At a recent meeting of Canadian freedom of information (FOI) researchers and advocates, the series of changes to provincial access legislation over the past year was called a race to the bottom.
Last fall, Nova Scotia’s Progressive Conservative government rushed a wholesale restructuring of the province’s right to know law by amending its purpose clause – key wording for interpretation by courts and quasi-judicial tribunals – and by changing the time allowed for responding to a request from calendar days to business days, effectively lengthening that period.
In March, Ontario’s Progressive Conservative government made a series of controversial changes. Premier Doug Ford said he needed to protect the privacy of citizens who text him – even though every FOI law in Canada already contains provisions for that kind of communication. Ontario also extended the timeline for responses to 45 business days from 30 calendar days.
In May, B.C.’s NDP government introduced Bill-9, a substantive amendment to the province’s law that legalizes taking longer to respond to requests, if an applicant consents.
What’s common across this race to the bottom? First, the amendments all included something to affect the timeliness of responses. Second, the word “modern” or variants of it appears in all three governments’ rhetoric. That’s not a coincidence.
The Supreme Court of Canada afforded FOI quasi-constitutional status 15 years ago. But you wouldn’t know that from the way FOI is talked about inside government. Bureaucracies are far too focused on efficiency and not nearly enough on delivering the correct response. That needs to change.
Data tell a tale
For three years, I led a study for the Freedom of Information and Privacy Association into how the system works after someone files a request in B.C.. We looked at 56 public bodies – every ministry, plus the broader public sector bodies subject to FOI law and the province’s recordkeeping legislation, the Information Management Act.
Over two years, five requests were filed to each public body for the freedom of information training materials and procedures they used, then I spent another year working my way through the 36,000 pages obtained.
There was a pattern. The data led to the conclusion that public bodies nearly exclusively articulate FOI success or failure in quantified terms. They speak of timeliness or speed and focus on measurable figures such as the number of requests and the average number of pages processed per request.
But there is a problem with crudely tabulating rights this way. I’ve always been uneasy about how the quasi-constitutionality of FOI is praised – sometimes into platitude – in the courts, in legislatures and in media, but gets hidden from view entirely by the bureaucracies charged with the fulfilment of that right. Something essential is lost when rights become case files and nothing but case files.
Documentation is one key
Former Saskatchewan information and privacy commissioner Gary Dickson’s concept of an “access regime” became central to our work.
In Dickson’s chapter of Brokering Access, he writes that an access regime includes “… those officers within executive government tasked with meeting statutory access requirements … and the extent to which they are supported and resourced as well as the kinds of tools and training developed to assist them in their key role.
“The access regime also includes the decisions, practices, and procedures of oversight bodies …. (as well as) the executive and management levels of leadership within government and the extent to which value is assigned to complying with access legislation.”
Following this, the study looked at the way public bodies assign accountability for FOI requests, how they train public servants to find and redact those records, and how their staff keep up with developments in this law. No system is ever completely documented, but any documentation is valuable.
Much of what we found was about the process – where files should get uploaded internally, to which specific person they should be sent, the outlines of the various stages in the life of a request and how many days it should take. All of that was laid out in varying degrees of exactness.
The most critical moments
What was more interesting, though, was what was not documented. The overwhelming majority of public bodies in this study never developed their own standards for finding records and redacting them.
Interpreting what an applicant actuallywants – translating between the languages of those inside and outside bureaucracies – is a legitimate, practical skill.
The same goes for how public servants go about correctly redacting records. How they go about parsing a complex file for different claims to secrecy against a background of presumed disclosure requires fluency in the machinery of government, public policy, the text of legislation and the jurisprudence on the matter.
These moments are the most critical in responding to a freedom of information request. They are the essence of the access regime and an achievement of it rather than something to be disregarded as easy and self-evident. But the development of these skills takes place entirely off the public record.
What the study found was that it wasn’t just government’s rhetoric that is shaped by obsessions with thin metrics that don’t reflect allofwhat concerns FOI advocates. The documentary infrastructure supporting the modern access regime itself focuses on this.
For decades, sociologists, anthropologists. historians and philosophers of science have observed that quantification is a hallmark of modernist thinking.
Philosopher C. Thi Nguyen applied some of this literature to his extensive scholarship of metrics and gamification. He’s now written about these issues for a more general audience in his new book, The Score.
Nguyen’s argument is that games give us goals. That’s all fine and good when we understand games as temporary, playful activities. But the second we use the underlying logic of games to govern other endeavours, we risk narrowing our view of what concerns us.
Grades, fitness trackers and social media likes are all indicted by Nguyen’s theory of institutional metrics. “Value capture” is his term for when a metric is disproportionately prized relative to other less-measurable values that are nonetheless important. In FOI, that looks like fixating on timely responses above accurate and complete ones.
Governments are failing to do their job
Freedom of information has thus been gamified. Governments are passing FOI amendments not to make themselves more transparent. They are trying to increase their transparency score, which they define as: how fast did we toss a file out the window?
Recently in B.C., the Office of the Information and Privacy Commissioner (OIPC) published a report that called for the province’s access law to be amended to “require public bodies to consistently track and report key FOI metrics to the OIPC.”
I support this, but with a massive caveat. Continuing down the path of gamification is not a recipe for explaining why certain records were sometimes discovered only after a request was closed or accounting for an overzealous redaction that shouldn’t have been made.
Applying the idea you can manage only what you measure to FOI is insufficiently sensitive to the other things about which we care, which is really whether the right documents were rightly severed in the right amount of time – right, not lawful.
This is harder to measure. It is more subjective. It is more thought-provoking and requires more subject matter knowledge to evaluate. Yet, if we can admit that timeliness metrics aren’t doing justice to freedom of information requests, rekindling the principle of correctness is the next step. Developing ways of reliably assessing it should be our next frontier.
