S1-Episode 8: From FOI to front page news!

Patricia Kosseim:

Hello, I’m Patricia Kosseim, Ontario’s Information and Privacy Commissioner. You’re listening to Info Matters, a podcast about people, privacy and access to information. We dive into conversations with people from all walks of life and hear real stories about the access and privacy issues that matter most to them.

Hello listeners, welcome to another episode of Info Matters. Thanks for tuning in. Access to information is one of the fundamental underpinnings of a healthy democracy. It provides citizens with a window into how their governments are operating, promotes transparency and accountability of government decisions and actions. It supports civic engagement by providing citizens with the information they need to participate actively in public debate, express their views and influence priority setting and decision-making in their local communities.

Many times individuals will make freedom information requests themselves to get access to the information they are seeking. But more often than not, we just don’t know what we don’t know. In those cases, critical intermediaries like investigative journalists request access to information that eventually comes to light through our local paper or nightly news. Indeed, journalists play a vital role in enabling our collective right to know and that’s why we’ve entitled this episode from FOI to front page news.

In the next half hour, we’ll be going behind the scenes to explore how freedom of information has uncovered some critical news stories that have helped inform public debate on really important issues that matter to Ontarians. My guest for this episode is Jim Bronskill. If you keep up on current affairs, you’ve probably seen his name in bylines in newspapers across the country.

He’s an award-winning reporter with the Ottawa Bureau of the Canadian Press News Agency and he specializes in stories about public safety, policing, security and intelligence, as well as information and privacy matters. He’s a sessional instructor at Carleton University helping young journalists learn the finer points of the craft. Jim has considerable experience using information laws to uncover big stories which is also put to good use in a book called Your Right To Know. Jim, welcome to the show.

Jim Bronskill:

Thanks for having me. It’s a pleasure.

PK:

Well, thanks again for taking the time and I really look forward to the next half hour with you. But before we start, maybe you can tell our listeners a little bit more about yourself and why you decided to pursue a career in journalism.

JB:

Well, I always enjoyed current events and writing, and I thought journalism was a good way to put those two together. So, I knew from I think an early age I wanted to be in journalism. I’ve been very lucky to have great mentors along the way. In my early “wet behind the ears” days as a reporter, they persuaded me that access to information was a good idea. We’re talking here late 1980s, early 1990s really. I think I made my first access to information request for my Master’s thesis, which was on free trade and cultural industries sound recording. I put one in and actually got something back.

In my reporting, very early on, it was a way to try to distinguish my work to get ahead of the pack a little bit. Access to information was relatively new at the time and it was an exciting way to find things that others did not have. So, I saw it as a bit of a competitive edge, a way to educate the public about what was going on and a way to get scoops, frankly, and try to build my career.

PK:

You’ve been on the news beat for many years now. Can you tell us a little bit about how in your view investigative journalism has changed, particularly in the recent decade or so?

JB:

We have many more sources of information now coming at us. Social media has changed things dramatically in the last few years. There’s just a constant steady stream of baubles of distraction and information coming at us from various platforms. So it’s harder to sift through all that information and find meaningful bits of data, facts, sifting the wheat from the chaff, if you will, and that’s a challenge today.

PK:

You mentioned how, even in your early days as your mentors had taught you, FOI was really critical to your reporting. How often would you say that you filed FOI requests and what’s been your experience with the access to information systems generally?

JB:

I’ve been an avid user really since I got my foothold in journalism and have put in dozens, if not hundreds, of requests a year for information. I think the role of freedom of information has remained important. And because of barrage of information, it might be even more important today because I have what we call the “iceberg theory” of journalism and information. We all know the truism about icebergs, that we can see 10% of the iceberg and 90% or so is below the surface. I would say it’s the same for any organization, especially a government ministry or department.

We see that 10% tip of the iceberg in the form of press releases, news conferences, scrums, speeches, that sort of thing. But below the surface is that 90% that is often crucial to writing stories. So we’re talking here about emails, briefing notes, memos, reports, things that maybe the department doesn’t want you to see. So, freedom of information has always been instrumental in getting out the rest of the iceberg. I think even more so today when the tip of the iceberg is there on social media, on the internet and getting below the surface is more important than ever.

PK:

So access to information is a tool that you use to get to that 90% of the remaining iceberg, as you say, although we all know that access to information can be awfully slow sometimes. So how do you square that circle, use access to information, but yet still keep up with the pace of news these days and keep your competitive edge to get stories out there to the public as soon as possible?

