Post by Sarah Turnbull, Postdoctoral Research Fellow, Centre for Criminology

One of the most unpredictable―and thus stressful―aspects of being a researcher is negotiating research access with gatekeepers: those key figures, as Robert Burgess explains, who have the ‘power to grant or withhold access to people or situations for the purpose of research.’ This process often leads to disappointment when requests are thwarted and permission is denied, thereby requiring the researcher to pursue alternatives. In the context of criminal justice institutions, research access is notoriously difficult to obtain. In addition to being increasingly protectionist and risk adverse, these institutions are key sites whereby competing knowledge claims, especially those around research methodologies, have to be reconciled in order for a researcher to gain access. Successful requests often involve carefully pitched projects that appease epistemic differences, present an acceptable project to the institution, and/or, as in my case, ensure that there’s a clear benefit of the proposed research for the institution.

This post considers the use of access to information (ATI) requests through freedom of information (FOI) legislation as a means to overcome barriers to research access for qualitative researchers. Drawing on my experience with the Canadian Access to Information Act (ATIA), I discuss some practical tips and important methodological considerations in relation to using this legislation to access government documents held by one federal penal institution, the Parole Board of Canada (PBC). Due to the relative novelty of using the ATIA for criminological research, this post addresses some concrete challenges, as well as furthers the conversation about ATI/FOI as an innovative research technique for qualitative researchers (although this doesn’t preclude quantitative research as well). As will be shown, the benefit of ATI as a research technique is that it allows researchers to move beyond what is publicly available and access materials that government institutions consider to be internal or even secret in nature. It also enables qualitative researchers, such as myself, to continue research projects when faced with a milieu characterized by increasing institutional protectionism, which requires researchers to be creative when studying penal institutions. I argue that using ATI legislation is one such creative research methodology for gathering qualitative data.

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Between 2009 and 2010, I accessed unreleased and/or unpublished documents produced by the PBC through 16 formal requests made under the ATIA. These documents supplemented the semi-structured interviews I’d conducted, as well as the publicly available documents for analysis. My initial ATI requests focused primarily on obtaining documents that interview participants had mentioned, yet were not able or willing to share. Later requests were used to access materials mentioned in documents received from earlier ATI requests. Using the ATIA enabled me to go beyond the surface of the organization to retrieve documents that weren’t publicly available and thus outside of the ways in which the PBC imagines and portrays itself as an organization through its public website. ATI requests allow researchers to get at what Kevin Walby and Mike Larsen have termed the ‘live archive’—the multitude of texts produced within governments on a daily basis. However, as a research technique, ATI is not without limitations—those related to pragmatic aspects of doing research and those of more far reaching consequence.

Practical considerations: Filing ATI requests

The purpose of the federal ATIA, passed in 1982, is ‘to give Canadians a qualified right to documents held within federal ministries and agencies.’ The ATIA outlines the processes by which requests can be made, as well as the circumstances upon which federal government institutions may refuse to release information. As required by subsection 6(1) of the ATIA, requests for information must be made in writing to the appropriate government institution and contain enough detail that an employee can reasonably locate the desired record. Formulating written requests requires one to identify the type of material required (e.g., policy documents, memoranda to ministers, emails, budget reports, etc.) and often entails some knowledge of government lingo in order to use the terminology most likely to result in the successful identification and retrieval of the desired information. It also requires the requester to focus on a particular date range to help the government employee locate the record. As such, the use of ATI requests is best thought of as a snowballing research process that often necessitates several attempts before obtaining the desired records.

A related issue stems from the requirements under section 11 of the ATIA that pertains to request fees. Generally speaking, each request for information requires an application fee of CAD$5.00 that covers photocopying of the requested record(s). In addition, the government institution can spend up to five hours free of charge searching for the requested record(s). Subsection 11(2) allows government institutions to charge for each hour in excess of five hours ‘reasonably required to search for the record or prepare any part of it for disclosure.’ Part of the research process, therefore, requires the formulation of ATI requests that are narrow enough to fit within the parameters of the fee structure set by the ATIA so as to avoid paying additional, often prohibitive, fees.

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Throughout my process of making ATI requests, I had several telephone conversations with the PBC’s ATI coordinator assigned to my requests to help narrow their scope in order to avoid paying additional fees. I kept notes of these conversations for my records so that I could later compare these against the materials I received. The most common suggestion from the ATI coordinator was to refine the search to a shorter timeframe (e.g., in two year periods). As part of the methodological process, I kept a log of all requests, including the dates requests were accepted, any extensions made, and when I received the released material.

