Final Exam Monday, April 17 th, 9:00-11:30 am, RCH 307 Monday, April 17 th, 9:00-11:30 am, RCH 307...

Final ExamFinal Exam

Monday, April 17Monday, April 17thth, 9:00-11:30 am, RCH 307, 9:00-11:30 am, RCH 307 weightweight

– midterm (20%)/final (20%)...or...midterm (20%)/final (20%)...or...– midterm (15%)/final (25%)...midterm (15%)/final (25%)...– ...whichever produces the ...whichever produces the highesthighest mark! mark!

NOT cumulativeNOT cumulative– covers lectures from March 2-March 30covers lectures from March 2-March 30 thth

– Part IVPart IV

Final ExamFinal Exam

2 sections2 sections– 3 answers – 3 answers – eacheach of equal weight of equal weight– Part A – mandatory question on the NPMPart A – mandatory question on the NPM– Part B – answer two questions from choice of Part B – answer two questions from choice of

threethree

Ethics in the Public ServiceEthics in the Public Service(Cont’d)(Cont’d)

March 23rd, 2006March 23rd, 2006

Public Service EthicsPublic Service Ethics

importance of the public service ethics importance of the public service ethics regimeregime

ethics and the context of the Sponsorship ethics and the context of the Sponsorship ScandalScandal

ethics and the Gomery Recommendationsethics and the Gomery Recommendations

Ethics and the Context of the Ethics and the Context of the Sponsorship ScandalSponsorship Scandal““The problems in the administration of the The problems in the administration of the

Sponsorship initiatives were disturbing for Sponsorship initiatives were disturbing for two reasons: they revealed two reasons: they revealed a breakdown of a breakdown of ethical standardsethical standards, and they continued for so , and they continued for so long without being stopped.”long without being stopped.”

Gomery Report, Gomery Report, RecommendationsRecommendations, 10., 10.

Ethics and the Context of the Ethics and the Context of the Sponsorship Scandal (According to Sponsorship Scandal (According to Gomery)Gomery)

a breakdown of public service ethical a breakdown of public service ethical standardsstandards– adoption of private sector ethical standardsadoption of private sector ethical standards

Ethics and the Context of the Ethics and the Context of the Sponsorship ScandalSponsorship Scandal

““One expert attributed the Sponsorship scanadal to One expert attributed the Sponsorship scanadal to excesses caused by what he called a “private business excesses caused by what he called a “private business culture” or “entrepreneurialism” in the public service. culture” or “entrepreneurialism” in the public service. This attitude has replaced a “public business” standards This attitude has replaced a “public business” standards based on the public interest. In the Sponsorship Program, based on the public interest. In the Sponsorship Program, acccording to this theory, the Prime Minister and the acccording to this theory, the Prime Minister and the Cabinet, with the best of intentions, encouraged the Cabinet, with the best of intentions, encouraged the entrepreneurialism of certain public servants, who in turn entrepreneurialism of certain public servants, who in turn stopped working for and by the rules of their department stopped working for and by the rules of their department and cultviated relationships with private-sector and cultviated relationships with private-sector sponsorship companies using a different set of rules and sponsorship companies using a different set of rules and standards.”standards.”

Gomery Report, Gomery Report, RecommendationsRecommendations, , 46.46.


a breakdown of public service ethical a breakdown of public service ethical standardsstandards– adoption of private sector ethics standardsadoption of private sector ethics standards– individual self-interest of public servantsindividual self-interest of public servants



acceptance of political intereferenceacceptance of political intereference

Ethics and the Context of the Ethics and the Context of the Sponsorship ScandalSponsorship Scandal

““One legal expert spoke of the Government One legal expert spoke of the Government advertising program as having no rules or direction, advertising program as having no rules or direction, suggesting that a ‘shift to a rule-of-law culture’ suggesting that a ‘shift to a rule-of-law culture’ would shelter advertising programs from corruption. would shelter advertising programs from corruption. Such a culture would shift the balance towards Such a culture would shift the balance towards public servants’ loyalty to the rules of the public public servants’ loyalty to the rules of the public service rather than to the wishes of their political service rather than to the wishes of their political superiors.”superiors.” Gomery Gomery Report, Report, RecommendationsRecommendations, 46., 46.



