurisdiction in Canada and in countries around the world, and are meant to serve as a vital check on power.

The legislation enshrines into law the principle that information in the possession of governments belongs to the people, and that citizens must be able to access that information to participate in society and make informed decisions. This is why freedom of information is often called the oxygen of democracy.

When the federal government enacted its legislation 40 years ago, Canada was among the first 10 countries in the world to do so, making it a global leader. But today, after decades of neglect by successive provincial and federal governments, Canada’s freedom-of-information regime is broken.

This is how the system is supposed to work: A person submits what is known as an FOI request – a formal, written request for a record. Once a public institution receives it, an FOI co-ordinator will start tracking down the requested files. Access laws recognize that some things can’t be made public, so all the legislation sets out exemptions for certain information, such as anything that would pose a threat to national security or compromise someone’s personal information. An FOI co-ordinator is supposed to review each file line by line and only redact as necessary. The default is supposed to be transparency.

From there, every access law says institutions must release the information to the requester within a set time frame – often 30 days, with some exceptions.

But this isn’t happening.

For the past 20 months, The Globe has been investigating how and why the system has come apart, as part of a project called Secret Canada.

Through hundreds of interviews, an analysis of thousands of government records and appeals decisions, as well as a national audit of FOI statistics and practices, this reporting has shown that – at a time of plummeting trust in government and institutions – every day, public bodies and governments at every level are breaking the law.

Across the country, FOI units have been starved of resources and staff. Institutions can no longer meet their statutory deadlines. The laws themselves are impractical in a digital world. And it is normal for institutions to refuse to release records that judges and adjudicators have repeatedly said are public, such as government contracts.

Meanwhile, public servants are regularly advised by their superiors to withhold information – even if the legislation permits its release – to avoid risk or embarrassment.

Exacerbating the problem is the fact that, in the Canadian system, there are few to no consequences for breaking access laws. As a result, institutions are denying the public access to its own information as a matter of routine.

For users of the system, there is little recourse. Requesters of information can appeal if they’re dissatisfied with a public institution’s response, but that can take years. And even if an adjudicator determines an institution contravened access law, the most likely consequence is that the body will be forced to release records it had previously withheld. Even minor professional repercussions for public servants are rare. (Canadian access laws include “offences” sections with potential punishments, but these mainly relate to privacy breaches and knowingly destroying or altering records that should be released.)

Another strain on freedom of information is that processes that could be handled more efficiently outside of the system have been relegated to it.

For instance, about 80 per cent of all federal access requests go to Immigration, Refugees and Citizenship Canada, the vast majority of them from people looking for information about their own immigration applications. The FOI system was never designed to handle this type of inquiry, and the requests have overwhelmed the department.

Similarly, historical records – which go through a declassification process in other countries – have to be assessed using access legislation in Canada. As a result, the pipeline has become so backlogged that Canadian historians often rely on the national archives of other countries to research Canadian history. Both issues will be explored in future Secret Canada stories.

Political leaders have effectively created a freedom of information regime that incentivizes institutions to keep public records secret.

“The way government has been handling access, I think, is an affront to democracy. Period,” said Stephen Azzi, a political historian and former public servant.

“If you believe in democracy‚ you have to believe that the public has a right to be informed. The public can’t pass judgment on government if we don’t know what the government is doing. But how can we assess the work of government if we don’t have information?”

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A fundamental human right

The first freedom-of-information law was passed in Sweden in 1766, but for the rest of the world the modern access movement began in the 1940s.

As global leaders grappled with the aftermath of the Second World War, they examined the role that Nazi propaganda had played in manipulating the German public and enabling Hitler’s rise, said Sean Holman, a professor at the University of Victoria who has extensively studied the history of Canada’s access law. Access came to be viewed as a powerful tool for peace.

At the first United Nations General Assembly meeting in 1946, leaders adopted a resolution that declared: “Freedom of Information is a fundamental human right and is the touchstone of all the freedoms to which the United Nations is consecrated.”

