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Information CommissaireCommissioner à l’informationof Canada du Canada

Annual ReportInformationCommissioner2002-2003

Annual ReportInformation Commissioner

2002-2003

“The future of Canadian democracy depends on being openwith the people unless there is some clear reason why opennesswould endanger our society.”

The Myth of Security at Canada’s Airports, Report of the Standing Committee on National Security and Defence,

January, 2003 at p. 138

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The Information Commissioner of Canada112 Kent Street, 22nd FloorOttawa ON K1A 1H3

(613) 995-24101-800-267-0441 (toll-free)Fax (613) 947-7294(613) 992-9190 (telecommunications device for the deaf)general@infocom.gc.cawww.infocom.gc.ca

©Minister of Public Works and Government Services Canada 2003

Cat. No. IP20-1/2003ISBN 0-662-67342-5

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“The purpose of this Act is to extend the present laws of Canada toprovide a right of access to information in records under the control ofa government institution in accordance with the principles thatgovernment information should be available to the public, thatnecessary exemptions to the right of access should be limited andspecific and that decisions on the disclosure of government informationshould be reviewed independently of government.”

Subsection 2(1)Access to Information Act

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June 2003

The Honourable Daniel HaysThe SpeakerSenateOttawa ON K1A 0A4

Dear Mr. Hays:

I have the honour to submit my annual report to Parliament.

This report covers the period from April 1, 2002 to March 31, 2003.

Yours sincerely,

The Hon. John M. Reid, P.C.

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June 2003

The Honourable Peter MillikenThe SpeakerHouse of CommonsOttawa ON K1A 0A6

Dear Mr. Milliken:

I have the honour to submit my annual report to Parliament.

This report covers the period from April 1, 2002 to March 31, 2003.

Yours sincerely,

The Hon. John M. Reid, P.C.

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2002-2003 ANNUAL REPORT

Table of Contents

MANDATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

Chapter I: 20th ANNIVERSARY YEAR IN REVIEW . . . . .11

A. Judicial Guidance . . . . . . . . . . . . . . . . . . . . . . . 121) The Assertion of

Cabinet Confidence . . . . . . . . . . . . . . . . . 12• Babcock case . . . . . . . . . . . . . . . . . . . . . 13• Ethyl Canada case . . . . . . . . . . . . . . . . . 15• Cabinet Secrecy for the Future . . . . . . . 16

2) The Zone of Secrecy for Public Officials . . . . . . . . . . . . . . . . . . . . . 16• RCMP case . . . . . . . . . . . . . . . . . . . . . . . 17

B. Privacy v. Openness - Census Records . . . . . . . 19

C. Thorny Cases (Cabinet Confidences) . . . . . . 21• Catch 22 — the Information

Commissioner . . . . . . . . . . . . . . . . . . . . . . . . 22• Catch 22 — the Auditor General . . . . . . . . . 24

D. Anti-Terrorism and Secrecy . . . . . . . . . . . . . . . 25

E. Reform of the Access to Information Act . . . 26

Chapter II: ADDRESSING THE CRISIS IN INFORMATION MANAGEMENT . . . . . . . . . . . . . 29

A. Executive Summary . . . . . . . . . . . . . . . . . . . . . 29

B. Weakened Levers of Accountability . . . . . . . 30

C. Moving in the Right Direction . . . . . . . . . . . . 32

D. Steps Ahead . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Chapter III: INVESTIGATIONS AND REVIEWS . . . . . . . . . . 45

A. Workload Statistics . . . . . . . . . . . . . . . . . . . . . . 45B. Demystifying the Investigation Process . . . . 51

Informal Process . . . . . . . . . . . . . . . . . . . . . . 51Guidelines for Formal Investigations . . . . . 52i) Role of Counsel . . . . . . . . . . . . . . . . . . . . 53

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ii) Confidentiality Orders . . . . . . . . . . . . . . 53iii) Potential Adverse Comment . . . . . . . . . 54

C. Quality of Service Standards . . . . . . . . . . . . . 54

D. Delays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

E. Shifting the Commissioner’s Priorities . . . . . 62

F. Treasury Board Initiatives . . . . . . . . . . . . . . . . 63

Chapter IV: CASE SUMMARIES . . . . . . . . . . . . . . . . . . . . . . . . . 67INDEX OF CASE SUMMARIES . . . . . . . . . . . . . . . 79

Chapter V: THE ACCESS TO INFORMATION ACT AND THE COURTS . . . . . . . . . . . . . . . . . . . . . . . . . 81

A. The Role of the Federal Court . . . . . . . . . . . . . 81

B. The Commissioner in the Courts . . . . . . . . . . 81I) Cases completed . . . . . . . . . . . . . . . . . . . . . 81II) Cases in progress . . . . . . . . . . . . . . . . . . . . . 86

a) Commissioner as applicant . . . . . . . . . . 86b) Commissioner as respondent . . . . . . . . 88c) Commissioner as intervener . . . . . . . . . 91

C. Court Decisions Not Involving the Commissioner . . . . . . . . . . . . . . . . . . . . . . . 94

Chapter VI: LEGISLATIVE CHANGES . . . . . . . . . . . . . . . . . . . 115

Chapter VII: ACCESS TO INFORMATION IN CANADA AND ABROAD . . . . . . . . . . . . . . . . . . 119

Chapter VIII: CORPORATE SERVICES . . . . . . . . . . . . . . . . . . . . 127

APPENDIX A: Investigative Body Designation . . . . . . . . . . . . . . . 129

APPENDIX B: Report Cards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131

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The Information Commissioner is anombudsman appointed by Parliamentto investigate complaints that thegovernment has denied rights underthe Access to Information Act--Canada’sfreedom of information legislation.

The Act came into force in 1983 andgave Canadians the broad legal rightto information recorded in any formand controlled by most federalgovernment institutions.

The Act provides governmentinstitutions with 30 days to respond toaccess requests. Extended time may beclaimed if there are many records toexamine, other government agencies tobe consulted or third parties to benotified. The requester must benotified of these extensions within theinitial timeframe.

Of course, access rights are notabsolute. They are subject to specificand limited exemptions, balancingfreedom of information againstindividual privacy, commercialconfidentiality, national security andthe frank communications needed foreffective policy-making.

Such exemptions permit governmentagencies to withhold material, oftenprompting disputes betweenapplicants and departments.Dissatisfied applicants may turn to theInformation Commissioner whoinvestigates applicants’ complaintsthat:

• they have been denied requestedinformation;

• they have been asked to pay toomuch for requested information;

• the department’s extension of morethan 30 days to provide informationis unreasonable;

• the material was not in the officiallanguage of choice or the time fortranslation was unreasonable;

• they have a problem with the InfoSource guide or periodic bulletinswhich are issued to help the publicuse the Act;

• they have run into any otherproblem using the Act.

The commissioner has stronginvestigative powers. These are realincentives to government institutionsto adhere to the Act and respectapplicants’ rights.

Since he is an ombudsman, thecommissioner may not order acomplaint resolved in a particular way.Thus, he relies on persuasion to solvedisputes, asking for a Federal Courtreview only if he believes anindividual has been improperly deniedaccess and a negotiated solution hasproved impossible.

9

MANDATE

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Twenty years ago, on July 1, 1983, theAccess to Information Act came intoforce in Canada. From that moment,Canadians had a right of access torecords held by federal governmentinstitutions (subject to limited andspecific exemptions) and a right tohave refusals to disclose recordsreviewed, independently ofgovernment, by the InformationCommissioner and the federal courts.Two decades is not long in the life of astatutory right. Yet, in its short life, theAccess to Information Act's ability toovercome barriers to openness, thrownup by a deeply-imbeddedgovernmental culture of secrecy, hasbeen put to test after test. The Act hasrisen to the challenge; it has shown itsstrength to overcome barriers ofunreasonable delay, fees andapplication of exemptions. In the faceof incidents of records alteration,hiding and destruction, Parliamentamended the access law to strengthenits ability to overcome these barriers toaccess as well. Parliament made it anoffence to engage in or counsel suchactivities, punishable by imprisonmentfor up to two years, a fine notexceeding $10,000 or both.

Only four major barriers to the fullvibrancy of the right of accessremained--until this reporting year--unresolved. Three of theseintransigent barriers arose from thegovernment-held views that: 1) theAct gives government an unreviewableright and obligation to exclude anyinformation from the right of accesswhich it considers to be a “cabinetconfidence”; 2) the Act constrains the

public right of access by a broadly-defined zone of privacy forinformation about public officials; and3) the Act does not apply to recordsheld in the offices of ministers of theCrown or in the Prime Minister'soffice. The fourth barrier arises fromthe crisis in information managementin government.

This year, the first two of theseremaining barriers to public accesswere struck down by the SupremeCourt of Canada and the Federal Courtof Appeal in three unanimousdecisions. The Supreme Court ofCanada ruled that decisions bygovernment to refuse access, byasserting that records contain cabinetconfidences, may be reviewed bycourts and by bodies such as theInformation Commissioner.

As well, the Federal Court of Appealordered the government to narrow thezone of secrecy heretofor afforded tocabinet confidences. The FederalCourt of Appeal ordered the Clerk ofthe Privy Council to begin respectingthe will of Parliament (as expressed inthe Access to Information Act) bydisclosing the records or portions ofrecords which contain the background,problem analysis and policy optionspresented to Cabinet for decision-making purposes.

Also, this year, the Supreme Court ofCanada ruled that the sphere ofprivacy accorded to public officials issignificantly smaller than thatpreviously asserted by government. Itreminded governments that the valueof accountability has to be taken into

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CHAPTER I20th ANNIVERSARY YEAR INREVIEW

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account in defining the proper zone ofprivacy for public officials.

Indeed, in all these decisions, oursenior courts emphasized that thepurpose of the Access to Information Actis to enhance the accountability ofgovernment and constrain the abilityof government to assert secrecy tointerfere with public inquiry.

These three decisions (which will bediscussed in more detail later)constitute profoundly important 20thanniversary gifts of recognition to theAccess to Information Act. They are thehighlight of this reporting year.

However, it is important to note thatthere remains unresolved the barrier ofsecrecy with respect to records held inthe departmental offices of ministersand the Prime Minister's office. Thisissue remains under investigation bythe Information Commissioner and itis the subject of applications by thegovernment before the Federal CourtTrial Division. As well, there remainsunresolved the serious shortcomings ininformation management ingovernment. This matter is more fully dealt with in Chapter II at pages29 to 44.

In the short life of this law, it hasproved its ability to overcome themethods of resistance to opennessinvented by governments. In a word,hindsight shows that Parliament wasremarkably prescient when it adoptedthis law--it not only articulated withcare the limited and specificcircumstances in which secrecy isauthorized, it also expressed clearlythe purposes of the Act in order toguide ministers, informationcommissioners and courts in assessingwhether or not specific records meetthe Act's stringent tests for assertingsecrecy.

Yet, there remains a deep nostalgia inthe bureaucracy for the days whenofficials controlled information and thespin of the message. Officials have notgiven up the fight to weaken the law,but they have come to realize that theonly effective strategy left to them is torewrite the law. Such a strategy is intrain and it prompted the InformationCommissioner, this year, to submit aSpecial Report to Parliament waving aflag of concern and caution about thegovernment's proposals to rewrite theAccess to Information Act. This matter isdiscussed at pages 26 to 28.

A. JUDICIALGUIDANCE

1) The Assertion of Cabinet Confidence toJustify Secrecy

In the final days of committeehearings, before the Access toInformation Act was put to a final votein Parliament, the then LiberalGovernment of Pierre E. Trudeaumade two changes to the Access toInformation Bill. First, the governmentwithdrew the provision of the Billwhich created a reviewable exemptionfrom the right of access for cabinetconfidences. Instead, the governmentincluded in the Bill a section providingthat “this Act does not apply to”cabinet confidences. Second, thegovernment changed the sections ofthe Act governing the authority of theInformation Commissioner and thecourts to examine records. Thesechanges removed the authority of thecourts and the InformationCommissioner to examine cabinetconfidences in the course of theirreviews of denials of access. The newprovisions limited these review bodies

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to examining only records “to whichthis Act applies”.

At the same time, the governmentamended the Canada Evidence Act toprovide a mechanism by which thegovernment could assert the cabinetconfidence privilege before any courtor body having the power to compelthe production of records. Themechanism set out in the CanadaEvidence Act was a certificate issued bya minister of the Crown or the Clerk ofthe Privy Council which certificate,once issued, would prevent the courtor body from examining or compellingproduction of the information coveredby the certificate.

With the passage in 1983 of the Billscontaining those changes, thegovernment took the position that it isunder an obligation to assert thecabinet confidence privilege in everycase where it arose. As well, thegovernment took the position that adecision by a minister, or Clerk of thePrivy Council, to assert the cabinetconfidence privilege, is unreviewableby any court or by the InformationCommissioner. Since 1983, it has beenthe position of governments that thereis no legal choice but to take the wordof the asserting official, that withheldinformation qualifies for the cabinetconfidence privilege. It must beacknowledged that somejurisprudence supported thegovernment's broad interpretation ofits unrestricted authority andresponsibility to assert the cabinetconfidence privilege.

Babcock Case

The appropriateness of thegovernment's view came before theSupreme Court of Canada in thisreporting year in a case involvinglitigation by a group of Crown lawyers

against the government, alleging thatlawyers in Vancouver should be paidat the same rate as lawyers in Toronto.In that case, during the pre-courtstages, the government had disclosedrecords to the Vancouver lawyers.However, when the matter reachedcourt, the government issued acertificate, pursuant to section 39 of theCanada Evidence Act, asserting thatpreviously disclosed records werecabinet confidences and could not,thus, be used by the other side orexamined by the court. When theVancouver lawyers objected to thevalidity of the certificate in thesecircumstances, the government took itstraditional position that the decision toassert cabinet confidence privilege wasobligatory and unreviewable by thecourts. The InformationCommissioner intervened in the casebecause section 69 of the Access toInformation Act parallels section 39 ofthe Canada Evidence Act. It was theCommissioner's position thatgovernments are under no mandatorylegal obligation to assert the cabinetconfidence privilege.

In its decision, the Supreme Court ofCanada agreed with the InformationCommissioner's view and decided thatthe courts, as well as other bodies withauthority to compel the production ofrecords, have authority to review thelegality of the assertion of theprivilege. The only limit the SupremeCourt of Canada accepted was that, inreviewing the government decision toassert the cabinet confidence privilege,the reviewing court or body may notexamine the records at issue. Thecourt also decided that there are limitson the authority of government toassert the cabinet confidence privilege.

First, Chief Justice McLachlin, for thecourt, agreed that “cabinet 13

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confidentiality is essential to goodgovernment”. However, she went onto list other, equally important,principles in our society as being: theright to pursue justice in the courts, therule of law, accountability of theexecutive and the principle that officialactions must flow from statutoryauthority clearly granted and properlyexercised.

According to the Supreme Court, themechanism provided by Parliament forthe responsible exercise of the power toclaim cabinet confidentiality is thecertification process set out in section 39of the Canada Evidence Act. In the court'sview, there are four requirements for avalid certification:

“… the Clerk must answer twoquestions before certifyinginformation: first, is it a cabinetconfidence within the meaning ofsections 39(1) and (2); and second, is itinformation which the governmentshould protect taking into account thecompeting interests in disclosure andretaining confidentiality? If, and onlyif, the Clerk or minister answers thesetwo questions positively and certifiesthe information, do the protections ofsection 39(1) come into play. Moreparticularly, the provision that'disclosure of the information shall berefused without examining or hearingof the information by the court, personor body' is only triggered when thereis a valid certification”. (paragraph 22,Babcock)

“A third requirement arises from thegeneral principle applicable to allgovernment acts, namely, that thepower exercised must flow from thestatute and must be issued for thebona fide purpose of protectingcabinet confidences in the broaderpublic interest. The function of theClerk under the Act is to protectcabinet confidences, and this alone.

It is not to thwart public inquiry nor isit to gain tactical advantage inlitigation.” (paragraph 25, Babcock)

“A fourth requirement for validcertification flows from the fact thatsection 39 applies to disclosure of thedocuments. Where a document hasalready been disclosed, section 39 nolonger applies.” (paragraph 26,Babcock)

The court also elaborated on whatmust be disclosed by the Clerk orminister to demonstrate that the firstrequirement has been met. In thisregard, Chief Justice McLachlin said:

“… the first element of the Clerk'sdecision requires that her certificatebring the information within the ambitof the Act. This means that the Clerkor minister must provide a descriptionof the information sufficient toestablish on its face that theinformation is a cabinet confidenceand that it falls within the categories ofsection 39(2) or an analogouscategory…The kind of descriptionrequired for claims of solicitor-clientprivilege under the civil rules of courtwill generally suffice. The date, title,author, and recipient of the documentcontaining the information shouldnormally be disclosed. Ifconfidentiality concerns preventdisclosure of any of these preliminaryindicia of identification, then the onusfalls on the government to establishthis, should a challenge ensue.”(paragraph 28, Babcock)

The Supreme Court, thus, has made itclear that the validity of a section 39certificate may be challenged on thebasis that the four requirements, setout above, were not respected. Thesefour requirements involve matters ofapplication and interpretation of lawand matters of exercise of discretion.According to the Supreme Court: 14

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“The party challenging the decisionmay present evidence of impropermotive in the issue of thecertificate…, or otherwise presentevidence to support the claim ofimproper issuance…” (paragraph39, Babcock)

Ethyl Canada Case

The first application of the Babcockdecision to a case under the Access toInformation Act came in the case ofCanada (Information Commissioner) v.Canada (Minister of the Environment). Byway of background, the case beganwith an access request by Ethyl Canadato Environment Canada for recordsrelating to the government's decision, in1995, to introduce legislation banningthe inter-provincial trade and import ofa gasoline additive known as MMT.Ethyl Canada requested access to:

“Discussion papers, the purpose ofwhich is to present backgroundexplanations, analysis of problems orpolicy options to the Queen's PrivyCouncil for Canada for considerationby the Queen's Privy Council forCanada in making decisions withrespect to MethylcyclopentadicmylManganese Tricarbonyl (MMT)”.

The wording of this request wassignificant because it used the precisewords of a provision of the Access toInformation Act which limits the abilityof government to assert the cabinetconfidence privilege. Once cabinetdecisions are made public, paragraph69(3)(b) of the Act provides that“discussion papers, the purpose ofwhich is to present backgroundexplanations, analysis of problems orpolicy options to (Cabinet)…” are nolonger excluded from the right of access.

Despite the wording of the request,and the specific wording of the accesslaw, the government refused to

disclose the information. It arguedthat “discussion papers” had beenabandoned in 1984 as a vehicle forpresenting background, analysis andoptions to Cabinet. The Clerk of thePrivy Council certified that all otherrecords containing such informationwith respect to MMT constitute cabinetconfidences.

The Information Commissioner, afteran investigation into the history of thecabinet papers system and whydiscussion papers were abandoned assoon as the access law came into force,concluded that the Clerk of the PrivyCouncil had no lawful authority torefuse disclosure of background,analysis and options information withrespect to the decision to ban MMT.The government disagreed and thematter went before the Federal Court,Trial Division. The court agreed withthe Information Commissioner andordered the Clerk of the Privy Councilto disclose the information. Thegovernment appealed and, this year,the Federal Court of Appeal dismissedthe government's appeal.

First, Justice Noel, for the Court ofAppeal, dismissed the government'scontention that courts may not reviewdecisions by government, under theAccess to Information Act and CanadaEvidence Act, to assert cabinetconfidence. The court stated: “Thejudgement in Babcock makes it clearthat the courts can review decisionswhich 'do not flow from statutoryauthority clearly granted and properlyexercised' and may consider'surrounding evidence' to determinewhether statutory power has beenproperly exercised”. (paragraph 20 –Ethyl Canada case).

Further, the court concluded that the“surrounding evidence”, uncoveredduring the Information

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Commissioner's investigation,supported the view that “discussionpapers” could be found elsewhere inthe cabinet papers system eitherincorporated into, or appended to,other records such as memoranda toCabinet or briefs to ministers.

Accordingly, the Court of Appealordered the Clerk of the Privy Councilto review the withheld records todetermine:

“a) whether there exists within orappended to the documents acorpus of words the purpose ofwhich is to present backgroundexplanations, analyses of problemsor policy options to Council forconsideration by Council in makingdecisions, that can be reasonablysevered from the documentspursuant to section 25 of the Access Act;

b) if such severable corpus of words isfound to exist by the Clerk of thePrivy Council, it is hereby orderedthat it be severed and released tothe applicant subject to anyexemption which may be claimedby the head of the governmentinstitution.”(paragraph 27 – Ethyl Canada)

Cabinet Secrecy for the Future

The decisions of the Supreme Court ofCanada in Babcock and of the FederalCourt of Appeal in Ethyl, will beenormously important catalysts forreducing the zone of cabinet secrecy.In future, for example, it is to be hopedthat, after cabinet decisions are madepublic, a great deal of relatedinformation will be disclosed, such as:the record of cabinet decision,references to the decision and itscontent in other records and portionsof cabinet records containingbackground explanations, analysis of

problems and policy options. Fromnow on, governments must exercisetheir discretion to invoke the cabinetconfidence privilege with bona fidesand in a manner designed to serve thepublic interest and promoteaccountability.

However, it may take some time--andsome nudging by the InformationCommissioner and the courts--beforegovernments bring their cabinetconfidentiality practices intocompliance with the law and thejudicial direction given this year.Examples of government's slowness toface up to the new post-Babcock realityare discussed at pages 21 to 25.

2) The Zone of Privacy forPublic Officials

The Access to Information Act and thePrivacy Act are companion pieces oflegislation. They were passed byParliament at the same time, theymake reference to each other in theirprovisions and the offices of theInformation Commissioner andPrivacy Commissioner constitute asingle department of government.Both laws contain provisions requiringthat information about identifiableindividuals, known as “personalinformation”, be kept confidential andboth contain provisions permittingdisclosure of personal information.

It is rare that the public's right to knowcomes into real conflict with individualprivacy rights. Occasionally, theconflict surfaces with respect toinformation about accused persons,inmates seeking parole, or escapedoffenders. In such cases there may bepublic safety and accountabilityconsiderations outweighing the rightto privacy. Routinely, however,conflicts between openness and

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privacy arise with respect toinformation about public officials.

The definition of what constitutes“personal information” is contained inthe Privacy Act and, in that definition,Parliament sought to make it clear thatcertain information about identifiableindividuals who are public officialsdoes not qualify for privacy protection.Paragraph 3(j) of the Privacy Act statesthat the privacy exemption in theAccess to Information Act (i.e. section 19)may not be invoked to withhold:

“Information about an individual whois or was an officer or employee of agovernment institution that relates tothe position or functions of theindividual.”

Governments have, over the years,interpreted this provision narrowly, inan effort to give public officials asmuch privacy as possible. Members ofthe public have objected to theresulting interference with the value ofaccountability through transparency.Finding the right balance between theprivacy of public officials and theobligation on government to beaccountable to the public has been sodifficult that the issue has come beforethe Supreme Court of Canada twice inthe short life of these two Acts, mostrecently in this reporting year.

In both cases, the Supreme Court ofCanada ordered the government todisclose the information about publicofficials which had been withheld onprivacy grounds. In the first case,(Dagg v. Canada (Minister of Finance)),the information at issue was the namesappearing on the FinanceDepartment's log of employeesentering the headquarters outsidenormal working hours. In the secondcase, decided in this reporting year,Canada (Information Commissioner) v.

Canada (Commissioner of the RoyalCanadian Mounted Police), theinformation at issue was a list ofprevious postings for several RCMPofficers. Here are the details of thisyear's Supreme Court decision.

RCMP Case

This story begins with an encounterbetween a citizen and five RCMPofficers. The citizen felt aggrieved andasked the RCMP whether or not therehad been public complaints filedagainst these officers. The RCMPresponded that any such complaints, ifthey existed, would be filed in thedetachment where the officers serve orserved. However, the force refused todisclose to the citizen a list of theposting of these officers in order toprotect their privacy. The citizencomplained to the InformationCommissioner.

During the course of the InformationCommissioner's investigation, theCommissioner of the RCMP decidedthat he would disclose the currentpostings of four officers and the lastposting of one of the officers who hadretired. Anything more would remainsecret. The Information Commissionerconcluded that the withheldinformation relates to the positions orfunctions of the RCMP officers and,hence, could not be withheld onprivacy grounds.

The dispute went, first, to the TrialDivision of the Federal Court. TheCommissioner of the RCMP arguedthat paragraph 3(j) of the Privacy Actshould be interpreted narrowly. In hisview, only information relating to the“current” position or functions of apublic official should escape privacyprotection. Justice Cullen agreed. Heheld that, if section 3(j) were given aretrospective application: “there 17

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would be little left to contemplate inprivate and little meaning to theprotection of employment history”.(paragraph 24)

The Information Commissionerappealed to the Appeal Division of theFederal Court. Justice Létourneau, forthe court, disagreed with the TrialJudge's view that section 3(j) could nothave retrospective application.However, he was concerned aboutdisclosing all of the past postings.Justice Létourneau, thus, fashioned ajudicial compromise. He concluded:

“… a request about a namedindividual's position, especially inrespect of the past positions held,has to be specific as to time, scopeand place. It cannot be a 'fishingexpedition' about all or numerouspositions occupied by an individual--over the span of his [or her]employment”. Consequently, JusticeLétourneau, concluded that theaccess request was for employmenthistories and not for informationabout a current or specific pastposition and, hence, was properlydenied.

The Information Commissioner thenrequested, and was granted, leave toappeal to the Supreme Court ofCanada.

The unanimous decision of theSupreme Court of Canada was writtenby Justice Gonthier who disagreedwith the Trial Court's effort to givesection 3(j) of the Privacy Act a narrowinterpretation by limiting itsapplication to current positions. Heexpressed the view that such a narrowinterpretation failed to take account ofthe obligation in a democracy forpublic officials to be accountable to thepublic. In the words of JusticeGonthier:

“The purpose of section 3(j) is toensure that the state and its agents areheld accountable to the general public.Given the lack of any indication thatParliament intended to incorporatesuch a limitation into the legislation,the fact that a public servant has beenpromoted or has retired should notaffect the extent to which she or he isheld accountable for past conduct.”(paragraph 29)

Similarly, the Supreme Court was ofthe view that the compromisefashioned by the Court of Appeal was“unnecessarily restrictive and withoutsufficient legal foundation”.(paragraph 32) Under the compromisefashioned by the Court of Appeal, toomuch subjective judgement would berequired in order to answer accessrequests for information about publicofficials. For example, if thegovernment felt the request was a“fishing expedition” about an official'semployment history, the governmentcould refuse disclosure. The SupremeCourt rejected this approach saying:

“The Court of Appeal's approachfails to recognize that it is the natureof the information itself that isrelevant--not the purpose or natureof the request.” (paragraph 32)

Justice Gonthier again emphasized theaccountability purpose for restrictingthe zone of privacy for public officials,and he emphasized that it is not theproper role of government to decidewhich requests do or do not serve anaccountability purpose. He said:

“… it is not open to the RCMPCommissioner to refuse disclosure onthe grounds that disclosing theinformation, in this instance, will notpromote accountability; the Access Actmakes this information equallyavailable to each member of the publicbecause it is thought that the

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availability of such information, as ageneral matter, is necessary to ensurethe accountability of the state and topromote the capacity of the citizenryto participate in decision-makingprocesses.” (paragraph 32)

Being mindful that this issue of section3(j) of the Privacy Act had beenconsidered once before by the SupremeCourt before in Dagg, Justice Gonthiertook pains to offer specific guidance asto what types of information “relate tothe position or functions” and whattypes do not. First, he rejected the testsuggested by the InformationCommissioner which proposed thatobjective and factual informationrelating to positions or functions bedisclosed while subjective andevaluative information relating topositions or functions should beprotected. Justice Gonthier made itclear that any information “that relatesto” the positions or functions of apublic official should be released.Later, Justice Gonthier said thatinformation falls within section 3(j) if itwould be “relevant to understandingthe functions they perform” or “shedlight on the general attributes of thepositions and functions…” (paragraph 39)

By way of example, Justice Gonthierquoted from Justice LaForest's reasonsin Dagg as follows:

“Generally speaking, informationrelating to the position, function orresponsibilities of an individual willconsist of the kind of informationdisclosed in a job description. It willcomprise the terms and conditionsassociated with a particular position,including such information asqualifications, duties, responsibilities,hours of work and salary range.”

By contrast, Justice Gonthier referredto the decision of Justice Jerome in

Information Commissioner v. SolicitorGeneral [1988] 3 F.C. S51 (T.D.) asoffering examples of information aboutpublic officials which does not fallwithin section 3(j) of the Privacy Act, asfollows:

“…certain opinions expressed aboutthe training, personality, experience orcompetence of individual employees…Such information is not a directfunction of the individual's position--rather, it concerns the competence andcharacteristics of the employee.”(paragraph 38, RCMP)

Applying these principles, theSupreme Court ordered theCommissioner of the RCMP to disclosethe list of past postings of the fiveRCMP officers.

B. Privacy vs. Openness -Census Records

During this reporting year, anotherconflict between the values of privacyand openness came to a head.Statistics Canada has steadfastlyresisted allowing genealogical andhistorical researchers to have access toindividual census returns--even veryold census returns. The ChiefStatistician's professional concern toprotect the confidentiality ofindividual returns was always basedon a desire to maintain the public'strust and, hence, ensure publiccooperation with the census.

On the other hand, that strong refusalto disclose historical census returns rancounter to the less rigid confidentialityrégime for census records set out in thePrivacy Act Regulations.

The Privacy Act Regulations (section 6)provide that historical census returnstransferred to the National Archivesbecome accessible for research 19

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purposes after 92 years have elapsedfrom the date of the census. Manyresearchers became frustrated aboutthe Chief Statistician's refusal totransfer census records to the NationalArchives and, hence, their inability totake advantage of the access régime setout in the Privacy Act Regulations.

In the face of this impasse, severalresearchers made requests to StatisticsCanada, under the Access to InformationAct, seeking access to the individualreturns for the 1906 census. Uponreceiving Statistics Canada's refusal,some 29 complaints were made to theInformation Commissioner. Inparallel, a researcher launched anaction in the Federal Court challengingthe Chief Statistician's refusal totransfer the 1906 census records to theNational Archives.

The Information Commissionercompleted his investigation anddetermined that Statistics Canada wasunder a legal obligation to transfer the1906 census records to the NationalArchives. He also concluded that thefailure to respect the legal obligationcould not be asserted as a valid basisfor refusing access to these records.Consequently, the InformationCommissioner recommended that the1906 census returns be disclosed to therequesting researchers in the sameterms as if they had been transferred tothe Archives.

The Chief Statistician refused tocomply with this recommendationand, with the consent of the requesters,the Information Commissionerprepared to file applications for reviewin the Federal Court seeking orderscompelling disclosure. On the day theFederal Court applications were to befiled (literally, the originatingdocuments were in the court'sregistry), the minister responsible

for Statistics Canada (the Minister ofIndustry) announced that the 1906census records had been transferred tothe National Archives and wereavailable, online, to the public.

The minister also announced that hewould introduce a Bill in Parliamentwith amendments to the Statistics Actdesigned to establish an access régimefor post-1906 census records to thepresent, and for the future. Thisgovernment initiative resulted fromthe government's view, on the onehand, that the census data base is anational resource from whichresearchers should not be barred. Onthe other hand, the government wasalso of the view that the existing 92-year rule in the Privacy Act Regulationsis not sufficiently sensitive toindividual privacy to engender thetrust of Canadians necessary to fullcooperation with future censussurveys.

The new compromise régime wasintroduced this year in the Senate inthe form of Bill S-13. Here is theproposed régime:

For any census between 1910 andpresent:

1) Public access will be permittedafter 112 years.

2) Researchers will be permittedaccess after 92 years (subject to anundertaking not to disclose somepersonal information until 112years have elapsed).

For any census in the future:

1) Public access will be permittedafter 92 years but only if the personcompleting the return hasconsented to such access.

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2) Secrecy of the return will bemaintained forever if consent iswithheld.

As might be expected, thiscompromise is highly controversial--especially with respect to the terms ofaccess to future census records. It isthe Information Commissioner's viewthat the compromise scheme containedin Bill S-13 is seriously flawed.

Under existing law, 1911 and 1916census records are accessible byanyone--in accordance with section 6of the Privacy Act Regulations--after 92years from the date of the census.There is no reason to restrict thataccess now nor to treat these censusrecords any differently from the 1906census records. There is no evidenceof any promise having been made toCanadians that there would be anylonger period of secrecy for theserecords.

For the future, there is no justificationfor allowing Canadians to throw ablanket of secrecy over censusinformation forever, merely bywithholding consent for disclosureafter 92 years. This expansion of thezone of secrecy would beunprecedented. As attractive as thenotion of up-front consent may be,other personal information held bygovernment--even the most sensitive,such as medical, psychiatric, parole orcriminal records--may be kept secretonly until 20 years have elapsed afteran individual's death. Moreover, theconsent provision will result in aseverely degraded data base for futureresearchers. When adopted inAustralia, almost 50 percent ofrespondents refused to give consentfor future disclosure.

This consent proposal is a recipe forthe serious degradation of the census

database as a national researchresource. It must be emphasized thatthere is no evidence indicating that arégime of access to census records after92 years would jeopardize in any wayvoluntary participation rates in anyfuture census. The British permit fullaccess after 100 years, the Americansafter 72 years; neither jurisdiction hasparticipation rate problems as a result.

Consequently, the InformationCommissioner has urged Parliament todrop the consent provision. If, asproposed in Bill S-13, 112 yearsrepresents an appropriate period afterwhich the law should deem thatprivacy interests cease in past censusrecords, then it should also apply forthe future. Such a time period isconsistent with the Privacy Act'sprovision that privacy rights surviveonly until 20 years after the death of anindividual.

C. Thorny Cases(Cabinet Confidences)

The strong guidance provided by theSupreme Court in Babcock has directimplications for access to informationrequesters and for the InformationCommissioner during complaintinvestigations. Five groups ofcomplaints had been set aside,pending the judgements in Babcockand Ethyl. They are:

1) complaints where inadequateinformation was provided to thecommissioner to establish on itsface that the withheld informationis a cabinet confidence;

2) complaints where the severancerequirements of the Access Act(section 25) may not have beenproperly applied to disclosebackground explanations, problem 21

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analysis and policy optionspresented to Cabinet for makingdecisions (information subject tothe right of access by paragraph69(3)(b) per Ethyl Canada);

3) cases where the content of thewithheld records may have alreadybeen made public;

4) cases where there may not havebeen an exercise of discretion, asrequired by Babcock concerningwhether the need for cabinetsecrecy outweighs the publicinterest in legitimate publicinquiry; and

5) cases where the provisions ofsection 69 may have beeninterpreted in an overly broadfashion to withhold informationwhich does not reveal thedeliberations of Cabinet, such as:

1) the fact that one minister wroteto another on a topic;

2) the fact that one minister metanother minister or the PrimeMinister on a certain day, timeand place; and

3) the fact that Cabinet met on acertain day, time and place.

Some progress has been made inaddressing these five problem groups.With respect to the first group, thePrivy Council Office has offered a six-month trial during which it wouldprovide to the InformationCommissioner the same descriptivedetails about confidences withheldpursuant to section 69 of the Access toInformation Act which Babcock requiresbe disclosed in a certificate pursuant tosection 39 of the Canada Evidence Act.With respect to group 2, thegovernment has decided not to appealthe Ethyl Canada decision and, hence,

will proceed to sever and disclose therecords or portions of records whichhave the purpose of presenting toCabinet background explanations,analysis of problems and policyoptions.

With respect to groups 3-5, discussionsare being held between the Office ofthe Information Commissioner and thePrivy Council Office. The difficulty atthe heart of these discussions is how todevelop an efficient section 69 reviewand advice process which respects theBabcock requirements (especially theproper exercise of discretion) withoutthe necessity for the InformationCommissioner to use his order powersto trigger the formal certificationprocess under the Canada Evidence Act.

The challenges to changing long-standing practices and mind-sets, withrespect to cabinet secrecy, should notbe underestimated. The revolution inthinking about cabinet secrecyoccasioned by Babcock and Ethyl willchange not only the types ofinformation available to the public but,also, the information which publicofficials may provide to parliamentarycommittees concerning the details ofgovernment's decisions, actions andexpenditures.

Catch 22 - The InformationCommissioner

The Information Commissioner foundhimself, this year, in the midst of astruggle between a parliamentarycommittee and the governmentconcerning the types of informationthe Information Commissioner shouldkeep secret about his office's budget.That struggle illustrates how “bizarre”has become the reach of cabinetsecrecy. Here are the details.

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For the first time in the almost 20-yearhistory of the Office of the InformationCommissioner, it was necessary forhim to ask Treasury Board Ministers toapprove additional monies to avoidgoing over budget for fiscal year 2002-2003. Ministers decided to giveadditional funds to the InformationCommissioner in the amount of$311,000. As is required, thegovernment then tabledSupplementary Estimates inParliament seeking approval to expendthe additional funds awarded to theInformation Commissioner (and tomany other government institutions).Review of the portion of theSupplementary Estimates relating tothe Office of the InformationCommissioner was assigned to theStanding Committee on GovernmentOperations and Estimates. Theinformation available to theCommittee--as set out in theSupplementary Estimates--was thefollowing:

Objects of Expenditure

Operating

Personnel $ 60,000

Professional and Special Services $251,000

Total $311,000

As might be expected, the InformationCommissioner's office was calledbefore the committee to giveexplanatory details. In preparation(for a first appearance of this kind),officials of Treasury Board were askedif the expenditure details contained inthe Treasury Board decision--but not inthe Supplementary Estimates--could beshared with the committee. TheInformation Commissioner wasanxious to make full disclosure.

To his great surprise, Treasury Board,in consultation with the Privy CouncilOffice, said “NO”. Here are the exactwords used: “Both TB submissionsand decision letters are consideredcabinet confidences, and must betreated as such (i.e. not revealed in anyway)…The information has not beenmade public, so it is still a confidencewhich must not be revealed.”

When the Deputy InformationCommissioner appeared before thecommittee, he explained the dilemmain which the office found itself. Hemade it clear that the InformationCommissioner wished to explain thedetails of the authorized expendituresand the terms under which theadditional funds were approved byTreasury Board Ministers. However,he also explained that, in the absenceof a committee order to disclose theinformation, the commissioner was notin a position to substitute hisjudgement for that of the governmentas to whether or not the details in theTreasury Board decision qualify for thecabinet confidence privilege.

The committee understood the difficultposition in which the commissionerfound himself, but was adamant thatthe information be provided. As aresult, the committee decided to writeto the Information Commissionerrequiring him “to provide to thecommittee any and all informationrequired by the committee to justifythe new appropriation in theSupplementary Estimates (B) in theamount of $311,000”. Treasury Boardand Privy Council Office were givennotice of the committee's order and ofthe date and time when thecommissioner was required to appearto respond.

At the appointed hour, the DeputyInformation Commissioner appeared

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for the second time. No official fromthe Privy Council Office or theTreasury Board appeared to assert thecabinet confidence objection todisclosure. Consequently, the DeputyCommissioner provided to thecommittee the detailed breakdown ofthe $311,000 which had beenauthorized by Treasury BoardMinisters. He also informed theCommittee that Treasury BoardMinisters had placed $126,000 of thetotal in a “frozen allotment”, whichmeans that it would be claimed backfrom the commissioner's 2003-2004budget.

It seems obvious to the InformationCommissioner that an interpretation ofthe cabinet confidence privilege, whichimpedes the constitutional role ofParliament to review governmentexpenditures, is overly broad andinappropriate. Moreover, such aninterpretation appears inconsistentwith the Supreme Court's guidance inBabcock which cautions against theuse of cabinet secrecy to thwart thepublic interest in legitimate publicinquiry. Surely, in a democracy, thereis no form of inquiry with morelegitimacy than that performed byelected representatives intoexpenditures which government isasking them to approve.

Catch 22 - the Auditor General

The Auditor General, this year, alsofound herself in a secrecy “Catch-22”caused by the government's overlybroad application of the cabinetconfidence privilege. During hearingsby the Public Accounts Committee intothe Auditor General's December 2002Report on the costs of the CanadianFirearms Program (CFP), a disputearose between the Auditor Generaland the Deputy Minister of Justice.The Auditor General informed the

Committee that the CFP had beendesignated by Treasury Board as a“major Crown project”--a designationwhich should have entailed morerigorous controls. The DeputyMinister of Justice, on the other hand,informed the Public AccountsCommittee that he was unaware thatthe CFP had been so designated. Inthe face of this difference of view, theCommittee asked the Auditor Generalfor additional documentationsupporting her view.

It transpired that the records on whichthe Auditor General based her viewwere three submissions to TreasuryBoard by Justice Canada and the threedecisions taken by Treasury BoardMinisters in response thereto.However, the Auditor General couldnot provide these records to the PublicAccounts Committee because thegovernment asserted that they werecabinet confidences. The AuditorGeneral, on February 26, 2003, wrote tothe Public Accounts Committee asfollows:

“Points 1 to 3 in the attachment referto information in submissions to theTreasury Board by the Department ofJustice and subsequent decisions of theTreasury Board on the CanadianFirearms Program. It is ourunderstanding that the sourcedocuments are considered by thegovernment to be confidences of theQueen's Privy Council. Neither myoffice nor departments may releasethese documents. However, I haveparaphrased the information in themrelating to the issue of whether theCanadian Firearms Program was amajor Crown project. Your committeemay wish to consider asking thegovernment to release the sourcedocuments if it wants to review theexact wording.”

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The very same issue (was CFP a majorCrown project) was the subject of aquestion of privilege in the House ofCommons alleging that the Presidentof Treasury Board had misled theHouse by asserting that the CFP wasnot a major Crown project. In herdefence, the Minister chose not todisclose the Treasury Boardsubmissions and decisions referred toby the Auditor General. Rather, sheasserted that no records could befound confirming that Treasury BoardMinisters had designated the CFP as amajor Crown project. There being norecords available to the Speakercontradicting the minister's assertion,he accepted her version of facts anddismissed the allegation that she hadmisled the House.

What legitimate governmental orpublic interest purpose could possiblybe served by the government'sinsistence that the resource requestsand approvals for the CFP be keptsecret? Does accountability have muchmeaning in a system wherebureaucrats and ministers may invokecabinet secrecy to refuse to provideParliament and the public withdocumentary support for theirassertions and assurances? Would thisincidence of secrecy pass the “smelltest” described by the Supreme Courtin Babcock?

D. Anti-terrorism andSecrecy

Since the terrorist attacks in the UnitedStates on September 11, 2001, theCanadian government has taken anumber of initiatives designed torestrict public access to informationand restrict the ability of theInformation Commissioner toindependently review government

refusals to disclose information. In lastyear's report, Parliament's attentionwas drawn to the fact that theAntiterrorism Act (introduced as Bill C-36) gave the Minister of Justice theauthority to issue a certificate whichwould not only cloak information insecrecy, but also terminate anyongoing investigation by theInformation Commissioner related tosuch information. (See pages 15-20,2001-2002 Annual Report.)

As well, the Privy Council Office, sincethe September 11th tragedy, insistedthat it be involved in the review of allaccess to information requestsconcerning post-9-11 matters.

It can be reported that, in thisreporting year, no secrecy certificateshave been issued under theantiterrorism legislation to terminateaccess investigations. As well, PCOhas ceased requiring departments toseek its review of all requestsconcerning antiterrorism/securitymatters. That is the good news!

The bad news is that Citizenship andImmigration Canada has askedCabinet to give it a greater ability tocloak information in secrecy bydesignating its enforcement andintelligence branches as an“investigative body” under the Accessto Information Act. Only investigativebodies may avail themselves of theexemption set out in paragraph16(1)(a) of the Act, which authorizessuch bodies to keep their records secretfor twenty years, without the necessityof demonstrating that an injury to lawenforcement or investigations couldresult from disclosure.

In the 20 years since the access law hasbeen in force, this is the first newapplication for investigative bodystatus. The Information Commissioner 25

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was given an opportunity to commenton the application and herecommended that the application bedenied. The text of his letter ofrecommendation to Justice Canada isappended to this report at pages 129 to130 (Appendix A).

Canadians continue to complain aboutexcessive secrecy on the part ofgovernment institutions which play arole in ensuring public safety. Themost high profile example this yearinvolves the refusal of TransportCanada to disclose information aboutthe results of their tests of airportbaggage and passenger screening. TheInformation Commissioner isinvestigating a complaint against arefusal to disclose even the results ofpast tests which have been disclosed inresponse to previous requests. Thishigh level of caution was also ofconcern, this year, to members of theStanding Senate Committee onNational Security and Defence whichundertook an examination of securityat Canadian airports.

In January of 2003, the SenateCommittee issued a report entitled:The Myth of Security at Canada'sAirports. Here is what that report hasto say about the government's refusalto disclose security-relatedinformation:

“The Committee recognizes the needto balance the public's right to knowagainst the interests of nationalsecurity. But unreasonable secrecy actsagainst national security. It shieldsincompetence and inaction, at a timethat competence and action are bothbadly needed. The Parliament ofCanada Act designates Parliament asthe primary agent in providingCanadians with good, balancedgovernment. The Committee seesitself as helping to perform this role on

behalf of all Canadians, andconsidered the resistance of somepeople who chose to hide behind afalse wall to be most inappropriate.”(p. 13).

The Access to Information Act wasintended to move us beyond a form ofgovernment accountability basedsolely on trusting the word and goodfaith of public officials. While trust inour public officials is important, andusually deserved, the Access Actallows us to verify that our trust iswell-placed. This important role ofopenness in our society is not givenadequate weight by our public officialswho are involved in security-relatedwork.

E. Reform of the Accessto Information Act

An important event in this reportingyear was the publication in June 2002,of the report of the government'sAccess to Information Review TaskForce, entitled: Access to Information:Making it Work for Canadians. Based onalmost two years of work by a groupof public servants, the report makesextensive recommendations forchanges to the Access to Information Actand for administrative changesdesigned to make the overall accessrégime more efficient and effective.

The Information Commissionerresponded to the Task Force Report ina special report to Parliament tabled inSeptember 2002. The special reportexpresses grave concern about the“insider” perspective of the Task Forceand the resulting, government-friendly,proposals for “reform”. To use thewords of the InformationCommissioner's Special Report:

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“By any reasonable measure, the TaskForce review 'process' was entirelyinadequate for determining how tostrengthen the right of access. As aresult, there is a great irony in the titlewhich the Task Force gave to itsreport: 'Making it Work for Canadians'.By design of the process, and (as weshall see) from an assessment of itscontent, this set of reform proposalsmight, more aptly, be titled: 'Making it(Less) Work for GovernmentOfficials'….

Every non-insider review of theAccess to Information Act over thepast 20 years has come to the sameconclusion: narrow the scope ofexemptions, broaden the coverage toinclude new records and institutions,make the system speedier, reduce feebarriers, strengthen the powers ofoversight and make governmentmore accountable for its obligationsunder the Act. The Task Forcerecommendations do not measureup to these expectations.”

No effort will be made in this annualreport to repeat, or even summarize,the content of this year's SpecialReport. To this point, the governmenthas not responded to the Task Forcerecommendations. Many of itsadministrative proposals--bettertraining, more resources, improvedcollection of evaluative statistics--require no legislative change andshould be proceeded with. However,since the recommendations forlegislative change do not reflect abroad range of perspectives drawnfrom the relevant stakeholders, theyare an unacceptable basis for draftlegislation. For this reason, theInformation Commissioner urged theMinister of Justice and government toengage a more open process of reviewbefore introducing an access reform

Bill. Here is the commissioner'sproposal:

“The right of access is one of thoserights which, by design, isuncomfortable for governments to livewith. This is the type of legislationwhich justifies giving parliamentariansand the public more freedom toinfluence the shape of amendmentsthan is possible once a government Billhas been tabled. It is to be hoped thatthe Minister of Justice and thegovernment will support a publicreview of the Task Force proposals, bya Parliamentary Committee, prior tointroducing proposed amendments inthe form of a Bill”. (Special Report, p. 33)

In January 2003, the Leader of theOpposition wrote to the PrimeMinister expressing his concern aboutTask Force proposals and urging thePrime Minister to submit the matter ofreform of the Access to Information Actto a Parliamentary Committee. Thetext of that letter is as follows:

“In 1993, you formed a Liberalgovernment that was to be based onopenness and transparency. Thefoundations of your electoral win werepremised upon these basic ideals and agreater importance on ethics ingovernment. All Canadians placedtheir faith in your stewardship andexpected you to uphold our mostfundamental values of freedom anddemocracy.

It is against this backdrop that I wishto raise your attention to the Access toInformation Review Task Force andthe corresponding Special Report toParliament by the Office of theInformation Commissioner. As anindependent officer of Parliament, theInformation Commissioner highlightsfifteen separate recommendations inthe Task Force report that increase the 27

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level of secrecy in the federalgovernment. If adopted, thesemeasures will result in even lessopenness and transparency than thereis currently. They expand the numberof exclusions and exemptions underthe Act and will place a chill on accessrequests.

Of equal concern, the government isalso proposing a long list of newrestrictions on Canadians who makeuse of the Access to Information Act.The Task Force is proposing toauthorize government institutions torefuse to process access requests thatthe government considers to befrivolous, vexatious or abusive. Itwould also require requesters to referto a specific subject matter or tospecific records. This is unnecessaryand punitive.

I submit to you that Canadiansdeserve better. They want a federalgovernment that leads the way in

making information available and is aglobal leader in providing informationto Canadians. They want crowncorporations that are open andtransparent. They want informationmade available without the need tomake requests under an Act ofParliament. They do not want a moresecretive government that seeks toexempt and exclude huge sections ofgovernment information.

Canadians expect us to act in opennessand transparency.

Accordingly, I urge your governmentto take the lead and reject therecommendations for increasedsecrecy proposed by the Task Force.

I urge you to submit the Access toInformation Act and the InformationCommissioner's Special Report forreview to a Standing Committee ofParliament in order to draft changes tothis vital piece of legislation.”

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A. Executive SummaryThe Information Commissioner ofCanada has long expressed concernregarding the state of informationmanagement in the Government ofCanada. Good recordkeeping is a pre-requisite for the successfuladministration of the Access toInformation Act as well as a centralcomponent of good governance.Effective information management isalso essential to protect the security ofCanadians in a post-September 11world, while respecting their accessand other democratic rights.

The commissioner’s annual reports,those of the Auditor General and otherevidence confirm that the governmentdoes not have adequate control over afundamental resource of governance.Weak records and informationmanagement continues to jeopardizepublic programs and services andimpede government openness andaccountability. Too often, records ofimportant business decisions, actionsand transactions are not created orthey are inaccessible or unreliable. Theelectronic information environment isoverwhelming traditional skills andresources.

The commissioner’s 2000-2001 Reportto Parliament made a number ofrecommendations for improvingfederal government recordkeeping.There is considerable evidence that thegovernment is responding to these andother calls for change:

• Information management isbecoming more widely recognized

as a core discipline of public sectormanagement.

• There is a better understanding ofwhat information management is.

• There is stronger leadership forinformation management.

• There is greater collaboration amongcentral agencies and departments.

• There are new mechanisms foraddressing IM issues anddeveloping shared solutions.

• There are new policies and tools tosupport information management.

• Individual departments areimproving their IM programs.

• There are promising efforts to raiseIM skills and develop a new IMcommunity within the publicservice.

There is now a will and somemomentum within the bureaucracy toimprove records and informationmanagement. Key roles are beingplayed by the Chief InformationOfficer Branch, the Library andArchives of Canada and a number ofprogressive departments. Withindepartments, a key indicator of successis the level of support from deputyministers.

