This week, the Province of Nova Scotia appointed a new Freedom of Information (FOI) review officer, Catherine Tully. The press duly reported this news, which seemed to cause some among them to do some supplemental work about the state of FOI in Nova Scotia and which had the general theme of decrying the sad state of affairs in this province, as such stories usually do. This reminded me of my own experience with FOI while working for the province, so I thought I would give my thoughts from the perspective of someone who no longer needs to deal with that nightmare.
When I started working in the Nova Scotia Government in 1982, our office in the Victoria General Hospital was undoubtedly like most others throughout government. We had a bunch of file cabinets, and Barb, our administrative assistant, who organized them for us. Things we thought were important went into the cabinets, but most of our day to day work never went near them, instead remaining on our desks or in our own offices until we were done with it. At that time you would give Barb what you thought should be kept, and toss the rest. Back then there were no personal computers and no email. If you wanted to communicate with someone other than by phone you sent a memo or a letter, and if Barb typed it for you, she would keep a copy in the files. Unlike patient records at the hospital, which were generally pretty well-organized even then, managing our administrative records was not something a whole lot of thought went into.
I moved to the Department of Municipal Affairs in 1985 and found a different situation there. In the center of the office space was a large records center, with banks of filing units mounted on tracks cut into the concrete floors to let them move for reasons of space efficiency, staffed by several individuals. Incoming and outgoing correspondence, reports, requisitions, invoices, you name it – all of it was supposed to be deposited there and coded to make it retrievable. The index was daunting, kept in a 3-inch binder, and not in any way intuitive. The people who managed the records center updated it often, and you can imagine the administrative nightmare it was to run and use such an operation. Everything was still paper-based and there were no automated tools to help manage and use the index. I ended up keeping a cheat sheet for the files I used most often under the clear plastic of my desk blotter, and would dutifully include the (hopefully) correct file number on everything that crossed my desk before sending it off for filing.
I soon discovered that records management was an edict mandated by “the center”, the central agencies of government like the then-Management Board. All provincial departments either had or were in the process of building records centers like ours, hiring staff to run them, and trying to make their operation follow the records management policies of government. There were records management overseers at the center who trained the departmental staff in how to make it work and who created the records management policies. I asked someone who was there at the start what had led to all this, since it seemed to me that it was hugely expensive and very cumbersome. The answer I got was that in the early 1980s, some documents that the Premier was looking for were not able to be found, and that the decision was made by him or his senior staff that government needed a records management program put into place. How much of that is true, I do not know, but the basic thought behind it cannot really be faulted. The problem is getting it implemented and working the way the theory calls for.
As time went on, things changed and some of the early discipline associated with the records management initiatives was lost. The costs associated with records management in departments made it an easy target when budget pressures came along, while management turnover at the center caused a loss of momentum, and changes in departmental structures left some areas without any centralized records management resources. Still, by the time Municipal Affairs relocated from Maritime Center to Summit Place in 1995, that department’s records center was still fully in place. In fact it received some of the best space in the whole department, taking up much of the west side of one floor overlooking Water Street through full-height windows. I hope the files enjoyed the view, though that sentiment was not shared by those located in cubicles in the center of the floor who did not rate windows themselves. Those design choices remain an enduring mystery.
In 1998 I moved to the Department of Finance and found a very different situation. Our little working unit had no connection with whatever records management system was in use in places like the Minister’s and Deputy Minister’s offices. In some ways it was like going back to 1982 again. The one difference is that by now there was email and PCs, and most of our records were electronic. This made it easier to save and archive everything, although finding anything you were unfamiliar with depended upon your computer searching skills. When I left Finance I had the I.T. guys burn a few CDs of our files and took them with me. I might even still have them somewhere.
