The Battles

Not so many years ago,   I did not know of the existence, role, how to use it, or importance, of the provincial Office of the Information and Privacy Commissioner.   Myself and others are indebted to D’Arcy Hande for teaching us.

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2018-08-02  NEWS RELEASE: University of Saskatchewan is taken to Court, Refuses to disclose Right to Know symposium proceedings

From: D’Arcy Hande
Sent: October 2, 2018 5:06 AM
Subject: My experiences with LA FOIPP ( 1 Oct 2018)

Good morning, everybody!

Yesterday afternoon I participated in a panel discussion in Regina, called “Right to Know: Tips and tricks to making your search successful.”  The event was sponsored by the Office of the Information and Privacy Commissioner for Saskatchewan, the Canadian Bar Association (Sask Branch), and the Regina Public Library.  There were about 30 in attendance, by my estimate.

I took the liberty of pushing the boundaries of the topic more than just a little bit by also discussing my frustrations with both the Freedom of Information process and the limits of the provincial legislation in Saskatchewan.  Attached is a copy of the comments that I made there.

Others on the panel came from the Saskatoon Star-Phoenix, the Canadian Taxpayers Association, and eHealth Saskatchewan.

Thanks to the presentations delivered at the panel, and to several insightful questions and comments from the audience, we had a very interesting discussion.

My personal thanks to those of you who helped me in crafting my presentation and those of you who attended the event to show your support and raise your concerns.  I know some came over considerable distances to attend, and I do appreciate your commitment.

D’Arcy Hande

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                        Not so Free: My experiences with Saskatchewan’s Local Authority Freedom of Information and Protection of Privacy Act        

                                     [Delivered by D’Arcy Hande  at the “Right to Know” panel, Regina, Sask., 1 Oct. 2018]

Good afternoon!  I was an archivist for 33 years with the Saskatchewan government.  During that time my political leanings had to remain private – and rightly so.  But this all changed when I retired.  I was free to become politically engaged, and the impetus for that to happen was the debate over the controversial Uranium Development Plan in Saskatchewan in 2008 and 2009.  I was very concerned about how the uranium and nuclear industry was influencing public policy in the province, and I decided to get involved in my own small way.
In 2011 I volunteered to support a group of elected University of Saskatchewan senators who were questioning the partnerships actively cultivated by the University’s board of governors and administration within the context of the Uranium Development Plan.  I had research skills that could help the senators out, and those skills DID come in useful.  As time moved along, my focus evolved beyond the influence of just the uranium and nuclear industry to investigating the many other linkages between the University and its corporate partners in other sectors.
Using information gleaned from publicly available sources, and probing into other documents obtained through Freedom of Information processes, in 2012 I wrote a free-lance article for BRIARPATCH magazine about my investigations into the University/uranium/nuclear industry nexus.

Later, I wrote four articles for BRIARPATCH on how the uranium and nuclear industry had directly intervened in local government affairs in the Northern Village of Pinehouse in its attempt to secure legal and social license in the community.  My first access request there uncovered a wealth of correspondence about the disturbingly close relationship between the Pinehouse leadership and the Nuclear Waste Management Organization, a consortium operated by the nuclear industry.

My work to expose corporate connections at the University and at Pinehouse continues to this day.  I have submitted multiple access requests, which have in the case of Pinehouse been blithely ignored for the most part, and in the case of the University have become embroiled in legal wrangling.  Despite reviews, recommendations and rebukes for these practices by the Information and Privacy Commissioner, local authorities recognize and fully exploit the weaknesses in our provincial FOI laws to their distinct advantage.  More about that in just a few minutes.

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Now for a few observations after submitting more than 20 FOI requests:

The comments that follow are informed by my experience as an archivist. Records management – that is, controls over the retention, destruction and long term preservation of records — is key to keeping government accountable.  Good records keeping means decisions are properly recorded, and the rationale for making those decisions is clearly documented.  This is critical to keeping public servants and politicians accountable. The Provincial Archives is available to offer

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advice and expertise to the public service in the exercise of this responsibility.  I would encourage all local government authorities to avail themselves of that service.
In the case of the Northern Village of Pinehouse, with the approximately 15 access requests that I have submitted directly, or have assisted others in submitting, I estimate that half the time the Village administration was simply incapable of finding the responsive records, rather than actively suppressing access to them.  (I am being charitable in that assessment, but let us leave that statement to stand.)

One request submitted to the Village established that, despite the legal requirement that municipalities adopt a formal Records Retention and Disposal Schedule, this has never been done in Pinehouse.  Nevertheless, Village Council frequently — and in my view, quite inappropriately — approves destruction of records on a completely ad hoc basis.  Yet, no concerns are expressed that records are being destroyed in the absence of any meaningful, and legally required, records framework.  As a former archivist, and as an investigative reporter, that fact makes me extremely nervous – and I hope it raises red flags among you in the audience as well, because we really do need to ask, as a matter of public policy, how commonplace this practice really is.

But lest we be too judgmental of that one small municipality, I have discovered that the University of Saskatchewan, with all its resources, appears not to have a fully effective records management system either.  One can make a request to the University’s Access and Privacy Office and still not be assured that their search for responsive records will be as comprehensive as required.  Individual registries of records and files are squirreled away within colleges and programs that are not immediately open to the Access and Privacy Office.  This is a serious accountability problem in one of the province’s largest local authorities!

