Volume 1 Issue 1, Article

Margaret Thompson, Elyse Amend and Luisa Marini
Department of Journalism, Concordia University

Canadian Access to Information and Journalism: Obstacles and Opportunities

The Canadian federal Access to Information Act (ATIA) is an essential yet inadequate piece of legislation that, in theory, helps facilitate democratic engagement. Making use of this legislation is an essential way for journalists to hold power to account; to provide the public with newsworthy information; to illuminate government officials’ decision-making processes; to verify information gained from other sources; and to provide context for their audiences. However, multiple challenges involved in navigating the federal ATI system pose significant setbacks for journalists. As a result, ATI is not being used to its fullest extent, the quality of journalism being produced is hampered by incomplete information, and the ability of citizens to make informed choices in their lives and in the political sphere is obstructed. Through interviews with 17 Canadian journalists, this research investigates the benefits and barriers federal ATI poses to their work. Its results point to a broken system rife with practical and ideological hurdles that have caused journalists to use it as a “last resort,” or have motivated them to take an information advocacy approach in their reporting.

Keywords: freedom of information, access to information, investigative journalism

L’accès à l’information au Canada et Journalisme : Obstacles et opportunitésL’accès opportunités

La loi sur l’accès à l’information (LAI) est un texte législatif essentiel mais inadéquat qui, en théorie, devrait contribuer à faciliter la participation au processus démocratique. Le recours à cette loi est un moyen essentiel pour les journalistes de contraindre le gouvernement à rendre des comptes, de fournir au public de l’information pertinente, d’éclairer les processus décisionnels des représentants du gouvernement, de vérifier les informations obtenues à partir d’autres sources et de fournir un contexte à leur auditoire. Cependant, les nombreuses difficultés rencontrées lors de l’utilisation du système fédéral d’accès à l’information constituent des obstacles importants pour les journalistes. Ainsi, la LAI n’est pas utilisée dans toute sa plénitude et la qualité du contenu journalistique est limitée par de l’information incomplète ce qui nuit à la prise de décisions éclairées par les citoyens sur les enjeux qui les affectent au quotidien. Cette recherche examine, par le biais d’entrevues avec 17 journalistes canadiens, les avantages et les obstacles que la LAI pose à leurs pratiques de travail. Ses conclusions mettent en évidence un système défaillant se caractérisant par des obstacles pratiques et idéologiques qui ont motivé les journalistes à ne l’utiliser qu’en « dernier recours » ou les ont incités à opter pour une approche axée sur la défense de l’information dans leur reportages.

Mots clés : liberté d’information, accès à l’information, journalisme d’investigation

INTRODUCTION

The Access to Information Act (ATIA) is Canada’s freedom of information law. It is a piece of legislation that grants any Canadian citizen or permanent resident the right to access government information. The purpose of the act is “to enhance the accountability and transparency of federal institutions in order to promote an open and democratic society and to enable public debate on the conduct of those institutions” (Government of Canada, 2021). The Canadian ATIA was implemented in 1983, and was seen then as a major accomplishment on the global stage. A country’s adoption of a Freedom of Information (FOI) law continues to be perceived as an indicator of a healthy democracy today (Roberts, 2006a).

However, the existence of these laws belies their functional inadequacies. In Canada, critiques of the federal Access to Information (ATI) system have included lengthy delays, heavily redacted information, government officials meddling in request responses that are outside their jurisdiction, and high fees (Vallance-Jones, 2017; Roberts, 2006a; Appelgren & Salverría, 2018). Due to outdated laws and regulations, the continuing evolution of technology and digital data, and increased governmental partnerships with the private sector, the areas beyond the reach of ATI laws have multiplied (Information Commissioner of Canada, 2015). This has resulted in the ATIA widely being described as stagnant and out of touch (Gingras, 2012; Kazmierski, 2016). The chronology of the ATIA shows that government officials have largely neglected to modernize the act in a satisfactory manner. Canada was once a world leader in information access, yet despite global momentum towards increased government transparency, Canada’s ranking has steadily fallen. As of 2020, Canada’s FOI laws were ranked 52nd in the world (Center for Law and Democracy, 2020).

As recently as January 2021, a report from the Office of the Information Commissioner of Canada lamented the dire state of the federal ATI system. In it, commissioner Caroline Maynard notes that while the ongoing COVID-19 health crisis has “highlighted the weak links in the federal access to information regime,” the system has been in a state of disarray for many years (Office of the Information Commissioner of Canada, 2021, p. 5). Maynard writes, “The access regime had already entered a critical phase before the pandemic and could soon be beyond repair if certain serious problems are not resolved” (emphasis added) (Office of the Information Commissioner of Canada, 2021, p. 5).

This research attempts to understand journalists’ experiences of navigating the Canadian federal ATI system to further their reporting. It also aims to situate Canadian journalists within the broad set of influences that impact the intersection of the ATIA and journalistic practice. To address these issues, this study conducted one-on-one semi-structured interviews with 17 Canadian journalists regarding their professional experience using federal ATI.¹ The data obtained during these interviews was coded and analyzed according to recurring themes that emerged out of the data itself.

Beyond understanding the challenges that journalists face while navigating the ATIA, this study also aims to contribute to a larger conversation on the importance of journalism and civic responsibility, as well as contribute to advocacy efforts for improved FOI legislation. Drawing on these ideas, this study poses the questions: How does federal ATI function for journalists in Canada? How is it useful for their reporting? What are the barriers?

