BC’s Freedom of Information and Protection of Privacy Act is supposed make government more accountable. The Act gives the public a legal right of access to government records. This right is subject to a number of exceptions. For example, documents protected by solicitor-client privilege cannot be disclosed. Confidential business and labour-relations information cannot be disclosed. Information which would harm public safety and law enforcement cannot be disclosed. And so on. The exceptions are not loopholes. They are essential to the attempt to strike a balance between the public’s right to know, and the need in certain circumstances for confidentiality.
The Act is enormously well-intentioned. No one questions the need for government transparency as a general principle. But legislating access has had unintended consequences that illustrate what happens when we turn our policy aspirations into law.
The application of the Act’s legally binding rights and exceptions cannot be done casually. The officials in every public body who administer it must apply its requirements page by page, and sometimes line by line. That’s the process – required by law – which produces those whited out “redacted” documents that reporters and activists wave at TV cameras, conveniently forgetting that the passages they say we have a right to see are in fact exactly the opposite - statements that cannot be disclosed without violating the law. Some of the exceptions are mandatory, some are discretionary, but they all must be considered and applied.
Here then is the first unintended consequence of enacting access to information rights. You might wish that there was a culture of openness inside government. But FOI legislation necessarily compromises that aspiration. It’s the application of the exceptions from disclosure that takes up most of the time and energy associated with processing access to information requests. And in a very real sense that is an exercise that is more about getting to no than it is about getting to yes. It’s legal, it’s bureaucratic, it’s rule-bound, and it’s necessarily expensive and burdensome. That’s what happens when you take a perfectly good policy idea and install a complex legal regime in its stead.
Another unintended consequence of enacting access rights is to create an incentive to drive some kinds of government communication underground. To explain that point, I need to digress for a moment.
In the early years of the BC Treaty Commission process, there was concern in some quarters that government negotiators would cut excessively favourable deals with First Nations behind closed doors, without adequately consulting all the potentially affected business and community interests. In response to these concerns the parties agreed that so-called main table treaty negotiations would take place in public. So everyone could see what was being demanded, proposed and negotiated.
The result was that real negotiations no longer took place at those main tables. Instead, the conversations that are essential to effective negotiation, where the parties tentatively explore options, test the existence and limits of common and contested ground, and look for creative solutions to positional obstacles, moved out of the negotiation room and into hallways and corridors, coffee shops and beer parlours, where they could take place in private. Agreements, if reached, would be announced at the public main table. That exercise in public communication might still have some value, because at least we could see what was being decided, and whether there was any real progress. But no one could credibly suggest that the negotiations themselves were public.
In the same vein, I heard a story a few days ago about a city council that, after years of public dysfunction, has decided to have a private pre-meeting before every public meeting. Away from the glare and glory of TV lights, the councilors go through the agenda as a problem-solving exercise, looking for consensus where possible, identifying and clarifying the issues that really do need debate, exploring and test-driving opportunities for compromise; trying, in other words, to find a way actually to lead their community, rather than simply parade their ability to score points off each other in public. Once again, the real work of governing is being done outside public view.
Here is the plain truth. Some public business simply cannot – or will not - be done in the public eye. Forcing delicate issues and conversations onto the public stage will cause public officials to become blander, or more positional, or both. The knowledge that our every word could become a banner headline on the front page of the morning newspaper changes what we say, and how we say it. And so a second inevitable if unintended consequence of access to information legislation (even with exceptions) is to drive some kinds of government communication offline. Out into the hallways, or into unofficial channels like private email accounts. Sometimes this is understandable and excusable; other times, clearly not so. But it’s inevitable.
What to do about this? The usual response is to demand tougher laws. Force the politicians and bureaucrats to write everything down! Once you’ve started legislating access rights, it’s hard to stop. And just like a drug addict, when the dosage you’ve become accustomed to doesn’t give you a good enough high, it’s time to up the dosage. As a result there is virtually no chance of “un-legislating” access rights and returning to a world where information access is a policy objective, rather than a legal straitjacket. Nor am I certain this would be a step in the right direction.
But I do suggest that forcing politicians and bureaucrats to put into writing everything they think, say, or do won’t necessarily make for better government. Instead it may dilute the content and quality of official discourse. No matter how tough the law, the folks who are required to solve our most difficult problems will always find a way to talk out the solutions somewhere out of sight around a corner along the corridors of power.