Government Information in Canada/Information gouvernementale au Canada, Number/Numéro 17 (March 1999)

Journalism and the FOI Laws: A Faded Promise (1)

Andrew Osler (2)

When federal freedom of information legislation passed into law in its first awkward and limited form in June of 1982, it was heralded by many journalists and at least the more optimistic media watchers for what seemed at the time to be two excellent and related reasons.

It was anticipated (indeed assumed as a given) that journalists of all media would seize upon the legislation, opening windows in their own craft, and thus give new vitality not only to their coverage of our national business in Ottawa, but by extension to their coverage of all public affairs.

It was, secondly, also assumed that such a journalism might quite radically sharpen public attention, and open government to much fuller dialogue with the governed. Ged Baldwin and Stanley Knowles (Tory and socialist MPs that respectively they were, but comrades across the floor) had been painting such optimistic visions in the House since the mid-1960s. And Joe Clark in a seminal speech in 1978 (if there were such a thing as a Canadian equivalent to the Federalist Papers, then it would be included) set the style of the thing with these words:

What we are talking about is power -- political power. We are talking about the reality that real power is limited to those who have facts. In a democracy that power and that information should be shared broadly. In Canada today they are not, and to that degree we are no longer a democracy in any sensible sense of that word. There is excessive power concentrated in the hands of those who hide public information from the people and Parliament of Canada. (3)

Unfortunately (as Alasdair Roberts so clearly attests in his report of research which has stimulated the generation of these ancillary commentaries) the dream has never been fulfilled. The original legislation of 1982 contained exceptions wide and broad enough to drive large trucks through them, as one disappointed editorialist put it at the time. Among other disappointments, all cabinet documents, gapingly defined as including "discussion papers containing background explanations, analyses of problems or policy options, cabinet agendas and minutes, communications between ministers, briefing papers and draft legislation" remained shut away, to be released only at the discretion of the Clerk of the Privy Council, or ministers themselves. In fact the bill was so wasted by the time it was given third reading on June 28th, that the NDP, led in the House in this instance by their then Justice Critic, Svend Robinson, voted against it arguing that the FOI legislation, along with the its related Privacy bill, was "useless and even more damaging than no bill" at all. For their part, the Conservative official opposition reluctantly voted in favour, but promised changes as a first priority when they returned to power. (4) Such changes did come, the Liberals themselves making some significant ones before they fell to the Conservative onslaught of 1984. It was, nonetheless, a bad and grudging start.

Perhaps simply caught up in the general disappointment and frustration of those early days, but perhaps as well for reasons much closer to home, Canadian journalists never really seized the opportunity that even the awkward original legislation provided. Nor, for that matter, have they used with any evident enthusiasm the much better legislation which followed and which, in time, arrived in the provinces as well.

The hoped-for processes of vitalization in which journalism was seen by many as being in something of a symbiotic relationship with government--the FOI and Privacy legislation providing the catalyst--have simply not developed as anticipated. And this may be one important reason why Professor Roberts has observed what amounts to recent atrophying of official support.

It is true, as one contributor to this set of papers has put it, that "hardly a week goes by without a (news) story based on access documents," but that's in fact a very modest number number. Actually, journalism accounts for about 10% of federal FOI applications, by any measure a much more modest utilization than anyone might have anticipated at the outset back in 1982. The fact is that while the FOI provisions have been used, heavily at times, by scholars and by companies with commercial interests of one sort or another, and by individuals (perhaps as often as not interested in the privacy provisions), the legislation has not become the well-used journalistic tool it was assumed would be the case.

There are several reasons, the first being that, despite claims of investigative initiative, by far the greater part of journalism has to do with the ordering and sorting, often the interpreting, of publicly available information in the public forum. When secrets are revealed, it is almost always because a journalist happened to ask the right question in an interview, and an official chose to respond. Thus the "exclusive" or "scoop," as it is still occasionally called, is born. But revelations forcibly dug from unwilling bureaucratic obscurity are very rare. When they occur, as often as not it is because someone inside the establishment wishes it so. When Global Television reporter Doug Small went on air in April 1989 with details of a budget then Finance Minister Michael Wilson intended to present in the Commons the next day, it was only because a disgruntled civil servant had virtually forced a contraband copy of the budget document upon him.

Similarly, though on a much greater scale, when Carl Bernstein and Bob Woodward of the Washington Post guided us into the Watergate morass, it was largely due to the fact that they, too, were guided step by step along the way by the mysterious inside tipster still known to history only by his Deep Throat sobriquet.

Neither of these in any way represents the sorts of information that would be forthcoming even if journalism used FOI legislation much more aggressively, but the point is made that the concept of investigative journalism is really more myth than reality, and that the natural content of journalism is information made public by others. Journalists, in fact, ordinarily become rather uncomfortable in any other situation.