The ATIA requires government institutions to respond to requests within 30 days. However, subsection 9(1) allows institutions to make extensions, for instance, if more time is needed to locate the requested record(s) or consultations are required to comply with the request. Ten of my 16 requests resulted in delays under subsection 9(1)(b) of the ATIA, each for an additional period of 30 days. The ATIA also permits government institutions to refuse to disclose records and/or redact portions of these documents when released. To my knowledge, none of my requests were refused outright, although as I’ll discuss further below, I didn’t receive all records that I requested. In several instances, certain information was redacted pursuant to subsection 19(1) of the ATIA, which allows for a government institution to refuse to disclose material containing personal information. I didn’t file any complaints to the Information Commissioner concerning the processing of my requests, as is permitted by sections 30 and 31 of the ATIA.

Using ATI as a research technique

The practical limitations of using ATI as a qualitative research technique relate to the ‘hit or miss’ nature of filing ATI requests, especially when general information is sought. As such, a substantial amount of time can be spent fishing around for information. A related problem is that no explanation is provided as to why certain material was selected to be disclosed. A considerable degree of administrative discretion is exercised in determining which documents to provide within the time (and page) allotments stipulated in the ATIA. Practically speaking, the best results were achieved when requesting specific documents based on their titles or other narrowly defined descriptive information. However, in several instances, even when my requests were very specific, I received information that was not relevant to my request. In other cases, my requests for specific material yielded no results whatsoever, with no accompanying explanation as to why the material wasn’t provided. This doesn’t necessarily appear to be a refusal to disclose, but rather is illustrative of the difficulties associated with making ATI requests.

A key aspect of filing ATI requests relates to the various negotiations—or what Walby and Larsen refer to as ‘access brokering’—that goes on between the researcher and the organization, as represented by the ATI coordinator. The process of filing ATI requests is not simply one of asking and receiving information, but rather access is negotiated through the fine tuning of requests to ‘fit’ within the parameters of the ATIA, the organization’s internal information management practices, and the administrative discretion exercised by the ATI coordinator. Accessing information is also difficult due to the grey space that lies between the archive and the present. Unsurprisingly, the more recent the material of interest, the easier it is to access. This poses problems for trying to retrieve material that is over five years old which may have found its way into government storage facilities and is now slated for archiving. For instance, two of my requests yielded no results; according to the ATI analyst, this was because the material I requested was too old and nothing could be located, despite the specific document having been referred to in several other PBC documents. A related limitation of using ATI requests is that the researcher is not privy to the institutional knowledge surrounding particular documents or materials. As an outsider looking into an organization, it’s often difficult for the researcher to know the relative worth or weight of a document within its organizational context.

Although there’s a right to information under the ATIA, various internal practices of government institutions have a significant impact on response times and decisions to disclose. Research by Alasdair Roberts has highlighted how requests under the ATIA may be handled differently by ATI coordinators depending on the information requested and the professional backgrounds of the requesters. For instance, as Yeager’s experience has shown, some institutions may be more willing to accommodate certain requesters than others, with internal administrative discretion playing a large role in who is deemed a ‘preferred researcher.’ Federal institutions may therefore slow down the response process when the information requested is deemed ‘sensitive’ and/or requested by particular individuals, such as members of the media or political opposition parties. Roberts contends that it’s likely that freedom of information laws ‘have been weakened by the emergence of internal practices designed to ensure that governments are not embarrassed or surprised by the release of certain kinds of politically sensitive information.’ The exercise of discretion through various internal administrative practices shapes the ‘right’ to access information under the ATIA. As with any research project, it’s important to be reflexive and cognizant of the methodological challenges and benefits of using ATI requests as a qualitative research technique.

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As I suggested in the introduction to this post, the current climate of restrictive access to criminal justice institutions in several jurisdictions presents significant barriers to criminological researchers. The process of making ATI/FOI requests no doubt varies by country and level of government (e.g., municipal versus federal), as well as by institution, with some more forthcoming than others. Nonetheless, this post has outlined the utility of using ATI and FOI legislation as a means to overcome, albeit imperfectly, barriers to research access in order to collect qualitative data. Based on my own experience of filing ATI requests in Canada, it’s apparent that using ATI as a research technique requires thoughtful consideration as to the various methodological, theoretical, and practical implications. It’s hoped that this post will help spur on academic discussion and engagement with ATI as a qualitative research technique.