More about those pesky lists of briefing notes

Kirsten Smith My Blog Leave a Comment

This happened back in November and I got distracted from finishing the post. But since it’s #FOIFriday and this issues still annoys me, I’m going to publish. I’m omitting the names of the public servants I spoke to. This post isn’t about naming or shaming individuals – just illustrating how messed up the system is.

For years a common Access to Information request received by departments is for lists of briefing notes prepared for ministers and deputy ministers. You then scan this list and then pick and choose which briefing notes you want to read in full and make a second ATIP for them.

Here’s a sample of the list of briefing notes. These ones are not from an ATIP but are posted online for all the world to see.

Back in the Fall, I submitted a request to Privy Council Office for a list of briefing notes for the Minister of Democratic Reform and within a few weeks received a response that said “no records relevant to your request were found”. Confused by that response I checked the database of Completed Access to Information requests and found three recent examples of requests for lists of briefing materials for this minister that did results in documents being sent out. I checked with an ATIP buddy. He received a list of briefing notes from that same department just a few weeks earlier.

I called the ATIP coordinator to ask what’s going on. She told me that particular minister’s office doesn’t track briefing notes separately from all other documents and correspondence but I should speak to her deputy, who’s more familiar with the democratic institutions side of things. The deputy told me the Democratic Institutions staff used to create a list in response to Access requests but the law says quite specifically that a department can not be compelled to create a document if none exists – so they just recently stopped doing it. But if it’s all in a document tracking system, how is doing a “find” for briefing notes creating a new record? She repeats that the Act is clear that a department cannot be compelled to create a record if none exists.

What about the briefing notes that appear in Order Paper questions, I ask? Order Paper questions, also called “Written Questions” tend to be more substantive in nature that oral questions asked during Question Period. Opposition parties use this procedure to obtain detailed answers on all sorts of topics – including lists of briefing notes. Here’s a example from the Fall, the NDP asked for a list of all contracts awarded to the pension management company owned by Finance Minister Bill Morneau. Departments have 45 days to answer these questions and if they have to create a record to provide the answer – they do so.

List of briefing notes prepared by PCO to answer an Order Paper Question

So how can someone with an interest in this ministry find out what briefing materials are prepared for this minister, I ask the deputy director? Get a Member of Parliament to submit an Order Paper question for briefing notes is her first answer. Seriously?!? That was her solution. For a government whose motto was “sunny ways”, that’s a terrible answer.

Even if you do follow Order Paper questions, as you can see from this list, the answers are not provided. You still have to go through an MP’s office to request them using the Sessional Paper number. Here’s the contact information for Karina Gould, the Minister of Democratic Reform. I suggest asking her nice office staff to help you out.

The question has only the briefest of descriptions and the answer is not explained at all – just a Sessional Paper number.

The deputy director’s second suggestion was that I request the list of all the correspondence and records tracked by her office for a specific period. In my head I’m thinking, ‘that will take forever with months of extensions because they will have to review all that extra stuff I don’t even want. Why would I even bother…… oh wait…..’.  Would you agree that this appears deliberately opaque, I ask? She did not agree. “I think that’s the way they’ve always done it” says the bureaucrat. I made one last effort to find some kernel of common sense in this conversation. What about C-58? The Access to Information reform bill will soon require proactive disclosure of all ministerial briefing notes. Aren’t you planning for that, I ask? Then [when it passes] we will have to change the process, she tells me. I gave up.

C-58 has now passed the House and has gone to the Senate. Unless Parliament prorogues in 2018, the bill will pass this year and PCO will have to figure out how to identify and publish the list of briefing notes. Change is gonna come Privy Council Office, change is gonna come.



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