Many local authorities give at best only half-hearted support to the requirements of Freedom of Information legislation.  Institutional resources are not allocated to put adequate records management controls in place, which are intended to provide external accountability.   Yet at the same time, those agencies are quick to cut cheques for lawyers who will argue the narrowest interpretations of LA FOIPP.  I don’t like to second-guess their motivations. But are public bodies constraining access to public records in order to protect their institutional brand and clandestine agendas?  Accountability and transparency are ignored, and we the public are the losers.

A HUGE deficiency in Saskatchewan’s FOI laws is the extremely limited powers of enforcement provided to the Information and Privacy Commissioner.  Under the law, it is left to private citizens (usually on their own dime) to challenge in court any refusal by local authorities to provide access to records, even if the Commissioner has recommended their release.  The consequences are not surprising.  Local authorities have begun to notice that intransigence reaps immunity.  And as the Information Commissioner has often said, access delayed is access denied.

Only twice have I been able to participate in court challenges. BRIARPATCH magazine was fortunate in 2014 to obtain the pro bono services of a well-known lawyer in challenging

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the refusal by the Village of Pinehouse to provide access to its records.  We had some success to be sure, but it was certainly not on a level playing-field.  The law pits citizens with limited resources against government institutions with lawyers on permanent retainer.  Where is the equity and justice in that?

Right now, I am the plaintiff in an appeal before Court of Queen’s Bench challenging the refusal by the University of Saskatchewan to lift heavy redactions on the transcript of proceedings of a secret symposium with Monsanto and other Agribiz representatives held on campus in December 2015.  Several faculty members and other concerned citizens have contributed generously towards the costs involved. Without this assistance, people who simply want answers about what goes on in a publicly funded institution would be completely stymied.

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I will close with eight practical tips based on my experience:

1) It is extremely important when formulating access requests to do your homework.  Take time to assess as precisely as you can what information you want AND to ascertain the category of records you believe might contain that information.  For example, would it likely be found in minutes, in background reports, correspondence and emails, financial records, etc.?  And be as clear as you can about the timeframe in which the documentation is likely to have to have been created.

2) It is better to submit three focused requests rather than one that is more scatter-gun in approach.  Nevertheless, when the parameters are initially quite unclear, using the scattered approach in the first instance may in fact help to identify areas that require more scrutiny and then become the focus for follow-up requests.

3) Try to make the wording of your request as specific as possible, allowing for the least room for misinterpretation or evasive response.  While there seems to be a generally accepted responsibility for access officers to assist the public, the reality is that sometimes there is a very definite institutional, even a personal, motivation not to be forthcoming.

4) Anticipate the costs to get the information you are seeking.  Depending on your enquiry, the government authority has the right to charge for both time spent in identifying documentation and in making copies.  Sometimes this can amount to hundreds of dollars. Don’t be deterred.  Go back to them and ask how your costs can be reduced.  It might pressure them to reduce costs, or they might not be sympathetic; in which case you can still appeal to the Information and Privacy Commissioner.

5) Consider that even a “negative” result to an access request can create “positive” implications for your investigative work.  (By “negative result” I mean that there are no responsive records to prove that due diligence was exercised by the administrative unit under scrutiny.)  For instance, determining that a major – perhaps improper– undertaking by a municipality was not debated or approved by the municipal council actually points strongly to lack of due process.  It could validate what may be a very important hunch on your part.

6) Always, always, always submit your request by mail or special delivery where the date of receipt by the government authority is tracked.  I’ve had local authorities claim they did not

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receive the request or it was waylaid.  If you have a tracking record, you can refute such claims and insist upon a punctual response.

7) Always diarize and track the response times for your access request.  Local authorities have 30 days from the date of receipt to identify responsive records; and they often ask for a 30day extension (occasionally longer) to assemble and copy those records.  Being flexible and understanding with the officials involved is always a good policy.  If the response is delayed beyond that, be sure to do a follow-up email or phone call.  If still no response, it is time to move to the next level.

8) Do not hesitate to make a Request for Review to the Information and Privacy Commissioner when you have not gotten a response within a reasonable time, or when the response you received was not complete or transparent.  Although they are always careful to remain neutral in these disputes, the Commissioner’s staff is invariably friendly and helpful.

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In the final analysis, although we acknowledge the great tool that Saskatchewan’s FOI legislation provides journalists, policy researchers and the public at large, I think we also must acknowledge its great limitations in providing access to information that truly serves to keep politicians and officials accountable.

When Saskatchewan’s Information and Privacy Commissioner has such restricted powers to penalize offenders or to enforce his own recommendations, the natural consequence is an indifferent public service which recognizes that compliance is effectively voluntary and easily avoided.  In my experience, some public authorities ignore their duty to provide access to information simply because they can.  That willful indifference engenders public apathy, skepticism and – dare I say it?! — cynicism about our democratic processes.

The beginnings of this public skepticism are, I believe, reflected in the Leader-Post and StarPhoenix editorial published just last Saturday.  Some local authorities are not being governed well.  Cover-ups of mistakes or misdeeds are the default mechanism for those perpetrating the problem.  We as citizens cannot begin to examine the problems without effective tools for making those administrations accountable.  In a word:  Freedom of Information. Let’s get serious about it!
Thank you for your interest.  I look forward to your questions and comments.

D’Arcy Hande was an archivist and program director with the Provincial Archives of Saskatchewan from 1974 to 2006.  He has degrees in political science and history, and has been a freelance research consultant and writer since his retirement.