It will take time, however, forawareness and effort to be translatedinto good recordkeeping practices.The government needs to accelerate itsefforts in the above areas so that thecurrent momentum is not lost. Aswell, the government needs to act on 29

CHAPTER IIADDRESSING THE CRISIS ININFORMATION MANAGEMENT*

* see page 44

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other recommendations previouslymade by the commissioner:

• Parliament must play a more activeoversight role for IM.

• The government needs arecordkeeping law.

• Clearer strategies and roles forinformation management areneeded.

• Strong support is needed toimplement the Management ofGovernment Information policy.

• Information management must bebetter funded.

• Progress in implementinginformation management policiesand practices needs to be objectivelyevaluated.

• Better metrics for IM are required.

• An IM education and trainingstrategy is needed.

A more fundamental issue is the needto change the bureaucratic andpolitical culture of the federalgovernment. Despite the efforts ofmany conscientious and dedicatedcivil servants, large bureaucraciessustain a culture that resists opennessand transparency. An introverted andrisk-reluctant command-and-controlhierarchy still characterizes many partsof the federal government. A doggedunwillingness to admit error stillpersists. Where this is the case, thetendency is to hold onto informationrather than to release it and to placeloyalty to a minister above the publicinterest.

Change must come from the ranks ofthe most senior public servants andfrom the political level itself. The bestguarantee of that change is greater

access by the public, the media, non-government organizations and othersto information that enables them toscrutinize the workings of governmentand hold public servants andpoliticians accountable. The PrivyCouncil Office can play an importantrole in this process as it links thepolitical and public service dimensionsof government. It has the opportunityand the responsibility to advanceinformation management and access asit develops a strong vision of evidence-based governance in the electronic age.Good records and effective informationmanagement provide the evidenceneeded to make decisions and takeaction that identify, protect and servethe public good.

B. Weakened Levers ofAccountability

The Information and PrivacyCommissioners, the Auditor General,Parliamentary Committees and othershave repeatedly called attention topoor information management and itsimpacts. Most recently, poorrecordkeeping was cited as a key factorof concern in the management of thegun registry program, in concerns overGST fraud, in the improper tenderingof government contracts, in theinability to locate costly commissionedreports, and in the lack of security forsensitive information placed ongovernment websites. The AuditorGeneral has said that some programswere so poorly documented that anaudit could not even be completed.i

The records were simply unavailable,incomplete or unreliable.

In his own area of responsibility, theInformation Commissioner has foundthat many complaints about the lack ofaccess to requested records involve30

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poor records management. Recordsearches are often lengthy andincomplete because records areinappropriately filed.

Relevant records are often duplicatedin many locations and in multipleversions of uncertain authoritativeness.Records that should be present in thefiles often have not been created (forexample, when the minutes ofimportant meetings are not taken andfiled). Records have sometimes beendestroyed prematurely and withoutauthorization. In some cases, therecords have been altered or theirlocation obscured to avoid discovery.The result is that often neithergovernment staff nor the public hasready and reasonable access toimportant information it needs and hasa right to see.

As well, many of the records thatdocument publicly funded activitiesare not accessible or adequatelyprotected. The programs are deliveredby non-government bodies not subjectto government audit, access andprivacy legislation or governmentrecords management standards.

Other problems stem from the hugevolumes of records found ingovernment departments in electronic,paper and other formats; the use ofcomplicated and quickly changingtechnologies; and the lack of basicskills among government staff forcreating and managing their ownrecords and shared files. In particular,the volume of e-mail and web-baseddocuments are overwhelminggovernment workers who havedifficulty understanding what to keepand what to discard.

The federal government has beencreating the complex technologyinfrastructure needed to support

Government On-Line. Less attentionhas been given to the quality andtimeliness of information thatCanadians want and need. A report bythe Public Policy Forum calledattention to the danger of an“emperor’s clothes syndrome” where“the outer clothes of Internet portalsand websites are removed to reveal afragile and inadequate informationinfrastructure…”ii

The bottom line is that theGovernment of Canada does not haveadequate management control over afundamental resource of governance.

The impact of poor recordsmanagement goes far beyond thegovernment’s access and privacyregime. Within government, the lackof accurate and authoritativeinformation results in poor decisions,failed programs and lost opportunities.Time wasted finding information andthe storage of records no longerneeded increase government operatingcosts. The failure to maintain andprotect records with high legal andintellectual property value resultsincreased liability and financial loss.The premature destruction of recordswith long-term archival valuecontributes to our collective historicalamnesia and the loss of valuableknowledge.

The impact on the public ranges frominconvenience (when requestedinformation is not convenientlyavailable) to a decline in the quality ofgovernance (when citizens lose faith ingovernment). As the InformationCommissioner has commented, atissue is:

“whether the public has confidencethat government will be responsiveto its needs, will act openly andtransparently, will recognize its duty 31

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to document its actions and beaccountable for them, and whether itwill respect the rights of individualsand organizations to accessinformation that shows how wellgovernment has met theseresponsibilities and expectations.”

In other words, at stake is whethersociety is able and willing to maintainits trust and confidence in government.Without these qualities, democracyitself is in serious jeopardy.

The security of Canadians is also atstake. In a post-September 11 world,that security depends directly on whatinformation is created and collected, itsquality and reliability, how theinformation is protected and whetherand to whom it is disseminated. Thegovernment must ensure that it haseffective policies and a stronginformation managementinfrastructure to protect vitalinformation assets, address serioussecurity concerns and safeguardfundamental public access and otherrights.

C. Moving in the RightDirection

Interest in and attention to informationmanagement have increasedconsiderably following therecommendations in the InformationCommissioner’s 2000-2001 Report (andin the government’s own SituationAnalysis report in 2000).iii Centralagencies and an increasing number ofdepartments are responding to thecalls for action:

Information management is becomingmore widely recognized as a corediscipline of public sectormanagement.

In government workshops and publicpresentations, the National Archivist,the Chief Information Officer andother senior government officials havebeen working to raise awareness of thevalue of records and informationmanagement. Treasury BoardSecretariat now sponsors an annual fall“IM Day” for public service managers.Presentations and case studiesunderline the importance of IM. InFebruary, the Library and Archives ofCanada sponsored a symposium for245 senior government staff on“Achieving Excellence in InformationManagement”. The objectives were toengage senior managers, recognize IMachievements and strengthen thegovernment’s IM community. Morethan 80% of senior executives whoattended left the symposiumcommitting to support stronger IMprograms in their departments.

Aside from the reports of theInformation Commissioner, theAuditor General and Treasury Boarditself, other studies have focused oninformation management. A review ofthe government’s ATIP regime echoedthe Information Commissioner’s callfor a stronger access culture and theneed for better training, tools,awareness, leadership and incentivesfor documenting government activitiesand managing government records.iv

New materials have appeared thatprovide a potent business case forimproving information management.The Library and Archives of Canadaprepared and widely disseminated aCase for Action for Improving InformationManagement in the Government ofCanada.v The Case for Action definesIM, its benefits, the risks of inactionand describes how the Government ofCanada is lagging behind othergovernments and the private sector in32

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improving information management.As well, a recent discussion paperpublished by the Public Policy Forumdiscusses in detail the intimaterelationship between goodrecordkeeping and good governance.vi

As Government On-Line matures as anelectronic service delivery strategy,more attention is being paid to thequality and relevance of programinformation, not just the speed andconvenience of internet-based access.

Numerous conferences and workshopsfor government staff are focusing onthe business value of informationmanagement and knowledgemanagement. “IM” and “KM” arebecoming both trendy catchwords aswell as serious disciplines that impacton every aspect of public (and private)sector activity.

All of these activities are raising theprofile of information managementand helping to generate greaterinterest in improving it in theGovernment of Canada. Informationis becoming recognized as one of thefour primary assets that governmentdepends on and must manage in aneffective and professional manner (theother resources being money, peopleand technology).

There is a better understanding ofwhat information management is.

The definition and level ofunderstanding of what comprisesinformation management vary widely.“IM” encompasses a variety ofprocesses and practices related torecords management, datamanagement, web contentmanagement, access and privacyadministration, knowledgemanagement and others. There is,however, a more widely shared

understanding of IM than before. Anew Management of GovernmentInformation (MGI) policy makes clearwhat managers and other publicservants must do to manage differentforms of information in their care. TheLibrary and Archives of Canada’s Casefor Action defines the fundamentalinformation management activities andprocesses. Treasury Board Secretariat’snew Framework for the Management ofInformation describes the wide range ofelements and activities that constituteIM. These and other initiatives todescribe and discuss informationmanagement have provided moreclarity and stimulated greaterawareness of information managementand about what needs to be done tobetter manage government records anddata in electronic, paper and otherforms.

There is stronger leadership forinformation management.

At both the central agency anddepartmental levels, strongerleadership for informationmanagement is emerging. WithinTreasury Board Secretariat, the ChiefInformation Officer Branch is creatinga stronger focus on IM and linking IMmore closely with its Government On-Line priorities. At the operationallevel, the Library and Archives ofCanada is emerging as the centre ofexpertise and lead agency for the life-cycle management of governmentrecords and documents. Both agencieshave a number of IM initiativesunderway and senior IM staff haveshown themselves to be energetic inleading change.

Two “champions” for informationmanagement have been designated topromote IM across the government:the National Archivist and theAssociate Deputy Minister of National

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Defence. Together, they combine theperspectives and expertise of animportant information managementprofessional with that of a highlyrespected government businessmanager.

At the departmental level, a clearerfocus for IM leadership is alsoemerging, albeit slowly. The IMresponsibilities of chief informationofficers (and other senior executives)are becoming more apparent and moreintegrated with their business andtechnology-related functions. The newManagement of Government Informationpolicy specifically requires that asenior executive in each department bedesignated with overall responsibilityfor implementing the policy. Deputyministers themselves are increasinglyexpected to actively support andprovide resources for IM development.This expectation comes both fromcentral agencies as well as from theirown managers looking for leadership.To promote better governance andaccountability for IM, the ChiefInformation Officer Branch has drafteddetailed guidelines in these areas fordepartments (see page 11, “Policiesand Tools”).

The Government of Canada is alsodemonstrating leadership ininformation managementinternationally. The Library andArchives of Canada, Public Works andGovernment Services Canada and theCanadian International DevelopmentAgency (CIDA) are involved ininitiatives to share Canadian expertisein IM with developing countries.These activities reflect a strongCanadian role in the G8 nations effortsto implement the Okinawa Charter onGlobal Information Society. vii

There is greater collaboration amongcentral agencies and departments.

A tradition of top-down policy andprogram development has long existedin the federal bureaucracy. Whilechange is inconsistent, a morecollaborative approach is becomingmore prevalent. The Framework forManaging Information, the Managementof Government Information policy andthe Information Management CapacityCheck tool (discussed later) are theproducts of significant consultationamong central agencies and linedepartments. As well, the IM roles ofthe two most prominent agencies (theChief Information Officer Branch ofTreasury Board Secretariat and theLibrary and Archives of Canada) arebecoming clearer, more coherent andbetter coordinated. There is anunderstanding that the development ofmost operational policies, practicesand tools for records and informationmanagement will be undertakenthrough interdepartmental teams withcentral agency leadership.

The joining of the National Archivesand National Library to form theLibrary and Archives of Canada alsoprovides an important opportunity tostrengthen the institution’s IMleadership role by integrating library,archival and document managementperspectives and breaking downprofessional and other barriers.

There are new mechanisms foraddressing IM issues and developingshared solutions.

New governance structures andmechanisms are enabling IM issues tobe more readily discussed andaddressed. These include anInformation Management and PoliciesCommittee (IMPC) of Treasury Board,consisting of director generals in34

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departments and central agencies andco-chaired by the Chief InformationOfficer Branch and Health Canada.IMPC is a subcommittee of the Service,Information and TechnologyManagement Board (SIMB). IMproposals discussed and endorsed atthese levels flow to Treasury Board’sexisting Information Management Sub-Committee (TIMS), consisting of theChief Information Officer of Canadaand a number of deputy ministers.And although confusingly named, anInformation Management ChampionsCommittee (IMCC) provides a forumspecifically for human resourcesdevelopment issues. Other advisoryand “sounding board” bodies are theInformation Management AdvisoryGroup (IMAG) and the ChiefInformation Officer Council. All ofthese bodies bring needed process,collaboration and governance toinformation management matters. AtTIMS, in particular, there is now bothgreater opportunity and need toconsider the IM dimensions of majorgovernment programs. Thesecommittees are complimented by otherbodies such as the InformationManagement Forum, the RecordsManagement Institute and the Councilon Federal Libraries.

There are new policies and tools tosupport information management.

A strong policy foundation for thegovernment’s IM program has nowbeen developed. The Management ofGovernment Information policy wasapproved by Treasury Board in April2003. MGI succinctly defines the life-cycle operational requirements formanaging information in all forms. Itprovides information about the legalframework for recordkeeping, requiresthat departments ensure effective IMgovernance and accountability

arrangements, and necessitatesongoing evaluation of IM activities.Unlike earlier policies, MGI speaks toall managers and identifies the valueof well-managed information to thegovernment and to Canadians.viii

MGI is at the centre of Treasury BoardSecretariat’s Framework for ManagingInformation (FMI). The Frameworkmaps the elements of the government’sIM infrastructure (laws, policies,standards, guidelines, etc.) and showstheir interrelationships. While some ofthe elements of the infrastructure arealready in place within thegovernment, others still need to bedeveloped or adapted. Over time, theweb-based Framework will providelinks to all of these materials.

One of these elements is a guidelinefor departments for establishing stronggovernance and accountabilityarrangements for IM.ix Still in draftform, this document definesgovernance and accountability andrelated processes. It describes in detailthe IM roles and responsibilities ofministers, deputy ministers, the seniorexecutive responsible for IM and othermanagers and staff (includinginformation management andinformation technology specialists). It is a blueprint for establishingeffective leadership and accountabilityfor IM within federal institutions.When released, it will substantiallyrespond to the InformationCommissioner’s call for a stronginformation-centred accountabilityframework.

A newly developed tool andmethodology helps departmentsmeasure their current capacity formanaging information. The Libraryand Archives of Canada’s InformationManagement Capacity Check (IMCC)identifies six aspects of information

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management (including managementof the records life cycle) and for eachdescribes the characteristics of five“maturity levels” ranging from “Non-existent/Undeveloped” to “IndustryBest Practices”.x Consistent with theInternational Records ManagementStandardxi (ISO 15489), the CapacityCheck provides a basis for departmentsto establish a baseline and determineIM development priorities. Theintention is eventually to link each areaassessed to a suite of practical tools(model standards, policies, guidelinesand practices) that departments mayuse. The government has endorsed theIMCC for use by all departments.

A number of other central IMinitiatives are underway. Led by eitherthe Library and Archives of Canada,the CIO Branch or undertakencollaboratively, they include:

• development of a web-based Recordsand Information Life-CycleManagement Guide describing IMprocesses and resources formanagers as well as a guide fordeputy ministers;

• development of government-wideretention periods for commonadministrative records indepartments;

• updating of “Records DispositionAuthorities” that allow departmentsto dispose of their records when nolonger needed;

• special projects to dispose ofunneeded departmental paperrecords (“Clearing PaperMountains”);

• development of a government-widefile classification model andimplementation guide for commonbusiness functions;

• work on a strategy for preservingarchival electronic records;

• review of the federal records centresprogram;

• implementation of a government-wide metadata standard (a modelfor describing records and dataholdings) and a related thesaurus ofcommon terms;

• development of specific guidelinesfor the management of e-mailrecords, web documents andencrypted and digitally signeddocuments;

• development of new guidelines forthe management of governmentpublications.

Individual departments are improvingtheir IM programs.

Individual departments are takingsteps to improve records andinformation management. With thenecessity to implement the newManagement of Government Informationpolicy in mind, a number ofdepartments are reviewing their IMinfrastructure, raising internalawareness, and introducingdepartmental policies, standards andprocesses.xii

More departments are implementingelectronic records and documentmanagement systems such as RDIMS,although cost and complexity remainbarriers. Departments that havealready implemented RDIMS arerealizing that their success depends asmuch on changes in the businessculture (e.g. the willingness todocument key activities) as it does onlearning to use the new software. As well, RDIMS requires a high andcontinuing level of training andsupport to become an accepted way of36

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managing records and documents atthe desktop.

At the Library and Archives ofCanada’s IM symposium in February,ten departments were singled out forsignificant information managementprojects. “Leading by ExampleAwards” were given to theDepartment of Foreign Affairs andInternational Trade, Public Works andGovernment Services Canada,Transport Canada, Solicitor General ofCanada, Citizenship and ImmigrationCanada, Human ResourcesDevelopment Canada, StatisticsCanada, Canadian InternationalDevelopment Agency, Health Canadaand Natural Resources Canada.Examples of initiatives include:“clearing paper mountains”,evaluating their IM capacity,developing virtual libraries,introducing department-wide fileplans and introducing e-mailmanagement tools.

Overall, progress “on the ground” isstill modest and varies widelydepending on the degree of seniormanagement support and the level ofresources made available. (At the IMsymposium, managers agreed thatstrong IM leadership from their deputyministers was among the most crucialfactors for moving ahead.)

There are promising efforts to improveIM skills and develop a new IMcommunity.

The e-government informationenvironment requires a new breed ofinformation professionals. A commoncomplaint of deputy ministers andother senior managers is that peoplewho understand and can support thisnew environment are not available.Records managers, file clerks and othertraditional positions common in the

paper world have long beendisappearing. Reasons include budgetcuts and the naïve assumption thatnew technology would make “recordsmanagement” unnecessary. Managerssubsequently realized that managingcomplex electronic records and datasystems was an even more challengingtask than dealing with “papermountains”.

As attention shifts from technologymanagement to informationmanagement (and eventually, it ishoped, to knowledge management),departments are beginning toappreciate the need for professionalswho understand the managementrequirements of both “data” and“records” in multiple media. Suchstaff are essential for designing andimplementing a mature informationsystems environment and helping toembed effective recordkeeping andother IM practices in businessprocesses and technology tools. As anexample, public service values andcodes should include a commitment todocumenting government decisionsand actions.

There is strong evidence that centralagencies are helping generate a newIM “community of practice”. TheOrganizational Readiness Office (ORO)in the Chief Information Officer Branchis leading this change managementprocess. Based on earlier work toidentify IM core competencies, it hasplaced a repository of IM workdescriptions on the federal intranetthat can be used by departments todevelop or revise IM positions. Ingeneral, these represent moresophisticated and better paid positionsthan traditional records managementjobs. In particular, ORO is establishingmodels for three director-level“signature” positions that departments 37

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should have. These positions relate toinformation management, knowledgemanagement and access/privacymanagement. ORO has proposed atwo-year “IM Leadership”development program for director-level managers. As noted earlier, theCIO Branch has also draftedgovernance and accountabilityguidelines for departments thatdescribe IM roles and responsibilitiesof managers and staff.

Much of this activity is community-driven: IT staff, records specialists,librarians and program managersrecognize that issues, perspectives andskills are converging as e-governmentemerges. Professional islands arebeginning to disappear. “Web contentmanagers” are an example of a newposition that should requireknowledge of government programs,document management andpreservation, and new technology.

Consideration is also being given tothe education and training programsneeded to develop this new group ofIM managers and staff. TheKnowledge Institute in Public Worksand Government Services Canada isconsidering the role it can play intraining supervisors and other middlemanagers. It has offered somevaluable IM training in the past (e.g.,“IM: Its Role in Government On-Line”).There is also potential for theCanadian Centre for ManagementDevelopment to develop programsthat deal directly with the informationmanagement dimension for seniorexecutives. These prospects and plansare still at an early stage, however.

As IM professions and theirdevelopment strategies slowlyconverge, an increasing number ofconsultations, training anddevelopment events is being offered to

government managers and informationmanagement staff by a variety ofpublic and non-governmentorganizations.

As they proceed, these efforts willshow that information management isa core discipline in the public service.Managing information is whateveryone does.

D. Steps AheadThe progress that is being made instrengthening IM practices andinfrastructure is both overdue andwelcome. There are now clear signs ofa bureaucratic will to do something. Itwill take time, however, for awarenessand effort to be translated into moreefficient and effective recordkeepingpractices. The pace of change is oftenglacially slow within largebureaucracies with competing andchanging priorities. The Management ofGovernment Information policy--a basicset of IM precepts--took almost threeyears to develop and approve.

In some areas of the government, thereis still little visible evidence of change.Program and policy managers,information specialists, auditors, legalstaff and parliamentarians who rely ongood business records to do their workcontinue to be frustrated. Auditreports and newspaper headlines stillremind the public that it cannot alwaysaccess or trust government informationto which they have a right.

As the Information Commissioneremphasized in his 2000-2001 Report toParliament, recordkeeping willimprove when openness andtransparency are “reinforced in law,championed at the highest politicallevels, communicated as afundamental expectation of public38

service, consistently demonstrated inpractice and adequately rewarded.”xiii

The significant progress that hasoccurred needs to be recognized andapplauded. The government mustaccelerate its efforts in the above areas,however, so the IM momentum is notlost. As well, government needs totake action in the following areas:

Parliament must play a more activeoversight role for IM.

The effectiveness of Parliament as afundamental institution of democraticgovernance depends on theinformation it receives, considers andis able to act upon. The AuditorGeneral and others (includingparliamentarians themselves) haverepeatedly noted that Parliament oftendoes not receive the information itneeds to exercise its role effectively.

It is essential that Parliament demandthe information it needs to review andapprove programs and expenditures,assess their effectiveness, consider newlegislation and perform otherfunctions. It has the authority torequire officials to provide completeand credible information about theirprograms, activities and expendituresand should rigorously question theinformation it receives. It also needs toassure itself (and Canadians) thatdepartments have the necessaryunderlying IM infrastructure andrecordkeeping practices in place. Itcan accomplish these ends through itsstanding and special committees,through reports and audits it requestsfrom departments (or undertakesitself) and through other opportunitiesto exercise oversight.

Access to reliable information aboutgovernment activities and decisionslies at the core of responsiblerepresentative government.Parliament needs to play a more activerole in promoting better informationmanagement in support of these goals.This will not only enhance democraticgovernance, but make Parliament astronger and more relevant institution.

The need for a recordkeeping law

Federal government recordkeepingpolicies and practices still lack a strongfoundation in law. Canada haslegislation dealing with certain aspectsof information management (e.g.,public access and privacy, archivalpreservation). What is missing islegislation that deals explicitly andcomprehensively with the creation ofrecords and the government’sstewardship of recorded informationover its complete life cycle.

Although some program-specificlegislation includes records provisions,Canada does not impose a generallegal obligation on ministers of theCrown and their departments to createand maintain full and accurate recordsof their business activities (the duty todocument).xiv In an increasingly casualcommunications environment, we canno longer presume that appropriaterecords are being created and kept(e.g., the minutes of meetings are nolonger routinely taken).

The purpose of a recordkeeping lawwould be to enhance the integrity andeffectiveness of government operationsand the availability and quality of theinformation on which they depend.The law would recognize the businessand other value of government’sinformation assets in all forms

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(including their importance for publicsafety and security) and require theireffective life-cycle management. Manyother countries have passed recordslegislation to underpin theseobjectives.

A new recordkeeping law mightinclude the following elements:

• Identify basic informationmanagement principles, values andobjectives regarding governmentintegrity, security, effectiveness,accountability, asset management,etc.;

• Require ministers and agency headsto ensure that records are created,acquired and maintained thatadequately document keyorganization functions, activities,decisions, policies and transactions;

• Require that a records andinformation management programbe established within eachdepartment/agency andappropriately resourced;

• Require that a senior executive bedesignated within each departmentwith overall responsibility forinformation management;

• Require that the program includestandards, procedures and trainingrelated to documenting businessactivities, identifying and organizingrecords, storing and protectingrecords, providing access to records;and retaining and disposing ofrecords (all of these in conformitywith other laws and standards);

• Require that all governmentprograms and operations adhere tothe above standards and practices inthe management of recordedinformation;

• Require that certain types oforganizations doing business withthe federal government or receivingsubstantial federal funds have inplace adequate recordsmanagement;

• Require that technology-dependentrecords be kept accessible for theduration of their authorizedretention periods;

• Provide for the monitoring,evaluation and reporting on therecords and informationmanagement program (and of theperformance of related officials);

• Establish consequences for failing tomeet the requirements of the Act(and identify the circumstancesunder which they might apply).

At its centre, the law would provide alegal basis for the Management ofGovernment Information policy and itskey provisions. It could potentiallyprovide a foundation for othergovernment information-centredpolicies as well. xv

The value of and suggested options fora new information law were discussedat length in the InformationCommissioner’s 2000-2001 AnnualReport. The Government of Canadashould formally assess the merits of arecordkeeping law.

Clearer strategies and roles forinformation management are needed.

While central agency leadership in IMis increasing, there is still a need for amore coherent “whole of government”approach. There is no clearly definedgovernment strategy or roadmap forimproving IM. Its absence increasesthe risk of poor coordination,fragmented initiatives and blurredaccountability. It needs to be40

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developed by central agencies anddepartments and reviewed by the IMcommittees.

The strategy could help clarify theroles and relationship between the CIOBranch and the Library and Archivesof Canada. Although a valuablepartnership is evolving, it is difficult todetermine who is accountable overallas well as for specific initiatives. TheTreasury Board Secretariat’s internetsite on IM governance lists only thearchival preservation responsibilities ofthe National Archives. Treasury BoardSecretariat’s own IM role is describedas relating to the “management of thegovernment’s human, financial andmaterial resources”. xvi Inexplicably,the management of informationresources is not mentioned. Within theCIO Branch itself, key IM units nowhave different reporting relationships,making coordination more difficult.

Leadership for informationmanagement would also be greater ifthe Chief Information Officer weregiven a more direct and active role inthe review of departmental estimates.This would help ensure that keyinformation management issues areidentified and addressed in majorprogram plans.

At the departmental level, leadershipfor IM is still often absent. Attendeesat the February IM Symposiumidentified “lack of leadership” as thegreatest barrier to good informationmanagement in their institutions.Treasury Board guidelines for IMgovernance and accountability need tobe disseminated and activelypromoted.

Strong support is needed to implementthe Management of GovernmentInformation policy.

To support the implementation ofMGI, departments will need a phasedimplementation strategy andoperational plan. They will also needpractical tools and appropriate modelsin various areas. These include modelsfor developing an IM business case,evaluating IM risks and benefits,documenting business activities,creating file plans, determining recordsretention periods, managing e-mailand web documents, devising trainingplans, and others. Portions of this toolkit already exist within thegovernment and others can be adaptedfrom international models. It is theintention of the Chief InformationOfficer Branch and the Library andArchives of Canada to make suchmaterials and related supportsavailable. As yet, the resourcematerials on central agency IMwebsites are incomplete and the sitesare not yet sufficiently structured,integrated, coordinated and linked. Aspart of government-wideimplementation plan for MGI, theseresources need to be available to helpguide departments and sustain thecurrent momentum.

Information management must bebetter funded.

Even with good laws, policies andleadership in place, a strong IMinfrastructure cannot be developedand sustained without sufficient funds.In earlier government programreviews, records managementprograms were mistakenly seen aslow-level administrative activities andwere decimated. Finding anddeveloping qualified staff, introducingelectronic records managementsystems and developing department-specific policies and standards requiremoney. The Management of GovernmentInformation policy has raised 41

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expectations of the resources needed toimplement it.

Central agencies, too, need the fundsto plan and implement corporate IMinitiatives. The Library and Archivesof Canada, for example, is attemptingto build a strong government-wideleadership role without the necessaryresources to sustain it.

Progress in implementing informationmanagement policies and practicesneeds to be objectively evaluated.

The introduction of the MGI policy isencouraging departments to assess thecurrent state of their IM infrastructureand to plan improvements. Over thelonger term, departments regularlyneed to assess their progress inimplementing the policy. Clearly, theinternal evaluation of programs is themost effective strategy for generatinggreater management ownership ofprograms and results. Self-assessmentby program managers is not alwayssufficiently objective, however, nordoes it provide a whole-of-governmentview of the state of IM. Importantroles need to be played by internalauditors, central agencies and by theAuditor General in assessing whetherrecords management programs meetstandards. xvii Once the MGI policyhas had time to take effect, the Officeof the Auditor General should assessthe success of its implementation inindividual departments and on awhole-of-government basis.

The Information Commissioner alsorecommended (in the 2000-2001Report) that all program and spendingaudits should directly addressprogram-centred informationmanagement issues and gaps.

A barrier to generating widerappreciation of IM (as well as inevaluating IM initiatives) is thedifficulty in measuring its costs, risks,benefits and other impacts. Asinformation management permeatesall aspects of government operations, itis often difficult to quantify the aboveelements or attribute impacts tospecific IM activities. Still, bettermetrics are needed to justify, develop,implement and evaluate IM initiatives.Useful approaches are available.Governments (including the federalgovernment) and the private sectorhave, for example, developed riskassessment methodologies that can beadapted to an informationmanagement context. The GartnerGroup has researched the amount oftime that workers take (and oftenwaste) in locating and retrievingrecords, reviewing and responding toe-mail and performing otherinformation management tasks. xviii

Methodologies exist to measure thevalue of “intellectual capital”embedded in records anddocuments. xix As well, manydepartments have undertakensuccessful initiatives that providespecific examples of financial or otherbenefits (lower storage costs, shorterprocessing time, etc.).

The federal government (as well asOntario and others) have developedprivacy impact assessment tools. Asimilar methodology could be used toensure that other informationmanagement issues and impacts areconsidered in the development or re-design of programs, services andinformation systems.

The federal government shouldundertake research into IM metrics,

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codify useful approaches and assemblea catalogue of direct and indirect(proxy) measures as well as examplesof real-world benefits. This would beuseful in helping departments justify,plan and evaluate IM projects and theperformance of managers responsiblefor them.

An IM education and training strategyis needed.

There is increasing attention to theneed to modernize the public serviceand ensure that it has the skills itneeds to manage in an informationand technology-rich environment. Themost recent budget statementannounced new initiatives in this area.Information management needs to bean important part of these efforts. Theability to manage and effectively useinformation is a core skill that needs tobe at the centre of any public sectoreducation and training strategy.

The Chief Information Officer Branch,the Library and Archives of Canada,the Canadian Centre for ManagementDevelopment, the Knowledge Instituteof Public Works and GovernmentServices (and others) shouldcollaborate to develop a strategy forIM education and training. Thestrategy should identify the topics thatelected officials, senior executives,middle managers, informationspecialists and other government staffneed to know. It should identifyleadership for developing andimplementing IM education andtraining programs for each audience.Significant roles can also be played byother government, professional andprivate sector bodies.

A Fundamental Priority – Changingthe Bureaucratic and Political Culture

Some issues are more fundamental,complex and difficult to change.Despite the efforts of manyconscientious and dedicated civilservants, large bureaucracies sustain aculture that resists openness andtransparency. An introverted and risk-reluctant command-and-controlhierarchy still characterizes many partsof the federal government. A doggedunwillingness to admit error stillpersists. Where this is the case, thetendency is to hold onto informationrather than to release it and to placeloyalty to a minister above the publicinterest. Senior managers at theFebruary IM Symposium identified“organizational culture” as the secondgreatest barrier to good informationmanagement (after “lack ofleadership”). xx

Change must come from the ranks ofthe most senior public servants andfrom the political level itself. The bestguarantee of that change is greateraccess by the public, the media, non-government organizations and othersto information that enables them toscrutinize the workings of governmentand hold public servants andpoliticians accountable. The PrivyCouncil Office can play an importantrole in this process as it links thepolitical and public service dimensionsof government. It has the opportunityand the responsibility to advanceinformation management and access asit develops a strong vision of evidence-based governance in the electronic age.Good records and effective informationmanagement provide the evidenceneeded to make decisions and takeaction that identify, protect and servethe public good.

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i Office of the Auditor General of Canada, December 2002 Report, Chapter 10; http://www.oag-bvg.gc.ca/domino/reports.nsf/html/20021210ce.html

ii Andrew Lipchak, "Information Management to Support Evidence-based Governance in theElectronic Age," Public Policy Forum, Ottawa, November 2002;(http://www.ppforum.com/english/index.html)

iii John McDonald, "Information Management in the Government of Canada – A SituationAnalysis", Treasury Board of Canada/National Archives of Canada, June 2000

iv "Report of the Access to Information Review Task Force", Treasury Board, June 2002(Chapters 9 and 11)

v The "Case for Action" is available at: http://www.archives.ca/06/0603_e.html

vi Andrew Lipchak, "Information Management to Support Evidence-based Governance in theElectronic Age," Public Policy Forum, Ottawa, November, 2002;(http://www.ppforum.com/english/index.html)

vii ibid

viii The Management of Government Information policy replaces the Management ofGovernment Information Holdings policy, largely directed to records specialists.

ix "Governance and Accountability in Government Institutions Guideline", Treasury BoardSecretariat, October 2002 (Draft)

x The National Archives IM Capacity Check tool is a available at:http://www.archives.ca/06/0603_e.html

xi ISO 15489 (Information and Documentation - Records Management), released October 2001;http://www.iso.ch/iso/en/commcentre/pressreleases/2002/Ref814.html

xii 78% of those attending the February IM Symposium indicated that they were planning, wereundertaking or had completed an IM assessment and action plan.

xiii The Hon. John M. Reid, P.C., Annual Report, Information Commissioner, 2000-2001, June2001; http://www.infocom.gc.ca/reports

xiv The Financial Administration Act does require that departments and crown corporations keeprecords and accounts with regard to the management of finances and other assets.

xv Examples include the Government of Canada Communications Policy, Government SecurityPolicy, Management of Information Technology Policy, Public Key InfrastructureManagement Policy, Electronic Authorization and Authentication Policy.

xvi http://www.cio-dpi.gc.ca/imgi/governance/gov_e.asp#Central%20Agency%20Name

xvii Treasury Board Secretariat and the Library and Archives of Canada also have assessmentfunctions as part of their mandates.

xviii In its "Case for Action", the Library and Archives of Canada uses some of these measures toestimate the high cost of this wasted time in the Government of Canada (more than $870Million annually).

xix Useful sources include: http://www.derwent.com/ipmatters/features/ipvalue.html; http://www.canadalawbook.ca/headlines/headline32_arc.html; Valuation ofIntellectual Property and Intangible Assets (Gordon V. Smith, Russell L. Parr)

xx "Organizational culture" was not defined in the poll taken at the symposium.

* The Information Commissioner is grateful to Andrew Lipchak of Infotegrity Consulting for thewise counsel and careful research which were provided in the preparation of this chapter.

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A. Workload StatisticsIn the reporting year (2002-2003), 956complaints were made to thecommissioner against governmentinstitutions (see Table 1). Table 2indicates that 1,004 investigations werecompleted, 16.2 percent of allcompleted complaints being of delay.Last year, by comparison 28.2 percentof complaints concerned delay. Thissignificant drop in the number of delaycomplaints is indicative of a generallyimproving performance bygovernment in meeting responsedeadlines.

In addition to the complaints receivedthis year, the office responded to 3,157inquiries.

Resolutions of complaints wereachieved without the intervention ofthe courts in every completedinvestigation with only two exceptions.Those cases are reported at pages 71 to73. With the consent of the requesters,they have been brought before theFederal Court for review.

As seen from Table 3, the overallturnaround time for complaintinvestigations increased to 8.18 monthsfrom 7.85 months last year. Parliamentwas alerted last year to thedeterioration in the office's ability todeliver timely investigations due toresource constraints, a heavy burden ofcomplex investigations and difficultyin securing informal cooperation fromgovernment institutions. Table 3Aillustrates the effect on completiontime of the increasing percentage ofworkload in the more complex,difficult complaint categories.

Table 1 reminds us that there continuesto be a troubling number of incompleteinvestigations. Last year it was 729,this year it is 631. Of this number, 373have been under investigation for aperiod which indicates that they arebacklogged. Even though progresswas made this year in reducing thebacklog, it remains at an unacceptablelevel and effects the completion time ofall cases. Some of the progress inreducing the backlog is due to amodest infusion of new resources fromTreasury Board. At this writing, thecommissioner is endeavouring toconvince the Treasury Board that thereis some further way to go before hisoffice is adequately resourced toeffectively fulfill its mandate.

As can be seen from Table 4,complaints were investigated against54 government institutions. Some 66percent of all complaints were madeagainst only ten governmentinstitutions. This phenomenoncorresponds with the access requestsreceived by government as a whole: afew institutions account for the bulk ofall requests.

Of the complaints closed this fiscalyear, the top ten “complained against”institutions are:

Institution

1. Citizenship and ImmigrationCanada 111

2. National Defence 84

3. Public Works and GovernmentServices Canada 70

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4. Royal Canadian Mounted Police 60

5. Canada Customs and RevenueAgency 54

6. Environment Canada 54

7. Fisheries and Oceans Canada 50

8. Treasury Board of Canada,Secretariat 50

9. Foreign Affairs and InternationalTrade 46

10. Justice Canada/Privy CouncilOffice 45

Being on this list does not necessarilymean that these institutions performedpoorly. To better assess “performance”,one must look at the number ofcomplaints against each institutionwhich were found to have merit versusthe number which were notsubstantiated.

Nevertheless, if one were to list the“top ten” institutions against whomcomplaints were made which thecommissioner found, in this reportingyear, to have merit (resolved or well-founded), the list would be:

Institution

1. Citizenship and ImmigrationCanada 56 of 111

2. Public Works and GovernmentServices Canada 53 of 70

3. National Defence 50 of 84

4. Treasury Board of Canada,Secretariat 44 of 50

5. Fisheries and Oceans Canada 32 of 50

6. Statistics Canada 32 of 34

7. Environment Canada 31 of 54

8. Foreign Affairs and International Trade 30 of 46

9. Justice Canada 29 of 45

10. Canada Customs and Revenue Agency 28 of 54

Last year, special mention was made ofthe difficulties being experienced byCitizenship and Immigration Canadain dealing with a large volume ofaccess requests in an efficient manner.Since that report, additional resourcesand new procedures have been put inplace. While Citizenship andImmigration Canada still tops bothlists (number of complaints againstand number of meritorious complaintsagainst), improved performance isbeginning to show. As indicated in thereport card results (see pages 139 to144), the percentage of requestsreceived which are answered latedropped to 3.8 percent for the periodApril 1 to November 30, 2002. Bycomparison, last year, the rate wasalmost 13 percent However, there isalso some evidence to be explored inthe coming year--that Citizenship andImmigration Canada’s improvementmay have resulted from an overlyliberal use of extensions.

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Table 1: STATUS OF COMPLAINTSApril 1, 2001 April 1, 2002

to Mar. 31, 2002 to Mar. 31, 2003

Pending from previous year 928 729Opened during the year 1123 1114Cancelled during the year 87 208Completed during the year 1235 1004Pending at year-end 729 631

Table 2: COMPLAINT FINDINGS (April 1, 2002 to March 31, 2003)FINDING

Not Not Sub- Discon-CATEGORY Resolved Resolved stantiated tinued TOTAL %

Refusal to disclose 301 31 218 39 589 58.7%

Delay (deemed refusal) 135 – 24 4 163 16.2%

Time extension 86 – 24 15 125 12.5%

Fees 35 – 8 5 48 4.7%

Language 1 – 2 – 3 0.3%

Publications – – – – – –

Miscellaneous 27 1 43 5 76 7.6%

TOTAL 585 32 319 68 1004 100%

100% 58.3% 3.2% 31.8% 6.7%

Note : 30 of the 32 complaints with a finding of "Not Resolved" involved requestsfor access to census records held by Statistics Canada (29 of the Refusals andthe one Miscellaneous case). At the time the commissioner issued hisfinding, the complaints remained unresolved (and thus must be reported assuch in this report).

However, on the same day applications for review were to be filed withthe Federal Court, Statistics Canada changed its position and decided todisclose all requested records in accordance with the commissioner'srecommendation.

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Notes: 1. Difficult Cases – Cases that take over two times the average amount ofinvestigator time to resolve.

2. Cases take on average four times as much investigator time to resolvethan administrative cases.

3. Trend 1 – Administrative cases now account for just 41% of ourworkload compared to 60% in FY 2000/01.

4. Trend 2 – Difficult cases now account for 32% of our workloadcompared to just 8% in FY 2000/01.

Table 3: TURNAROUND TIME (Months)2000.04.01 – 2001.03.31 2001.04.01 – 2002.03.31 2002.04.01 – 2003.03.31

CATEGORY Months Cases Months Cases Months Cases

Refusal to disclose 7.83 534 9.76 690 9.74 589

Delay (deemed refusal) 3.33 575 4.99 348 4.54 163Time extension 4.18 151 5.59 76 8.27 125

Fees 7.02 54 5.84 68 4.73 48

Language – – 2.33 1 7.17 3Publications – – – – – –Miscellaneous 4.61 23 7.82 49 5.88 76

Overall 5.40 1337 7.85 1232 8.18 1004

Table 3A: TURNAROUND TIME (Months)2000.04.01 – 2001.03.31 2001.04.01 – 2002.03.31 2002.04.01 – 2003.03.31

Standard Difficult Standard Difficult Standard DifficultCATEGORY Months % Months % Months % Months % Months % Months %

Delay (deemedrefusal) 3.25 41 5.32 2 4.67 26 8.26 3 3.35 10 6.53 6Time extension 4.03 11 6.47 1 5.43 5 5.93 2 3.75 5 11.29 7Fees 6.59 4 11.25 0 5.31 5 10.53 1 3.02 2 6.18 3Language - - - - 2.33 0 - - 3.52 0 8.99 0Publications - - - - - - - - - - - - Miscellaneous 4.62 2 - - 5.60 3 13.99 1 3.67 5 9.67 3Subtotal – Admin.Cases 3.65 57 6.40 3 4.91 38 8.92 6 3.48 22 8.82 19Refusal to disclose 7.10 35 13.46 5 8.59 47 16.35 8 7.63 45 16.93 13Overall 4.96 92 10.80 8 6.95 86 13.36 14 6.27 68 12.15 32

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Table 4: COMPLAINT FINDINGS (by government institution) April 1, 2002 to March 31, 2003

GOVERNMENT Not Not Sub- Discon-INSTITUTION Resolved Resolved stantiated tinued TOTALAgriculture and Agri-Food Canada 11 - 1 - 12

Atlantic Canada Opportunities Agency 1 - 1 - 2

British Columbia Treaty Commission - - 1 - 1

Business Development Bank of Canada 15 - 7 - 22

Canada Customs and Revenue Agency 28 - 23 3 54

Canada Economic Development for the Quebec Region 2 - - - 2

Canada Mortgage & Housing Corporation 2 - - 1 3

Canada Nova Scotia Offshore Petroleum Board - - 1 - 1

Canadian Commercial Corporation 1 - - - 1

Canadian Film Development Corporation - - 1 - 1

Canadian Food Inspection Agency 2 - 1 - 3

Canadian Heritage 4 - 3 1 8

Canadian Human Rights Commission - - 1 - 1

Canadian International Development Agency 5 - - - 5

Canadian Radio-Televisionand Telecommunications Commission 1 - - 1 2

Canadian Security Intelligence Service 1 - 10 1 12

Canadian Space Agency 1 - 1 1 3

Citizenship & Immigration Canada 56 - 45 10 111

Communication Canada 8 - - - 8

Correctional Service Canada 17 - 10 1 28

Environment Canada 31 - 7 16 54

Finance Canada 4 - 1 2 7

Fisheries and Oceans Canada 32 - 17 1 50

Foreign Affairs and International Trade 30 - 11 5 46

Freshwater Fish Marketing Corporation 1 - - - 1

Health Canada 24 - 6 2 32

Human Resources Development Canada 17 - 7 - 24

Immigration and Refugee Board 6 - 6 1 13

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Table 4: COMPLAINT FINDINGS (continued)

GOVERNMENT Not Not Sub- Discon-INSTITUTION Resolved Resolved stantiated tinued TOTALIndian and Northern Affairs Canada 7 - 6 - 13

Indian Residential Schools Resolution Canada - - 1 - 1

Industry Canada 15 - 5 - 20

International Centre for Human Rightsand Democratic Development 2 - - - 2

Justice Canada 29 - 12 4 45

National Archives of Canada 7 - 20 1 28

National Capital Commission 1 - - - 1

National Defence 50 - 33 1 84

National Parole Board - - 1 - 1

Natural Resources Canada 5 - - - 5

Office of the Inspector General of CSIS 1 - - - 1

Office of the Superintendent of Financial Institutions 2 - - 2 4

Ombudsman National Defence & Canadian Forces 1 - - 1 2

Parks Canada Agency - - 2 - 2

Privy Council Office 24 - 20 1 45

Public Service Commission of Canada 1 - - - 1

Public Works and Government ServicesCanada 53 - 15 2 70

Royal Canadian Mounted Police 24 - 29 7 60

Solicitor General Canada 3 - 1 - 4

Statistics Canada 2 30 - 2 34

Transport Canada 12 - 4 - 16

Transportation Safety Board of Canada - 2 - - 2

Treasury Board Secretariat 44 - 5 1 50

Trois-Rivières Port Authority 1 - - - 1

Veterans Affairs Canada - - 2 - 2

Western Economic Diversification Canada 2 - 1 - 3

TOTAL 585 32 319 68 1004

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B. Demystifying theInvestigative Process

The Access to Information Act confersupon the Information Commissionerbroad discretion to select theprocedures by which investigations areconducted. This discretion recognizesthe need for a body charged withconducting investigations ofcomplaints against governmentinstitutions to have flexibility in itschoice of investigative methods, stylesand approaches. Investigativeflexibility is required to respondeffectively to variations in:

• Types of complaints;

• Complexity of the factual or legalissues;

• Potential negative impact onindividuals;

• Likelihood of related courtproceedings;

• Level of cooperation fromgovernment institutions, witnessesand complainants; and

• Availability of resources.

While recognizing the need for suchflexibility, the InformationCommissioner also recognizes theimportance of assisting all partiesinvolved in investigations to betterunderstand what procedural optionsare open to the commissioner and thecircumstances in which they are likelyto be used.

Informal Process

The investigative method of choice forfact-finding (used in well over 90percent of investigative activities) isthe informal interview conducted byan investigator delegated for thepurpose by the commissioner.Informal interviews are pre-arrangedat mutually convenient times, face-to-face or by telephone, at venues usually 51

Table 5: GEOGRAPHIC DISTRIBUTION OF COMPLAINTS(by location of complainant) April 1, 2002 to March 31, 2003

Rec’d Closed

Outside Canada 20 12

Newfoundland 26 16Prince Edward Island 2 0Nova Scotia 71 77New Brunswick 9 9Quebec 81 79National Capital Region 347 427Ontario 146 113Manitoba 34 32Saskatchewan 11 17Alberta 52 53British Columbia 149 163Yukon 0 1Northwest Territories 4 3Nunavut 4 2TOTAL 956 1004

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chosen by the interviewees. Suchinterviews are not conducted underoath. Informal interviews are rarelyrecorded and never without theknowledge of the interviewee.

In the informal interview process,investigators take care to ensure thatinterviewees are interviewed in privateand out of the presence of others(including co-workers, supervisors andlegal representatives of the employer).Only if an interviewee asks to beaccompanied by others, and only if theinvestigator is convinced that theothers will assist the investigation andnot impede the candor of theinterviewee, will others be permittedto be present during an informalinterview.

The informal investigative method ofchoice for obtaining representationsfrom complainants and governmentinstitutions is a combination ofinterviews (face-to-face or telephone)and exchanges of letters. With respectto obtaining the representations fromheads of government institutions,investigators deal directly with theofficial delegated by the head of theinstitution to provide representationsto the commissioner.

This description of the informalinvestigative process should be read inconjunction with the commissioner'sQuality of Service Standards forInvestigations which are set out atpages 54 to 58.

Guidelines for FormalInvestigations

When the Information Commissioneris of the view that evidence orrepresentations should be offered “onthe record”, the investigative processmay become more formal. Situations

which may trigger a more formalprocess include:

1) Lack of cooperation by awitness/departmental official withthe informal process (i.e. failure toagree to an interview time; failure toappear for interview; refusal toanswer a question; insistence on aformal, on-the-record process;refusal to provide records;inappropriate behaviour);

2) Presence of circumstances (such as,for example, allegations of wrongfuldestruction of records) which maygive rise to a finding, comment orrecommendation which is adverse toan individual;

3) The existence of conflicting evidenceand issues of credibility;

4) Potential that judicial proceedingsmay ensue;

5) Insistence by a witness that he or shebe accompanied by counsel; and

6) The need to ensure that a witnessfully understands the nature, qualityand gravity of the evidence whichthey have offered informally.

In the formal process, evidence istaken during a proceeding conductedby a presiding officer delegated for thepurpose by the InformationCommissioner. Formal proceedingsare arranged by invitation, at amutually convenient time. Only if it isnot possible to secure the witnesses’participation voluntarily will asubpoena be issued to compelattendance. Usually, formalproceedings are conducted on thepremises of the InformationCommissioner. The formal proceedingis recorded (usually audio only,although audio-visual recording maybe made to facilitate investigative52

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training) and witnesses swear an oathto be truthful and complete in theirevidence. Witnesses may beaccompanied by counsel but not by co-workers, supervisors or representativesof the witness's employer. Evidencemay be received from more than onewitness during a proceeding if thepresiding officer is satisfied that apanel of witnesses would assist theinvestigation and all witnesses agree tobe interviewed in the presence of theothers.

The presiding officer conducts allaspects of the proceeding including theconduct of the questioning and rulingon procedural and evidentiary issues.The presiding officer may be assistedby counsel and investigative staffduring the proceeding. The presidingofficer is not constrained by the rulesof evidence applicable to the courtsand, hence, may require evidence onany matter he or she considers relevantto the full investigation andconsideration of the complaint(s).

i) Role of Counsel

Lawyers have no greater role or rightsduring a formal proceeding thanwould counsel for a witness in a civiljudicial proceeding or a proceedingbefore a commission of inquiry.

During the formal proceeding,witnesses and their counsel are askedto communicate only with thepresiding officer and not with eachother. Should either the witness orcounsel wish to communicate witheach other, the presiding officer willordinarily agree to such a request andwill adjourn for the purpose ofpermitting the witness and counsel tohave a private communication.

It is not the role of counsel to examinehis or her witness. However, at the

end of the questioning by thepresiding officer, counsel may ask thepresiding officer for permission to putquestions to the client--a requestwhich, ordinarily, will be granted.

Counsel will not be permitted torepresent a witness if the counsel alsorepresents other witnesses or thewitness’s employer, unless it isreasonably possible--by means ofconfidentiality orders andundertakings--to ensure that thewitness has an opportunity to offerevidence “in private” and that theprivate nature and integrity of theinvestigation is preserved.

ii) Confidentiality Orders

The requirement of law that thecommissioner’s investigations beconducted “in private” entailsobligations on all parties involved tomaintain confidentiality. From time totime, however, the presiding officerwill reinforce the obligation withspecific confidentiality ordersaddressed to the witness, the counselor both. Such orders may be issued inthe following circumstances:

1) A witness is accompanied by Crowncounsel or by a counsel who alsorepresents other witnesses or thewitness's employer. (dealt withabove under Role of Counsel)

2) The evidence of one witness in aprior proceeding is likely to bedisclosed by the presiding officerduring questions to another witness.

3) The integrity of the investigation isserved by limiting disclosure ofevidence amongst potentialwitnesses.

It is also as a result of the “in private”requirement for investigations thatcopies of the tapes or transcripts of 53

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formal proceedings are not given towitnesses. Witnesses (or their counsel)may consult the tapes or transcripts oftheir own evidence but only on asupervised basis at the premises of theInformation Commissioner.

iii) Potential Adverse Comment

During either the formal or informalprocess, evidence may be presented ordiscovered which raises the possibilitythat the Information Commissionermay make comments orrecommendations (in his reports to thecomplainant, the governmentinstitution or Parliament) which arenegative or adverse towardsidentifiable individuals. In such cases,any such individual will be (1) notifiedin writing of the potential of anadverse comment or recommendation;(2) informed of the evidentiary basisfor the potential adverse comment orrecommendation; and (3) afforded afair and reasonable opportunity tooffer evidence and makerepresentations in response to thenotice of potential adverse comment orrecommendation.