LITERATURE REVIEW

Before the ATIA came into force in 1983, the Canadian government was responsible for deciding what information could be made available without any recourse from the public. Larsen and Walby (2012) note:

The ATIA offered the only challenge other than the courts to the otherwise absolute powers of the executive branch to determine which records remain confidential. It did so by forcing the release of requested information based on the law, rather than depending on the goodwill or political agenda of government officials. (p. 41)

On the global stage, Canada was one of the first countries to implement such a law, which fundamentally changed the way the Canadian public could engage with government information. Anne-Marie Gingras (2012) writes “information is considered vital to democracy” (p. 223) and reminds the reader of the 1997 Dagg v. Canada case (Minister of Finance), where Justice LaForest wrote:

The overarching purpose of access to information legislation is to facilitate democracy by helping to ensure that citizens have the information required to participate meaningfully in the democratic process and that politicians and bureaucrats remain accountable to the citizenry. (Dagg v. Canada (Minister of Finance) [1997] 2 SCR 403, as cited in Gingras 2012).

There are three main ways FOI laws support democracy: (1) they are a foundational element in the embodiment of other fundamental human and democratic rights; (2) they help journalists in their ‘watchdog’ role of holding power to account (Carroll, 2016); and (3) they fortify the ‘pro-democratic’ role information plays in Canadian society.

Section 2 of the Canadian Charter of Rights and Freedoms protects fundamental rights such as the freedom of thought, belief and expression. This section also applies to the press: “Since the media are an important means for communicating thoughts and ideas, the Charter protects the right of the press and other media to speak out” (Government of Canada, 2019c). Despite being instrumental in the expression of these fundamental rights, the right to access government information is not protected under Canada’s Charter of Rights and Freedoms. The argument FOI should be considered a fundamental right was briefly discussed in the media prior to the implementation of the ATIA nearly 40 years ago. In a 1980 Globe and Mail article, Harry Kopyto quotes the Canadian Bar Association as saying, “Access to information is a prerequisite to other fundamental rights and freedoms and, without such access, our other rights lose much of their meaning” (Kopyto, 1980). Yet, as Larsen and Walby (2012) note, “ATI was not enshrined as a Charter right of citizens that would be forever guaranteed. Instead, and perhaps as a result, the law has been resisted and undermined by successive governments since it was introduced” (p. 38). Others (e.g. Birkinshaw, 2006; Bishop, 2012) claim FOI laws should be protected as a human right alongside freedom of speech and access to justice. Birkinshaw (2006), for example, asserts FOI laws are primarily “instrumental in realizing other human rights” and, secondarily, “intrinsically important in establishing what governments do on our behalf and in our name” (p. 179).

One of the main ways politicians and bureaucrats are held accountable to the citizenry is through the profession of journalism in general, and investigative journalism in particular. The press as an institution is intended to act as a “watchdog” on those in power (Carroll, 2016). In the western world, journalists are united in their professional identity through a commitment to public service, objectivity, and autonomous, ethical and immediate reporting (Deuze, 2005). According to Thomas Hanitzsch (2011), the ‘detached watchdog’ is “the most ‘prototypical’ milieu of the western journalist” (p. 485). This is to say, the ‘watchdog’ role that journalism plays — to hold government and business elites to account — is one of the most important roles and is a central component to journalism in the western world. Kovach and Rosenstiel (2014) note “the purpose of the watchdog role also extends beyond simply making the management and execution of power transparent, to making known and understood the effects of that power” (p. 174). If authority figures go unchecked, relevant information about how the country is being governed is not made available to the public. So, the speed and quality of documents received as a result of an ATI request is of unique importance to journalists and to the public interest. Without the ability to access meaningful government information in a timely manner, journalists are seriously impeded from performing their professional duties and fulfilling the watchdog role.

The role information plays in a Canadian democracy is a central issue for journalists who use the ATIA to further their reporting. According to Gingras (2012), there is an “enduring tension” (p. 222) between the democratic purpose of information—which increases transparency and facilitates democratic engagement—and information’s strategic value, which is often associated with propaganda and political manipulation. These roles exist alongside each other, at once motivating political officials to advocate for increased transparency, while simultaneously building and benefiting from government structures, which increases secrecy. One of the difficulties of information being used for strategic purposes is that citizens are left in the dark and can potentially be manipulated by their political representatives.

According to journalist Thomas Rohner, the government’s tendency towards information control is widespread and problematic. “Governments often wage a war on information control, and they generally win all sorts of times, untold times, because we literally don’t know,” he says (T. Rohner, personal communication, August 29, 2019). So, the accuracy and completeness of government documents, contextualized and disseminated to the public is essential for citizens to make meaningful fact-based choices in their lives. The ATIA theoretically supports the ‘pro-democracy’ role of information by allowing citizen and journalists to access information of their choosing. Although there are several important exemptions to ATI, such as documents related to national security and personal privacy, the legal right of journalists to pull information from the government theoretically helps to ensure that the ‘pro-democracy’ role of information is fortified.

Throughout the years, there have been repeated calls for reform of the ATIA. Susan Legault, Information Commissioner from 2009-2018, stated in a public address: “In 2013 the federal Access to Information Act will be 30 years old. Since 1977 there have been about 30 attempts—all fruitless—to reform or modernize it” (Parliament of Canada, 2012). Indeed, following numerous 2015 election campaign promises to modernize the federal ATI system, Justin Trudeau’s Liberal government introduced Bill C-58, An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts, which was touted as the first major reform to the ATIA since its inception. Despite becoming law on June 21, 2019, many critics have noted the changes do little to improve the federal system—and may even present additional barriers to access and transparency. For example, cabinet confidences continue to be excluded, and the Information Commissioner does not have order making powers to the extent that was promised.

FOI laws are difficult to update for several reasons. In Canada, these reasons include: politicians presenting FOI laws as a virtue signal to the public with little follow through for improvement (Schudson, 2015; Worthy, 2017; Gingras 2012); private entities increasingly being called on to complete government functions (Roberts, 2006a; Jordan, 2017); challenges some government officials experience in respecting the act while working under conditions that favour government secrecy (Roberts, 2006b; Savoie, 2003; Larsen & Walby; 2012); the evolution of technology (Roberts, 2006a; Larsen & Walby, 2012); and influences from the general public’s expectation of accountability and transparency (Appelgren & Salverria, 2018; Schudson 2015). The challenges posed by these variables fall outside the realm of the practical considerations that journalists encounter daily, yet they impact the ability of journalists to access government information for their reporting. These factors influence the effectiveness of the ATIA and help to situate Canadian journalists fighting for improved government transparency in a larger context.

