Suzanne Legault, Canada’s Information Commissioner, says federal officials are suppressing freedom of information in Canada.

“I am seeing signs of a system in crisis, where departments are unable to fulfill even their most basic obligations under the act,” she told a group of bureaucrats yesterday in a private meeting.

A copy of the watchdog’s speaking notes was obtained by The Canadian Press.

According to Legault new protocols and directives are thwarting the public’s access to information. She cited a Treasury Board directive, released in April of this year that instructs bureaucrats to exclude ministers’ offices from access-to-information document searches.

Some protection is afforded to information contained in a minister’s office due to a Supreme Court of Canada ruling in May of 2011, but this new directive oversteps the measures of that ruling.

“This new component is not found in the Supreme Court of Canada’s decision,” her speaking notes read. “In my view, it is potentially damaging to requesters’ rights.”

The directive in question also gives senior political staffers decision-making power over which documents are relevant to access-to-information requests, leaving ostensibly non-partisan decisions up to political actors.

Other points of concern for Leagult were unfulfilled requests, where information was unjustifiably refused or excluded from the Access to Information Act.

In addition, such unjustified delays were irresponsibly handled by departments.

Legault took the Department of National Defense to federal court for a 1,110-day extension under the Act, only to have the department release the documents a few weeks before her challenge in court.

“This type of case is not rare,” she said.

According to her notes, complaints to the Information Officer’s office in the first 5 months of the 2013-2014 year is up by 35 per cent. Complaints about departments claiming ‘no record exists’ in response to a request are also up by 34 per cent.

This week marks the annual Right to Know Week which promotes transparency in government.

Commissioner Legault also launched a formal investigation into the Harper Government’s systematic efforts to silence scientists and censor their engagement with the media. That investigation, launched after the release of a 128-page report by the University of Victoria’s Environmental Law Centre and Democracy Watch, is currently ongoing.

Legault has previously admitted this government is “not the most transparent,” and is a laggard in the Access to Information area. In 2011 less than 20 per cent of requests were fully disclosed. In early 2013, Legault claimed the government's transparency was at an all time low and requests for extension were at an all time high.

Poor access-to-information regimes "prevents Canadians from holding governments to account," she told the CBC back in February.

"Canadians should be angry," she said at the time. "It's really a fundamental democratic right in Canada [and] it's linked to freedom of expression."

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Calvin Sandborn, the Environmental Law Centre’s (ELC) legal director, is “tickled pink” over the Information Commissioner’s decision to investigate allegations that Canada’s federal scientists are being muzzled.

“We’re very happy because this is the kind of thing that just by the Commissioner looking into it and bringing the fact to the public, I think the policies with change. Because these things just don’t withstand scrutiny if they are out in the open and the public knows what’s going on. It’s indefensible to conceal publicly financed government science from the public. It makes no sense from a democratic point of view. Citizens need to know what the facts are so they can decide on critical issues like climate science, the tar sands development and pipelines and all sorts of other issues,” he said.

On February 20th the University of Victoria’s ELC and Democracy Watch released a report detailing several cases of muzzling and requested the Office of the Information Commissioner (OIC) launch a formal investigation. Just over one month later, on March 27th, Information Commissioner Suzanne Legault’s office announced the complaint fell within its mandate.

The OIC announced it will investigate a number of federal departments, including Environment Canada, the Department of Fisheries and Oceans and Natural Resources Canada, in regards to the development and implementation of their policies.

Is Canada Loosing Grip of its Democracy?

For Calvin Sandborn, the investigation is about the principles at root in government policy, about the principles of democracy. If you look back to the Enlightenment, says Sandborn, you can see the relationship between democracy and a rational, scientific approach to the world.

It was during the French Revolution and with Enlightenment thinkers like Voltaire and Rousseau that the Greek principles of democracy were recovered and reintroduced to society. Democracy offered up as a radical alternative to the absolutism of the monarchy, which, at the time, was the most centralized power Europe had ever seen.

It was at the time of an incredible power imbalance, when democratic institutions were really thought out – the division of power, the checks and balances, the democratization of the system.