In 2001 I moved to the Department of Tourism and Culture, working with the Deputy Minister, Michele McKenzie. This is where I had my first real exposure to FOIPOP in action. Replacing an earlier Freedom of Information Act passed in 1977, FOIPOP – the Freedom of Information and Protection of Privacy Act – was passed in 1993 and is the legislation that determines what information held by government can be made available upon request. Quoting from the Act:
The purpose of this Act is
(a) to ensure that public bodies are fully accountable to the public by
(i) giving the public a right of access to records,
(ii) giving individuals a right of access to, and a right to correction of, personal information about themselves,
(iii) specifying limited exceptions to the rights of access,
(iv) preventing the unauthorized collection, use or disclosure of personal information by public bodies, and
(v) providing for an independent review of decisions made pursuant to this Act; and
(b) to provide for the disclosure of all government information with necessary exemptions, that are limited and specific, in order to
(i) facilitate informed public participation in policy formulation,
(ii) ensure fairness in government decision-making,
(iii) permit the airing and reconciliation of divergent views;
(c) to protect the privacy of individuals with respect to personal information about themselves held by public bodies and to provide individuals with a right of access
to that information.
The reader will note that the Act has multiple and possibly conflicting objectives: giving the public the right to access records generally, or records about themselves specifically, with exceptions as to what may be released or collected; in order to facilitate public participation in policy-making, ensure fair decision-making, accommodating divergent views, while protecting personal information. Having apparently conflicting objectives is not unusual in legislation, as governments often need to try to balance a number of goals. The skill comes in how it chooses to implement whatever programs are put in place to achieve those goals.
When I arrived at Tourism & Culture in 2001, I learned that Angela Poirier, our Communications Officer, was also the Department’s FOIPOP administrator, the person who receives requests submitted under FOIPOP and who is responsible for finding the information, examining it according to what can or cannot be released under the Act, and ultimately providing the applicant with the response. I found this surprising only because during my time at Municipal Affairs, that role was held by the person who was in charge of the records center. Apparently with all of the to-ing and fro-ing that Tourism had undergone – from being a distinct department, to being part of Economic Development, then back on its own again – there was no central records management function for the whole of the Department, and Communications was thought to be a good spot for the FOI function to reside. Angela moved on after I was there a year or so, and Michele asked me to take on the job of FOIPOP Administrator. Not knowing any better, I agreed.
I still remember reading the Act and Regulations for the first time. My initial thought was, “This is an impossible task.” The exceptions outlined in the legislation were numerous, and both detailed yet unclear. There was a long list of what you must do, what you must not do, and what you may or may not do. And the Regulations were equally daunting, right down to providing a dozen or so forms that applicants and respondents in government were supposed to use. It seemed hugely bureaucratic, incredibly labor-intensive, and fraught with potential for error. And I was supposed to do this, just like Angela and the other administrators within government had, in addition to my regular job, because there were very few Departments that received enough in the way of FOIPOP requests to justify having it as a distinct position. I was supposed to handle the requests we received on an as-needed basis, the classic “other duties as required” found in a government job description, and understand this complex piece of legislation well enough to keep the Department out of trouble. Yikes!
If the legislation wasn’t enough of a problem, the way government chose to implement its response to it was equally troublesome. Government had established a position within the Department of Justice that was supposed to advise departmental administrators on how to deal with issues related to the Act. At the time it was held by Bob Doherty, a longtime civil servant and a smart fellow. Bob held regular sessions with the departmental administrators to keep us all up to speed on issues related to decisions of the review officer, any court cases that had been decided, and whatever else might be important to us. His role was advisory only, as government delegated responsibility for FOI administration to each department or agency, so there could be considerable variation in how a given request is handled (this still exists today). Bob also advised us on how to deal with the Review Officer, Darce Fardy. My sense is that they had a complex relationship, not easily categorized – that they liked lots about each other, but also drove each other crazy sometimes.
The problem with the review office was in some ways similar to what we faced in trying to understand the Act. It was so convoluted, with such room for interpretation, that you never knew how a case that was sent for review would turn out. A review would occur when the person who made the initial request received the response, was unhappy with what it contained, and appealed to the review office. Depending on how the office chose to interpret the legislation, the department’s position might be supported, or it might lose on appeal. My sense was Fardy would always favor the applicant and try to find a way to give him more. That position is fair enough and I had no problem with it as long as the legislation’s gray areas supported it. My one FOI encounter with him was over the phone and in the end was disappointing, as I thought I was just having a conversation with him that was not part of the actual review, but he never gave me another opportunity to formally respond. In the end it often made no difference as the Department was not bound by the review office’s decision anyway.