It took another 20 years for the United States to formalize this sentiment with its Freedom of Information Act. After the U.S. Senate voted the bill through, MP Barry Mather, a New Democrat from British Columbia, tried to establish a Canadian version.

“The bill enacts the basic parliamentary rule that public affairs must be conducted publicly,” Mr. Mather declared in the House of Commons, which at the time was controlled by the Liberal government of Lester Pearson.

But the Canadian law went nowhere.

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Then, in the early 1970s, the United States was rocked by the Watergate scandal. This gave new life to the access movement in Canada, and in 1977 Nova Scotia became the first Canadian jurisdiction to enact an FOI law. Still, successive federal governments failed to move forward. Finally, in 1982, Pierre Trudeau’s Liberals voted through the legislation – although, to the chagrin of access advocates, the government inserted an eleventh-hour exemption to protect cabinet records from public release.

Canadian access laws have not been meaningfully updated since then. The Centre for Law and Democracy, an international human rights organization based in Halifax, now ranks Canada’s federal FOI legislation 51st in the world.

Even with the system’s challenges, Canadian journalists, researchers and advocacy groups have used FOI to expose corruption, systemic racism, the misuse of public funds and public health crises.

It was an access request that revealed the Canadian government knew in 1984 that hemophiliacs were becoming infected with HIV through contaminated blood, even as the government continued to use untreated and untested blood; an access request that revealed allegations that Canadian soldiers had abused Afghan detainees; and an access request that kick-started the sponsorship scandal, which revealed the Liberal government of Jean Chrétien had been awarding contracts to companies linked to the party, for doing little or no work.

These revelations are the exception, not the norm.

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Canada’s access dysfunction, in numbers

As part of the Secret Canada reporting, The Globe conducted an audit of how provincial, territorial and federal governments are handling access requests. (Each jurisdiction has its own freedom-of-information law.) In total, The Globe filed 253 individual FOI requests with every government department and ministry in the country, seeking access to their 2021 internal request tracking systems.

All 22 ministries in Alberta refused to comply with The Globe’s FOIs. Those that gave explanations said there were “no records.” Andrew Hanon, communications director for Service Alberta and Red Tape Reduction, acknowledged the province uses a tracking system, but said in a statement that fulfilling The Globe’s request would have required it to create a record that did not exist in electronic form. “Therefore, in accordance with section 10 of the FOIP Act, there were no records responsive to your request.” He added the province is exploring whether it can provide some of the requested information.

Altogether, 225 public bodies were included in the analysis.

The Secret Canada audit determined that only 21 per cent of FOI requests were granted in full in 2021. Another 46 per cent were granted with redactions. Only 50 per cent were completed within 30 days. Most jurisdictions require a decision to be made within this time frame. (Each access act allows for extensions in certain circumstances.) In total, 5 per cent of requests took more than six months.

(These calculations exclude ministries of the environment in Quebec and Ontario, because, combined, they account for 33 per cent of all FOI requests in the data set, and their numbers skewed the results. The ministries receive high numbers of requests from lawyers and engineering firms doing research on properties, which disproportionately generate “no records” responses. When these ministries are included, the results are as follows: 19 per cent of requests were granted in full, 37 per cent were granted with redactions, 55 per cent were completed within 30 days, and 8 per cent took more than 6 months to process. Immigration, Refugees and Citizenship Canada data did not overwhelm the data set, because it appears the department did not include personal records requests.)

Although only a small fraction of FOI requests are ever appealed, The Globe conducted an analysis of 1,098 publicly available provincial and territorial appeal decisions from 2022. That review found that, in cases where appellants had raised concerns about the overuse of redactions, adjudicators ruled that public institutions had wrongfully withheld information 59 per cent of the time.

But the true rate is likely much higher. The appeals decisions show that public institutions will often backpedal on their redactions – or discover new records – as soon as an appeals commission gets involved.

For example, in a 2022 case out of Regina, a requester complained when the municipality refused to release records dealing with a development company. The city claimed an exemption designed to protect business trade secrets.

Once the appeal was filed, the city released everything. “As such, this review will no longer consider the exemptions the City applied to the records,” the adjudicator wrote.

