Report 8 - Access to Information Review Task Force

HOW JOURNALISTS USE THE FEDERAL ACCESS TO INFORMATION ACT

Interviews with Journalists

The comments of journalists should be read with as much care as the statistics. This section contains only their comments. It neither disputes nor affirms them.

While the above statistics may appear reassuring and to indicate that the media use the Act fully and fairly, journalists themselves hold a sharply differing view. Indeed, their comments on the Act, its implementation, and their use of it may compel us to reinterpret virtually all of the above statistics in a different light.

A list of journalists known to be frequent users of Access to Information was developed in collaboration with members of the Review Task Force. The following journalists were contacted first by e-mail and then by telephone: David McKie (CBC Radio), Jim Bronskill (Southam News), Mike Gordon (CBC Marketplace, President of Open Government Canada), Dean Beeby (CP, Halifax), Anne Rees (Vancouver Province), and Rob Cribb (Toronto Star, President CAJ). An open-ended structured interview lasting approximately 30 minutes was conducted with each. Their comments, which reflected their familiarity with the Act, were highly consistent and are thematized below.

1. Requests to stories ratio

All interview subjects agree that not every request results in a story and that they make many more requests than they produce stories. The ratio of requests to stories ranges from 3 or 4 requests to 1 story to 10 requests to 1 story.

They also report making requests fairly constantly over the past 3-5 years. One interviewee reports making almost one request per day. Another makes 5 per month. A third used to make 100 per year but now makes only about 50 per year. A fourth makes between 100 and 200 requests per year.

Several factors account for this variability. All agree that learning about the Act and the experience of making requests has made them better users of the Act. As a result, they have become much more skilled at formulating requests. This has caused the number of requests to decline and the request/story ratio to rise¹. Second, part of the variability is accounted by the type of story which the journalists pursue. One journalist with an interest in security matters makes requests as part of ongoing, large-scale investigations. These requests are therefore fewer in number and more widely spaced than the requests made by another journalist who pursues as broad a range of stories as possible and who therefore makes very many requests very often. A journalist's accumulated experience, professional interests and the expectations of the journalist's employer all influence the nature, number and frequency of requests.

Experience of the Act can also result in quite formalized use of the Act. For example, one interviewee reported using software to generate the basic outlines of requests, thereby accelerating and professionalizing the process. This also allowed other less experienced journalists to come up to speed more easily.

2. Learning/Teaching curve

All interview subjects agree that learning about the Act, and the way in which its provisions are implemented, was a relatively slow process. For all of them, the principal means of learning was simply doing (i.e., making actual requests). None of them received formal or sustained training as journalism students or from their employers. Next to "learning by doing", the most important source of information was ATI seminars organized by the Canadian Association of Journalists (CAJ). The CP Style Book also contains a section on how to use Access to Information².

Virtually all of the interviewees feel that they have become de facto experts on the Act within their organizations. Most of them help other journalists formulate requests, some actually conduct seminars. Virtually all have taught some aspect of ATI in university courses, at community colleges, or at the CAJ. All agree that more sustained teaching must be undertaken.

To the suggestion that the government itself could organize seminars, information packages or course packs, the response ranged from reluctance to outright hostility. The view is universally shared that the government would adopt a "bureaucratic" approach which would instruct journalists on the provisions of the Act, on the necessity to respect exemptions, of formulating requests clearly, of being patient, etc. It would, therefore, fail to approach the Act from a "journalistic" point of view with its emphasis on the inviolability of open access, the refinement of investigative strategies, cross-referencing and cross-sourcing information, dubiousness as to official statements, the importance of deadlines, etc. Indeed, it was suggested that the government's main educational efforts should be directed at its own officials rather that at journalists. All agree that a conflict of cultures exists between government and journalists.

3. Criticisms of the Act

This is the aspect on which the interview subjects were most pointed.

The most common criticism concerns delays in responding to requests. Interview subjects reported that requests are often unjustifiably delayed well beyond the 30-day limit; one interviewee even reported never having received information within the 30-day limit. Many interviewees also reported that when information was eventually obtained, sometimes after an appeal, it was unclear why it had been withheld or delayed in the first place. They perceive a serious conflict between the journalistic demand for timely information and the bureaucratic pace of processing requests. Indeed, it seemed to some interviewees that the 30-day limit, and the delays beyond it, might constitute bureaucratic strategies intended to "kill" stories by letting them drift into irrelevance and frustrating requesters.