I was lucky that Tourism didn’t receive all that many FOIPOP applications during my time as administrator. Only one, as I recall, was from an individual seeking personal information, and that was from a fellow who was peppering all departments of government with similar requests, to the point where it was deemed to be harassment. Eventually I learned from Doherty that something, I don’t know exactly what, was done to make it stop.
Almost all of the rest of the applications were from two groups: either the news media, or opposition caucus offices. As administrator, these requests were usually frustrating. They were often obvious fishing expeditions, using the line “All records relating to…” whatever the issue happened to be. Identifying those records in the absence of a well-functioning records management system and centralized electronic records was no small task. First you would need to solicit the areas of the Department likely to be holding records with the request and get a preliminary idea of what they had. That alone could often take considerable time as the request has to filter down through many layers of bureaucracy. In a large department it would be even worse. Then once you heard back from those people internally you would provide the applicant with a response along with a cost estimate to complete their request, which was often not cheap, especially if electronic records had to be reconstructed from archival or backup copies. Usually this would result in a complaint about the exorbitant cost, which would then result in negotiations either on the cost side or the scope side.
If you could reach a meeting of the minds, then you began the main part of the job. The process required printing all the records found, making a second pristine copy for posterity in case the review office wanted to see it down the road, reviewing the master version line by line for exceptions under the Act, contacting any third parties identified in the records for their permission to disclose (which they rarely provided), redacting those items deemed to be subject to non-disclosure (I used liquid white-out, but lately I see a tape product in use), citing the section of the Act responsible for each redaction, making a copy of that redacted version, processing the applicant payments, sending the whole thing out, and waiting for the seemingly inevitable appeal. The whole process is just ridiculously bad. One request that I recall from Tourism ended up with a stack of paper about two feet tall once all the copies were made.
Sometimes the applications resulted in no records meeting the criteria submitted, which would be greeted with howls of derision. These often were in response to applications related to the cost of something, a popular subject for both the media and opposition parties. What is not well-understood was that government does not operate on a cost accounting basis. A given program or initiative is typically not costed as it happens. I always shake my head when something happens one day and the news story the next day says that “a government spokesperson could not provide a cost estimate for <whatever it was>”. Well, of course not. Neither could the reporter’s editor provide a cost estimate of what the reporter’s story cost. While the government’s SAP financial system does have a project costing capability, it requires considerable pre-planning and additional administration to implement and it is not done for most routine activities. So if you ask what was the cost of “X”, government typically cannot tell you until well after the fact, and even then it usually requires considerable manual effort to come up with a number. How much something costs is almost always a loaded question anyway. Someone I used to work with always responded to that kind of question with “How long is a piece of string?” and if you think about it you can understand why. Is it just direct out-of-pocket cost? Are staff salaries and other non-avoidable costs that would be paid anyway included? What about allocation of overhead? It goes on and on. Without a strict definition of what a cost is, and what it is not, these types of questions are essentially meaningless. But they make great headlines, or fodder for Question Period in the House.
As a FOIPOP adminstrator at Tourism, and later during my last 18 months or so at NSLC where the FOIPOP administrator worked for me, you get conditioned to treat requests from both the media and opposition caucus offices with a groan of resignation. You know they are looking for a “gotcha!” in your response, and you know you have to respond transparently, but you find yourself wondering if they really think you are dumb enough to give it to them, even assuming it exists. In reality, most of the time it doesn’t exist anyway, as people have become aware enough to ensure that those kind of records are not created in the first place, at least most of the time, or that if they do exist, they don’t keep them. Politicians and particularly Ministers are now aware of how FOIPOP can cause them embarrassment and seem to be well-briefed on how to avoid such pitfalls. I recall a former Minister excitedly telling us not to send him email but to use his Blackberry BBM function instead because, according to him, he had just discovered that those were not FOIPOP-able (whether that is true or not I do not know). That might have been an extreme case, but often records are tagged as Advice to Minister or Executive Council to exempt them from FOIPOP release, and I have received a few emails from senior officials that contain the direction to delete after reading. Most of the time Ministers are loathe to commit to permanent record anything that can be considered controversial, so you often receive your direction by phone or in a meeting. And even if a “gotcha!” record exists, it would be rare not to find an exemption of some sort for it in the Act, be it solicitor-client privilege, 3rd-party privacy, commercial confidential, personnel matters, or the aforementioned “advice” provisions. These claimed exemptions are almost always what appeals deal with.