acceptance of political intereferenceacceptance of political intereference emphasis on policy rather than managementemphasis on policy rather than management



acceptance of political intereferenceacceptance of political intereference emphasis on policy rather than managementemphasis on policy rather than management

– ““...the road to career advancement for aspiring public ...the road to career advancement for aspiring public servants is in the policy advisory field...” (106)servants is in the policy advisory field...” (106)



acceptance of political intereferenceacceptance of political intereference emphasis on policy rather than managementemphasis on policy rather than management failure to “speak truth to power”failure to “speak truth to power”



acceptance of political intereferenceacceptance of political intereference emphasis on policy rather than managementemphasis on policy rather than management failure to “speak truth to power”failure to “speak truth to power”

– esp. DM of PWGSCesp. DM of PWGSC

Public Service EthicsPublic Service Ethics

importance of the public service ethics importance of the public service ethics regimeregime

ethics and the context of the Sponsorship ethics and the context of the Sponsorship ScandalScandal

ethics and the Gomery Recommendationsethics and the Gomery Recommendations

The Ethical Framework: Post-The Ethical Framework: Post-Sponsorship, Pre-GomerySponsorship, Pre-GomeryThe Tait Report, The Tait Report, A Strong FoundationA Strong Foundation

The Ethical Framework: Post-The Ethical Framework: Post-Sponsorship, Pre-GomerySponsorship, Pre-GomeryValues and Ethics Code for the Public Values and Ethics Code for the Public

Service, 2003Service, 2003

Gomery Recommendations Re: Gomery Recommendations Re: EthicsEthics Values and Ethics CodeValues and Ethics Code

– lengthylengthy– public servants cannot easily relate to itpublic servants cannot easily relate to it– cannot be fully comprehendedcannot be fully comprehended– does not define terms adequately (e.g. impartiality, does not define terms adequately (e.g. impartiality,

loyalty, integrity)loyalty, integrity)– does not provide guidance on how to determine the does not provide guidance on how to determine the

public interest in a specific situationpublic interest in a specific situation– does not provide guidance on how to reconcile does not provide guidance on how to reconcile

conflicting valuesconflicting values

Gomery Recommendations Re: Gomery Recommendations Re: EthicsEthicsRecommendation #2: The Government should Recommendation #2: The Government should

adopt legislation to entrench into law a Public adopt legislation to entrench into law a Public Service Charter.Service Charter.

short, simple statement of essential valuesshort, simple statement of essential values will...will...

– signal and symbolize strong political support for the Charter;signal and symbolize strong political support for the Charter;– promote greater public, parliamentary and media discussion of, promote greater public, parliamentary and media discussion of,

familiarity with and respect for Charter;familiarity with and respect for Charter;– inform the public about the values for which public servants inform the public about the values for which public servants

stand and their rights and responsibilities in relation to stand and their rights and responsibilities in relation to politicians;politicians;

– provide a firm legal basis for promoting and requiring provide a firm legal basis for promoting and requiring compliance. compliance.

Assessing the Gomery Ethics Assessing the Gomery Ethics RecommendationsRecommendationsa comparative assessmenta comparative assessment

UK Civil Service CodeUK Civil Service Code

““...revealingly, the introduction of the Code, while ...revealingly, the introduction of the Code, while hailed as “Whitehall’s Cultural Revolution,” has hailed as “Whitehall’s Cultural Revolution,” has in fact produced remarkably little change. Only in fact produced remarkably little change. Only six complaints have been forwarded to the Civil six complaints have been forwarded to the Civil Service Commissioners in the seven years the Service Commissioners in the seven years the Code has been in operation and, according to the Code has been in operation and, according to the head of the Civil Service Commission for the UK, head of the Civil Service Commission for the UK, “the “the CodeCode has not seeped into the culture – it has has not seeped into the culture – it has not changed the way people behave or respond.” not changed the way people behave or respond.”

