Welcome to back to Unwritten Histories! As promised, this week we have a special guest post by Dennis Molinaro. You may know him better as the Canadian historian who uncovered top secret documents showing that the federal government approved wiretapping on Canadian citizens during the Cold War. Being something of an expert on the subject, he has kindly agreed to provide a short guide to submitting ATI Requests, or “Access to Information” Requests, something all historians should know! Enjoy!
Dennis Molinaro holds a PhD from the University of Toronto and his research focuses on the historical use of emergency powers and their effect on society. He is currently completing a second book on Canada’s role in the Five Eyes intelligence alliance and its covert Cold War wiretapping programs. He teaches at Trent University.
As a historian that focuses on emergency law, security, surveillance and radicalism, I have had to rely on the Access to Information Act (ATI) quite often. I discovered the Act early in my career (4th year undergrad) when I wanted to use primary sources for a paper I was doing on international relations in the Cold War. I just happened to be commuting back and forth from Ottawa to the Greater Toronto Area during this period and so I had access to Library and Archives Canada (LAC). My graduate research years relied more heavily on the Act when I started looking into the subject of the deportation of political activists from Canada. This early experience was invaluable because it taught me the basics of using the Act and that the process takes time; as a result, I knew to file plenty of requests as soon as I settled on a research topic for my dissertation, even though I wasn’t sure yet what my main thesis would be. Not everyone will have to deal with the ATI and if you’re one of those that have never had to use it, consider yourself fortunate. But there just may come a time in your career when you must face the ATI, and when that time comes, I decided that it would be worth putting together a short guide for those that have never dealt with this sometimes intimidating and nearly always frustrating process.
What is an “Access to Information” Request?
To put it simply, it’s a request for information from a government institution such as an archive, or a department like Global Affairs or National Defence. Access requests are often referred to as “formal” requests because you are invoking the ATI Act to compel the government to give you information they may want to withhold. This is opposed to “informal” requests, where you just ask a government institution for information. While the Act is meant to give citizens access to government information that is being withheld, there are a number of exemptions the government can rely on to black out or redact information even if they agree to release it to you (such as to protect national security).
Under Which Circumstances Should An ATI Request Be Made?
ATI requests can be most useful when you’re attempting to find information that has not been released publicly by the government. However, whether or not you should use them depends upon which organization you are working with. In most cases, unless you are working with LAC, you should always file an ATI request.
When it comes to LAC, however, you may need to do an ATI request if any of the files you have requested are designated as “closed.” For instance, much of the information I relied on for my research was “closed” at LAC. How do you know if a file is “closed”? You can find this out easily by consulting LAC’s online reference information for any given file.
However, “closed” doesn’t mean that the information is inaccessible. Rather, it means that if you ask to see “closed” documents, they will first be reviewed by the institution prior to deciding whether or not you can view them.
As for why things may be closed, the answer is at once simple and complicated. The default approach in Canada used to be that whenever a file entered the archives it would be “closed.” This is unlike many other countries, where the default is “open.” While this has recently changed, many files may still be closed simply because they have never been requested, and hence have never been reviewed. Files may also be considered “closed” because they were once considered secret and they haven’t been re-evaluated. Finally, a file can still be “closed” or “restricted,” because there are some parts that may still be considered secret by the government.
After a review, staff may decide to a) give the whole file to you b) give you some of it and withhold some or c) deny you access.
If “b” or “c” occurs and you don’t think you should be denied access or think the information should not have been redacted, then you can file an ATI.
I would suggest that when you are dealing with files concerning intelligence, security or even international relations, just make an ATI request straight away. Normally, when it comes to these topics, information will be withheld unless the file is already completely open (like when a file is more than 100 years old, though not necessarily).
How Can You Make an ATI Request?
Most institutions have a form that you can fill out. If not you can write them a letter. In that letter you must state “I am requesting information under the authority of the Access to Information Act,” or use similar language. Otherwise, you’re not actually invoking the Act and they don’t have to give you anything. You also need to state that you’re a citizen of Canada. All you need to do to make a “formal” request (invoking the Act) is to just state that you’re doing it either through a prepared form or by stating so in a letter. It also costs money, five dollars, usually paid by cheque to the Receiver General of Canada.
Don’t limit yourself to LAC. Other government institutions may have the information you’re after. The only way to know is ask. If you think they might have quite a bit, ask for a list of what they have. If it’s not an archive you’re speaking to (with an online finding aid or list of records), then ask for a list of records in your access request; later on, you can be specific. Provinces and territories have online pages and forms too. You can always send in a request by mail too, or even fax!
You can make requests online as well but the process is a little hidden. If you want to make an online request to LAC, on the home page you’ll find a tiny hotlink on the word “transparency” next to Terms and Conditions. To save you the time of trying to find transparency (no pun intended) and navigate the maze to get to the request page, just use this link to access the instructions and forms needed to submit a request online.
To see a list of other institutions that accept ATI requests online, go here.
What happens when you make an ATI Request?
Institutions have 30 days to give you an official reply that they received your request. If you don’t get one, your request likely wasn’t processed or your request has been refused. Be sure to follow up with an institution if you don’t get a reply, in order to figure out what happened. For instance, you may not have received a reply because they have not processed the request or because you have been rejected. If after following up you still don’t get an answer, that’s an answer — the institution is rejecting your request. If you get a reply, the reply will come by regular mail and you’ll be assigned an ATIP number (keep this number and all correspondence whether by regular mail or email). ATIP staff at the institution are the ones who will process your request and they might ask you for more information.