Some literature points to specific leading political parties in Canada influencing how easily government information can be accessed through the ATI system. Although there are numerous examples of every lead political party limiting government transparency since the ATIA was implemented, Stephen Harper’s Conservative government provides some recent, noteworthy examples. In spite of stepping into the Prime Minister’s office with government transparency as a campaign promise, Stephen Harper’s Conservatives continued to tighten their grip on the potential release of government information to the public (Larsen & Walby, 2012, p. 3). The Harper government accomplished this through informal practices, mainly by using the secure instant messaging feature of Blackberry phones, the development of an oral culture, and the destruction of documents (Gingras, 2012, p. 234). Also, under Harper’s leadership, some MPs were found to have deliberately and illegally held back information from the public and to have destroyed documents, rather than have them be admissible to public request under the Act (Gingras, 2012, p 234). Journalist Justin Ling states that while this happened under Harper’s watch and in a general culture of increased government secrecy, these were isolated incidents and not unique to the Harper government (personal communication, September 3, 2019).

It is well known that many journalists find engaging with the Canadian ATI system a challenging task. However, we were unable to identify contributions in the academic literature that systematically collected and analyzed their experiences. The purpose of this research was thus two-fold. First, it was to begin to understand the experiences of journalists who navigate the ATI system as part of their reporting. Journalist accounts indicate they engage with the ATIA with an implicit understanding and acceptance of challenges inherent to the system. Bringing these issues to light in a systematic and critical way allows for deeper insight and analysis of how some of the democratically-motivated work that journalists do is influenced by government information laws.

Secondly, this study aims to situate Canadian journalists within the myriad of influences that impact the intersection of journalistic practice and the ATIA. Although the express purpose of the interviews was to evaluate the journalists’ direct experience navigating the federal ATI system, the interviewees inevitably offered their thoughts and reflections on issues surrounding the ATIA. Including this information in the study allows for an enriched conversation about contemporary Canadian journalistic practice.

METHODS

This research was guided by the following questions: How does the federal ATI system function for journalists? How is it useful for their reporting? What are the barriers?
It is important to note that Canadian journalists routinely use municipal, provincial, and territorial Freedom of Information systems, as well as FOI systems in other countries to further their reporting. Considering these interconnected FOI systems and their different contexts and implications would have reached far outside the scope of this research, this article exclusively focuses on Canada’s federal Access to Information regime to establish a clear and limited scope and to present a more cohesive understanding of journalists’ experiences across the country.

To answer the research questions, one-on-one telephone interviews with 17 Canadian journalists were conducted between August 27 and September 12, 2019. Interviews lasted approximately 45 minutes. A semi-structured design with open-ended interview questions was chosen over a fully-structured script, as some research suggests an unstructured approach may lead to the data-densest interviews (Corbin & Morse, 2003, as cited in Corbin & Strauss, 2008).

The study participants were selected through a mix of targeted and snowball sampling. Canadian journalists who were well-known for their ATI-based reporting were targeted directly. These journalists were then asked for suggestions about who else might be appropriate to speak with on the subject. All participants in this study worked for major Canadian news organizations on a full-time (14) or freelance (3) basis. Each journalist regularly filed access to information requests for the purpose of their reporting, however the number of requests that qualified ‘regular filing’ was determined by the journalists themselves, in relation to their needs as a reporter, or their position in a news organization. While 11 of the study participants agreed to be identified by name, six journalists requested they remain anonymous (see Table 1). This study is limited by prioritizing journalists’ experiences from large urban centers, over rural or local journalists. Despite contacting journalists from across the country during the initial recruitment process, several of the interviewees were based in Ottawa and Toronto and most other interviewees were from large urban centers. Although journalists regularly make use of the various FOI systems in Canada, use of the federal system is presumed to be more prominent among journalists based in the nation’s political and economic centers due to the topics and types of stories they report on.

Interviews were transcribed for thematic analysis, during which the data was broken apart and coded according to distinct concepts (Corbin & Strauss, 2008; Creswell, 2007). The data was organized according to themes that emerged out of a thematic coding method adapted from Corbin and Strauss’ grounded theory approach (1998). This involved the systematic and constant comparison of data with categories that emerged from the data itself. (Creswell & Poth, 2018). This was followed by further analysis of the relationships between these concepts, which were then grouped together according to these relationships, and then eventually formalized into major themes and subthemes.

FINDINGS

Following the thematic analysis, two significant major themes, each with a number of sub-themes, emerged from the interview data: (1) ATI and Journalists’ Motivations, and (2) Journalists and ATI-Based Challenges.

Main Theme 1: ATI and Journalists’ Motivations

Understanding what motivates a journalist to file an ATI request is significant because it indicates how important the ability to access government information is to their journalistic practice. It is not simply a tool that journalists sometimes use; it is an essential resource that is required for journalists to do their jobs and to produce quality original reporting (Canadian Journalists for Free Expression, 2015). Without access to government information, journalists are limited in their ability to expose government decision-making processes, failures and inadequacies that are crucial for the Canadian public to accurately understand the world around them and to make informed decisions about their lives and their political representation. A significant finding that emerged through the interviews is that most journalists considered the information gained from an ATI request as unattainable in any other way. However, while accessing government information may be essential to good journalism, a majority of interviewees noted the challenges inherent in navigating the ATI system and generally low success rates at obtaining relevant information often make requests a last resort in their reporting practices. For example, Jim Rankin, a data journalist for the Toronto Star, said:

The golden rule for me, and for others who do this kind of stuff, is that it is your last resort. You want to do as much as possible before you go the formal route, because once you go the formal route, the systems are not perfect—some people have described them as broken. If you can get it through other means, you will get it quicker. (personal communication, September 4, 2019)

Even so, having the right to request documents from the government was largely perceived as giving a journalist the freedom to work on original stories and to pursue issues that are of public interest on their own terms. To this point, one anonymous participant noted, “The thing about an ATI-driven story is that I no longer have to play with a sort of [government] PR system. I have the story. Their choice now is whether they comment on it and whether or not they comment by my deadline” (Journalist F, personal communication, August 30, 2019).