JB:

It is a challenge given the well-known issues with access to information, but if you have a plan and keep the pipeline full, as they say, of requests, keep putting them in, keep following up on them, they do pay dividends. Sometimes yes, you get information back that is a bit like day old or a month old bread, it’s no longer useful. But on many issues, they tend to be with us for months if not years. If you put in a request on something that you know is going to be of relevance in coming months or years, the big issues like climate change, gun control, these kinds of things have an arc that mean that even if you get the information months or even years later, it can be useful and it can fill in gaps in the narrative.

PK:

Interesting. Well, that’s certainly not a reason to not to advocate for more efficient access to information, but it’s a good point you raise. So Jim, you’ve obviously been a very avid user of the federal access to information regime. I wondering, based on your experience, do you have any advice on what a province like Ontario can do to help advance and modernize the access to information regime here in our province?

JB:

Well, there’s something the federal government does that could be emulated by Ontario and others and that is list all of the access requests that it answers. So each department or agency puts on a portal a list of what they have answered that month. I use this in my work. So the agencies I follow, the RCMP, public safety, I look to see what they’ve disclosed and I ask those agencies for copies of those requests and often they’re very useful.

So here, others have made the request and done the work for me in a way. The material’s been released, often it’s not to a journalist. It’s to a business or perhaps a researcher. If the information has not been published or out there, I often find stories there. So, I’ve noticed that other provinces, in some cases, go even further and not only post lists of what has been released, but the actual records themselves. So PDFs, links to the documents.

British Columbia is doing this. Nova Scotia and Newfoundland, and there are others, and cities who have started to do sporadically across the country. It’s a nice trend to see and I think it’s something Ontario could take up. It would achieve two things. It would allow users who have a bit of wariness about using the law to see what is available and to get the records instantly through a search and it might give them ideas to make their our own requests.

It also alleviates pressure on the system because it’s a place for people to go to get records on things they’re interested in, and maybe it means they don’t need to make their own request right away. The information is there and the ministry gets X number of fewer requests to answer. Everyone is happy. So I think it’s a trend that should be copied.

PK:

Certainly a good example we could consider here in Ontario. I think the common sentiment is that once information is disclosed in the context of an access to information request to a requester, it’s as though that information was disclosed to the world. So once disclosed, why not make it available to others, as you say, and help alleviate the system from repeat access to information requests for the same information? So now to really the most interesting bit I’d love to know is can you share with us some critical news stories that you’ve produced over the years as a result of information you uncovered through access to information? Do you have some examples that would resonate with our listeners?

JB:

Well, one that might ring a bell for people is the use of taser stun guns. A colleague Sue Bailey and I at Canadian Press began looking at the use of stun guns some years ago. At the time, the RCMP were really the major users of these stun guns which people know are used to incapacitate someone with a jolt of electricity in altercations and such, instead of using a gun. That’s the idea. We saw some stories about them being used perhaps in questionable ways. We thought we’d take a systematic look at this and did a series that sort of looked at the waterfront of the issue.

One of the things we discovered in the course of this through a freedom of information request was that every time that the RCMP even drew a taser from their holster or used it, the officer had to fill out a form. So in an interview, I asked about this and said, “Tell me more about this.” Then an RCMP official went on and said, “Oh yes, yes, yes. We fill those out.” I asked for them, and sure enough, many months later, a box of paper forms showed up at our office describing how the RCMP had used tasers. This was from about 2002 to 2005.

Fast forward a bit, and then sadly listeners might remember the sad incident involving Robert Dziekanski at the Vancouver Airport, he died after being hit with a taser. This created great concern about the use of tasers. An editor at a meeting one morning said, “Hey, don’t you guys have a box of forms on how the RCMP uses these.” “Yeah, we do.” “Can you quickly go through them?” So we had done the groundwork. We were ready to analyze them using a computer database.

Through this, we learned that almost three quarters or so of the times RCMP had drawn their tasers, the individual in question was unarmed. This ran counter to a narrative of, “Oh, well, tasers are used to make someone drop a knife or a gun or to deal with a really violent person.” We also determined through the course of our work on tasers that they were sometimes used as a compliance tool to get someone to cooperate rather than to defuse a threat from a person. So, it painted a statistical picture, a picture of what was going on. None of this would’ve been possible without access to information.

PK:

It’s a great example of what you mentioned earlier, how putting in these access requests certainly pay dividends on issues that have a long arc and are fundamentally important to society like this one was. As a result of the facts that you uncovered and relayed in the form of news stories around that tragic incident, what would you say were some of the changes as a result of the public airing of this issue?

JB:

Well, we pursued this further and we teamed up with CBC and Radio Canada and we eventually got more of the information that we had in the first batch which allowed us to continue our work. It really showed that the RCMP was using this, this quite potent weapon, contrary to force policy, because we can compare the data on how the stun guns were being used with how they were supposed to be used. So it did I think help create debate and discussion. There were editorials. There was a lot of public interest in this issue.