Fees constitute another source of conflict but not for all journalists. Some feel that some fees are appropriate but that they must be limited. These journalists are grateful that fees can be waived and appealed and they pursue these opportunities³. Others are offended by the very notion that information, collected at public expense should only be made available against a fee which can rise steeply. Again, the view is widespread that the assessment of fees can be a tool used to frustrate or perhaps even punish requesters.

The exemptions built into the Act also strike all interview subjects as unjustifiably broad and open to abuse. None of the interviewees believes that there should be no exemptions but all agree that the exemptions should be narrowed, more clearly defined, and more sparingly invoked. The exemptions specifically mentioned were those in Sections 15, 16, 21 and 23.

Interview subjects, however specifically linked the above objections to a broader philosophical view, grounded in both history and law, of the role and function of government, journalism, and information. It is the orthodox view amongst journalists that access to information is an inalienable right acquired historically through struggles which pitted the media against constituted authority (i.e., the right to publish the proceedings of parliament, to publish without a licence, to publish opposing views, to publish without censorship, etc.). Indeed, this right has been enshrined in law in both Canada and the United States⁴. With the enshrinement of freedom of the press in law, journalism became a recognized element within the functioning of democratic systems and journalists began to claim that they also represented the right of people to know in a free, open and democratic government. The media became, therefore, an instrument through which the public guaranteed the transparency of government and assessed its performance. Consequently, journalists vigorously affirm that their demands for greater access to information are not expressions of the particular desires and interests of the media or the journalists themselves but are rather concrete examples of democracy in action. They believe that when journalists request access to information, they do so not as one interest group among many but as constitutionally legitimated representatives of the public and that to view journalists as merely one particular category of requester among others, therefore, is offensive to democracy because it reduces the media to the status of special interest group. If the media are merely a special interest group, it was stated, with no special claim to information, they then are easier for public servants to handle and to dismiss. However, journalists insist that their difficulties in accessing information are the difficulties of citizens themselves.

The point was also made clearly that the government does not own the information which it holds. Indeed, in the view of the interviewees, the Act may have generated certain unintended consequences. For example, they believe that the mere existence of the Act tends to create an "us" vs "them" mentality in which the government is constituted as the legitimate holder of information and the public as a supplicant. They feel that barriers should not be raised to the requests of citizens for information which they already own. Additionally, they think that the existence of the Act may have created a situation in which information previously considered innocuous and uncontentious is now subject to scrutiny and oversight. Because the Act creates categories into which all information fits, they argue, it automatically creates the opportunity for all information to fall potentially under various forms of restraint. Hence, many interview subjects believe that the view of the government as legitimate holder of information in combination with the very possibility for information to be scrutinized and withheld feeds into a pre-existing culture of secrecy. They argued that this may in turn create situations in which political interests influence the handling of information. Hence, numerous interviewees said that one of the unintended consequences of the Act may have been to educate public servants in how to manage and withhold information.

Interviewees, however, distinguished the "information function" from the "sign off" function. In their view, the failures of the Act are due to those with the authority to "sign off" on the release of information rather than to ATIP coordinators.

Without prompting, several specifically compared Canada to the United States and said that access to information was much greater in the US because of an overall "culture of openness" whose result is that everyone from the highest official to the most average citizen shares the belief that information should be widely disseminated. It is their view that in Canada, a "culture of secrecy" prevails in which everyone believes that information should be withheld whenever possible and, when not possible, that the least amount of information should be disseminated. Rather than seeing access as a threat, we should see it as a valuable disposition.

From a journalistic perspective, therefore, the statistics developed above may be seen in a quite different light. They show not the porousness and transparency of government under the impact of the Access to Information Act but rather the extreme limit of what can be reported. Like the tip of an iceberg that floats above water, the very existence of the statistics suggests to a journalistic perspective that much more lies beyond view.

4. When the Act works well

Interview subjects agreed that the ATIP coordinators with whom they come in contact do their jobs as well as possible. There is obviously enormous variation depending on the department, the experience of the coordinator, the complexity of the request, and so on. Some even expressed sympathy for what they perceived as under staffing given the volume of requests.

The most helpful response nominated consistently by interviewees is the "call-back" in which an ATIP coordinator contacts the requester in a timely way, goes over the request, makes suggestions for improvement, and so on. Unfortunately, this practice is not as widespread as the interviewees would like. Again, there are enormous variations.

