Secrecy and City Hall

by David Broadland, January 2011

What are they hiding at Douglas and Pandora?

In late November, WikiLeaks, the organization founded by Julian Assange, began distributing transcripts of secret American government cables, and that unleashed a torrent of discussion around the globe about the efficacy of government secrecy. But almost immediately, the high-minded considerations about how much government secrecy is tolerable in a democratic society were pushed aside by the question of whether Julian Assange’s condom had merely leaked or was purposely torn. The trajectory of human progress is a rather like the flight of a butterfly, isn’t it? We’ll get there, but not in a straight line.

WikiLeaks was established so that the secrets of corporations and governments could be exposed, and while the conversation so far has been largely limited to the case of national governments, the secrecy of finer grain organizations like municipal governments will eventually become part of the discussion. In fact, I’m going to take you there in a few moments.

According to WikiLeaks, “If citizens in a democracy want their governments to reflect their wishes, they should ask to see what’s going on behind the scenes.” WikiLeaks equates its own actions and motivations with those of iconic secrecy buster Daniel Ellsberg, who stole information from the Pentagon during the Viet Nam war era and made it public. WikiLeaks says, “In its landmark ruling on the Pentagon Papers, the US Supreme Court ruled that ‘only a free and unrestrained press can effectively expose deception in government.’ We agree.”

The secrets WikiLeaks has exposed so far were not found by going through proper channels. Instead, the organization has set itself up as a “secure drop box” where people working within government or corporations can anonymously and safely deposit their employers’ secrets.

One possible consequence of the unfolding WikiLeaks phenomenon is that people everywhere will believe the days of governments keeping a lid on what they’re up to are over. The truth about everything is now sure to break through the barriers—legitimate or otherwise—governments erect to contain it.

But another possible outcome is that people working for government, or who have dealings with those in government, will increasingly limit their use of easily-recorded forms of communication—faxes, cables and emails—in favour of voice communications. WikiLeaks  could actually induce an information chill.

Indeed, both effects have been in play for some time. The legal protection of a citizen’s right of access to government information has created the general perception that governments can’t hide their actions from public view. But at the same time, governing bodies have learned how to become more secretive: George Bush and Dick Cheney were apparently masters at not leaving a trail of records behind them. Bush is said to have avoided reading papers, files and reports and instead relied on oral briefings. And so nosey reporters and Bush’s political enemies will never be able to prove what he was or was not told.

While we know American journalists have tried to “look behind the scenes” of the secretive Bush administration, Canadians have little idea of whether their own legally-protected right to access government information is even being exercised by journalists in this country.

This is especially true in the case of municipal governments, the scrutiny of which has been left in the hands of “beat” journalists who have well-established relationships with the people they’re supposed to be watching over and are understandably reluctant to endanger their access to the flow of information and comment by going after the secrets and lies. How hard are they looking “behind the scenes?”

To answer this question, I recently examined the extent to which local media used the provincial Freedom of Information and Protection of Privacy Act to obtain information about the City’s plan to replace the Johnson Street Bridge. I FOIed the FOIs that were filed by the Times Colonist, CBC Radio, Monday Magazine, Victoria News, A-Channel and CHEK News between January 1, 2009 and November 29, 2010.

Replacement of the Johnson Street Bridge will be the most expensive public infrastructure project in the City’s history. A number of highly controversial issues arose in the nearly two-year period leading to the referendum in which voters approved replacement of the bridge. Surely, you would think, this was a situation that screamed out for broad usage of the Freedom of Information Act by local media.

But in that 22-month period, Victoria News didn’t file a single request for information. Neither did A-Channel or CHEK News. CBC Radio filed a request for a single email, but only after the contents of that email had been published in Focus.

The Times Colonist filed a single request, one in which they sought “information about how the decision was made to seek funding through the federal/provincial stimulus program including staff recommendations and/or suggestions about whether the bridge project would be a likely candidate for senior government funding and any direction from the mayor or council to seek funding.” 

Monday Magazine’s Jason Youmans filed two requests, one in which he asked for “any and all City of Victoria communications plans and strategies (plus related materials and correspondence) pertaining to the replacement of the Johnson Street bridge” and a second asking for “all applications submitted to the Government of British Columbia for provincial funds (grant or otherwise) for the reconstruction of the Johnson Street Bridge, and the subsequent responses from the Government of British Columbia to those requests.”

Leaving aside the question of whether the FOIs filed by the TC or Monday produced any useful insight into what the City was up to, the sheer lack of curiosity shown by local media about a highly controversial issue involving expenditure of upwards of $100 million of public money is a pretty good indication that supposedly unrestricted access to information doesn’t guarantee anyone is going to go looking. 

It certainly wasn’t the cost of filing FOIs that dampened local media’s interest. The City of Victoria charged a total of $47 for the five FOIs filed by Monday, the Times Colonist and CBC Radio.

So what’s going on here?

The easiest assumption to make is that Victoria’s professional journalists, who have traditionally been relied on to ensure transparency and accountability in the community, are just too disengaged or unmotivated to do their job properly. 

But it’s probably more complicated than that. Perhaps journalists covering the City are so experienced with the failings of the Freedom of Information and Protection of Privacy Act that they wisely don’t waste their time beating their heads against its stony walls.

Let me tell you a little story about what happens when you file an FOI with the City of Victoria. I present this as evidence in support of the theory that local journalist aren’t lazy, just wary.

Unhappy with the incompleteness of information the City of Victoria eventually released in response to an FOI filed by Focus this past summer in relation to a question regarding the bridge, I requested a review by the Office of the Information and Privacy Commissioner. This is the refuge of last resort for any person unhappy with the response from a governing body after filing an FOI.

Now a review can take some time, so in the meantime I worked out a kind of deal with the City’s FOI administrator, Sheryl Masters. We agreed that I could file a second FOI which asked to see any communications between anybody at City Hall who had anything to do with processing the first request for information. The idea was that I would call off the review if the City could show that no one at City Hall interfered with the search for the information requested in the first FOI.

Two months later I received 27 pages of emails and staff notes related to my original request. Included in this were six pages on which the content of an email or staff note had been partially or completely blacked out so it couldn’t be read. Beside each blacked-out section was a notation as to which section of the Freedom of Information and Protection of Privacy Act was being invoked, giving the impression that whatever information the City was withholding, they were legally sanctioned to do so.

The severed information also gave the impression that the City was hiding something. So, as proof that no one at City Hall had interfered with the first request for information, the evidence they provided in the second failed the most basic requirement: transparency.

The sad truth is that BC’s Freedom of Information and Protection of Privacy Act provides governing bodies, like the City of Victoria,  with enough wiggle room that any request for information can be effectively thwarted.

It’s also important to understand that the internal process used by the City of Victoria to gather information for an FOI request is based on the honour system. The request is forwarded to various departments which are asked to look for relevant documents. The recipients of those requests then know exactly what information is being sought, and by whom. If anyone at City Hall had records they didn’t want made public, they could either ignore the request or start pressing the delete button and/or removing paper records. Nobody would know without considerable further searching and investigation, if at all.

A more credible approach to providing genuine public access to information at Victoria City Hall would include a search for information conducted completely independently of City Hall. But don’t hold your breath.

And that brings us back to WikiLeaks. Since it’s very unlikely that politicians and civil servants at any level of government will voluntarily move toward a higher level of transparency—after all, it’s their actions that would come under closer scrutiny—the approach used by WikiLeaks, with all its faults, may actually be the only hope we really have for a greater degree of “open government.”

David Broadland is the publisher of Focus Magazine.