Submission received by email on April 1, 2021
ATIA Review Submission Howard Anglin
April 1, 2021

Dear Sir or Madam,
Thank you for the opportunity to submit comment on the ATIA legislative framework. Below, I address one of the three questions on which you asked for input, but I would like to begin by making a general observation. No doubt the overwhelming majority of submissions will urge you to increase access to information, making it cheaper for requestors, expanding the scope of material covered, and speeding up response times. I hope that my response will provide some balance.
At the heart of the theory of accountability in a Westminster democracy is that the people have the information they need to decide whether to re-elect members or, as the saying goes, to “throw the bums out.” Also of fundamental importance is the convention of individual and collective ministerial accountability, which allows members to hold the government to account for its actions.
In the first case, the information voters need to cast a ballot is largely unconnected with the internal operation of politics. On these questions, the ATIA is mostly irrelevant. When it comes to the questions of whether Canadians believe the country is safer, freer, more prosperous, more cohesive, or more moral, the voters themselves possess the most important data: their experience of life and work in their communities, supplemented by relatively broad statistical records like crime rates, average incomes,
employment rates, and tax rates allow them to measure the performance of a government. They don’t need to peer over the shoulder of mid-level public servants to read their emails or peruse ministerial briefing notes to measure whether their lives, their community, and their country are better or worse off.
It follows from this that public access to the large bulk of government’s internal communications— emails, direct messages, meeting notes—is rarely relevant and certainly not necessary to our democracy. Preserving, collecting, analysing, and redacting these communications comes at significant and growing cost, which significantly outweighs the probative benefits. The advent of electronic communication has moved many conversations that would otherwise have happened in person, online. The ease of communication, and especially remote and simultaneous communication (one can email or message six different people in six minutes while participating in an in-person meeting) means these informal exchanges, which would in previous decades have been phone calls or hallway conversations, have multiplied to produce troves of inconsequential, transitory records that in the past would have been undocumented and unavailable under an ATIA. The country is no better governed in 2021—and Canadians are certainly no better off relative to peer countries—than in 1991 or 1951. If voters and the media then did not need tape recordings of every personal bureaucratic or ministerial conversation to hold the government to account, then they don’t need the equivalent records today, simply because they are available. I would, therefore, strongly encourage all electronic communications within the public service and between the public service and political staff to be exempted from the ATIA, as

political office communications already are, unless they are the final and official record of a formal government decision (which they never should be).
In the second case, of ministerial responsibility, Parliament has all the powers it needs to access information and evaluate the performance of ministers. The ATIA is superfluous to those powers. If members do not choose to exercise their institutional prerogatives in holding the government to account in the House or its committees, then that is a matter for voters at the next general election.
What we need is not more indiscriminate access to information, but access to the right information. General statistical information of the kind that Statistics Canada produces is sufficient transparency for good government. Any improvements to transparency should be focussed on the quality and timeliness of this general statistical information. Contracts, costing, and the sort of documentation required for a proper accounting of government’s work should also be available to internal and external departmental auditors and, in appropriately redacted form, to the general public.
We don’t need more access to information as a general principle; we need less and better public access to information, at lower cost to taxpayers, and with less harassment and real-time supervision of public servants trying to develop and implement good policy by media.

What are your thoughts on what aspects of the legislative framework should be addressed in order to ensure it continues to respond to the ways Canadians and the government do business and manage information in the digital age?
As described above, the most important information for democratic accountability is timely, general statistical information about economic conditions, wages, employment, and public order. The rest is experienced by Canadians in their day-to-day lives. Public accounts are already available through the budget process and regular reporting by government and external sources. The retention of relevant information for purposes of internal and external audits of government, and for release when necessary or appropriate is also an important function, but not strictly related to the ATIA.
The ATIA should be amended to exclude electronic communications and routine memoranda. These are transitory records, which shouldn’t need to be kept or disclosed. As I wrote once before, media curiosity about government doesn’t make the transient important. Prurience does not create relevance. This amendment would save time and money and allow public servants and political staff to communicate more freely and candidly, which would improve government administration.
In his 1999 article, “The Rise of Court Government in Canada,” Donald Savoie documents the effect of transparency on the functioning of government. He quotes Giles Gherson, “a leading media figure in
Ottawa and a former policy advisor in the federal Department of Human Resources” as saying that "[t]o address the access to information issue ... I saw it myself that officials are extremely leery of putting things on paper that they wouldn't like to see made public or find its way to the media, several months later, that could be embarrassing to the minister.” Donald Savoie was writing in 1999, when electronic communication was still in its infancy. The volume today would be many times the case 22 years ago.
The ATIA is supposed to improve government; if it is inhibiting good advice and limiting internal communications in a way that is making government worse, then to that extent it needs to be corrected or curtailed.

Professor Savoie also cites the pollster Conrad Winn, who says that “access to information has seriously inhibited the ability of government departments to ask the right question when commissioning a survey.” The reason is that, “[t]he bottom line for the average public servant is don't embarrass the minister, that is the surest way to have your career stopped or slowed down. If you have polls that ask all kinds of questions that would reveal the truthful complexity of what people think... then [the polls] will inevitably show the public doesn't like something the government does.”
In the Soviet Union, one of the problems the government faced was not knowing what the people really thought, which limited the government’s ability to devise good policy. In that case, it was the people who (with good reason) were afraid to answer government polls honestly for fear of government reprisal; now, in Canada, it seems we have the opposite problem— government officials are afraid to ask relevant and probing questions, for fear of public reprisal. For this reason, government public opinion research should not be subject to the ATIA.

What are your thoughts on how proactive publication is working so far?
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Tell us your thoughts on the process of submitting an access to information request – what works and
what doesn’t?
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