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

Introduction

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.¹ 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 Marx² calls “dirty data” produced by policing, national security, and intelligence agencies.³ Dirty data represent “information which [are] kept secret and whose revelation would be discrediting or costly in terms of various types of sanctioning.”⁴ 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. Most of the information that we obtain through ATI falls in between, being neither subject to extraordinary concealment efforts nor deliberately released. However, we are particularly interested in the “dirty data” texts we can get at and what these tell us about security, policing, and government practices, precisely because scholars have a tendency to focus more on front-stage texts. The texts we get at with ATI are artefacts that offer a window through which researchers can partially view the backstage⁵ of government. Backstage texts take many forms, including memorandums of understanding⁶ between organizations, emails between government employees, prepared scripts for spokespersons, and every other electronic file or bit of paper imaginable. The results of ATI requests can also help reveal the processes behind the creation of texts, allowing researchers to develop an understanding of the networks of agencies and chains of decisions that underlie official discourse. Yet, as we explain below, the right to request records does not guarantee access to information.

The outdated nature of the federal ATIA and the limitations of the ombudsman Office of the Information Commissioner contribute to the near-unanimous impression that Canada’s ATI regime is deteriorating and has “fallen behind” that of other parliamentary democracies.⁷ Barriers to ATI abound. Some barriers are endemic to the information management practices of bureaucracies, while others are reflections of an overburdened ATI regime, and still others are the result of political interference. Civil servants sometimes destroy texts before they can be requested, or simply do not produce proper documentation.⁸ ATI coordinators may impose steep fees, significant delays, or disclose heavily redacted documents.⁹ Therefore, access must be skillfully brokered.¹⁰ This brokering process can also become an object of analysis, insofar as the textual trail produced in response to one ATI request can subsequently be located and analysed using ATI. This reflexive approach is necessary to understand how government agencies manage information; reflexive use of ATI is also indispensable to becoming better at the brokering process.

In the remainder of this article, we elaborate on the lessons learned in brokering access to government records. We begin by conceptualizing the ongoing production of texts inside government agencies as a dynamic field of organization and contestation, which we refer to as the live archive. We then discuss access brokering as an interactive process that is influenced by a number of factors associated with law, politics, and information management practices. We conclude with remarks on ATI as a methodological resource for socio-legal research, drawing on our experiences studying policing and security in...