Sub-theme 1.1: Perceived Roles

The role that journalists perceive themselves to be fulfilling is meaningful because it points to a deeper layer of motivation that goes beyond the practice of filing ATI requests. This theme indicates the importance of a properly-functioning government information law does not stop at a basic practical level; it also contributes to journalists reaching towards and participating in the democratic process. This theme emerged when multiple participants spoke about whether they include details of their ATI requests in their stories for the audience to understand. Examples of these details include simply stating that some of the information presented in the story was gathered through a request, to writing about the problems encountered along the way to gaining access, such as delays, redactions, and legal action.

This study revealed that the motivations journalists have for using ATI indicate how journalists conceive of their work in the bigger picture. There were two prominent ideas among the interviewees. The first group sees their role as fulfilling the requirements for being a “good journalist.” This group was more inclined to share information obtained through ATI with their audiences to be transparent about their sources and their research processes, as well as to let the readers decide for themselves what to make of the information. The second main group conceived their role as being inherently activistic, and connected the practice of journalism to meaningful democratic action and maintaining a strong democracy. It is important to distinguish between journalists in this study who see journalism itself as activism (with the bias of accountability and pro-democracy) and others in the field who fuse the goals of activism and journalism to produce work that is intended to sway the audience. This latter type of journalism veers dangerously close to editorializing and may be accused of being ‘fake news’ (Adhikari, 2017).

For those who viewed their role as being a “good journalist,” the specific rationales for reporting on the ATI request itself in a story include providing background and context for readers, being transparent about information sources, and showing the information took work to obtain, which implies a value of “good journalism.” Journalist F stated it is important to consider the reader as the first priority and only mention information that would be meaningful to them. According to this journalist, the public is most often concerned about the information itself, and not how it has been obtained, which should be taken into consideration during story production and publication.

Those in the second group who viewed their role as an intersection of journalist-activist understood “good journalism” to be connected to a strong democracy. Participants who fell into this group listed a number of specific motivations for mentioning ATI request information in their stories, including: (1) journalism is inherently activism; (2) the importance of showing the public the inner happenings of how government decisions are made; (3) good journalism holds the government to account; and (4) showing journalists play a role in democracy.

For Thomas Rohner, a freelance investigative journalist based in Iqaluit, Nunavut, motivation for including such details goes beyond accommodating the reader’s interest. He stated:

I think that degree of resistance [of the government] to release information is a huge part of those stories; it is a huge part of the struggle to have a more open and fair society. So, in a way, that is the story, even if it is not the most exciting part of the story. (personal communication, August 29, 2019)

On the issue of maintaining “neutrality” in reporting on ATI-issues, he further reflected, “I don’t believe in the objectivity of journalism…I think that what journalism has always been biased towards is the people—it is in the public interest” (personal communication, August 29, 2019). Similarly, one participant said it is essential that journalists move away from the traditional way of thinking—that objectivity is achievable, that they don’t have a stake in the game. He encouraged journalists to see the bigger picture and their role in it, namely to hold the government to account (D. Beeby, personal communication, August 27, 2019).

For traditionally-minded journalists, ‘objectivity’ requires a balanced story that reports the facts and lets the reader decide for themselves what to make of the situation. Such journalists “are least likely to advocate for social change, influence public opinion and set the political agenda” (Hanitzsch, 2011, p. 485). However, according to activism-inclined journalists, this perspective is problematic. For them, there is no such thing as a neutral position or conveying a story with objectivity. Each journalist carries their own set of personal biases and works within a news agency with its own general bias. This inherently affects what stories are told and how they are expressed. In addition, as this group of journalists noted, journalism itself is biased towards accountability. For these journalists, embracing the role of an activist or advocate is part of the job. Sharing the details of an ATI request with the audience adds a deeper layer to the story being told. It explicitly communicates to the reader to what extent the government is following through on their democratic responsibilities, especially transparency itself.

While the roles participating journalists perceive themselves as fulfilling do not practically affect how or why they use the ATI system, these motivations are sometimes reflected in how they engage with their audience. This indicates that if a journalist is motivated by a sense of activism or advocacy, they are more likely to advocate for their experience with ATI to be included in their stories. The traditional idea that journalists should somehow present unbiased information while remaining ‘invisible’ in the story itself is an idea that some journalists oppose. Although all interviewees agree transparency is important, the participants motivated by a sense of information advocacy were invested in sharing such details to communicate a deeper storyline about government transparency in the service of democratic values.

Main Theme 2: Journalists and ATI-Based Challenges

Based on previous accounts about the challenges journalists face while navigating ATI, it was anticipated participants would have encountered several obstacles. Every journalist interviewed as part of this study shared several examples of challenges they experienced. Chronicling and understanding these challenges shows specifically how and at which points journalism is compromised by a poorly-functioning ATI system. Detailing the challenges also illuminates a potential path forward to finding solutions.
Upon filing an ATI request, journalists chorused the same complaints: excessive delays, redactions, and a backlogged complaints process. This set of challenges is especially important because these are the primary practical challenges that affect the quality of reporting. Toronto Star labour reporter Sara Mojtehedzadeh stated, “I can’t rely on [the ATIA], really, to accomplish anything except to show how obstructive the government can be” (personal communication, August 28, 2019). Depending on the circumstance, the challenges also extend into the complaints process, which is severely backlogged (J. Ling, personal communication, September 3, 2019). Other noted examples of challenges include the fact that standard timelines and habitual delays are a disadvantage for a fast-paced news cycle. In this case, it is not just that the system isn’t working as it should; it is that even if the system works well, it is not always advantageous for journalists working on tight deadlines.