In no case will the InformationCommissioner make findings ofcriminal or civil wrongdoing againstan individual (except in the context ofcontempt proceedings).

Should the commissioner come intopossession of evidence suggesting thata federal or provincial offence has beencommitted, he is authorized to disclosesuch evidence to the Attorney Generalof Canada. If the possible offence isthat of perjury, or if it arises under theAccess to Information Act, thecommissioner may refer the matter tothe RCMP for criminal investigation.

Last year, the commissioner invokedhis powers to order the appearance of

witnesses and production of records,on 7 occasions. This year, 9 orderswere issued, as follows:

3 compelled the appearance ofwitnesses and the production ofrecords

2 compelled the appearance ofwitnesses

4 compelled the production of records.

In accordance with standard practice,all witnesses who received subpoenaswere first invited to cooperatevoluntarily. No witness who receiveda subpoena challenged its legality.

C. Quality of ServiceStandards

In last year's annual report, the viewwas offered that one of the reasons forthe lengthy duration of thecommissioner's investigations (inaddition to insufficiency of resources)is the slowness by institutions inresponding to investigative requestsfor meetings, explanations anddocumentation. As well, last year, thecommissioner informed government tohis intention to develop timelines forinvestigative activities designed tobring investigations to completion byfixed target dates or “standards”. Suchtimelines and standards weredeveloped, shared with TreasuryBoard and discussed with thecommunity of access to informationcoordinators. Having taken intoaccount comments and suggestionsmade during the consultation process,the commissioner has adopted thefollowing service timelines andstandards to guide the work of hisinvestigators and government officialswith whom they deal.

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Policy on Service Standards

It is the policy of the Office of theInformation Commissioner that everyreasonable effort will be made, incooperation with complainants andgovernment institutions, to completeall “administrative” complaints (delays,fees, language and extensions) within30 days from the issuance of the noticeto the department under section 32 ofthe Act. With respect to all othercomplaints (exemptions, exclusionsand missing records), every reasonableeffort will be made to complete themwithin 90 days from the date of theissuance of the notice.

In order to achieve these targets, it willbe necessary to expect staff of theOffice of the InformationCommissioner, and staff ofgovernment institutions against whichcomplaints are made, to respect certaintimelines and processes in theirdealings. In excess of 90 percent ofinvestigations are informal (evidence isnot taken under oath or recorded, theproduction of records or witnesses isnot compelled by order, originalrecords are rarely required).Consequently, these service standardsguide the informal investigativeprocess.

A. Within five days of being assigneda complaint, the investigator willmake every reasonable effort tocommunicate in person or bytelephone with the complainant forthe following purposes:

i) to make introductions andprovide the complainant withinformation concerning how tocontact the investigator;

ii) to explain the commissioner'sinvestigative process and thecomplainant's right to makerepresentations;

iii) to discuss the nature of thecomplaint to ensure that it is well-understood by the investigator andwell-focussed by the complainant;and

iv) to obtain all supporting evidenceavailable to the complainant.

B. Based on a review of the wordingof the complaint, supportingevidence provided by thecomplainant and any clarificationsprovided by the complainant, theinvestigator will make adetermination as to whether or notthe complaint constitutes a matterfalling within the commissioner’sjurisdiction as set out in subsection30(1) of the Access to InformationAct. If the investigator determinesthat the matter of the complaintdoes not fall within theinvestigative jurisdiction of theInformation Commissioner, theinvestigator will report the matterto the Information Commissionerwith a recommendation that thecomplainant be so informed. Thefinal decision whether or not thecommissioner has jurisdiction toinvestigate a matter rests with theInformation Commissioner.

C. If the complaint concerns a matterfalling within the commissioner’sjurisdiction, the investigator willformally initiate the investigationby personally serving a notice ofintention to investigate, containinga summary of the substance of thecomplaint (as required by section32 of the Act), on the delegate ofthe head of the institution againstwhich the complaint is made.Normally, the delegate receivingthe commissioner's section 32notices is the institution’s access toinformation and privacycoordinator.

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D. Investigators and institutionalaccess coordinators are expected towork together to arrange amutually convenient time, withinfive days of a request to thecoordinator by the investigator, forthe initial investigation meeting.The purpose of the initial meetingwill be:

i) to effect personal service of thesection 32 notice;

ii) to ensure that there is acommon understanding of thecomplaint;

iii) to provide the investigator withthe original of the institution'sadministrative file(s) relating tothe processing of the accessrequest(s) to which thecomplaint relates as well as acopy of the ATIPflow recordrelated to the request(s) towhich the complaint relates.The original file will be copiedby the investigator on-site orreturned to the institutionwithin 10 days after a copy ismade.

iv) to ensure that the investigatorhas an up-to-date copy of theinstitution's designation orderpursuant to section 73 of the Act;

v) to obtain copies or originals ofall records relevant to theaccess request(s) in respect ofwhich a complaint of improperdenial of access has been made.These records are to beprovided in their entiretyexcept in cases where theinstitution has relied on section69 of the Act to deny access tothe requester and there isappropriate documentationfrom PCO in the processing file

confirming that the withheldinformation constitutes acabinet confidence;

vi) to obtain any additionaldocumentation not containedin the processing file which setsout the rationale on which thedesignated authority relied ininvoking any of the Act's fee,extension, exclusion orexemption provisions (or anyother provision to which thecomplaint relates);

vii) to obtain names and contactinformation for the principalsinvolved in the processing ofthe request(s) to which thecomplaint relates including:the assigned ATIP analyst; theOPI official(s) who providedadvice concerning thesensitivity of the recordsand/or the time, effort and costinvolved in processing therequest(s); the individual(s)who conducted the search forrelevant records; and theindividuals who approved theresponse giving rise to thecomplaint;

viii)to compile a list of deficienciesincluding:

- adequacy of the section 32notice and

- adequacy of the processingfile;

ix) arrange a mutually convenienttime for a second meeting,within 10 days of the initialmeeting.

(Note: original records provided to theinvestigator will be returned within 10days of a request for them as providedfor in subsection 36(5) of the Act.)56

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E. The purpose of the secondinvestigative meeting between theinvestigator and the ATIPcoordinator will be:

- to address any outstandinginformation deficiencies;

- to discuss and finalize theinvestigator's plan for future stepsin the investigation. Theinvestigation plan will includespecific dates for completion ofinvestigative steps designed tobring the investigation to aconclusion within the target dates(i.e. 30 days (administrativecomplaints); 90 days (denials ofaccess)).

F. The investigator will, afterreceiving the institution'srepresentations, afford thecomplainant an opportunity tomake representations and torespond to the substance of theinstitution's representations (subjectto the investigator's confidentialityobligations under sections 63 and64 of the Act).

G. Within five days of completion ofthe steps set out in the investigationplan, the investigator will completeand submit to the InformationCommissioner a report of theresults of the investigationincluding the investigator'srecommendation as to whether thecomplaint is:

1. not well-founded

2. resolved

3. well-founded withrecommendations to the head ofinstitution for remedial action.

The investigator's report will, whenwarranted, specify reasons why the 30-

day or 90-day service standard was notmet.

The Investigation Plan

Since it is the role of the InformationCommissioner to conductindependent, thorough investigations,it is essential to avoid the reality orappearance that governmentinstitutions control how investigationsof complaints against them will beconducted.

Nevertheless, it is also important tomake investigations as efficient aspossible by securing, informally, thecooperation of institutions in assistinginvestigators in fact-finding, obtainingrepresentations and finding solutions.It is for this latter purpose thatinvestigators will discuss, with ATIPcoordinators, certain elements of theirinvestigation plans. In rare cases,where there may be allegations ofwrongdoing, issues of credibility orspecial confidentiality requirements,investigators may choose to refrainfrom sharing elements of theinvestigation plan with ATIPcoordinators.

Ordinarily, the investigator seeks theagreement of the ATIP coordinator tofacilitate specific activities withinspecific times. The elements of theinvestigation plan for which timelinesare to be discussed and agreed upon atthe second investigative meetinginclude:

1. interviews with officials;

2. provision of additional recordsto the investigator;

3. provision by investigator toATIP coordinator of his or heranalysis of the merits of theposition of the institution;

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4. provision by the designatedofficial to the investigator ofrepresentations in support ofhis or her decisions;

5. provision by the investigator tothe designated officials of aproposal for resolution (subjectto the approval of theInformation Commissioner);

6. provision by the designatedofficials to the investigator of aresponse to the investigator'sproposed solution; and

7. when relevant, a statement ofreasons why it was not possibleto agree on times which permitthe investigative activities inthe plan to be completedwithin the 30-day or 90-dayservice standard.

The Information Commissionerrecognizes that the ability of his office,and government institutions againstwhich complaints are made, to meetthese investigative service standardswill depend on adequate resources,efficient processes, as well as mutualcooperation, respect and goodwill.Experience will be carefully monitoredin consultation with Treasury BoardSecretariat. If service standards cannotbe met, early action will be taken toaddress the causes.

D. DelaysFor many of the access law's 20 yearsof life, the priority of the Office of the

Information Commissioner has been toaddress a chronic problem ingovernment of delay in answeringaccess requests. At the beginning ofthis commissioner's term, in 1998, the“Report Card” initiative commencedunder which selected departmentswere graded on the basis of thepercentage of access requests receivedwhich were not answered withinstatutory deadlines. Those reportcards (37 in all, covering 11institutions) have been tabled inParliament either as special reports or,as this year, included within thecommissioner's annual reports.

Since the report card initiativecommenced, in 1998, there has been adramatic reduction in the number ofcomplaints of delay received by thecommissioner, from a high of 49.5percent of all complaints to a low, thisyear, of 16.2 percent.

The Office of the InformationCommissioner continued this year tofocus attention on the performance ofdepartments in meeting responsedeadlines. The same grading standardwas used this year as in the past. It isbased on the Act's provision which“deems” late answers to be “refusals”.The grade depends on the percentageof all requests received which are notanswered within statutory deadlinesand, hence, are deemed refusals, asindicated in the tables below.

In previous years, three departmentsachieved ideal compliance, PrivyCouncil Office and Health Canada

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% of Deemed Refusals Comment Grade

0-5 percent Ideal compliance A5-10 percent Substantial compliance B10-15 percent Borderline compliance C15-20 percent Below standard compliance DMore than 20 percent Red alert F

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received an A in early 2000, one yearafter the initial Report Card. HumanResources Development Canadareceived an A in early 2000.

This year, a Status Report wascompleted on all nine departmentsthat were issued Report Cards inprevious years. In addition, twodepartments, Public Works andGovernment Services Canada andCorrectional Service Canada, weretested and graded for the first time.

The results achieved by the ninedepartments in processing accessrequests from April 1 to November 30,2002, within the time requirements ofthe Access to Information Act aredisplayed in Table 1.

Overall, departments have madesignificant progress in implementingthe Report Card recommendations andreducing the incidence of delay. Eachdepartment has taken a somewhatdifferent approach to reducing thenumber of requests in a deemed-refusal situation. Because the ReportCards and the Status Reports areissued for a portion of the fiscal year(April-November), there is a tendencyto end the year with a grade less thanthe grade for the first eight months ofthe fiscal year. Table 2 illustrates thesituation among the departments thatwere issued a Status Report in January2002.

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Table 1: New Request to Deemed-Refusal Ratio - April 1 to November 30, 2002

Department % of Deemed Refusals Grade

Canada Customs and Revenue Agency 3.5% A

Citizenship and Immigration Canada 3.8% A

Department of National Defence 9.1% B

Department of Foreign Affairs and International Trade 7.8% B

Fisheries and Oceans Canada 4.2% A

Health Canada 5.0% A

Human Resources Development Canada 19.7% D

Privy Council Office 17.5% D

Transport Canada 19.0% D

Table 2: New Request to Deemed-Refusal Ratio

Department Grade for Apr. 1 Gradeto Nov. 30, 2001 2001-2002

Canada Customs and Revenue Agency B B

Citizenship and Immigration Canada C C

Department of National Defence C C

Department of Foreign Affairs and International Trade D F

Fisheries and Oceans Canada F F

Transport Canada C D

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As can be seen from Table 3, there hasbeen an overall positive improvementin performance since the Report Cardprocess commenced in 1998.

All of the six institutions originallyreceiving an “F” pulled up their socksin subsequent years. Four of the sixattained “A”s and two achieved “B”s.Only one of the original six showedbacksliding from its best grade. In its1999-2000 Report Card, PCO movedfrom the failing category to an “A”.This year it was retested and found tomerit only a “D”.

Transport Canada was not tested until1999-2000 when it received an “F”. Itsgrade had improved to a “C” by 2001-2002. Regrettably, there wasbacksliding this year to “D”. Notable,too, is the fact that HRDC received an“A” in its first test in 1999-2000. In itsretest this year, it joined PCO indropping to a “D”.

The two institutions tested for the firsttime this year--CSC and PWGSC--bothreceived failing grades. (Full ReportCard reports are found in Appendix B.)

It seems evident that the problem ofdelay is less serious but not yet solved.There are many factors in the accessprocess that may lead to an

unacceptably high number of accessrequests in a deemed-refusal situation.Of all of these factors, four stand out aspotential causes of delay:

• Slow records retrieval: Recordsretrieval within the allocatedtimeframe is essential to avoid initialdelays in the process;

• Inadequate resources: The access toinformation coordinator must havesufficient resources to handle thevolume of requests received by thedepartment along with theappropriate delegated authority;

• Top-heavy approval process: Anapproval process that requires anumber of reviews is burdensomeand causes substantial delays indepartments that continue to operatein a “play it safe” mode; and

• Inadequate attention from the top:The entire access process needs thesupport of senior management. Iftheir support is not visible andcommunicated to departmental staff,adherence to timelines tends tobreak down over time.

Time extensions for consultationsunder paragraph 9(b) of the Access toInformation Act continue, at times, to be60

Table 3

1998-1999 1999-2000 2000-2001 2001-2002 2002-2003

CCRA F F C B ACIC F F D C ACSC - - - - FDFAIT F F F D BF&O - - F F AHCan F A - - AHRDC - A - - DND F F D C BPCO F A - - DPWGSC - - - - FTC - F F C D

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an impediment to reducing thenumber of access requests in adeemed-refusal situation. A lack ofcommunication among departmentscan mean that the length of timeselected for a time extension isdetermined without seeking the inputof the department that will review therecords. In addition, a departmentmay forward more than one accessrequest to another department at thesame time for consultation withoutprior communication with thatdepartment.

Over time, Health Canada hasdemonstrated the highest level ofconsistency in meeting responsedeadlines under the Act. The Director,Access to Information and PrivacyDivision of Health Canada, identified anumber of factors that, in his opinion,contributed to the maintenance of idealcompliance with the Access toInformation Act's time requirements.Overall, the director identifiedconstant perseverance to succeed inmaintaining a grade of A andteamwork on the part of HCan staff asrequisite ingredients to maintain idealcompliance. In addition, the followingfactors influenced the department'sability to process access requests ontime:

OPI Communication

It is essential to regularly communicatethe time requirements of the accessprocess to offices of primary interest(OPIs) and their responsibility as partof the access to information (ATI) teamto meet the time requirements. TheOPI ATI contact person may change, ortheir priorities may change.Nonetheless, there is a statutoryrequirement to meet both legislatedand HCan timelines for completing theOPI's part of the access process and

this must be conveyed to OPIs on aregular basis.

Request Clarification

When an access request requirescommunication with the requester toclarify the request, the receipt date ofthe request must be changed to takeinto account the clarification.

ATIP Director's Assistance

At times, the ATIP director has tobecome involved in the access processfor a request regardless of how muchdelegation occurs. The director makeshimself available to ATIP staff whenstaff alert him to a potential delayproblem. Focussing on a potentialdeemed-refusal situation and possiblecorrective measures a few days beforea delay may occur is one method ofavoiding a deemed-refusal request.

Fee Estimates

HCan always “stops the clock” when afee estimate is sent to a requester. Theactual days for processing the requestdo not include the time taken by arequester to respond to a request for adeposit or a fee as provided by theAccess to Information Act Regulationconcerning fees.

Continuous Improvement

It is always possible to makeimprovements to the access process.For example, previously, one OPIcontact person would complete areport on the search for records. Areport was completed even if recordsdid not exist. The director general ofthe area signed the report. Throughstreamlining, the report has beeneliminated and the OPI contact personsends an e-mail directly to the ATIPDivision on the result of the search forrecords. 61

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Contact of the Month Award

In order to recognize excellence, theATIP Division of HCan has establishedan OPI Contact of the Month Award.

Senior Management Engagement

The ATIP director provides a weeklyreport to the deputy minister's officeidentifying late access requests andreasons that the requests are late.

E: Shifting theCommissioner'sPriorities

The problem of delay in the accesssystem will remain a priority for theInformation Commissioner in thecoming years. However, the focus ofattention will shift and a new prioritywill be added.

The shift of focus with respect todelays will involve careful attention tothe manner in which governmentinstitutions are interpreting andapplying the time extension provisionsin section 9 of the Access to InformationAct. It is important to verify that thereduction in incidence of failure tomeet response deadlines is not due toan overly liberal use of the Act's time-extension provisions. As well,attention will be paid to compliancewith the subsection 9(2) requirementthat institutions notify the InformationCommissioner of any extensions oftime longer than thirty days.

The new priority for attention will bethe philosophy and approach toapplication of exemptions--particularlydiscretionary exemptions. The needfor attention to this matter is wellarticulated in the June 2002 Report ofthe Access to Information Review TaskForce, as follows:

“While we have concluded that theoverall structure (of the Access Act)is sound, this does not mean that theoutcomes that Parliament intendedare always achieved. It is our viewthat this is not so much due to thegeneral structure of the Act, or eventhe specific exemptions orexclusions. Rather, it is due to theway discretionary exemptions areunderstood and applied.

The exercise of discretion inherentlyimplies a consideration of the factorsrelevant in each particular case,including any anticipated harm fromdisclosure. However, it is ourimpression that heads ofgovernment institutions (or theirdelegates) do not always consider allrelevant factors in exercising theirdiscretion, nor do they articulateclear reasons for withholdinginformation. We found that this is aproblem in all the jurisdictions weconsulted.

The challenge is to find ways tobring the practice more in line withthe intent of the Act. We believe thatinstitutions should consider whetheran identifiable harm could resultfrom disclosure, regardless ofwhether a particular exemptionincludes a specific injury test. Wealso believe that, in exercisingdiscretion, institutions shouldconsider the fact that informationusually becomes less sensitive overtime. The most productive reformwould be to find a way to ensurethat discretion is exercised only aftersuch consideration. An exemptionwould then be claimed only wheregood reasons can be articulated forwithholding information.

The application of exemptionsshould not be a matter of intricatelegal reasoning, but of basic

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questions asked consistently at allstages in the process: Are theregood reasons for withholding theinformation in this case? How sooncan it be made available withoutcausing harm to one of the interestsprotected by the Act?” (pages 43-44)

This new priority will be reflected innext year's Report Cards and willinvolve analysis of a sample ofresponses to access requests whichwere not the subject of complaint tothe Information Commissioner.Among the factors to be assessed insuch reviews will be:

1) Are reasons for exemption recordedon the processing file?

2) Were an appropriate range offactors, pro and con, weighedbefore invoking exemptions?

3) Is there evidence indicating thatdiscretion was exercised in favourof disclosing exemptibleinformation?

4) Have the delegated authority andaccess professionals been giventraining with respect to the properexercise of discretion?

5) Is there evidence on the file that thedelegated authority plays achallenge role when operationalmanagers recommend secrecy?

6) Does the department have writtenguidance concerning the properexercise of discretion andestablishing a philosophy thatexemptions and exclusions are tobe interpreted and applied tofacilitate and promote, as much aspossible, the disclosure ofinformation?

F: Treasury BoardInitiatives

The minister responsible for the goodadministration of the Access toInformation Act across government isthe President of Treasury Board. Theminister is assisted in that regard bythe Treasury Board Secretariat'sInformation and Security PolicyDivision (ISPD). Officials of ISPD havea critical role in providing guidance toall government institutions with thegoal of ensuring consistency in theapplication of the access law, fosteringa culture of openness and solvingproblems before they become systemicor the subject of complaints to thecommissioner.

Over the years, informationcommissioners have been critical of thelack of priority and resources whichTreasury Board Ministers have devotedto these important responsibilities.Recently, and again this year, there aresigns of improvements, but thereremain reasons for concern.

On the negative side, the TreasuryBoard President has not yet proceededwith administrative or fundinginitiatives, which were recommendedalmost a year ago by the Access toInformation Review Task Force. Aswell, the Board has not yet begun tocollect the kind of statistics on theoperation of the access system whichwould enable it to assess the “health”of the system and to intervene in atimely way to solve problems ofprocess, resources or attitudes.

It is largely because of Treasury BoardSecretariat's decision not to activelymonitor the performance of the systemthat the Information Commissioner hastaken on the function of preparingReport Cards on selected institutions. 63

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On the positive side, TBS held the firstjoint conference of the ATIP andSecurity Communities on March 4,2003. The theme for the day was“Building the Learning Capacity of theATIP and Security Communities: KeyTools for Personal Development”. Theobjectives of the conference were toexpose participants to the concepts ofpersonal learning and developmentand to provide members of the twocommunities the opportunity tonetwork and foster a stronger workingrelationship. The day's activitiesincluded a combination ofpresentations and workshops on topicssuch as, modern comptrollership,mediation and negotiation, innovationin the workplace, coaching, andcreativity and innovation in learning.

At the same conference, TBSrecognized the accomplishments andachievements of the ATIP communityin providing quality service in thedelivery of the access to informationprogram by announcing the winners ofthe second annual ATIP CommunityAwards for Excellence. The awardswere given in two distinct categories:“Excellence in Service and Innovation”and “Dedication, Leadership andCommunity Spirit”. While specialrecognition went out to the winners ofthe awards, the valuable work of thecommunity as a whole wasunderscored. This positive recognitionfor those who work “in the trenches”of the access to information system isvery constructive.

An important aspect of ISPD's roleconsists of providing strategic adviceand support to institutions. Given thesignificance of this role, ISPDdeveloped a Service DeliveryStandard. The standard focuses onthree main areas of effective service:quality, timeliness and availability. In

general, ISPD will ensure that theresponse provided to client institutionsis relevant to the circumstances andfulfills the needs of the institution tothe greatest extent possible. With theaddition of a new member to ISPD, thedivision has reorganized to provide amore central point of contact ongeneral policy matters and theinterpretation of the guidelines. Afollow-up survey will be conducted innine months to assess the degree towhich the Service Standard and thenew procedures are meeting thecommunity's needs.

As part of the academic studiesconducted by a member of the ISPDstaff, a discussion paper on therenewal of the ATIP community wascompleted and shared with membersof the Senior Advisory Committee ofCoordinators (SACC). The paperfocuses primarily on the well-being ofATIP practitioners and builds on thesurvey of the ATIP communityconducted last year. A number ofissues of interest to the community areexamined in the paper including:training and development; workload,resource allocation; recruitment andretention; and the development ofcompetency profiles. The ISPDintends to build on this initiative andfurther the development of thecompetency profiles, which are seen asthe foundation of recruitmentstrategies and a training plan.

A two-year project was also initiated toreview the Info Source publicationsand develop recommendations fortheir improvement. Specific objectivesof the project are to improve theformat and content of all Info Sourcepublications and to identify newtechnology to improve the yearlyupdating process. The project willinclude the identification of the64

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challenges presented by currentpublications, a holistic review ofstandard banks in consultation withkey stakeholders, establishment of auser-friendly format, and theestablishment of a quality assurance(QA) process. Info Source extendsbeyond being a key reference tool tofacilitate public understanding ofgovernment activities. Thepublications also provide theSecretariat with an opportunity toreview institutions' personalinformation banks and recorddescriptions supporting its activemonitoring function of thegovernment's ATIP program.

During the 2002-2003 fiscal year, theTBS website was converted to meetgovernment-wide Common Look andFeel requirements. As part of this,ISPD has undertaken to modernize theTreasury Board Secretariat's ATIPwebsites to facilitate the disseminationof information relating to access toinformation and privacy to the ATIPcommunity and to the public. Duringthe upcoming year, changes will bemade to the content and layout toprovide more information and improvenavigation throughout the site.

Of continued interest to the ISPD is theCoordination of Access to InformationRequests System (CAIRS). The systemwas created in 1989 and wasmodernized in 2000 to meet Y2Krequirements. Its basic functionalityremained relatively unchanged,despite earlier considerations to openthe site to the public. The Board isworking towards removing theremaining impediments to on-lineaccess, which include removingpersonal identifiers and respectingofficial languages requirements.

A total of 30 training sessions weredelivered by ISPD this year. With a

noted 30% increase in participationfrom the previous year, ISPD's ATIPtraining program continues to be wellreceived by the community. Inaddition to maintaining ISPD's coreATIP training program, ISPD is in theprocess of organizing a workshop thatwill provide ATIP practitioners theopportunity to share best practices inthree main areas: processing requests,management of ATIP administrativefiles, and dealing with requesters,offices of primary interest andinvestigators. The workshop will alsohighlight some best practicessuggested by the commissioner inprevious annual reports andinstitutional report cards.

Finally, following the release of theReport of the Access to InformationReview Task Force on June 12, 2002,ISPD conducted a detailed review andcosting exercise to identify the fundsnecessary to implement the variousproposed recommendations. TBS is inthe process of identifying options tofund some of the administrativeinitiatives outlined in the report;however, as indicated above, nodecisions have yet been taken.

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1. Public, ButInaccessible - Case #1

Background

Industry Canada maintains a registryof corporations registered under theCanadian Business Corporations Actwhich includes the names of thecorporations’ directors. On thedepartment's Strategis website, allregistered corporations are listed bycorporation name and registrationnumber; for each listing thecorporation directors are included. Fora period of time, Industry Canada alsomaintained a computer kiosk with asearch capability which allowedinterested members of the public tosearch the Strategis database. Forexample, a search could be conductedfor all corporations having a particulardirector.

As a result of public discussion aboutthe purchase by a Torontobusinessman of Prime MinisterChrétien’s interest in a golf club, anindividual went to Industry Canada tosearch the Strategis database for a listof the names of all corporations ofwhich the Toronto purchaser was adirector. To his surprise, the personwho wanted to conduct the search wastold by Industry Canada that it hadclosed to the public the computerkiosk containing the search capability.This action prompted the interestedindividual to make an access toinformation request for the list ofcompanies.

Upon receipt of the access request,Industry Canada took the position thatit had no obligation to provide the

requested information since theinformation was already public in theStrategis database. In other words, thedepartment invited the requester to gothrough all the listings for everyfederally incorporated company and,through a process of elimination, makeup his own list of companies havingthe Toronto businessman as a director.

Industry Canada offered to supply therequester with printed pages from theStrategis database at a cost of $564,000.As might be expected, the puzzled andfrustrated requester complained to theInformation Commissioner.

Legal Issue

Section 68 of the Access to InformationAct provides that the right of accessdoes not extend to “published materialor material available for purchase bythe public”. Could Industry Canadarely on this provision to refuse tocreate the sought-after listelectronically from the raw data whichwas, admittedly, published on itsStrategis website? This was the legalissue at the heart of the case.

The commissioner determined, first,that Industry Canada had thecapability to electronically search thedatabase and produce the requestedlist. When asked by thecommissioner’s investigator, thedepartment was able to electronicallygenerate the list in minutes withoutspecial programming or cost.

Second, the commissioner determinedthat the list of companies (for whichthe Toronto businessman was adirector) was not “published” or“available for purchase by the public”.

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Against this factual background, thecommissioner determined thatIndustry Canada had given an overlybroad interpretation to the exclusionfrom the right of access described insection 68 of the Act. Taking intoaccount the purpose of the Act, set outin section 2 (including the principles“that government information shouldbe available to the public” and “thatnecessary exceptions to the right ofaccess should be limited and specific”),the commissioner concluded thatParliament did not intend section 68 tobe used as a barrier to reasonableaccess. The unreasonableness of thedepartment’s position, according to thecommissioner, was evident from thedepartment’s own admission that amanual search of the public databasewould be prohibitively costly.

Having determined that section 68 didnot justify the refusal to disclose, thecommissioner then considered whetherthe Act required the department tocreate the requested list of companieswhen no such list existed in thedepartment. In this regard, thecommissioner took into accountsubsection 4(3) of the Act whichexplicitly states the right of accessapplies to records which do not existbut can be produced electronically“using computer hardware andsoftware and technical expertisenormally used by the governmentinstitution”. The commissionerconcluded that the list of companies atissue in this case could easily beproduced by Industry Canada usingalready existing electronic searchcapabilities.

For these reasons, the commissionerfound the complaint to be well-founded and recommended that therequested list of companies be createdand disclosed to the requester.

Industry Canada accepted andimplemented the commissioner'srecommendation.

Lessons Learned

The right of access set out in section 4of the Act is a right of access to“records under the control of agovernment institution”. As a generalrule, the Act does not requiredepartments to do research forrequesters and to create records torespond to requester questions orresearch interests. However, ifelectronic data can be manipulated orsearched so as to produce specificallyrequested records (withoutunreasonably interfering with theoperations of the governmentinstitution), there is an obligation ongovernment to create the requestedrecord.

Moreover, it is not open to agovernment institution to refuse tocreate specifically requested recordssimply because the database inquestion is publicly accessible. Theexclusion of published informationfrom the right of access must not beinterpreted and applied as a barrier toaccess--that is not its intendedpurpose. Government institutionsmay only rely on section 68 to refusedisclosure when the requestedinformation is already in the publicdomain and readily accessible tointerested members of the public.

2. Public, ButInaccessible - Case #2

Background

Correctional Service Canada (CSC) isrequired, by directives issued by theCommissioner of Corrections, todisclose certain information to inmates.68

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The information, concerning rules,rights, obligations, procedures and soforth, is compiled on a CD-ROM andcopies of the CD-ROM are madeavailable for inspection in inmatelibraries.

An inmate was not satisfied with beinglimited to inspecting the content of theCD-ROM in the inmate library andmade a request for a copy of the CD-ROM under the Access to InformationAct. The request was refused. CSCtook the position that, under section68, published material or materialmaintained for public reference, is notsubject to the right of access.

The inmate complained to theInformation Commissioner aboutCSC’s refusal to disclose a copy of theCD-ROM.

Legal Issue

Is information placed in an inmatelibrary “published material” or“library material preserved solely forpublic reference”? If so, section 68 ofthe Access Act excludes it from theright of access; if not, the informationmust be disclosed.

The investigation confirmed that someof the information on the CD-ROMwas previously published elsewhereby the CSC or other governmentdepartments. However, some of thecontents were exclusively prepared forinmate purposes and had not beenmade available to the public at large.The investigation also confirmed thatthe CD-ROM was not available to thegeneral public through any libraryloan system or even listed as areference item for availability to publiclibraries. Finally, the investigationconfirmed that inmate libraries are notopen to the general public.

Against this factual background, thecommissioner concluded that, sincesome of its contents had not beenpublished, the CD-ROM could not beexempt from the right of access as“published material”. Second, thecommissioner concluded that the CD-ROM is not “library material preservedfor public reference” since inmatelibraries are not accessible to thegeneral public.

Consequently, the InformationCommissioner found the complaint tobe well-founded and recommendedthat the CD-ROM be disclosed to therequester. CSC accepted therecommendation and disclosed therecord.

Lessons Learned

As discussed in the previous casesummary, the section 68 exclusion for“published” and “public reference”material is not intended as a barrier toaccess. When section 68 is relied uponin circumstances where the result is theinability of the requester to obtainaccess to or a copy of the information,it is likely that the exclusion has beenimproperly invoked.

3. Census Records –Facilitating ResearchWhile ProtectingPrivacy

Background

As discussed previously in this report,at pages 19 to 21, 30 individuals madecomplaints under the Act againstStatistics Canada concerning thedepartment's refusal to disclose thenominal census returns of the 1906census of Canada's western provinces.The complainants were amateur and

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professional historians andgenealogists.

Statistics Canada relied on theconfidentiality clause (section 17) ofthe Statistics Canada Act for authorityto refuse disclosure. Thecomplainants, on the other hand,argued that the Privacy Act permitsdisclosure of archived census recordsafter 92 years. The complainantsargued that the Chief Statistician couldnot, simply by refusing to transfercensus records to the Archives, extendthe 92-year period of secrecy.

Legal Issue

Did the Chief Statistician have lawfulauthority to refuse to transfer the 1906census records to the NationalArchives? That was the central issuein the commissioner's investigation.

Statistics Canada offered a legal and apolicy argument. The legal argumentinvolved an interpretation of theinstructions for the 1906 census whichwere approved by the cabinet of theday and published in the CanadaGazette on May 26, 1906. Theinstructions, according to StatisticsCanada, contained an implicit promisethat the census results would never bedisclosed.

The policy argument advanced byStatistics Canada related to theimportance in our society ofencouraging voluntary compliancewith future census surveys. If the 1906promise of confidentiality is notrespected, according to StatisticsCanada, Canadians may be reluctant totrust in the future that the privacy ofcensus records will be protected.Without such trust, Statistics Canada isof the view that participation ratescould drop and, thus, put the integrityof future census surveys in jeopardy.

The complainants disputed bothpoints. First, the complainantsasserted that there was no legalpromise of confidentiality governingthe 1906 census. Indeed, thecomplainants asserted that the 1906census instructions made it clear thatthe records would be transferred toArchives and be made available forresearch purposes.

With respect to the policy argumentasserted by Statistics Canada, thecomplainants pointed out that, in theU.S., census records are made public72 years after the census; in the U.K.,they are disclosed after 100 years. Inneither country are there voluntaryparticipation rate problems. In thisregard, the complainants maintain thatthe “secrecy forever” position taken bythe Chief Statistician lacked balance byfailing to recognize the importance ofthe census database for historical andgenealogical research. One of thecomplainants put it this way:

“The 1906 special western censusrepresents a national treasure. It wastaken at the height of the westernsettlement boom in the early twentiethcentury and therefore provides anunrivalled snapshot of the emergingWest with its diverse peoples andrapidly expanding wheat economy.Indeed, access to this detailed materialwill be critical to the many studies andprojects celebrating the centennial ofAlberta and Saskatchewan in 2005.”

With respect to Statistics Canada’slegal argument, the commissioner’sinvestigation could find no evidence ofa promise having been made toCanadians, prior to the 1906 census,that the nominal results would remainsecret forever. However, there wereclear words found in the censusinstructions that the results were to betransferred to the then Dominion70

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Archives and maintained as apermanent record. Thus, in thecommissioner’s view, the ChiefStatistician could not lawfully continueto refuse to transfer the 1906 censusrecords to the National Archives.

With respect to the policy argument,the commissioner agreed that there isan important public interest to beserved by maintaining a certain periodof secrecy for nominal census returns.Without assurances that answers tocensus questions will be keptconfidential for an extended period oftime, participation rates could benegatively affected.

On the other hand, the commissioneralso agreed that there is an importantpublic interest to be served byallowing the census database to beopen to researchers after sufficienttime has passed to overcome theprivacy interests of those whocompleted census forms.

In the commissioner’s view, the legalbalance between these two interestshas already been stuck in the PrivacyAct Regulations, which authorizesaccess to census records transferred tothe Archives after 92 years haveelapsed from the date of the census.

Consequently, the commissioner foundthe complaints to be well-founded andrecommended that the 1906 nominalcensus records be disclosed (92 yearshaving elapsed since the date of thecensus). When the Chief Statisticianrefused to follow the recommendation,the commissioner sought the consentof the requesters and took steps tohave the matter decided by the FederalCourt of Canada.

On the very day the court applicationswere to be filed, January 24, 2003, theMinister of Industry and the Minister

of Canadian Heritage decided todisclose the 1906 census in accordancewith the Information Commissioner'srecommendation. As well, theyannounced the government’s intentionto amend the Statistics Canada Act toset the disclosure rules for censusrecords subsequent to 1906. (For thecommissioner’s view concerning thislegislative proposal, see pages 20-21.)

Lessons Learned

When it comes to important databasesof information about Canadians, itmay not be easy to find a balancebetween the need to permit access forresearch purposes and the privacyrights of individuals. However, thedifficulty does not justify one-sidedsolutions. Rather, the path to balancelies in the principle, accepted in thePrivacy Act, that the privacy interestdiminishes with time, disappearingentirely twenty years after the death ofan individual. When it come to censusrecords, the Privacy Act Regulations fixthe point where the privacy interestdisappears at 92 years after the censusinformation has been collected. Forthe future, we will see whether or notParliament continues with thisapproach to balancing the two interestsor whether it decides to give privacygreater prominence by allowingCanadians to give or withhold consentfor future research access to censusresponses.

4. Air Traffic ControlTapes

Background

In August 1999, an Inter-CanadianFokker 28 aircraft was involved in anaccident at the St. John's,Newfoundland and Labrador airport.During the Transportation Safety 71

Board’s (TSB) investigation, ajournalist asked the TSB for access tothe tape of the communicationsbetween the pilot and the air trafficcontrollers (ATC tape).

TSB refused to disclose the ATC tapebecause it did not have the requiredequipment to listen to the tape and,hence, it could not make a transcriptfor processing purposes. Thecommissioner’s investigator located anATC tape of the same incidentrecorded in a format which wascompatible with the TSB equipment.TSB agreed to process this second ATCtape but decided to rely on the privacyexemption (subsection 19(1)) to refusedisclosure of the tape.

Legal Issues

This case raised the same issues as acomplaint against TSB reported atpages 55 to 58 of the commissioner’s2001-2002 Annual Report. For acomplete discussion of the issues andthe commissioner’s findings, thereader is referred to last year’s report.

In this case, the commissioner acceptedthe TSB’s contention that someinformation on the portion of the ATCtape which had not been transmittedon public airwaves (private phonenumbers and comments relating to thestate of mind of the air trafficcontroller) should be protected onprivacy grounds. However, he did notaccept that the entire contents of thetape qualified for privacy protection.

The TSB also argued that the publicinterest in learning about the cause ofthe accident was better served by therelease of the report of the results ofthe TSB’s investigation than by therelease of the ATC tape. In response tothis position, the commissionerpointed out the TSB had not issued a

final report of its investigation eventhough almost three years had elapsedfrom its commencement. Thecommissioner stated as follows:

“I find that there is a vital publicinterest in access to this transcript.Without a final report to the publicof the results of this investigation,release of the tape would helpinform the public as to whattranspired that day. The calm, cooland professional deportment of allthe parties whose comments arefound on that tape would reassurethe public, and that clearlyoutweighs any invasion of privacythat might result.”

Thus, the commissioner concluded thatthe complaint was well-founded andrecommended to the TSB that the tapebe disclosed. The TSB refused toaccept the recommendation.

With the consent of the requester, thecommissioner has applied to theFederal Court of Canada for a reviewof TSB's refusal to disclose the ATCtape. The matter has not yet beenheard by the court.

Lessons Learned

Even though the privacy exemption ismandatory in nature, it does requiregovernment institutions to invoke itonly after a careful weighing of thebalance between the public interest indisclosure and the individual privacyinterest in secrecy. The decision of thecourt in this case, and the casereported last year, will give guidanceas to where the balance should liewhen it comes to ATC tapes associatedwith air accidents.

(Note: a second complaint against TSBalso related to a refusal to disclose ATCtapes. It, too, was found to be well-founded by the commissioner and,

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with the requester's consent, it hasproceeded to the Federal Court forreview.)

5. Were Loans Repaid?

Background

One of the organizations covered bythe Access to Information Act is CanadaEconomic Development for the QuebecRegion (FORDQ). This organization,as its name implies, provides economicassistance--primarily through loansand grants--to firms in the Quebecregion.

Similar organizations exist to assisteconomic development in otherregions of Canada. For example, theAtlantic Canada Opportunities Agency(ACOA) for the eastern region andWestern Economic DiversificationCanada (WED) for the western region.

An individual made access requests toall three organizations seeking lists ofthe repayments made by thecompanies. ACOA and WEDdisclosed the lists for their areas;FORDQ, on the other hand, refused.FORDQ took the position thatdisclosure of the repayment recordswould be prejudicial to the commercialand competitive interests of thecompanies which had received loans.

Legal Issues

Could FORDQ prove, at the level of aprobability, that disclosure would beinjurious to the companies which hadreceived loans? If disclosure was notexpected to be injurious to the firms inthe other regions, why woulddisclosure be injurious to firms in theQuebec region? These were the issueswhich the commissioner considered.

Early in the investigation, FORDQcommunicated with the same 400companies involved to determinewhether or not any would consent todisclosure and, if not, why not. All butnine of the companies gave consent fordisclosure. Although FORDQcontinued to refuse to disclose the loanrepayment records for these nine firms,FORDQ could not explain what injurywould result from disclosure.

The commissioner informed FORDQthat it bore the legal burden of provingthe reasonable likelihood of injuryfrom disclosure and that it was notsufficient for FORDQ to justify secrecymerely because these nine third partieswanted secrecy. The commissioneralso asked these nine companiesdirectly to explain what injury theyfeared from disclosure of the loanrepayment record. In response, thecommissioner received either noresponse, or mere assertions that harmwould occur without evidence tosupport those assertions.

FORDQ was informed that the case forexemption had not been proven alongwith a recommendation that theinformation be disclosed. FORDQagreed to accept the recommendationand so informed the third parties.After the 20-day waiting period passedwithout court action to block releaseby the third parties, the records weredisclosed to the requester.

Lessons Learned

Government institutions bear theburden of proof that information heldin government files relating to privatecompanies should be kept secret. It isnot sufficient for governmentinstitutions to blindly follow thewishes of the private firms or to shiftthe burden of proof to the third parties.

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In order for government institutions todischarge the burden of proof in suchcases, simple assertions that harm willresult from disclosure, or speculationas to the potential harm fromdisclosure, will not suffice. Concreteevidence is required whichdemonstrates, at the level of aprobability, that competitive harm tothe private company is likely to resultfrom disclosure of the information.

6. A Right of Access toMinisterial ExpenseRecords

Background

In early January 2002, two journalistsrequested records from Health Canadaabout the travel expenses of theminister and one of his specialassistants. The department deniedaccess to the records citing subsection19(1) of the Act.

Health Canada based its response on aTreasury Board Secretariat (TBS)Implementation Report 78 (IR 78).This report informed departments thatrecords of travel expenses for ministersand their exempt staff members are tobe considered personal informationand processed accordingly. The reportalso encouraged application ofsubsection 19(2) of the Act to effectdisclosure of such information,essentially paragraph 19(2)(a), consentby the minister or staff member. Sinceconsent was not forthcoming from theminister and his assistant, access to therequested records was denied.

Legal Issues

The complainants observed that thepolicy enunciated by IR 78 is acomplete reversal of previous policywhereby travel expenses of ministers

and exempt staffs were disclosed onrequest and were not considered to bepersonal information. They placed thisissue before the commissioner: Doesthe Access Act give a right of access toexpense claim records of ministers andtheir staff members, or is accessdependent upon the willingness ofthese officials to consent to disclosure?

On March 15, following extensivemedia coverage of this policy reversal,the President of Treasury Boardannounced in the House of Commonsthat the Prime Minister had asked allministers and their staffs to consent tothe release of their travel expenserecords. Subsequently, officials atHealth Canada sought and obtainedconsent from the minister and hisassistant for disclosure of their records.The records were disclosed with smallportions containing such personalinformation as personal credit cardnumbers, home addresses andtelephone numbers withheld.

The commissioner’s role ended withthe disclosure of the information.However, in another complaint againstTreasury Board (still underinvestigation), the legal merits of thenew policy set out in TBSImplementation Report 78 waschallenged. The result will be reportednext year.

Lessons Learned

As the commissioner indicated in hisreport last year on this topic (seeAnnual Report, 2001-2002 at pages 20-22), whatever be the legal merits, thegovernment's decision to treat publicaccess to ministerial expense records asa matter of “grace and favour” ratherthan “right” is unhealthy in ademocracy. This new approach givesrise to conjecture about what ministersmay be hiding and increases public74

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cynicism about the honesty andintegrity of government. Ifaccountability through transparency isrequired of all other public servants,why not, too, for ministers and theirstaff members?

7. LitigationDisbursements -Should They BeProtected?

Background

An individual submitted a request forinformation concerning the amount ofmoney that the Freshwater FishMarketing Corporation (FFMC) hadspent on its legal fees in dealing with alawsuit and the amount of money thatFFMC has set aside as a settlement inthe lawsuit. All of the records werewithheld under section 23 of the Act asfalling within solicitor-client privilege.The requester complained about theresponse to the InformationCommissioner.

During the course of the InformationCommissioner’s investigation, thecomplaint was narrowed to thedisbursement records since there wereno records relating to the amount ofmoney that has been set aside forsettlement purposes.

Legal Issue

Is information about fees anddisbursements paid to lawyers subjectto solicitor-client privilege? That wasthe issue in this case. Thecommissioner placed reliance on thedecision of the Quebec Court ofAppeal in Maranda v. Canada(Gendarmerie royale) which found that,for the purposes of solicitor-clientprivilege, the statement of fees paid toan attorney would constitute a “fact”

rather than a “communication” and, assuch, would not be covered bysolicitor-client privilege.

However, the jurisprudence alsoindicates that specific breakdowns offees and disbursements could giveinsight into legal tactics, advice orinstruction moving such detail out ofthe category of “facts” and into that ofsolicitor-client “communication”.Consequently, the commissioner askedFFMC to disclose the total amount offees and disbursements only. Withoutprejudice to its position that even thetotal amount qualified for solicitor-client privilege, FFMC exercised itsdiscretion as the client to disclose thetotal.

Lessons Learned

When applying and interpreting thesolicitor-client exemption (section 23),it is important to bear in mind that,since the client is the Crown, and sincethe fees paid are public monies, thereis a public interest in accountabilitywhich may not be present for othersolicitor-client relationships. Thus, it isimportant to keep the scope of theprivilege as narrow as possible byusing the “facts” vs. “communication”distinction. As well, it is important toexercise the discretion in theexemption to maximize publicaccountability.

8. What Is anAcceptable “Copy”?

Background

A journalist with a special interest inmilitary matters had, in 1999, asked forand received from National Defence,the recruiting poster for the elite JTF2unit. When he asked informally forthe 2001/2002 version of the recruiting 75

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poster, National Defence refused. Therefusal prompted the journalist tomake a formal request for the posterunder the Access to Information Act.

In response to the formal accessrequest, National Defence sent therequester an electronic copy by e-mailand a black and white photocopy byregular mail (neither copy wasequivalent in size, colour, detail orquality to the poster itself). NationalDefence continued to refuse to providethe requester with the poster itself.The requester complained to theInformation Commissioner.

Legal Issue

When a department holds speciallyprinted versions of a record (in thiscase, a recruiting poster), must it giveone of those specially printed versions,if asked under the Act, or may itsimply make a photocopy or anelectronic copy? That was the issue inthis case.

The investigation determined that 3000JTF2 recruiting posters had beenprinted at a cost of one dollar each. Atthe time of the request, approximately2000 were in storage. The other 1000posters had been distributed to 14Canadian Forces bases and threeReserve Force armories. In otherwords, National Defence was notconcerned about cost or availability incoming to its decision to refuse access.

Rather, National Defence relied uponjurisprudence which concluded thatthe Access Act does not give requestersa right to specify the format in whichinformation is to be provided. For hispart, the commissioner took the viewthat, in some circumstances, aphotocopy may not constitute anacceptable copy--such as, in this case,when the original is in colour and of

greater size and superior quality to thephotocopy offered by the department.

In an effort to find a “common sense”solution, the commissioner askedNational Defence to consider givingthe requester one of the posters fromstorage. Without prejudice to its legalposition, National Defence agreed andthe commissioner considered thematter resolved on that basis.

Lessons Learned

Given the vast range of records towhich there is a right of access(drawings, paintings, photographs,maps, x-rays, films, videos and “anyother documentary material, regardlessof physical form or characteristics”), itmay be difficult to determine what isan acceptable copy for accesspurposes. As a rule-of-thumb, a copyis the best replica of the originalconsistent with standards ofreasonableness of cost and effort.

9. Is a Promise Not toMake AccessRequests Binding?

Background

As part of a settlement of a disputewith the Canadian Space Agencyconcerning his termination ofemployment, an individual agreed notto make future access (or privacy)requests relating to his employmentwith the Canadian Space Agency.Later, the individual asked theInformation Commissioner todetermine whether or not thesettlement agreement could legallyextinguish his right to make accessrequests relating to his employmentwith the Canadian Space Agency.

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Legal Issue

What is the legal effect of a term in aprivate contract wherein one of theparties agrees to limit his or her use ofthe Access to Information Act?

In considering this issue, thecommissioner noted that thesettlement agreement does not purportto impose obligations on governmentinstitutions (not to receive and processaccess requests) or upon theInformation Commissioner (not toaccept and investigate complaints).Rather, the settlement agreementrecords an undertaking by one of theparties to a limited constraint onexercising his right of access.

Thus, in these circumstances, thecommissioner concluded that thesettlement agreement did notcontravene any provision of the Accessto Information Act. With respect to theconsequences for the individual shouldhe decide to make access requests incontravention of his agreement, thecommissioner concluded that he is notthe appropriate body to make adetermination as to whether or not theagreement might be invalid for otherreasons, such as duress.

Lessons Learned

Employees involved in labour-management disputes often makeaccess requests to the department withwhich they are (or were) employed.From time to time, as part ofsettlement agreements, the Crown willask the employee to promise not tomake further access requestsconcerning the dispute and, from timeto time, employees agree to sopromise. There is nothing in the Accessto Information Act or public policy toprevent such agreement provided theagreements are not void for one ormore of the many other reasons

(mistake, vagueness, duress, inequity,previous breach by the other party, forexample) which may invalidate acontract.

10. When Will I Receivean Answer?

Background

Under the Nunavut Land ClaimsAgreement of 1993, the federalgovernment is required to makeexpenditures on a number ofimplementation activities. Acorporation made an access request toIndian and Northern Affairs Canada(INAC) for information about theexpenditures made under the ClaimsAgreement during the first 10-yearimplementation period.

Upon receipt of the request, INACdetermined that it would have toundertake consultations with othergovernment institutions beforeresponding. Consequently, INACnotified the applicant of its decision toextend the response deadline forconsultation purposes, as permitted byparagraph 9(1)(b) of the Act. Thedepartment did not inform therequester how much additional timewould be required, prompting acomplaint to the InformationCommissioner.

Legal Issue

Do requesters have a right to knowwhen they can expect answers to theiraccess requests? Put another way:What does a department do when ithas a legitimate need to consultanother government institution but nocontrol over when the other institutionwill reply?

The commissioner determined that, inthis case, there was a legitimate need 77

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to consult with other governmentinstitutions and those consultationscould not be completed within 30 daysfrom the date of the request.Subsection 9(1) allows for an extensionof the response deadline “for areasonable period of time” in thesecircumstances. However, subsection9(1) also requires that notice be givento the requester and sets out whatinformation the notice must contain.One such piece of information whichmust be included is “the length of theextension”.

The department indicated that it hadadopted a policy of not indicating thelength of the extension in the requirednotice because of the difficulty inpredicting how long the consultationswould take.

The commissioner concluded thatINAC was legally obligated to informrequesters of the duration of theextension claimed for consultationpurposes. INAC agreed to respect thisobligation in future.

Lessons Learned

In cases where external consultationsare required in order to properlyanswer an access request, departmentsmust balance the requester’s right to atimely response with the requirementto conduct meaningful consultations.The way to do this is to communicatewith the party to be consulted inadvance of claiming an extension inorder to determine what length of timeis reasonably required.

