Op-ed: The hazards of secrecy and the benefits of openness
The following is an op-ed written by Paul Thomas, professor emeritus in the department of political studies. It was originally published in the Winnipeg Free Press on Apr. 30, 2019.
Regardless of the party in office, when sensitive information is involved, governments prefer secrecy to openness. Politicians and bureaucrats focus on the costs and risks involved with disclosure and ignore or minimize the potential benefits of disclosure. In a self-fulfilling prophecy, they assume that the public is uninterested and ill-informed after they have contributed to this condition by limiting the flow of information.
Too often, they underestimate the willingness and capacity of the public to wrestle with complex policy issues. The potential benefits of greater openness include a better-informed and engaged public, more intelligent policy-making because more diverse voices are heard, and greater accountability for elected and appointed public officials for their actions and inactions.
I base these generalizations on four decades of study of access-to-information issues and my role leading and participating in public inquiries on various policy issues. That work has brought me into contact with hundreds of individuals and organizations that have sought my advice on how to access information and seek the redress of grievances in such fields as environmental protection, health care, Indigenous issues, land-use planning and, most recently, consumer protection in banking.
Facing large institutions that have a virtual monopoly on information and expertise, it takes courage, ingenuity, patience and perseverance to promote and to protect one’s right to information and to obtain the resolution of concerns.
Before taking office in 2016, the Progressive Conservatives led by Brian Pallister issued the “Open Government Initiative,” a document that promised a number of reforms intended to promote greater openness. To its credit, the Pallister government did follow through with the release of mandate letters and briefing books prepared for new ministers. Reluctantly and belatedly, two consultants’ reports on health system reorganizations were also released. Apparently, work is still being done on a promised open-data portal for the government of Manitoba.
Another promise was to conduct a review of the Freedom of Information and Protection of Privacy Act (FIPPA) that is meant, in part, to protect the public’s right to know. Passed in 1998 and last amended in 2011, FIPPA is in drastic need of modernization in light of technological change, new approaches to governing and less deferential citizens.
The review was launched in a low-key manner on March 29, 2017. The public-consultation phase of the review was conducted only online, with no public hearings, and lasted only from March to June of 2017. Only eight individuals (including yours truly) filed submissions. The result was that the government heard mainly from more than 340 public bodies, such as health authorities, municipal governments and educational institutions that must comply with the terms of FIPPA, and other stakeholder organizations like the Association of Manitoba Municipalities and Economic Development Winnipeg.
On April 11, 2019, an underwhelming nine-page report on the review was released. The report discusses a number of general themes, but makes no concrete recommendations. Nor does it mention any government plans to introduce legislation to amend FIPPA before the next provincial election.
Having listened mainly to organizations that feel overburdened by the requirements of the law, the main message of the report is the need to limit the number of requests for documents, to increase the time allowed to respond to such requests and to increase the fees that could be charged to applicants seeking access to information. No mention is made in the report of the 50-page submission from the Manitoba ombudsman, the officer of the legislature who exists to oversee the operation of FIPPA.
That document made 34 valuable recommendations to strengthen the law in ways that would bring it closer to what exists in leading jurisdictions in Canada and elsewhere.
Hopefully, before Pallister’s Progressive Conservatives seek another mandate from voters, they will tell us where they stand on a long list of potential reforms to Manitoba’s FIPPA regime. Do they favour the principle of proactive disclosure, rather than reliance on a complaint-based approach to secure the release of documents? Will they include the authority for departments and agencies to waive fees in the interest of fairness?
Will they introduce into FIPPA a “public interest override” clause that permits the release of documents that fall into one of the categories of protected information? Will they include in FIPPA a duty to document deliberations and decisions in order to curb the defensive strategy of not recording such actions? Will they move cabinet confidences from the mandatory confidential category under FIPPA to a discretionary category to allow for review by the ombudsman?
Will they agree to a documentation format that separates factual background material from the advice to allow for the release of the former? Regarding information from third parties outside of government, will they amend the law to remove almost automatic confidentiality by requiring those parties to demonstrate potential harm to their interests arising from the release such information?
In the interest of greater civic literacy and greater citizen involvement, it is necessary to recognize the hazards of secrecy and the benefits of openness.