Public Access to Government Information

Our society functions to a very large degree on the basis of trust and faith. Every day many of us drive down local roads and highways and trust oncoming vehicles driven by complete strangers will stay on their side of the road. The margin of safety – a few feet, or the width of a painted yellow line – is very slim indeed, considering what’s at stake. But trust makes it infinitely wider, so much so that we rarely if ever think of the catastrophic possibilities if two vehicles meet head on at the combined speed of 160 km/hr. 
We also live in a technically very complex world and depend on the expertise of others to keep it running safely and dependably. We trust there are sufficient numbers of appropriately skilled or expert people working in places where vital services are provided and/or lives are at stake, like hospitals and nuclear power plants. We even trust there are layers of expertise, so if something goes amiss at one level, safeguards at another will prevent a catastrophe. And, a little naively perhaps, most of us still trust government also has appropriate experts in place to keep an eye on things and look out for our best interests.

So, we trust, we believe, and we’re able to take that leap of faith that helps us get on with our lives without worrying the sky may be about to fall.

But accidents happen, no one is perfect, and, as the great Scottish poet Robert Burns once famously wrote, “The best laid schemes o’ mice an’ men / Gang aft a-gley.” It might be one sudden, tragic event that shatters our trust and faith in the order of things; or it might be an accumulation of unpleasant and troubling circumstances and events, one thing leading to another, with no apparent reassuring end in sight, that gradually eats away at trust and faith in “the system.”

Put yourself, for example, in the place of a young mother of three young children who went for a walk one day in September 2002 along the Lake Huron shore near her Inverhuron home. What Jennifer Heisz saw that day, and what many other people in the area saw about the same time, was an extraordinary number of dead fish and waterfowl washed up on local beaches. The Ministry of Natural Resources, Ministry of the Environment, and Bruce-Grey-Owen Sound Health Unit local offices received numerous calls from concerned people. Heisz contacted the Natural Resources and Environment ministry offices in Owen Sound. She wondered if there had been a manure spill upstream that had found its way to the lake, or a discharge of pollutants from the nearby Bruce Nuclear Power Development. The Natural Resources ministry picked up specimens of the dead wildlife and sent them to a laboratory at the University of Guelph for cause-of-death testing. Two of the 12 specimens tested positive for a type of botulism that has become increasingly and periodically prevalent in recent years in parts of the Great Lakes. Dr. Doug Campbell, pathologist at the Canadian Cooperative Wildlife Health Centre, decided, all things considered, type E botulism was the most likely cause of death. And that’s what the Natural Resources ministry told the public at the time. But Heisz was disturbed by the ministry’s unwillingness to order other toxicity tests.

She went to the Environment ministry’s Internet web site to look at its “environmental compliance reports” for a record of spills or discharges of chemicals or other pollutants exceeding provincial regulatory limits. There were no incidents reported for 2002 at the time. But there were a few things in earlier years she wanted more information about, so she called the district office, fully expecting to be able to get it. Instead she was told she’d have to make a formal request through the ministry’s Freedom of Information (FOI) office.

That had the effect of making her even more worried about what was happening in the waters a few hundred metres from her home. Otherwise, why should the information be so hard to get? Heisz decided she wasn’t going to let her children go anywhere near the shore until she knew. She sent her formal request for information to the FOI office in January 2003. She asked for a lot; for example, “all reports, briefing notes, memos, e-mail correspondence, plans, documents, specifications, policy statements, faxes, meeting notes, and other such information” in ministry possession from any source that could shed light on the details of any spills, excessive discharges or regulatory violations involving any operations at the Bruce nuclear plant. And that was just for starters. It must have seemed like a major fishing expedition to the provincial bureaucrats.

About a month later Heisz was shocked when the FOI responded and told her she would be charged an estimated $4,995 to process the request.

“I obviously could not pay,” Heisz said in a recent interview. “This information should be freely available to the public,” especially to people who live near water and beaches where children swim, she said. “I’m concerned about the health of my family. That’s what spurred me to take this further.”

Since then Heisz has spent many frustrating months negotiating a reduction of the fee in return for reducing the scope of her request, getting the provincial Information and Privacy Commissioner’s (IPC) office involved in mediation efforts, and waiting for information to be released.

In February Heisz sent a letter to the new Liberal government’s Environment Minister Leona Dombrowski complaining about “your ministry’s mishandling of information requests and the artful blocks and run-arounds I have endured in trying to access documents.”

She has since received partial disclosure of the information she wants, and is currently in the process of preparing her fifth appeal to the IPC in hopes of getting more.

Whether or not the Bruce nuclear plant is polluting Lake Huron, specifically in the vicinity of Inverhuron, is not the issue here. Bruce Power, the company that operates the nuclear reactors and produces power at the site, strongly defends its public health and safety and environment record since it took over those operations from Ontario Power Generation. “If there is anything that would be of public interest and public concern we’ve always been open, forthright and honest about anything that happens,” said spokesperson Steve Cannon. Bruce Power operations had nothing to do with the wildlife die-off in 2002, he said.

The issue here is about public trust and faith in regulatory systems designed to protect public health and the environment, and the role Ontario’s access to information process should play in maintaining confidence in them. No one in government should be at all surprised when people who live beside a nuclear plant are especially anxious for reassuring information when something extraordinary happens in the environment they and their children live in.

There are signs Ontario’s present government is looking for ways to open, not close doors when the public comes knocking. An Environment ministry spokesperson said this week Minister Dombrowski has asked staff “to prepare a plan to provide the public with the information they need to judge industrial and municipal compliance with Ontario’s laws. She has made it clear she would like the ministry to come up with a plan for improved access,” he said.

That’s a step in the right direction.

Originally published in The Sun Times in 2004.

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