When these types of cases are factored in, a conservative reading of public appeals decisions shows that unnecessary redactions and exclusions were present in at least 68 per cent of appealed cases.

Appeals adjudicators also found that public bodies had conducted inadequate searches for records about a third of the time this complaint was raised, and that 93 per cent of complaints about delays were valid.

Across the appeals reviewed by The Globe – regarding redactions, delays, fees, improper searches for records, attempts to decline to process requests – adjudicators disagreed with institutions’ decisions more than 60 per cent of the time.

The Globe had to analyze Quebec separately because its appeals process runs, uniquely in Canada, as an administrative court. In the province, only about a third of publicly available cases resulted in wins for appellants.

The most recent annual report from the federal appeals body, the Office of the Information Commissioner, concluded that 64 per cent of complaints that required a decision were well founded. (The vast majority of appeals – federally and otherwise – are resolved prior to a decision.)

An overburdened, under-resourced system

To better understand what’s happening on the ground, The Globe interviewed more than 200 people who interact with the access system across Canada, including current and former FOI co-ordinators and managers, appeal officials, politicians, political staff and members of the public service, as well as high-frequency users of the system, including academics, members of environmental advocacy groups, consultants and lawyers.

They described a system that has been deprived of resources, that struggles to fill staff vacancies and that has not kept pace with the digital age. Canadian freedom-of-information laws were written at a time when the concept of a “record” did not include e-mails, text messages and Slack conversations. This means that today there are exponentially more records to process, and not enough people to do the work.

These individuals discussed a regime that has little standardization – even ministries within the same government very often have different policies on what can be released – little training for staff and high turnover as a result of burnout and cross-sector poaching.

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But more than anything, those who work and interact with Canada’s access system say the problem is a widespread belief that transparency is not a priority.

“Essentially the core of the Access to Information Act is you’re supposed to have access and the exemptions are really the exception to the rule … the exemptions are supposed to be as limited as possible,” said Suzanne Legault, who served as federal information commissioner for nine years, until 2018. “The case law has confirmed that interpretation. Is it done that way? My experience was completely the opposite.”

To Ms. Legault, it appeared as though federal public servants were taught to go through each document and look for every exemption that could be applied. This mindset, she said, needs to be reversed. Staff should find every way to make information public. And many exemptions within Canada’s access laws are discretionary, so public institutions could make the call to release information.

Except they often don’t.

One explanation for this, said James Turk, the director of the Centre for Free Expression at Toronto Metropolitan University, is the imprecise wording of the legislation. In Ontario, for example, one of the most commonly cited exemptions concerns “advice or recommendations” made to government officials. The law states that records that fall under this category “may” be withheld. The wording puts the onus on the public servant.

FOI co-ordinators who spoke to The Globe said the safest option, often, is not to release records.

One manager at a federal access unit said the reason for this is that there are potentially severe career consequences for inadvertently creating a privacy breach – up to and including firing – but seemingly none for improperly withholding information access. The Globe is not naming this manager or other government workers interviewed for this story, because they could face job-related consequences for speaking publicly.

Graham Steele, the Information and Privacy Commissioner in Nunavut, eloquently captured the disparity between the law and its application in a 2022 appeal decision involving the territory’s Department of Education. He wrote: “A law is not a suggestion, to be followed only if circumstances permit. Unfortunately, the scheme of [access to information] in Nunavut includes no consequences for non-compliance. As a result, some public bodies do treat their [access] obligations as optional – not every day, and not on every file, but too often. If the legislation is not amended to provide some consequences for non-compliance, we can expect to see more files like this one.” (Mr. Steele found that the department had taken no steps to complete an FOI request more than six months after receiving it.)

According to Mr. Turk, governments must fix the cost-benefit analysis that is prompting civil servants to err on the extreme side of caution, at the expense of transparency.

“Ultimately what’s at stake here is the health of our democracy. … People may feel that it’s an overstatement to say that, but I think it’s actually the case,” Mr. Turk said. “Information belongs to the people. The government is the caretaker.”

