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Former Information Commissioner Legault rules Harper Conservatives violated policy by muzzling government scientists, and Trudeau Liberals ignoring recommendations needed to stop muzzling

Will new Information Commissioner Caroline Maynard continue pushing to stop muzzling of scientists, and for other key open government and whistleblower protection changes?

Senate should amend Bill C-58 as it fails to keep Liberals’ open government promises and ignores broad support over past 15 years for key, long overdue changes needed to change culture of excessive secrecy

Thursday, March 15, 2018

OTTAWA – Today, Democracy Watch and the University of Victoria’s Environmental Law Clinic released former Information Commissioner Suzanne Legault’s investigation report on whether the Harper Conservatives muzzled government scientists. The report resulted from a complaint filed in February 2013 by Democracy Watch in collaboration with the University of Victoria’s Environmental Law Clinic.

Commissioner Legault’s report, released February 28, 2018 just before her term in office ended, found that six departments and agencies in the Conservative government violated the government’s Communications policy and “formal commitments to foster and promote Open Government” by muzzling scientists in ways that prevented them from “responding to the information needs of the public.”

The report also says that while the Trudeau Liberal government has made some changes that increase “the likelihood that members of the public can obtain timely access to complete, accurate and expert information,” the Liberals have failed to implement four recommendations Information Commissioner Legault made last September to ensure government scientists no longer feel a “chill” or “fear” when disclosing their research publicly, as follows:

  1. Ensure the Chief Science Advisor is independent from Cabinet and has the mandate to ensure government science is fully available to the public and scientists can speak freely about their work;
  2. Require government institutions to collect data and report on how the respond to requests for government science information;
  3. Change the Access to Information Act to require proactive public disclosure of information that could affect public safety, public health and environmental protection;
  4. Correct any weaknesses in the protections and supports provided to government scientists who disclose their research, and establish best practices and educate them about their rights, and evaluate whether they feel confident exercising their rights.

A recent survey of federal government scientists found that 53% of them still feel muzzled.

Democracy Watch and the Open Government Coalition it coordinates called on the Senate to make these and related changes during its review of Bill C-58 to strengthen the federal Access to Information Act and open government system (as called for by a unanimous House Committee report in June 2016 — SEE details below).

Democracy Watch and the Open Government Coalition also called on the Liberals to reverse their decision last October which rejected the changes recommended by the House Government Operations Committee last June to strengthen whistleblower protection (SEE details about the Committee’s report, and Treasury Board President Scott Brison’s response, here).

They also called on new federal Information Commissioner Caroline Maynard to continue pushing for key changes to strengthen the federal open government law, and whistleblower protection law, and enforcement systems to ensure openness by default (as the Liberals promised in their 2015 election platform).

“The Information Commissioner has not only reached the important conclusion that the Harper Conservatives violated federal policies by muzzling government scientists but also that the Trudeau Liberals have not done enough to unmuzzle them and ensure they don’t have anything to fear when they disclose their scientific research to the public,” said Duff Conacher, Co-founder of Democracy Watch. “To protect government scientists, and all public servants, who disclose key information the public has a right to know, the Liberals must strengthen the federal open government law and enforcement system, and the federal whistleblower protection law and system. The Senate can make many of these key changes when it reviews Bill C-58.”

“Government scientists do research that both government and the public need to make policy decisions on things like climate change and oil spill risks. It is profoundly dangerous when government muzzles scientists and hides information from the public. Such muzzling threatens democracy because it deprives citizens of the information they need to make sound policy choices. Equally important, such muzzling endangers the environment, because it makes evidence-based environmental decision-making far less likely,” said Calvin Sandborn, Legal Director of University of Victoria’s Environmental Law Clinic. “The law, enforcement system and culture of the federal government must all ensure that scientists feel no fear when they share government research with the people that own it – the citizens of Canada,” he concluded.

The Trudeau Liberals promised several changes not included in Bill C-58 in the Open Government section of their 2015 election platform, and in the specific Access to Information section of the platform. Bill C-58 also includes changes that were not promised in the Liberals’ platform, changes that are big steps backwards in access rights. The Liberals have also failed to keep their international Open Government Partnership commitments, weak as those commitments were. Bill C-58 also ignores many of the recommendations made in the unanimous June 2016 report of the House of Commons Access, Privacy and Ethics Committee.

Tens of thousands of voters have sent messages through Democracy Watch’s Open Government Campaign page calling on federal parties to make these key changes. Democracy Watch also signed the open letter issued recently by a global coalition of organizations and individuals calling for similar changes.

“Given that the federal Access to Information Act and open government system have been reviewed several times in the past 15 years, and that there is a consensus on key changes that must be made, there is no justifiable reason for any further delay in making the changes,” said Duff Conacher, Co-founder of Democracy Watch and Part-time Professor of law and politics at the University of Ottawa. “If these key changes are finally made, and the Senate can make many of them when it reviews Bill C-58, the current federal ‘Guide to Keeping Secrets Act’ will finally become a real access to information act,” said Conacher.

The public was consulted on changes to the Act and system in 2000, and again in 2009 when a House Committee issued a unanimous report calling for changes, and again in 2011 and in 2013 (twice) through the international Open Government Partnership (OGP) process. The Information Commissioner issued a report in late March 2015 recommending many key changes. And, then, as mentioned above, the Liberals have consulted on their weak international Open Government Partnership 2016-2018 plan. Every consultation has resulted in a broad, strong call from the public and citizen groups to make the key changes listed below.

In addition to the changes the Liberals promised in their 2015, election campaign, the Conservatives promised several key changes in their 2006 election platform and federal Conservative Treasury Board minister Tony Clement agreed in 2014 that the Access to Information Act needs to be changed (as did Rob Nicholson in 2009). Also, the NDP and Liberals both introduced private member bills aimed at changing the Act when the Conservatives were in power.

The key changes that Democracy Watch and the Open Government Coalition have been advocating for more than 15 years are as follows:

  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 the access to information law and system (as in the United Kingdom);
  2. all exemptions under the 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, findings and conclusions of their research without being required to seek approval first from anyone (including their superior, the Privy Council, the Prime Minister, a Cabinet minister, or any ministerial staff person);
  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 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 with high fines, jail terms, loss of any severance payment, and partial clawback of any pension payments, 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 such as limiting requests in any way, and fees for access should be lower overall and standardized for every entity covered by the access to information law and system; and
  8. Parliament must be required to review the ATI Act every 5 years to ensure that problem areas are corrected, and;
  9. establish a fully independent, non-partisan appointments commission (with members, appointed by non-governmental organizations like the Canadian Judicial Council, serving fixed terms of office) to conduct a merit-based search for nominees for Information Commissioner and all other officers of Parliament, and to present a short list to the Cabinet that the Cabinet has to choose from after at least consulting with all federal party leaders (even better, require that a majority of party leaders approve of the Cabinet’s choice).

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Duff Conacher, Co-founder of Democracy Watch
Tel: 613-241-5179
Cell: 416-546-3443
Email: [email protected]

Calvin Sandborn, Legal Director of University of Victoria’s Environmental Law Clinic
Tel: 250-472-5248
Email: [email protected]

Democracy Watch’s Open Government Campaign and Protect Whistleblowers Who Protect You Campaign