Here are some additional tips to keep in mind when filing an ATI request:
Some institutions will do their best to force you to be specific even when you can’t. If you can be specific and know what you’re after (and there’s a finding aid), great, go ahead and be specific. But you may encounter a situation where you don’t have specifics. In this case, despite what an institution tells you, phrase your request in broad language. The Access to Information Act is legislation that allows you to request information, not just records, and the institution should help you get that information, not try to force you into requesting something you don’t want or need.
If the institution asks for a hold on your request, say “no”
Sometimes an institution may tell you they want to put a “hold” on your request. There are several reasons for this, but sometimes it can be a way to stop your request from going forward and a way of putting your request into bureaucratic purgatory. Generally, you should refuse this, unless it is because the ATIP staff really doesn’t know what you want. In such cases, try and work with them to figure out what to do. If they need more time, an extension is something they can request. In some cases, you can agree to a hold if it’s so they can search (or for you to search) but if so, always follow up every so often for progress and always quote the ATIP number of your request in your emails. And always keep your emails and letters, as you will need them if you complain.
Expect to wait
If you’re requesting a lot of information, these things take time. Depending on what you’re after, your request may have to be sent for “consultation.” This means that ATIP staff where you made your request may be unsure if the information can or should be released or if some of it should be redacted (blacked out). The staff may send your request to another institution that should (in theory) know better. You could also, instead of making a large request, make many small ones ($5 each) which could get things moving quicker because each request is small but this can only be done if you know what you’re after. I have had the gamut of wait times assigned to requests, from three months, a year, a year and a half to ten years. That’s right, a ten-year wait time.
If you run into any problems during this process — like the institution wants way too long of an extension (ex. ten years), gives you completely-redacted material, or rejects you entirely — you have the legal right to make a complaint within 60 days of your receipt of the institution’s official decision letter (the one that tells you what you’re getting or not getting).
Before you take this step, always try and work with ATIP staff first (you catch more flies with honey). No one will believe your complaint has merit unless you tried to do your best to work with staff to get somewhere. This exchange may break down, or you may not get anything, or not agree with the redactions that were made (the Act contains exemptions that staff can use to legally redact information).
If that doesn’t work, then the next step is to take your complaint to the Information Commissioner. The Commissioner’s office provides arms-length oversight of the process and ensures everyone’s rights are respected. They can help mediate, and in rare cases, go to court with the government to release material.
How do you make a complaint? You will need to compile a complaint package. This package should contain all correspondence you had with the institution and a copy of the official decision reply letter they gave you (the last letter you get). You should also provide a short essay. Telling the Commissioner’s office that you just weren’t treated nice or the system is unfair won’t get you far. Instead, craft a mini essay, arguing how and why your complaint wasn’t handled correctly. Where possible, draw on the law to support yourself.
After you submit your complaint package, you will be assigned an investigator who will look into your case. It can take months before one is assigned to you, sometimes longer. Two good sources for this are the Commissioner’s website which explains the exemptions you may face and how the office’s investigators adjudicate things. http://www.oic-ci.gc.ca/eng/inv_inv-gui-ati_gui-inv-ati.aspx
Another good source is an article written by Dominique Clément (“’Freedom’ of Information in Canada: Implications for Historical Research,” Labour / Le Travail, Issue 75, Spring 2015, pp. 101-131) which explains the ATI in detail and has extensive quotations from a well-known case — Bronskill v Minister of Canadian Heritage  Citing from this case will help bolster your position, especially if you are an historian.
What if the government still refuses to release information?
This can happen, though often things don’t usually go this far. But in some cases, the government will still refuse to release information even with the involvement of the Commissioner’s office. The office could go to court, but in most cases if you want to pursue things further, you will have to fight your case in court yourself and on your own dime.
Perhaps the best advice I can offer is, Be Determined and Patient. This is a system that needs to change and we shouldn’t be complacent about that as historians and academics. Redactions are left to the discretion of ATIP and consultation staff and sometimes you will find that those redactions can be heavy in one case and light in another. The process is very subjective despite all the consultations that can take place. Sometimes, government institutions can say they can’t confirm or deny they have something (the ATI allows this) leaving a researcher with no other option than to head to the complaint process, as I had to do when searching for Canada’s secret wiretapping order as well as its extension by St. Laurent. I have had “national security” and “international relations” used as reasons for information to be withheld from me even though the documents I was after were 60 years old. These problems make reform of the ATI all the more necessary. Historians don’t have deep pockets and the Commissioner’s office needs more power to compel institutions to release material. Sometimes historical information isn’t at LAC and we don’t have a clear answer why that is the case. So while reform of the ATI is important, we also should be paying attention to the state of the Library and Archives Canada Act. Archivists needs more power to acquire historical documents. Reform of this system must come, and soon. In the meantime, if it’s important to you to get the records you’re after then the most important advice I can offer is to stay dedicated and determined to see the process through. Remember it’s your government and all you’re trying to do is Access YOUR Information.
A big thank you to Dennis Molinaro for his extremely informative post! Wow, having to wait ten-years for access to documents… that makes my dissertation look like a piece of cake. :S I hope you enjoyed this blog post! If you did, please consider sharing it on the social media platform of your choice. And don’t forget to check back on Sunday for our regular Canadian history roundup! I’ll see you then!
P.S. Stay tuned later today for a special announcement….