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Getting at the Live Archive: On Access to Information Research in Canada*

Published online by Cambridge University Press:  02 January 2013

Kevin Walby  and
Mike Larsen
Kevin Walby
Affiliation:
Department of Sociology, University of Victoria, PO Box 3050 STN CSC Victoria, BC V8W 3P5, Canada, [email protected]
Mike Larsen
Affiliation:
Criminology Department, Kwantlen Polytechnic University, Surrey Main C3881, 12666 – 72nd Avenue, Surrey, BC V3W 2M8,, Canada, [email protected]
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Extract

Most of the draft documents, memoranda, communications, and other textual materials amassed by government agencies do not become public record unless efforts are taken to obtain their release. One mechanism for doing so is “access to information” (ATI) or “freedom of information” (FOI) law. Individuals and organizations in Canada have a quasi-constitutional right to request information from federal, provincial, and municipal levels of government. A layer of bureaucracy has been created to handle these requests and manage the disclosure of information, with many organizations having special divisions, coordinators, and associated personnel for this purpose. The vast majority of public organizations are subject to the federal Access to Information Act (ATIA) or the provincial and municipal equivalents.

We have been using ATI requests to get at spectrum of internal government texts. At one end of the spectrum, we are seeking what Gary Marx calls “dirty data” produced by policing, national security, and intelligence agencies. Dirty data represent “information which [are] kept secret and whose revelation would be discrediting or costly in terms of various types of sanctioning.” This material can take the form of the quintessential “smoking gun” document, or, more often, a seemingly innocuous trail of records that, upon analysis, can be illuminating. Dirty data are often kept from the public record. At the other end of the disclosure spectrum are those front-stage texts that represent “official discourse,” which are carefully crafted and released to the public according to government messaging campaigns.

Type
Problems in Accessing Information: A Collection of Essays
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 26 , Issue 3 , December 2011 , pp. 623 - 633
Copyright
Copyright © Canadian Law and Society Association 2011

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References

1 We use the term “ATI” to encompass both ATI and FOI law. ATI places the issue of access up front, which reflects the negotiated and contingent nature of the process. One of the flaws with the Canadian federal access to information regime is that government agencies can only be brought under its authority by adding them to Schedule I of the Act. This must be done either at the time that an agency's own enabling legislation is created or amended, or in an omnibus fashion, as occurred following the passage of the Federal Accountability Act (2006). There is no presumption of inclusion, which means that some government agencies and crown corporations “fly under the radar” of the Act.

2 Marx, Gary, “Notes on the Discovery, Collection, and Assessment of Hidden and Dirty Data,” in Studies in the Sociology of Social Problems, ed. Schneider, J. and Kitsuse, J. (Norwood, NJ: Ablex, 1984)Google Scholar.

3 See Walby, Kevin and Monaghan, Jeff, “Policing Proliferation: on the Militarization of Police and Atomic Energy Canada Limited's Nuclear Response Forces,” Canadian Journal of Criminology and Criminal Justice 52 (2010): 117–45CrossRefGoogle Scholar; Larsen, Mike and Piché, Justin, “Exceptional State, Pragmatic Bureaucracy, and Indefinite Detention: The Case of the Kingston Immigration Holding Centre,” Canadian Journal of Law and Society 24 (2009): 203–29CrossRefGoogle Scholar; Piché, Justin and Walby, Kevin, “Problematizing Carcerai Tours,” British Journal of Criminology 50 (2010): 570–81CrossRefGoogle Scholar.

4 Marx, , “Notes on the Discovery,” 79Google Scholar.

5 Piché and Walby, “Probleniatizing Carcerai Tours.”

6 A memorandum of understanding (MOU) establishes the terms and cditions of a partnership between two government organizations, and establishes standing orders and parameters that govern that relationship. An MOU can also detail what operations and resources will be shared. For a discussion of a governing MOU, see Larsen and Piché, “Exceptional States.”

7 Tromp, Stanley, “Fallen Behind: Canada's Access to Information Act in the World Context,” 2008, http://www3.telus.net/index100/reportGoogle Scholar.

8 See Roberts, Alasdair, Blacked Out: Government Secrecy in the Information Age, (Cambridge: Cambridge University Press, 2006)CrossRefGoogle Scholar; Badgley, K., Dixon, M., and Dozois, P., “In Search of the Chill: Access to Information and Record-Keeping in the Government of Canada,” Archivaria 55 (2003): 1–19Google Scholar; Gilbert, J., “Access Denied: the Access to Information Act and its Effect on Public Records Creators,” Archivaria 49 (2009): 84–123Google Scholar.