Sub-theme 2.1: Secrecy and Lack of Accountability

The specific challenges journalists face represents the numerous practical ways reporting is inhibited by an improperly functioning ATI system. They can be attributed to inferior legislation and a sense of adversarialism, which is “typical of a government-wide pattern of resistance to the requirements of the ATIA” (Roberts 2006a). However, these same challenges also point to an additional, underlying concern: the idea that governments tend toward secrecy was repeatedly stated by many participants as a general explanation for why the ATIA has stagnated, and as an explanation for why some government departments and agencies are more difficult to obtain information from than others. This sub-theme helps bring to light a deeper and less tangible force that gives rise to significant challenges to functioning ATI legislation and administration. This theme was mentioned directly by 13 interview participants and indirectly mentioned by the remaining four interviewees, as a means of explaining the attitudes and cultures within the government that give rise to the day-to-day challenges they face while navigating ATI.

One interviewee stated she anticipates a problematic response to an ATI request about 80% of the time. These responses include “the file’s not there, it’s going to take months and months, it’s going to cost a lot of money, or they have nothing that’s met the description of what I’ve requested” (J. Ireton, personal communication, September 6, 2019). In regard to the federal ATI system, one interview participant said, “it is the worst of the systems in terms of transparency, procedures and timeline. There are long waits in long lines you don’t know what is going on” (J. Rankin, personal communication, September 4, 2019). He followed up with a story about a request to the RCMP in women:

I didn’t get anything for 17 months. When they did finally release something to me it was over 2,000 pages in a PDF. It was a ridiculously big document that took forever to open and it was heavily redacted…I made the request, knowing that I probably was not going to get [the information I requested]. But if you don’t ask, then you don’t know. (personal communication, September 4, 2019)

All interviewees, either directly or indirectly, connected the notion that governments tend towards secrecy to an explanation for the practical resistance they face while attempting to access information. However, this tendency is only one of a few major factors that are influential for journalists using ATI. Journalists were also asked to reflect on how accessing government information has changed over the course of their careers—the changes they have witnessed over time in the newsroom and in the government also provide an explanation for the challenges they face.

Sub-theme 2.2: Changes in the Newsroom Over Time

Of the 17 interviewees, 13 journalists noted a decline in financial resources tied to larger trends in the news media industry, which has resulted in less staff working under more pressure in Canadian newsrooms today. When combined with the challenges associated with navigating ATI, several problems emerge.

According to a participant who wished to remain anonymous, the confluence of reduced resources, increased pressure to produce, and the challenges of navigating the ATI system has resulted in an increase in simple news stories that require less research. “I think that there’s a greater need for journalists to do things that are a little bit more complicated and more complex,” he stated (Journalist F, personal communication, August 30, 2019). Such stories often cannot be summed up in a tweet, yet the pressure created by strained resources to constantly produce is prohibitive to a journalists’ ability to follow up on stories that require more extensive research.

Although it may have become more difficult for journalists to file ATI requests given the ongoing financial, human resources, and time-related strains on the news industry, the evolution of technology and access to the internet has made an aspect of filing much easier and more accessible. Prior to a government initiative to move the request system online originally discussed in mid-2000, filing an ATI request had to be done through the mail (Roberts, 2006b). One participant noted: “It (online systems) makes the research process easier to accomplish and I think it is a positive thing for filing requests and researching the stories that have come out from requests” (D. Beeby, personal communication, August 27, 2019).

Sub-theme 2.3: Changes in the Government Over Time

The evolution of technology and the increased accessibility of the internet has not only positively affected the research work done in newsrooms (Krotoski, 2011); it has also positively affected how journalists engage with the government, on a practical level. Journalists were asked whether changes in government over time have had any influence on their ability to effectively use the ATI system as a reliable source for their reporting. The combined positive comments from interviewees were attributed to the improvement of technology and the extent to which the internet is widely available. Because of a federal government initiative to move the ATI request interface online, journalists stated they have an easier time filing with some government agencies, although others still require a letter and a cheque to be sent in the mail. A second positive change noted by some journalists was the government directive to not collect fees for ATI requests beyond the initial $5 fee per new request (Government of Canada, 2016).

In terms of transparency and ease of meaningful access to information overall, however, interviewees overwhelmingly said the political party in power at a given time has made little difference in the ability of the government to administer the ATIA effectively. One interviewee, who started working as a journalist just as the ATIA was coming into effect in the early 1980s, commented on how he and other journalists have used it over the course of more than three decades of reporting. He recalled that initially, the boundaries of the law hadn’t been tested, so bureaucrats were more inclined to lean towards transparency:

I look back on the 80s as the Golden Age of Access to Information. Even though we would not have said that at the time, there were many more successes than failures…As time went on, the bureaucrats understood where the loopholes were, what they could get away with. There were a lot more court decisions about what they could get away with [not provide access to] and I think they became more emboldened. I think we, as journalists, lost more of those fights and I think it was a steady decline from there on. (D. Beeby, personal communication, August 27, 2019)

As the ATIA has been in effect for approximately 38 years, there was a trend noted among interviewees that acknowledged it has stagnated and is therefore worse now under the current Liberal leadership than under previous governments. One participant commented on the recent overall decline of government transparency. When comparing current Liberal Prime Minister Justin Trudeau to his Conservative predecessor Stephen Harper, Justin Ling said government transparency was incidentally better under Harper: “[It] wasn’t a product of the fact the Harper government made [ATI] easier to use. That was a product of the fact that [the ATI system] has just slid further into disrepair in time” (J. Ling, personal communication, September 3, 2019). According to these journalists, government policies haven’t actively made the ATI system worse. Rather, the ATIA has stagnated and, as such, has slid further out of touch with Canadian society in general, and journalists’ needs in particular. According to one interviewee, “[The Act] was born before the digital age, before text message, before email. [Politicians] have been tinkering with [the ATIA], but it doesn’t reflect the reality of government records today” (D. Beeby, personal communication, August 27, 2019). In response to the increase of practical challenges over the years, the same participant said, “At the end of my career I would be very selective about what to complain about because I knew it would often be years before I would get any type of response from the Information Commissioner, and sometimes that response would be a rejection” (personal communication, August 27, 2019). Another interviewee added:

