The Trudeau government has made good progress on their promise to unmuzzle federal scientists. One of their first acts was to eliminate Harper government policies that enabled muzzling. Last December, they also agreed to contract language with PIPSC, the union that represents federal scientists, to formalize scientists’ right to speak publicly about their research. These were important steps forward for which the federal government should be commended.
While the new agreement protects scientists from being silenced, it does not defend the public from political interference in scientific communications. This issue has not receded – as I shall explain – despite the dispatch of the Harper government in 2015. Legislative action is needed, and in this post I argue for changes to the Access to Information Act.
The PIPSC Agreement
The new contract between the federal government and PIPSC states that
“Employees shall have the right to express themselves on science and their research, while respecting the Values and Ethics Code for the Public Sector adopted on April 2, 2012, without being designated as an official media spokesperson.”
The language contractually guarantees a scientist’s right to communicate with the public. This is a terrific advance, because any abrogation of this right will be legally grievable. So long as the contract is in place, the federal government – including future federal governments – will be beholden to it.
While the clause might be eliminated in future contact negotiations, it seems to me that it would be politically difficult to undo. A contract cannot be unilaterally rewritten with an omnibus budget bill, nor through any other measure the federal government may wish to take. Contractually guaranteeing a scientist’s right to speak is the first line of defence in ensuring unfettered scientific communications.
PIPSC’s new contract, however, will not deter a government intent on the blanket denial of access to scientists. Having a right to speak is quite different from having the opportunity to do so, particularly given a bureaucracy accustomed to thwarting access to information.
National Observer reported an incident last December that is consistent with this view. Their request to speak to a federal scientist about evidence from an environmental assessment was rejected by a communications advisor for the Canadian Environmental Assessment Agency. PIPSC president Debbie Daviau confirmed for National Observer that their new contract does not necessarily require federal communications staff to find scientists for journalists to speak with.
Science Minister Kirsty Duncan has recognized the ongoing difficulties in the federal service, telling National Observer that
“Culture change is long and it’s hard, so in August, myself and Minister Scott Brison (president of the Treasury Board) wrote a joint letter to all ministers and to all departments to remind them of the change in policy”
Although I agree with Duncan’s assessment, it seems unlikely that reminding bureaucrats about the policy change will be enough. It would be better to enshrine the public’s rights in law.
The Muzzling Investigation
Changes in law are also needed given that the legality of muzzling remains unclear. The Office of the Information Commissioner (OIC) began an investigation into the Harper government’s communications practices on 27 March 2013 following a complaint made by Democracy Watch and the University of Victoria’s Environmental Law Clinic. The investigation has been in progress for 1443 days.
I periodically contact the OIC to request a status update. In response to my most recent query (16 January 2017) they responded “The investigation is ongoing”. When I pressed for more information they replied
“Because the investigation is ongoing, we cannot comment until it is closed and reported to Parliament in a special report or the OIC’s annual report.”
Given the length of the investigation – it will soon reach the four year mark – I think it is fair to say that the legality of muzzling is unclear. The Trudeau government should address this defect in the law.
Another issue not covered by the PIPSC agreement is attribution consent. When a request for an interview with a federal scientist is made, media spokespersons will sometimes respond with a written statement. There are cases where statements have been attributed to scientists without their agreement.1
Attribution without consent affords the government opportunities to politically spin a scientist’s words, and cannot be tolerated. The integrity of the information communicated by the federal government should be an important concern of information laws.
The Access to Information Act
The most natural place to make changes in law is in the Access to Information Act. The purpose of the Act is
“…to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public…”
While the Act formally governs access to documents, the plaintifs to the OIC in the muzzling case argued that it has implications for public communications as well. They pointed out that muzzling may
“… hamper the ability of the public to know and identify what government information and records actually exist related to issues of public importance. Without such knowledge, the public may not be able to request or obtain relevant records…”
They also note that the effect of muzzling of scientists is to
“… undermine the s. 2 ‘principle’ that government information should be available to the public.”
The Act is widely viewed to be in need of reform, and a full review is planned for 2018. The Information Commissioner, who has been a consistent champion for the public’s right to know, proposed a series of reforms to Parliament in 2015. An outline of expected near-term changes is given in the federal government’s Plan on Open Government 2016-2018.
While the proposed changes are welcome, none of them address the problems identified above. The federal government should use the opportunity afforded by their review to strengthen the lines of communication between the federal service and the public they serve.
There are a series of recommendations that follow from the discussion above that I hope will be considered as amendments to the Access to Information Act.
Recommendation 1. That the authorship of all documents provided, published or communicated by the federal government be clearly stated.
The purpose of this recommendation is to prevent documents from being attributed to a single author without their consent. In addition, this should alert recipients when a document has been modified and present them with an opportunity to obtain the original or request an interview.
Recommendation 2. That the revision history of documents provided, published or communicated by the federal government be distributed with the document in question.
I am aware of cases where media relations personnel have reused old text from a scientist. Scientific assessments change as more data become available. Including a revision history will better help the recipient understand the timeliness of the information. It will also prevent the improper attribution of outdated information.
Recommendation 3. That all authors of documents provided, published or communicated by the federal government be normally available for timely public comment on their work.
This clause is intended to ensure that scientists (and other authors) are available to explain their methods and findings. Formal scientific communications (including but not limited to journal articles and environmental assessments) are not particularly accessible to members of the public. Interviews with scientists are essential if the public is to have a full understanding and appreciation of their conclusions.
I say that authors should “normally be made available” because there may be cases where such access does not serve the public interest. There is also a need to address vexatious requests. So, in the interest of proper oversight, I have one final recommendation:
Recommendation 4. That an appeal to the Information Commissioner may be made in cases where the public has been denied access to an author.
The administration of President George W. Bush also exerted political control on scientific information. Of particular interest is that an appointee involved in the effort gave inappropriate direction to have NASA Web pages revised. He later resigned, and indicated in an interview that his attempts were unsuccessful.↩