Sossin, Gomery Research Studies Volume 2, 61Sossin, Gomery Research Studies Volume 2, 61

Assessing the Gomery Ethics Assessing the Gomery Ethics RecommendationsRecommendationsa comparative assessmenta comparative assessment the broader context – political leadership on the broader context – political leadership on

values and ethicsvalues and ethics

Political Leadership and Values and Political Leadership and Values and EthicsEthics

Conflict of Interest Code for Public Office HoldersConflict of Interest Code for Public Office Holders– 1994-20041994-2004– applies to ministers but not to parliamentariansapplies to ministers but not to parliamentarians– not enshrined in lawnot enshrined in law– administered by the Office of the Ethics Counselloradministered by the Office of the Ethics Counsellor

appointed by PM (at pleasure)appointed by PM (at pleasure)

Bill C-4Bill C-4– Code of Conduct for ParliamentariansCode of Conduct for Parliamentarians

March 2004March 2004– created Ethics Commissionercreated Ethics Commissioner

appointed by Cabinetappointed by Cabinet serves 5 year term during good behaviour (may be removed for cause)serves 5 year term during good behaviour (may be removed for cause)

Freedom of InformationFreedom of Information

Promise and PerilsPromise and Perils

March 28th, 2006March 28th, 2006


basic description of the FOI regimebasic description of the FOI regimeFOI and the context of the Sponsorship FOI and the context of the Sponsorship

ScandaScandaFOI and the Gomery RecommendationsFOI and the Gomery Recommendations



ScandaScandaFOI and the Gomery RecommendationsFOI and the Gomery Recommendations


What is it?What is it?– ATIAATIA

Access to Information ActAccess to Information Act

– provides right of access to government provides right of access to government informationinformation

Freedom of Information – The Broad Freedom of Information – The Broad IssuesIssuesWhy FOI?Why FOI?

– ““Government secrecy breeds stupidity, in Government secrecy breeds stupidity, in government decision-making and in the government decision-making and in the thinking of some citizens.” Newsweek, 1998thinking of some citizens.” Newsweek, 1998

Freedom of Information – The Broad Freedom of Information – The Broad IssuesIssues Why FOI?Why FOI?

– protecting citizens from arbitrary decisionsprotecting citizens from arbitrary decisions– improving public understanding of the policy-making improving public understanding of the policy-making

process and improving public trust in governmentprocess and improving public trust in government secrecy “distorts the thinking of the citizenry”secrecy “distorts the thinking of the citizenry” gives rise to unfounded conspiracy theoriesgives rise to unfounded conspiracy theories high level of mistrust of governmenthigh level of mistrust of government

– enforcing sound public policyenforcing sound public policy secrecy shields internal analysis from scuritny of outside secrecy shields internal analysis from scuritny of outside

expertsexperts result – bad policy adviceresult – bad policy advice

Freedom of Information – The Broad Freedom of Information – The Broad IssuesIssuesWhy not FOI?Why not FOI?

– frank advicefrank advice– relationships with other governmentsrelationships with other governments

domestic (federal-provincial)domestic (federal-provincial) internationalinternational

– communication relationships with other communication relationships with other organizationsorganizations

– regulatory and security functionsregulatory and security functions– costcost

ATIA in CanadaATIA in Canada

FOI rightsFOI rights– narrow or broadnarrow or broad

exemptionsexemptions– public vs. private organizationspublic vs. private organizations– privacy rightsprivacy rights– substantive exemptions substantive exemptions

S.21 – adviceS.21 – advice S.23 – solicitor-client privelegeS.23 – solicitor-client privelege S.24 – statutory prohibitionS.24 – statutory prohibition S.69 – cabinet confidencesS.69 – cabinet confidences

ATIA in CanadaATIA in Canada

exemptions -- cabinet confidencesexemptions -- cabinet confidences– provisions of cabinet confidence secrecyprovisions of cabinet confidence secrecy

– no disclosure required under ANY circumstances for 20 no disclosure required under ANY circumstances for 20 yearsyears

– no independent review – determined by cabinetno independent review – determined by cabinet

– no class test, no injury testno class test, no injury test

– why?why?– candid advicecandid advice

– collective responsibilitycollective responsibility

– freedom to manoeuvrefreedom to manoeuvre

Access to InformationAccess to InformationFOI rightsFOI rightsexemptionsexemptions implementationimplementation

– resourcesresources– compliance/monitoringcompliance/monitoring– feesfees– appeals procedureappeals procedure

complaint driven vs. proactivecomplaint driven vs. proactive



ScandalScandalFOI and the Gomery RecommendationsFOI and the Gomery Recommendations