And again, the sad case of Mr. Dziekanski helped bring it into the spotlight. There was a real appetite for understanding how these weapons should be used. They were being rolled out to other forces across the country. So I think it certainly contributed to a real deep think about how they should be used and when they should be used.

PK:

That was a fascinating example, Jim. Are they there any other similar examples you can share with us?

JB:

Well, one case that has had a similarly long arc is an archival case. I, as you mentioned, cover the RCMP and security issues. For many years, the RCMP was our spy agency and kept files on all kinds of people, including politicians and one of them was Tommy Douglas. Under the act, as some may know, you can get an RCMP file that was created on someone 20 years after they have died. So I made a little notebook notation to ask for Tommy Douglas’s file 20 years after he had passed away.

Tommy Douglas, of course, is the trail blazing socialist NDP leader, in many eyes the father of Medicare in Canada. Yes, the RCMP kept quite a large file on him, followed him over the years. I applied for it in 2005 just before the anniversary of his death saying, “Look, I know it takes you some time to process these. Please get to work on it.” Sure enough, in 2006, it was released to me with many redactions. But it did reveal that indeed the RCMP had quite a dossier on Mr. Douglas and generated discussion about what our security service did and the wisdom of their efforts to track many left wing subversives in their eyes.

It also meant complaining because of the blackout portions and eventually we went to federal court and we had some success there in getting more of the file released. I think the case also shifted the goal post a bit for users looking for this kind of information, because the judge in the case was quite emphatic that more information should have been released and directed the government to do so, which it’s done.

PK:

It’s interesting how this second example really shows how persistence really pays off on the one hand, waiting out the 20 years, but also how being anticipatory and applying in year 19 also helps matters recognizing how long it takes to assemble the documents. But a fascinating example that brings to light not only the importance of the content of what you were investigating, but also sheds light on the process as well. Now, you teach at Carleton University in Ottawa about matters relating to access to information and you’ve also written a book about the FOI process. So can you share with us what do you teach your students about how to gain access to government health information and what are some of the tips you share with readers in your book?

JB:

Well, one of the first things I like to preach is always ask informally, “Hey, can I have that report? Can I have that file on Tommy Douglas? Can I have information about taser use?” Because information is created by government agencies and public bodies in our name, using taxpayers dollars. So my thought is the easiest and quickest route is to ask for it, make a phone call, send off an email and make the agency tell you why you can’t have it if that’s the case.

Why do I have to go under freedom of information? Yes, these tools are there, but they’re a safety net. They should be a last resort in many ways, not the first reflex. So that’s the first thing I tell them, push, push, push, try to get things. If that doesn’t work and the agency says, “Oh, well look, this Tommy Douglas file has some security information in it. Even decades later, we can’t release this. Some personal information.” Okay. All right. I’ll put in an access this to information request.

Doing some research as you suggested is obviously a good starting point. So see what is out there. Have any other records been released on this subject? Is there any other request that’s been made? Look to see what news stories have been written about the subject, what government reports are on the internet, that tip of the iceberg research. Only then can you start to ask, “Okay, well, what do I really want to know?” So I urge my students to make lists of questions about what they don’t know. If they can’t find answers to those questions readily in news stories or on government sites, that is fodder to start framing your request.

Then it’s a matter of sitting down and writing the request in a way that captures what you’re looking for. It should not be overly broad. You’d have to narrow it down because you’re going to get a response saying, “That’s a bit vague.” If you know the author, you could mention that. You would want to specify a certain timeframe. So not going back decades, but say in the last year or the last two years, tops. I often say you shouldn’t really ask for more than six months’ worth of records on a very hot topic.

So pay attention to the type of records you’re asking for and pay attention to the timeframe and craft it so it’s not too broad, yet not too specific. That’s a good starting point, but once you’ve done your request, you put it in and follow up. Often, you’ll hear from the agency. If it’s – the wording is problematic, you can call proactively and say, “Did you get my request? Is it okay?” You should get a letter saying, “We’ve got your request. It looks good.” Often an extension is taken. So most requests, as listeners will know, are supposed to be answered within 30 days or so, but that’s usually the minimum. And often, they’ll take an extension of 60, 90, sadly, even more, 180 or a year to answer the request.

That’s a sign that perhaps your request is too broad. So you can then ask the analyst handling it, “Is there a way we can narrow this down?” You’ve already submitted it, but it’s not carved in stone. You can often tweak the wording. You can narrow the scope. This might reset the clock on your request, but it’s often worth it because it’s not worth getting a fee estimate because we know agencies can charge fees for search and preparation. So you want to avoid that as well.

PK:

Wow. That sounds like a very sound, structured and deliberate methodology that you teach students and very wise too. I think those are very important practical tips. I understand you ask all your students, as part of the curriculum, to make an access to information request and learn from experience.