It frustrates me that I can go online to make an ATI request for the RCMP, but not for Public Safety Canada, which is the federal agency that oversees the RCMP. I’ve emailed and called Public Safety Canada over the years and asked them, ‘Why are you still not online? Why do I still need to type out a letter, print it out, put it in an envelope and put a stamp on it, and write a $5 cheque in that envelope?’ And they’ve never provided me with a clear answer on that. (Journalist E, personal communication, August 28, 2019)

Another main problem that was negatively attributed to the evolution of Canadian government over time was the discourse surrounding proactive disclosure and the fear it may eventually eclipse the ATI system. Although proactive disclosure of government information performs a similar role as a well-functioning ATI system—by releasing government information to the public—they are fundamentally different concepts. The ATIA is a law that guarantees citizens a right to access information, whereas proactive disclosure is a government initiative to make data and information easily available to the public. One participant stated proactive disclosure “sounds like a great idea, but…governments know that these [documents] are going to be public – of course they are going to frame them, word them carefully. It is not a genuine document. It is more publicity and propaganda of the government” (D. Beeby, personal communication, August 27, 2019). Regarding access to government information through proactive disclosure, one interviewee said information is “sanitized, they don’t really release much, and there are a lot more redactions, so it has become less useful” (B. Curry, personal communication, September 3, 2019). Another interviewee said, “What’s actually worse and what is really scary to me, is that [the government] is trying to use proactive disclosure as a replacement for Access to Information, which is very dangerous, because what they are doing is basically manicuring [documents] for public release… anyone who uses ATIP can tell you it’s one of the most useless documents” (J. Ling, personal communication, September 3, 2019).

Although the emergence of proactive disclosure was warily embraced by interviewees—it was generally acknowledged as a logical advancement and an important initiative—participants generally agreed it will not likely prove to be a quality source of information contributing to investigative journalism, due to the likelihood of banal, sanitized or re-framed information.

Findings Summary

In an effort to situate journalists at the intersection of journalistic practice and the ATIA, the following synthesizes the challenges, perceived causes of these challenges and changing factors in the government and newsrooms over time. This section also links these layers to the effects they have on journalists’ ability to produce high quality reporting.

The challenges participants face while navigating ATI range from practical, localized challenges, such as the perceived overuse of exemptions which lead to excessive redactions, delays, fees and an inefficient complaints process. Noting these frustrations, Toronto Star labour reporter Sara Mojtehedzadeh said: “A Freedom of Information request gives you insight into how decisions are made that you wouldn’t normally get. It improves the quality of your reporting and that is what we are losing by not having a system that works properly” (personal communication, August 28, 2019).

Some of the journalists interviewed attributed these challenges to inferior legislation and administration of the ATIA. More broadly, all journalists attributed these challenges to the notion that governments tend toward secrecy. This theme also included the reflections of journalists who have navigated the Act over the course of their careers. Increased access to technology and the internet have improved the ability of journalists to access information, yet the financial strain on the journalism industry at large has had a negative effect on the time and resources journalists have to file ATI requests. All interviewees whose self-assessment indicated they had adequate experience to comment offered the opinion that no particular government has had a better or worse track record with ATI than any other—all governments have allowed the ATIA to stagnate while in power. As journalistic practice and Canadian society have evolved over the years, the ATIA has largely stayed the same. Therefore, according to the interviewees, it is in a worse state now than at any other point in history.

DISCUSSION

One of the most significant contributions the current study makes at addressing questions about the federal ATI system and its impacts on journalism comes from the theme regarding the changes in government that journalists have observed over the course of their careers. While not all of the journalists interviewed for this study felt they had accumulated enough professional experience to adequately reflect on the question, those that did collectively offered two positive comments regarding the evolution of the ATIA advancing their ability to report. In the mid-2000s, the government initiated a transition to make more information available online (Roberts, 2006b). A number of journalists interviewed for this study reported this as a convenient and time-saving advancement for journalists in their research workflow. The second positive comment was related to the fees associated with ATI requests. In 2016, the federal government issued a directive to eliminate all fees beyond the $5 flat fee per new request in an effort to help “revitalize” the ATIA (Government of Canada, 2019b). One interviewee shared an experience of being quoted excessive fees prior to this change:

I made a request in 2003. It started really well… and then I got a letter stating that they were ready to go ahead with my request, but we need a deposit to extract the data and the cost is $1.6 million. So, I filed a complaint to the Information Commissioner, and in 2005 I got a letter and a CD arrived in an envelope, and it was mostly what I had asked for. It was electronic summaries of 2.9 million records. The letter specified that it took five hours to extract the data and they waived all processing and reproduction fees, so I don’t know how much it actually cost. So, at the end of the day it went from $1.6 million to free. (J. Rankin, personal communication, September 4, 2019)

Many journalists interviewed in this study reported the move to a $5 per request fee as beneficial, because it simplified the request process and has maintained a reasonable and reliable fee structure.

Aside from these two positive developments, both this study’s findings and previous research indicate the ATIA has stagnated—it has become worse over time because of government inaction, to the detriment of journalistic practice.

The present study indicates journalists feel government transparency in general had reduced over the course of their careers. These journalists had the impression there were more redactions and exemptions used by the government in the ATI process at this point in their careers than earlier on. The journalists in the study also noted years of inaction and failed attempts at meaningful reform have allowed the law to stagnate. Collectively, they were clear that the specific political party in power had little to do with the condition of the ATIA. In this shared opinion, the study’s participants cited widespread government inaction over time, which has led to an ATI system that is worse now than at any other time, regardless of who was in power.

