Earlier this month, the Supreme Court of Canada issued its long-awaited decision on whether Ontario Premier Doug Ford was allowed to keep his mandate letters from the public.
The result, as it turns out, was a resounding victory for secrecy – or, as one expert put it, a “sad day for transparency.” Read on for our recap of the decision and the response from Canada’s freedom of information (FOI) community.
Also in today’s newsletter: A Secret Canada update, and I make spreadsheets and get angry about them.
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The latest on Secret Canada
Dear readers, I think I owe you an apology: Our last newsletter, in November, promised a final missive before the year was out. As so often happens in this industry, Robyn Doolittle and I got so caught up with end-of-year stories and the oddly all-consuming Secret Canada administrative minutiae that we weren’t able to pull together a newsletter before Dec. 31. Mea culpa. (To be fair, and to use a tortured public servant joke: I never did specify whether that was a calendar or fiscal year-end…)
Speaking of Robyn: After nearly 10 years on The Globe’s investigations team, she has moved to the corporate law beat at the Report on Business section. She’s still on team Secret Canada, though, and will be filing another barrage of requests with me this summer.
Believe it or not, more than six months after we filed our latest round of requests to populate the Secret Canada database, we’re still not done. In November, I mentioned we were down to 74 outstanding FOIs. Today, we’re down to just a handful of institutions, but we hope to close those files in the next week. Help us out here, folks!
That’s not the whole story, though. According to our tracking spreadsheet, a number of institutions either did not respond to our initial request, or stopped replying despite repeated emails and phone calls. Among them: New Brunswick’s Department of Aboriginal Affairs, Quebec’s Ministère de l’Éducation, Ministère de l’Enseignement supérier, Ministère de la Sécurité publique, Service de police de Châteauguay, Service de police de la Ville de Montréal and Service de police de la Ville de Repentigny. Take a bow!
A special acknowledgement to Quebec’s Ministère de la Cybersécurité et du Numérique, which only sent us their annual reports, despite our very explicit requests – in both English and French – for their FOI tracking data. (And of course, a shout-out to the government of Alberta, which denied all our requests in full for the second year in a row.)
Here’s what we’ve been up to otherwise:
- Last week we covered the Nova Scotia information commissioner’s recommendations for reform of the province’s access system.
- Also last week: We wrote, of course, about the Supreme Court decision.
- In December we explored the state of FOI in New Brunswick, which has the dubious distinction of being among Canada’s most restrictive access regimes.
- We also published our investigation into the consequences for public officials suspected of committing FOI crimes – or lack thereof, since no one in Canada has seemingly ever faced charges for a core violation of FOI law, despite various referrals made by information commissioners.
We’re also still writing regularly for our plucky FOI blog. Recent posts have explored the concept of “vexatious requesters,” summarized recent appeal decisions, looked at a colleague’s long wait for records and a recent, possibly precedent-setting Federal Court ruling.
That Supreme Court decision
There’s no rush quite like speed-reading a Supreme Court of Canada decision at 9:45 a.m. on a Friday. Sean Fine and I did just that last week, poring through the Supreme Court’s dense analysis of the nature of cabinet confidentiality.
The saga began in 2018, when CBC reporter Nicole Brockbank filed an FOI request for the mandate letters Ontario Premier Doug Ford handed to his cabinet. Mandate letters are essentially political marching orders, laying out a minister’s priorities and key projects for the coming term. This makes them valuable to enterprising reporters. (An important detail: Since taking office in 2015, the federal Liberals have made a habit of posting their mandate letters online.)
The government said, no, thanks, we’re not releasing that, citing cabinet secrecy provisions. The CBC appealed to the Information and Privacy Commissioner of Ontario – and won. The Ontario government took that decision to Divisional Court, lost, appealed to the Court of Appeal, and lost again. They finally prevailed at the Supreme Court, however, in a resounding 7-0 ruling that allows the province to keep the mandate letters secret. (In theory, anyway: They were leaked to Global News last year.) The decision will have sweeping implications for cabinet confidentiality going forward, and experts told us requesters can expect to see these types of redactions more frequently going forward.
The Supreme Court of Canada's ruling that Ontario Premier Doug Ford has the legal authority to keep his mandate letters confidential was described as a “horrible, horrible decision” by one expert.Cole Burston/The Canadian Press
The ruling was met with disappointment, to put it lightly. David Loukidelis, a former B.C. information commissioner, called it an “ill-founded setback,” and another expert said it was a “horrible, horrible decision” and “the worst-case scenario.” Ah, FOI.
The kicker? The CBC was also ordered to pay the Ontario government’s legal costs, which a CBC spokesperson told me are still to be determined. This may prove to be a cautionary tale for FOI filers everywhere: If you file a request only to have it morph into a legal dispute later on, you may be on the hook for the public institution’s legal fees.
Mr. Loukidelis had just one word for that decision: “Outrageous.”
You can read our coverage of the Supreme Court ruling here.
Bureaucrat stats
Each year, I make a point of poring through the Treasury Board of Canada Secretariat’s published statistics on the federal access to information system. It’s a great report that describes in painful detail how well various federal institutions are complying with access law, meeting deadlines and so on. The Treasury Board also offers its own analysis, writing thousands of words amounting to an annual report on federal FOI.
Well, not so much this year, as I explain in our most recent Secret Canada blog post exploring the latest data dump. This time around, the federal government has opted to provide some brief paragraphs, accompanied by a list of tables and charts.
When I saw this year’s write-up, I immediately knew I needed to chart its length compared to past years. Sure enough, there’s been a significant drop: Prior to 2022-23, the government was averaging 5,500 words per annual access report. This amounts to an 82-per-cent drop compared with the average, or an 89-per-cent drop compared with the previous year.
I think I can safely assume these yearly round-ups are not barn-burners, web traffic-wise, but they’re still incredibly valuable to the Canadian FOI community. Dear Treasury Board staff: If you’re reading this, please bring back the detailed report next year. People are reading it! I swear!
That’s it for this edition of the Secret Canada newsletter. I’ve learned my lesson and, like the Supreme Court, won’t make any future promises regarding timing. Just know that when it does land in your inbox, it’ll be a doozy.
As always, you can send me your FOI questions/comments/ideas at tcardoso@globeandmail.com.
Until next time,
Tom
Tom Cardoso