9 Kinsman, G. and Gentile, P., The Canadian War on Queers: National Security as Sexual Regulation (Vancouver: UBC Press, 2010)Google Scholar; Roberts, A., “Administrative Discretion and the Access to Information Act: An ‘Internal Law’ on Open Government?” Canadian Public Administration 45 (2002): 175–94CrossRefGoogle Scholar; Birkinshaw, P., “Proposals for Freedom of Information in the United Kingdom,” Government Information Quarterly 16:2 (1999)CrossRefGoogle Scholar.

10 See Larsen, M. and Walby, K., eds., Brokering Access: Power, Politics and Freedom of Information Process in Canada (Vancouver: UBC Press, 2012)Google Scholar; de Lint, Willem, “Keeping Open Windows: Police as Access Brokers,” British Journal of Criminology 43 (2003): 379–97CrossRefGoogle Scholar.

11 Abrams, P., “Notes on the Difficulty of Studying the State,” Journal of Historical Sociology 1 (1998), 61Google Scholar. Like Abrams, we want to avoid conflating the “state” and “government.”

12 Conventional archives are also dynamic and evolving projects, but the texts that exist in these spaces are not subject to the same potential for revision and activation that characterizes texts in the live archive. See Library and Archives Canada, Modernization within LAC: Evolving Approaches to Canada's Documentary Heritage (Ottawa: Library and Archives Canada, 2010), http://www.collectionscanada.gc.ca/modernization/012004-900-e.htmlGoogle Scholar.

13 Smith, D., Writing the Social: Critique, Theory and Investigations (Toronto: University of Toronto Press, 1999)Google Scholar; Smith, D., Institutional Ethnography: A Sociology for People (Lanham, MD: AltaMira, 2005)Google Scholar; Walby, Kevin, “Institutional Ethnography and Surveillance Studies: An Outline for Inquiry,” Surveillance and Society 3 (2005): 158–72Google Scholar. Our use of “texts” is informed by the literature on institutional ethnography. Texts can be understood as active, translocal, replicable, and implicated in processes of generalization and social organization.

14 Sometimes researchers can gather texts concerning third parties and businesses who have relations to government agencies, although this is difficult as one commonly invoked section of the Access to Information Act for redaction and exemption is s. 20 concerning third parties. Other sections commonly invoked by ATI coordinators for redaction and exemption are s. 16 concerning ongoing investigations, and s. 19 concerning personal information. ATI coordinators can use s. 19 to exempt whole portions of documents instead of simply redacting the specific personal information on each page, leaving the researcher to guess exactly what types of documents and correspondence exist.

15 See Smith, Writing the Social. That the text is “activated” requires a reader to interpret the text and put it to use in particular ways that reflect their practical consciousness but also the institutional conditions in which they are at work. See Smith, D., Texts, Facts, and Femininity: Exploring the Relations of Ruling (New York: Routledge, 1990)CrossRefGoogle Scholar.

16 We cannot expect to be able to sit down and have a candid and on-the-record chat with agents from the Canadian Security Intelligence Service or the intelligence branches of the Royal Canadian Mounted Police, much less the senior bureaucrats or communications managers at these agencies.

17 Foucault, Michel, The Archaeology of Knowledge (New York: Pantheon, 1972), 130Google Scholar.

18 For example, the December 2008 table outlining “ATIP Roles and Responsibilities” within Public Safety Canada—obtained through ATI request no. A-2009-00142—notes that an ATIP analyst “[w]herever possible, negotiates changes to the scope of requests directly with the requester in order to minimize the amount of search fees imposed on the requester” and “[negotiates directly with [the] applicant in order to minimize the impact of processing the records (i.e., drafts, ministerial correspondence and records documenting minimal changes to a document.” These negotiation duties, even when undertaken with pragmatic intentions, have the potential to alter the outcome of the brokering process.

19 Roberts, Blacked Out. On this note, the Harper Conservatives have a general contempt for public transparency. They cancelled the scrum after the question period. They cut funding to critical arm's-length agencies such as the Law Commission of Canada. And many users of ATI such as journalists speculate that the Prime Minister's Office has recently played a more active role in making decisions about ATI requests at the federal level.

20 ATI software suites subtly alter the form of records. Most records begin as digital files (word processing, spreadsheet, and so on) that can be searched and manipulated. After processing through AccessPro Case Management, they become image-based PDF files that are “flattened” and unsearchable—a source of much frustration for ATI researchers. In addition, AccessPro does not “black out” text in accordance with the classical image of the redacted document; instead, it shows redacted text as white space that is indistinguishable from the document background. This can make it unclear where and whether a given record has been redacted.