When the consulted party does notrespond to the consultation within thetime stipulated in the extension notice,institutions should proceed to answerthe request without further delay.There is no justification for open-ended waiting for consulted parties toprovide their views. Once theconsulted party has been given areasonable period of time to respond,the department's obligation shifts togiving an answer to the access request.

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Index of the 2002/2003 Annual Report Case Summaries

Section of ATIA Case No. Description

9(1) (10-03) When Will I Receive an Answer?

19(1) (03-03) Census Records - Facilitating Research While Protecting Privacy

(04-03) Air Traffic Control Tapes

19(2) (06-03) A Right of Access to Ministerial Expense Records

20(1)(b)(c) (05-03) Were Loans Repaid?

23 (07-03) Litigation Disbursements - Should They Be Protected?

24(1) (03-03) Census Records - Facilitating Research While Protecting Privacy

30(1)(f) (08-03) What is an Acceptable “Copy”?(09-03) Is a Promise Not to Make Access Requests

Binding?

68 (01-03) Public, But Inaccessible - Case #1(02-03) Public, But Inaccessible - Case #2

Cumulative Index of Case Summaries from 1994-2002 are listed in the InformationCommissioner’s 2001-2002 Annual Report at pages 59-74.

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A. The Role of theFederal Court

A fundamental principle of the Accessto Information Act, set forth in section 2,is that decisions on disclosure ofgovernment information should bereviewed independently ofgovernment. The commissioner’soffice and the Federal Court of Canadaare the two levels of independentreview provided by the law.

Requesters dissatisfied with responsesreceived from government to theiraccess requests first must complain tothe Information Commissioner. If theyare dissatisfied with the results of hisinvestigation, they have the right toask the Federal Court to review thedepartment’s response. If theInformation Commissioner isdissatisfied with a department’sresponse to his recommendations, hehas the right, with the requester’sconsent, to ask the Federal Court toreview the matter.

This reporting year the commissioner’soffice investigated 1,004 complaints.Only two cases could not be resolvedto the commissioner’s satisfaction andthese resulted in two new applicationsfor review being filed by thecommissioner. Five applications forcourt review were filed by dissatisfiedrequesters. Third parties opposingdisclosure filed 14 applications.

B. The Commissionerin the Courts

I. Cases Completed

Canada (Information Commissioner) v.Canada (Commissioner of the RoyalCanadian Mounted Police), File No.28601, Supreme Court of Canada (onAppeal from the Federal Court ofAppeal)

McLachlin C.J., Gonthier, Iacobucci,Major, Bastarache, Binnie, Arbour,LeBel and Deschamps JJ., Appealheard and reserved on October 29,2002, decision issued on March 6, 2003.

(See 2001-2002 Annual Report, p. 85,2000-2001 Annual Report, p. 111 and1999-2000 Annual Report, p. 47 forfurther details.)

Nature of Proceedings

This was an appeal from a decisionrendered by the Federal Court ofAppeal, upholding the ApplicationsJudge’s ruling which dismissed theInformation Commissioner’sapplication for review broughtpursuant to section 42 of the Act.

FactualBackground/Issues/Outcome

(See pages 17 to 19 for details.)

The Information Commissioner ofCanada and TeleZone Inc. v. TheMinister of Industry Canada, (A-824-99) Court of Appeal

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3430901 Canada Inc. and TeleZone Inc.v. The Minister of Industry Canada,(A-832-99) Court of Appeal

The Minister of Industry Canada v.The Information Commissioner ofCanada and Patrick McIntyre, (A-43-00) Court of Appeal

Nature of Proceedings

(See Annual Report 2001-2002 p. 75 formore details.)

The commissioner had sought leave toappeal the decision of the FederalCourt of Appeal to the Supreme Court.On June 13, 2002, the Supreme Courtof Canada dismissed the applicationfor leave to appeal with costs.

The Minister of Environment Canadav. The Information Commissioner ofCanada et al., 2003 FCA 68, Court FileNo. A-233-01, Federal Court of Appeal

Décary, Noël, Sharlow J.A., February 7,2003

(See 2001-2002 Annual Report, p. 86 formore detail and 2000-2001 AnnualReport, p. 107 for more details.)

Nature of Proceedings

This matter involved an appeal fromthe determination of the Trial Judge,Blanchard J., which allowed theInformation Commissioner’sapplication for judicial review,pursuant to section 42 of the Access toInformation Act in relation to theminister’s refusal to disclose requestedrecords based on section 69 of the Act.

(See pages 15 to 16 for details.)

Canada Post v. Canada (Minister ofPublic Works) 2002 FCA 320, CourtFile No. A-489-01 Court of Appeal

Décary, Evans and Pelletier JJ.A.,September 11, 2002

Background

This is an appeal of an order ofMadam Justice Tremblay-Lamervarying the confidentiality orderissued by Mr. Justice Blanchard incourt file T-2117-00.

On May 1, 2000, the Minister of PublicWorks and Government ServicesCanada (PWGSC) received a requestfor access to a specific report whichhad been provided to it by CanadaPost. The request was denied as beinga cabinet confidence and the requestercomplained to the InformationCommissioner.

During the InformationCommissioner’s investigation, theMinister of Public Works changed hisposition and determined that some ofthe requested information was notexcluded pursuant to section 69.Notices pursuant to sections 27 and 28were sent to Canada Post indicatingthat PWGSC intended to disclose someof the requested information.

On October 23, 2000, Canada Postapplied to the Federal Court of Canadapursuant to section 44 of the Actseeking to block disclosure. OnDecember 7, 2000, in the course of theproceedings, Mr. Justice Blanchardissued a confidentiality order. TheInformation Commissioner was not aparty to these proceedings.

On August 17, 2001, in the course ofthe commissioner’s ongoinginvestigation into the refusal todisclose some of the requestedinformation, PWGSC refused toprovide records to the commissionerbecause of the confidentiality orderissued by Justice Blanchard. Thecommissioner took the view that theconfidentiality order did not justifyrefusal to provide records to him. Heissued a subpoena duces tecum

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requiring the ATIP coordinator atPublic Works and GovernmentServices Canada to produce theinformation.

The minister filed a motion for avariance of Mr. Justice Blanchard’sconfidentiality order in order tocomply with the subpoena. TheInformation Commissioner wasgranted leave to intervene on themotion and opposed the motion,arguing that there was no conflictbetween the confidentiality order andthe subpoena. The commissioner’sreason for opposing the motion was toask the court to settle, for the future,the principle that disclosure of therecords to the commissioner does notviolate any confidentiality order whichis issued in a parallel section 44 case.

On August 23, 2001, the MotionsJudge, Madam Justice Lamer, agreedthat there was no conflict between theconfidentiality order and the subpoenabut, by abundance of caution, shevaried the confidentiality order. TheInformation Commissioner appealedthat decision in order to seek a moredefinitive direction for future cases.

Issues Before the Court

Since the Information Commissioner’ssubpoena was supported by the TrialJudge and since it had been compliedwith, the court considered whether ornot the appeal was moot.

Findings

The court held that the criteriaestablished in Borowski governing thecourt’s exercise of its residualdiscretion to hear and determine mootissues had not been met. The fact thata question was liable to recur insubsequent litigation was not in itselfsufficient to engage the discretion ofthe court, when, as here, the issue was

not one that of its very nature isevasive of review. Moreover, the courtheld that the future utility of decidingthe appeal on its merits wasdiminished by the fact that the termsof confidentiality orders issued undersection 47 of the ATIA varies from caseto case.

Judicial Outcome

The appeal was dismissed. The court,however, concluded by stating thefollowing: “we would only observethat, in all the cases to which counseldrew our attention, the decidingprothonotary or judge concluded thatthe terms of the confidentiality ordersunder consideration did not conflictwith the commissioner’s subpoena.Moreover, in none of these cases was itsaid that a variance was necessary inorder to avoid a conflict.”

Canada (Information Commissioner) v.Canada (Minister of Citizenship andImmigration), [2002] F.C.J. No. 950Court of Appeal, Court File No. A-326-01

Décary, Noël and Evans JJ.A., June 21,2002

Nature of Proceedings

This was an appeal from a decision bythe Applications Judge, Madam JusticeDawson, dismissing the InformationCommissioner’s application for reviewbrought pursuant to section 41 of theAct.

Factual Background

In response to allegations ofdiscriminatory behaviour andharassment at Citizenship andImmigration Canada’s Case ProcessingCentre in Vegreville, Alberta, theminister requested an independentconsultant to undertake an 83

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administrative review with theobjective of enhancing respect in theworkplace for all individuals. As partof this administrative review, anumber of employees and formeremployees were interviewed on avoluntary basis. They were, likewise,assured that their interviews wouldremain confidential.

The administrative review culminatedin the consultant preparing a report tothe minister. In part, this report wascritical of the director of the Centre, asbearing some responsibility for theproblems which were found to exist atthe Centre. On the same day that thedirector was provided with a copy ofthe report, he was relieved of hisduties.

Having effectively been dismissedsubsequent to the report’s release, thedirector made an access request toCitizenship and Immigration for theinterview notes upon which the reportwas based. Ultimately, the ministerprovided portions of the opinionsexpressed about him but refused torelease the names of the intervieweesand any contextual information withinthe notes that might reveal theidentities of those interviewed. Thebasis for this refusal was the minister’sreliance on subsection 19(1) of theAccess to Information Act whichincorporates the definition of personalinformation contained in section 3 ofthe Privacy Act.

The requester complained to theInformation Commissioner, who afterinvestigating the complaint,commenced an application for judicialreview under section 42 of the Access toInformation Act.

This was an appeal from the TrialJudge’s ruling which dismissed theInformation Commissioner’s

application for review. The Trial Judgeheld that paragraph 3(j) required therelease of the names of those managerswith the responsibility of preventingharassment in the workplace, alongwith their views and/or opinionsexpressed. However, with regard tothe non-management employeesinterviewed, the Trial Judge held thatparagraph 3(i) of the Privacy Actapplied so as to exempt fromdisclosure the names and anycontextual identifying informationcontained in the interview notes. TheTrial Judge reasoned that thedisclosure of these interviewees’names and identifying informationwould reveal these individuals’participation in a voluntaryadministrative review, and that this, initself, was the personal information ofparticipants.

The Information Commissionerappealed the Trial Judge’s ruling. Theminister cross-appealed with regard tothe application of paragraph 3(j) tothose interviewees who weremanagers.

The Privacy Commissioner wasgranted leave to intervene andadvanced the same position as theInformation Commissioner.

Issues Before the Court

The central issues before the FederalCourt of Appeal were as follows:

a) whether the promise ofconfidentiality provided tointerviewees can override theobligation to disclose views andopinions expressed about another;

b) whether the names of individualswho express views or opinionsabout another are exempted fromdisclosure on the basis that thesame constitutes the “personal

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information” of the individualexpressing the same, pursuant toparagraph 3(i) of the Privacy Act,and

c) where personal informationpertaining to the interviewee isintermixed with views andopinions about another, such that tosever the same would render theviews and opinions about anotherincomprehensible, must thepersonal information pertaining tothe interviewee be disclosed.

Findings

The Federal Court of Appeal rejectedthe argument that a promise ofconfidentiality can override theobligation to disclose, stating:

“. . .the promise of confidentialitymade by the department to some ofthe interviewees cannot override theobligation imposed by statute torelease the information, nor beopposed to Mr. Pirie should he beentitled to disclosure.” (paragraph 11)

The Federal Court of Appeal also heldthat, pursuant to paragraph 3(g) (andmirrored in paragraph 3(e)), the namesof individuals, who express views oropinions about another, are the“personal information” of the personbeing the subject of the view oropinion expressed, stating:

“Contrary to the Applications Judge, Iconclude that the name and identity ofinterviewees are as much the personalinformation of Mr. Pirie, pursuant toparagraph 3(g), as is the substance ofthe opinions or views expressed.”(paragraph 25)

Further, the Federal Court of Appealnoted that the privacy interest inpreserving the anonymity ofparticipants in the inquiry is minimalin that “to the extent that they can

justify the views they expressed, theyshould not fear the consequences ofthe disclosure” (paragraph 31)According to the court, the privateinterest of the requester is significant,given that the actions taken by thedepartment as a result of the report isindicative that the department viewedthe requester as bearing someresponsibility for the problems whichexisted. The court stated :

“the public interest in the disclosure isto ensure fairness in the conduct ofadministrative inquiries. . . fairnesswill generally require that witnessesnot be given a blank cheque and thatpersons against whom unfavourableviews are expressed be given theopportunity to be informed of suchviews, to challenge their accuracy andto correct them if need be.”(paragraph 34)

Finally, the Federal Court of Appealconcluded that severance of“intermixed” information must bedone in such a way as to give therequestor sufficient contextualinformation to enable him to fullyunderstand the opinions which hadbeen expressed about him.

Judicial Outcome

The appeal was allowed. The Ministerof Citizenship and ImmigrationCanada was ordered to disclose to therequester the records, or parts thereof,that contain the opinions expressedabout the requester, the names of thoseexpressing the opinions and thecontextual information relating to theopinions.

The Information Commissioner ofCanada v. The Attorney General ofCanada and Brigadier General Ross,(T-656-01, T-814-01 and T-1714-01)Federal Court Trial Division

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(See 2001-2002 Annual Report, p. 86 forfurther details.)

These applications for review werediscontinued on May 29, 2002, and therecords in respect of which thegovernment had asserted privilegewere disclosed to the InformationCommissioner.

The Attorney General of Canada andBrigadier General Ross v. TheInformation Commissioner of Canada,(T-924-01) Federal Court Trial Division

(See 2001-2002 Annual Report, p. 88 forfurther details.)

This application for review wasdiscontinued on February 28, 2002,and the records in respect of which thegovernment had asserted privilegewere disclosed to the InformationCommissioner.

II. Cases in Progress

a) Commissioner asApplicant/Appelant

The Information Commissioner ofCanada v. The Attorney General ofCanada and Janice Cochrane (Courtfiles A-126-02 and A-127-02)

(See 2001-2002 Annual Report, p. 80 formore details in the proceedings in TrialDivision.)

Nature of Proceedings

This matter involved two applicationsfor judicial review under section 18.1 ofthe Federal Court Act, R.S.C. 1985, c.F-7,by which the Attorney General askedthat two subpoenas duces tecum, issuedby the Information Commissioner anddirected to the Deputy Minister ofCitizenship and Immigration Canada(CIC), be set aside.

Factual Background

This matter arises from a complaint inrelation to CIC’s decision to extend theperiod for responding to a series ofaccess requests to three years. TheInformation Commissioner reportedthe results of his investigation,concluding that the three-year periodof extension claimed by CIC wasunreasonable such that the complaintwas well founded.

After categorizing the requestedrecords into two annexes, theInformation Commissioner orderedthat documents listed in one annex beproduced by November 6, 2000, andthose listed in the second be producedone month later. The InformationCommissioner likewise stated hisintention to issue a subpoena ducestecum which would compel productionof the records in the event that CICrefused to comply.

Thereafter, upon being advised ofCIC’s intention not to comply, theInformation Commissioner proceededto subpoena the records in the form ofan “Order with Respect to Productionof Records”. In turn, CIC stated that itwould commence an application tohave this subpoena set aside on thebasis that the InformationCommissioner lacked jurisdiction toissue it.

In response, the InformationCommissioner self-initiated acomplaint on the basis that that CIC’sthree-year extension of timeconstituted a deemed refusal. He thenissued a second subpoena (Order withrespect to Production of Records) onthe deputy minister in relation to therecords in dispute.

In the within application for judicialreview, the Attorney General sought to86

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have the two subpoenas issued by theInformation Commissioner set asideon the basis that the InformationCommissioner had exceeded hisjurisdiction.

Issues Before the Court

What is the appropriate standard ofreview with respect to the InformationCommissioner’s decision to proceedwith an investigation?

Did the Information Commissionerexceed his jurisdiction when issuing asubpoena duces tecum subsequent tohaving reported the results of hisinvestigation to the head of theinstitution but not to the complainant?

Does an “unreasonable extension” oftime constitute a “deemed refusal”thereby entitling the InformationCommissioner to self-initiate a newcomplaint by which he may issue asecond subpoena duces tecum?

Are the subpoenas to producedocuments, as issued by theInformation Commissioner in thecircumstances of this case, an abuse ofprocess?

Findings

The Applications Judge, Kelen J., heldthat the appropriate standard ofreview applicable to the InformationCommissioner’s decision to investigatea complaint is that of “correctness”(paragraph 17). He went on to decidethat the Information Commissioner iswithout jurisdiction to issue an orderof production after the issuance of areport of the results of his investigationto the head of the institution.

With respect to the commissioner’sdecision to initiate an investigation onthe basis that an unreasonableextension could constitute a “deemedrefusal” of access, Kelen J. concluded

that, even if the response period isextended for an unreasonable periodof time, the Act does not deem theextension to be a “refusal”. It is only ifand when an extended period lapseswith no response given to therequester, according to Justice Kelen,that a “deemed refusal” arises:

“A ‘deemed refusal’ is when thedepartment fails to give access to therecord within the time limits set out inthe Act, i.e. either 30 days as providedin section 7 or an extended time limitunder section 9. In my opinion, in thiscase, the extended time limit has notexpired so that there can be no ‘deemedrefusal’ to give access. Under the Act,there is no provision for the respondentto deem an unreasonable extension oftime as a refusal.” (paragraph 25)

Consequently, the court held that itwas not proper for the InformationCommissioner to:

• initiate a new complaint and launcha new investigation in relation to amatter in which he had alreadyconcluded an investigation;

• use his subpoena power to summondocuments which CIC stated it couldnot process on an immediate basis.

Judicial Outcome

The Trial Judge allowed the AttorneyGeneral’s two applications for judicialreview and ordered that the twosubpoenas duces tecum issued by theInformation Commissioner be setaside.

Action Taken

Subsequently, the InformationCommissioner filed a Notice of Appealon March 6, 2002. This appeal will beheard on May 14, 2003, and the resultwill be reported in next year's annualreport. 87

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The Information Commissioner ofCanada v. The Attorney General ofCanada and Bruce Hartley (Court filesA-82-02 and A-174-02)

Nature of Proceedings

Appeal of a motion

Factual Background

(See 2001-2002 Annual Report, p. 88-90and 2000-2001 Annual Report, p. 116-117 for more details.)

In this case, the InformationCommissioner has appealed thedecision of Mr. Justice McKeown datedFebruary 1, 2002, in which he foundthat the Federal Court has thejurisdiction to order that transcripts ofevidence given to the InformationCommissioner during his confidentialinvestigations be filed with the courton a confidential basis. The transcriptswere ordered to be filed in four of theseven consolidated applications forjudicial review.

Issues Before the Court

In his Notice of Appeal, theInformation Commissioner raises thefollowing issues :

1. Did the Motions Judge err in factand in law when he ordered thatthe confidential transcripts be filedin court pursuant to rule 318 of theFederal Court Rules, 1998?

2. If not, did the Motions Judge err infact and in law in ordering copiesof the entire confidentialtranscripts, and not portionsthereof, to be filed in court?

Findings

The appeal has not yet been heard.The result will be reported next year.

The Information Commissioner ofCanada v. The Executive Director ofthe Canadian Transportation AccidentInvestigation and Safety Board, (T-465-01, T-650-02, T-888-02 and T-889-02) Federal Court Trial Division

(See Annual Report 2001-2002, p. 87and Annual Report 2000-2001, p. 116for more details.)

During the reporting year, followingthe issuance of recommendations inthree unrelated investigations, theInformation Commissioner filed threeadditional applications for review onthe same issue, i.e. the disclosure ofaudiotapes and transcripts ofconversations between a pilot and airtraffic controllers.

On November 15, 2002, theInformation Commissioner filed anotice of constitutional question and amotion for leave to amend the Noticesof Application. The constitutionalissue relates to the validity of a sectionof the Radio Communications Actpurporting to limit the disclosure of airtraffic control communications. TheAttorney General of Canada confirmedhis participation on the constitutionalissue.

The case will continue before the TrialDivision and results will be reported innext year’s annual report.

b) The Commissioner asRespondent in TrialDivision

The Information Commissioner ofCanada v. The Attorney General ofCanada and Brigadier General Ross,(T-656-01, T-814-01 and T-1714-01)

As a result of the Anti-Terrorism Act,S.C. 2001, c.41, proclaimed in force onDecember 18, 2001, the respondentsfully complied with the Information88

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Commissioner's subpoenas ducestecum, dated August 9, 2001, andAugust 11, 2000, and order forproduction of documents, dated April 26, 2001, relating to all pagesbeing the subject of objections madeunder sections 37 and 38 of the CanadaEvidence Act. Accordingly, theseapplications for review werediscontinued on May 29, 2002.

The Attorney General of Canada andA. Eggleton v. InformationCommissioner of Canada, (T-924-01)Federal Court Trial Division

The Information Commissioner advisedthe applicants on November 8, 2001,that he was satisfied that theHonourable Art C. Eggleton hadcomplied with the subpoena duces tecumdated April 6, 2001. As a result, thisapplication for judicial review in respectof the subpoena duces tecum wasdiscontinued on February 28, 2002.

The Attorney General of Canada et al.v. The Information Commissioner ofCanada

(T-582-01, T-606-01, T-684-01, T-763-01,T-792-01, T-801-01, T-877-01, T-878-01,T-880-01, T-883-01, T-887-01, T-891-01,T-892-01, T-895-01, T-896-01, T-1047-01,T-1049-01, T-1083-01, T-1448-01, T-1909-01, T-1910-01, T-1254-01, T-1255-01, T-1640-00, T-1641-00, T-2070-01) FederalCourt Trial Division

(See Annual Report 2001-2002, p. 88 forfurther details.)

Stephen Byers v. The Hon. John M.Reid (The Information Commissionerof Canada) and Others, Court file T-1221-02 Federal Court Trial Division

Nature of Proceedings

This matter involves an application forreview pursuant to section 41 of the

Access to Information Act and section18.1 of the Federal Court Act in relationto: a) the Treasury Board Secretariat’srefusal to provide access to portions ofrequested records based on sub-paragraphs 69(3)(b)(i) and (ii) and, b)the Information Commissioner’s“decision” to accept the TreasuryBoard Secretariat’s refusal.

Factual Background

On July 30, 2002, Mr. Byer commencedan application pursuant to section 41of the Access to Information Act andsection 18.1 of the Federal Court Act forjudicial review: a) of the InformationCommissioner’s “decision” to acceptthe decision of the Treasury BoardSecretariat (TBS) to refuse him accessto portions of requested records; andb) an order in mandamus compellingboth TBS and the InformationCommissioner to provide him with theimpugned records. The Notice ofApplication contained a request,pursuant to Rule 317 of the FederalCourt Rules, for materials in thepossession of the InformationCommissioner.

On August 21, 2002, the InformationCommissioner filed an objection to theapplicant’s request for material.Likewise, the InformationCommissioner brought a motion tostrike the application, pursuant to Rule221, on the basis that it disclosed noreasonable cause of action.Alternatively, pursuant to Rule 302, theInformation Commissioner sought tohave the application struck, on thebasis that an application for judicialreview ought to be limited to a singleorder in respect of which relief issought. In the further alternative, theInformation Commissioner requestedan order directing that the matter asagainst the Information Commissioner,proceed to mediation.

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Issues Before the Court

1. Was the application for review asagainst the InformationCommissioner bereft of any chanceof success?

2. Was the application in breach ofRule 302 in respect of the numberof orders sought?

3. Was the application as against theInformation Commissioner anappropriate case to proceed todispute resolution conference?

Findings

The Information Commissionermaintained that the Notice ofApplication was bereft of any chanceof success, as the jurisprudence makesclear that section 41 of the Access toInformation Act does not provide for areview of the InformationCommissioner’s recommendations ascontained in a report provided to acomplainant in accordance withsubsection 37(2) of the Access Act.Insofar as the application was broughtpursuant to section 18.1 of the FederalCourt Act, the InformationCommissioner maintained that therewas, likewise, no chance of success inobtaining the requested relief as:

(1) section 64 prohibits theInformation Commissionerfrom disclosing information forwhich a government institutionwould be authorized to refuseto disclose; and

(2) the Information Commissioneris not the head of a governmentinstitution with control of theimpugned records, such thatthe applicant has no clear legalright to compel him to providethe same and the prerequisitesfor mandamus could not be met.

Finally, the Information Commissionertook the position that the applicant’sallegations of bad faith could notimprove a claim for mandamus.

The applicant was in agreement withthe Information Commissioner’sinterpretation of the foregoingprovisions of the Access to InformationAct and Federal Court Act. However, heargued that such an interpretation wasonly applicable or appropriate in“normal” circumstances, that is, wherethere were no allegations of bad faith.

The applicant argued that given theposition taken by the InformationCommissioner in Canada (InformationCommissioner) v. Canada (Minister ofEnvironment), 2001 FCT 277 (Fed. T.D.),as compared to that adopted in theInformation Commissioner’ssubsection 37(2) report in the withincase, bad faith was established on theface of the record. He argued that theInformation Commissioner hasprovided an insufficient explanation, ifnot, no explanation, which wouldjustify the diametrically opposedpositions adopted.

The applicant, further, alluded to thefact that the Office of the InformationCommissioner falls within the purviewof the Ministry of Justice, and that thiscompromises the integrity andindependence of the InformationCommissioner’s investigations.Finally, he maintained that the Officeof the Information Commissioner’sbias stems from the fact that he isinvolved in concurrent litigation withthe Attorney General wherein herequires the impugned records to“prove his case” regarding ex gratiapayments.

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Judicial Outcome

By order dated October 15, 2002, thematter has been referred to a disputeresolution conference. The outcomewill be reported in next year’s report.

Mertie Anne Beatty et al., v. The ChiefStatistician et al., Court File No. T-178-02 Federal Court Trial Division

(See Annual Report 2001-2002 forfurther details.)

Nature of Proceedings

This was an application for judicialreview pursuant to section 18.1 of theFederal Court Act, in respect of theChief Statistician to transfer possessionand control of the Nominal Returnsand Schedules of the 1906 Census ofthe Provinces of Manitoba,Saskatchewan and Alberta, and amicrofilm thereof, to the NationalArchivist forthwith without condition;in the alternative, the failure of theNational Archivist to make thisinformation available to the public forresearch purposes.

Factual Background

The applicants were a group ofhistorians and genealogists whoapplied to the Federal Court for anorder compelling the Chief Statisticianto transfer the nominal returns andschedules of the 1906 Census of theProvinces of Manitoba, Saskatchewanand Alberta to the National Archivist,and further and in the alternative, foran order directing, or alternativelypermitting, the National Archivist tomake this information available to thepublic for research purposes.

The 1906 Census was conducted in theprovinces of Manitoba, Saskatchewanand Alberta. The census containedpersonal questions about therespondent, including age, religion,

country of birth, location and typesand amount of livestock. The NationalArchivist of Canada determined thatthe Nominal Returns and Schedules ofthe 1906 Census of Manitoba,Saskatchewan and Alberta weredocuments of historical importance tothe nation and, by letter datedNovember 16, 1999, formally requestedthat the Chief Statistician transfer theindividual census records for the 1906Census to the National Archives ofCanada. By letter dated December 22,1999, the Chief Statistician of Canadarefused the National Archivist’srequest on the basis that there werelegal impediments to such a transfer.

On February 5, 2002, the applicantsfiled a Notice of Application naming asrespondents the Chief Statistician, theAttorney General of Canada, theNational Archivist, the PrivacyCommissioner and the InformationCommissioner of Canada.

On May 13, 2002, the InformationCommissioner brought a motion to beremoved as party from the proceeding.On May 21, 2002, considering theconsent of all parties, the court orderedthat the Information Commissioner bestruck out as a party respondent.

On January 24, 2003, Allan Rock andSheila Copps announced that the 1906Census records were now publiclyavailable at the National Archives ofCanada. (See pages 19 to 21 for relateddetails.)

c) The InformationCommissioner as anIntervener

Babcock v. Canada (Attorney General)[2002] S.C.J. No. 58 (S.C.C.) SupremeCourt of Canada (on Appeal from theCourt of Appeal for British Columbia)

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McLachlin C.J. and Justices L’Heureux-Dubé, Gonthier, Iacobucci, Major,Bastarache, Binnie, Arbour and LeBel.The majority’s reasons were providedby McLachlin C.J. L’Heureux-Dubé J.,July 11, 2002.

(See Annual Report 2001-2002, p. 90 forfurther details.)

Nature of Proceedings

This was an appeal from a decisionrendered by the British ColumbiaCourt of Appeal, reversing the decisionof the Motions Judge which dismissedan Application for production broughtpursuant to B.C.’s Rules of CivilProcedure.

FactualBackground/Issues/Outcome

(See pages 13 to 15 for details.)

Rubin v. Canada (Minister of Health)2003 FCA 37, Court File No. A-575-01,Federal Court of Appeal

Justices Rothstein, Sexton and Evans,January 23, 2003

Nature of Proceedings

An appeal of an order dismissing anapplication pursuant to section 41Access to Information Act.

Factual Background

The requester sought access to areview conducted by Health Canadaon the safety of calcium channelblockers. He was provided withsevered version of a report on thesafety of these drugs. The requestercomplained to the InformationCommissioner who proceeded toinvestigate. Initially, Health Canadarelied on paragraphs 13(1)(a) and20(1)(b) and (c) of the Act; however,during the investigation, Health

Canada withdrew its reliance onparagraph 13(1)(a). In his letter offinding, the Information Commissionerconcluded that Health Canada’sreliance on subsection 20(1) wasjustified. A copy of this letter wasprovided to both the requester andHealth Canada. Upon receipt of thecommissioner’s finding, the requesterbrought an application for judicialreview of the decision of the Ministerof Health pursuant to section 41 of theAct.

After the application for judicialreview was filed, the requester wasinformed by Health Canada that itintended to rely on subsection 13(1) toexclude a portion of the record.

The Applications Judge concluded thatparagraph 20(1)(b) had been properlyrelied on to exempt the severedportions of the requested record. Healso found that there was no evidencethat Health Canada had exercised itsdiscretion to release documentsconcerning issues of public interestimproperly. Finally, the ApplicationsJudge concluded that Health Canadawas precluded from relying onsubsection 13(1) to justify non-disclosure because that section hadbeen withdrawn during theinvestigation of the InformationCommissioner.

The requester appealed the decision ofthe Applications Judge.

Issues Before the Court

The appellant raised four main issues:

1. The Applications Judge erred in notordering the release of the record towhich the government had appliedparagraph 13(1)(a) once he haddetermined that the governmentwas barred from relying on thatsection;

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2. The judge erred in finding thatparagraph 20(1)(b) was applicablegiven the failure of a third party torespond to a second inquiry aboutthe confidentiality of a portion ofthe record;

3. The judge erred in findingparagraph 20(1)(b) was applicablein the absence of any attempt bythe government institution toindependently verify if informationover which a third party assertsconfidentiality is in the publicdomain; and

4. The judge erred in hisinterpretation of subsection 20(6) ofthe Act, more specifically, he erredby failing to require thegovernment institution to apply atransparent and objective standard.

The respondent, in his memorandum,asked the Court of Appeal to decidethat Health Canada was not barredfrom relying on paragraph 13(1)(a) ofthe Act even though it had withdrawnits reliance on that section before theInformation Commissioner during hisinvestigation.

Action Taken by the InformationCommissioner

Upon reviewing the respondent’smemorandum, the InformationCommissioner sought and was grantedleave to intervene on the followingissue which in his opinion had broadimplications for the administration ofthe Act as a whole:

Did the Applications Judge err in lawin holding that a governmentinstitution could not invoke amandatory exemption following thecompletion of the commissioner’sinvestigation of a complaint withrespect to the refusal of access torecords?

Findings

The Federal Court of Appeal deliveredits reasons from the bench. It held thata third party need not respond tosubsequent inquiries aboutconfidentiality from a governmentinstitution to maintain its initial claimof confidentiality. The court said“nothing in the Act specifies how, orhow many times, a third party mustassert confidentiality in order that it bemaintained. “

The court agreed with the appellantthat the burden is on a governmentinstitution to provide proof that therehas not been public disclosure of theinformation. However, the courtconcluded that the determination thata government institution has satisfiedthe burden placed on it is a question ofmixed fact and law and that anApplications Judge is entitled toconsiderable judicial deference on thispoint. The court held: “barring apalpable and overriding error, thiscourt will not interfere with a findingof mixed fact and law by a TrialDivision Judge under the Access toInformation Act”.

In answer to the appellant’s argumentthat the exercise of discretion todisclose confidential information in thepublic interest under subsection 20(6)must be done objectively, the courtfound that “there is no authority forsuch an interpretation of subsection20(6)”. The court continued:“subsection 20(6) confers on the headof the government institution theauthority to exercise his or herdiscretion to disclose, inter alia,otherwise confidential information ifsuch disclosure would be in the publicinterest as it relates to public health.Nothing in subsection 20(6) expressesor implies specific conditions orrequirements that attach to or fetter 93

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that exercise of discretion”. Thus, thecourts should not interfere with theexercise of such a discretion unlessthere is evidence that the head of thegovernment institution took irrelevantconsiderations into account or failed tocomply with the principles of naturaljustice.

Finally, the court concluded that HealthCanada had never ceased to rely onparagraph 20(1)(b) despite its attempt toapply subsection 13(1) to certaininformation. The issue surrounding theapplication of section 13 was,consequently, not commented on.

Judicial Outcome

The appeal was dismissed withoutcosts.

Canada Tobacco Manufacturer’sCouncil A and B (Confidential). v. TheMinister of National Revenue, theInformation Commissioner of Canadaand Robert Cunningham (T-877-00)Federal Court Trial Division

(See Annual Report 2001-2002, p. 9 and2000-2001 Annual Report, p. 119 forfurther details.)

The within application was scheduledto be heard on February 4, 2003.However, at the commencement of thehearing, the Applications Judge, Mr. Justice O'Keefe, advised the partiesof his long-time friendship with one ofthe applicant's supporting affiants.Recognizing that the same could giverise to the appearance of his having aconflict of interest in the proceedings,Mr. Justice O'Keefe then invited theparties to request that he decline tohear the matter.

Given the parties' reliance uponconflicting evidence, the credibility ofthe affiants would clearly be an issue.In these circumstances, despite that

nearly two years had passed since thedate of the requisition for the hearing,the potential appearance of the judge'sconflict of interest was too significantto be ignored. Accordingly, theInformation Commissioner wasrequired to ask that Mr. Justice O'Keefeexcuse himself from the proceedings.Accordingly, the hearing wasadjourned sine die and has,subsequently, been scheduled to beheard over the period of a day-and-ahalf commencing June 2, 2003.

C. Court Decisions Not Involving theInformationCommissioner

AB v. Canada (Minister of Citizenshipand Immigration) 2002 FCT 471, IMM-1683-01 Federal Court TrialDivision

O’Keefe J., April 26, 2002

Nature of Proceedings

This was an application for judicialreview of a decision of theImmigration and Refugee Boardpursuant to section 18.1 of the FederalCourt Act.

Factual Background

The applicant, a former member of thePeruvian wrestling team, is asuccessful refugee claimant. OnFebruary 19, 2001, he was informed bythe Board that his personalinformation form, the transcript of hisrefugee determination hearing and thereasons for the determination that hewas a refugee were being put intoevidence at the hearing of a refugeeclaimant with a similar background.

The applicant objected to the release ofhis personal information. Despite his94

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representations, the information wasreleased by the Board and put intoevidence. Before the court, the Boardargued that, because the personalinformation was provided for“immigration purposes”, the use of theinformation in a subsequent refugeedetermination hearing was a“consistent use” pursuant toparagraph 8(2)(a) of the Privacy Act.

Issues Before the Court

The issue to be decided by the court was : “Is the Board’s decision to disclosethe applicant’s personal informationunlawful, in that the disclosure was fora purpose and to an extent notpermitted under the Privacy Act?”

Findings

The court concluded that the Board hadimproperly released the applicant’spersonal information. The court foundthat the Board was required to complywith the provisions of the Privacy Act aswell as the confidentiality provisions inits own Act.

When considering the exceptions setout in subsection 8(2) of the PrivacyAct, the court stated that theexceptions in paragraphs 8(2)(a) and(b) of the Privacy Act are not “intendedas a blanket endorsement for personalinformation of refugees to be shared atall refugee hearings […] each casemust be dealt with on its own merits.”An example of a “consistent use” of arefugee’s personal information wouldbe the release of the information toshow that subsequent testimony of arefugee giving evidence in anotherrefugee determination hearingcontradicts the information given bythat person to the Board.

The court concluded :

“In this case, the purpose for whichthe information was obtained was thedetermination of the applicant’s claimfor convention refugee status. In orderfor the disclosure of the applicant’spersonal information to be justifiedunder this section, the use of thatinformation must be a use consistentwith the purpose for which theinformation was collected. I do notfind that the determination of therefugee claim of the other applicant isconsistent with the purpose ofdetermining the applicant’s claim forconvention refugee status.”

In considering sub-paragraph8(2)(m)(i) of the Privacy Act, the courtfound that it would not apply unlessthe head of the government institution“provides an opinion that the publicinterest in disclosure clearly outweighsany invasion of privacy that couldresult from the disclosure”. Since therewas no such opinion, sub-paragraph8(2)(m)(i) was inapplicable.

Judicial Outcome

The application for judicial review wasallowed. The Board’s decision torelease personal information wasunlawful and was consequently setaside (although the information hadalready been released).

Sherman v. Canada (Minister ofNational Revenue), [2002] F.C.J. No.779 (FCTD) Federal Court TrialDivision, McKeown J., May 22, 2002

Nature of Proceedings

This matter involves an application forjudicial review, under section 41, of adecision by the minister refusingaccess.

Factual Background

This case involved an access request tothe Minister of National Revenue for 95

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information concerning the extent towhich Revenue Canada uses theUnited States Internal Revenue Service(IRS) to collect Canadian taxes and, inturn, the extent to which the IRS usesRevenue Canada to collect U.S. taxes.

The minister refused to disclose therequested information, primarily basedon paragraph 13(1)(a) of the Access toInformation Act, which states thatinformation obtained in confidencefrom the government of a foreign stateis exempt from the right of access. Insupport of this position, the ministercited the Canada-United States TaxConvention, pursuant to whichinformation received by either countryis to be treated as secret and cannot bedisclosed, save to those persons orauthorities involved in the assessmentof, collection of, or administration andenforcement in relation to taxes towhich the convention applies. Furtherexemptions relied on by the ministerincluded subsection 15(1), paragraphs16(1)(b) or 16(1)(c) of the Access toInformation Act.

The requester complained to theInformation Commissioner who,following his investigation,determined that the complaint was notwell-founded. Thereafter, therequester brought an application forjudicial review pursuant to section 41of the Access to Information Act inrelation to the minister’s refusal.

Issues before the Court

The principle issue in this case was theproper interpretation to be given toparagraph 13(1)(a) of the Access toInformation Act and whether thisexemption applied to informationconcerning the extent to which theCanadian and American tax agenciesrely on one another for the purposes ofcollecting taxes.

A subsidiary issue was whetherstatistics about information properlyexempted from disclosure pursuant toparagraph 13(1)(a) are, likewise,subject to the mandatory exemptionwith respect to information obtained inconfidence from the government of aforeign state?

Findings

The court noted that paragraph13(1)(a) is a mandatory classexemption such that it is not necessaryto justify non-disclosure by referenceto probable harm. (paragraph 17)Thus, the role of the court whenreviewing decisions not to disclosepursuant to subsection 13(1) is todetermine whether the head of thegovernment institution erred in thefactual determination that therequested information falls within theexemption.

If it is determined that the informationfalls within the mandatory exemptioncontained in paragraph 13(1)(a), thehead of the government must refuse todisclose the information unless theUnited States either consents todisclosure or makes the informationpublic.

The court determined that therequirements for paragraph 13(1)(a)were met. The information wasexchanged pursuant to articles withinthe International Convention whichrequire both CCRA and the IRS to treatthe information obtained as secret.

The court rejected the requester’sargument that there was a differencebetween statistics about exemptedinformation and the information itself,ruling that:

“. . . the statistics are an integral partof the information supplied under theConvention, as the statistics could not

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exist without the information from theUnited States.” (paragraph 18)

The court held that subsection 13(2) ofthe Access to Information Act did notapply so as to permit the disclosure, asthe IRS had neither consented to thedisclosure nor made the informationpublic.

Further, having determined thatparagraph 13(1)(a) applied so as toexempt the requested informationfrom disclosure, the court did not goon to consider the application ofsubsection 15(1) or paragraphs 16(1)(b)and (c) of the Access to Information Act.

Judicial Outcome

The application for judicial review wasdismissed.

With respect to costs, the court did notaccept the applicant’s argument thatimportant new principles were raisedin relation to the Act so as to warrantcosts being awarded in favour of theapplicant regardless of the outcome,pursuant to subsection 53(2) of theAccess to Information Act.

However, because the application wasbrought in the public interest, i.e. asthe applicant did not stand to benefitpersonally from the disclosure, thecourt refused to order costs.

Bacon International Inc. v. Canada(Agriculture and Agri-Food Canada)2002 CFPI 587, File Nos. T-2290-98, T-2291-98, T-2292-98, T-2294-98 Federal Court Trial Division, Mr. Justice Beaudry, May 23, 2002

Nature of the proceedings

This involves an application forjudicial review under section 44 of theAccess to Information Act concerning thedecision of Agriculture and Agri-FoodCanada to disclose a record of which

the applicants requested its non-disclosure by relying on paragraphs20(1)(b), 20(1)(c) and 20(1)(d) of theAct.

Facts

The applicants each operate a meat-packing and processing plant in theprovince of Quebec. The requesterwanted to obtain the department’soverall rating for all plants specializingin meat-packing and processing in theprovince of Quebec. The departmentdecided to disclose the record becausethe applicants did not convince it thatsubsection 20(1) applied in order forthe record not to be disclosed. Theapplicants filed this application forreview to the Federal Court.

Questions determined by theCourt

Do the exceptions stipulated inparagraphs 20(1)(b), 20(1)(c) and20(1)(d) of the Act apply in the record?

Findings

The court reaffirms the generalprinciples:

• A judicial review under section 44 ofthe Act is different from otherjudicial reviews because the courthas to consider the case de novo. Thecourt has the chance to assess thereasons raised by the third party torequest the non-disclosure ofinformation.

• The third party opposed to thedisclosure of the information mustprove according to the balance ofprobabilities that the requestedinformation must not be disclosed.

• With regard to access to information,the disclosure of records is the ruleand the exemption is the exception. 97

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To assess the exceptions to disclosure,the court took into consideration Mr. Justice Rothstein’s list of guidingprinciples in Canada (InformationCommissioner) v. Canada (PrimeMinister). With regard to theapplication of paragraph 20(1)(b), thecourt found that it did not apply in thecase at bar because it did not satisfythe criteria requiring that the recordcontain information supplied to agovernment institution by a thirdparty. The record for which theapplicants requested an exemptionfrom disclosure was not supplied bythem but came from the department.With regard to paragraphs 20(1)(c) and20(1)(d) of the Act, the court was notconvinced that the rating received in1998 could have caused them to sufferfinancial loss or could have interferedwith future negotiations with therequester. The court wrote:

[Translation] “The applicants’affirmations concerning theprejudice they could suffer are toogeneral and laconic for the court tofind non-disclosure of the record tobe preferable. It involves, rather, apossibility of prejudice and not aprobability, as the applicants mustprove.”

On account of these findings, Mr. Justice Beaudry chose not toaddress the issue concerning theconcepts of the C.C.Q. for theinterpretation of paragraphs 20(1)(b),20(1)(c) and 20(1)(d) of the Access toInformation Act that were raised by theappellants. The court dismissed theapplication for judicial review andauthorized the disclosure of therecords.

Jaylynn Enterprises Ltd. v. Canada(Minister of National Revenue –M.N.R.), [2002] F.C.J. No. 791 (FCTD)Federal Court Trial Division

McGillis J., May 27, 2002

Nature of Proceedings

This was a motion in which JaylynnEnterprises sought an extension oftime to file an application for judicialreview purportedly challenging a“decision” of the InformationCommissioner.

Factual Background

Jaylynn Enterprises filed anapplication for judicial review inrelation to decisions rendered by boththe Information Commissioner andPrivacy Commissioner. Thisapplication was struck on the groundsthat, contrary to Rule 302 of the FederalCourt Rules, (1998), two separatedecisions were being challengedwithin a single application for review.Still, the Motions Judge stated that, inthe event that leave was sought andobtained from the court to provide forany necessary extensions of time,Jaylynn Enterprises was at liberty tofile separate applications against theInformation Commissioner and/orPrivacy Commissioner.

Three months passed before JaylynnEnterprises filed a motion seeking anextension of time for filing theapplication for review in relation to theInformation Commissioner’sdetermination.

Issues Before the Court

The procedural issue on this motionwas whether or not to grant theapplicant an extension of time to serveand file an application for judicial

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review of the InformationCommissioner’s decision?

Findings on the Issue andOutcome

The court noted that the applicant had:

a) provided no explanation for thethree-month delay between thestriking of the latest application forjudicial review and the motion inwhich the applicant sought thecourt’s leave to extend the period inwhich to file a subsequentapplication; and

b) failed to establish the existence ofan arguable case.

On this basis, the court dismissed themotion requesting leave to serve andfile the judicial review applicationbeyond the requisite timeframe.

Lavigne v. Canada (Office of theCommissioner of Official Languages),[2002] S.C.J. No 55 (SCC), Gonthier J.,June 20, 2002

Nature of Proceedings

This case involves the application ofthe Official Languages Act, R.S.C. 1985,c. 31 (4th Supp.) (OLA), and thePrivacy Act, R.S.C. 1985, c. P-21 (PA),and, more precisely, the issue ofwhether the disclosure of personalinformation pursuant to the lattercould reasonably be expected to beinjurious to the conduct of lawfulinvestigations by the Commissioner ofOfficial Languages (COL).

Factual Background

The respondent, Robert Lavigne,worked in the Montreal office of theDepartment of National Health andWelfare. Between November 1992 andMarch 1993, Lavigne filed fourcomplaints with the COL alleging that

his rights in respect of language ofwork, and employment and promotionopportunities, had been violated bybeing forced to use French. In thecourse of their investigation, theinvestigators working for the Office ofthe COL questioned some 25employees of the department,including the respondent, hisimmediate supervisor and some of hisco-workers, as well as managers andother employees. Where theinvestigators encountered problems inconducting the investigation becausethe employees were reluctant to giveinformation, fearing reprisals by therespondent, the investigators gaveassurances that the interviews wouldremain confidential within the limits ofsections 72, 73 and 74 of the OfficialLanguages Act. After the interviewswere conducted, the investigationreport concluded that the respondent’sfour complaints were well-foundedand made five recommendations to thedepartment. The department did notquestion the COL’s findings andagreed to implement therecommendations.

In the course of proceedings initiatedby the respondent for a remedy underPart X of the OLA, the respondentmade several requests to the COL fordisclosure of personal informationcontained in the files on the complaintshe had made to him. While someinformation was provided to therespondent, other portions werewithheld under the exemption set outin paragraph 22(1)(b) of the PrivacyAct.

The respondent filed a complaint withthe Privacy Commissioner, wholaunched an investigation in the courseof which he attempted to settle therespondent’s complaints by mediation.The Privacy Commissioner ruled that 99

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the personal information contained inthe testimony of the interviewees, forwhich consent to disclose had not beenobtained, had been properly exemptedfrom disclosure under paragraph22(1)(b) of the Privacy Act.

The respondent subsequently broughtan application for judicial review ofthe COL’s decision. At the time of thehearing of the appeal, the onlypersonal information remaining atissue in the dispute consisted of thenotes taken by the investigators in theOffice of the COL of an interview witha named individual.

Issues Before the Court

1. Did the Federal Court of Appeal errin concluding that the COL maynot rely on paragraph 22(1)(b) ofthe Privacy Act to refuse to disclosepersonal information that wascollected in the course of aninvestigation conducted under theOfficial Languages Act, when theCOL’s investigation has concluded?

2. Did the Federal Court of Appeal errin concluding that there were noreasonable grounds for the COL’srefusal?

Findings

Decisions of the Lower Courts:

Federal Court, Trial Division

According to Dubé J., under thePrivacy Act, disclosure of personalinformation is the rule andwithholding is the exception.Paragraph 22(1)(b) of the Privacy Act isan exception to the general rule andmust therefore be narrowly construed.In this way, Dubé J. concluded that thesection is a limited exemption relatingsolely to investigations that areunderway or about to begin; it does

not apply to future investigations.Being of the view that the investigationat bar was over, paragraph 22(1)(b)had no application. Additionally,Dubé J. concluded that the COL hadnot established that the disclosure ofthe personal information couldreasonably be expected to be injuriousto the conduct of its investigations.

Federal Court of Appeal

The Federal Court of Appeal concurredwith Dubé J. that paragraph 22(1)(b) ofthe Privacy Act does not apply toprotect information once theinvestigation has concluded. It alsorejected the appellant’s argument thatDubé J. had failed to consider whetherdisclosure could reasonably beexpected to be injurious to theenforcement of any law of Canada,holding that the evidence in the recordwas not capable of supporting such aconclusion. The court held that theevidence, at most, established thepossibility that witnesses may bereluctant to cooperate in aninvestigation unless they have anabsolute assurance of secrecy.

Analysis

The Law:

The Supreme Court began its analysisof the interplay between the OfficialLanguages Act and the Privacy Act byconsidering the purpose and scope ofthe two Acts, and the respective rolesof the two commissioners.

Both the Official Languages Act and thePrivacy Act are recognized by the courtas having a special or “quasi-constitutional” status in the Canadianlegal framework. The court states:

“the Official Languages Act and thePrivacy Act are closely linked to thevalues and rights set out in the100

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Constitution, and this explains thequasi-constitutional status that thiscourt has recognized them ashaving”.

However, the court goes on to state thefollowing:

“that status does not operate to alterthe traditional approach to theinterpretation of legislation, defined byDriedger in Construction of Statutes(2nd ed. 1983), at p. 87:

today there is only one principle orapproach, namely, the words of an Actare to be read in their entire contextand in their grammatical and ordinarysense harmoniously with the schemeof the Act, the object of the Act, andthe intention of Parliament.

The quasi-constitutional status of theOfficial Languages Act and the PrivacyAct is one indicator to be considered ininterpreting them, but it is notconclusive itself. The only effect ofthis court’s use of the expression“quasi-constitutional” to describethese two Acts is to recognize theirspecial purpose”.

The Privacy Act clearly applies to theOffice of the COL, according to thecourt, because the latter is listed in theschedule to the Act as a governmentinstitution. Section 2 of the Privacy Actprovides that its purpose is to extendthe present laws of Canada, and thisincludes the Official Languages Act,although section 82 of the OfficialLanguages Act provides that theprovisions of Parts I to V prevail overany other Act of Parliament. None ofthe sections relied on by the appellant,however, are found in those parts.

According to the Supreme Court, thePrivacy Act must be applied to theOffice of the COL in a mannerconsistent with the objective of theOfficial Languages Act of promoting

equality of status of the two officiallanguages of Canada and guaranteeingminority language groups the right touse the language of their choice withinfederal institutions. Parliament hasexpressly provided that investigationsby the COL shall be conducted inprivate and that investigators shall notdisclose information that comes totheir knowledge in the performance oftheir duties and functions. Theseprovisions illustrate Parliament’sdesire to facilitate access to the COLand to recognize the very delicatenature of the use of an officiallanguage at work by a minority group.

On the other hand, the courtconcluded that the COL’s argumentwas overly broad when it asserted thatParliament intended that theinformation collected by the COLwould remain confidential, unless,disclosure is authorized by the OfficialLanguages Act. The court held that“the effect of that interpretation is toexempt the Official Languages Act fromthe application of the Privacy Act.” Itwould defeat the complainant’s rightto obtain access to personalinformation under the Privacy Act andwould contravene the clear intentionof Parliament. The two Acts,according to the court, must beinterpreted and applied harmoniously.

