Government agencies have flouted the law, and failed to live up to New Brunswick’s new Right to Information legislation.
When the government passed the new “Right to Information and Access to Privacy Act” in September, The Beacon decided to put it to the test. We submitted 100 Right to Information requests to a slew of government agencies and public bodies, carefully tracking how each was handled.
Finally they’ve all run their course, and the results are shocking.
Of the 100 requests we tracked, one in five responses broke the law, not following the rules set out in the legislation.
Ian Walsh is New Brunswick’s Chief Information Access and Privacy Officer. He’s in charge of the Information Access and Privacy Unit, which is responsible for managing the new act.
Meeting to talk about the new law, he arrives carrying a thick white binder, crammed with papers. He flashes a quick smile as he sits down, plopping the binder on the table beside him. He takes a sip of coffee, and the paper cup shakes in his hands.
When he hears that 20 per cent of the responses The Beacon received broke the law, he shifts in his seat, and glances at the table. His lips tighten and he furrows his brow.
“I’m troubled by that,” he says, “because they all should have responded.” He adds that government agencies have to take the new act seriously, and even one request not properly responded to is “unacceptable.”
Walsh admits that the law is new, and many departments and agencies are still adjusting to it, but says that is not an excuse for ignoring the rules.
“The act is the act, and it needs to be complied with,” he says. “Any citizen is entitled to information about government business.”
A complicated process
Walsh is right, citizens are entitled to information about the government, but much of that information can only be had by submitting a right to information request. This is a legal document asking a public body for information, such as its employees salaries or results of a water test.
Anyone can make a right to information request, and they can make it to any public body. Government agencies like the department of environment, universities and community colleges, as well as municipal organizations like local police and city councils are just a few of the public bodies covered.
The new act sets up laws for how these public bodies have to handle right to information requests. There is a specific process they must follow, including many rules laying out how much time a public body can take to respond to a request.
It was these time limits where a lot of the responses The Beacon tracked broke down.
Under normal circumstances, any Right to Information request has to be answered within 30 days. Several of The Beacon’s requests were answered, but the answers came after the 30-day time limit.
Ian Walsh frowns when he learns this.
“That bothers me,” he says, speaking quickly, “because if you don’t receive information within 30 days it’s deemed to be a refusal.” He explains that this means The Beacon had a right to launch a complaint with the commissioner who oversees the legislation.
Another big part of the new laws are an obligation on the part of any public body to send requests that they can’t fulfill to the public body that can. This is part of what the act calls “duty to assist,” and has to be done within ten days of receiving a request. The public body also has to notify the person who made the request what they’ve done.
Some responses to The Beacon that broke the law did so by not telling us they had passed our request along on time. Others did get in touch but only to say they couldn’t help, even though the law says they must send the request to the right place.
More troubling than the responses that were late, however, were the ones that didn’t come at all. Of the 20 per cent that broke the law, half of them were because The Beacon simply never received a response. That’s one in ten of all the requests we submitted.
Walsh has no explanation for this, and looks genuinely concerned when he finds out the numbers.
“I can’t tell the departments what to do, I can only advise them,” he says.
While this is true, Walsh’s unit is responsible for training all the public bodies who deal with right to information requests. They are the ones responsible for informing and advising all the new right to information coordinators. While he has no direct control over what they do, their ability to follow the the law is directly affected by how well they are trained.
Changing the culture
Anne Bertrand is the person that deals with Right to Information requests gone bad; she’s the Access to Information and Privacy Commissioner for New Brunswick.
When someone isn’t satisfied with how their request is handled, the former lawyer is the one they go to. Her job is to keep public bodies accountable, so she has no involvement in the day-to-day process of the requests.
“I only see them when they go wrong,” she laughs.
Bertrand has spent a lot of time with the new act, and says she thinks it’s a great piece of legislation because it’s designed to change the attitudes of public bodies and make them more accountable.
For a long time, public bodies (especially government agencies) operated in a culture of secrecy, and were generally hesitant to give out any information.
“They weren’t trying to keep [information] secret, but they ended up protecting it so much as to do that,” Bertrand says.
She says that before the new law, most public bodies would ask themselves “why should I give out this information?” Now, the questions they should be asking are “why shouldn’t I give out this information?”
Although this is great in theory, if public bodies aren’t following the law, its lofty intentions won’t really matter.
“What you really need is a cultural change,” Walsh says. He says that while he sees government agencies becoming more open all the time, it’s not something that can happen immediately.
This, says Bertrand, is part of the reason why public bodies are being phased in over time. Right now only the first round of public bodies is legally covered under the act. Later this summer, educational institutions will likely be included, and sometime next year municipalities will be brought in as well.
This, says Bertrand, is so those bodies have enough time to prepare and train for the new laws.
Many of the requests The Beacon sent out were to institutions like universities and local police, who will eventually come under the act but haven’t yet.
Although they all responded within the appropriate time, all but one of those institutions refused to give out the information that was requested.
Bertrand says these public bodies “should welcome these inquiries for accessing their information,” and should be prepared to cooperate with anyone who submits a Right to Information request.
The fact that they didn’t indicates that the cultural change both Walsh and Bertrand speak of is still a way off.
That leaves the question of what to do about public bodies breaking the law when dealing with right to information requests.
Walsh says his unit is dealing with the problems by “continuing with ongoing training.” Bertrand says she uses every complaint she gets as a chance to work closely with public bodies and help educate them on how to better deal with requests.
If The Beacon’s results are any indication, both have a lot more to do.