Trends – mid-1990s and early 2000sTrends – mid-1990s and early 2000s

trendstrends– slower processing timesslower processing times– more exempted materialmore exempted material– more complaintsmore complaints

possible explanations?possible explanations?– change in the way government “does business”change in the way government “does business”– costscosts– government counter-attack against FOIgovernment counter-attack against FOI

66

68

70

72

74

76

78

80

93/94 94/95 95/96 96/97 97/98

Percentage of requests tomajor federal institutionscompleted within 60 days

100

200

300

400

500

600

700

93/94 94/95 95/96 96/97 97/98

Substantiated complaintsabout delay by majorfederal institutions

Office of the Information Commissioner, Office of the Information Commissioner, Annual Report, 1999-2000Annual Report, 1999-2000

notes...notes...– ““The government’s palpable animosity towards the The government’s palpable animosity towards the

"right" of access (it would prefer to dole out "right" of access (it would prefer to dole out information by grace and favour in well-digested information by grace and favour in well-digested mouthfuls)...”mouthfuls)...”

– ““...the stubborn persistence of a culture of secrecy in ...the stubborn persistence of a culture of secrecy in Ottawa...” Ottawa...”


notes...notes...– ““The government’s The government’s palpable animositypalpable animosity towards the towards the

"right" of access (it would prefer to dole out "right" of access (it would prefer to dole out information by grace and favour in well-digested information by grace and favour in well-digested mouthfuls)...”mouthfuls)...”

– ““...the stubborn persistence of a ...the stubborn persistence of a culture of secrecyculture of secrecy in in Ottawa...” Ottawa...”


““There has been a worrisome hardening of attitudes and increased resistance to the There has been a worrisome hardening of attitudes and increased resistance to the Commissioner’s investigations as a result. When the Commissioner’s subpoenas, searches, Commissioner’s investigations as a result. When the Commissioner’s subpoenas, searches, and questions come too insistently or too close to the top, the mandarins circle the and questions come too insistently or too close to the top, the mandarins circle the wagons.”wagons.”

““Two years into this Commissioner’s term and the backlash has become tangible. [...] The Two years into this Commissioner’s term and the backlash has become tangible. [...] The Treasury Board officially discouraged public servants from bringing concerns about Treasury Board officially discouraged public servants from bringing concerns about wrongdoing under the wrongdoing under the Access ActAccess Act, to the attention of the Information Commissioner., to the attention of the Information Commissioner.

““For its part, the Privy Council Office (PCO) decided to resist and challenge almost all of For its part, the Privy Council Office (PCO) decided to resist and challenge almost all of the Commissioner’s investigative powers.”the Commissioner’s investigative powers.”

““Finally, there is a troubling "personal" aspect to the government’s counter-attack. The Finally, there is a troubling "personal" aspect to the government’s counter-attack. The future careers in the public service of the Commissioner’s staff have, in not so subtle future careers in the public service of the Commissioner’s staff have, in not so subtle terms, been threatened. The Commissioner has a fixed, seven-year term with the same terms, been threatened. The Commissioner has a fixed, seven-year term with the same insulation from retribution or influence as does a superior court judge. But the insulation from retribution or influence as does a superior court judge. But the Commissioner’s staff does not have those protections. This development is inexcusably Commissioner’s staff does not have those protections. This development is inexcusably unprofessional and profoundly troubling. If members of the public service come to believe unprofessional and profoundly troubling. If members of the public service come to believe that it is career suicide to work, and do a good job, for the Information Commissioner, the that it is career suicide to work, and do a good job, for the Information Commissioner, the future viability and effectiveness of the Commissioner’s office is in grave jeopardy.”future viability and effectiveness of the Commissioner’s office is in grave jeopardy.”

““In sum, then, there is a full counter-attack in progress against the office of the Information In sum, then, there is a full counter-attack in progress against the office of the Information Commissioner.”Commissioner.”


““...governments continue to distrust and resist the ...governments continue to distrust and resist the Access to Access to Information Act Information Act and the oversight of the Information Commissioner. and the oversight of the Information Commissioner. Vigilance, by users, the media, academics, the judiciary, Vigilance, by users, the media, academics, the judiciary, information commissioners and members of Parliament, must be information commissioners and members of Parliament, must be maintained against the very real pressures from governments to take maintained against the very real pressures from governments to take back from citizens, the power to control what, and when, back from citizens, the power to control what, and when, information will be disclosed.”information will be disclosed.”