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Denials and delay tactics

Brian Beamish, a former Ontario information and privacy commissioner who ended his term in 2020, said government contracts are perhaps the best example of records that are indisputably public, but that institutions regularly withhold. During Mr. Beamish’s tenure, he said, the IPC was constantly being asked to adjudicate these cases.

“We would consistently order them to be disclosed. We would be upheld by the courts. This is established law. Not just by us, but by the courts as well. But ministries continued to deny,” he said.

Contrast this with the United States, where state, federal and municipal contracts are considered public records and are often proactively published online.

As part of its reporting, The Globe filed a series of FOI requests designed to test precedents that had been set by appeals bodies and the courts, including precedents dealing with contracts. For example, The Globe asked for copies of a waste collection contract between the City of Windsor and its external waste contractor, GFL Environmental. The request was fully denied under an exemption that protects business trade secrets.

Mr. Beamish said access laws give third parties – such as businesses – the right to be notified if their information is going to be released, and the right to appeal if they believe the information shouldn’t be. (This is what happened with a Globe FOI to the Halifax Regional Municipality for its GFL contract. The city agreed to partially release the GFL contract, but notified the company, which filed an appeal. That process is continuing. The backlog in Nova Scotia is three to four years.)

But in Mr. Beamish’s view, a government doesn’t need to ask permission from a company to release a public contract. There may be sections within a contract that are sensitive, and where redactions would be appropriate. But the general scope of work and total amount can be released, he said.

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Exemptions aren’t bad if they’re being used properly, said Ken Young, who was the City of Richmond’s manager of records and information until he retired a decade ago. Mr. Young gave the example of an FOI request he received ahead of the 2010 Vancouver Olympics, which asked for building plans for the speed skating rink. The request raised obvious security concerns and was denied.

But sometimes, the reasons for withholding information seemed more politically motivated.

“I can remember one instance … they said, ‘Well we can’t release that, that would be embarrassing.’ Well, embarrassing to whom? You go through the act and show me where the word ‘embarrassing’ occurs, because it doesn’t,” Mr. Young said.

One provincial senior policy analyst told The Globe that things as simple as workplace politics can lead to documents being withheld. In a typical FOI process, co-ordinators track down files, subject matter experts examine records for exemptions and – particularly with sensitive files – senior officials will have final approval of releases. No one wants to make an enemy of a superior.

The policy analyst recalled multiple instances when records were sent to a minister’s office for a final review, and then “someone would actually tell us: ‘Don’t release that. I know you have it, but you need to think about it some more.’ These directives would come down. I would say to my boss, ‘Well, why are we even paying attention to them?’ And he would say: ‘Well, it’s the minister’s office.’”

One lawyer with the federal government, who spent time working in freedom of information at the provincial level early in her career, said that during her time in the access unit no one ever explicitly said to “find a way to not release” a certain document. But she said she believes it was common for the release of contentious records to be intentionally delayed.

She recalled putting together response packages, applying the appropriate exemptions, and then sending them off for final approvals from more senior public servants.

“It would take weeks or months while they took their time to decide. I felt like that was a way that they slowed the release of information to the point where it just wasn’t interesting to the requester any more,” she said. “And it is true that we redacted things that we weren’t 100-per-cent sure were redactable, and we said, ‘Well let’s see if they take it to IPC.’”

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Patricia Kosseim, Ontario’s current Information and Privacy Commissioner, said she regularly sees organizations hiring expensive lawyers as a way of prolonging freedom-of-information processes. “They know they’ll have to release this information anyway, but they will try to delay as much as possible because of other agendas … We do see that,” she said. “It’s another misuse or abuse of the system.”

It’s impossible to quantify how much this practice is costing taxpayers, because those details aren’t disclosed. It’s also not possible to use FOI requests to obtain legal costs connected to specific files, because this is covered by the solicitor-client privilege exemption – but there are clues.

