Transparency and accountability spurned

Page 6

DIAND blacks out critical information in expert witness payment

Documents obtained through an access to information request reveal that an academic retained by the Department of Indian Affairs and Northern Development (DIAND) has been paid more than $321,000 for a contract that began July 10, 1999 and will end Oct. 31.

That would work out to an average of $8,025 per month for the 40 month's work, or approximately $2,000 a week, if the academic put in a full work week every week of the contract.

The breakdown, of course, would be much different if the work occupied only part of the academic's time. But the sections that would show exactly how many days of work were performed during that 40-month period have been blacked out by DIAND bureaucrats.

Dr. Alexander von Gernet, an adjunct faculty member of the University of Toronto's archeological anthropology department, was contracted to do research and research analysis work for the government out of his own office.

The contract was with two sections of the Indian Affairs bureaucracy. Susan Seville, manager of the residential schools unit of DIAND's litigation management activities branch, and Susan Phinney, manager of the research unit of the litigation management activities branch, signed the agreement on behalf of the Crown.

The contract is a "standing offer" agreement, meaning DIAND retains von Gernet and can "call-up" his services on an "as and when required" basis during the time period covered by the contract.

Documents reveal that von Gernet's most recent "call-up," the ninth in two years, was on July 10, 2001. Pay-out for his services on this call totaled of $82,390, bring his earning to date to about $278,700. Only about $42,000 remained to be earned of the $321,000 contract in the final 14 months.

The academic has subsequently testified on behalf of the Crown in the Samson Cree Nation's oil and gas lawsuit. He spent several days on the stand this September.

In order to determine exactly how much von Gernet was paid per hour or per day by DIAND, it would be necessary to know the number of hours or days he actually worked. There are lines in the contract that contain that information, but DIAND's access to information and privacy officials blacked out those lines before releasing copies of the contract.

The information is considered secret under Section 20-1, b) and c) of the Access to Information Act. Section 20-1 b) states that the government shall refuse to disclose information that contains "financial, commercial, scientific or technical information that is confidential information supplied to a government institution by a third party and is treated consistently in a confidential manner by the third party."

Section 20-1 c) states that the government shall refuse to disclose "information the disclosure of which could reasonably be expected to result in material financial loss or gain to, or could reasonably be expected to prejudice the competitive position of, a third party."

Native leaders have long complained that DIAND pays huge sums of money to entice educated people to testify against Native claimants in court. They maintain that the higher the amount paid by the government, the less likely it is that the expert witness will be completely neutral or unbiased. They believe the large sums offered are a subtle inducement to see things the government's way.

Professor Alisdair Roberts is a Canadian who runs a research centre dealing with contemporary challenges in governance at the prestigious Maxwell School at Syracuse University in New York State. He has a personal interest in freedom of information laws and maintains a Web site (faculty.maxwell.syr.edu/asroberts/foi/track/) that posts information requests filed with Canadian federal government departments.

Since the Access to Information Act allows the government to keep the exact amounts academics are paid by the government a secret, Professor Roberts was asked if he saw that as a problm.

"I've done work for government on a per diem basis and I would certainly have no objection to having my per diem rate, or any of the financial details about compensation to me for work done for government, made publicly available. Because, personally, I think it's important for accountability and I don't have any commercial interests that are affected by that. After all, I'm not a commercial actor. I'm a university professor," he said. "I do think it's particularly important for the academic community to make available the facts of relationships like these. We have a responsibility to be transparent and candid about our relationships so people can judge what we're saying."

He was asked to comment on problems he sees with Canada's freedom of information (FOI) law.

"I'd highlight three things. The first is that Canada's FOI law is much narrower than other laws in terms of the number of institutions that actually get covered by the law. It excludes, for example, many Crown corporations, like the CBC," he said. "It excludes a lot of new organizations that are being created by the government that do important work. The best, most recent example of that is the new nuclear waste management organization that was just created last spring by the federal government to decide where we were going to do long-term storage of our nuclear waste. People were asking the government to include that organization and they refused."

The fact the government has the discretion to decide what institutions fall under the FOI law and what institutions don't is another problem, he said. And there are other complaints.

"Some exemptions in the law are drafted very broadly. The way we treat Cabinet records in Canada is more restrictive than other laws. Under federal law, you have no right to Cabinet records at all and you have no right to complain if the government decides to withhold a document on the grounds that it's a Cabinet record. So there's no way for an independent officer, like theinformation commissioner, to check whether the record being withheld really is a Cabinet record. So that's a big loop-hole. It creates no effective oversight for the law," he said.

The section of the act that DIAND invoked to withhold the per diem rate is one Roberts sees as very broad in scope.

"Section 20, the one that you're bumping into is a little broader than in other jurisdictions as well because, if I recall correctly, there are parts in there that allow the withholding of information even without evidence that harm would be caused to the individual who provided the information. There's no harm test in there," he said.

The federal FOI law lacks teeth, he added.

"In newer laws, like the law in Ontario, British Columbia and Alberta, the information commissioner actually has the power to order the disclosure of information if he thinks it's being improperly withheld," he said. "Under federal law the information commissioner doesn't have the power to order disclosure. He can only make recommendations."

Canadian Alliance MP John Reynolds has been working on government accountability issues for his party. He sees evidence of possible over-spending in the government's reluctance to reveal per diem rates.

"I think that's something we could appeal to the privacy commissioner," he said. "And say, 'Don't we have a right to know that so and so was paid this much, but the lack of the number of days means we don't know if he was paid $300,000 a day or a thousand dollars a day?' It's something we should question anyways."

He said there was no way to know if there was any abuse of the system without disclosing how many days were worked.

"If you look at the way they paid off all those advertising contracts in Quebec, I mean, they got paid $333,000 and there wasn't even a show. That's what gives us the right to ask the questions on these other issues," he said.