As noted earlier, some literature, though, tells a slightly different story. Stephen Harper’s government stands out in the history of the ATIA as an administration that facilitated a wave of transparency resistance across the Canadian landscape. After leading the opposition from 2004 to 2006, when Stephen Harper was elected prime minister in February 2006 he engaged in ‘virtue signaling’ about the importance of government transparency and promised reforms to the ATIA. In what is typical of opposition parties, once his government was elected to a majority in 2011, Harper dropped nearly all promises and instead developed a reputation for limiting government transparency (Larsen & Walby, 2012; Rathgeber, 2014). The tactics the Harper government employed to limit access to government information are well documented (e.g. Larsen & Walby, 2012; Gingras, 2012; Boesveld, 2011). However, other more-recently published reports acknowledge Justin Trudeau’s Liberal government has continued to withhold information from the public at a worse rate (Linnitt, 2017), echoing what journalists who participated in the present study have experienced. However, findings from the present study ultimately did not cast significant blame on any specific political party or administration. For example, Dean Beeby stated during his interview that, “Mr. Harper was not a friend to Access to Information, but neither were his predecessors in that office. I think that there was a steady decline” (personal communication, August 27, 2019). Justin Ling added, “the [current] Trudeau government should bear a lot of blame for how bad this has become” (personal communication, September 3, 2019).

Regardless of the causes, the impact on journalists is clear—using ATI as an essential resource to produce high quality and complex journalism has become more difficult over time. Anna Mehler Paperny relayed the difficulties that journalists face while making FOI requests in a 2015 Canadian Journalists for Free Expression article. She wrote, “Even if you emerge from the months-long morass of ATI negotiations with your sanity, sense of purpose and ATI request intact, chances are you’ll be handed an impenetrable sheaf of documents” (Paperny, 2015, para. 6). One interview participant in the present study also discussed these challenges:

I think [the ATI] is essential, or it should be essential. Currently I can’t rely on it to accomplish anything except to show how obstructive the government can be. I think that is instructive in and of itself but having a responsive freedom of information system makes a huge difference in my ability to report properly and accurately. (S. Mojtehedzadeh, personal communication, August 28, 2019)

ATI system frustrates the ability of journalists to offer the public quality reporting. The findings of this study align with many of the past criticisms aimed at federal ATI, and indicate that, despite a few amendments that do advance the ability to file for access to government information, the system has clearly deteriorated to the detriment of journalistic practice.

Furthermore, a meaningful result of the intersection of ATIA and journalistic practice is that the democratic role information plays in Canada is strengthened. However, despite small improvements in the act, journalists continue to face significant challenges attempting to access government information, which ultimately compromises the Canadian public’s ability to understand government decision-making processes. Additionally, this makes the public more susceptible to accept the strategic usage of information by the government, sometimes without being aware of it.

Bill C-58 and Proactive Disclosure

On June 21, 2019, Bill C-58 became law under Justin Trudeau’s Liberal government. What was purported to be the first major revision of the ATIA since 1983, and promised a new era of transparency and accountability, materialized as a sly political achievement. The journalists interviewed for this research generally agreed the amendments to the ATIA will not advance reporting for journalists or for democratic goals of transparency in general—in fact, many claimed it will make things worse.

After many years of inaction, Bill C-58 was initially touted as a way to increase government transparency and improve the ATIA by: making information more freely available; limiting fees; expanding and empowering the role of the Information Commissioner; including ministers’ offices within the scope of the ATIA; and committing to a legislative review every five years (Liberal Party of Canada, 2015). Each of these proposals would have positively affected journalists’ ability to access information. However, a watered-down version of these initiatives was implemented. For example, the head of a government institution may require a fee of up to $25 per request (Government of Canada, 2021); while the Information Commissioner’s role was somewhat strengthened—they can make binding orders to a government institution that has declined an ATI request—the institution still has recourse to fight this binding order in court (Information Commissioner of Canada, 2021); and cabinet confidences continue to be excluded from public access (Government of Canada, 2021).

Furthermore, as the journalists interviewed in this study generally agreed, the two most noteworthy amendments with anticipated impacts on journalistic practice have been the “vexatious requests” provision and the mandate for increased proactive disclosure. The changes brought through Bill C-58 allow government officials to label ATI requests as ‘vexatious’ or ‘filed in bad faith;’ if approved by the Information Commissioner, these ‘vexatious’ requests are disregarded. Journalists interviewed in the study agreed this is a deeply problematic stipulation. However, for the 2019-2020 reporting period, there were a total of 156,222 ATI requests made to the federal government, six of which were reported as vexatious by various government agencies. The Information Commissioner declined four of these labels, (Government of Canada, 2020a), signalling that this is not yet a widespread issue.

Increased proactive disclosure was a provision of Bill C-58, yet has its roots in a 2003 mandate for select government officials to make travel and hospitality expenses known to the public as an initiative to increase transparency (Library Archives of Canada, 2019). The momentum towards proactively disclosing many types of government information has grown over time. But the literature and this study point to mixed results on how this affects journalists and their journalism. One general opinion that interviewees offered is, given the advancement of technology, the proactive disclosure of government information is an important and logical step forward; yet there is a sense that because government officials are aware documents will be made public, they will likely be sanitized and of little use to journalists (J. Rankin, personal communication, September 4, 2019). Larsen and Walby (2012) note that for proactive disclosure to contribute to government transparency, it must provide meaningful insight. Otherwise, no understanding will be gained into the government decision-making process, and it will likely not be useful to journalists in holding power to account.