Daniel Michaluk, a Toronto-based lawyer at Borden Ladner Gervais LLP who specializes in freedom-of-information and privacy issues, said that large Ontario institutions have the capacity to handle FOI appeals internally, but smaller public institutions sometimes seek the guidance of professional law firms.

While a law firm’s billings to a government on FOI matters depend on the type of appeal, a complex dispute over a request for a large amount of correspondence could cost $50,000 to $100,000, Mr. Michaluk said. A narrower appeal focused on a smaller number of documents could cost between $10,000 and $20,000. Those are the kinds of files Mr. Michaluk’s practice specializes in.

Mr. Michaluk said his team handles five to 10 appeals at any given time.

“If there’s a real downside to the information getting out, that’s when external counsel will be engaged by the institution,” he said.

What is clear from The Globe’s reporting is that reputational damage related to FOI requests is a high-priority concern for government.

Every week, access staff are made to prepare extensive reports and briefing notes for government communications teams. High-level staff are kept apprised of potentially damaging information that may be released. They’re looped in before it’s released and given opportunities to argue for redactions.

The Globe obtained a two-and-a-half-month snapshot of FOI briefing reports that were sent to Ontario’s Cabinet Office communications team. The document was 2,362 pages long and included summaries of requests, details about the requesters (for example, whether they were individuals, media outlets or “suspected media”), as well as the status of each request and sometimes whether it was “sensitive.”

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A dearth of expertise

A lack of resources within institutions is a constant complaint among those who work in the sector.

Unable to manage the load, governments have taken to hiring out millions of dollars worth of freedom-of-information work, creating a cottage industry of FOI contractors. According to a confidential report that was prepared by the Treasury Board of Canada Secretariat and obtained by The Globe, the federal government has spent $36,207,247 on access-to-information consultants in the past three years.

This dynamic can create a customer-service relationship between contractors and public institutions, which can incentivize the withholding of information and foster a culture of giving the government what it wants, rather than adhering to the principles of the law. Seasoned FOI co-ordinators are quitting the public sector to work for these companies, worsening the labour shortage.

Almost all of the FOI co-ordinators who spoke to The Globe said they had no training or experience with access legislation before they were hired. One said she job-shadowed another co-ordinator for a week, although she said this co-ordinator was also inexperienced.

Another co-ordinator, who works in an Ontario ministry, received two weeks of training, which he said is on the high end, from what he has seen. “Everything varies so much from ministry to ministry. It’s really ministry dependent,” he said.

Those who work in the sector say high turnover rates and a lack of training for co-ordinators is a major problem.

Diane Hall, who worked as a mediator with Ontario’s FOI appeal commission until 2021, said it can take years to become comfortable with the province’s Freedom of Information and Protection of Privacy Act. It’s not just a matter of learning the legislation. Co-ordinators also need to know how to apply the precedents that are constantly being set by appeals bodies and the courts.

New or inexperienced co-ordinators, especially in smaller institutions, can be left to navigate these thorny issues on their own, often without adequate resources, support and training, Ms. Hall said.

“So they’re struggling to meet even the most basic requirements of the Act, such as issuing adequate access decision letters and meeting their timelines. They’re struggling to identify the proper exemptions.”

The Information Access and Privacy Protection program at the University of Alberta is the only comprehensive program focusing on FOI and privacy rights in the country. (Several of the co-ordinators who spoke to The Globe had completed the program, but only after they began working in the field.)

The program has six semester-long courses. James Franks, a senior instructor with IAPP, said that while the material does look at the legislation, the courses are more about why access is important.

“We talk about the philosophy. The concepts. The principles. The history,” he said. “We start talking about this going back to Francis Bacon and his whole idea of knowledge as power … We give people a background and a foundation for why this is meaningful for us as citizens and a civil society.”

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Real-world consequences

While journalists may be the most visible users of the FOI system, the public and businesses make up the largest groups of requesters, according to statistics on users of the federal access system from the Treasury Board. These users also bear the brunt of the system’s failings.