21 Amber lighting refers to the tagging of a request/requester as politically contentious. Red filing refers to requests that are stonewalled by the minister or by the Prime Minister's Office, who receive a weekly inventory of tagged requests.

22 Huey, Laura, “Subverting Surveillance Systems: Access to Information Mechanisms as Tools of Counter-Surveillance,” in Surveillance: Power, Problems and Politics, ed. Hier, S. and Greenberg, J. (Vancouver: UBC Press, 2009)Google Scholar.

23 Paul Kelly discusses his work as an employee under the Mike Harris government in Ontario. His superiors would encourage employees not to keep any records. Kelly also discusses a few systematic methods of obstructing requests, such as the way cabinet briefing notes are covered under “Advice to Minister” or “closed meeting” clauses under various ATI legislations. Orders were also given to destroy information. Twice, Kelly was advised to destroy all documents concerning Ipperwash and the murder of Dudley George by the Ontario Provincial Police. See Kelly, Paul, “Information Is Power,” Open Government: a Journal of Freedom of Information 2, 1 (2006)Google Scholar.

24 Records obtained through CSIS ATI request 117–2010–15 document the exchanges between CSIS employees and employees of the Office of the Information Commissioner of Canada (OIC) that took place during the preparation of the 2008–2009 OIC Report Card for CSIS. The OIC notes that, although the pre-coding of records facilitates easy document retrieval, “CSIS's strong information management structure is not reflected in [ATI] compliance level.” CSIS received a “deemed refusal rate” of 20.9% and an overall “D” grade in the public report card. Interestingly, the OIC revised its position in the public version of the report to read “CSIS has a strong information management structure.” See OIC 2010, http://www.oic-ci.gc.ca/eng/rp-pr_spe-rep_rap-spe_rep-car_fic-ren_2008-2009_25.aspx.

25 Roberts, Blacked Out.

26 “NOTIFICATION PROCEDURES" (Public Safety Canada, 2009), obtained through ATI request no. A-2009-00142.

27 Larsen and Piché, “Exceptional State.”

28 Hoogenboom, B. The Governance of Policine and Security; Ironies, Myths and Paradoxes (Basingstoke, UK: Palgrave Macmillan, 2010)CrossRefGoogle Scholar.

29 Larsen, Mike, “National Security Accountability and the Right to Know,” PRISM Magazine (April 2, 2010), http://prism-magazine.corn/2010/04/national-security-accountability-and-the-right-to-know/Google Scholar.

30 Complex requests that follow a textual trail between agencies are also subject to an additional layer of brokering that arises from concern for the maintenance of relationships between organizations and levels of government. Complex requests also suffer from the absence of the sort of institutional memory and information management framework that gives structure to the texts that are produced and circulate within a given agency. And ATI offices in some agencies simply suffer from a lack of support and resources.

31 Walby, Kevin and Monaghan, Jeff, “Private Eyes and Public Order: Policing and Surveillance in the Suppression of Animal Rights Activists in Canada,” Social Movement Studies 10 (2011): 21–37CrossRefGoogle Scholar; Monaghan, Jeff and Walby, Kevin, “Making Up ‘Terror Identities’: Security Intelligence and Canada's Integrated Threat Assessment Centre,” Policing and Society 21 (2011)Google Scholar.

32 See Burawoy, M., “For Public Sociology,” American Sociological Review 70 (2005): 4–28CrossRefGoogle Scholar.

33 Many of the journalists and researchers that make up Canada's relatively small ATI community have created Web sites and other resources to share both tips on ATI requests and the actual records that they have obtained.

34 See Snell, R. and Sebina, P., “Information Flows: The Real Art of Information Management and Freedom of Information,” Archives and Management 35 (2007): 54–81Google Scholar; Roy, J., “Security, Sovereignty and Continental Interoperability: Canada's Elusive Balance,” Social Science Computer Review 23 (2005): 463–79CrossRefGoogle Scholar; Gentile, P., “Resisted Access? National Security, the Access to Information Act, and Queer(ing) Archives,” Archivaria 68 (2009): 141–58Google Scholar; Kirtley, J., “Transparency and Accountability in a Time of Terror: the Bush Administration's Assault on Freedom of Information,” Communication Law and Policy 11 (2006): 479–509CrossRefGoogle Scholar.