““There continues to be a deep distrust of the There continues to be a deep distrust of the Access to Information Access to Information Act Act at all levels in government and, most regrettably, in Parliament. at all levels in government and, most regrettably, in Parliament. In particular, the vigor of the Act’s exemptions, to protect In particular, the vigor of the Act’s exemptions, to protect information which should be kept secret, is doubted. As a result, information which should be kept secret, is doubted. As a result, whenever governments propose laws which involve sensitive whenever governments propose laws which involve sensitive information, there is often a knee-jerk decision to add new information, there is often a knee-jerk decision to add new exemptions to the Act, remove records from the coverage of the Act exemptions to the Act, remove records from the coverage of the Act or weaken the commissioner’s (and court’s) oversight of decisions or weaken the commissioner’s (and court’s) oversight of decisions to keep such information secret.”to keep such information secret.”

Strategies of ResistanceStrategies of Resistance

malicious non-compliancemalicious non-complianceadversarialismadversarialism

amberlightingamberlighting


malicious non-compliancemalicious non-complianceadversarialismadversarialism

amberlightingamberlighting disclosure of identities of requestorsdisclosure of identities of requestors pressure on ATIA officialspressure on ATIA officials problems in record-keepingproblems in record-keeping

Adversarialism – Problems in Adversarialism – Problems in Record-KeepingRecord-Keeping

““The management culture has changed dramatically over the The management culture has changed dramatically over the past 20 years from solid record-keeping, accountability and past 20 years from solid record-keeping, accountability and dedication to the public service and loyalty according to our dedication to the public service and loyalty according to our oath of office to Canada, to avoidance of record-keeping and oath of office to Canada, to avoidance of record-keeping and accountability, and dedication of loyalty to the individuals who accountability, and dedication of loyalty to the individuals who appointed you and can promote you.” appointed you and can promote you.”

Former Public Servant quoted in Gomery, Former Public Servant quoted in Gomery, RecommendationsRecommendations, 35., 35.

““Don’t write it if you can say it. Don’t say it if you can nod.”Don’t write it if you can say it. Don’t say it if you can nod.” ““We kept minimum information on the file in case of an access We kept minimum information on the file in case of an access

to information request.” to information request.” Chuck GuiteChuck GuiteTestimony to Pubic Accounts Committe, April Testimony to Pubic Accounts Committe, April

20042004


malicious non-compliancemalicious non-compliance adversarialismadversarialism

amberlightingamberlighting disclosure of identities of requestorsdisclosure of identities of requestors pressure on ATIA officialspressure on ATIA officials problems in record-keepingproblems in record-keeping

– ““...federal institutions have developed techniques for ...federal institutions have developed techniques for managing politically sensitive requests which now managing politically sensitive requests which now undercut basic principles of the ATIA.”undercut basic principles of the ATIA.”

Alasdair Roberts, Gomery, Vol.2, 117.Alasdair Roberts, Gomery, Vol.2, 117.


malicious non-compliancemalicious non-compliance adversarialismadversarialism neglect/maladministrationneglect/maladministration

– ““Year after year, information commissioners have asked Treasury Year after year, information commissioners have asked Treasury Board ministers to provide adequate (not extravagant) funds to Board ministers to provide adequate (not extravagant) funds to enable commissioners to effectively discharge the duties enable commissioners to effectively discharge the duties Parliament gave them. The requests are routinely denied or pared Parliament gave them. The requests are routinely denied or pared down to bare bones. Year after year, the Information down to bare bones. Year after year, the Information Commissioner’s workload of complaints increases and, without Commissioner’s workload of complaints increases and, without adequate resources, the backlog of incomplete investigations also adequate resources, the backlog of incomplete investigations also increases. Now, it ranks at an all-time high; it represents more than increases. Now, it ranks at an all-time high; it represents more than a full year of work for every one of the commissioner’s 23 a full year of work for every one of the commissioner’s 23 investigators.” OIC, Annual Report, 2004-2005investigators.” OIC, Annual Report, 2004-2005