On the matter of whether or not theexemption for investigations containedin paragraph 22(1)(b) applies after aninvestigation is complete, the courtfound nothing in the provision thatwould suggest that it is limited to aspecific investigation, or aninvestigation that is circumscribed intime. The court therefore held thatthere is no justification for limiting thescope of paragraph 22(1)(b) to currentinvestigations.

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However, that determination did notend the matter. The court went on toexamine whether or not disclosure ofthe withheld information couldreasonably be expected to be injuriousto future investigations by the COL.On this matter, the court concludedthat the COL had failed to dischargethe burden of proof of injury. Thecourt noted that:

“A refusal to ensure confidentialitymay sometimes create difficulties forthe investigators, but may alsopromote frankness and protect theintegrity of the investigation process.The COL has an obligation to besensitive to the differences insituations, and he must exercise hisdiscretion accordingly.”

Accordingly, the appeal wasdismissed.

Canada Post Corp. v. National CapitalCommission 2002 FCT 700, Court FileNo. T-558-01 Federal Court TrialDivision

Kelen J., June 21, 2002

Nature of Proceedings

This was an application for reviewpursuant to section 44 of the Access toInformation Act of the respondent’sdecision to disclose certain informationconcerning financial sponsorshipassistance received by the NationalCapital Commission (NCC) fromCanada Post Corporation with respectto three events: Canada Day, the Soundand Light Show, and Christmas Lights.

Factual Background

A request was filed with the NCCunder the Act for access to informationrelated to financial assistance receivedfrom sponsors, for public events forwhich the NCC is responsible.Pursuant to sections 27 and 28 of the

Act, the NCC informed Canada Post ofthis request. Attached to the letter wasa record detailing information aboutCanada Post with respect tocontributions made for events onCanada Day, the Sound and LightShow, and the Christmas Lights, thatthe NCC intended to release, on thegrounds that the information was notprotected under subsection 20(1) of theAct. Canada Post provided the NCCwith submissions objecting to therelease of the information. NCCrejected Canada Post’s submissions.Canada Post proceeded with anapplication to the Federal Court.

Issues Before the Court

The issue was whether the amountspaid by Canada Post for sponsoringthese events are exempt fromdisclosure pursuant to eitherparagraphs 20(1)(b), (c) or (d) of theAct.

Findings

As regards paragraph 20(1)(b) of theAct, the court concluded that theamounts of financial assistance forsponsorship was “financial andcommercial information”, whichinformation was confidential in nature.It held, however, that the negotiatedamounts of financial assistance cannotbe characterized as information“supplied to a government institutionby a third party” as required byparagraph 20(1)(b).

As regards paragraph 20(1)(c),however, the court held that CanadaPost had met its burden of provingthat a reasonable expectation ofprobable harm would result from thedisclosure of the information.Specifically, it held that the disclosurewould give Canada Post’s competitorsa competitive advantage over Canada102

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Post by enabling them to outbidCanada Post. The court also acceptedthat disclosure would probablyundermine Canada Post’s negotiatingposition just as disclosure of rentalrates paid by one tenant to prospectivetenants could prejudice thecompetitive position of a landlord.The court held that paragraph 20(1)(d)does not apply, as the evidence andsubmissions did not establish thatdisclosure would obstruct futurenegotiations.

Judicial Outcome

The application was allowed on thebasis of paragraph 20(1)(c), and thecourt ordered that the respondentrefuse to disclose the information.

NCC decided not to appeal thedecision.

Proxamis Systems Inc. v. Canada(Minister of Public Works andGovernment Services), [2002] F.C.J. No.1204, Federal Court Trial Division

MacKay J., August 30, 2002

Nature of Proceedings

This matter involved an applicationunder section 44 of the Access toInformation Act for review of thedecision by the minister to releasecertain information originallysubmitted by Proxamis Systems Inc.concerning specified contractsconcluded between it and the minister.

Factual Background

Proxamis sought to prevent theMinister of Public Works fromdisclosing certain “total cost figures”contained in a contract proposal thatwas accepted by the government, onthe basis that such disclosure would bedetrimental to Proxamis’ competitive

position and could severely damage itsbusiness.

Issues Before the Court

Are total cost figures contained in aproposal and/or tender bid exemptfrom disclosure pursuant to subsection20(1)?

More specifically

i) is this information “confidentialinformation” within themeaning of paragraph 20(1)(b)of the Act?

ii) would the release of thisinformation be reasonablyexpected to result in materialfinancial loss or gain to, orreasonably be expected toprejudice the competitiveposition of Proxamis, therebyfitting within paragraph 20(1)(c)of the Act?

iii) would the release of thisinformation reasonably beexpected to interfere withcontractual or othernegotiations of Proxamis,including those with its staff,thereby fitting within paragraph20(1)(d) of the Act?

Findings

i) Paragraph 20(1)(b) - ConfidentialInformation

• The court accepted that three of thefour requisite elements necessary tosatisfy the requirements underparagraph 20(1)(b) were met; namelythat this information: was financial,commercial, scientific or technicalinformation; was supplied to agovernment institution by the thirdparty; and was treated consistentlyby Proxamis in a confidentialmanner.

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• Therefore, at issue was theremaining requirement underparagraph 20(1)(b), namely, whethertotal cost figures contained in asuccessful proposal and/or tenderbid with a government institutionconstitutes “confidentialinformation”.

• The court, citing Air Atonabee Ltd. v.Canada (Minister of Transport) (1989),27 F.T.R. 194 (T.D.) with approval,held that whether or not informationcan be deemed confidential dependsupon the content, purposes andcircumstances in which information iscompiled and communicated(paragraph 10).

• The court then concluded, forreasons of public policy, that totalcost figures found in a successfulproposal and/or tender bid with agovernment institution was notconfidential information within themeaning of paragraph 20(1)(b)(paragraph 12).

In reaching this conclusion, the courtnoted that :

• proposals are put together for thepurpose of obtaining governmentcontract, with payment to comefrom public funds (paragraph 11);

• once a contract is either grantedor withheld, there is not, except inspecial cases, a need for keepingtenders secret (paragraph 11).

ii) Paragraph 20(1)(c) - Reasonablyexpected to result in materialfinancial loss or prejudice tocompetitive position

• The court noted that the applicantbears the onus on a balance ofprobabilities, that the disclosure ofthe information would result in a

“reasonable expectation of probableharm”.

• The court concluded that Proxamishad failed to satisfy this onus.

• In reaching this conclusion the courtnoted that, in order to satisfy theburden under paragraph 20(1)(c):

“In general, it is not sufficient thatan applicant’s affidavit swear to hisor her concerns about reasonableexpectations of probable harmwithout some further evidence ofspecific harm anticipated.”(paragraph 14)

• The court went on to cite SNC-LavalinInc. v. Canada (Minister of Public Works)(1994), 79 F.T.R. 113 at 127, withapproval where it was held :

“The applicant does not demonstrateprobable harm as a reasonableexpectation from disclosure of theRecord and the Proposal simply byaffirming by affidavit that disclosure“would undoubtedly result inmaterial financial loss and prejudice”to the applicant or would“undoubtedly interfere withcontractual and other negotiations ofSNC-Lavalin in future businessdealings”. These affirmations are thevery findings the court must make ifparagraphs 20(1)(c) and (d) are toapply. Without further explanationbased on evidence that establishedthose outcomes are reasonablyprobable, the court is left to speculateand has no basis to find the harmnecessary to support application ofthese provisions” [paragraph 14 ]

• Similarly, the court held thataffidavit evidence regarding thespeculative ripple effects ofdisclosure do not meet the burdenrequired. (paragraph 15)

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iii) Paragraph 20(1)(d) - Reasonablyexpected to interfere withcontractual or other negotiationsof a third party

• The court, citing Société Gamma Inc.v. Canada (Secretary of State) (1994),79 F.T.R. 42, held that :

“Under paragraph 20(1)(d), anapplicant must show an obstructionin actual contractual negotiationsand not merely a heightening ofcompetition”. (paragraph 17)

• And, further, that :

“. . . a distinction must be drawnbetween actual contractualnegotiations and the daily businessoperations of an applicant.”(paragraph 17)

• Thus, affidavit evidence of the“possible effects of disclosure “ and“hypothetical problems” are notsufficient to establish a reasonableexpectation that any particularcontracts or negotiations will beobstructed by disclosure.(paragraph 17, citing Canada(Information Commissioner) v. Canada(Minister of External Affairs),[1990] 3 F.C. 665 at 692)

• Finally, the court held that theevidence did not establish that therewould be probable harm frominterference with future negotiationsbetween Promaxis and the ministeror between it and its staff.(paragraph 18)

• The court held that :

“... vague concerns about futurenegotiations between the parties orabout employee relations withmanagement do not suffice for thepurposes of meeting therequirements of paragraph 20(1)(d).Those relations are properly matters

within the day-to-day operations ofPromaxis’ business rather thanmatters arising from particularcontractual negotiations withoutside agencies.” (paragraph 19)

Judicial Outcome

The section 44 application for reviewof the minister’s decision to release theinformation in question was dismissed.

PricewaterhouseCoopers, LLP. v.Canada (Minister of CanadianHeritage) [2002] F.C.J. No. 1465 (F.C.A.)Court of Appeal

Justices Linden, Sexton and Sharlow,October 23, 2002

Nature of Proceedings

This was an appeal from a decision bythe Applications Judge, Campbell J.,allowing PricewaterhouseCoopers’application for review, broughtpursuant to section 44 of the Act.

Factual Background

The Department of Canadian Heritage(Canadian Heritage) had a contractwith PricewaterhouseCoopers(Pricewaterhouse), pursuant to whichPricewaterhouse was to produce tworeports which would review, analyzeand recommend changes to documentsused by Canadian Heritage to“outsource” elements of thedepartment’s work. Despite that thecontract contained a confidentialityclause, Canadian Heritagesubsequently decided to disclose thetwo reports produced.

Pricewaterhouse opposed this release,taking the position that the disclosureof the two reports would permitcompetitors to deduce the proprietarymethodologies and information that ithad applied, so as to prejudicePricewaterhouse’s competitive 105

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position. The Trial Judge agreed,ordering that the minister not disclosethe two reports based on subsection20(1) of the Access to Information Act.

Canadian Heritage appealed, arguinginter alia error of law on the basis thatthere was insufficient evidence tosupport the Trial Judge’s conclusionthat competitors would be able todeduce information aboutPricewaterhouse’s means,methodologies and analysis usedwhen preparing the two documents.

Issues Before the Court

The main issue before the FederalCourt of Appeal was the degree ofdeference to be given by an AppellateCourt when reviewing the decision ofa Trial Judge based on a contention ofinsufficient evidence.

Findings

The Federal Court of Appeal began bynoting that “the sufficiency of theevidence is particularly within thepurview of the motions judge and it isvery difficult for a Court of Appeal tosecond guess the Motions Judge onthis point” (paragraph 3). Accordingly,the appropriate question to ask iswhether “there was evidence whichpermitted [the Applications Judge] toreach the conclusion he did”. Morespecifically, in order to succeed in anappeal based on insufficient evidence,the appellant “would have todemonstrate that the Motions Judgehad made an error of principle orcompletely misapprehended the factsor committed an overriding andpalpable error”.

The court noted that CanadianHeritage had adduced no evidence tosupport the position that competitorswould not be able to deduceinformation concerning

Pricewaterhouse were the two reportsreleased and had not cross-examinedPricewaterhouse’s witnesses.Accordingly there was no basis uponwhich the Appellate Court couldoverturn the decision of theApplications Judge.

Judicial Outcome

The appeal was dismissed with costs.

Canada (Minister of Public Works andGovernment Services Canada) v.Siemens Canada Limited 2002 FCA414, Court file No. A-700-01, FederalCourt of Appeal

Linden, Sexton and Sharlow JJ.A.,October 24, 2002

Nature of Proceedings

Application pursuant to section 44 ofthe Access to Information Act

Factual Background

Pursuant to section 44 of the Access toInformation Act, Siemens soughtjudicial review of a decision of theMinister of National Defence to releaserecords concerning a successfulproposal submitted by Siemens inresponse to a RFP for the provision ofin-service support on Halifax andIroquois class ships.

Initially, Siemens relied on theexemption found in subsection 20(1)but later raised subsection 24(1) of theAccess to Information Act. Siemensargued that the records were exemptpursuant to subsection 24(1) of theAccess to Information Act because thecontract at issue was a “defencecontract” within the meaning ofsection 30 of the Defence Production Actwhich is a provision listed in ScheduleII of the Access to Information Act. Therespondent government institutionargued that documents which are part

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of the solicitation process did not fallwithin the scope of section 30 of theDefence Production Act.

The Applications Judge found that theinformation at issue was indeed“obtained under or by virtue of theDefence Production Act” since theMinister of National Defence deriveshis authority to conduct procurementsand all things incidental toprocurements from section 16 of theDefence Production Act. The judgeconcluded that it is irrelevant that theproposal was submitted prior to thecontract being formed because section 30 does not distinguishbetween documents which are part ofthe contract and documents which arepart of the solicitation process. Thus,he concluded that the information wasobtained by the minister by virtue ofthe Defence Production Act and therecords were therefore exemptpursuant to subsection 24(1).

The Minister of Public Works andGovernment Services Canada appealedthe decision.

Issues Before the Court

In his Notion of Appeal, the appellantminister raised two issues :

1. The Applications Judge erred infinding that he had jurisdiction toconsider arguments undersubsection 24(1) of the Access toInformation Act and/or section 30 ofthe Defence Production Act in anapplication for judicial reviewunder section 44 of the Access toInformation Act; and

2. The Applications Judge erred infinding that information, which isprovided to the Government ofCanada as part of its solicitation ofdefence contracts, is information that

is provided “under or by virtue of”the Defence Production Act.

Findings

The Federal Court of Appeal, SextonJ.A., writing for the court, dismissedthe appeal from the bench. The courtheld that an Applications Judge hasthe jurisdiction to consider asubsection 24(1) exemption on areview pursuant to section 44 of theAccess to Information Act brought by athird party duly notified of thegovernment institution’s intention torelease records.

The court also found that theApplications Judge properlyinterpreted section 30 of the DefenceProduction Act. Thus, the court heldthat documents which form part of thesolicitation process are obtained by theMinister of National Defence “underor by virtue of” the Defence ProductionAct.

Judicial Outcome

Appeal dismissed.

Ruby v. Canada (Solicitor General)2002 SCC 75, Court File No.: 28029,Supreme Court of Canada (on appealfrom the Federal Court of Appeal)

McLachlin C.J., L’Heureux-Dube,Gonthier, Iacobucci, Bastarache, Binnie,Arbour and LeBel JJ., November 21,2002

Nature of Proceedings

Constitutional Law – Charter ofRights, sections 1, 2(b), 7, 8; PrivacyAct, paragraphs 51(2)(a), (3), &paragraph 22(1)(b)

Factual Background

Paragraphs 51(2)(a) and (3) of thePrivacy Act state that, where a 107

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government institution has claimed the“foreign confidences” or “nationalsecurity” exemption, it is mandatoryfor a reviewing court to hold the entirehearing of a judicial review applicationin camera and to accept ex partesubmissions at the request of thegovernment institution refusingdisclosure. (The Access to InformationAct contains identical provisions.)

Prior to the hearing of a judicial reviewapplication brought pursuant tosection 41 of the Privacy Act, theapplicant, Mr. Ruby, brought a motionwherein he challenged theconstitutionality of these proceduralsections of the Privacy Act. He argued,inter alia, that the mandatory nature ofthese proceedings infringed upon hissubsection 2(b) & section 7 Charterrights.

The Motions Judge held thatparagraphs 51(2)(a) and (3) of thePrivacy Act did not violate section 7.Further, while these provisionsinfringing upon subsection 2(b), thisinfringement was justified pursuant tosection 1 of the Canadian Charter ofRights and Freedoms. On appeal, theFederal Court of Appeal affirmed theMotions Judge’s ruling.

Mr. Ruby appealed to the SupremeCourt of Canada.

Issues Before the Court

1. Do the operation of paragraphs51(2)(a) and (3) of the Privacy Actviolate section 7 of the Charter?

2. The Solicitor General havingconceded that paragraphs 51(2)(a)and (3) infringe upon subsection2(b), the second issue was whetherthe mandatory ex parte and incamera provisions can be savedunder section 1 of the Charter?

Findings

Madam Justice Arbour wrote theunanimous reasons of the court. Withrespect to the first issue, the courtrecognized that the effect ofparagraphs 51(2)(a) and (3), is toexclude an applicant from portions ofthe government’s submissions.Nonetheless, the court held that, evenassuming that this exclusion amountedto a deprivation of liberty or securityof the person, it was not contrary tothe principles of natural justice so as toamount to a violation of section 7 ofthe Charter.

The court reasoned that “fairness”depends on the context of a particularcase. While, the general rule is that afair hearing must include anopportunity for the parties to know theopposing party’s case, some situationsrequire measures of secrecy, in whichcase fairness may be met through theexistence of alternative proceduralsafeguards.

The court held that paragraphs 51(2)(a)and (3) exist within the context of astatutory framework that providessufficient procedural safeguards toensure that there is no breach of theprinciples of natural justice, including :a burden on the governmentinstitution to establish that theinformation is properly exempted; aduty on the government institution toact in the utmost good faith and makefull, fair and candid disclosure of thefacts, including those that may beadverse to its interests, when makingex parte submissions; and recourse tothe Privacy Commissioner and to twolevels of court who have access to theinformation sought and to theevidence supporting the claimedexemption.

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Accordingly, the court held that, in thecontext of the unique circumstances inwhich a government institution assertsan exemption that the requestedinformation involves national securityand foreign confidences, there is noviolation of section 7 where anapplicant is excluded from parts of thegovernment institution’s submissions.

With respect to the second issue, thecourt held that the requirement to hearsection 41 application or appeal incamera, as required by paragraph51(2)(a), was overly broad.Accordingly, it did not meet theminimal impairment part of the Oakestest and could not be saved undersection 1 of the Charter.

In reaching this conclusion, the courtstated that it did not matter that theSolicitor General and the courtsinterpreted the in camera requirementin paragraph 51(2)(a) so as to applyonly to those parts of a hearing thatinvolve the merits of an exemption.The court held that this interpretationwas not supported by the wording ofthe act so that “unless the mandatoryrequirement is found to beunconstitutional and the section is'read down' as a constitutional remedy,it cannot otherwise be interpreted tobypass its mandatory nature.”

Accordingly, the court held that theappropriate remedy is to read downparagraph 51(2)(a) so that it appliesonly to the ex parte submissionsmandated by subsection 51(3).

Judicial Outcome

The appeal was allowed in part.Paragraph 51(2)(a) of the Privacy Actwas read down so that it applies onlyto the ex parte submissions mandatedby subsection 51(3).

Macdonell v. Quebec (Commissionerd’accès à l’information), [2002] SCC71, Supreme Court of Canada onappeal from the Québec Court ofAppeal

McLachlin C.J., L’Heureux-Dubé,Gonthier, Iacobucci and Arbour JJ.(Major, Bastarache, Binnie and LeBel JJ.dissenting), November 1, 2002

Nature of Proceedings

Factual Background

A journalist with the Montreal Gazetterequested documents, pursuant toQuébec’s access legislation (ActRespecting Access to Documents Held byPublic Bodies and the Protection ofPersonal Information, R.S.Q., c. A-2.1),concerning the expenses of members ofthe National Assembly. The requestwas denied based on an exemption(section 34) which bars access todocuments “produced for a member”,save for if the member provideshis/her consent to disclosure. Further,while one minister provided hisconsent to disclosure, the NationalAssembly took the position that theinformation, nonetheless, could not bereleased as it contains “nominativeinformation”, which is deemed“confidential” and not subject todisclosure under section 53 of the Act.

The requester appealed the NationalAssembly’s refusal to the QuébecInformation Commissioner. Thecommissioner, dismissed the appeal.The present case is an appeal fromjudicial review proceedings withrespect to the commissioner’s decision.

Issues Before the Court

The focus of the case is on theappropriate standard of judicial reviewfor decisions rendered by Québec’sInformation Commissioner and the 109

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application of this standard to thecommissioner’s finding that thedocuments were properly exemptedfrom disclosure under the Act.

Findings

The Supreme Court of Canadaunanimously agreed that the issue ofwhether the documents in issue were“produced for a minister” is a questionof mixed fact and law. Likewise, thecourt unanimously found that theappropriate standard of review for theInformation Commissioner’s findingsof mixed fact and law is one of“reasonableness”.

The court split, however, on theapplication of the “reasonablenessstandard” to the commissioner’sfinding that documents showing theexpenses of a member of the NationalAssembly were “produced for aminister”. The majority (5 judges)noted that the text of the statute statesthat all documents provided to theminister are exempt. Because thedocuments in issue were provideddirectly to the ministers, the majorityheld that the finding that they were,therefore, “produced for a minister”was not unreasonable, regardless ofwhether the documents were also usedby the services of the NationalAssembly, or even belonged to it. Theminority (4 judges) disagreed, statingthat, in light of the purpose of theAccess Act, the exemption with respectto “documents produced for aminister” ought to be narrowlyconstrued so as to apply only todocuments pertaining to members'decision-making process.

The court, likewise, split regarding thenature of the question : “do thedocuments contain confidential‘nominative information’”. Themajority held that this too was an issue

of mixed fact and law and (noting therelative expertise of the commissioner,the limited scope of a right of appealfrom the commissioner’s findings andthe existence of a strong privatiseclause intended to limit the scope of asuperior court’s intervention)determined that the same deferential“reasonableness” standard ought toapply. While the minority implied theissue was one of pure law, whichcalled for the application of a morestringent standard of judicial review of“correctness”.

The majority applying the“reasonableness standard” held thatthe commissioner’s decision that theinformation contained confidential“nominative information” was notunreasonable and therefore ought notto be disturbed. While the minoritystated that the commissioner’s findingfailed to satisfy the standard ofreasonableness, much less the standardof correctness which they favoured inthis instance.

Judicial Outcome

The appeal was dismissed and theQuébec Court of Appeal’s ruling,restoring the InformationCommissioner’s decision to exemptfrom disclosure informationconcerning the expenses of members ofthe National Assembly, was upheld.

Correctional Service of Canada v.Yeager, 2003 FCA 30, Court File No, A-332-01 Federal Court of Appeal

Isaac, Malone, Stone JJ.A., January 22,2003

Nature of Proceedings

The underlying application was madepursuant to section 41 of the Access toInformation Act.

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Factual Background

The requester is a criminologist whoconducts research on and is a critic ofthe Canadian penal system. Herequested from Correctional ServiceCanada (CSC) access to the “1992-93CSC release cohort currently beingused to recalibrate the (GSIR) GeneralStatistical Indicator of Recidivism withpersonal identifiers deleted” and “thecode book used to define andidentify/locate the variables in eachcase” as well as “a copy of theOffender Intake Assessmentsoftware…”. The evidencedemonstrated that the requestedrecords do not exist but that they couldbe recreated.

The Applications Judge found thatthere was no evidence that therecreation of the CSC release cohortwould unreasonably interfere with theoperations of the CSC. Similarly, shefound that the creation of a code bookwould not unreasonably interfere withthe operations of CSC. Consequently,she ordered that these records beprovided to the requester. However,she concluded that CSC was notrequired to provide the requester witha copy of the relevant software becausethe requested software only existed formainframe applications and not forpersonal computers and the CSC wasnot in the business of writing personalcomputer software. She also foundthat software is not a “record” asdefined in the ATIA and, even if itexisted, it would not be accessible tothe requester.

CSC appealed the order of the Motions Judge and the requester cross-appealed.

Issues Before the Court

The main appeal raised two issues :

1. whether CSC was obliged,pursuant to subsection 4(3) Accessto Information Act, to create andprovide to the respondent therequested data and a code book oftechnical terms, simply becausethey were capable of creating suchrecords; and

2. whether the learned Motions Judgeerred in concluding that theappellant had not met the onusimposed by section 3 of theRegulations of showing that theproduction of these records wouldunreasonably interfere with theappellant’s operations.

The cross-appeal raised three issues :

1. whether the Motions Judge erred infinding that “software” is not arecord pursuant to section 3 of theAct;

2. whether the Motions Judge erred infinding that the cross-appellant’srights pursuant to subsection 2(b)of the Charter were notcontravened; and

3. whether the Motions Judge erred innot awarding the cross-appellantcosts pursuant to section 53 of theAct.

Findings

The Court of Appeal concluded thatsubsection 4(3) of the Act “…providesthat a non-existent record that can beproduced from an existing machinereadable record is deemed to be arecord to which the respondent [arequester] is entitled access.” In soconcluding, the court found that“…Parliament must havecontemplated two different records : anew and distinct record must beproduced from an existing machine-readable record.” The court then set 111

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out several factors which would allowone to determine if a record isproduced “from a machine-readablerecord”. More specifically, the courtstated that “…the answer to thisquestion is largely fact specific.Whether a record is produced “from” a machine-readable record dependsupon a number of factors, includingthe requisite amount of independentcomposition as compared to purelymechanical and routine editing ormanipulation.”

The court then turned to section 3 ofthe Regulations which limits theobligation found in subsection 4(3) ofthe Act to cases where the productionof the record would not “unreasonablyinterfere with the operations of theinstitution.” The court concluded thatthe Applications Judge hadmisapprehended the evidence beforeher to such an extent that the errorconstituted an error of law. Thus, thecourt concluded that the evidenceprovided by the CSC was sufficient todemonstrate that the production of therequested data and the code bookwould “unreasonably interfere withthe operation” of CSC. The Court of Appeal concluded that theApplications Judge had placed toohigh an evidentiary burden on theCSC.

The court then turned to the cross-appellant’s contention that theApplications Judge erred in notordering the release of the requestedsoftware. The court agreed that“software” is not a record pursuant tothe Access to Information Act. The courtadopted the following reasons of theapplications judge, namely that : “… software is an item used togenerate, view or edit a record, asopposed to the record itself” and is notanalogous to the items listed in the

definition of “record”. Thus, in theabsence of an express mention ofsoftware in section 3 , the ApplicationsJudge concluded that Parliament didnot intend for such information to beaccessible. To this, the Court of Appealadded that the software was not underthe control of the governmentinstitution because the governmentwas a mere licensee and had no rightto duplicate or otherwise use thesoftware outside the agreementsbetween it and the owners of thesoftware.

The Court of Appeal found that theApplications Judge had not erred innot declaring that the purpose andeffect of CSC’s actions were to denythe requester’s constitutional right tofreedom of expression as guaranteedby subsection 2(b) of the Charter.

Finally, the Court of Appeal consideredthe issue of costs. The court concludedthat the requester had raised animportant new principle of law andshould therefore be awarded his coststhroughout despite his lack of successon appeal. On this point, Malone J.A.dissented stating that, once it has beendetermined that the requester hasraised an important new principle oflaw in his application and subsequentappeal, the success of the requester isirrelevant to the matter of costs.

Judicial Outcome

The court allowed the appeal anddismissed the cross-appeal butawarded costs to the cross-appellant(requester) throughout on a party-and-party basis.

Style of Cause : H.J. Heinz Co. ofCanada Ltd. v. Canada (AttorneyGeneral)

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Neutral Citation: 2003 FCT 250, [2003]F.C.J. No. 344, T-1470-00, Federal Courtof Canada – Trial Division

Name of Judge : Layden-Stevenson J.

Date of Judgment : February 27, 2003

Nature of Action: (sections 41, 42, 44ATIA; section 18 FCA)

This was an application for reviewbrought pursuant to section 44 of theAccess to Information Act.

Factual Background

H.J. Heinz Co. (Heinz) brought anapplication for review, objecting to theCanadian Food Inspection Agency’s(CFIA) intention to release requestedrecords. Heinz took the position thatthe records were exempted fromdisclosure based on section 19,paragraphs 20(1)(b) and (c) of theATIA. The Application Judgepresumed that the access requesterwas advised by the governmentinstitution of the third-partyapplication.

Heinz further raised a preliminaryissue alleging that the records were notresponsive to the request. Heinzmaintained that the request was for“correspondence”, a term whichshould be limited to “letters”, asopposed to “communications”.

Prior to the hearing, CFIA concededthat portions of the requested recordswere exempt pursuant to section 19 butquestioned Heinz’s right claimexemptions, other than section 20 of theAct, within the context of a section 44application for judicial review.

In relation to the applicability ofsection 20 of the ATIA, the Crown tookthe position that paragraph 20(1)(b)could not apply because CFIA hadcreated the records (albeit withconfidential information from Heinz),

and that there was insufficientevidence to support CFIA’s reliance onparagraph 20(1)(c).

Issues Before the Court

1) Were the records at issueresponsive to the request?

2) May a third party raise a section 19exemption (which the governmentinstitution agrees applies toportions of the requested records)within the context of a section 44application?

3) Are the requested recordsexempted pursuant to paragraph20(1)(b)?

4) Are the requested recordsexempted pursuant to paragraph20(1)(c)?

5) Is severance reasonable?

Findings on Each Issue (directquotes from decision to extentpossible)

1. Were the records at issueresponsive to the request?

Justice Layden-Stevenson held that therecords identified by CFIA wereresponsive to the access request. Indoing so, she rejected Heinz’sargument that the term“correspondence” referred only to“letters”, stating instead that“correspondence” included all“communications”.

2. May a third party raise a section 19exemption (which the governmentinstitution agrees applies toportions of the requested records)within the context of a section 44application?

The court rejected the Crown’sargument that, within the context of asection 44 application for review, theapplicant third party is prevented from

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raising exemptions other than those setout in subsection 20(1) of the ATIA.Justice Layden-Stevenson noted thatthird parties are given the right,pursuant to section 28 of the Act, tomake “respresentations” in relation toother exemptions, not just section 20 ofthe ATIA.

3. Are the requested recordsexempted from disclosure pursuantto paragraph 20(1)(b)?

Layden-Stevenson J., applied the test forparagraph 20(1)(b) as outlined in AirAtonabee Ltd. v. Canada (Minister ofTransport) (1989), 27 F.T.R. 194, stating:

“The applicant must satisfy fourrequirements to establish that anexemption from disclosure iswarranted:

(1) the information is financial,commercial, scientific or technical;

(2) the information is confidential;

(3) the information was supplied tothe government institution by a“third party”, and

(4) the information was treatedconsistently in a confidentialmanner.” (paragraph 32)

Applying this test, she concluded thatthe records met these requirementsand qualified for exemption.

4. Are the requested recordsexempted pursuant to paragraph20(1)(c)?

Layden-Stevenson J. stated that Heinzcould not demonstrated a reasonableexpectation of harm simply byaffirming in an affidavit that disclosurewould result in financial loss andinterfere with contractual and otherrelations (paragraph 39), stating that :

“the threshold is probability, notpossibility or speculation...There mustexist, in the affidavit evidence, anexplanation establishing that thoseoutcomes are reasonably probable.Here, the evidence merely speculates asto probable harm and does not supportthe position that disclosure wouldresult in a reasonable expectation ofprobable harm.” (paragraph 40)

5. Is severance reasonable?

Layden-Stevenson J. rejected Heinz’sargument that the records in theirentirety ought not to be disclosed onthe basis that severance would resultin the release of “disconnectedsnippets”. She held that severancewas not unreasonable in thecircumstances of this case. (paragraph 44)

Judicial Outcome

The application was allowed in part.Some portions were exempted underparagraph 20(1)(b) of the ATIA. Otherportions were deemed to be exemptedunder section 19 as agreed by thegovernment institution. CFIA wasordered to sever and release therecords accordingly.

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Changes affecting the Accessto Information Act

Section 202 of the Immigration andRefugee Protection Act (S.C. 2001, c. 27)came into force on June 28, 2002. (SeeAnnual Report 2002, p. 107.)

Proposed Changes to theAccess to Information Act

The Government public Bill C-25entitled “An Act to ModernizeEmployment and Labour Relations in thePublic Sector and to amend the FinancialAdministration Act and the CanadianCentre for Management Development Actand to make consequential amendments toother Acts” proposed to amend:

• Subsections 55(4) and 57(4) of theAct by replacing the expression“Public Service of Canada” by“federal public administration”,wherever it occurs in the Englishversion. (Section 224)

• Subsection 55(3) of the Act byreplacing the expression “PublicService” by the expression “publicservice” wherever it occurs in theEnglish version, other than in theexpressions “Public ServiceCorporation”, “Public ServiceEmployment Act”, “Public ServicePension Fund” and “Public ServiceSuperannuation Act”. (Section 225)

(2003, Bill C-25, Sections 224-225,introduced, read and printed,2003.02.06, passed second reading andreferred to Committee, 2003.02.20)

The following are proposedamendments to Schedules I and II ofthe Act.

Schedules I and II

The Government public Bill C-2entitled “An Act to establish a process forassessing the environmental and socio-economic effects of certain activities inYukon” proposed to amend Schedule Ito the Act by adding in alphabeticalorder the “Yukon Environmental andSocio-economic Assessment Board” underthe heading “Other GovernmentInstitutions” and to amend Schedule IIby adding, in alphabetical order, areference to “Yukon Environmental andSocio-economic Assessment Act” and acorresponding reference to “paragraph121(a)”. (2002, Bill C-2, ss. 127-128,passed by the House of Commons,2003.03.18; passed second reading inthe Senate and referred to Committee,2003.04.03)

The Government public Bill C-6entitled “An Act to establish theCanadian Centre for the IndependentResolution of First Nations SpecificClaims to provide for filing, negotiationand resolution of specific claims and makerelated amendments to other Acts”proposed to amend Schedule I to theAct by adding, in alphabetical order“Canadian Centre for the IndependentResolution of First Nations SpecificClaims” under the heading “OtherGovernment Institutions” and toamend Schedule II to the Act byadding, in alphabetical order, areference to Specific Claims ResolutionAct and a corresponding reference to“section 38 and subsections 62(2) and75(2)”. (2002, Bill C-6, ss. 78-79, re-introduced 2002.10.09 (Commons);passed by the House of Commons,2003.03.18; passed second reading in

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the Senate and referred to Committee,2003.04.02)

The Government public Bill C-13entitled “An Act respecting assistedhuman reproduction” proposed toamend Schedule I by adding thefollowing in alphabetical order“Assisted Human Reproduction Agency ofCanada “ under the heading “OtherGovernment Institutions” and toamend Schedule II to the Act byadding the following in alphabeticalorder “Assisted Human ReproductionAct” by adding a correspondingreference to “subsection 18(2)”. (2002, Bill C-13, ss. 72-73, re-introduced2002.10.09 (Commons) and debated onthird reading, 2003.04.10)

The Government public Bill C-17entitled “An Act to amend certain Acts ofCanada, and to enact measures forimplementing the Biological and ToxinWeapons Convention, in order to enhancepublic safety” proposed to amendSchedule II to the Act by replacing thereference to “subsection 4.8(1) and6.5(5)” opposite the reference to theAeronautics Act with a reference to“subsections 4.79(1) and 6.5(5)”.(2002,Bill C-17, s. 107, passed second readingand referred to Committee, 2002.11.20)

The Government public Bill C-23entitled “An Act respecting theregistration of information relating to sexoffenders, to amend the Criminal Code andto make consequential amendments toother Acts” proposed to amendSchedule II to the Act by adding, inalphabetical order, a reference to SexOffender Information Registration Actand a corresponding reference inrespect of that Act to “subsection16(4)”. (2002, Bill C-23, section 22,introduced, read and printed,2002.12.11 (Commons); passed secondreading and referred to Committee,2003.04.08)

The Government public Bill C-25entitled “An Act to ModernizeEmployment and Labour Relations in thePublic Sector and to amend the FinancialAdministration Act and the CanadianCentre for Management Development Actand to make consequential amendments toother Acts” proposed to amend:

• Schedule I to the Act by replacingthe reference to “Public ServiceStaff Relations Board” with areference to “Public Service LabourRelations Board”. (Section 88)

• Schedule I to the Act by adding inalphabetical order under theheading “Other GovernmentInstitutions”: Public ServiceStaffing Tribunal/Tribunal de ladotation de la fonction publique.(Section 246) (2003, Bill C-25,Sections 88 and 246, introduced,read and printed, 2003.02.06,passed second reading andreferred to Committee, 2003.02.20)

The Senate public Bill S-6 entitled “AnAct to assist in the prevention ofwrongdoing in the Public Service byestablishing a framework for education onethical practices in the workplace, fordealing with allegations of wrongdoingand for protecting whistleblowers”proposed to amend Schedule II to theAct by adding the following inalphabetical order “Public ServiceWhistleblowing Act section 10,subsection 14(2) and section 20.”(2002, Bill S-6, s. 24, first reading(Senate), 2002.10.03; debated March 25,2003)

The private member Bill C-302 entitled“An Act to amend the Access toInformation Act (crown corporations andCanadian Wheat Board)” proposed tomake all crown corporations and theCanadian Wheat Board subject to the

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Access to Information Act. (2002, Bill C-302, read and printed, 2002.11.18)

New Government Institutions

During the 2002-2003 fiscal year, newgovernment institutions becamesubject to the Access to Information Actwhile others, which had beenabolished, were struck out. Thefollowing amendments were made toSchedule I of the Act:

Schedule I

An Act to Amend Certain Acts andInstruments and to repeal the FisheriesSupport Act (S.C. 2002, c. 17) wasproclaimed in force on July 22, 2002(SI/2002-105).

“Fisheries Prices Support Board” wasstruck out under the heading “OtherGovernment Institutions.

“Canadian Film DevelopmentCorporation” and “the Canadian FilmDevelopment Corporation” were replacedby “Telefilm Canada” in every Act ofParliament including Schedule I of theAccess to Information Act under theheading “Other GovernmentInstitutions”. (S.C. 2002, c. 17, s. 14, inforce July 22, 2002, SI/2002-105)

“Blue Water Bridge Authority” wasadded in alphabetical order under theheading “Other GovernmentInstitutions”. (SOR/2002-174, CanadaGazette, Part II, in force 2002.04.26)

Reference to “Office of Infrastructure andCrown Corporations of Canada” underthe heading “Other GovernmentInstitutions” is replaced by “Office ofInfrastructure of Canada”. (SOR/2002-291, Canada Gazette, Part II, in force2002.08.06)

“Canadian Air Transport SecurityAuthority” was added in alphabeticalorder under the heading “Other

Government Institutions. (SOR/2002-343, Canada Gazette, Part II, in force2002.09.24)

Amendments to Heads ofGovernment InstitutionsDesignation Order (NotIncluded in the PreviousAnnual Reports)

The schedule to the French version ofthe Access to Information Act Heads ofGovernment Institution DesignationOrder was amended by adding thefollowing after item 0.1: “1.1 CanadianAir Transport Security Authority /Administration canadienne de lasûreté du transport aérien, ChiefExecutive Officer / Premier dirigeant”and the schedule to the Englishversion of the Order was amended byadding the following after item 15.02:“15.021 Canadian Air TransportSecurity Authority / Administrationcanadienne de la sûreté du transportaérien, Chief Executive Officer/Premier dirigeant “. (SI/2002-130,Canada Gazette, Part II, in force2002.10.09)

“Canadian Film DevelopmentCorporation” and “the Canadian FilmDevelopment Corporation” are replacedby “Telefilm Canada” in everyregulation including Item 20 of theschedule to the Access to InformationHeads of Government InstitutionsDesignation Order, amended byreplacing “Canadian Film DevelopmentCorporation” in column I with “TelefilmCanada” and that item is renumberedas item 98.01 and repositionedaccordingly.” (S.C. 2002, c. 17, s. 15, inforce July 22, 2002, SI/2002-105)

The Access to Information Act Heads ofGovernment Institutions DesignationOrder was amended by repealing Item87 and by adding in numerical orderItem 14.01 Canada Lands Company 117

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Limited/Société immobilière duCanada limitée, Chief ExecutiveOfficer/Premier dirigeant (SI/2003-54,Canada Gazette, Part II, in force2003.03.27)

The Access to Information Act Heads ofGovernment Institutions DesignationOrder was amended by adding Item19.1 Canadian EnvironmentalAssessment Agency/Agencecanadienne d’évaluationenvironmentale, President/Président(SI/2003-56, Canada Gazette, Part II, inforce 2003.03.27)

Amendments to Schedule I ofthe Regulations Amending theATI Regulations

Schedule I to the Access to InformationAct Regulations was amended byadding the following after item 2: “2.01Canadian Forces National Counter-Intelligence Unit / 2.01 Unité nationalede contre-ingérence des Forcescanadiennes”. (SOR/2002-341, CanadaGazette, Part II, in force 2002.09.24)

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CHAPTER VII ACCESS TO INFORMATION INCANADA AND IN THE WORLD

1. Access to Information in CanadaProvince Legislation Supervising Authority Website

Alberta Freedom of Information and Information and www.oipc.ab.caProtection of Privacy Act, Privacy CommissionerR.S.A. 2000, c. F-25

British Columbia Freedom of Information and Information and www.oipcbc.orgProtection of Privacy Act, Privacy CommissionerR.S.B.C. 1996, c. 165

Manitoba The Freedom of Information Ombudsman www.ombudsman.mb.caand Protection of Privacy Act, C.C.S.M., c. F175

New Brunswick Right to Information Act, Ombudsman www.gnb.caS.N.B. 1978, c. R-10.3

Newfoundland Freedom of Information Act, Citizen’s Representative www.gov.nf.ca/just/ and Labrador R.S.N.L. 1990, c. F-25 [2002, c. A-1.1]

[Repealed and replaced by the Access to Information and Protection of Privacy Act, 2002,c. A-1.1 – To be proclaimed]

Nova Scotia Freedom of Information and Freedom of www.gov.ns.ca/foiroProtection of Privacy Act, Information and Privacy 1993, S.N.S. 1993, c. 5 Review Officer

Ontario Freedom of Information and Information and www.ipc.on.caProtection of Privacy Act, Privacy CommissionerR.S.O. 1990, c. F.31

Prince-Edward Freedom of Information and Information and www.gov.pe.ca/foippIsland Protection of Privacy Act, Privacy Commissioner

2002, c. F-15.01

Quebec An Act Respecting Access to Présidente, Commission www.cai.gouv.qc.caDocuments Held by Public d’accès à l’informationBodies and the Protection of Personal Information, R.S.Q., c. A-2.1

Saskatchewan The Freedom of Information Information and www.legassembly.sk.ca/and Protection of Privacy Act, Privacy Commissioner officersS.S. 1990-91, c. F-22.01

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Province Legislation Supervising Authority Website

Northwest Access to Information and Information and Privacy e-mail:Territories Protection of Privacy Act, Commissioner of atippcomm@theedge.ca

S.N.W.T. 1994, c. 20 Northwest Territories

Yukon Access to Information and Yukon Ombudsman www.ombudsman.yk.ca/Protection of Privacy Act, and Information & info/index.htmlSY 1995, , c. 1 Privacy Commissioner

Nunavut Access to Information and Information and Privacy e-mail:Protection of Privacy Act, Commissioner of atippcomm@theedge.caS.N.W.T. 1994, c. 20 Northwest Territories

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2. Access to Information in the World1

Country Legislation Constitution Supervising Authority Website

Albania The Law on the Right to Article 23 of the The Peoples’s www.avokatipInformation over the 1998 Constitution Advocate opullit.gov.alOfficialDocuments, No. 8503 (Ombudsman)(June 1999)

Australia Freedom of Commonwealth www.comb.Information Act 1982 Ombudsman gov.au

Austria • The 1987 Article 20 of the www.bla.gv.at/Auskunftspflichtgesetz 1987 Constitution(Federal Law on Duty to Furnish Information)

• Code of Administrative Procedures

• Data Protection Act

Belgium Loi du 11 avril 1994 relative à Article 32 of the Commission d’accèsla publicité de l’administration Constitution as aux documents

amended in 1993 administratifs (for each jurisdiction)

Belize The Freedom of OmbudsmanInformation Act (1994)

Bosnia and Freedom of Information Act Ombudsmen of the www.bihfedomb. Herzegovina (July 2001, in effect Federation org/eng/index/htm

(Feb. 2002)

Bulgaria Access to Public Information Article 41 of the www.aip-bg.orgAct (June 2000) Bulgarian

Constitution of 1991

Canada Access to Office of the www.infocom.gc.caInformation Act (1982) Information

Commissioner ofCanada

Colombia Law 57, July 5, 1985, Article 20 of the ContentiousOrdering the Publicity of Constitution of AdministrativeOfficial Acts and Documents Columbia (1991) Tribunal

Czech Law on Free Access to Article 17 of the Not specificallyRepublic Information (May 1999) Charter of

Fundamental Rights Generaland Freedoms Ombudsman

Denmark Access to Public Danish Ombudsman www.ombudsAdministration Files Act (1985) manden.dk

England (see UK)

1 The titles of legislation set out in this table are offered for administrative purposes and may not reflect theofficial titles of statutes of the respective countries.

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Country Legislation Constitution Supervising Authority Website

Estonia Public Information Act (2000) Article 44 of the Data Protection www.dp.gov.eeConstitution of InspectorateEstonia

Finland Act on the Openness of Section 12 of the Government Activities (1999) Constitution ofThe Swedish Parliament Finland (2000)adopted in 1766 the world’s (Freedom of first freedom of information Expression andlaw. Right of Access

to Information)

France Loi no. 78-753 du 17 juillet Article 14 of the Commission www.cada.fr1978 de la liberté d’accès aux 1789 Declaration of d’accès auxdocuments administratifs the Rights of Man documents

administratifs (CADA)

Georgia The Law on Freedom of Article 37(5) ofInformation (included in the the ConstitutionGeneral Administrative Code of Georgiaof Georgia in 1999)

Greece Article 5 of the Greek Code Article 10(3) of of Administrative Procedure the Constitution (Law No. 2690/1999) of Greece

Hong Kong Code on Access to Ombudsman www.sar-ombudInformation (1998) sman.gov.hk

Hungary Protection of Personal Data Article 61(1) of the Parliamentary www.obh.huand Disclosure of Data of Constitution of the Commissioner forPublic Interest Republic of Hungary Data Protection (Act No. LXIII of 1992) and Freedom of

Information

Iceland Information Act Information (Act no. 50/1996) Committee

India Freedom of Information Bill (2000)

Ireland Freedom of Information Act, Ombudsman www.oic.ie1997 Office of the

InformationCommissioner

Israel The Freedom of Information Law (1998)

Italy Chapter V of Law Committee on www.governo.No. 241 (1990) Access to it/sez_presidenza/

Administrative dica/commissione/Documents(under composizione.htmlOffice of the Prime Minister)

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Country Legislation Constitution Supervising Authority Website

Japan Law Concerning Access to Minister of Public www.soumu.Information Held by Management, Home go.jp/english/Administrative Organs Affairs, Posts and gyoukan

Telecommunications

South Korea Act on Information Minister of Disclosure by Public Agencies, Government Act. No. 5242, 1996 Administration

Latvia Law on Freedom of www.dvi.gov.lvInformation (1998)

Lithuania • Law on the Provision of Article 25(5) of the Ministry of Culture www.muza.ltInformation to the Public Constitution of

• Law on the Right to Obtain LithuaniaInformation from State and Local Government Institutions (2000)

Mexico Federal Transparency and National CommissionAccess to Public Government on Access to PublicInformation Law (2002) Information

Moldova Access to Information Law, Articles 34 and 37 OmbudsmanNo 982-XIV (2000) of the Constitution

of the Republicof Moldova (1994)

Netherlands Government Information National www.nationale(Public Access) Act (1991) Ombudsman ombudsman.nl

New Zealand • Official Information Act 1982 Section 14 of the Office of the www.ombuds• Local Government Official Bill of Rights Act Ombudsman men.govt.nz

Information and Meetings Act 1987

Nigeria Freedom of Information Bill, 1999

Norway Freedom of Information Act Ombudsman www.lovdata.no/of 1970 info/uenga.html

Philippines Code of Conduct and Ethical Article III, Section 7 • Civil ServiceStandards for Public Officials of the 1987 Commissionand Employees, Republic Act Constitution of • Office of the6713 of 1987 Philippines Ombudsman

Poland Act on Access to Public Article 61 of the No specific authorityInformation (2001 Constitution of

Poland

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Country Legislation Constitution Supervising Authority Website

Portugal Law of Access to Administrative Article 268 of the Commission for www.cada.ptDocuments (1993) 1989 Constitution Access to

of the Portuguese AdministrativeRepublic Documents (CADA)

Romania Law Regarding Free Access to Ministry of www.publicinfo.roInformation of Public Interest Information(2001) (Article 31)

Russia (1995, Act No. 24-FZ)Russian Federation, art. 29

Slovakia Act on Free Access to Article 26 of theInformation (2000) 1992 Constitution

of the Slovak Republic

South Africa Promotion of Access to Section 32 (or 16) South African e-mail:Information Act, Act 2 of 2000 of the Constitution Human Rights sahrcinfo

of the Republic Commission @sahrc.org.zaof South Africa, Act 108 of 1996

Spain De Régimen Juridico de las Article 105b of theAdministraciones Publicas y Constitution of del Procedimiento Spain, 1992Administrativo Comun, (1992)

Sweden The Swedish Parliament Freedom of the Parliamentary www.riksdagen.se/adopted in 1766 the world’s Press Act part Ombudsman english/work/first freedom of information of the Constitution ombudsman.asplaw. (Freedom of the Press Act of 1766)Current version of the Act adopted in 1949 and amended in 1976.

Thailand Official Information Act, Section 48 (or 58?) Official Information www.oic.thaiB.E. 2540 (1997) of the Constitution Commissioner (OIC) gov.go.th

of the Kingdom of Thailand, B.E. 2534(1991)

Trinidad and Freedom of Information Act, Ombudsman www.foia.gov.ttTobago 1999

Ukraine • The 1992 Law on Information• Article 2 of On the Order of

the Dissemination of Information on Public Bodies and Local Governments Activity by Mass Media (1997)

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Country Legislation Constitution Supervising Authority Website

United • Freedom of Information Act Information www.dataprotectKingdom (2000) Commissioner ion.gov.uk

• Code of Practice on Access to Government Information (1994)

• Local Government (Access to Information) Act (1985)

Scotland Freedom of Information Information (Scotland) Act (2002) Commissioner

Wales Code of Practice

United • Freedom of Information Act, No Ombudsman www.usdoj.gov/States 5 USC 552, 1966 oip/oip/htm

• Electronic Freedom of Information Act Amendmentsof 1996

• Government in the SunshineAct, 5 U.S.C. 552b

• Federal Advisory Committee Act, 1972, 5 U.S.C. App II

Uzbekistan The Law on Guarantees and Article 30 of the Freedom of Access to 1992 ConstitutionInformation (1997) of Uzbekistan

Zimbabwe Access to Information and Media and Privacy Bill (2002) Information

Commission

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Corporate services providesadministrative support (financial,human resources, informationtechnology, general administrative andlibrary services) to the InformationCommissioner’s office. Its objective isto ensure that internal overheadfunctions are in place to supportprogram management decisions andaccountability.

As mentioned in last year’s annualreport, from 1983-84 to 2001-02, theOffices of the Information and PrivacyCommissioners of Canada sharedcorporate services based on serviceusage. These shared services avoidedduplication of effort and saved moneyfor both government and theprograms.

At the end of 2001-2002, the PrivacyCommissioner of Canada made theunilateral decision to no longer sharecorporate services. This departurefrom the traditional organizationaldesign increased resource expendituresas each commissioner (one willingly,the other not) paid individually forformerly shared services. (It should benoted that Treasury Board Ministersdirected the Office of the Privacy

Commissioner of Canada to absorb theincremental costs associated with theOffice of the InformationCommissioner having to hireadditional staff.)

Resource Information

The Branch continued to pursueinnovative approaches to the deliveryof its programs during fiscal year 2002-2003.

