Playing knock-knock with Senator Mike!

Knock-knock: "Who's there?"

"Greg"

"Greg who?"

"Corporal Greg Horton, Sensitive and International Investigations, RCMP National Division - Where's the electronic trail (email/texting?)"

"YIKES!"

Senate expense scandal left no paper trail, really?
Greg Weston says access to information law isn't accessing very much these days

Greg Weston
Monday, September 2, 2013

Prime Minister Stephen Harper and his former Press Secretary, Conservative Senator Carolyn Stewart-Olsen, a member of the Internal Senate Committee that was investigating senate expenses. Their Offices are exempt from Access to Information laws. (Chris Wattie/Reuters)

The fact that the Senate expense scandal left no public paper trail in the prime minister's own bureaucracy — not an email, memo or even a sticky note — provides more evidence that the promised new era of accountability is really the golden age of secrecy.

The CBC recently reported that the Privy Council Office, the PM's public service, claimed in June that it had no documents of any kind related to the scandal nor anyone involved in it, including Harper's former chief of staff, Nigel Wright.

The federal Justice Department made a similar claim.

• Senate scandal leaves no paper trail

These responses came after requests from reporters and others using the Access to Information Act to obtain all documents relating to the Senate fiasco in the possession of the two departments.

In total, the departments responded to more than two dozen requests for documents.

In every case, the response was the same: The search yielded "zero" pages because the information "does not exist."

A subsequent request to the Privy Council Office for "all records related to the expenses of senators" finally turned up five pages of documents.

But the government is refusing to release them on the grounds they contain confidential advice from lawyers.

Why no record?

Following the CBC story, Postmedia reported it was able to access one relevant document from a third federal department, Public Works.

It is an internal memo from an access-to-information officer expressing concern that there is no information record relating to the Senate scandal.

Senator Mike Duffy, one of four senators at the centre of the scandal over expenses. (Canadian Press)

All of which is bound to leave many Canadians wondering how it is possible that not a single federal official in two pivotal departments was moved to write a single email during all these months of what is arguably the Conservatives' worst political crisis since Stephen Harper became prime minister seven years ago.

Even if that is true, it still points to a serious problem of accountability as not generating records is as much a threat to government transparency as is shredding them.

In theory, Canada's access-to-information laws are supposed to provide the media and the public with just that — access to all government information except in certain narrow cases where there are legal grounds to withhold it.

In practice, federal watchdogs have been warning for years that the act is increasingly dysfunctional, and that the Conservative government hasn't done much to fix it.

The dearth of documents available to Canadians about the Senate scandal is a prime example of so much that's broken with this particular system.

Senate, MP expenses off limits

The biggest flaw with the access act is that federal politicians continue to exempt themselves from it.

MPs and senators, and both houses of Parliament, are all beyond the reach of access-to-information laws.

Anyone is entitled to use the access act to see the expense account claims of senior federal public servants, but not the travel, hospitality or other bills charged to the public purse by MPs or senators such as Mike Duffy and Pamela Wallin.

Former Chief of Staff, Nigel Wright. The Mounties now have his records from his time in the PMO. (The Canadian Press)

Ditto for cabinet ministers including the prime minister — their offices are completely off-limits.

Harper's former chief of staff, Nigel Wright, apparently generated considerable paperwork (now in the hands of the RCMP) surrounding the controversial $90,000 personal cheque he cut to Duffy.

But not one page of that is available to the public under access laws as long as that information remains within the Prime Minister's Office, which is exempt.

So if Wright sent Duffy an email about the payment, that correspondence would be exempt from public scrutiny at both ends.

Then there is the growing problem of empty files where, like the Senate-scandal information the CBC requested, a printed record officially "does not exist."

For years, federal information commissioners have been calling, to no avail, for new regulations that would make it mandatory for government officials to generate records of their activities.

Instead, there is much evidence that the bureaucracy and political staff are increasingly conducting their business verbally without retaining notes, often exchanging correspondence through private email addresses and digital systems that are largely untraceable.

System in crisis

It's possible that some of the Senate-related documents we were after did exist, but were destroyed or hidden to prevent their release.

The Access to Information Act provides penalties up to two years in jail for destroying, altering or concealing government documents. But no one has ever been tossed in the slammer for that, and critics say the penalties simply aren't taken seriously.

In 2006, the newly elected Stephen Harper government rode into office promising a complete overhaul of the access laws. More specifically, it undertook to implement the recommendations of then information commissioner John Reid who warned the access system was in crisis.

Instead, the government ditched Reid as commissioner, and shelved his recommendations.

Three years later, Reid's successor sounded the same dire alarm, calling the state of the access-to-information system "grim."

Then information commissioner Robert Marleau reported that in spite of the Harper government's cornerstone pledge of open and accountable government, "there is less information being released … than ever before, and that is alarming."

Like Reid, Marleau issued a widely praised report with a dozen specific recommendations to rescue the access system. And, as with Reid, the government ignored Marleau's report until the information commissioner quit in apparent frustration.

Marleau's successor, the current information commissioner, Suzanne Legault, has been ringing the same bell, warning that the public's essential right to government documents "is at risk of being totally obliterated."

Like her predecessors, her pleas are largely being ignored by the Harper government.

The Supreme Court once stated: "The overarching purpose of access to information legislation is to facilitate democracy by helping to ensure … that politicians and bureaucrats remain accountable to the citizenry."

If Canadians ever find out the truth about the Senate scandal, it almost certainly won't be through their legal right to access government documents.

So far, about all that's holding the Senate and Harper administration accountable are Mounties armed with warrants.

National Affairs Specialist Greg Weston is an investigative reporter for CBC and a regular political commentator on CBC Radio. As a national affairs columnist based in Ottawa, he has afflicted governments of all stripes for over three decades. His investigative work has won awards including the coveted Mitchner Award for Meritorius Public Service in Journalism. He is also the author of two best-selling books, Reign of Error and The Stopwatch gang.