Explaining Government Explaining Government ResistanceResistance

media use of ATIAmedia use of ATIA– more expertmore expert– more aggressivemore aggressive– more frequent/visiblemore frequent/visible

example – uncovering the Sponsorship Scandalexample – uncovering the Sponsorship Scandal– Daniel Leblanc (Globe and Mail)Daniel Leblanc (Globe and Mail)

first ATIA request, September 1999first ATIA request, September 1999

– ““Public disclosure of the Sponsorship Progrma was the result Public disclosure of the Sponsorship Progrma was the result of efforst by a diligent journalist whose access to information of efforst by a diligent journalist whose access to information request resulted in knoweldge about the Program, to the request resulted in knoweldge about the Program, to the public and parliamentarians alike, for the first time.”public and parliamentarians alike, for the first time.”

Gomery, Vol.1, 431.Gomery, Vol.1, 431.



ScandalScandalFOI and the Gomery RecommendationsFOI and the Gomery Recommendations

Gomery Recommendations re: FOIGomery Recommendations re: FOI

mandatory record-keepingmandatory record-keeping– earlier effects of FOI on record-keepingearlier effects of FOI on record-keeping


mandatory record-keepingmandatory record-keeping– Recommendation #16: The Government should Recommendation #16: The Government should

adopt legislation requiring public servants to adopt legislation requiring public servants to document decisions and recommendations, and document decisions and recommendations, and making it an offence to fail to do so or to making it an offence to fail to do so or to destroy documentation recroding government destroy documentation recroding government decisions, or the advice and deliberations decisions, or the advice and deliberations leading up to decisions.”leading up to decisions.”


mandatory record-keepingmandatory record-keepingamendments to ATIAamendments to ATIA

– extension to federal government institutions not extension to federal government institutions not currently coveredcurrently covered

– limiting of examptionslimiting of examptions reorientation from categorical exemptions to injury testreorientation from categorical exemptions to injury test reduce the kinds of records subject to injury testreduce the kinds of records subject to injury test

– broadening the IC’s powersbroadening the IC’s powers

Federal Accountability Act, 2006?Federal Accountability Act, 2006?

Implement Information Commissioner’s recommendations for reform of the Access to Implement Information Commissioner’s recommendations for reform of the Access to Information Act. Information Act.

Give the Information Commissioner the power to order the release of information. Give the Information Commissioner the power to order the release of information. Expand the coverage of the act to all Crown corporations, Officers of Parliament, Expand the coverage of the act to all Crown corporations, Officers of Parliament,

foundations and organizations that spend taxpayers’ money or perform public functions. foundations and organizations that spend taxpayers’ money or perform public functions. Subject the exclusion of Cabinet confidences to review by the Information Subject the exclusion of Cabinet confidences to review by the Information

Commissioner Commissioner Oblige public officials to create the records necessary to document their actions and Oblige public officials to create the records necessary to document their actions and

decisions. decisions. Provide a general public interest override for all exemptions, so that the public interest is Provide a general public interest override for all exemptions, so that the public interest is

put before the secrecy of the government. put before the secrecy of the government. Ensure that all exemptions from the disclosure of government information are justified Ensure that all exemptions from the disclosure of government information are justified

only on the basis of the harm or injury that would result from disclosure, not blanket only on the basis of the harm or injury that would result from disclosure, not blanket exemption rules. exemption rules.

Ensure that the disclosure requirements of the Access to Information Act cannot be Ensure that the disclosure requirements of the Access to Information Act cannot be circumvented by secrecy provisions in other federal acts.circumvented by secrecy provisions in other federal acts.

Implications of FOI Reform?Implications of FOI Reform?

criticisms...criticisms...– shifting in values?shifting in values?

Values of the Values of the New Public ManagementNew Public Management

New PublicManagement

Traditional PublicAdministration

Values entrepreneurship,flexibility, creativity

prudence, stability,probity,accountability

Risk Tolerance risk taking risk averse

Accountability accountability byresults

processaccountability

Structures decentralized,partnerships,contracts

hierarchical,centralized

Implications of FOI Reform?Implications of FOI Reform?

criticisms...criticisms...– shifting in values?shifting in values?– breaking the bargain?breaking the bargain?

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Final Exam Monday, April 17 th, 9:00-11:30 am, RCH 307 Monday, April 17 th, 9:00-11:30 am, RCH 307...

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