The root of democracy, says Sandborn, lies in its inclusion of diverse perspectives and ideas, which provide the base for decision making through reason and the weighing of evidence.

“It’s in the non-democracies where decisions are made for ideological purposes or are made pursuant to the divine right of the king. But democracies rely on trying to make rational decisions for the good of the people,” he says.

“Most reasonable people would agree that we should act on the basis of facts, on the basis of evidence and science and that it’s simply indefensible for the government to withhold facts from the public who paid for those facts to be researched.”

Canada, the Great Petrostate

But what were seeing in Canada is not the growth and development of a democracy, but the emergence of a petrostate.

“Andrew Nikiforuk has written about this,” says Sandborn, “that when countries become petrostates, when they become dependent on the oil and gas industry, they tend to become more autocratic. We certainly saw this tendency in the US. Bush was heavily influenced by the oil and gas industry."

"And what the Canadian government is doing today is certainly very similar to what we saw happening with George W. Bush in promoting the interest of the oil industry and suppressing the science on the environmental impacts of the oil industry. George W. Bush got into a lot of trouble because of his administration’s manipulation of science on climate change and suppression of scientific information.”

It was to Bush’s ultimate disadvantage, according to Sandborn, because scientific freedom became a campaign issue in the 2008 election and eventually led to the Obama Administration reversing many of the former administration’s rules.

What we see happening now in the US is very different than what we see in Canada, he says. “Now we see the US with these rules that are totally the opposite of what is happening in Canada, where the American government is saying to scientists that they can share science and facts with citizens. In fact, it is their obligation to and government encourages them to.”

Just like in the US, says Sandborn, the suppression of information appears to be in relation to Canada’s petrostate agenda.

“It is interesting to see that topics that require the highest level of ministerial control are topics related to tar sands, climate change, polar bears, caribou and the oil and gas industry. Those are all terms used in the federal government policies and on those topics the rules are the strictest. The scientists have to get the highest level of ministerial approval to talk about those topics. I’ll leave it to you to decide whether that’s a coincidence.”

Brave New Canada

As Sandborn sees it, Canadians really care about democracy – and maybe moreso now that it feels threatened.

“I think people are really sensitive when they feel the democratic process may be getting distorted. People have a visceral dislike of hearing of government manipulation the facts and reusing to be straight with the public.”

What is happening in Canada feels like a bad case of historic deja-vu, as Sandborn puts it, and Canadians are not supportive of this political backslide.

“We went through the 20th century and dealt with all sorts of autocracies and autocracies do that sort of thing – they manipulate information and they mislead the public about science and they suppress scientific information. We’re used to autocratic dictatorial regimes doing it, we’re used to reading in Brave New World and 1984 about regimes that manipulate information.

People don’t want to see that happen here – and I’m not saying it’s Brave New World or 1984 here – but people recognize the issue, they recognize it’s important to maintain a vibrant democracy and that the principle is important, that scientists need to be free to talk to the public about the facts.”

“I mean, it’s only the facts,” Sandborn says, “these are not dangerous things. It’s just scientific research, it’s not some radical thing.”

The reasonableness of it all, says Sandborn, can be seen in past scientific protests in Canada. In one of the demonstrations scientists took to the streets holding signs that read:“ What do we want? Science! When do we want it? After peer review!”

These aren’t radical political dissidents of any sort, Sandborn laughs.

The Outcry

“I think it’s kind of reassuring that citizen are so concerned when it comes to matters of democracy,” Sandborn adds. “People are riled up about this thing.”

News that Information Commissioner Suzanne Legault had initiated an investigation was warmly received at the Environmental Law Centre. For Sandborn, the announcement meant that the meaning of muzzling hasn’t been lost on Canadians and, perhaps more importantly, that Canadians felt they could do something about it.

The real meaning of the investigation has yet to be seen, but Sandborn is hopeful.