This writer has quantitatively analyzed journalism content for its sources on a number of occasions, and has invariably found indicated sources other than those readily and publicly available to be very rare. In analysis of environmental information in the Globe and Mail during a six-month period in 1987-89 (fairly early on in the FOI era when one might assume that a patina of novelty might still be present), a total of 117 news items were identified and, of these, fully 85 were generated from government news releases, media conferences, and other routinely open government sources. Another seven came from industry sources, and 24 from accounts of events, news releases, interviews, and so forth from a general category of community and interest groups of various kinds, and university research sources. One item fell into a miscellaneous "Other" category, non-governmental in its sourcing. (5)

A similar but more broadly based study commissioned by the Attorney General for Ontario of the content of the Globe and Mail and the Toronto Star in a sample of six editions each in January and February of 1989, revealed a similar overwhelming reliance on readily available public information. In this study, 166 items were identified as having governmental sources in the Globe and Mail; 163 in the Star. Of these 133 were categorized as Routine (news releases, press conferences, media events, and so forth) in the Globe; 115 in the Star. In the Globe a further 33 were respectably categorized as Enterprise items, and 44 were so categorized in the Star. For the purposes of this research, Enterprise simply meant that an interview or similar initiative had been undertaken by the paper, but always within the realm of readily available public information. There were four government-sourced stories in the Star where sources were intentionally not revealed, but there was no indication that these were in any way FOI-derived. (6)

Journalism in its various media guises has enjoyed a certain romance since the Watergate years, which tends to leave it with public images of investigative whistle-blowing activity as routine. This is simply not the case; nor is it the case that journalists are much given to moving away from sourcing their work in readily available public information. It is not that good work is not done. The well-prepared interview, the well-researched question at a press conference, do remarkably useful public service in sending the spin of the day off kilter and out of control. But it is work that has much more to do with sorting, interpreting, editing, and explaining than it has to do with deep investigation in dark and dangerous places.

Having said all of this, one is obliged to agree with those who argue that evidence of rich journalistic use of FOI provisions would indeed be encouraging. There is no question but the best of journalism, as the intent has been to so describe it here, could be enhanced--indeed, a whole dimension could be added--if greater use were made of government resources available only through the access tool.

There are reasons (other than the primary reality that journalism mainly deals with readily available public information) why this is not happening, the most important being that all news is perceived in the rigid conventions of the journalistic tradition as being immediate in time and place. Yesterday's information is old, and no longer reportable because of that; thus there simply is no way that today's story can wait out the months that an access application may require. Roger Bird has noted that only 10% of all federal access applications come from the news business, and adds that particularly where the Privy Council Office is involved requests typically fall into a black hole "usually for at least 120 days--an eternity in a daily news operation". (7)

Then, in this admittedly rather arbitrary list of problems in journalism's relationship with FOI legislation, there is a question of source legitimacy. All news is bound by what John Hulteng has called the "official sources syndrome," which means in essence that nothing can be deemed to have happened for purposes of publication unless it has an official imprimatur. A fire is not news until the fire marshal places a value on damage; the Canadian loonie is neither sick nor well until the Governor of the Bank of Canada proclaims upon its health; and in Toronto a winter storm that might bore most other Canadians becomes a national disaster when Mayor Mel Lastman declares it to be such and calls in the army. There is an up-front quality to this sort of news validation that does not lend itself very well to a seeking out of sources buried in government archives.

Finally, there is simply the question of journalism being frequently overwhelmed by both the volume and sophistication of the information it is routinely asked to process. In the same article where he gave us the concept of the official sources syndrome, Hulteng wrote:

Newsgathering is often a tedious, drawn-out process of probing, questioning, and digging; the reporter must overcome buck-passing, evasiveness, 'no-comments' and the constant pressure of deadline. In the circumstances, it is not surprising that many reporters come to lean on dependable, accessible founts of news--press secretaries for high officials, department handouts with the news already predigested and polished (and usually slanted a trifle or a lot) and visible spokespersons for government agencies. ... Reporters can make the rounds of the official sources, confident that all that is necessary is to turn the spigot and the news will flow. (8)

All of which brings us back more or less to where this discussion began. Perhaps because the news media are perceived as creating the national agenda, and indeed do so, and given the symbiotic relationship which politics and government share with the media, then it becomes logical that where there is media neglect, then perhaps as well there will be political neglect. The media clearly have neglected FOI provisions wherever they have been enacted in this country, and perhaps our politicians have taken their cue in the matter from the national agenda, to the extent that it receives its best expression in our media. All of this is conjectural, but deserving of serious consideration.

Years ago when our federal FOI legislation was making its first awkward appearance, this writer was asked to comment in the Southam press. He wrote:

If it's to work, (and always assuming the mandarins and ministers really want it to work), this new Access Act may demand more changes in the style and habits of working journalists than it will of politicians and bureaucrats.

Hold the champagne. (9)


[1] May be cited as/On peut citer comme suit:

Andrew Osler. "Journalism and the FOI Laws: A Faded Promise." Government Information in Canada/Information gouvernementale au Canada No. 17 (March 1999). []
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Andrew M. Osler
Associate Professor (Journalism)
Faculty of Information and Media Studies
The University of Western Ontario

phone: +519-679-2111 Ext. 6669
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[3] Hansard, 22 June 1978.
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[4] Roland Gaudet, "Freedom of Information Comes to Canada," CDNPA Newsletter, June/July, 1982.
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[5] Andrew Osler, "Images of the Environment: The View from Canada's National Newspaper," an invited paper presented at the Ninth Annual Canadian Studies Conference, Bemidji State University, Bemidji Minnesota, 14 April 1989.
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[6] Andrew Osler, "Routine and Hidden Sources: A Content Analysis of the Globe and Mail and the Toronto Star," a report of commissioned research prepared at the direction of the Attorney General for Ontario, May 1989.
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[7] Roger Bird, The End of News (Toronto: Irwin Publishing, 1997), 94.
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[8] John Hulteng, The News Media: What Makes Them Tick (Englewood Cliffs, N.J.: Prentice-Hall, 1979), 52.
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[9] Andrew Osler, "Access Law: A Weak Light for Dark Corners," The Windsor Star, 27 August 1982.
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