JB:

Yes. It has helped the students realize that this is a tool they should use, and not just for our course, but in the newsrooms that they work in and some have gone on to embrace it and really make it part of what they do. Because job descriptions now for journalists routinely include familiarity with access to information laws, and ability to ferret out this kind of information. So indeed, it is not just a theoretical exercise. We tell them, even if you work in other fields in the law, as a public researcher, for an interest group, it’s an invaluable tool, and even as a citizen. Many requests come from the public, of course, so it can be a tool for anyone interested in what public bodies are doing.

PK:

In terms of broadening out a little bit from the process and the operations of FOI requests to broader policy issues, my office recently adopted Privacy and Transparency in a Modern Government as a key strategic priority for our work. What do you see as some of the key challenges, the big challenges to access to information? What do you think an office like mine can do to help move the dial forward on fundamentally the right to know and transparency of government?

JB:

I think there are a few things to look at here. One is the general tone and approach of public bodies and governments toward transparency. One is the laws themselves, the freedom of information laws. Thirdly, the way the laws are administered. I think all three of these things are important and must work together to ensure the kind of transparency that people deserve. Certainly, your office and government ministers need to take the approach that transparency is essential to the workings of modern government, that it’s nothing to be afraid of, that in fact it helps government work more efficiently.

It can save money, it can help foster democracy. Freedom of information laws are an integral part of that. Some of the things that governments release proactively like expense reports, briefing note titles, this sort of thing are useful and helpful, but it’s not everything. I think the freedom of information laws are still essential and proactive disclosure will not replace the laws or make them obsolete. So ensuring we have good, strong modern laws is important.

People point to narrowing the exemptions that allow agencies to keep information back, ensuring cabinet records are not shielded unduly, making sure that all agencies that should be covered are covered by the law. Then there’s the administration of the act and we’ve seen this exacerbated during the pandemic for obvious reasons. People working from home, officials not having access to records to go through them, which often are still on paper and they need to go in and look at paper documents in an office in order to process them. This is a real thing still.

So it begs a lot of questions about how administration of the law works or is not working. Are there enough people to answer requests? Are the access units well-funded? Is this a priority of government or is it just a backwater of a department, that, oh, if we miss a deadline, there’s no penalty? There’s no incentive to comply with the law in a timely way. So all of these things together need to work in sync, I believe.

You need leadership from officers of parliament and from the government, you need a strong law that’s modern and up to date and responsive to the internet age. The expectations of people have changed. They may not see a need to shield cabinet documents for 20 years in the internet era. They have more expectations of transparency on a whole range of records. They don’t want to wait months and years for documents, nor should they have to in many cases.

When they do complain to your office or federally, they expect a well-funded and responsive organization that will take up their complaint quickly and resolve it. That takes effort on the part of departments to cooperate and say, “Okay, how can we solve this issue?” All of this needs to happen for the laws and for transparency to work effectively.

PK:

Wow, that certainly has given me pause to reflect on your tripod solution of starting with culture led by strong leadership, really pursuing the ongoing need for legislative reform, and of course, the practical administration and implementation of the laws on the ground, including my office. Thank you so much, Jim, for taking the time to join us in this episode of Info Matters. We really appreciated your insight. It’s been a fascinating discussion that’s given us a very different vantage point to access to information and the critical purpose that these FOI laws are intended to serve.

As our conversation has made clear, a strong, robust, and efficient access to information regime is indispensable for members of the press and journalists like yourself to do your jobs in supporting the workings of a healthy democracy. It’s been pretty inspiring and I commend you for the hard work you do day in, day out to uncover the facts that we as a public need to know.

For listeners out there who want to learn more about the journalist perspective on access to information, you can find reference to Jim Bronskill’s book in the show notes. For those of you who want the nuts and bolts of filing your own access to information request, I encourage you to listen to our earlier podcast episode on Demystifying the FOI process, which goes through the steps in greater detail. It’s available with all other Info Matters episodes wherever you get your podcast. You can also visit our website at ipc.on.ca for information about a variety of access and privacy topics or call or email our office for assistance and general information about Ontario’s access and privacy laws.

Well, that’s it for this episode, from FOI to front page news. Thank you everyone and until next time.

I’m Patricia Kosseim, Ontario’s Information and Privacy Commissioner and this has been Info Matters. If you enjoyed the podcast, leave us a rating or review. If there’s an access or privacy topic you’d like us to explore on a future episode, we’d love to hear from you. Send us a tweet @ipcinfoprivacy, or email us at @email. Thanks for listening and please join us again for more conversations about people, privacy, and access to information. If it matters to you, it matters to me.