Julie Woodyer, of the wildlife protection organization Zoocheck Canada, fought back when she was refused data that she believed the Alberta government was using to justify the culling of wild horses. Her FOI request had been denied by Alberta’s Environment Ministry under a discretionary exemption that allows the government to refuse to provide records that are “available for purchase by the public.” The Rocky Mountain Forest Range Association, the ranchers’ group that had produced the data, said the cost would be $110,022.15. Later, the province changed its position and notified the association that it planned to release some records. The association appealed, saying it objected to any of its data being released.

This was despite the fact that the association and the government had an agreement in place that said any data the ranchers submitted to the minister “shall become the property of the Minister, and … [is not] confidential for the purposes of the Freedom of Information and Protection of Privacy Act.”

Ms. Woodyer won last August, but the entire process took seven years. By then, the ranchers’ association had signed a new agreement with the province, which said that their data could not be released without its permission. (Zoocheck’s position is that the government can’t sign a contract to exempt itself from FOI. Ms. Woodyer has filed a new request for updated data.)

The Globe reached out to members of the association for comment, but did not receive a response.

Ms. Woodyer said it is unlikely an average person would have the time or energy to fight the way she did. “And we ended up having a lawyer do our submissions, so it can be expensive,” she said. “I think the FOI offices in individual departments are aware of that and rely on it … They know the information commissioner’s office is really backed up.”

Another user who experienced the system’s shortcomings is the woman who filed an FOI request with the Saskatoon Police Service to learn more about the outcome of her police complaint, and to obtain copies of records she had supplied during the course of that investigation.

This woman is not named in public records, and The Globe could not locate her, but the outcome of her appeal is public. In rendering a decision, an adjudicator found it “would be an absurd result” for police to withhold the woman’s own files. The police service was asked to produce the records nearly two years after she filed her request.

Kelsie Fraser, a spokesperson for the police service, told The Globe in a statement that police must balance privacy with transparency. This, she said, “also makes it challenging to address your inquiry directly due to our obligation to protect the privacy of both the applicant, as well as sensitivities on the file.”

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And then there is the Cornwall developer, Aaron Bell, who wanted to know why his building permits were being refused.

A little more than 10 years ago, Mr. Bell started a small development company, Rothmar Holdings, in and around the city of about 48,000 in Eastern Ontario. Mr. Bell began with houses: he would finish one, sell it, and then roll the profits into the next. As the company grew, Mr. Bell saw an opportunity: The city’s downtown was rife with neglected storefronts. His company began buying up derelict buildings, fixing them, converting the second floors to residential apartments and then finding tenants.

Everything was going great, he said, but then, in 2020, the city asked to purchase a chunk of some of Mr. Bell’s property to widen a road. He pushed back on the price, which he felt was below market value. After that, Mr. Bell said, the city began rejecting his building permits, citing issues that had never come up in the past, even though his builds are all very similar. His experts said the city’s reasons were not consistent with the building code.

Mr. Bell went looking for answers through freedom of information. He had his suspicions about why the permits were being denied, but wanted proof. Three months after he filed, the city said he would need to pay a $1,963.50 fee for the files.

“I got back some very expensive black paper,” Mr. Bell said. A letter from the city cited four exemptions as justification for withholding thousands of pages: law enforcement, third-party information, solicitor-client and litigation privilege and personal information.

Mr. Bell has taken the city to court over the denied building permits.

In a statement to The Globe, Mark Boileau, Cornwall’s interim chief administrative officer, said building officials are required to refuse to issue building permits if they have determined that proposed construction does not meet the standards set out in the building code. He added that there is no connection between the review of building permit applications and the city’s process for acquiring property for road widenings.

He said the city is required to treat FOI requests as confidential and could not comment on the one filed by Mr. Bell.

Mr. Bell said the episode had soured him on the access system. “Before all this, I’d heard the term ‘freedom of information’ but it’s not something I had had need of. I didn’t think about it … Now I’m extremely frustrated and disillusioned with the system. I believe that the information they’re withholding would put all of this stuff to bed, but I can’t get it,” he said.

“These laws are there to hold government accountable right? But what good is a freedom-of-information act if you don’t actually have to release the information?”

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