“I think all is well that ends well. I think that scientists will hopefully no longer be muzzled at the end of the day. And I think that the fact that the Information Commissioner is launching an investigation may create a dynamic of its own in that scientists will feel much freer now to contact her office and talk about the instances that they’ve seen.

We know that there are many, many scientists who are concerned about this and we know there are professional organizations that have taken a very strong position on this. We’ve heard all sorts of stories of people who were afraid of being fired for talking about the issue and so as a result of the fact that there will be some protection for scientists now who come forward, I think the commissioner is likely to get to the bottom of it and the situation is likely to change.”

The government policies, says Sandborn, really speak for themselves. “Those restrictive policies, they indicate a clear pattern of political control over anyone talking about science.” 

Those policies – appended in the ELC report, authored by UVic law student Clayton Greenwood – are exactly where Commissioner Legault should start, Sandborn notes.

As for the scientists, their prospects might be better than others facing muzzling in the country. “The Commissioner can issue a public report and she can issue a report to Parliament. Hopefully people in Parliament can talk about this too. Although I understand people are being muzzled in Parliament too, as well as the historians and the archivists.”

This investigation is likely the first step in a long uphill march. But for Sandborn, a small but crucial victory lies in the nation’s changing public awareness.


“I think the main thing is that the public is coming aware of this now.”

Image Credit: Busts of Voltaire and Rousseau via Wikipedia. 1984 book cover by gray318.

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Information Commissioner Suzanne Legault has announced that she is launching an investigation into the “muzzling” of scientists.

The announcement comes in response to a letter sent by the non-partisan citizen advocacy group Democracy Watch and The Environmental Law Centre (ELC) at the University of Victoria earlier this year. The letter included a 126-page report signed by ELC Legal Director Calvin Sandborn that called to attention several instances in which communication between scientists and media had been delayed, discouraged or prohibited.

“There are few issues more fundamental to democracy than the ability of the public to access scientific information produced by government scientists—information that their tax dollars have paid for. We as a society cannot make informed choices about critical issues if we are not fully informed about the facts,” the letter argued.

In a March 27 letter to Sandborn, assistant information commissioner Emily McCarthy wrote that notice of the investigation has been sent to seven separate government agencies, including:

• The Ministry of the Environment
• Department of Fisheries and Oceans
• Department of Natural Resources
• Department of National Defence
• National Research Council of Canada
• Canadian Food Inspection Agency
• The Treasury Board of Canada Secretariat

According to McCarthy, the latter is included in the complaint because of “its role in relation to the development and implementation of government policies.”

In February, Legault told CBC Radio’s Sunday Edition that the Harper administration is “not the most transparent.”

“We are at a record low in terms of timeliness,” she said. “The percentage of information being disclosed is also low.” 

Democracy Watch Coordinator Tyler Sommers announced, “We’re very pleased with the fact that this investigation has been called and we will continue to push the Information Commissioner to get to the bottom of this situation, publicly release the results, and push the federal government to change these policies. We will also continue to push for the democratic changes to we need to Canada’s access to information law.”

The author of the original report, law student Clayton Greenwood, says many of his subjects had misgivings about speaking openly about their experiences. He hopes that this investigation will give scientists the freedom they need to express themselves.

“There were concerns of getting fired,” he says. “With all these job cuts and budget cuts, there aren’t a whole lot of government scientists now that are going to come out publicly and criticize the government's policies. On the contrary, the commissioner has the power, similar to judges, to compell a testamony from a scientist under oath. That's a guarantee that people are going to be able to speak truthfully about this.”

Although he acknowledges that the commissioner’s powers are limited, he believes that her report to parliament will get the truth into the public eye.

“We feel that these sorts of policies can only exist if nobody knows about them, if they're done quietly behind the scenes,” he says. “Our primary goal from all this is just to get all this information out there. Then we feel that the public will put enough pressure for them to have to make a change.”

Image Credit: NASA ICE via Flickr

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A letter from the University of Victoria’s Environmental Law Centre (ELC) and citizen advocacy group Democracy Watch asks Information Commissioner Suzanne Legault to investigate “the systematic efforts by the Government of Canada to obstruct the right of the media—and through them, the Canadian public—to timely access to government scientists.”

