Ken Rubin is known for two things: his signature flat cap, and his fiery freedom of information rhetoric.
Ken is almost certainly the most well-known user and advocate of the access system in Canada, and he has spent close to 60 years in the field – first by pushing for FOI to become law at the federal level, and then, once that came to pass, by using that same law to extract documents and data from public bodies.
Based in Ottawa, he works as a researcher-for-hire and activist. During his career, he has personally taken many of his FOI requests to court (and, in some cases, bested the government), and is perhaps best known for his freelance work, in which he files FOI requests and uncovers scoops (to use a bit of journalistic vernacular) on behalf of news outlets. He also has a long-running column in the Hill Times.
Every time I speak with Ken, 79, our conversation goes in a million directions, largely because he has so much to say about secrecy and so many war stories to share.
During our latest chat, we touched on his path into access work, the lessons he’s learned and his growing frustration with the Canadian access regime. As is the case with most Q&As – but especially so in this case, given how wide-ranging our discussion was – this interview has been condensed and edited.
Can you tell me a bit about what led you to work in access in the first place?
Well, sure. I came up working with volunteer groups – community, consumer, environmental and civil liberty groups – where they and I were seeking information. I was also part of the coalition that lobbied for the first access law federally. I’m motivated more by social-justice issues – you have to bang on the doors of those who are privileged and have information, those who hold power. My skill set – doing activism, research and investigation – goes back almost 60 years, and it requires commitment, persistence and hard work. You have to really want to look at things, analyze them and learn from where you went wrong last time.
You’ve been doing this for a long time – I imagine you’ve made your fair share of mistakes.
It’s more other people who are making the mistakes, and I’m just trying to help them. [laughs] But yeah, you learn the system. I had to learn at one point how to be a lawyer and go to court. I had to learn at other points, for instance, how a government bill comes to be … on and on it goes. It’s a pretty complicated system, and navigating your way through it is a learning process. You have to take everything everybody says with a grain of salt.
I have had the luxury over the years of walking into government departments, talking to senior officials, seeing government libraries and librarians, but that’s all way behind us. Once the Access to Information Act came in – which was mainly designed to prevent leaks and give government and corporations cover – it got much tougher. And I mean, it was tough in those days, but there was no code of silence for everybody in government. There were no officers who were there to prevent you from getting information.
I’ve spent the last 40 years in a system of cabinet confidence and policy advice. It’s a desert where you’re trying to get data, where you’re trying to climb the walls, to deflate those backlogs. You know you’re held hostage, and you’re kept in the dark, and it isn’t very pleasant to have to go out and challenge authorities every time.
The hope, with anyone who does investigative research, citizen journalism, is that you make a bit of a difference.
On a good day!
[laughs] On a good day. But, you know, nothing comes easy. It helps when you know a bit about the records, about the subject – but you’re always in a hostile environment.
Can you expand on that a bit? It’s been 40 years this year since the Access to Information Act came into force. You’ve mentioned a bunch of stuff that has evolved in a worrisome direction. Is there anything that heartens you?
No, I’m getting more and more concerned. When the Treasury Board minister went to those access hearings and said, basically, “I’ll come back when I want to with my plan” – I mean, that’s just more overlays, more software, more millions of dollars going into a smarter way of keeping information closed to the public. And their growing $90-$100-million budget, it’s got nothing to do with greater disclosure. There’s no movement on that front.
On the federal side, what’s changed in the last four decades in terms of access to information?
What’s changed is the absolute rigidity of the system that means that no one will talk. It’s just incredible.
There’s nobody in the system who can advocate for you. The [Office of the Information Commissioner] I thought early on was a good, interesting device, but it’s become legally weaker in some respects. It’s gone by the wayside because the government got so used to walking over it, so it isn’t what it used to be. Looking to parliamentarians, which you would think of as advocates, I mean, they’re trying in the parliamentary committee setting to get the documents they need. And then it’s, “Oh, I’m sorry, we’ll have to go to this three-judge panel if you want anything on the fired Chinese scientists,” or, “Oh, we’ll have to go to the panel for Afghan detainees.”
There’s a level of unbalance here which is unreal – but it is legally done, and everybody is more submissive. The Prime Minister’s Office is now way out there. They’re never going to come back, in terms of getting documents. If you talk to PMO people, they see nothing wrong with the system. It’s out of hand.
You’ve raised a lot of concerns, trends that you see as worrisome. And I think a person reading this Q&A would probably think, “Oh my God, things are pretty dire.”
Well, yes. I still insist I’m an example that anybody can do what I’m doing. Everybody should develop the skills, everybody should keep fighting and probing. People just have to keep at it. You have to keep trying.
The name of the game is disclosure, and that game is not with us. It just simply isn’t with us. I rarely get anything in less than 120 days. I just got something that took more than eight years. I got back one complaint that’s, what, six, seven years old.
We have so many agencies that nobody knows anything about. But I mean, one shouldn’t be overwhelmed. If you’re willing to spend the time and effort, you’ll get somewhere.
I wonder, for the people who are thinking of buying their own flat cap and being Ken Rubin 2.0 – what would you say to them? How should someone start in that?
Well, start with an interest in issues. Look at how the system works in practice, not necessarily the way you want it to. Look at the information you can get – or not. Always be ready to jump in and negotiate, don’t just assume that it’s easy street. Work with others where you can, and also work on reform. Go after those residential-school records. Go after the logs that show airlines’ safety or administrative problems. You don’t have to be a formal journalist. You can do it from whatever perspective you have.
This interview has been edited and condensed.
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