5. Best Practices

The following are suggested by interview subjects as their "best practices" for using Access to Information effectively. They agree that crafting an ATI request is a science.

a) Research your topic thoroughly before making a request. "Fishing expeditions" can occasionally be productive but they are usually an inefficient use of time and resources.

b) Determine which department or departments are likely to hold the desired information. Information can be held in multiple locations. Consult legislation to determine where the information has to be filed. Ask at all locations.

c) Determine the material nature of the information – is it held on paper, in electronic form, both?

d) Determine the precise name of the document or information desired

e) Use precise language in formulating a request. Since requests can be read in a conservative way, the language used in requesting information must anticipate and avoid restrictive interpretations.

f) Develop contacts within the department or departments who can help with wording, document names, paper trails, etc.

g) Do not be deterred by an initial refusal. Ask again. Use the appeal process.

h) Read your obtained documents very carefully; they can provide additional leads.

i) File under your own name. There is no advantage associated with doing otherwise and it is difficult to appeal under someone else's name.

6. What spurs use of the Act?

The interview subjects, who are leading users of the Act, agree that Access to Information is an indispensable element of the journalistic arsenal. Unfortunately, not enough journalists use it because of its perceived complexity and frustration. The interviewees, therefore, use Access to Information out of a sense of professionalism. Many are also motivated by a commitment to the free flow of information and to the view that democratic principles are at stake.

Individual and professional motivations were also bolstered by trigger events which accounted for increased use of the Act. Interview subjects mentioned the Somalia inquiry, the HRDC "scandal", the launch of the National Post, and the diligence of opposition parties.

7. Using the Act in conjunction with other Web resources

Journalists find that the Web resources of the federal government generally contain little of the types of information they find most pertinent for their work. They find that visiting Web sites frequently underscores the necessity of making Access requests.

8. Journalistic Proposals for Reform of the Act

There was a high degree of consistency in the proposals advanced by interview subjects on how to reform the Act. They are thematized here.

A. Relax the exemptions. Journalists said the exemptions are too broad and need to be redefined.

i. Sections 15 and 16 were specifically mentioned as being enforced too narrowly.

B. Pro-active dissemination and informal release. Journalists also said that more types of information should be released through more channels. They specifically mentioned the following:

i. Information concerning the how and why of government policy and planning; the rationales for Bills going through the House
ii. Information concerning the options being weighed by government before a decision is taken or policy implemented
iii. Discussion papers and background material; policy papers

C. Autonomy of the information function. Journalists said that the information function should be divorced from the chain of command, i.e., the dissemination of information should be independent of the departmental programs which hold the information and of political authority. This view obviously conflicts with the fact that the Act vests responsibility for its administration with Ministers. Specifically, journalists said that when a request is made it should be handled by access to information officers only and should not be submitted to political oversight.

D. Enhance the status of ATIP. Journalists said that ATIP coordinators were too few in number and too easily overwhelmed by the volume of requests. They said that the number of ATIP coordinators should be increased, that their training should be improved, that their status should be enhanced, and that it should be possible to pursue a successful career within the public service even while being a strong advocate of access to information.

E. Sanctions for non-compliance. Journalists said that there should be additional sanctions for non-compliance with the Act, specifically as regards delays and refusals to disclose information even after a successful appeal. They recognize, however, the difficulty in determining the nature of the sanction and the person or persons to whom it would be applied.

F. Streamline the appeal process. Journalists said that the appeal process currently takes too long and should be streamlined.

G. Powers of the Commissioner. Journalists said that the Information Commissioner should be given order-making powers over disclosure.

H. Create a culture of openness. Journalists said that everyone, including the government, should create a culture of openness. Their ideal is for information to be released automatically and spontaneously unless there is a narrowly-defined compelling reason to withhold it. They said that our societal attitudes toward information had to change, that information should not flow from the top down, and that the value of openness should be stressed.

Conclusions

The above information allows us to draw a few conclusions. Perhaps the most evident is that journalistic use of Access to Information has evolved since 1983 when the Act was introduced. The number of requests has grown but so has their focus. Requests are now sharper and to the point. The way in which information is used has also grown in complexity. Relatively straightforward stories of malfeasance have been joined by longer stories in which access requests are not necessarily themselves foregrounded but become part of a larger pattern.