It argues, “There are few issues more fundamental to democracy than the ability of the public to access scientific information produced by government scientists—information that their tax dollars have paid for. We as a society cannot make informed choices about critical issues if we are not fully informed about the facts.”

This investigation is necessary, the groups claim, “because Canadians cannot make smart choices about critical issues such as climate change, oil sands development and environmental protection if the public does not have full access to the Government’s best scientific knowledge on those issues.”

The impetus for this letter came in the form of a 128-page report from the ELC entitled Muzzling Civil Servants: A Threat to Democracy, which outlines the numerous documented cases of interference from Government of Canada Media Relations in journalists’ efforts to attain accurate statements from scientists on political hot button issues such as climate change.

Examples from the report include the case of scientist David Tarasick who, documents show, was prevented from speaking about the research he published in Nature Magazine under the title “Unprecedented Arctic ozone loss in 2011” for two weeks.

It also cites examples involving from the Department of Fisheries and Oceans, Natural Resources Canada, the National Research Council, the Canadian Food Inspection Agency, and the Department of National Defence.

The evidence of muzzling reached a new level in the case of scientist Scott Dallimore who was forbidden to communicate with journalists about a study that involved a flood that took place in Northern Canada “almost 13,000 years ago.”

According to the report, Natural Resources Canada’s “media relations manager wrote to Dallimore ‘we will have to get the minister’s office approval before going ahead with this interview’ because the reporter represented a 'national news outlet' and the subject matter of the interview had ‘wide-ranging implications.’”

The report also contrasts American and Canadian policies, pointing out that while American scientific policies have made significant movement toward transparency under the Obama administration, “Canada has moved in the opposite direction under Prime Minister Harper. Since 2006, Prime Minister Harper’s government has gradually tightened the media protocols that federal scientists and other government workers must comply with.”

Commissioner Lagault has admitted in the past that the Canadian government is “not the most transparent,” and lags in the area of Access to Information, though she has yet to respond to the call for an investigation. 

Meanwhile, Minister of State for Science and Technology Gary Goodyear told The Province via e-mail "we reject the premise of the accusations." He claimed that the "government provides significant access to federal scientists."

This comes just two weeks after American scientist Andreas Meunchow reported on his blog that he refused to sign a Canadian confidentiality agreement saying, “it threatens my Academic Freedom and potentially muzzles my ability to publish data and interpretation and talk timely on science issues of potential public interest without government interference.”

In response to the many loopholes that exist in the access to information laws across Canada, as well as the lack of enforcement and audits to ensure people are following the law in some jurisdictions, Democracy Watch and the Open Government Coalition call for the following 8 key changes:

1. any type of record created by any entity that receives significant funding from or is connected to the government, or was created by the government and fulfills public interest functions, should be automatically covered by access to information laws and systems (as in the United Kingdom);
2. all exemptions under access to information law should be discretionary, and limited by a proof of harm test and a public interest override (as in B.C. and Alberta);
3. the access to information law and system should require every entity covered (as in the United Kingdom, U.S., Australia and New Zealand): to create detailed records for all decisions and actions and factual and policy research; to routinely disclose records that are required to be disclosed; to assign responsibility to individuals for the creation and maintenance of each record, and; to maintain each record so that it remains easily accessible;
4. the access to information law and system should allow anyone who does factual or policy research for the government to speak to the media and publicly about the topic;
5. severe penalties should be created for not creating records, for not maintaining records properly, and for unjustifiable delays in responses to requests;
6. the Information Commissioner should be given explicit powers under the access to information: to order the release of a record (as in the United Kingdom, Ontario, B.C. and Quebec); to penalize violators of the law, and; to require systemic changes in government departments to improve compliance (as in the United Kingdom);
7. funding to the access to information system and enforcement should be increased to solve backlog problems instead of increasing administrative barriers, and fees for access should be lower overall and standardized, and;
8. Parliament must be required to review the ATI Act every 5 years to ensure that problem areas are corrected.

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