The Information Commissioner'soperating budget for the 2002-2003fiscal year was $4,896,000. Actualexpenditures for 2002-2003 were$4,909,027 of which $34,261 isreimbursable to the departmentthrough Treasury Board Vote 5.Personnel costs of $3,534,110 accountedfor 72 percent of all expenditures;whereas, the remaining $1,374,917covered all other expendituresincluding other professional services,transportation and communication,and so forth.

Expenditure details are reflected inFigure 1 (Resources by Activity) andFigure 2 (Details by Object ofExpenditure).

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CHAPTER VIII CORPORATE SERVICES

Figure 1: Resources by Activity (2002-03)FTE's Percent Operating Percent

Budget

Access to Government 45 81% $ 4,014,000 82%Information

Corporate Services 11 19% $ 857,000 18%Total Access Vote 56 100% $ 4,896,000 100%

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Note: Expenditure figures do not incorporate final year-end adjustments. Also, please note that $34,261 of salary expenditures are reimburseable tothe Office of the Information Commissioner of Canada through TreasuryBoard Vote 5.

Figure 2: Details by Object of Expenditure (2002-2003)Access to Government Corporate Total

Information Services

Salaries 3,028,195 505,915 3,534,110Transportation and 89,093 70,279 159,372CommunicationInformation 42,762 3,618 46,380 Professional Services 632,983 203,935 836,918Rentals 1,471 30,950 32,421Repairs and Maintenance 13,676 19,557 33,233Materials And Supplies 21,127 31,851 52,978Acquisition of Machinery 98,521 115,094 213,615and EquipmentOther Subsidies and PaymentsTotal 3,927,828 981,199 4,909,027

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Based on the oral and writteninformation provided to us, we attributethe following positions to CIC:

1. The Enforcement and IntelligenceBranches of CIC do not allege thatdesignation is required in order toenable them to protect sensitiveinformation from disclosure. Inparticular, they do not allege that itis necessary for them to be able torely on paragraph 16(1)(a) of theAccess to Information Act in order toprotect sensitive information fromdisclosure. In this regard, CICadmits that the other exemptionprovisions of the ATIA have been inthe past, and will be in future,sufficiently robust to protect anysensitive information it holds as aresult of its enforcement andintelligence activities.

2. CIC does allege that thedesignation is required to enable itto acquire information aboutindividuals (“personalinformation”) from other federalinstitutions and investigativebodies. In this regard, CIC officialsprovided one or two anecdotalaccounts of instances whereinformation was not provided tothese branches of CIC by policeagencies allegedly because thesebranches lacked status as“investigative bodies” for thepurpose of the Access to Information Act.

3. In response to a request for anydocumented proof of such referrals,CIC officials provided two--onefrom Health Canada and the otherfrom Canada Post. These tworefusals, it is clear on their face,

relate to paragraph 8(2)(e) of thePrivacy Act (which is a sectionconcerned with authorizing access,without consent, to personalinformation). These refusals do notrelate to paragraph 16(1)(a) of theAccess to Information Act (which is asection concerned with authorizingrefusals by government to givepublic access to records).

4. CIC asserts that its Enforcementand Intelligence Branches areengaged in lawful investigationswhich are authorized by:

- Immigration and Refugee ProtectionAct (sections 15-6; 55; 138-143 and117-132)

- Criminal Code (sections 487-492.2)

- Citizenship Act (section 19).

While no statutory provisionspecifically empowers officers of CIC'senforcement or intelligence branches toconduct investigations, it is CIC's viewthat the “cumulative effect of thesevarious provisions is to provide a clearframework for the significant level ofinvestigative activities that are carriedout by CIC”. (From CIC's writtenresponses to questions raised by theOffice of the InformationCommissioner.)

Assessment andRecommendation

Setting aside the issue of whether ornot the CIC Enforcement andIntelligence Branches have statutoryauthorization to conduct investigations(regarding which, in our view, CIC hasbeen unconvincing), it is our view thatCIC has not demonstrated a need to 129

APPENDIX A

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have these branches designatedpursuant to paragraph 77(1)(f) of theATIA. CIC has not discharged itsburden to demonstrate that, in theabsence of the designation, it will beunable:

1) to obtain information necessary forthe effective discharge of itsinvestigative functions and/or

2) to protect sensitive investigativerecords from disclosure under theATIA.

CIC admits that it can protect sensitiveinvestigative records without referralto paragraph 16(1)(a) of the ATIA andit has failed to provide any evidencethat the absence of designation underparagraph 77(1)(f) of the ATIA hasresulted in refusals by otherinvestigative bodies to share neededinformation. The evidence providedby CIC demonstrates, at best, thatthere have been refusals by others toshare personal information with CIC inthe absence of a designation pursuantto paragraph 77(1)(d) of the Privacy Act(and even then, only insofar as thatsection relates to paragraph 8(2)(e) ofthe Privacy Act).

During our meeting, CIC officialsreferred to refusals by the RCMP toprovide addresses to CIC ofindividuals subject to a removal order.This example, if true, supports theneed for designation under paragraph77(1)(d) of the Privacy Act (as it relatesto paragraph 8(2)(e) of the Privacy Act)

but not under paragraph 77(1)(f) of theATIA--the latter having an entirelydifferent purpose from the former.

We understood from comments madeby both the CIC and Justice officials,that there is a “status” aspect to thisrequest: CIC wants to be part of the“club” of investigative bodies withwhich it works in administeringCanada's immigration, refugee andcitizenship rules. In our view, the“why not us?” argument has no meritfor the purposes of paragraph 77(1)(f)of ATIA and should be given noweight. It is up to senior officials andministers responsible for coordinatingfederal investigative efforts to ensurethat all federal institutions--designation or no designation--shareamong themselves (to the extentpermitted by the Privacy Act) theinformation necessary to get the jobdone. We were surprised to learn thatsenior level intervention for thepurpose of ensuring proper inter-agency information sharing has noteven been tried. Such a course ofaction would be effective and lessinvasive of citizen rights. The fact thatit has not been the chosen method forsolving the alleged problem leads us todoubt the existence or severity of theproblem.

For all these reasons, we recommendthat the application by CIC fordesignation of its Enforcement andIntelligence Branches under paragraph77(1)(f) of the Access to Information Actbe denied.

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Appendix B

Table of Contents

1. Canada Customs and Revenue Agency. . . . . . . . . . . . . . . . . . . . 133

2. Citizenship and Immigration Canada . . . . . . . . . . . . . . . . . . . . . . 139

3. Department of Foreign Affairs and International Trade . . . . . . . . . 145

4. Fisheries and Oceans Canada . . . . . . . . . . . . . . . . . . . . . . . . . . 152

5. Health Canada . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158

6. Human Resources Development Canada . . . . . . . . . . . . . . . . . . 162

7. National Defence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170

8. Privy Council Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176

9. Transport Canada . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182

10. Correctional Service Canada . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191

11. Public Works and Government Services Canada . . . . . . . . . . . . . 203

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1. BACKGROUNDTo the credit of Canada Customs andRevenue Agency (CCRA) and itsmanagement, staff in the Access toInformation and Privacy Division andstaff in the Offices of Primary Interest(OPI), CCRA has achieved a grade ofA. The grade denotes ideal compliancewith the statutory time requirementsof the Access to Information Act.

These results are extremelyencouraging. Few departments haveachieved ideal compliance with thetime requirements of the Access toInformation Act. The measures taken byCCRA over the years to makeimprovements could be adapted byother departments seeking similarimprovements.

In the 1999 Report Card issued by theOffice of the InformationCommissioner, CCRA’s compliancewith the statutory time requirementsof the Access to Information Act wasrated as a red alert grade of F with an85.6% new request to deemed-refusalratio.

In January 2000, the Office of theInformation Commissioner reportedon the status of the recommendationsmade in the Report Card and madefurther recommendations for measuresto reduce the number of requests in adeemed-refusal situation. At that time,the statistics showed that from April 1to November 30, 1999, the deemed-refusal ratio for access requestsimproved to 51.5%, although still agrade of F.

In January 2001, the Office of theInformation Commissioner reviewedand reported on the progress of CCRAto come into compliance with the timerequirements of the Access to

Information Act. At that time, CCRAwas in "borderline compliance" withthe Act (for the period of April 1 toNovember 30, 2000) with a grade of C.

In January 2002, CCRA continued tomake impressive progress in reducingthe deemed-refusal situation. For theperiod of April 1 to November 30,2001, the Agency achieved a grade ofB. The grade was maintained for the2001-2002 year with a 6.8% newrequest to deemed-refusal ratio.

This report reviews the progress of theAgency to come into ideal compliancewith the time requirements of theAccess to Information Act since theJanuary 2002 Status Report. Inaddition, this report containsinformation on the status of therecommendations made in the January 2002 report.

2. CURRENT STATUS AND FURTHERRECOMMENDATIONS

Excellent results have been achievedby CCRA in reducing the number ofaccess requests in a deemed-refusalsituation.

For the reporting period of April 1 toNovember 30, 2002, CCRA achieved agrade of A that denotes "idealcompliance" in meeting the timerequirements of the Access toInformation Act. The new request todeemed-refusal ratio for the periodwas 3.5%. The continuousimprovement over the years inreducing the number of access requestsin a deemed-refusal situation wasmade in an Agency that receivesapproximately 1,000 access requestsannually. Chart 1 illustrates theimprovement in the reduction of the 133

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percentage of access requests in adeemed-refusal situation over the pastfive years.

The Director of the Access toInformation and Privacy Divisionidentified a number of activities thatoccurred during 2002 that contributedto the continuous improvement inreducing the number of access requestsin a deemed-refusal situation. Theseactivities included:

The refinement of theadministrative process forprocessing access requests. TheDivision has moved away fromcompleting briefing notes on issuesrelated to access requests. Rather,the Directorate provides factualinformation on what informationwill be released so that otherfunctions in the Agency can carryout their responsibilities in relationto access requests.

The identification of informationdisclosed through access requestsover a twelve-month period. Thenext step is to complete an analysisof the information to determine ifthere are opportunities fordisclosure of information on a

routine basis rather than through anaccess request.

A national two-day conference forCCRA staff involved with access toinformation activities.

The following recommendations aremade to support the continued effortsof CCRA to process access requestswithin the statutory time requirementsof the Access to Information Act.

2.1 Sustain AchievementThe maintenance of ideal compliancewith the time requirements of theAccess to Information Act requiresconstant attention to the accessprocess. The Agency is encouraged tocontinuously improve its accessprocess activities, build on itsachievements and devote the resourcesneeded to maintain ideal compliancewith the Access to Information Act.

Recommendation # 1CCRA is encouraged to maintainideal compliance with the timerequirements of the Access toInformation Act.

134

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

Apr-Nov 1998 Apr-Nov 1999 Apr-Nov 2000 Apr-Nov 2001 Apr-Nov 2002

85.6%

51.5%

14.9%9.9%

3.5%

Chart 1: Percentage of Requests in a Deemed-Refusal Situation

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2.2 Informal AccessThe Agency has identified theinformation that was disclosedthrough access requests over a twelve-month period. An analysis of theinformation has not been completed.This analysis may identifyopportunities for making informationroutinely available to the public ratherthan through the access process. CCRAis encouraged to complete the analysisand provide a copy to the Office of theInformation Commissioner. There maybe results in the CCRA analysis thatcould be shared with otherdepartments to encourage "bestpractices".

In December 2002, the Commissiond’accès à l’information du Québec inits five-year review report of theQuebec access and privacy legislationReforming Access to Information:Choosing Transparency recommendedthat ministries adopt an InformationPublication Plan to promote increasedaccess to information. The plan wouldcontain categories of information ordocuments for which distributionwould be mandatory upon theircreation. The plan would enablecitizens to know what categories ofinformation are routinely distributed.There may be information in theCommission’s report that would assistCCRA with its efforts to increaseinformal access.

Recommendation #2CCRA is encouraged to completethe analysis of informationdisclosed through accessrequests to determine if there areopportunities to routinely makeinformation publicly available.

2.3 TransparencyIn coordination with the analysis ofinformation disclosed through accessrequests, CCRA will review theTransparency Guidelines presently inplace in various branches of the

Agency. The purpose of the Guidelinesis to ensure that clients understand thereasons behind decisions made byindividual business lines and toimprove the exchange of informationand documents during the decision-making process.

The purpose of the ATIP review is todetermine whether linkages existbetween the types of informationrequested under the Access toInformation Act and the types ofadministrative disclosures permittedby existing business line-basedTransparency Guidelines.

Recommendation #3 CCRA is encouraged to proceedwith the analysis and promotionof Transparency Guidelines toprovide employees withinstructions on what informationcan routinely be released toclients and the public.

3. STATUS OF 2002RECOMMENDATIONS

In January 2002, recommendationswere made to CCRA on measures tofurther reduce the number of accessrequests in a deemed-refusal situation.The action taken on eachrecommendation is described belowfollowing the text of therecommendation.

Previous Recommendation # 1 CCRA investigate methods ofproviding informal access toinformation to the public andprovide a copy of the report tothe Office of the InformationCommissioner.

Action Taken on PreviousRecommendation # 1: CCRAcompleted the first phase of activitiesinherent in this recommendation todetermine if there are opportunities toroutinely disclose information to thepublic as an alternative to making a 135

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request under the Access to InformationAct, by reviewing access requestsreceived over a twelve-month periodto identify the categories ofinformation typically asked for byapplicants under the Act. The resultsof this analysis will be compared toexisting administratively basedTransparency Guidelines to determinethe nature and extent of correlationsbetween the two of them that have thepotential to increase opportunities forinformal disclosure of information.

Previous Recommendation # 2CCRA continue the resource andsenior management commitmentto continuously improve the timetaken to respond to accessrequests under the Access toInformation Act to maintainsubstantial compliance with thetime requirements of the Act.

Action Taken on PreviousRecommendation # 2: CCRA hasachieved a grade of A that denotessubstantial compliance with the timerequirements of the Access toInformation Act. The ATIP Directoratehas established an ATIP page on theAgency intranet site. The pageincludes direct links to Treasury BoardSecretariat Policy material, Departmentof Justice jurisprudence, and forms andother information to support CCRAstaff who require information on theAccess to Information Act or the accessprocess. There are plans to add an on-line training component to the intranetsite. The vision is to build an intra-Agency electronic ATI service.

Previous Recommendation # 3 CCRA is encouraged to developan ATI Training Program widelyavailable to agency staff throughthe innovative use of technology.

Action Taken on PreviousRecommendation # 3: The ATIPDirectorate held a national Agencytwo-day conference in June 2002 onATIP for approximately 150 Agencystaff involved as OPIs in theprocessing of ATIP requests. Theconference focussed on the applicationof ATIP legislation and relatedadministrative requirements at allstages through the life cycle of arequest.

The ATIP Director has also establishedan internal ATIP Directorate trainingfunction to directly and proactivelyincrease the ATIP knowledge of hisown staff. An experienced senioroperational ATIP manager has beendedicated full-time to the developmentand delivery of detailed andpractically focussed ATIP training toall staff in a programmed andsystematic fashion. The increasedshort-term demand (budgetary andoperational) brought about as a resultare anticipated to be more than offsetby increased knowledge, confidenceand understanding of ATIP legislationand its practical application to CCRArecords by Directorate managers,analysts and support staff.

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137

Questionnaire for Statistical Analysis Purposes in relation to official requestsmade under the Access to Information Act

Part A: Requests carried over from the prior fiscal period. Apr. 1/01 Apr.1/02 to to

Mar. 31/02 Nov. 30/02

1. Number of requests carried over: 181 142

2. Requests carried over from the prior fiscal — in a deemed-refusal situation on the first day of the new fiscal: 24 11

Part B: New Requests — Exclude requests included in Part A. Apr. 1/01 Apr. 1/02to to

Mar. 31/02 Nov. 30/02

3. Number of requests received during the fiscal period: 1009 780

4.A How many were processed within the 30-day statutory time limit? 646 348

4.B How many were processed beyond the 30-day statutory time limit where no extension was claimed? 35 5

4.C How long after the statutory time limit did it take to respond where no extension wasclaimed?

1-30 days: 24 5

31-60 days: 8 0

61-90 days: 3 0

Over 91 days: 0 0

5. How many were extended pursuant to section 9? 250 326

6.A How many were processed within the extended time limit? 173 100

6.B How many exceeded the extended time limit? 23 16

6.C How long after the expiry of the extended deadline did it take to respond?

1-30 days: 13 11

31-60 days: 7 3

61-90 days: 1 2

Over 91 days: 2 0

7. As of November 30, 2002, how many requests are in a deemed-refusal situation? 6

4. QUESTIONNAIRE AND STATISTICAL REPORT

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138

EXCERPT FROM CCRA COMMISSIONER'S RESPONSE TOSTATUS REPORT“I have read your latest status report with great interest and I am glad to see yourconfirmation that our Agency proudly reached grade A, which is afforded to onlythose institutions having processed, within the statutory time limits set out in theAct, over 95% of their requests received under the ATIA.

We have noted your further recommendations and I can assure you that they willbe addressed throughout this fiscal year. I thank you for recognizing ourachievement in compliance with the time requirements of the ATIA.”

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1. BACKGROUNDCitizenship and Immigration Canada(CIC) joins a select group ofdepartments who have achieved agrade of A that denotes idealcompliance with the statutory timerequirements of the Access toInformation Act. For the period fromApril 1 to November 30, 2002, the newrequest to deemed-refusal ratio was3.8%. This constitutes a significantachievement by CIC departmental staffand management dealing with theaccess-request process. Thedepartment is highly commended forits efforts and encouraged to maintainthis performance.

In early 1999, the Office of theInformation Commissioner issued aReport Card on the department’scompliance with the statutory timerequirements of the Access toInformation Act. In the 1999 ReportCard, the department received a redalert grade of F with a 48.9% request todeemed-refusal ratio.

In January 2000, the Office of theInformation Commissioner reviewedthe status of the recommendationsmade in the Report Card and madefurther recommendations for measuresto reduce the number of accessrequests in a deemed-refusal situation.From April 1 to November 30, 1999,the deemed-refusal ratio for accessrequests improved to 23.4%.

In January 2001, the commissioner’soffice again reviewed the department’sprogress in reducing the number ofaccess requests in a deemed-refusalsituation and issued a Status Report.The department had an objective in2000-2001 of completing 70% of accessrequests within the timelines of theAct. The view of the Office of the

Information Commissioner was thatthe objective fell short of what wasneeded to comply with the timerequirements of the Act. The actualperformance of the department for2000-2001 was a 19.6% new request todeemed-refusal ratio resulting in aGrade of D denoting "below standardperformance".

In January 2002, the commissioner’soffice issued another Status Report andrecommendations. For the period ofApril 1 to November 30, 2001, the newrequest to deemed-refusal ratio wasreduced to 13% denoting a grade of C.The momentum was sustained for thefiscal year 2001-2002. The departmentachieved a grade of C with a newrequest to deemed-refusal ratio of 12%.

This report reviews the progress of thedepartment to come into idealcompliance with the time requirementsof the Access to Information Act sincethe January 2002 Status Report. Inaddition, this report containsinformation on the status of therecommendations made in the January 2002 report.

2. CURRENT STATUS AND FURTHERRECOMMENDATIONS

The attainment of ideal compliancewith the time requirements of theAccess to Information Act is anoteworthy achievement for CIC. CIChas made steady progress in reducingthe number of access requests in adeemed-refusal situation as illustratedin Chart 1.

The Director, Public RightsAdministration Directorate (PRAD),identified the following activities thatcontributed to the successful reduction 139

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in the number of deemed-refusalaccess requests.

Clarification of Requests

CIC encourages requesters to narrowor clarify requests in order to reducevolume and speed up the retrieval ofrecords.

Treasury Board Secretariat (TBS)Funding

As part of the Program Integrity FundInitiative, CIC ATIP activities receivedsignificant funding for the 2001-2002and 2002-2003 fiscal years. CIC hasprepared a report on the 2001-2002funding achievements.

PRAD Functions

ATIP policy responsibilities werecentralized into one work area inPRAD rather than being disbursed as apart-time activity among a number ofstaff responsible for processing accessrequests. PRAD is reviewinginformation disclosed through accessrequests and other means to determineif there are options to routinelydisclose more information.

International Region AccessRequests

CIC is taking extensions whenwarranted under section 9 of the Accessto Information Act. Previously, theextensions may have been missed orthe extension could not be takenbecause the request was already in adeemed-refusal situation. Couriers arenow used to transfer some files fromoverseas missions. Previously, thediplomatic pouch process that hassome built-in delay factors was used.

The following recommendations aremade to assist the department in itscontinuing efforts to reduce deemed-refusal access requests.

2.1 Sustain AchievementCIC is encouraged to sustain idealcompliance with the time requirementsof the Access to Information Act.Sustainability requires a commitmentby management and staff who areinvolved in the access process to meetor exceed their responsibilities in theprocess.

140

1997-98 1998-99 1999-00 2000-01 2001-02 2002-030%

20%

40%

60%

80%

100%

28%

61%

74%81%

88%96%

Chart 1: Percentage of Access to Information Requests Completed by Legislated Deadline (to November 2002)

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Recommendation # 1CIC make a commitment tomaintain ongoing idealcompliance with the timerequirements of the Access toInformation Act.

2.2 Continuous ImprovementCIC has made excellent progress inreducing the time taken to respond toan access request once the request is ina deemed-refusal situation asillustrated in Tables 1 and 2. CIC isencouraged to identify the reasons thatspecific requests ended in a deemed-refusal situation for the period April 1to November 30, 2002, to determine iffurther systemic measures can be takento sustain ideal compliance.

Recommendation # 2CIC is encouraged to determinethrough an analysis of thereasons for requests in adeemed-refusal situation if thereare systemic measures to betaken to assist in maintainingideal compliance.

2.3 Engage SeniorManagement

The Director, PRAD, provides amonthly report of ATIP activities to theDirector General, Executive Services.The Director General submits the reportto her Assistant Deputy Minister.

A periodic report on ATIP activities isnot made available or reviewed byCIC’s Senior Management Committee.A semi-annual report on ATIPactivities--particularly those that areneeded to maintain ideal compliancewith the time requirements of the Accessto Information Act--would keep senior

141

Time taken after Apr. 1999- Apr. 2000- Apr. 2001- Apr. 2002-the statutory time Nov. 1999 Nov. 2000 Nov. 2001 Nov. 2002limit to respond where no extension was taken

1-30 days 270 180 197 7631-60 days 60 68 79 1261-90 days 40 28 26 4Over 91 days 18 30 26 0

Table 1: Time to Respond to Non-Extended Requests in a Deemed-Refusal Situation

Time taken after Apr. 1999- Apr. 2000- Apr. 2001- Apr. 2002-the statutory time Nov. 1999 Nov. 2000 Nov. 2001 Nov. 2002limit to respond where an extension was taken

1-30 days 126 123 75 3231-60 days 58 55 43 1261-90 days 16 36 18 1Over 91 days 10 27 7 1

Table 2: Time to Respond to Extended Requests in a Deemed-Refusal Situation

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management engaged in the resolutionof departmental-wide ATIP issues.

Recommendation # 3A semi-annual ATIP report beprovided to the CIC SeniorManagement Committee toengage management in themaintenance of ideal compliancewith the time requirements of theAccess to Information Act.

3. STATUS OF 2002RECOMMENDATIONS

In January 2002, recommendationswere made to CIC on measures tofurther reduce the number of accessrequests in a deemed-refusal situation.The action taken on eachrecommendation is described belowfollowing the text of therecommendation.

Previous Recommendation # 1CIC set a target of 10% or betterfor the new request to deemed-refusal ratio for 2002-2003.

Action taken on PreviousRecommendation # 1: CIC hasachieved a grade of A for the period ofApril 1 to November 30, 2002, with anew request to deemed-refusal ratio of3.8%. CIC management and staffinvolved with the access process are tobe congratulated on this significantachievement.

Previous Recommendation # 2An ATI Improvement Plan bedeveloped to include milestones,tasks, targets, deliverables andresponsibilities for achievingsubstantial compliance with thetime requirements of the Accessto Information Act.

Action taken on PreviousRecommendation # 2: PRADdeveloped a Strategic Plan as part ofthe 2003-2004 budget process.

Previous Recommendation # 3All OPIs and senior managementreceive information on a periodicbasis on the planned versusactual time taken to processaccess requests.

Action taken on PreviousRecommendation # 3: PRADextensively tracks and monitors accessrequests at the program level throughATIPflow. PRAD staff haveresponsibilities that include"ownership and accountability" fordesignated access requests. The closemonitoring has significantly reducedthe number of occasions when anaccess request that could potentiallyend up in a deemed-refusal situationrequires the attention of the DirectorGeneral in the program OPI.

Routine reports are provided to theInternational Region and a number ofCIC Branches.

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143

Questionnaire for Statistical Analysis Purposes in relation to official requestsmade under the Access to Information Act

Part A: Requests carried over from the prior fiscal period. Apr. 1/01 Apr.1/02 to to

Mar. 31/02 Nov. 30/02

1. Number of requests carried over: 814 859

2. Requests carried over from the prior fiscal — in a deemed-refusal situation on the first day of the new fiscal: 150 132

Part B: New Requests — Exclude requests included in Part A. Apr. 1/01 Apr. 1/02to to

Mar. 31/02 Nov. 30/02

3. Number of requests received during the fiscal period: 6557 4971

4.A How many were processed within the 30-day statutory time limit? 3908 2861

4.B How many were processed beyond the 30-day statutory time limit where no extension was claimed? 446 96

4.C How long after the statutory time limit did it take to respond where no extension wasclaimed?

1-30 days: 251 76

31-60 days: 100 12

61-90 days: 57 4

Over 91 days: 57 4

5. How many were extended pursuant to section 9? 1756 1325

6.A How many were processed within the extended time limit? 1199 726

6.B How many exceeded the extended time limit? 214 46

6.C How long after the expiry of the extended deadline did it take to respond?

1-30 days: 107 32

31-60 days: 57 12

61-90 days: 27 1

Over 91 days: 23 1

7. As of November 30, 2002, how many requests are in a deemed-refusal situation? 48

4. QUESTIONNAIRE AND STATISTICAL REPORT

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144

EXCERPT FROM DEPUTY MINISTER'S RESPONSE TOSTATUS REPORT"Your commendation with respect to my department's compliance with responsedeadlines under the Act is gratifying. I, too, am pleased with CIC's continuedprogress toward a very high degree of legislative compliance, particularly in viewof the volume of access to information requests processed. We are both aware thatCIC remains the most frequently accessed department in government. Theachievements of the past year are even more impressive when viewed in thiscontext.

Looking to the future, I generally support the recommendations contained in yourstatus report. I welcome Recommendation #3, which suggests that a semi-annualaccess to information report be provided to CIC Senior Management. My staff willput such a reporting structure into place this fiscal year.

In the past, I have mentioned that CIC's ability to sustain and improve upon thetimeliness of access to information responses over the past two years hasdepended to a substantial degree on the Treasury Board's funding assistance tothat program. In the absence of such funding this year, CIC has made several keystrategic investments in the program and is now researching ways of streamliningprocesses in order to minimize the cost burden while ensuring legislativecompliance.

In that context, and with respect to your recommendation #2, I should point outthat at CIC, analysis of access to information and privacy process issues is anongoing activity throughout the fiscal year cycle and is a key part of long-termplanning. When systemic measures are identified that can assist in maintaining orimproving substantial compliance, they are implemented. You may be interestedin knowing that imaging technology within CIC's Public Rights AdministrationDivision will soon be introduced, with the objective of managing better theincreasing volumes of records that are requested and reviewed each year. Thisprocess change will also streamline processes for some of CIC's more complexaccess to information requests and enhance CIC's client service to the public."

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1. BACKGROUNDThe Department of Foreign Affairs andInternational Trade (DFAIT) continuesto make progress in reducing thenumber of requests that are answeredbeyond the time requirements of theAccess to Information Act. DFAIT hasnow achieved a grade of B with a newrequest to deemed-refusal ratio of 7.9%for the period from April 1 toNovember 30, 2002. This graderepresents substantial progress by thedepartment. DFAIT is encouraged tocontinue improving and achieve idealcompliance.

In early 1999, the Office of theInformation Commissioner issued aReport Card on DFAIT’s compliancewith the statutory time requirementsof the Access to Information Act. TheReport Card contained a number ofrecommendations on measures thatcould be taken to reduce the numberof requests in a deemed-refusalsituation. In the 1999 Report Card, thedepartment received a red alert gradeof F with a 34.9% request to deemed-refusal ratio for access requestsreceived from April 1 to November 30,1998.

In December 1999, the Office of theInformation Commissioner reviewedthe status of the recommendationsmade in the Report Card and madefurther recommendations for measuresto reduce the number of requests in adeemed-refusal situation. At that time,the statistics showed that from April 1to November 30, 1999, the deemed-refusal ratio for access requestsimproved to 27.6%. For thecomparable period in 2000-2001, thedeemed-refusal ratio moved back to29.3%, or a red alert grade of F.

In December 1999, as part of thereview of the recommendationscontained in the Report Card, theDirector, ATIP Division, stated that:

“Compliance with the Act hasbeen identified by the ADM as the#1 priority of the 2000-2001 PublicDiplomacy Business Plan. In spiteof a more than 40% increase inrequests over last year, theprocessing improvements andsignificant streamliningintroduced this year have ensuredthat the ‘deemed-refusal’ rate hasnot had a corresponding increase.”

The progress in reducing the numberof requests in a deemed-refusalsituation regressed for the 2000-2001fiscal year with a new request todeemed-refusal ratio of 31.3%.

A further Status Report was issued inJanuary 2002. The report noted thatDFAIT made substantial progress inmeeting the time requirements of theAccess to Information Act for the periodfrom April 1 to November 30, 2001.The new request to deemed-refusalratio improved to 17.7% thatrepresented a grade of D.Subsequently, the percentage ofrequests in a deemed-refusal situationincreased to 22% for the 2001-2002fiscal year that again constituted agrade of F.

This report reviews the progress of theDFAIT to come into substantialcompliance with the time requirementsof the Access to Information Act sincethe January 2002 Status Report. Inaddition, this report containsinformation on the status of therecommendations made in the January 2002 Status Report.

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2. CURRENT STATUS AND FURTHERRECOMMENDATIONS

For the period April 1 to November 30,2002, DFAIT achieved a grade of Bwith a new request to deemed-refusalratio of 7.9%. The Commissioner’sOffice encourages DFAIT to continueto maintain its achievement ofsubstantial compliance with the time requirements of the Access toInformation Act for the entire fiscal year 2002-2003.

In 2001-2002, DFAIT made a number ofsubstantial improvements to serve asbuilding blocks for reducing thenumber of access requests in adeemed-refusal situation. Among theimprovements, senior managementcommitment was secured through theapproval of various financial measuresto support the ATIP Business Plan, TheRoad to Improvement.

In 2002-2003, the Director, Access toInformation and Privacy Division,identified the following initiatives toreduce the number of access requestsin a deemed-refusal situation:

file management was changed. Inthe past, the OPI was responsiblefor retrieving records and providinga "first cut" at what informationmight be exempted/released. Now,the OPI is responsible for retrieving

records and the ATIP Divisionprovides a package of whatinformation is proposed for release to the requester.

A complete review of the accessprocess was initiated within theATIP Division. The revieweliminated some duplication ofeffort and provided a commonunderstanding of each step in theprocess. In addition, the processwas focused on ATIPflow to ensureconsistency.

There is more personal contact byATIP Division staff with OPIs earlyin the access process. The contact isused to clarify and scope the accessrequest to determine precisely whatthe requester is asking for.

Tables 1 and 2 illustrate the progressmade in reducing the number ofrequests in a deemed-refusal situation.

This report makes the followingrecommendations to assist DFAIT in itsefforts to maintain its progress inmeeting the time requirements of theAccess to Information Act.

2.1 Compliance ObjectiveLast year, the Commissioner’s Officerecommended that DFAIT set anobjective of achieving a grade of B thatconstitutes substantial compliance withthe time requirements of the Access to

146

Time taken after Apr. 1999- Apr. 2000- Apr. 2001- Apr. 2002-the statutory time Nov. 1999 Nov. 2000 Nov. 2001 Nov. 2002limit to respond where no extension was taken

1-30 days 54 22 19 031-60 days 4 7 4 161-90 days 3 6 5 0Over 91 days 1 1 0 0

Table 1: Time to Respond to Non-Extended Requests in a Deemed-Refusal Situation

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Information Act. Setting an objectiveand communicating the objective isone method of encouraging teamworkon the part of DFAIT staff involved inthe access process. The department isencouraged to maintain substantialcompliance with the time requirementsof the Access to Information Act for thefiscal year 2002-2003 and achieve idealcompliance in 2003-2004.

Recommendation # 1DFAIT set an objective ofachieving ideal compliance withthe time requirements of theAccess to Information Act for2003-2004.

2.2 Deemed RefusalsWhile DFAIT has shown significantimprovement in reducing accessrequests in a deemed-refusal situation,there are further measures that mightbe taken to come into ideal compliancewith the time requirements of theAccess to Information Act. An analysis ofthe reasons for deemed refusals wherean extension under section 9 of the Actis claimed may lead to measures thatwill support DFAIT’s achievements todate.

DFAIT has undertaken a review ofconsultations with foreigngovernments and identified sometrends and problem areas that can beanalysed to determine whether thecurrent processes and procedures inplace are the most efficient. DFAIT is

encouraged to extend the analysis toall extensions taken under section 9 ofthe Access to Information Act.

Recommendation #2DFAIT conduct an analysis todetermine the specific reasonsfor each request in a deemed-refusal situation where anextension under section 9 of theAct was taken for the period April 1 to December 30, 2002, todetermine if measures can beinstituted to achieve idealcompliance in 2003-2004.

2.3 OPI Retrieval of RecordsATIPflow was not able to producemeaningful data on OPI actual versusallocated time for records retrieval.

The Director, ATIP Division, is of theview that the primary reason for thedelay situation at DFAIT is that OPIsare not providing records within therequired timeframe. The access processhas changed. Now the OPI retrievesthe records, but does not complete afirst cut of what information may beexempt from disclosure or may bedisclosed. This change assists OPIsbecause it reduces their time taken toprocess requests. The departmentalsenior management should ensure thatOPIs make a commitment to providerecords within the allocated timeframeto the ATIP Division. This reportsuggests that senior managementcommunicate to OPIs that records 147

Time taken after Apr. 1999- Apr. 2000- Apr. 2001- Apr. 2002-the statutory time Nov. 1999 Nov. 2000 Nov. 2001 Nov. 2002limit to respond where an extension was taken

1-30 days 4 15 5 631-60 days 2 6 7 361-90 days 0 1 0 0Over 91 days 0 1 0 1

Table 2: Time to Respond to Extended Requests in a Deemed-Refusal Situation

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retrieval for access requests is adepartmental priority.

Recommendation # 3aSenior management at DFAITconfirm a commitment tomaintain and build on substantialcompliance with the statutorytime requirements of the Accessto Information Act bycommunicating to OPIs thatrecords retrieval for accessrequests is a priority of thedepartment.

Recommendation # 3bDFAIT review the ATIPflowprocess for file control and dataentry to determine how OPIinformation on allocated versusactual time taken to retrieverecords can be routinely reportedto OPIs and senior management.

3. STATUS OF 2002RECOMMENDATIONS

In January 2002, recommendationswere made to DFAIT on measures tofurther reduce the number of accessrequests in a deemed-refusal situation.The action taken on eachrecommendation is described belowfollowing the text of therecommendation.

Previous Recommendation # 1DFAIT set a target of 10% orbetter for the new request todeemed-refusal ratio for 2002-2003.

Action Taken on PreviousRecommendation # 1: DFAIT achieveda grade of B for the period from April 1to November 30, 2002. This graderepresents an achievement of 7.9% andconstitutes substantial compliance withthe time requirements of the Access toInformation Act.

Previous Recommendation # 2DFAIT conduct an analysis todetermine the specific reasonsfor each request in a deemed-refusal situation for the period April 1 to November 30, 2001, andthen develop a plan to reduce thefuture number of requests in adeemed-refusal situation.

Action Taken on PreviousRecommendation # 2:An analysis of requests for 2001-2002in a deemed-refusal situationidentified several pressures:

Slowness in obtaining records fromOPIs;

Spikes in workload volume createdby multiple requests received onone day;

Work crisis situations involvingOPIs;

Growing need for consultation onaccess requests due to the increasinghorizontal nature of work amonggovernment departments and thecomplexity of records subject toaccess requests.

Slowness in OPI response to DFAITtasking memos was identified as themost frequent cause for delays. After asnapshot review of affected files anddiscussions with ATIP officers andOPIs, it was noted that delaysfrequently resulted from OPI workloadpressures outside the control of eitherthe ATIP office or the OPI (forexample, travel demands, crisissituations, visits of foreign ministersand summit events).

The ATIP Division reviewed a sampleof files and, after analysis andconsideration of file pressures,introduced a new approach to fileprocessing. The new approachreversed the order of review and

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permitted OPI time to be focussed onlyon a proposed release package, ratherthan all records initially retrieved.

The ATIP Division is now providedwith all responsive documents withoutreview of OPIs. These records arereviewed in the ATIP Division forscope, duplication and sensitivity. Aproposed release package is preparedand returned to the OPI for finalreview. In many instances, this finalreview is conducted with the OPIofficer in the ATIP Division offices toallow an immediate resolution of anyissues. This new approach toprocessing has resulted in reducedprocessing times overall.

Previous Recommendation # 3DFAIT conduct an analysis todetermine if informal accessmeasures to certaindepartmental information can beinstituted.

Action Taken on PreviousRecommendation # 3: DFAIT movedsome regularly requested informationto the departmental library for easierinformal access and encouraged thedevelopment of departmental websitesfor internet access. DFAIT alsocontinued the screening program tomove historical files over to NationalArchives. As well, the departmentposts summaries of previous releasesof information obtained through accessrequests on the DFAIT website andregularly refer requesters to the site.

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150

Questionnaire for Statistical Analysis Purposes in relation to official requestsmade under the Access to Information Act

Part A: Requests carried over from the prior fiscal period. Apr. 1/01 Apr.1/02 to to

Mar. 31/02 Nov. 30/02

1. Number of requests carried over: 125 143

2. Requests carried over from the prior fiscal — in a deemed-refusal situation on the first day of the new fiscal: 30 32

Part B: New Requests — Exclude requests included in Part A. Apr. 1/01 Apr. 1/02to to

Mar. 31/02 Nov. 30/02

3. Number of requests received during the fiscal period: 496 347

4.A How many were processed within the 30-day statutory time limit? 182 119

4.B How many were processed beyond the 30-day statutory time limit where no extension was claimed? 36 1

4.C How long after the statutory time limit did it take to respond where no extension wasclaimed?

1-30 days: 21 0

31-60 days: 4 1

61-90 days: 6 0

Over 91 days: 5 0

5. How many were extended pursuant to section 9? 225 201

6.A How many were processed within the extended time limit? 103 70

6.B How many exceeded the extended time limit? 41 10

6.C How long after the expiry of the extended deadline did it take to respond?

1-30 days: 18 6

31-60 days: 12 3

61-90 days: 9 0

Over 91 days: 2 1

7. As of November 30, 2002, how many requests are in a deemed-refusal situation? 16

4. QUESTIONNAIRE AND STATISTICAL REPORT

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EXCERPT FROM DEPUTY MINISTER'S RESPONSE TOSTATUS REPORT"The department recognizes and takes seriously its legal obligations under theAccess to Information Act. I was gratified to see that the improvement in thedepartment's response rate moved up from a grade of D last year to a B this year.Our Access to Information and Privacy Protection Division, with the assistanceand co-operation of all departmental colleagues, has worked hard to achieve thislevel of performance. I very much appreciate your recognition of these efforts inyour letter. We will give your current recommendations careful consideration andcontinue to take steps to improve our departmental response rate."

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1. BACKGROUNDFisheries and Oceans Canada (F&O)has achieved a very significantturnaround in its performance resultsfor access requests in a deemed-refusalsituation. For the period from April 1to November 30, 2002, a grade of Awas achieved and that constitutes idealcompliance with the time requirementsof the Access to Information Act. Theaccomplishment is a credit to theefforts of the staff in the Access toInformation and Privacy (ATIP)Secretariat, the ATIP liaison staff in theOffices of Primary Interest (OPI) andsenior management of the department.Ideal compliance requires thecooperation of all staff involved in theaccess process and that cooperation isevident in the results achieved byF&O.

In January 2001, the Office of theInformation Commissioner issued aReport Card on F&O’s compliancewith the statutory time requirementsof the Access to Information Act. TheReport Card contained a number ofrecommendations on measures toreduce the number of access requestsin a deemed-refusal situation at F&O.

In the Report Card, F&O’s compliancewith the statutory time requirementsof the Access to Information Act wasrated as a red alert grade of F with a32.8% new request to deemed-refusalratio for the period April 1 toNovember 30, 2000. For the 2000-2001fiscal year, the percentage increased to38.7%.

A Status Report was issued by thecommissioner’s office in January 2002.The new request to deemed-refusalratio increased to 42.2% for the periodfrom April 1 to November 30, 2001.The Status Report made a number of

recommendations to the department toassist with the achievement ofsubstantial compliance with the Accessto Information Act’s time requirements.

This Status Report reviews theprogress of the department to comeinto substantial compliance with thetime requirements of the Access toInformation Act since the previousreport. In addition, this report containsinformation on the status of therecommendations made in the StatusReport of January 2002.

2. CURRENT STATUS AND FURTHERRECOMMENDATIONS

The department achieved a remarkableturnaround in the deemed-refusalsituation over the past three yearsresulting in ideal compliance with thetime requirements of the Access toInformation Act. The new request todeemed-refusal ratio improved to 4.2%for the period from April 1 toNovember 30, 2002.

After the Report Card was received inJanuary 2001, the departmentdeveloped a two-phase ATIP Strategyto deal with the deemed-refusalsituation.

With senior management support andadditional resources, the infrastructurefor dealing with the access process wasput in place. This included:

ATIP staff recruitment and retentionprogram;

An ATIP Office reorganization andstreamlining of the access process;

A national training program forheadquarters and regional staff andOPIs;152

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The introduction of new accessrequest processing technology.

The second phase of the ATIP Strategyincluded:

A reduction in the use ofconsultants to process accessrequests;

A classification review of the ATIPOffice staff;

The implementation of a newelectronic tracking and casemanagement system to track andcontrol due dates for various partsof the access process.

At the same time, the ATIP Secretariatis implementing various initiatives tobuild awareness of the Access toInformation Act including:

The delivery of National AwarenessSessions;

The introduction of e-memos toOPIs on due dates;

The introduction of a report (on aregular basis) to the Deputy

Minister on the deemed- refusalsituation by Sector;

An ATIP Awards program.

The ATIP Secretariat has a PowerPointpresentation available on the ATIPStrategy and results achieved.

As illustrated in Chart 1, the efforts ofthe department have resulted in anexemplary improvement in thedeemed-refusal situation in a relativelyshort period of time.

The measures both planned andinstituted by the department haveresulted in a significantly improvedperformance.

The following recommendations aremade to support the efforts of F&O tosustain ideal compliance with timerequirements of the Access toInformation Act for the remainder ofthis fiscal year and beyond.

2.1 Objective for 2003-2004The department has shown acommitment to make changes tosupport the reduction of accessrequests in a deemed-refusal situation

153April 1998-Mar 1999

April 1999-Mar 2000

April 2000-Mar 2001

Apr-Jul2001

Aug-Dec2001

Jan-Aug2002

Sep-Nov2002

0%

20%

40%

60%

80%

100%

61%

72%

61%

42%

60% 61%

96%

Chart 1: Percent of Requests Responded to On Time

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and achieve ideal compliance with thetime requirements of the Access toInformation Act. F&O is encouraged tomaintain a grade of A and set anobjective for 2003-2004 of maintaininga new request to deemed-refusal ratioof 5% or less.

Recommendation #1F&O set an objective for 2003-2004 to maintain idealcompliance with the timerequirements of the Access toInformation Act.

2.2 Informal AccessF&O has started to identify andanalyze situations where records maybe provided as a matter of routinerather than through a request underthe Access to Information Act. Thedepartment is encouraged to continueits review to identify records that maybe provided to clients throughinformal access procedures withoutrecourse to the access process underthe Access to Information Act.

Recommendation #2F&O is encouraged to completeits investigation of methods ofproviding informal access toinformation to the public.

3. STATUS OF 2002RECOMMENDATIONS

In January 2002, Status Reportrecommendations were made to F&Oon measures to reduce the number ofaccess requests in a deemed-refusalsituation. The action taken on eachrecommendation is described belowfollowing the text of therecommendation.

Previous Recommendation # 1F&O should establish anobjective to come intosubstantial compliance with theAct’s deadlines no later thanMarch 31, 2003.

Action Taken on PreviousRecommendation # 1: A target was setby the ATIP Secretariat to reach a 90%compliance rate by the March 31, 2003,timeline. The department exceeded theobjective for the period from April 1 toNovember 30, 2002, with a newrequest to deemed-refusal ratio of 4.2%that constitutes ideal compliance withthe time requirements of the Access toInformation Act. Performance hasimproved significantly, rising from alow of 42% in June of 2001 to 95.8% bythe end of November 2002.

Previous Recommendation # 2F&O should conduct an analysisto determine the specific reasonsfor each request in a deemed-refusal situation for the periodApril 1 to November 30, 2001, andthen develop a plan to reduce thefuture number of requests in adeemed-refusal situation.

Action Taken on PreviousRecommendation # 2: A review wasconducted and the review identifiedthe departmental sectoral and regionalOPIs that were not returning recordswithin the 10 days allocated in theaccess process to records retrieval. A number of initiatives wereimplemented as described in the ATIPStrategy that resulted in substantialimprovement.

Previous Recommendation # 3If an extended date will not bemet, the ATIP Unit shouldroutinely contact the requester toindicate it will be late, to providean expected response date andof the right to complain to theInformation Commissioner. Thiswill not impact the deemed-refusal status once the extensiondate is missed; however, it willalleviate some of the requester’sfrustration and perhaps avert acomplaint.

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Action Taken on PreviousRecommendation # 3: ATIP Secretariatstaff now maintain personal contactwith requesters to keep them informedof the status of their requests. TheATIP Secretariat Director believes thismeasure has contributed to thereduction in the number of complaintsto the Office of the InformationCommissioner from 86 in 2000-2001 to31 in 2001-2002 to 22 in 2002-2003 (toNovember 30, 2002).

Previous Recommendation # 4F&O institute a reporting systemto OPIs and departmentalmanagement that providesinformation on the actual versusplanned time taken for thefunctions involved in the accessprocess.

Action Taken on PreviousRecommendation # 4: The ATIPSecretariat undertook a workflowreview as part of an ATIP WorkImprovement Process. The workflowreview identified the current processflow and made recommendations toimprove the process. A newcomputerized reporting system(ATIPconsole) has been implementedand training is due to start.ATIPconsole will allow seniordepartmental managers to track thestatus of requests within their areas.

Previous Recommendation # 5F&O investigate methods ofproviding informal access toinformation to the public.

Action Taken on PreviousRecommendation # 5: The departmentnow posts on the F&O websiteMarshall agreements once all of thenegotiations have been finalized. Thedepartment has made it a practice toinformally release requests that havealready been closed and posted to theCoordination of Access to InformationRequests System. Other options arecurrently being reviewed as part of thestrategic communications plan but nofirm decisions have been made to date.

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156

Questionnaire for Statistical Analysis Purposes in relation to official requestsmade under the Access to Information Act

Part A: Requests carried over from the prior fiscal period. Apr. 1/01 Apr.1/02 to to

Mar. 31/02 Nov. 30/02

1. Number of requests carried over: 126 113

2. Requests carried over from the prior fiscal — in a deemed-refusal situation on the first day of the new fiscal: 69 49

Part B: New Requests — Exclude requests included in Part A. Apr. 1/01 Apr. 1/02to to

Mar. 31/02 Nov. 30/02

3. Number of requests received during the fiscal period: 459 288

4.A How many were processed within the 30-day statutory time limit? 195 159

4.B How many were processed beyond the 30-day statutory time limit where no extension was claimed? 98 0

4.C How long after the statutory time limit did it take to respond where no extension wasclaimed?

1-30 days: 55 0

31-60 days: 22 0

61-90 days: 5 0

Over 91 days: 16 0

5. How many were extended pursuant to section 9? 135 83

6.A How many were processed within the extended time limit? 29 31

6.B How many exceeded the extended time limit? 36 3

6.C How long after the expiry of the extended deadline did it take to respond?

1-30 days: 5 3

31-60 days: 10 0

61-90 days: 2 0

Over 91 days: 19 0

7. As of November 30, 2002, how many requests are in a deemed-refusal situation? 9

4. QUESTIONNAIRE AND STATISTICAL REPORT

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EXCERPT FROM DEPUTY MINISTER'S RESPONSE TOSTATUS REPORT"DFO has every intention of continuing its efforts with respect to the fulfillment ofour obligations under the Access to Information Act. As you have so correctly statedin your report, this "A" would not have been possible without the contribution ofevery employee of this Department. I would further add that the cooperation andadvice DFO has received from your staff has also contributed to this success."

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1. BACKGROUNDHealth Canada (HCan) achieved idealcompliance with the time requirementsof the Access to Information Act in 1999and HCan is the only department thathas sustained ideal compliance insucceeding years. The maintenance ofan A grade for compliance with thetime requirements of the Access toInformation Act in fiscal year 2001-2002and for the period of April 1 toNovember 30, 2002, is a credit to themanagement, ATIP staff and Office ofPrimary Interest (OPI) staff who dealwith access requests.

In the 1999 Report Card, Health Canadareceived a red alert grade of F with a51.2% request to deemed-refusal ratiofor requests received from April 1 toNovember 30, 1998. For the complete1998-1999 fiscal year, the ratio was61.8%. For requests received from April 1 to November 30, 1999, the ratioimproved dramatically 96.9% (3.1%ideal compliance, or an A grade). Inaddition, the backlog of deemed-refusalrequests was entirely eliminated.

The success of the efforts in 1999-2000to reduce the number of requests thatwere not processed within the timerequirements of the Access toInformation Act appears to be the resultof a combination of factors:

The department providedadditional funding for resources todeal with processing the backlog ofrequest.

Funding was provided for resourcesto make improvements to the accessto information process includingprocedure manuals and OPItraining.

The ATIP flow System wasimplemented, providing the HCanCoordinator and seniormanagement with information andreports that clearly show the statusof access requests against plannedtimelines.

The HCan Coordinator hasdeveloped a clear processing modelwith timelines for OPIs and otherparts of the organization involvedin the processing of access requests.

This report provides an update to theJanuary 1999 Status Report on theefforts of the department to sustainideal compliance with the timerequirements of the Access toInformation Act.

2. CURRENT STATUSHCan has continued to achieve a gradeof A, which signals ideal compliancewith the Access to Information Act, forboth time periods covered by thisReport. For the fiscal year 2001-2002,the new request to deemed-refusalratio was 4.5%. For the period fromApril 1 to November 30, 2002, thedepartment achieved a 5% ratio.

HCan is the only department thatreceived a grade of A and continues tomaintain the grade. This situationdemonstrates exemplary performanceon the part of departmental staff.

The Director, Access to Informationand Privacy Division, identified anumber of factors that, in his opinion,contributed to the maintenance of idealcompliance with the Access toInformation Act’s time requirements.Overall, the Director identifiedconstant perseverance to succeed inmaintaining a grade of A andteamwork on the part of HCan staff as

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requisite ingredients to maintain idealcompliance. In addition, the followingfactors influenced the department’sability to process access requests ontime.

OPI Communication

It is essential to regularly communicatethe time requirements of the accessprocess to OPIs and their responsibilityas part of the Access to Information(ATI) team to meet the timerequirements. The OPI ATI contactperson may change, or their prioritiesmay change. Nonetheless, there is astatutory requirement to meet bothlegislated and HCan timelines forcompleting the OPI’s part of the accessprocess and this must be conveyed toOPIs on a regular basis.

