Beyond the headlines: No equal access in Access to Information process

Beyond the headlines is a column by investigative reporter Thomas Rohner that provides a behind-the-scenes look at journalism in the North. His aim is to encourage readers to become critical and skeptical consumers of news media. 

Everyone appreciates a good David versus Goliath story, so long as David wins and, preferably, is not one of us.

But when it comes to holding government agencies accountable to their obligations under Access to Information, or ATI laws, we regular folk often play the role of a losing and sad David.

That's because Joe Public doesn't have the same resources or lawyers at their disposal as government agencies. To even the playing field, that needs to change.

The value of ATI laws is pretty straightforward: they are designed to give the public access to records held by the government and limit the government's ability to refuse that access. Armed with information, we can then participate in our democracy and hold elected officials to account.

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More and more members of the public are filing access requests. Most requests from the public are for personal information: maybe you want to know what information a department has collected on you, the details of a government job competition you lost, or suspect your government co-workers have conspired to harass you. These are some of the most common reasons people apply for access requests.

Investigative reporters also regularly file ATI requests, but not for personal information — rather, on topics in the public interest.

For example, I helped Iqaluit resident Bernard Naulalik file a request to get copies of cell block video footage showing Iqaluit police in an altercation with him on three separate occasions.

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Naulalik is now suing the government and the RCMP.

Another example: a few years ago, I filed a request with Nunavut's coroner office to find out if the justice department had pressured the coroner to hide information about a controversial death.  I didn't find any evidence of that.

Access requests can reveal information government would rather hide from the public, information that can lead to public outcry and, hopefully, positive change.

But ATI requests often don't work out smoothly, and, when they hit a snag, the government gains an enormous advantage over the public interest.

David versus Goliath

For example, in August of 2017, I filed two related requests with Nunavut's justice department. The department responded with 100 pages, most of which were blank. The government has the right to remove information for a variety of reasons, but governments are notorious for removing far more information than they should.

However, there is an opportunity to challenge their decision: if you are unhappy with the results of an information request, you can ask the Information and Privacy Commissioner to review those results.

Cue the David versus Goliath story.

When I requested a review in 2017, a pro bono lawyer — that is, a lawyer working for no fee — helped me respond to the government's arguments. After a few back-and-forths with government lawyers, my lawyer totalled 65 hours of work worth over $43,000 at her regular rate.

If it's unfair for an accused to sit in a courtroom without a lawyer while facing a team of prosecutors, why is the imbalance fair in this instance?

If you requested your own personal information from the government, and the government refused, your only recourse would be to go through this review process. You don't require a lawyer to go through the process, but knowing the government has staff lawyers and access to piles of public money, wouldn't you feel better having a lawyer on your side?

That's especially true if the government agency has been unhelpful and difficult throughout the process.

And that's been my recent experience with the Legal Services Board of Nunavut.

This summer, I requested information from the board on the number of people fired over the past five years and how much money the board paid those employees on their way out the door. My goal was to assess whether the board had handled such situations responsibly, considering they received $11.8 million of public money last year.

Every public agency has a duty to assist members of the public in filing access requests, but the board did not respond to my basic questions on how to file a request.

Once I filed the request anyway, the board ignored the deadline the central government ATI office set, then took another short extension without justifying it under the law.

Finally, the board responded: They did not have the document I requested and are not obligated to create the document.

My only recourse is to file for a review. This time, I don't have a pro bono lawyer, or legal training, so I'm already at a disadvantage.

But I'm keeping track of the number of hours I spend working on the review. At the end, I'll send the board a bill.

However much they are paying the lawyer they hired for my request, I'll charge the same rate. That's only fair.

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