Other journalists interviewed for this study claimed proactive disclosure erodes the spirit of the ATIA and therefore will contribute to further challenges for journalists. The government pushing sanitized information to the public is what it has always done and is not the main purpose of the ATIA. One participant said:

Governments have always had the final say in what they could release and what they decided not to release… [The ATIA] was kind of revolutionary, in that we the people had the ability to pull documents and not just accept what documents were pushed out to us by any government… [With proactive disclosure] they’re undermining the rights of citizens to pull documents and they are covering it up with this bogus claim that somehow they are being open and transparent and therefore we don’t need citizens meddling in the process. (D. Beeby, personal communication, August 27, 2019)

Others have highlighted this concern. For example, Michael Geist (2017) notes Bill C-58 sought “to conflate access to information with proactive disclosure, treating the information the government wants to make available as the equivalent to the information to which the public is entitled and may want to access” (Geist, 2017). The deliberate attempt at using proactive disclosure to unhinge the original purpose of the legislation from the way the ATIA can be engaged with may prove to be very problematic for journalists.

As noted in the literature, and expressed by study participants, the ATI system has stagnated and creates challenges for journalistic practice. It is worse at the current moment than any other point in history because of the combination of inaction, inadequate action and, more recently, with the proactive disclosure provision of Bill C-58, the possibility of unfavorable action, which all have negative impacts on the ability of journalists to use ATI to further their reporting.

CONCLUSION

The ATIA is a tool journalists use to hold power to account. To this end, it helps further the important and necessary work of contributing to and fostering democracy. It is well known many journalists find engaging with the ATI system a burdensome task, yet there have been no known research efforts made to systematically collect and analyze their experiences. The purpose of this research was to understand journalists’ experiences of navigating the federal ATI system. In addition, this research situates Canadian journalists within the multiple and varied influences that impact the intersection of journalistic practice and the ATIA.

This study indicates that, for journalists, ATI functions as an essential tool to advance their reporting and hold power to account. Some perceive their use of ATI as a resource that helps them fulfill their watchdog role, while others take on an advocacy approach to their work biased toward open information and accountability. In both cases, “good journalism” is connected to building and participating in a strong democracy. However, in the latter case, journalists do not ascribe to some of the traditional values typically associated with journalism, such as being an objective, neutral observer that reports without bias. Rather, they see themselves as biased towards accountability and strive to offer their audiences a deeper understanding of government transparency—and often secrecy—in their stories.

Journalists face practical barriers to access, such as delays, redactions, and an inefficient complaints process. However, there are other barriers that negatively affect the ability of journalists to successfully navigate the ATI system such as the evolution of technology, the increasing complexity of government, and the trend that governments tend towards secrecy. The consequences of financial strain in the news industry show that over the course of their careers, journalists are doing more work today than ever, while simultaneously having fewer resources to devote to ATI research. This study also indicates the influence of particular government leadership has had little direct impact on the functioning of the ATI system in Canada, which is contrary to some literature. Rather, the study indicates the ATIA has stagnated and is therefore arguably worse now under current leadership than previous governments.

Looking ahead, there are areas around the intersection of the ATIA and journalistic practice that are beyond the scope of this study, yet would benefit from further research and action. They include continued advocacy-based reporting by journalists, improved civics education in journalism schools to help students understand how governments work, further scholarly research aimed at the links between ATI and journalism, and improvements in ATI policy.

Journalists, alongside newsroom producers and editors, should be encouraged to include more details about their research process and potential difficulties in their stories for their readers to understand. Expressing these issues inherently communicates concerns surrounding government transparency to the audience and reminds the reader that a primary role of journalistic practice is to hold the government to account. It also indicates to the reader how well the government is holding up to promises of transparency. In addition, relaying these details to the audience reminds them that important journalism is oftentimes hard work. Because using the ATI system requires a comprehensive understanding of government structure and process, a stronger civics education would be beneficial to those pursuing investigative journalism in school. Furthermore, the intersection of journalistic practice and the ATIA would benefit from further scholarly investigation into more localized areas of freedom of information legislation, such as provincial, territorial and municipal systems. These laws have their own particularities and are often a rich source of information for journalists who report on local news. Finally, this study urges policy makers to implement the numerous well-researched calls for reform that were included in the original proposal for Bill C-58.

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¹ This research is part of a larger MA thesis project by co-author Margaret Thompson.

Acknowledgements

The authors would like to thank research assistants Etienne Lajoie and Kelly-Pimentel-Lopes for their help in data collection and interview transcription. The authors would also like to thank Concordia University and the Fonds de Recherche du Québec – Société et Culture (FRQSC) for financial support for this research.

 

TABLE 1: Participant Profiles

Name	Gender	Based in	Specialization	Approx. years of working experience
Beeby, Dean	m	Ottawa	Investigative + ATIP researcher	37
Curry, Bill	m	Ottawa	Parliament + Finance	20
Edwards, Peter	m	Toronto	Organized Crime + Beat Reporter	33
Ireton, Julie	f	Ottawa	Investigative + Journalism Educator	25
Ling, Justin	m	Toronto	Investigative + Facilitates ATIP workshops	10
Mojtehedzadeh, Sara	f	Toronto	Investigative + Labour	5
Pagliaro, Jenn	f	Toronto	Politics	10
Pugliese, David	m	Ottawa	DND + Military	37
Rankin, Jim	m	Toronto	Data, Investigative + Facilitates ATIP Workshops	25
Rohner, Thomas	m	Iqaluit	Investigative + Long form	5
Welch, Mary Agnes	f	Winnipeg	General Assignment + Data	20
Journalist A	f	Ottawa	Parliament + ATIP researcher	1.5
Journalist B	m	Ottawa	Parliament, Money + Finance	12
Journalist C	m	Ottawa	National Affairs, Security, Justice, Transparency and Privacy Issues + Journalism Educator	30
Journalist D	m	Toronto	Data	5
Journalist E	m	Vancouver	General Assignment	10
Journalist F	m	Ottawa	General Assignment	8

 

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