However, the number of journalists who are well versed in the Act and feel comfortable using it remains a fraction of the total number of journalists. Clearly, the perceived complexity of the Act is one factor in limiting its use. Tales of frustration are probably another. Some initiatives which could alter this situation - the Open Government Canada website, CAJ seminars - are already in place. Their use may need to be expanded. But we should be wary of demanding that all journalists make frequent use of the Act. Some journalists concentrate on areas (municipal government, arts reporting) where use of the Act may not be a significant priority. Additionally, we have no indication whatsoever - beyond our existing experience - of what an appropriate level of use would be. Perhaps a relatively small number of frequent users is the normal state of affairs.

Schools of journalism are an important factor outside both media and government which could alter the situation. As new students graduate, as curricula evolve, as perceptions of "hot" careers in journalism change, so too may use of the Act.

Finally, use of the Act is evidence of a healthy tension between media and government. This is likely a sign of a functioning democracy. If the media were simply instruments of government or if the tension between media and government were so poisonous as to result in a breakdown between them, it is conceivable that democracy would be imperiled. However, the situation in Canada appears to be one in which debate over the Act, over exclusions and exemptions, and over where the line should be drawn, is the subject of ongoing, open and free debate.

These questions have not been decided. The line may shift from time to time and the very fact that the line is open to debate, and that citizens feel free to debate it, is itself a sign of openness.

Coding Grid

Articles were coded using this grid. Codes from the grid were entered into a database.

Technical Information
1. Document No.
2. Newspaper
3. Author
4. Date
5. Page
6. Type (News, Feature, Editorial, Letter, etc.)

Issue Area
1. Political
2. Justice
3. External
4. Finance
5. Business
6. Military
7. Security
8. Health
9. About the Act
10. Act Referred to
11. Other

Apparent Intention (Primary and Secondary)
12. Patronage
13. Secrecy
14. Self-dealing
15. Inefficiency/Waste
16. Workings of government
17. Other

Social Outcome
18. Policy Debate
19. Informed Public
20. New Information
21. Accountability
22. Other

Questions to Journalists

Journalists were asked the following open-ended questions within the context of a structured telephone interview lasting approximately 30 minutes. Notes of their responses were grouped and presented thematically.

The questions:

1. How many requests do you make before generating a story?

1a. How many requests do you think you make per week/month?

2. Do you use Access to Information more now than you used to? (Anecdotal evidence?)

3. Do you think other journalists use it more now than before? (Anecdotal evidence?)

4. What is your main complaint about the Act? Its administration?

5. What part(s) of the Act do you think work well?

6. If you could change one thing about the Act or its administration, what would it be? (What would your second choice be?)

7. Do you think the learning curve to use the Act is too steep?

8. Does your news organization funnel requests through a single person or small group of persons? Or does it encourage everybody to use the Act?

9. Do you think that certain journalists have specialized in the Act?

10. Have you ever trained or helped others to use the Act?

11. Would you welcome outside training (by government or non-government) in how to use the Act?

12. What would you recommend as the best practices for making an Access request?

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¹ Evidence for the claim of increasing focus is also provided by a document of the Treasury Board Secretariat titled "Review of the Costs Associated with Administering Access to Information and Privacy (ATIP) Legislation" (1999). This document which evaluates the cost of handling requests finds that "The next two groups are media at 12 % of requests and Members of Parliament at 9.5% of requests. The costs associated with media are estimated at 7% (...) Less than proportionate costs would indicate more precise and/or specific requests." (p. 8) The document is available under Research at http://www.atirtf-geai.gc.ca.

² Journalists themselves are taking steps to increase awareness of Access to Information. The CAJ regularly holds seminars on Access to Information at its yearly meetings. Many of these seminars are conducted by the persons interviewed for this report. Additionally, Open Government Canada (http://www.opengovernmentcanada.org) maintains an ongoing discussion group about access questions.

³ It may be worth noting that Professor Alasdair Roberts in a study titled "An Evidence-based Approach to Access Reform" (July 2001) found that "Media requests involve no final fee assessment in 96 % of the cases"(pp. 12-13). The study with appropriate caveats can be found at http://faculty.maxwell.syr.edu/asroberts/foi/.

⁴ The Constitution Act, 1982 states (art. 2) that everyone has the fundamental "freedom of thought, belief, opinion and expression, including freedom of the press and other means of communication". The first amendment to the US Constitution famously states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."