Request Clarification

When an access request requirescommunication with the requester toclarify the request, and during thisprocess the request changes in somesubstantial way, the start date of therequest is changed to take into accountthe fact that it is in effect a newrequest. This is done as early in theprocess as possible and the requester isalways informed.

ATIP Director’s Assistance

At times, the ATIP Director has tobecome involved in the access processfor a request regardless of how muchdelegation occurs. The Director makeshimself available to ATIP staff whenstaff alert him to a potential delayproblem. Focusing on a potentialdeemed-refusal situation and possiblecorrective measures a few days beforea delay may occur is one method ofavoiding a deemed-refusal request.

Fee Estimates

HCan always "stops the clock" when afee estimate is sent to a requester. Theactual days for processing the requestdo not include the time taken by arequester to respond to a request for adeposit or a fee as provided by the

Access to Information Act Regulationconcerning fees.

Continuous Improvement

It is always possible to makeimprovements to the access process.For example, previously one OPIcontact person would complete areport on the search for records. Areport was completed even if recordsdid not exist. The Director General ofthe area signed the report. Throughstreamlining, the report has beeneliminated and the OPI contact personsends an e-mail directly to the ATIPDivision on the result of the search for records.

Contact of the Month Award

In order to recognize excellence, theATIP Division has established an OPIContact of the Month Award.

Senior Management Engagement

The ATIP Director provides a weeklyreport to the Deputy Minister’s Officeidentifying late access requests andreasons that the requests are late.

The following recommendation ismade to support the continued effortsof HCan to process access requestswithin the statutory time requirementsof the Access to Information Act.

2.1 Sustain AchievementThe maintenance of ideal compliancewith the time requirements of theAccess to Information Act requiresconstant attention to the accessprocess. HCan is encouraged tocontinuously improve its accessprocess activities, build on itsachievements and devote the resourcesneeded to maintain ideal compliancewith the Access to Information Act.

Recommendation # 1HC is encouraged to maintainideal compliance with the timerequirements of the Access toInformation Act.

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160

Questionnaire for Statistical Analysis Purposes in relation to official requestsmade under the Access to Information Act

Part A: Requests carried over from the prior fiscal period. Apr. 1/01 Apr.1/02 to to

Mar. 31/02 Nov. 30/02

1. Number of requests carried over: 212 149

2. Requests carried over from the prior fiscal — in a deemed-refusal situation on the first day of the new fiscal: 13 15

Part B: New Requests — Exclude requests included in Part A. Apr. 1/01 Apr. 1/02to to

Mar. 31/02 Nov. 30/02

3. Number of requests received during the fiscal period: 1474 960

4.A How many were processed within the 30-day statutory time limit? 969 599

4.B How many were processed beyond the 30-day statutory time limit where no extension was claimed? 18 19

4.C How long after the statutory time limit did it take to respond where no extension wasclaimed?

1-30 days: 14 15

31-60 days: 3 3

61-90 days: 1 1

Over 91 days: 0 0

5. How many were extended pursuant to section 9? 432 226

6.A How many were processed within the extended time limit? 316 146

6.B How many exceeded the extended time limit? 34 22

6.C How long after the expiry of the extended deadline did it take to respond?

1-30 days: 18 14

31-60 days: 11 6

61-90 days: 4 2

Over 91 days: 1 0

7. As of November 30, 2002, how many requests are in a deemed-refusal situation? 7

3. QUESTIONNAIRE AND STATISTICAL REPORT

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EXCERPT FROM DEPUTY MINISTER'S RESPONSE TOSTATUS REPORT“Health Canada is extremely proud of the fact that we have been able to maintainan "A" rating for ideal response time compliance again this year and that we arethe only department to have maintained this record of performance since the firstreport cards were completed in 1999. As you indicate in your letter, this must beseen as a credit to the department's management, our personnel in the Access toInformation and Privacy Division, as well as all our staff who deal with accessrequests across the department.

I can assure you that all efforts will be made, together with everyone involved, tomeet your recommendation that ideal compliance into the future be maintained.”

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1. BACKGROUNDHuman Resources DevelopmentCanada (HRDC) was the firstdepartment to achieve a grade of A inits initial Report Card. In January 2000,HRDC reported that all access requestscompleted between April 1 andNovember 1, 1999, were processedwithin the time requirements of theAccess to Information Act. At that time,the department had in their words a"zero-tolerance policy" for accessrequests in a deemed-refusal situation.

In fiscal year 2000-2001, two eventscreated an extraordinary volume ofaccess and privacy requests. A Grantsand Contributions Audit Report generateda large volume of access requests. Froma typical volume of approximately 450requests, an additional approximately1,300 access requests were received. Inaddition, events around theLongitudinal Files generated some70,000 privacy requests. The volume ofrequests overwhelmed thedepartment’s access process and theAccess to Information and PrivacyDirectorate. At one point, 150 additionalstaff were working in two shifts toprocess requests.

In fiscal year 2000-2001, the new requestto deemed-refusal ratio was 53.4%. Infiscal year 2001-2002, the ratio was39.5%. In each of these fiscal years, theratio represented a grade of F.

One response to the high volume ofrequests and processing timeconstraints was the creation of a ReviewCommittee to ensure that theinformation to be disclosed for anaccess request was consistent with theinformation requested. Each requestwas reviewed as part of the accessprocess but independent from the ATIPDirectorate for what ended up to be

essentially a communications review.The added review resulted in delays tothe access process and access requestsin a deemed-refusal situation. Recently,the review group, the Analysis Unit,was relocated to the ATIP Directorate.

This year, from April 1 to November 30,2002, HRDC received a grade of D for a new request to deemed-refusalratio of 19.7%. This is an improvementfrom the grade of F for the new requestto deemed-refusal ratio for the previoustwo fiscal years.

This report reviews the progress of thedepartment to return to idealcompliance with the time requirementsof the Access to Information Act.

2. CURRENT STATUS AND FURTHERRECOMMENDATIONS

The department’s access process waschanged in response to a crisissituation. Unfortunately, once the crisiswas over and the number of accessrequests returned to a normal level, theaccess process continued to operate incrises mode. What has happened,among other measures, is that acommunications review has beeninserted into the access process as anintegral part of the decision-makingprocess. The zero-tolerance policy foraccess requests in a deemed-refusalsituation was abandoned during thereceipt of an overwhelming number ofrequests. Even though the number ofaccess requests is back to a normalvolume, the zero-tolerance policy hasnot been reinstituted.

The Director of the ATIP Directoratehas generated an ATIP ImprovementPlan to put into place correctivemeasures to improve the deemed-refusal situation. At the time of the

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interview for this report, the plan hadnot yet been reviewed or approved byHRDC senior management. The keycomponents of the plan are:

Roles and Responsibilities: Providea consistent set of roles andresponsibilities for Office of PrimaryInterest (OPI) ATIP Liaison Officers;

Guidelines: Provide consistentguidelines to OPIs for scopingrequests;

Media Lines: Rather thandeveloping media lines for all ATIrequests, have a process in place tofocus on specific requests for medialines;

Training: Continue to provide ATItraining;

Reporting: Institute reporting toaccess process participants on timeallocated versus time taken foraccess process steps;

Accountability: Provide ATItimeline accountability inperformance contracts for seniormanagers;

Fast Tracking: Institute a fasttracking process for certain accessrequests.

The following recommendations aremade to support the efforts of HRDCto process access requests within thestatutory time requirements of theAccess to Information Act.

2.1 LeadershipHRDC was the only department ofthose departments that received aReport Card that enunciated a zero-tolerance policy for access requests in adeemed-refusal situation. To regain anideal level of compliance will takeleadership on the part of the ATIPDirector with strong support fromsenior management. The firstrecommendation in the 2000 ReportCard remains relevant.

Recommendation # 1The ATIP Director is directlyresponsible for ensuringcompliance with the Access toInformation Act and shouldcontinue to take a strongleadership role in establishing aculture of compliance throughoutHRDC. Such a role requires theunwavering support andendorsement of the Minister andthe Deputy Minister. Thedepartment should reinstate itsexemplary "zero-tolerance"policy for deemed refusals.

2.2 ATI Improvement PlanUncoordinated efforts to reduce thenumber of requests in a deemed-refusal situation are likely not aseffective as an integrated group ofmeasures established as a result of ananalysis of the situation. The Directorof the ATIP Directorate has developeda plan to reduce the number of accessrequests in a deemed-refusal situation.While the plan presents a series ofmeasures that will be useful, an ATIImprovement Plan should have acomponent that describes the reasonsfor access requests in a deemed-refusalsituation and connects correctivemeasures to the reasons for the delays.The plan should include targets, tasks,deliverables, milestones andresponsibilities to regain idealcompliance.

Recommendation # 2The ATIP Director provide forsenior management’s approvalan ATI Improvement Plan with an objective of regaining idealcompliance with the timerequirements of the Access toInformation Act in 2003-2004.

2.3 Multiple Sign-offsAn access process that includesmultiple sign-offs after access requestsare processed by the ATIP Directorateusually creates delays in processing

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requests and results in requests in adeemed-refusal situation. The affect ofmultiple "check points" prior to therelease of records is to create aninstitutional culture of "play it safe".

The 2000 Report Card recommendedrevising the Delegation Order toclearly show (as indicated by thedepartment) that the ATIP Directorand officers have delegated authoritywithout reference to otherdepartmental officials for approval ofdecisions made under the Access toInformation Act. The Delegation Orderwas not changed.

Recommendation # 3HRDC institute an accessprocess that does not containmultiple sign-offs and revise theDelegation Order to clearly showthat the ATIP Director andofficers have delegated authoritywithout reference to otherdepartmental officials fordecisions made under theAccess to Information Act.

2.4 Analysis UnitThe Analysis Unit is now part of theATIP Directorate. Its apparent purposeis to provide a communicationsfunction by providing media lines foreach access request. In draft materialprovided for this report on roles andresponsibilities, the unit’s functions arestated as:

Reviewing the OPI submission andensuring relevancy of documents;

Ensuring consistency of exemptions;

Assessing the impact of the releaseof this information on thedepartment’s program and policydirections and reviewing for anymedia impact;

Ensuring media lines are preparedand respond to the content of thereleased information;

Providing information briefings tosenior management;

Providing analysis and sign-off.

The tasks as set out show a "play itsafe" institutional culture because ofthe duplication and checking of someof the work performed by ATIP staff inthe Operations Section.

Chart 1 shows the number of workingdays that are taken to process accessrequests in the ATIP Directorate. Theinformation contained in the chart isfor completed access requests.

Processing by the Analysis Unit takesplace in parallel with the sign-offprocess (see Chart 2) and may overlapsomewhat in parallel with theOperations Section. The Analysis Unitis allocated four days to perform theirfunctions.

The Operations Section reviewsrecords and applies the provisions ofthe Access to Information Act. The

164

Average working days taken by the ATIP Directorate to review and analyzedocuments subject to release.

Q3 FYTD

Operations Section1Days taken 17.1 11.7

Objective 17.6 14.9

Analysis SectionDays taken 6.0 5.9

Objective 4 4

Chart 1: ATIP Directorate ATI Request Processing

1 includes extensions

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working days shown below includesdays where requests are extendedunder section 9 of the Access toInformation Act.

Recommendation # 4aHRDC review the tasks assignedto the Analysis Unit to eliminateany duplication of work withinthe ATIP Directorate.

Recommendation # 4bHRDC take measures to reducethe actual time taken to completecommunications activities to theallotted time.

2.5 Informal AccessPart of the plan under development bythe ATIP Director should include areview to determine if there are waysto increase informal access to HRDCinformation. The public is well servedby the development of approaches tothe dissemination of informationwithout resorting to making a requestunder the Access to Information Act. Thepublic would not be prevented frommaking a request under the Act ifdissatisfied with the informal process.

Decisions on informal access require,as one part of the analysis,identification of information that isroutinely disclosed through responsesto access requests. An analysis can alsobe conducted on the information needsof HRDC clients. Both CanadaCustoms and Revenue Agency andCitizenship and Immigration Canadaare actively investigating informalaccess to departmental information.

Recommendation #5HRDC as a component of an ATIImprovement Plan investigatemethods of providing informalaccess to information to thepublic and provide a copy of theresulting report to the Office ofthe Information Commissioner.

2.6 OPI Records RetrievalATIPflow provides information on thetime allocated versus the time taken forOPIs to retrieve records responsive to anaccess request. Chart 2 providesinformation on OPI records retrievaland sign-off. The information containedin the chart is for completed accessrequests. In the current HRDC accessrequest-processing model, eightworking days are allocated to OPIrecords retrieval and four days to sign-off.

HRDC ATIP Directorate should conductan analysis using the indicators inChart 2 to identify the reasons thatparticipants in the access process arenot meeting their obligationsconcerning time allocation. Measures toimprove performance can then beincluded in an ATI Improvement Plan.

Recommendation # 6HRDC develop in an ATIImprovement Plan measures toimprove the performance ofparticipants in the accessprocess who are not meetingtheir responsibilities forcomplying with HRDC's timeallocation for processing accessrequests.

3. STATUS OF 2000RECOMMENDATIONS

In January 2000, recommendationswere made to HRDC as part of theReport Card. A follow-up report on therecommendations was not issuedbecause HRDC received a grade of Ain the Report Card. As part of thisreport, the recommendations in theReport Card were reviewed todetermine their status. Action taken onthe previous recommendation followsthe text of the recommendation.

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Branch / Region Number of times subject Average working days Average working daysto an access to to provide documents to sign-off on documents

information request to the ATIP Directorate subject to release

Q3 FYTD Q3 FYTD Q3 FYTDCommunications 4 12 8.0 8.7 3.0 2.1

Corporate Affairs and Planning 9 19 13.2 10.0 2.5 6.5

Employment Programs 29 95 6.2 6.7 3.4 6.1

Financial and Administrative Services 24 85 9.4 8.3 5.3 6.3

Modernizing Services for Canadians 2 2 - - 3.5 3.0

Homelessness 1 7 3.0 6.7 4.0 3.0

Human Investment Programs 5 22 16.8 6.7 5.1 4.4

Human Resources 13 31 8.4 7.7 2.7 3.5

Income Security Programs 23 56 20.4 11.9 4.5 3.5

Insurance 8 38 3.9 7.6 4.5 3.5

Labour 3 11 5.5 4.9 1.0 3.0

Service Delivery 0 0 - - - 0.5

Strategic Policy 12 67 13.3 7.1 4.0 1.4

Systems 9 31 8.7 7.6 5.0 3.4

British Columbia / Yukon 19 34 8.5 8.6 0 0

Alberta / NWT / Nunavut 1 9 15.0 10.3 5.5 3.8

Saskatchewan 0 8 - 8.5 6.0 3.3

Manitoba 1 5 - 3.8 5.0 2.6

Ontario 22 62 9.3 8.3 4.3 3.8

Quebec 4 24 7.0 6.2 3.5 3.2

New Brunswick 3 17 8.3 6.1 3.4 3.1

Nova Scotia 1 9 12.0 7.1 2.0 6.1

Prince Edward Island 1 6 12.0 7.2 3.7 3.2

Newfoundland 6 12 7.9 6.8 3.4 2.9

HRDC Average 8.3 27.6 9.8 7.6 3.7 3.4

HRDC Objective 8 8 4 4

Chart 2: Time Allocated Versus Time Taken

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Previous Recommendation # 1The Coordinator is directlyresponsible for ensuringcompliance with the Access toInformation Act and shouldcontinue to take a strongleadership role in establishing aculture of compliance throughoutHRDC. Such a role requires theunwavering support andendorsement of the Minister andthe Deputy Minister. Thedepartment should continue itsexemplary "zero-tolerance"policy for deemed refusals.

Action taken on Previous Recommendation # 1: Although thedepartment had to cope with a crisis inthe extraordinary number of requestsreceived in 2000-2001, when the volumeof requests returned to a normal level,the zero-tolerance policy was not re-established.

Previous Recommendation # 2The Delegation Order should berevised to clearly show (asindicated by the department) thatthe ATI Coordinator and officershave delegated authority withoutreference to other departmentalofficials for approval fordecisions made under theAccess to Information Act.

Action taken on PreviousRecommendation # 2: The DelegationOrder remains unchanged.

Previous Recommendation # 3The ATI Coordinator shouldmaintain a close watch on theaccess request process toensure that the provision of thedisclosure package forinformation purposes does notbecome a "sign-off" in theprocess.

Action taken on PreviousRecommendation # 3: There appear to

be multiple sign-offs in effect at thetime of this report.

Previous Recommendation # 4The ATI Coordinator shouldcontinue to monitor the plannedversus actual time standards ofthe department for responding toaccess requests to maintain theexemplary results of the fiscalyear 1999-2000.

Action taken on PreviousRecommendation # 4: The idealcompliance with the Access toInformation Act was not maintainedinitially due to an extraordinarynumber of requests. Once the volumereturned to normal, the actual versusplanned time standards are beingmonitored and routinely reported toOPIs.

Previous Recommendation # 5Appraisals of operationalmanagers should place emphasison good performance inprocessing access requests.

Action taken on PreviousRecommendation # 5: Thisrecommendation was notimplemented.

Previous Recommendation # 6ATI training should be mandatoryfor all new managers as part oftheir orientation and for allmanagers on a refresher basis.

Action taken on PreviousRecommendation # 6: Training wasincreased, but not specifically directedto new managers. Whenever a newOPI Liaison Officer is appointed, theofficer will have a session covering theaccess process and their roles andresponsibilities. Each year, a "Call forTraining" is sent out to programs. Eachnew HRDC employee completes anorientation program that includes asection on the Access to Information Act.

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168

Questionnaire for Statistical Analysis Purposes in relation to official requestsmade under the Access to Information Act

Part A: Requests carried over from the prior fiscal period. Apr. 1/01 Apr.1/02 to to

Mar. 31/02 Nov. 30/02

1. Number of requests carried over: 100 65

2. Requests carried over from the prior fiscal — in a deemed-refusal situation on the first day of the new fiscal: 22 14

Part B: New Requests — Exclude requests included in Part A. Apr. 1/01 Apr. 1/02to to

Mar. 31/02 Nov. 30/02

3. Number of requests received during the fiscal period: 448 345

4.A How many were processed within the 30-day statutory time limit? 189 187

4.B How many were processed beyond the 30-day statutory time limit where no extension was claimed? 132 46

4.C How long after the statutory time limit did it take to respond where no extension wasclaimed?

1-30 days: 104 44

31-60 days: 24 2

61-90 days: 3 0

Over 91 days: 1 0

5. How many were extended pursuant to section 9? 86 61

6.A How many were processed within the extended time limit? 31 15

6.B How many exceeded the extended time limit? 31 9

6.C How long after the expiry of the extended deadline did it take to respond?

1-30 days: 26 7

31-60 days: 3 2

61-90 days: 1 0

Over 91 days: 1 0

7. As of November 30, 2002, how many requests are in a deemed-refusal situation? 13

4. QUESTIONNAIRE AND STATISTICAL REPORT

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"I appreciate your acknowledging the unprecedented number of requests thatHRDC's Access to Information and Privacy officials were faced with in recentyears. Your understanding and support in this matter is valued.

The department's performance is continuously improving. As indicated in thereport card, we have gone from over 50% of Access to Information requests withlate responses in 2000-2001 and approximately 40% in 2001-2002, to just under 20%in the period covered in the report.

We believe that your recommendations, in addition to our current improvementplan outlined in the report card, will have a beneficial impact on HRDC'scompliance with the response deadlines.

In closing, I would like to assure you that HRDC officials had alreadyimplemented many of your recommendations prior to the beginning of the currentfiscal year."

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EXCERPT FROM DEPUTY MINISTER'S RESPONSE TOSTATUS REPORT

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1. BACKGROUNDThe Department of National Defence(ND) has achieved a grade of B for theperiod from April 1 to November 30,2002. The grade constitutes substantialcompliance with the time requirementsof the Access to Information Act. Thedepartment has made majorimprovements to the access processover the past few years. Thesemeasures have led to a notableimprovement in the departmentaldeemed-refusal situation.

In early 1999, the Office of theInformation Commissioner issued aReport Card on the department’scompliance with the statutory timerequirements of the Access toInformation Act. The Report Card contained a number ofrecommendations on measures thatcould be taken to reduce the numberof requests in a deemed-refusalsituation. In the 1999 Report Card, ND received a red alert grade of F witha 69.6% request to deemed-refusalratio for access requests received fromApril 1 to November 30, 1998.

In December 1999, the Office of theInformation Commissioner reviewedthe status of the recommendationsmade in the Report Card and madefurther recommendations on measuresto reduce the number of requests in adeemed-refusal situation. At that time,the statistics showed that from April 1to November 30, 1999, the deemed-refusal ratio for access requestsimproved to 38.9%, although still agrade of F.

In January 2001, the Office of theInformation Commissioner providedanother Status Report to ND. At thattime, ND received a grade of D with anew request to deemed-refusal ratio of

17% for the period April 1 toNovember 30, 2000. The January 2001report noted that the trendlines forreducing the number of access requestsin a deemed-refusal situation were allin the right direction.

ND continued to improve itsperformance in meeting the timerequirements of the Access toInformation Act. ND achieved a gradeof C with a new request to deemed-refusal ratio of 11.8% for the periodfrom April 1 to November 30, 2001.The improvement was not maintainedfor the fiscal year. The grade droppedto a C for the fiscal year of 2001-2002with a ratio of 12.7%. We are informedthat this was mostly due to extensiveconsultations with the Privy CouncilOffice regarding cabinet confidenceand security and intelligence matters.

This report reviews the progress of NDto improve the deemed-refusalsituation since the January 2001 StatusReport. This report also reviews thestatus of recommendations made inthat report.

2. CURRENT STATUS AND FURTHERRECOMMENDATIONS

ND continues to build a solidfoundation for an effective accessprocess and to make noteworthyprogress in reducing the number ofaccess requests in a deemed-refusalsituation. For the period April 1 toNovember 30, 2002, the new request todeemed-refusal ratio was 9.1% thatconstitutes substantial compliance,grade B, with the time requirements ofthe Access to Information Act.

ND has committed resources to ATIand has provided strong managementsupport to reduce what was a

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Department of National DefenceStatus report on access requests in a deemed-refusal situation

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significant and burdensome number ofaccess requests in a deemed-refusalsituation. The Commissioner's Officeencourages ND to continue itsprogress and to achieve idealcompliance with time requirements ofthe Access to Information Act in 2003-2004.

Time extensions for consultationsunder paragraph 9(b) of the Access toInformation Act continue at times to bean impediment to reducing thenumber of access requests in adeemed-refusal situation. A lack ofcommunication among departmentscan mean that the length of timeselected for a time extension isdetermined without seeking the inputof the department that will review therecords. In addition, departments mayforward more than one access requestat the same time to anotherdepartment for consultation withoutprior communication with thatdepartment. The departmentforwarding the records will select thetime period for the extension for thereview of the records without referenceto the department that will carry outthe review.

The following recommendations aremade to support the continued effortsof ND to process access requestswithin the statutory time requirementsof the Access to Information Act.

2.1 Target for 2003-2004It is now time for the department tomake the final effort to come into idealcompliance with the time requirementsof the Access to Information Act byachieving a new request to deemed-refusal ratio of 5% or less. The ATIPDirector has concentrated on buildingan access process for sustainableachievement in reducing the deemed-refusal situation.

There is an excellent foundation forcontinued improvement. Recentinitiatives by ND include the

establishment of an ATIP AdvisoryCommittee to advise the ATIP Divisionon departmental ATIP policy, trainingand issues and on Infosource. TheATIP Director has instituted a weeklyreport that tracks the new requests todeemed-refusal ratio as illustrated insection 5 of this report. The Directorhas also placed emphasis onrelationship management within thedepartment.

Recommendation #1ND set a target of 5% or betterfor the new request to deemed-refusal ratio for 2003-2004.

2.2 Management of TimeExtensions

The time taken to respond to requestsin a deemed-refusal situation abovethe 30-day or extended time limit isillustrated in Tables 1 and 2 in section3 of this report. There is still room forimprovement to reduce the number ofrequests that are in a deemed-refusalsituation. The highest number ofrequests that ended in a deemed-refusal situation were requests thatwere responded to within 30 days after the required timeframe.

ND should review the circumstancesthat caused the delays and resulted indeemed refusals for the requests in adeemed-refusal situation from April 1to November 30, 2002. The analysisshould lead to a plan and priorities tofurther reduce the number of requestsin a deemed-refusal situation.

Recommendation #2ND determine the reasons fordelays in responding to accessrequests in a deemed-refusalsituation from April 1 toNovember 30, 2002, to identifyimprovements that can be madeto the access process to reducefuture delays.

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3. STATUS OF 2002RECOMMENDATIONS

In January 2002, recommendationswere made to ND on measures tofurther reduce the number of accessrequests in a deemed-refusal situation.The action taken on eachrecommendation is described belowfollowing the text of therecommendation.

Previous Recommendation # 1ND set a target of 10% or betterfor the new request to deemed-refusal ratio for 2002-2003.

Action taken on PreviousRecommendation # 1: Although anobjective was not set, ND achieved agrade of B for the period of April 1 toNovember 30, 2002. The new requestto deemed-refusal ratio was 9.1%. TheAccess to Information and Privacy(ATIP) Division worked more closelywith the Office of Primary Interest(OPI) community. The focus for theATIP Division with the OPIcommunity was to meet early afterreceipt of an access request to discusscomplexity and possible consultations.Other factors that assisted ND withachieving a grade of B were:

Proactive use of ATIPflow. EachFriday a listing is prepared of allaccess requests due the followingweek for follow-up;

Implementation of ATIPimage toassist with the preparation ofrecords for disclosure;

Annual training after the fallposting of military members toensure those responsible for ATIP inthe field are aware of theirresponsibilities as soon as possibleafter their arrival.

Previous Recommendation # 2ND determine the reasons fordelays in responding to accessrequests in a deemed-refusalsituation from April 1 toNovember 30, 2001, and, basedon this analysis, develop a planwith priorities to further reducethe delays in responding torequests.

Action taken on PreviousRecommendation # 2: The time takento respond to requests in a deemed-refusal situation above the 30-day orextended time limit has improved asillustrated in the following two tables.

The continuing problem with meetingthe extended time for responding to anaccess request may relate to a lack ofcommunication among departments ora lack of priority when a governmentoutside of Canada reviews the records.

172

Time taken after Apr. 1999- Apr. 2000- Apr. 2001- Apr. 2002-the statutory time Nov. 1999 Nov. 2000 Nov. 2001 Nov. 2002limit to respond where no extension was taken

1-30 days 126 39 25 1331-60 days 36 1 10 261-90 days 12 0 2 0Over 91 days 5 1 1 0

Table 1: Time to Respond to Non-Extended Requests in a Deemed-Refusal Situation

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173

Time taken after Apr. 1999- Apr. 2000- Apr. 2001- Apr. 2002-the statutory time Nov. 1999 Nov. 2000 Nov. 2001 Nov. 2002limit to respond where an extension was taken

1-30 days 30 36 31 2731-60 days 7 12 5 761-90 days 2 4 3 2Over 91 days 2 0 5 1

Table 2: Time to Respond to Extended Requests in a Deemed-Refusal Situation

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174

Questionnaire for Statistical Analysis Purposes in relation to official requestsmade under the Access to Information Act

Part A: Requests carried over from the prior fiscal period. Apr. 1/01 Apr.1/02 to to

Mar. 31/02 Nov. 30/02

1. Number of requests carried over: 182 222

2. Requests carried over from the prior fiscal — in a deemed-refusal situation on the first day of the new fiscal: 42 33

Part B: New Requests — Exclude requests included in Part A. Apr. 1/01 Apr. 1/02to to

Mar. 31/02 Nov. 30/02

3. Number of requests received during the fiscal period: 1358 791

4.A How many were processed within the 30-day statutory time limit? 611 327

4.B How many were processed beyond the 30-day statutory time limit where no extension was claimed? 59 15

4.C How long after the statutory time limit did it take to respond where no extension wasclaimed?

1-30 days: 42 13

31-60 days: 11 2

61-90 days: 3 0

Over 91 days: 3 0

5. How many were extended pursuant to section 9? 632 370

6.A How many were processed within the extended time limit? 389 163

6.B How many exceeded the extended time limit? 81 37

6.C How long after the expiry of the extended deadline did it take to respond?

1-30 days: 50 27

31-60 days: 7 7

61-90 days: 6 2

Over 91 days: 18 1

7. As of November 30, 2002, how many requests are in a deemed-refusal situation? 20

4. QUESTIONNAIRE AND STATISTICAL REPORT

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“I am pleased that we are receiving the grade of B, which indicates continualimprovement over the past several years.

As you have noted, ND takes its responsibilities under the ATIA very seriously,and is committed to an ongoing examination of our processes to ensure the mosteffective and efficient response times to applicants. To that end, the Directorate ofAccess to Information and Privacy (DAIP) will be undertaking a statistical andcase file review to determine the reasons for delays in responding to accessrequests over the past fiscal year. In addition, the consultation process has beenamended so that communication around timeframes takes place between DAIPand the institution being consulted prior to records being sent.”

175

Date 31-Aug-02 6-Sep-02 13-Sep-02 20-Sep-02 27-Sep-02 4-Oct-02Question # Value Value Value Value Value Value

3 436 454 466 487 510 538

4 b) 6 6 6 6 7 7

6 (b) 22 23 27 28 31 31

8 (a) 7 10 10 11 9 9

Score 8.03 % 8.59 % 9.23 % 9.24% 9.22 % 8.74 %Grade B B B B B B

5. WEEKLY REPORTThe following chart shows a section of the form used by ND to track the weeklygrade of the new request to deemed-refusal ratio.

Grade Legend

% of Deemed Comment Graderefusals

0-5% Ideal Compliance A

5-10% Substantial Compliance B

10-15% Borderline Compliance C

15-20% Below std Compliance D

over 20% Red Alert F

EXCERPT FROM DEPUTY MINISTER'S RESPONSE TOSTATUS REPORT

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1. BACKGROUNDThe Privy Council Office (PCO) wasone of the first departments to achievea grade of A in its efforts to complywith the time requirements of theAccess to Information Act. The purposeof this follow-up report is to determineif PCO was able to maintain thisachievement.

In the 1999 Report Card, PCO receiveda red alert grade of F with a 38.9% newrequest to deemed-refusal ratio forrequests received from April 1 toNovember 30, 1998. For the complete1998-1999 fiscal year, the ratio was47.1%. For requests received fromApril 1 to November 30, 1999, the ratioimproved remarkably to 3.6% and agrade of A.

The achievement was not sustained forthe reporting period of this StatusReport. During the fiscal year 2001-2002, the new request to deemed-refusal ratio increased to 28.4% thatconstituted a grade of F. For the periodfrom April 1 to November 30, 2002, theratio improved to 17.5%, a grade of Dconstituting below standardperformance with the timerequirements of the Access toInformation Act.

This report reviews the progress ofPCO to comply with the timerequirements of the Access toInformation Act since April 2001,including the status of therecommendations made in the StatusReport issued in January 2000.

2. CURRENT STATUS AND FURTHERRECOMMENDATIONS

PCO received a grade of D for the newrequest to deemed-refusal ratio for theperiod from April 1 to November 30,2002, that constitutes below standardcompliance with the time requirementsof the Access to Information Act.

In the 2000 Status Report, thefollowing comments were made:

“The success of the work at PCOto reduce the number of deemed-refusal requests appears to rely ona determination to meet thetimeline requirements of the Act.Although the approval processhas been modified in part, thedelegation and approval processremain essentially the same.

The ATI Coordinator did not takea project management approach tothe implementation of measures toreduce the number of deemedrefusals. Instead, a number ofindependent initiatives wereundertaken to come intocompliance with the timerequirements of the Access toInformation Act. These measureshave resulted in success ineliminating the delays. It will be ofinterest to see if the situation canbe maintained over the longerterm maintaining the currentdelegation and approval process.”

The Coordinator noted for this reportthat the timelines for processing accessrequests at PCO are known throughoutthe organization. The Access toInformation and Privacy Office hasproduced a comprehensive usermanual Access to Information in thePrivy Council Office.

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Privy Council OfficeReport on the status of report cardrecommendations

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The access process as illustrated inTable 1 remains a multi-step processwith possible opportunities forstreamlining the process.

The Coordinator’s view is that seniormanagement approval of releasepackages does not constitute a delay inthe process. Her view is that the timeallocated to OPI’s in the access processis being exceeded and constitutes amajor cause for access requests in adeemed-refusal situation. In addition,there are staffing vacancies and anincrease in consultations that havecontributed to the deemed-refusalsituation. Statistical information onactual versus allocated time is notavailable from ATIPflow for thevarious components of the accessprocess.

Table 1 illustrates the stages in PCO’saccess process and time allocated inworking days to each stage of theprocess.

This report makes the followingrecommendations to assist PCO in itsefforts to regain ideal compliance withthe time requirements of the Access toInformation Act.

2.1 Compliance ObjectivePCO is encouraged to provideleadership to other departments byregaining ideal compliance with thetime requirements of the Access toInformation Act. PCO is encouraged toset an objective of 5% or better for thenew request to deemed-refusal ratiofor 2003-2004.

Recommendation # 1PCO is encouraged to set anobjective of 5% or better for thenew request to deemed-refusalratio for 2003-2004.

2.2 ATI Improvement PlanAn overall ATI Improvement Plan isan essential component of a strategy tobe in compliance with the timerequirements of the Access toInformation Act. A plan should identifythe specific sources of the delays andinclude targets, tasks, deliverables,milestones and responsibilities toachieve ideal compliance.Uncoordinated efforts to reduce thenumber of requests in a deemed-refusal situation are likely not aseffective as an integrated group ofmeasures established as a result of ananalysis of the situation.

Recommendation #2PCO develop an ATIImprovement Plan based on ananalysis of deemed-refusalaccess requests to bring thedepartment into ideal compliancewith the time requirements of theAccess to Information Act byApril 1, 2004.

2.3 OPI and the Access ProcessPCO has an access process that hasthree stages of OPI involvement asillustrated in Table 1. The first stage isretrieval of the records by the OPI.Once the records are reviewed by theOPI and then reviewed in the ATIPOffice, the records are returned to theOPI for review. The reviewed records 177

Table 1: Access Process Timeline

ATIP Assessment

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

OPIRetrieval

ATIPReview

OPI Review

ATIPPrep. OPI Assoc

Sec.

Approval Response To

Applicant

Working Days

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are returned to the ATIP Office andprepared for release. The releasepackage is then sent back to the OPIfor approval before it is sent to theAssociate Secretary for approval. In theview of the Commissioner’s Office,reference to the OPI on three distinctoccasions constitutes a burdensomefeature of the PCO access process.

Recommendation # 3PCO investigate how the accessprocess can be streamlined toprevent multiple referrals to OPIs.

2.4 Access ProcessManagement Information

PCO utilizes ATIPflow to control andreport on case files. Because of themany stages in the PCO access process,ATIPflow is not able to producemanagement information on theperformance of those functionsinvolved in the access process.Allocated versus actual time takencannot be provided by the system foreach of the present seven processingsteps.

The Coordinator states that a CaseAction Report for each OPI is sent tosenior management on a weekly basisindicating where OPI action is stillrequired—1)anticipated but not lateand 2) late. What is needed is aproactive approach that focussesspecifically on potential delays anddeals with the situation before itresults in a deemed-refusal situation.

Recommendation # 4 (a)PCO undertake to have ATIPflowproduce performancemanagement statisticalinformation on the accessprocess.

Recommendation # 4 (b) The ATIP Office distribute aperformance report on allocatedversus actual time taken in theaccess process to OPIs and tosenior management.

3. STATUS OF 2000RECOMMENDATIONS

In January 2000, recommendationswere made to PCO on measures tosustain ideal compliance with the timerequirements of the Access toInformation Act. The action taken oneach recommendation is describedbelow following the text of therecommendation.

Previous Recommendation # 1PCO should continue itsexemplary performance inmeeting the time requirements ofthe Access to Information Act.

Action taken on PreviousRecommendation # 1: PCO did notmaintain ideal performance with thetime requirements of the Access toInformation Act.

Previous Recommendation # 2PCO consider further eliminationwhere possible of the two-stageOPI search and records review.

Action taken on PreviousRecommendation # 2: PCO maintainsa three-stage access process with OPIs.Stage one of the process requires theOPI to retrieve records in response toan access request. Once the records arereviewed by the ATIP Office, arecommendation forrelease/withholding information isprovided to the OPI for review.

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Previous Recommendation # 3PCO should monitor the plannedversus actual time for the variousstages of the process to respondto access requests to maintainthe exemplary results currently inplace.

Action taken on PreviousRecommendation # 3: A weekly reportlisting all outstanding access requestsand their status (including allocatedand actual time requirements forvarious steps in the access process) iscirculated widely within PCO.

Previous Recommendation # 4The Prime Minister should givewritten direction that responsetimes should not be missedsolely to complete the seniorapproval process.

Action taken on PreviousRecommendation # 4: TheCoordinator states that the seniormanagement approval process is not acause of delay.

Previous Recommendation # 5Performance contracts withoperational managers shouldrequire compliance with internaland legislated response times.

Action taken on PreviousRecommendation # 5: TheCoordinator states that ATIPperformance in PCO is consideredamong the Assistant Secretaries’ongoing managerial accountabilities(although there is no documentationthat describes their accountability inthis matter).

Previous Recommendation # 6A less complex and diffusedDelegation Order should beadopted wherein the Coordinator,rather than an operationalofficial, is given authority to fullyprocess, apply exemptions andanswer access requests.

Action taken on PreviousRecommendation # 6: The DelegationOrder has not been revised.

Previous Recommendation # 7ATI training should be mandatoryfor all new managers and forexisting managers on a refresherbasis.

Action taken on PreviousRecommendation # 7: There is a one-day information management andinformation technology training for allnew staff, part of which includesaccess to information.

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180

Questionnaire for Statistical Analysis Purposes in relation to official requestsmade under the Access to Information Act

Part A: Requests carried over from the prior fiscal period. Apr. 1/01 Apr.1/02 to to

Mar. 31/02 Nov. 30/02

1. Number of requests carried over: 72 66

2. Requests carried over from the prior fiscal — in a deemed-refusal situation on the first day of the new fiscal: 11 30

Part B: New Requests — Exclude requests included in Part A. Apr. 1/01 Apr. 1/02to to

Mar. 31/02 Nov. 30/02

3. Number of requests received during the fiscal period: 299 240

4.A How many were processed within the 30-day statutory time limit? 146 114

4.B How many were processed beyond the 30-day statutory time limit where no extension was claimed? 23 5

4.C How long after the statutory time limit did it take to respond where no extension wasclaimed?

1-30 days: 12 4

31-60 days: 4 1

61-90 days: 4 0

Over 91 days: 3 0

5. How many were extended pursuant to section 9? 117 99

6.A How many were processed within the extended time limit? 36 28

6.B How many exceeded the extended time limit? 32 13

6.C How long after the expiry of the extended deadline did it take to respond?

1-30 days: 10 10

31-60 days: 6 3

61-90 days: 6 0

Over 91 days: 10 0

7. As of November 30, 2002, how many requests are in a deemed-refusal situation? 24

4. QUESTIONNAIRE AND STATISTICAL REPORT

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181

EXCERPT FROM DEPUTY MINISTER'S RESPONSE TOSTATUS REPORT“I am well aware of the grade PCO received and that it is a set back to thatreceived in 1999/2000. The year 2002/2003 reviewed by your office has in factbeen our busiest ever, with 384 requests and 514 consultations received, ascontrasted with 331 requests and 199 consultations in the initial report card period.

We are fully committed to improving our timeliness in replying to Access toInformation requests and have taken action on many of your recommendations.Indeed we have already installed improved ATIP Flow software that will allow usto do the performance reporting and analysis so key to accountability of the PCOand its managers.

We find also your recommendation to develop an ATI Implementation plan useful.Our Coordinator and her staff are already profiting from internal discussions andwill prepare a draft plan for senior management's review.

Further, we are committed to implementing your recommendations and do believeit an opportune time to put into action a culture of change.

With regard to our setting an objective of 5% or better, we will do our best to meetall requirements of the Access to Information Act, from timeliness to properapplication of exemptions.”

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1. BACKGROUNDIn this Status Report, TransportCanada (TC) received a grade of D thatdenotes below standard compliancewith the time requirements of theAccess to Information Act. The newrequest to deemed-refusal ratio for theperiod of April 1 to November 30,2002, was 19%. This grade reflects a setback to the department’s previousprogress in improving its compliancewith the time requirements in theaccess process.

In early 2000, the Office of theInformation Commissioner issued aReport Card on Transport Canada’scompliance with the statutory timerequirements of the Access toInformation Act. In the Report Card, thedepartment received a red alert gradeof F for its compliance with thestatutory time requirements of the Act.The grade represented a 30.6% newrequest to deemed-refusal ratio foraccess requests received from April 1to November 30, 1999.

In January 2001, a Status Report wasprovided to the department by theCommissioner’s Office on progresssince the Report Card. The reportreviewed the department’s progressduring 2000 in meeting the timerequirements of the Act. Between April1 and November 30, 2000, the newrequest to deemed-refusal ratioimproved to 23.7%, but still grade F.

In January 2002, a further StatusReport reviewed the progress of thedepartment to come into substantial orideal compliance with the timerequirements of the Access toInformation Act since the January 2001Status Report. To the department’scredit at the time, TC achieved a grade

of C for the period April 1 toNovember 30, 2001. Subsequently, thegrade dropped to a D for the fiscalyear 2001-2002.

This report reviews the progress of thedepartment to comply with the timerequirements of the Access toInformation Act since the January 2002Status Report including the status ofthe recommendations made in thatReport.

2. CURRENT STATUS AND FURTHERRECOMMENDATIONS

The TC Report Card was issued inJanuary 2000 and, with this StatusReport, there are now three reviews ofthe progress TC has made since theReport Card. The Report Cardidentified three major issues that, inthe view of the InformationCommissioner’s Office, contributed tothe inability of the department tocomply with the time requirements ofthe Access to Information Act. The issueswere and continue to be:

An inability to delegate decisionsunder the Act to the individuals inthe department with the skill andknowledge to make decisions underthe Act;

An approval process that iscumbersome and designed toencompass multiple approvals;

The inclusion of thecommunications function as asequential part of the access process.

Recommendations have been made tothe department to assist in resolvingthese issues. While the department hasnot made any attempt to accept andimplement the recommendations of

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the Commissioner’s Office, neither hasthe department taken the initiative tointroduce other process measures tocome into at least substantialcompliance with the Act’s timerequirement.

The achievement of at least substantialcompliance with the time requirementsof the Access to Information Act requiresa commitment by senior managementthat is reflected in the delegation ofdecisions and an access process thatinvolves value added steps. Multiplereviews do not reflect a decision-making environment whereindividuals with the necessaryknowledge and skill make decisions. Itis worth noting the following commentfrom the 2000 Report Card:

“Although various words such as"review" and "concur" are used todescribe steps in the approvalprocess, the effect of multiple"check points" prior to the releaseof records is to create aninstitutional culture of "play itsafe". The addition of many stepsto "sign-off" contributes to delaysin the process.”

On a positive note, the ATIPCoordinator has provided extensivetraining and ATIPimage is beingimplemented. The retrieval of recordson time in response to an accessrequest has increased from an overallaverage of 87% for 2001-2002 to 91%from April 1 to November 30, 2002.

The recommendations made in thisreport are in part a repeat of previousrecommendations. It is the view of theCommissioner’s Office that it is finallytime to take measures that will allowthe department to comply withlegislated requirements. TheCommissioner’s Office encourages TCto take measures to rectify what are bynow obvious problems inherent in theaccess process model used by TC.

2.1 Delegation of AuthorityThe ATIP Coordinator has not beendelegated any decision-makingauthority under the Access toInformation Act with the exception ofcertain administrative decisions anddecisions under sections 7 and 19.Experience in other departmentsshows that delegation of decision-making to the individual with theknowledge to make decisions underthe Act reduces the time taken torespond to requests. Otherdepartments have delegated routineadministrative decisions to officersreporting to the Coordinator. TheDepartment of National Defence andCanada Customs and Revenue Agencyare examples of this approach todelegation.

Recommendation #1The department provide furtherdelegation to the ATIPCoordinator and officers fordecision-making under theAccess to Information Act.

2.2 Approval ProcessThe department’s process forapproving a response to an accessrequest continues to be cumbersomeand in need of streamlining. As notedin the Report Card:

“If the request was one that theDeputy Minister checked on theweekly summary of requests, thenthe Briefing Note, a Sign-off Sheetand the requested records are sentto the Deputy Minister’s Office viathe ATI Office for a decision.

When the ADM/RDG concurswith the recommendation of theATI Coordinator, then the BriefingNote, Sign-off Sheet and therequested records are sent via theATI Office to the Director Generalof Executive Services for adecision.

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If the ADM/RDG does not concurwith the recommendation of theATI Coordinator, then the BriefingNote, Sign-off Sheet and therequested records are sent via theATI Office to the DeputyMinister’s Office for a decision.

Although various words such as"review" and "concur" are used todescribe steps in the approvalprocess, the affect of multiple"check points" prior to the releaseof records is to create aninstitutional culture of "play itsafe". The addition of many stepsto "sign-off" contributes to delaysin the process.”

The above process has been modifiedin the following manner:

“If the request was one that theMinister's Office checked on theweekly summary of requests asbeing sensitive, then the BriefingNote, a Sign-off Sheet and therequested records are sent by theATIP unit to the RDG (if theregion was involved in theretrieval of records) forconcurrence to the ATIPCoordinator's recommendations,then to the responsible ADM, thento the Deputy Minister's Office forfinal review.

When the request is not on thesensitive list, and RDG concurswith the recommendation of theATI Coordinator (if the region wasinvolved in the retrieval ofrecords), then the Briefing Note,Sign-off Sheet and the requestedrecords are sent via the ATI Officeto the responsible ADM forapproval of exemptions.”

Transport Canada has a processingmodel that allots days available to eachpart of the department involved inprocessing an access request. Of the 20working days available in the model, 4 days are allocated to approval of

NHQ records and 2 days are allocatedto NHQ communications review ofsensitive files.

In 2000-2001, 138 requests or 29% ofthe 473 ATI requests received were onthe sensitive list and, in 2001-2002, 39%of the ATI requests received were onthe sensitive list. This year betweenApril 1 and November 30, 2002, 56% ofrequests were on the sensitive list.

For records retrieved from regions, 6 days are allocated to approval thatincludes regional communicationsreview. The total of 6 days for NHQfiles and 6 days for regional filesrepresents 30% of the time available toprocess an access request. Thisallocation of time for review,concurrence and/or approval isexcessive in the view of theCommissioner’s Office.

Table 1 illustrates if a request toretrieve records was completed ontime by the Region/Branch that therequest was sent to and if the internalconsultation (concurrence) wasachieved on time. Table 1 also providesinformation on how otherdepartmental participants in the accessprocess fared in meeting their allocatedtime requirements.

Recommendation #2The department process mapand review the access requestprocess to identify stages in theprocess that can be handled inparallel rather than sequentiallyand/or that can be eliminatedbecause value is not added tothe decision-making requiredunder the Access to InformationAct.

2.3. Communications FunctionBriefing notes and other material fromthe communications function may berequired when information is to bereleased or withheld in response to anaccess process designated as sensitive.184

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In Transport Canada, thecommunications function is part of thesequential steps in processing accessrequests. The time allotted toCommunications was increased fromone day to two days since the lastStatus Report. The result is thatapproximately 10% of the accessrequest process time is allocated to thecommunications function. Even withthe increased time allotment, thecommunications function only met theallocation for 78% of the requests.

Other departments have successfullyhandled the communications functionparallel to the access process. Thisapproach was discussed in theTransport Canada Report Card. TheOffice of the InformationCommissioner continues to find itproblematic that the communicationsfunction is a sequential part of theprocess.

Recommendation #3The communicationsrequirements associated with theaccess request process becompleted in parallel with theoverall process.

2.4 ATI Improvement PlanAn overall ATI Improvement Plan isan essential component of a strategy tobe in substantial compliance with thetime requirements of the Access toInformation Act. A plan should identifythe specific sources of the delays andinclude targets, tasks, deliverables,milestones and responsibilities toachieve substantial and then idealcompliance. Uncoordinated efforts toreduce the number of requests in adeemed-refusal situation are likely notas effective as an integrated group of

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Retrieval Requests Internal Consultation

REGION/BRANCH TOTAL ON- % ON- TOTAL ON- % ON-TIME TIME TIME TIME

Atlantic 47 43 91% 19 13 68%

Quebec 39 36 92% 10 8 80%

Ontario 91 79 87% 26 23 88%

Prairie & Northern 53 53 100% 17 17 100%

Pacific 58 46 79% 23 19 83%

Communications 6 6 100% 119 93 78%

Corporate Services 138 129 93% 70 68 97%

Policy 84 62 74% 26 8 31%

Programs & Divestiture 50 49 98% 14 11 79%

Safety & Security 189 181 96% 94 76 81%

ATIP Directorate’s Review 377 340 90%

Deputy Minister’s Office Review 158 12 13%

TABLE 1: PERFORMANCE REPORT ATI REQUESTSFISCAL YEAR 2002-2003 - As of November 30, 2002

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measures established as a result of ananalysis of the situation.

Fisheries and Oceans Canada (F&O)received a Report Card in January2001, one year after TC. Both F&O andTC received an F grade in their ReportCard. Many of the causes of accessrequests in a deemed-refusal situationat F&O were similar to TC. F&Oreceived a grade of A in this year’sStatus Report. TC may want to reviewthe F&O ATIP Strategy to identifypotential ways for improvement.

Recommendation #4TC develop an ATI ImprovementPlan based on an analysis ofdeemed-refusal access requeststo bring the department intosubstantial compliance with thetime requirements of the Accessto Information Act by April 1,2004.

3. STATUS OF 2002RECOMMENDATIONS

In January 2002, recommendationswere made to Transport Canada onmeasures to reduce the number ofaccess requests in a deemed-refusalsituation. The action taken on eachrecommendation is described belowfollowing the text of therecommendation.

Previous Recommendation # 1The department consider furtherdelegation to the ATIPCoordinator and officers fordecision-making under theAccess to Information Act.

Action taken on PreviousRecommendation # 1: The ATIPCoordinator has not been delegatedany decision-making authority underthe Access to Information Act with theexception of certain administrativedecisions and decisions under sections 7 and 19. Experience in otherdepartments shows that delegation of

decision-making to the individual withthe knowledge to make decisionsunder the Act reduces the time takento respond to requests. Otherdepartments have delegated routineadministrative decisions to officersreporting to the Coordinator. The ATIPCoordinator has not been providedwith any further delegation under theAccess to Information Act.

Previous Recommendation # 2The department process mapand review the access requestprocess to identify stages in theprocess that can be handled inparallel rather than sequentiallyand/or that can be eliminatedbecause value is not added tothe decision-making requiredunder the Access to InformationAct.

Action taken on PreviousRecommendation # 2: A study has notbeen conducted to process map andreview the access process to eliminateduplication of effort or determine stepsin the process that can be handled inparallel rather than sequentially. It isworth commenting on the TC accessprocess again. It is a process that iscumbersome in its approval stages.The TC model is a process never usedin departments that have achievedsubstantial compliance with the timerequirements of the Access toInformation Act. The process includesthe following steps:

If the request was one that theMinister's Office checked on theweekly summary of requests asbeing sensitive, then the BriefingNote, a Sign-off Sheet and therequested records are sent by theATIP unit to the RDG (if the regionwas involved in the retrieval ofrecords) for concurrence to the ATIPCoordinator's recommendationsthen to the responsible ADM, thento the Deputy Minister's Office forfinal review.186

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When the request is not on thesensitive list, and RDG concurs withthe recommendation of the ATICoordinator (if the region wasinvolved in the retrieval of records),then the Briefing Note, Sign-offSheet and the requested records aresent via the ATI Office to theresponsible ADM for approval ofexemptions.