So we have an Act that is very cumbersome to administer, very dissatisfying for those who wish to take advantage of its stated purpose, and costs a lot to administer and use. What is the solution? I don’t know enough about the concept of Open Government to comment intelligently, but I do know that it would take a lot of money and effort to implement on a broad scale, and it likely wouldn’t get to the kind of things that the majority of FOIPOP requests ask for anyway, which are the emails and other documents that go into a decision, not the hard data dealing with programs. On the rare occasion I did get that kind of data request, I would usually call the applicant and suggest they not bother with FOIPOP, and we would reach agreement fairly quickly on getting them what they wanted outside of that process. I typically wouldn’t charge anything for it as I just couldn’t be bothered dealing with the small sums of money and the massive amount of paper that a FOI request involved, and usually everyone went away reasonably happy. The only thing they lost was the ability to include the line “obtained via a Freedom of Information request” in their story, which they seemed to value tremendously. Such is life.
Government decisions these days are made using Powerpoint presentations, briefing notes and the occasional supplemental report. What leads up to that point are communications within the bureaucracy. You might say “make it all available publicly” but that has very real implications for both the concept of Cabinet confidentiality and those outside of government whose interests and identities are often found in these documents, so that doesn’t work either. Centralizing the FOI process might have appeal for some, but we have seen the results of that recently with the federal government and I’m not sure that is what we want either. It also causes a loss of context when outsiders examine records for exemptions, and I think that is what leads to large blocks of material being redacted unnecessarily, which would likely lead to even more appeals. Technology can be useful, but that is a double-edged sword, and while it might make compiling records easier, and may lead to more complete records being identified, it is doubtful it will be much help in reviewing them for redactions, which is the main sore point.
There were times when I thought that the fees for FOIPOP requests needed to be increased significantly, at least for certain groups like the news media and opposition caucus offices. Or perhaps more accurately, that they needed to pay more once they reached a certain number of requests. There seemed to be times when they were on a lot of fishing expeditions, and you would get several requests all at once. This is a real problem considering the part-time nature of most administrators, and in all honesty it led to some resentment that they wanted me to do their job for them. In retrospect I know that isn’t accurate, but I think the feeling is understandable. Maybe they would get “x” number of FOI requests per month at a certain price, and then pay more for any above that number? I don’t know the answer, and there would probably be ways to easily bypass any such provisions regardless, but there were times when it almost felt like certain individuals or groups were abusing the process. This is a touchy area, but a look at the fees and the way requests are priced seems important. Everybody wants information as inexpensively as possible, but numerous large requests can be a real burden.
I think a review of the Act with an eye to simplifying the exemptions, exceptions and may/may not provisions would go a long way, but it would be a very contentious process. I doubt that the media or advocates for more transparency would take suggestions to reduce the potential for information availability very well, and citizens justifiably want their personal information protected. On the other hand, I think there is considerable room to improve the provisions relating to contracts and payments to or from third parties. I see no reason why a company receiving payments from the public purse or making payments to government should not have to have the terms of any deal disclosed. In any event, I doubt a rewrite is on government’s radar anyway. But short of spending a lot of money on hiring more records managers, full-time FOIPOP administrators, more review officers, buying more technology, and probably dealing with more court cases, rewriting the Act is the only way I can see to speed up the process and reduce the ridiculously cumbersome nature of the beast. Because right now, it is indeed a very imperfect beast.