Previous Recommendation # 3The communicationsrequirements associated with theaccess request process becompleted in parallel with theprocess.

Action taken on PreviousRecommendation # 3: Thecommunications function continues tobe part of the access process as asequential step. Other departmentshave successfully handled thecommunications function as a parallelprocess to the access process. Thisapproach was discussed in theTransport Canada Report Card issuedin 2000. The Office of the InformationCommissioner continues to find itproblematic that the communicationsfunction is a sequential part of theprocess.

Previous Recommendation # 4TC should develop an ATIImprovement Plan based on ananalysis of deemed-refusalaccess requests to bring thedepartment into substantialcompliance with the timerequirements of the Access toInformation Act by April 1, 2003.The plan should include theidentification of the sources ofdelays and include tasks, targets,deliverables and responsibilities.

Action taken on PreviousRecommendation # 4: The ATIPCoordinator reports that TC is in theprocess of contracting a firm to reviewthe delegation of authority, identifyand make recommendations onresource issues and ATIP processes.As part of this review, parallelprocesses for the sign-off by ADMsand the communications function willbe considered.

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188

Questionnaire for Statistical Analysis Purposes in relation to official requestsmade under the Access to Information Act

Part A: Requests carried over from the prior fiscal period. Apr. 1/01 Apr.1/02 to to

Mar. 31/02 Nov. 30/02

1. Number of requests carried over: 114 92

2. Requests carried over from the prior fiscal — in a deemed-refusal situation on the first day of the new fiscal: 29 13

Part B: New Requests — Exclude requests included in Part A. Apr. 1/01 Apr. 1/02to to

Mar. 31/02 Nov. 30/02

3. Number of requests received during the fiscal period: 362 410

4.A How many were processed within the 30-day statutory time limit? 165 165

4.B How many were processed beyond the 30-day statutory time limit where no extension was claimed? 16 27

4.C How long after the statutory time limit did it take to respond where no extension wasclaimed?

1-30 days: 13 22

31-60 days: 1 4

61-90 days: 0 1

Over 91 days: 2 0

5. How many were extended pursuant to section 9? 147 179

6.A How many were processed within the extended time limit? 65 52

6.B How many exceeded the extended time limit? 27 17

6.C How long after the expiry of the extended deadline did it take to respond?

1-30 days: 16 9

31-60 days: 5 5

61-90 days: 3 2

Over 91 days: 3 1

7. As of November 30, 2002, how many requests are in a deemed-refusal situation? 34

4. QUESTIONNAIRE AND STATISTICAL REPORT

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Part C: Contributing Factors

8. Use this area to describe any particular aspect about a request or type of requestthat may impact on the difficulty or time necessary to complete a request:

As of Nov 30/02, the number of requests received increased by 13% over the totalrequests received in f/y 2001-2002. By Nov 30/02, 410 requests have been received forthis f/y as compared to 239 requests received by Nov 30/01 in the last fiscal year, whichis a 72% increase in the ATI workload this year over last year.

As of Nov 30/02, the total number of pages reviewed was 59,638 or a monthly averageof 7,455 pages. In f/y 2001-2002, the total number of pages reviewed was 87,343 or amonthly average of 7,279 pages.

As of Nov 30/02, 230 requests of the 410 received were deemed sensitive = 56%

In f/y 2001-2002, 140 of the 362 requests received were deemed sensitive = 39%

In order to improve responses of OPIs, an intensive ATI training program wasimplemented. Significant training was provided to all regions and the Safety andSecurity Group this f/y; while training of this type was not provided last fiscal year. Ofthe approximate 400 participants, the overall course evaluation was as follows:Excellent – 25%, Very Good – 60%, Good - 15%. Comments received: This courseshould be mandatory for all employees. More exercises needed. Who would havethought ATIP was so interesting. A lot of info in a short time but very helpful. I learned alot and realize I had a few misconceptions.

As well, the ATIP division provided awareness sessions to numerousinspectors/minister’s observers and new employees both years (in and around NHQ).

In order to develop an ATIP improvement plan this fiscal year, TC is in the process ofcontracting a firm to review the delegation of authority, identify and makerecommendations on resource issues and ATIP processes. As part of this review,parallel processes for the sign off by ADMs and Communications will be considered.

In f/y 2002-2003, the ATIP unit is operating with 11 ongoing ftes and 2 additional ftesfor 1 year only (this includes salary costs for l fte absent during the entire fiscal year)and O&M for personal service contracts in the amount of $137K.

In f/y 2001-2002, the ATIP unit operated with 11 ongoing ftes and O&M for personalservice contracts in the amount of $199K.

On top of the increased workload and greater complexity in processing the securityrelated requests, resource requirements for the implementation of the Privacy ImpactAssessment policy has caused a significant draw on resources this f/y. Therefore,Service Line Plans for 2003-2004 include a request for 3 ongoing ATIP resources.

Specific ATIP targets are included in the management accords of the Director Generalresponsible for this activity as well as that of the ATIP Coordinator.

THANK YOU FOR COMPLETING THIS QUESTIONNAIRE

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EXCERPT FROM DEPUTY MINISTER'S RESPONSE TOSTATUS REPORT“As noted in your report, unfortunately TC has had a decrease in meeting the timerequirements of the Act. In part, this was due to the unpredictable 72% increase inworkload for the reporting period as compared to last year's results for the sametime period.

Prior to receiving the Status Report, TC's Access to Information and Privacy (ATIP)office underwent a process review. The most important finding was that, despitethe low performance rating, there were no major process problems uncovered.The consultants' report on the review indicates that TC has indeed initiated manyimprovements and has kept pace with other departments in taking advantage ofbest practices and other efficiencies in a positive spirit of pursuing continuousimprovement objectives. They also noted that the importance of preserving"quality" as a highly desirable product of work efforts, an element that permeatesTC's safety conscious environment, was very evident. It is unfortunate that thisfactor is not currently accounted for in your Report Card.

However, the consultants made recommendations for improvements, and some aresimilar to those provided by your office. These recommendations are currentlybeing taken into consideration to determine which changes need to beimplemented in order to improve the ATIP process.

I wish to assure that TC is committed to ensuring compliance with the legislationand we will make a serious effort to implement improvements in the coming year.”

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I. BackgroundFor several years, the Office of theInformation Commissioner has receivedcomplaints from requesters aboutrequests in a deemed-refusal situation.It is likely that, across government, thenumber of complaints on requests in adeemed-refusal situation representsonly a portion of the actual number ofrequests processed outside of the timerequirements of the Access to InformationAct. The unacceptable high level ofrequests in a deemed-refusal situationhas been illustrated in previous ReportCards issued since 1999 by theCommissioner’s Office.

As part of the proactive mandate of theCommissioner’s Office, each year adepartment (or departments) is selectedfor review. The review is conducted todetermine the extent to which thedepartment is meeting itsresponsibilities for complying with thestatutory timeframes for processingaccess requests established by theAccess to Information Act.

Correctional Service Canada (CSC) wasone of two departments selected thisyear for review. The department hasbeen one of a number of institutionssubject to review because of evidence ofchronic difficulty in meeting responsedeadlines. When the Commissioner’s

Office receives a high number ofdeemed-refusal complaints about adepartment, it may be symptomatic of agreater response-deadline problemwithin the department.

II. Grading StandardThis Report Card contains the results ofthe Information Commissioner’s reviewof CSC’s performance statistics fromApril 1 to November 30, 2002.

Since Canadians have a right to timelyaccess to information (i.e. 30 days orwithin extended times under specifiedconditions), a delayed response isequivalent to a denied response.Parliament articulated this "timeliness"requirement in subsection 10(3) of theAct, which states:

10.(3) Where the head of a governmentinstitution fails to give access to arecord requested under this Act or apart thereof within the time limits setout in this Act, the head of the institu-tion shall, for the purposes of this Act,be deemed to have refused to giveaccess.

As a result, the InformationCommissioner has adopted thefollowing standard as being the bestmeasure of a department’s compliancewith response deadlines: percentage of

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Correctional Service CanadaReport card on compliance with responsedeadlines under the Access to Information Act

0-5 percent Ideal compliance A

5-10 percent Substantial compliance B10-15 percent Borderline compliance C15-20 percent Below standard compliance DMore than 20 percent Red alert F

% of Deemed Refusals Comment Grade

On this grading scale, CSC rates F*. Its performance is unacceptable. [This fiscal year toNovember 30, 2002, the new request to deemed-refusal ratio is 312:158 = 50.6%.]

* This grade solely reflects on the department’s performance in meeting response deadlines to November 30, 2002. It is nota measure of the department’s performance in the application of exemptions. In general, CSC applies the exemptionprovisions of the Act professionally and with restraint.

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requests received which end as deemedrefusals. CSC is assessed in this ReportCard against the following gradingstandard:

Part A of the report consists of:

an analysis of the statistical data;

an explanation of the reasons for theperformance record;

a description of the steps beingtaken by management to improveperformance;

a set of recommendations to assistthe department.

Attached to the report are the variousquestionnaires and responses whichformed the basis for the grading,observations and recommendations inthis Report Card.

III. Statistical Information1. Requests

The charts above present a graphicrepresentation of CSC’s requestbacklog.

At the outset of the 2001-2002 fiscalyear, CSC’s ATIP Division had 78outstanding requests of which 32(41.0%) were already in a deemed-refusal situation. The 2002-2003 fiscalyear shows an increasing backlog atthe start of the year with 112outstanding requests of which 42(37.5%) are in a deemed-refusalsituation.

With 411 new requests received in the2001-2002 fiscal period and 312 newrequests received in 2002-2003 toNovember 30, a trend of an increasingbacklog of requests in a deemed-refusal situation at the start of the yearrepresents a burden to the ATIPDivision. Non-complianceconsiderations aside, this backlog mustbe eliminated.

The time taken to complete newrequests also shows problems inmeeting the time requirements of theAct.

In 2001-2002, processing times for167 requests completed beyond192

Received

Pending Prior411

78

Access Requests Apr. 1, 2001-Mar. 31, 2002

Received

Pending Prior312

112

Access Requests Apr. 1, 2002-Nov. 30, 2002

Pending End

Over Extension

Over 30 days

Pending Prior

167

42 32

42

Deemed Refusals Apr. 1, 2001-Mar. 31, 2002

Pending End

Over Extension

Over 30 days

Pending Prior

96

51 42

11

Deemed RefusalsApr. 1, 2002-Nov. 30, 2002

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the 30-day statutory limit withoutan extension were:

•67 (40.1%) took an additional 1-30 days to complete

•34 (20.4%) took between 31 to 60 additional days

•19 (11.4%) took between 61 to 90additional days

•47 (28.1%) were completed inover 90 additional days.

From April 1 to November 30,2002, additional processing timesfor 96 non-extended new requestswere:

•57 (59.4%) took an additional 1-30 days

•24 (25.0%) took between 31 to 60additional days

• 3 (3.1%) took between 31 to 90additional days

•12 (12.5%) were completed inover 90 additional days.

For extensions taken and not met,the following time delaysoccurred.

In 2001-2002, of the 60 timeextensions, 42 (70.0%) exceededthe extension of time as follows:

•11 (26.2%) took an additional 1-30 days

• 8 (19.0%) took between 31-60 additional days

• 3 (7.1%) took between 61-90additional days

•20 (47.7%) were completed inover 90 additional days.

For completed requests receivedfrom April 1, to November 30,2002, 11 (15.7%) exceeded theextension of time as follows:

•6 (54.5%) took an additional 1-30 days

•3 (27.3%) took between 31-60additional days

•1 ( 9.1%) took between 61-90additional days

•1 ( 9.1%) were completed inover 90 additional days.

As of November 30, 2002, 51unfinished new requests were in adeemed-refusal situation. Theduration of time beyond the timerequirements of the Act for theseoutstanding requests is unknown.

2. Complaints—Deemed Refusals

In 2001-2002, the Office of theInformation Commissioner received 16deemed-refusal complaints againstCSC of which 15 (93.7%) were upheld(resolved).

From April 1 to November 30, 2002,the Information Commissioner’s Officereceived 6 deemed-refusal complaints.Of the 4 completed complaints, all(100.0%) were upheld (resolved).

3. ATI Office—Staff

The processing of access requests is theresponsibility of the ATIP Divisionunder the direction of the ATIPDirector. The office is also responsiblefor processing requests under thePrivacy Act. The staff of the division iscomprised of 31 other employees--aDeputy Coordinator, 22 officer-level

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Resolved

Discontinued15

1

Deemed-Refusal Complaints Apr. 1, 2001- Mar. 31, 2002

Resolved

Pending End4

2

Deemed-Refusal Complaints Apr. 1 to Nov. 30, 2002

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and 8 support staff. Of the total ATIPstaff, 1 senior analyst, 7 analysts and 1 clerk are staff dedicated to ATI.Another analyst will be added in April 2003. The ATIP Director believesthat one more analyst is needed tomanage the ATI workload.

4. ATI Office—Budget

The ATIP Division salary budget for2002-2003 is $2,011,411. The 2001-2002budget was $1,063,963 with an actualexpenditure of $1,536,020. The 2000-2001 budget was $944,983 with anactual expenditure of $908,552. CSC no longer incorporates person-years inthe budget.

The ATIP Division operating budgetfor 2002-2003 is $49,000. For previousyears, the 2001-2002 budgetexpenditure was $157,814 and thebudget expenditure for 2000-2001 was$75,140.

In 2001-2002, $4,376.67 was spent onATIP Division training and $1,574.14was spent in 2000-2001. The figures ontraining do not include ATIP Divisionsalary expenditures.

5. Allotted Times for RequestProcessing

The 30-day statutory time limit in theAccess to Information Act allows 20working days for processing accessrequests where an extension is notclaimed. CSC’s current plannedturnaround times are listed below. TheCSC processing model conforms to theAct’s time requirements and allows 20working days to respond to a request(without an extension).

IV. Sources of DelayThere appear to be a number of factorsthat contribute to the delay problem atCSC. The result of the delays is thataccess requests are processed beyondthe statutory time requirements of theAccess to Information Act.

This Report Card was completed onthe deemed-refusal situation as itexisted in December 2002. CSC hasimplemented or plans to implement anumber of measures to come intocompliance with the time requirementsof the Access to Information Act. Acomparison of statistical informationon deemed refusals on theQuestionnaire for Statistical AnalysisPurposes (Section B II) indicates thatthese measures are starting to producepositive results.

1. Management InformationLacking

There are varied reasons why delaysoccur in responding to access requestswithin the timeframes established bythe Access to Information Act. All of theparticipants in the access process havea responsibility to perform theirfunction in the access process withinthe allocated time. When informationis not available to inform participantsabout their performance, it is difficultto take remedial action to makeimprovements. Without factualinformation on performance, it is alsodifficult to engage senior managementin measures to resolve the delayproblem. Ideally, each step in theaccess process that has been allocatedtime and each participant in that stepshould be the recipient of routine

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Receipt ATIP Division 1Retrieval OPIs 7Processing ATIP Division* 11Delegated ATIP Division Director Approval and Mail-Out ATIP Division 1

Area Turnaround Time in Days

* The ATIP Division processing consists of 5 days for information analyst review, 2 days for senior analyst review and 2 daysfor the deletion process. In addition, there are 2 more days allocated, if required, for consulting with ParliamentaryRelations and Communications--this affects approximately 50% of access requests.

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performance reporting. Seniormanagement should also be informedthrough periodic reporting of theprogress in reducing the number ofrequests in a deemed-refusal situation.

There are plans to redevelop ATIPflowto obtain case management and controlinformation related to performancemeasurement. At the present time,there are no reports or statistics thatcan be produced for this Report Cardto track performance or to analyzeaccess requests in a deemed-refusalsituation in order to identify potentialreasons.

2. Senior Management Awareness

Senior management must be awarewhen the number of requests in adeemed-refusal situation starts toincrease and accumulate in anunacceptable backlog of delayedresponses to requesters. Seniormanagement also needs to be informedof the remedial measures that can betaken to reduce the number of requestsin a deemed-refusal situation. Theremedial plan can only be organizedafter the department analyzes thecauses of the delays.

To maintain effective oversight of theaccess process, senior managementshould receive routine reports on thestatus of requests, including adherenceto the statutory timelines.

Currently, there is no routine reportingto senior management on the delayproblem along with the success ofmeasures to reduce the number ofaccess requests in a deemed-refusalsituation.

3. Approval Delegation

The CSC Delegation Order establishesthe authority and process for makingrecommendations and decisions onaccess requests. The Delegation Orderis currently being revised to provide tothe Deputy Director (a new position),ATIP Division, the same delegatedauthority as the Director. The currentand new Delegation Order providesenior analysts within the ATIPDivision with delegated authority tomake administrative decisions underthe Act. Examples of administrativedecisions include fee estimates andextensions of time under section 9 ofthe Act.

The Commissioner’s Office encouragesCSC to review the Delegation Orderfor further delegation within the ATIPDivision in conjunction with theprocess mapping of the access process.There may be efficiencies to be gainedthrough the re-engineering of activitiesin conjunction with increaseddelegation.

4. Communications Function

The CSC approval process allocates 13working days to activities in the ATIPDivision. The activities include:

The Director states that theconsultation with ParliamentaryRelations and Communications is donein parallel with the request processing.The Chart in the draft User’s Guide forOPIs indicates that two days of the 20 working days allocated to the accessprocess are set aside for theconsultation (when required).

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Receipt of the access request 1Information analyst review of the records 5Senior analyst review of the Information analyst recommendations 2Deletion process and preparation of the release package 2Consult on sensitive release with Parliamentary Relations and Communications (approximately 50% of access requests) 2Final review and signature by ATIP Director (including mail-out) 1

Activity Days Allocated

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Information is not available in aroutine manner from ATIPflow todetermine if this step in the accessprocess causes delays. Under thecurrent arrangements, the Director"keeps track of all requests that requirethe involvement of ParliamentaryRelations and Communications andfollows-up on a daily basis" to keeptrack of turnaround times.

The Commissioner’s Office recognizesthat there may be a need to havecommunications material prepared inparallel with the access process.However, in the view of theCommissioner’s Office, it is not a goodpractice to allocate 10% of the time inthe access process to the preparation ofcommunications and briefing material.The communications requirementshould be met as a parallel function to,rather than as a sequential step in, theaccess process.

5. ATIP Office

The access process includes a numberof steps in the ATIP Division thatconsist of reviews of previous work.The information analyst makesrecommendations and therecommendations are then reviewedby the senior analyst. The senioranalyst provides the records to a clerkwho prepares the records by severingexempt information and preparing arelease package. The records are thenprovided to the Director for finalapproval.

The processing of records subject to anaccess request appears to movethrough a number of steps that mayentail a duplication of effort or maynot result in value added. CSC isencouraged to process map the ATIPDivision access process (in conjunctionwith a review of the Delegation Order)to determine if the process can be re-engineered to reflect value-addedoperational steps with maximumdelegation to staff.

There also appears to be a need toclarify roles, responsibilities and dataentry procedures and definitions forATIPflow within the ATIP Division.

6. ATI Improvement Plan

To its credit, CSC has taken or plans totake measures to reduce the number ofaccess requests in a deemed-refusalsituation and a comparison of thestatistics for the fiscal year 2001-2002with the period from April 1 toNovember 30, 2002, indicate positiveresults.

CSC should approach the time delayproblem by establishing an overallplan to manage the tasks necessary tocome into substantial then idealcompliance with the Act’s deadlines.The plan should identify the sources ofthe delays and include targets, tasks,deliverables, milestones andresponsibilities to achieve idealcompliance. Uncoordinated efforts toreduce the number of requests in adeemed-refusal situation are likely notas effective as an integrated group ofmeasures established as a result of ananalysis of the situation.

7. Operational Areas (OPIs)

OPIs are required to search for andretrieve records to respond to accessrequests. The OPIs are required toprovide records to the ATIP Divisionwithin 7 working days. The Director,ATIP Division, believes that the majorreason for the delay problem at CSC isthe inability of OPIs to meet therequired timeframe.

At the present time, ATIPflow cannotprovide information on OPI allocatedversus actual time to retrieve records.CSC had data downloaded from alegacy system into ATIPflow in late2000 with poor results in terms of dataquality. The ATIP Division is currentlypreparing for the implementation anew version of ATIPflow in 2003.

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CSC ATIP Division should plan onusing ATIPflow data to identify OPIswho are not meeting theirresponsibility of providing records theATIP Division within the allocatedtimeframe. From this information, thereasons for the delays can bedetermined through discussions withOPIs. Remedies can then be instituted.

Other departments have found that itis useful to have included inperformance contracts for operationalmanagers their responsibilities forprocessing access requests. Theresponsibilities should be stated in away that can objectively be measuredfor performance. The Access toInformation Review Task Force in its report Access to Information: Making It Work recommended thatresponsibilities related to access toinformation and informationmanagement be included in the jobdescriptions of officers and managers.

8. Training

For OPIs to complete their part of theaccess process, ATI training anddocumented procedures includingtimelines are required. ATIP Divisionstaff also need to keep current ondevelopments in the interpretation ofthe Access to Information Act. Theexpenditure on training for ATIPDivision staff has been minimal.

OPIs expect strong support from theATIP Division in training tounderstand precisely what theirresponsibilities are under the Access toInformation Act, particularly withrespect to timelines and extensions. Inaddition, the OPIs need proceduraland instructional information on howto carry out tasks assigned to them aspart of the process for responding toaccess requests. The ATIP Division hasproduced a draft of a Users Manual forOPIs for the Access to Information Act.The department is encouraged tocomplete the manual and to introduceit as part of an ATI Training Plan.

Training is an essential component ofATI operations. A properly plannedand delivered ATI training programwill provide OPIs with the ability tofulfill their responsibilities in theaccess process. A planned approachwill maximize the trainingexpenditure.

The ATIP Division should develop aTraining Plan that includes priorities,the identification of staff benefitingfrom new or additional training, thenumber and location of sessions andATIP divisional responsibilities fordelivery of the training.

The ATIP Division is in the bestposition to identify training priorities.The Division understands the level ofknowledge of OPIs on the Access toInformation Act through interaction onaccess requests including reasons fordeemed-refusal situations. TheDivision is aware of complaints aboutproblems in meeting the requirementsof the Act and is aware ofdepartmental issues that may impacton the Act.

The ATIP Division should also developa Training Plan for staff in theDivision. The plan could be based onan assessment of the workrequirements of the Division in dealingwith access requests and complaintresults from the Office of theInformation Commissioner to identify skill gaps.

V. Management Response tothe Problem of Delay

The ATIP Director believes that CSChas demonstrated a strongcommitment to addressing thedepartment’s reasons for the access toinformation request delay situation.

The department is channelling morefinancial resources into staffing in theATIP Division.

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The ATIP Director has a goal for hisDivision’s performance which is that,within six months (July 2003), theDivision should be close to fullcompliance with their processingtimeframe for files in their control.There may be elements that mayprevent the Division from becomingfully compliant, but the goal is July 2003.

Significant achievements have beenrealized in the following areas as thedepartment seeks to reduce thebacklog of access requests and reducethe number of access requests in adeemed-refusal situation:

Weekly meetings between the ATILiaison Officer and Sector OPIs areheld to discuss new access requestsand status of active access requestsas well as signed-off requests.

ATIP presentations have beendelivered to educate staff of CSC onthe requirements of the Access toInformation Act.

A new Deputy Director position hasbeen staffed.

There is a weekly monitoring of ATIworkload by the ATIP Division.

The ATIP Division is revisiting theaccess process to identify potentialimprovements.

The ATIP Division has developedthe first draft of an ATI UserManual.

Management has asked all operationalareas to give a higher priority toprocessing access requests. The requestwas made at the Assistant DeputyMinister’s morning meetings that are aregular feature of the CSCmanagement process.

There are other changes indevelopment or planned that areexpected to result in improvedperformance and a reduction in the

number of access requests in adeemed-refusal situation. These are:

The ATIP Division will finalize theATI User Manual which shouldimprove consistency, ensureadherence to CSC ATI policies, andspeed the learning program for newstaff.

The ATIP Division plans to instituteformal training sessions on aregularly scheduled basis (for HQ,Field and ATIP staff depending onthe level of resource allocations).

The ATIP Division plans to preparewritten guidelines for use by all ATIpersonnel that are updated aspolicies or procedures are changed.

The ATIP Division plans to establisha continuing education and trainingprogram to educate ATIP Divisionpersonnel in the application ofexemptions and the criteria thatmust be met to justifyrecommendations.

There is one contributor to thedeemed-refusal situation that thedepartment has not been able toresolve. Under section 19 of the Accessto Information Act, if personalinformation is to be disclosed inaccordance with section 8(2)(m) of thePrivacy Act, the Privacy Commissioneris notified. The department waits for aresponse from the PrivacyCommissioner’s Office prior to therelease of the records. The waiting timemeans that the process exceeds the 30-day time allowance for processingthe access request. However, thedepartment cannot identify anyprovision in the Access to InformationAct that would allow for an extensionof the processing time. In 2001-2002,this process resulted in approximately30 access requests in a deemed-refusalsituation.

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VI. RecommendationsThere are a number of departmentsthat have found themselves in an Fgrade, red alert situation, with regardto the new access request to deemed-refusal ratio. Through deliberatecommitment, well-planned andexecuted measures and in timeframesas short as two years, otherdepartments have attained substantialand ideal compliance. With thesepossibilities in mind, this reviewrecommends the following:

1. The ATIP Director is directlyresponsible for ensuringcompliance with the Access toInformation Act and should take astrong leadership role inestablishing a culture ofcompliance throughout CSC. Sucha role requires the unwaveringsupport and endorsement of theMinister and the Deputy Minister.Senior management support forthe development and monitoringof an ATI Improvement Plan is onemethod of making a commitmentto comply with the timerequirements of the Act.

2. Routine reporting on plannedversus actual time taken to processaccess requests and the status ofmeasures taken to reduce requestsin a deemed-refusal situationshould be instituted. The reportswill provide senior management,OPIs and the ATIP Division withinformation needed to gaugeoverall departmental compliancewith the Act’s and department’stime requirements for processingaccess requests.

3. The ATIP Division should developan ATI Training Plan for 2003-2004for OPIs and ATIP Division staffand incorporate the introduction ofthe User Manual into the trainingprovided to OPIs.

4. The Minister should direct theATIP Director, in writing, toexercise the delegation to answerrequests within deadlines whetheror not the approval process hasbeen completed.

5. The approval process should beprocess mapped and reviewed toremove steps that do not add valueto the process, particularly theallocation of time in the process tothe Parliamentary Relations andCommunications review. At thesame time, the Delegation Ordershould be reviewed to determine iffurther delegation is appropriatewithin the ATIP Division.

6. The department should develop anATI Improvement Plan. The planshould identify the sources of thedelays in responding to accessrequests and include targets, tasks,deliverables, milestones andresponsibilities to achievesubstantial compliance in 2003-2004 and ideal compliance in 2004-2005. The Senior ManagementCommittee of the departmentshould monitor the plan.

7. The specific reasons for therequests in a deemed-refusalsituation from April 1 toNovember 30, 2002, should beidentified and remedial measuresdeveloped for subsequent yearsfor incorporation into the ATIImprovement Plan.

8. Documentation should bedeveloped to clarify definitions,roles and data entry procedures forATIPflow within the ATIPDivision.

9. A Fee Policy should be developedfor use by the department indetermining when to waive feesunder the Access to InformationAct.

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10. If an extended date will not bemet, the ATIP Division routinelycontacts the requester to indicateit will be late. As part of thecommunication with therequester, the ATIP Divisionshould provide an expectedresponse date for the request. Thisaction may alleviate some of therequester’s frustration andperhaps avert a complaint.

11. Responsibilities for access toinformation should be included inthe job description of officers andmanagers, and performancecontracts should measure to whatdegree the responsibilities aremet.

12. ATI training should be mandatoryfor all new managers as part oftheir orientation, and periodictraining updates should beprovided to all managers.

BASIS OF REPORT

I. Interview with CSC’s ATIPDirector

On January 8, 2003, CSC’s ATIPDirector and Deputy Director wereinterviewed for the purpose of thisReport Card.

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201

Questionnaire for Statistical Analysis Purposes in relation to official requestsmade under the Access to Information Act

Part A: Requests carried over from the prior fiscal period. Apr. 1/01 Apr.1/02 to to

Mar. 31/02 Nov. 30/02

1. Number of requests carried over: 78 112

2. Requests carried over from the prior fiscal — in a deemed-refusal situation on the first day of the new fiscal: 32 42

Part B: New Requests — Exclude requests included in Part A. Apr. 1/01 Apr. 1/02to to

Mar. 31/02 Nov. 30/02

3. Number of requests received during the fiscal period: 411 312

4.A How many were processed within the 30-day statutory time limit? 158 143

4.B How many were processed beyond the 30-day statutory time limit where no extension was claimed? 167 96

4.C How long after the statutory time limit did it take to respond where no extension wasclaimed?

1-30 days: 67 57

31-60 days: 34 24

61-90 days: 19 3

Over 91 days: 47 12

5. How many were extended pursuant to section 9? 60 70

6.A How many were processed within the extended time limit? 18 59

6.B How many exceeded the extended time limit? 42 11

6.C How long after the expiry of the extended deadline did it take to respond?

1-30 days: 11 6

31-60 days: 8 3

61-90 days: 3 1

Over 91 days: 20 1

7. As of November 30, 2002, how many requests are in a deemed-refusal situation? 51

II. CSC—PRE-INTERVIEW SELF-AUDIT QUESTIONNAIRE

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202

III. CSC—REVIEW QUESTIONNAIRE (DECEMBER 2002)

(available from the Office of the Information Commissioner)

EXCERPT FROM CSC COMMISSIONER'S RESPONSE TOSTATUS REPORT"As you have indicated, CSC generally applies the exemption provisions of the Actprofessionally and with restraint. With respect specifically to the non-compliancewith response timeframes, you have also noted that the changes we have madeover recent months are starting to produce positive results. This is notinsignificant. In addition to providing you with our action plans, I believe it isimportant to highlight some of the action we have taken to date, and the resultswhich have ensued.

One of the most important components of an effective Access function is asufficient complement of well-trained staff. For the first nine months of thereporting period, only five analysts were assigned to the Access function. Threehad no previous Access experience. The staff complement was increased to sevenanalysts in January 2002 and eight on April 1, 2003. In addition, a second senioranalyst and a Deputy Director were added to the Access staff complement.Training of the new and existing staff members is ongoing. I believe thesedevelopments will effectively contribute to a continuing reduction in the rate ofnon-compliance over the next months.

You have noted the importance of dealing with the backlog of outstanding Accessrequests. The backlog of older outstanding cases has almost been eliminated. Youwill note...that significant progress continues to be made towards meeting ourobjectives for your next review.

I think you will agree that the steps we have taken as noted above, in combinationwith our plans for the future, will serve us well in working towards the attainmentof a positive level of service for those citizens who request information from ourdepartment."

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I. BackgroundFor several years, the Office of theInformation Commissioner hasreceived complaints from requestersabout requests in a deemed-refusalsituation. It is likely that, acrossgovernment, the number of complaintson requests in a deemed-refusalsituation represents only a portion ofthe actual number of requestsprocessed outside of the timerequirements of the Access toInformation Act. The unacceptable highlevel of requests in a deemed-refusalsituation has been illustrated inprevious Report Cards issued since1999 by the Commissioner’s Office.

As part of the proactive mandate of theCommissioner’s Office, each year adepartment (or departments) isselected for review. The review isconducted to determine the extent towhich the department is meeting itsresponsibilities for complying with thestatutory timeframes for processingaccess requests established by theAccess to Information Act.

Public Works and GovernmentServices Canada (PWGSC) was one oftwo departments selected for reviewthis year. The department has been oneof a number of institutions subject toreview because of evidence of chronicdifficulty in meeting responsedeadlines. When the Commissioner’sOffice receives a high number ofdeemed-refusal complaints about adepartment, it may be symptomatic ofa greater response-deadline problemwithin the department.

II. Grading StandardThis Report Card contains the resultsof the Information Commissioner’sreview of PWGSC’s performancestatistics from April 1to November 30,2002.

Since Canadians have a right to timelyaccess to information (i.e. 30 days orwithin extended times under specifiedconditions), a delayed response isequivalent to a denied response.Parliament articulated this "timeliness"requirement in subsection 10(3) of theAct, which states:

10.(3) Where the head of agovernment institution fails to giveaccess to a record requested underthis Act or a part thereof within thetime limits set out in this Act, thehead of the institution shall, for thepurposes of this Act, be deemed tohave refused to give access.

As a result, the InformationCommissioner has adopted thefollowing standard as being the bestmeasure of a department’s compliancewith response deadlines: percentage ofrequests received which end asdeemed refusals. PWGSC is assessedin this Report Card against thefollowing grading standard:

Part A of the report consists of:

an analysis of the statistical data;

an explanation of the reasons for theperformance record;

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Public Works and Government ServicesCanadaReport card on compliance with responsedeadlines under the Access to Information Act

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a description of the steps beingtaken by management to improveperformance;

a set of recommendations to assistthe department.

Attached to the report are the variousquestionnaires and responses thatformed the basis for the grading,observations and recommendations inthis Report Card.

III. Statistical Information1. Requests

The charts above present a graphicrepresentation of PWGSC’s requestbacklog.

At the outset of the 2001-2002 fiscalyear, PWGSC’s Access to Information

and Privacy (ATIP) Directorate had 201outstanding requests, of which 75(37.3%) were already in a deemed-refusal situation. The 2002-2003 fiscalyear shows a continuing backlog at thestart of the year with 159 outstandingrequests, of which 45 (28.3%) were in adeemed-refusal situation.

204

0-5 percent Ideal compliance A

5-10 percent Substantial compliance B

10-15 percent Borderline compliance C

15-20 percent Below standard compliance D

More than 20 percent Red alert F

% of Deemed Refusals Comment Grade

On this grading scale, PWGSC rates F1 . Its performance is unacceptable. [This fiscal year toNovember 30, 2002, the new request to deemed-refusal ratio is 684:180=26.3%.]

1 This grade solely reflects on the department’s performance in meeting response deadlines to November 30, 2002. It is nota measure of the department’s performance in the application of exemptions. In general, PWGSC applies the exemptionprovisions of the Act professionally and with restraint.

Received

Pending Prior760

201

Access Requests Apr. 1, 2001-Mar. 31, 2002

Pending End

Over Extension

Over 30 days

Pending Prior

55

4575

67

Deemed RefusalsApr. 1, 2001-Mar. 31, 2002

Received

Pending Prior684

159

Access Requests Apr. 1 to Nov. 30, 2002

Pending End

Over Extension

Over 30 days

Pending Prior

42

58 67

80

Deemed RefusalsApr. 1 to Nov. 30, 2002

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With 760 new requests received in the2001-2002 fiscal period and 684 newrequests received to November 30th in2002-2003, a trend of a continuingbacklog of requests in a deemed-refusal situation at the start of the yearrepresents a burden to the ATIPDirectorate. Non-complianceconsiderations aside, this backlog mustbe eliminated.

The time taken to complete newrequests also shows problems inmeeting the time requirements of theAct.

In 2001-2002, processing times for55 requests completed beyond the30-day statutory limit without anextension were:

• 47 (85.5%) took an additional 1-30 days to complete

• 7 (12.7%) took between 31 to 60additional days

• 1 ( 1.8%) took between 61 to 90additional days.

From April 1 to November 30, 2002,additional processing times for 42non-extended new requests were:

• 20 (47.6%) took an additional 1-30 days

• 9 (21.4%) took between 31 to 60additional days

• 6 (14.3%) took between 31 to 90additional days

• 7 (16.7%) were completed inover 90 additional days.

For extensions taken and not met,the following time delays occurred:

In 2001-2002, of the 324 timeextensions, 67 (20.7%) exceeded theextension of time as follows:

• 20 (29.8%) took an additional 1-30 days

• 10 (13.4%) took between 31-60additional days

• 16 (25.4%) took between 61-90additional days

• 21 (31.4%) were completed inover 90 additional days.

For completed requests receivedthis fiscal year, 80 (23.4%) exceededthe extension of time as follows:

• 38 (47.4%) took an additional 1-30 days

• 29 (36.6%) took between 31-60additional days

• 10 (12.4%) took between 61-90additional days

• 3 ( 3.6%) were completed inover 90 additional days.

As of November 30, 2002, 58unfinished new requests were in adeemed-refusal situation. Theduration of time that the requests havebeen in a deemed-refusal situation wasnot part of the response requested bythe Commissioner’s Office.

2. Complaints—Deemed-Refusals

In 2001-2002, the Office of theInformation Commissioner received 17deemed-refusal complaints againstPWGSC, of which 14 (82.4%) wereupheld (resolved).

From April 1 to November 30, 2002,the Information Commissioner’s Officereceived 24 deemed-refusal

205

Not Substantiated

Resolved

Discontinued14

2 1

Deemed-Refusal ComplaintsApr. 1, 2001-Mar. 31, 2002

Resolved

Pending End13 11

Deemed-Refusal ComplaintsApr. 1 to Nov. 30, 2002

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complaints. Of the 13 completedcomplaints, 13 (100%) were upheld(resolved).

3. ATI Office—Staff

The processing of access requests is theresponsibility of the ATIP Directorateunder the direction of the ATIPDirector. The Directorate is alsoresponsible for processing requestsunder the Privacy Act. The staff of theATIP Directorate allocated to ATIactivities is comprised of 26 employees— 5 Team Leaders, 13 officer-level, 5 support staff, 1 student plus 2 employees who are on secondment. In addition, 3 consultants are alsoworking in the ATIP Directorate onATI. The ATI Director is of the viewthat the number of staff is notsufficient to meet the ATI processingneeds of the department (in particular,because 5 staff were recently movedfrom ATI request processing to privacyrequest processing).

4. ATI Office—Budget

The ATI salary budget for 2002-2003for the access to information programis $886,000 for 17 person years. OnNovember 29, 2002, an additional$311,800 was allocated for 9 staff on atemporary basis to deal with theworkload associated with accessrequests related to the sponsorshipprogram. The ATI salary budget for2001-2002 was $1,270,222 for autilization of 23.5 person years. The 2000-2001 budget was $921,700 for 20 person years.

The ATI operating budget for 2002-2003 is $187,000. On November 29,2002, an additional $251,200 was

allocated to ATI. The ATI operatingbudget for 2001-2002 was $285,793. For previous years, the 2000-2001budget was $373,874 and the budgetfor 1999-2000 was $138,884.

The portion of the budget allocated fortraining in 2002-2003 is $11,600. For2001-2002, the amount was $21,010, for2000-2001 $10,855 and for 1999-2000$8,612.

5. Allotted Times for RequestProcessing

The 30-day statutory time limit allows20 working days for processing anaccess request without an extensionunder section 9 of the Act. PWGSC’scurrent planned turnaround times arelisted below. The PWGSC processingtable allows 30 calendar days torespond to a request (without anextension).

IV. Sources of DelayThere appear to be a number ofreasons for the delay problem atPWGSC. The result of the delays isthat access requests are processedbeyond the statutory timerequirements of the Access toInformation Act.

1. Senior Management Support

There are varied reasons why delaysoccur in responding to access requestswithin the timeframes established bythe Access to Information Act. Seniormanagement must be aware when thenumbers of requests in a deemed-refusal situation start to increase andaccumulate to an unacceptable backlogof delayed responses to requesters.Senior management also needs to be

206

Receipt ATIP Division Day 1-2Retrieval OPIs Day 2-12Processing ATIP Directorate Day 13-30Review of Release Package2 Day 23-30

Area Turnaround Time

2 There is a form attached to a release package for "interesting" requests. All "interesting" requests are reviewed by theDeputy Minister’s and Minister’s Offices.

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informed of the remedial measuresthat can be taken to reduce the numberof requests in a deemed-refusalsituation. The remedial plan can onlybe organized after the departmentanalyzes the causes of the delays.

To maintain effective oversight of theaccess process, senior managementshould receive routine reports on thestatus of requests, including adherenceto the statutory timelines. The PWGSCATIP Directorate does have extensiveinformation in the form of variousreports that keep track of the due datesfor various stages in the access process.Reminders are also sent to theMinister’s and Deputy Minister’sOffices when the time allocation toreview release packages for interestingrequests are coming due.

The department could benefit frommore focused and proactive reportingfor access requests either in or to be ina deemed-refusal situation. Thedeemed-refusal situation is a problemthat should be recognized and dealtwith through the support of seniormanagement. To be part of thesolution, senior management requiressummary information on actual versusallocated time performance for allparts of the organization involved inthe access process.

Routine reporting allows seniormanagement to gauge how the overalldepartment is performing againstplanned performance measures. Thistype of reporting will also providesenior management with theinformation necessary to monitoractions taken to reduce the number ofrequests in a deemed-refusal situation.

2. Approval Delegation

The PWGSC Delegation Orderestablishes the authority and processfor making decisions on accessrequests. The Delegation Order

delegates all decision responsibilitiesunder the Access to Information Act tothe Director, ATIP Directorate. FiveATIP Team Leaders sign, on behalf ofthe Director, time extension andsection 27 notices. All ATIP officerssign, on behalf of the Director, allconsultation notices sent togovernment departments. The signingauthority on behalf of the Director isnot vested in the Delegation Order.

Other departments have found thatdelegation of administrative decisionsunder the Act and decision-making oncertain exemptions providesefficiencies in the access process. Forexample, decisions about fee estimatesmight be delegated within the ATIPDirectorate.

3. Approval Process

The Delegation Order provides fulldelegation for decision-making underthe Act to the ATIP Director.

For "interesting" access requests, thereis a senior management reviewprocess. The review process entailsproviding the release package to anumber of PWGSC officials. In 2001-2002, 18.5% of access requests wereconsidered "interesting". In 2002-2003,to November 30, 15% of requests wereconsidered "interesting"3.

Seven calendar days are allocated tothe senior management review processif media lines are required, while threedays are allocated when media linesare not required. A "release package"is provided for the senior managementreview. At the same time, a secondrelease package is provided to the OPIprogram and to the CommunicationsBranch.

The forms used for the review processindicate that a number of officials sign-off on the release package.

2073 The percentages are based on the number of requests that were reviewed by senior management. A higher percentage of

requests was initially designated as "interesting", but the designation was removed prior to senior management review forvarious reasons.

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For "interesting" access requests withmedia lines, there is a maximum ofthree signatures at the Branch leveland one by Communications Branchsignifying the date the package wasreceived for the purpose of a review.

In addition, and in parallel, a separaterelease package is sent to the DeputyMinister’s and Minister’s Offices witha "date received" and "by whom" foreach office. The transmittal formindicates that the release package issent for the purpose of a review.

Any "interesting" access requestswithout media lines follow the part ofthe procedure dealing with the DeputyMinister’s and Minister’s Officesdescribed above.

Each participant in the access processis allocated a planned time to completetheir part of the process. The seniormanagement review process may ormay not have been the cause of anygiven deemed-refusal situation. Table 1illustrates senior management’sallocated versus actual time taken tocomplete their part of the review.

Out of a total of 95 access requestsreceived by senior management, 24%were reviewed within the allocatedtime.

The Commissioner’s Office recognizesthat it is helpful for any part of theorganization that may be affected bythe release of information through an

access request to be informed of thereleased information. Havinginformation on the release package asopposed to a multi-party review of therelease package--record by record--creates a culture of "playing it safe".Multiple reviews also delay the accessprocess and undoubtedly result inaccess requests in a deemed-refusalsituation.

The access process should be reviewedto eliminate the need for multiple sign-offs.

4. Communications Function

An institution has 30 calendar days torespond to an access request unless atime extension is taken under section 9of the Act. When an access request isreceived by PWGSC, "interesting"requests will be identified by the OPIand the ATIP Director will be notified.

The communications function will benotified if media lines are required. Ifmedia lines are required, the releasepackage will be sent toCommunications seven calendar daysprior to release. At the same time, thesenior management review processtakes place (with another releasepackage). Once the release packagehas been completed, there wouldappear to be minimal processing left.

The ATIP Directorate does not trackthe actual time taken by theCommunications Branch. TheDirectorate states that, whether or not

208

With Media Lines – Without Media Lines – 7 Days Allocated 3 Days Allocated

Days Taken # of Requests % of Total Days Taken # of Requests % of Total

7 or less 21 31 3 or less 2 78 - 15 28 42 4 – 6 7 2516 - 23 8 12 7 - 9 11 4024 - 30 2 3 10 - 12 4 14

31+ 8 12 13+ 4 14

TOTAL 67 100 28 100

Table 1: Interesting RequestsApril 1 to November 30, 2002

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media lines are completed by theCommunications Branch, the recordswill be released.

5. Operational Areas (OPIs)

OPIs are required to search for andretrieve records in order to respond toaccess requests. The OPIs are requiredto provide records to the ATIPDirectorate within ten calendar days ofreceipt of the request from the ATIOffice.

The time taken to respond to the ATIPDirectorate request to retrieve recordsis illustrated in Table 2. Table 2includes requests for consultations thatwere received from other governmentdepartments.

Table 2 points to one reason whyresponses to access requests may bedelayed and end up in a deemed-refusal situation. The reason is that, inmany cases, OPIs are not meeting theirresponsibility to retrieve recordssubject to an access request within thetime established by PWGSC.

One method of reinforcing responsi-bilities for access to information is to

include the responsibilities in the jobdescription of officers and managersand then to have performance contractsmeasure to what degree theresponsibilities are met.

6. ATI Improvement Plan

PWGSC has taken or plans to takemeasures to reduce the number ofaccess requests in a deemed-refusalsituation. A comparison of thestatistics for the fiscal year 2001-2002with the period from April 1 toNovember 30, 2002, indicates aprobable increasing backlog of accessrequests in a deemed-refusal situationfor a year-to-year comparison. Inaddition, the time taken beyond thestatutory time requirement to processaccess requests continues to beproblematic as illustrated in Tables 3and 4.

Uncoordinated efforts to reduce thenumber of requests in a deemed-refusal situation are likely not aseffective as an integrated group ofmeasures established as a result of ananalysis of the situation. PWGSCshould approach the time delay

209

Number of days late

Branch #Times #on % on(Level 1) tasked time time 1-5 6-10 11-20 21-30 31-40 41

SOS 486 330 67.9 82 28 41 2 2 1Pacific 11 6 54.0 4 0 0 0 1 0Communi-cations 34 19 55.8 2 4 0 3 1 5Quebec 27 14 51.8 7 2 4 0 0 0GOS 111 55 49.6 33 10 11 0 0 2Real 48 28 58.3 15 4 1 0 0 0HRB 18 10 55.5 2 2 3 1 0 0Ontario 18 11 61.1 4 1 2 0 0 0Trans 2 2 100.0 0 0 0 0 0 0Western 12 7 58.3 5 0 0 0 0 0AEB 51 14 27.5 9 6 9 4 1 8Atlantic 28 17 60.7 5 5 1 0 0 0CAC 11 4 36.3 4 0 1 0 0 2GTIS 15 5 33.3 3 2 2 1 0 2

Table 2: OPI Retrieval Performance April 1 to November 9, 2002

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problem by establishing an overallplan to manage the tasks necessary tocome into substantial then idealcompliance with the Act’s deadlines.The plan should identify the sources ofthe delays and include targets, tasks,deliverables, milestones andresponsibilities to achieve idealcompliance. Senior managementshould regularly monitor the plan.

7. ATIP Directorate

The ATIP Directorate maintains theATIPflow System to manage the accessrequest caseload. The system iscapable of providing numerous reportsto manage and report on the caseload.The ATIP Directorate is providing anumber of routine reports to variousparts of PWGSC on the status of theiraccess requests and timelines. Inaddition, the ATIP Directorate hasnumerous reports within their officeon the access process scheduled versusallocated timelines.

ATIP Directorate staff have ATIP DeskProcedures, a comprehensiveadministrative guide for processingaccess requests. The ATIP DeskProcedures were revised in November 2002 and are revised on anongoing basis as required.

The ATIP Directorate currentlyemploys three consultants to processaccess requests. Consultants (orcontractors) are useful for peak periodsin the workload. When the workloadtrend is increasing in the longer term,the long-term use of consultants doesnot represent value for money.Funding for a consultant will costconsiderably more than funding for anemployee. In addition, any knowledgeabout the organization’s records andaccess process will disappear with theend of the consultant’s contract.

The department does not have adocumented fee policy for accessrequest processing. The ATIPDirectorate should develop a fee policyto support transparency in decisionmaking for fee waivers.

8. Training and ProcessDocumentation

For OPIs to complete their part of theaccess process, ATI training anddocumented procedures includingtimelines are required. During 2002-2003, the ATIP Directorate OPI andother training will consist of briefingsheld on an "as needed" basis.

OPIs expect strong support from theATI Office in training in order tounderstand precisely what theirresponsibilities are under the Access to

210

Time taken 2001-2002 April 1 – November 30, 2002

1-30 Days 47 2031-60 Days 7 961-90 Days 1 6

Over 91 Days 0 7

Table 3: Time Taken Beyond Statutory Time Allowance – Without Extension

Time taken 2001-2002 April 1 – November 30, 2002

1-30 Days 20 3831-60 Days 10 2961-90 Days 16 10

Over 91 Days 21 3

Table 4: Time Taken Beyond Statutory Time Allowance – With Extension

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Information Act, particularly withrespect to timelines and extensions. Inaddition, the OPIs need proceduraland instructional information on howto carry out tasks assigned to them aspart of the process for responding toaccess requests.

PWGSC has a draft of a recent updateto the comprehensive Handbook forPWGSC ATIP Liaison Officers and OPIManagers. The department also has theDepartmental ATIP Policy available onthe intranet. The policy includesprocedures and describes roles andresponsibilities of managers andemployees. ATIP Liaison Officers inprograms have briefings from andregular contact with the ATIPDirectorate.

Training is an essential component ofATIP operations. A properly plannedand delivered ATI training programwill provide OPIs with the ability tofulfill their responsibilities in theaccess process. As well, a plannedapproach will maximize the trainingexpenditure. There is a need for aTraining Strategy for OPIs in PWGSCparticularly since there have beenmany changes in OPI ATIP liaisonpersonnel.

The ATIP Directorate should developan ATI Training Strategy for 2002-2003.The strategy should include trainingpriorities, staff identified as benefitingfrom new or additional training,number and location of sessions andATI responsibilities for delivery of thetraining and implementation of thehandbook. The ATIP Directorate is inthe best position to identify trainingpriorities. The office understands thelevel of knowledge of OPIs on theAccess to Information Act throughinteraction on access requests. TheDirectorate is aware of complaintsabout problems in meeting therequirements of the Act and is aware

of departmental issues that mayimpact on the Act.

9. Third-Party Process

Section 27 of the Access to InformationAct provides a process for adepartment to follow when an accessrequest may contain certain third-partyinformation that is exempt under theAct. The process includes notifyingthe third party to determine if the thirdparty has any views on the release ornon-release of the information. Theprocess has a timeline that includesproviding the third party with 20calendar days to providerepresentations to the department.

The ATIP Director states that a largeproportion of access requests receivedby PWGSC involve third-party noticesunder section 27. These requests mayinvolve multiple notices. The followingissues all hinder that department’sability to meet the Act’s timerequirements when dealing withnotices under section 27 of the Act:

the number of consultations;

the complexity of some issues;

the need to educate and negotiatewith third parties;

the logistical issues in trackingmultiple notices for the samerequest.

The ATIP Directorate has introduced anumber of measures to reduce thenumber of access requests in adeemed-refusal situation. Thesemeasures are described in theManagement Response section of thisreport.

The department conducts a highpercentage of consultations underparagraph 9(b) of the Act.

The ATIP Directorate should reviewthe access requests that were subject tothird-party intervention or

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consultation and ended in a deemed-refusal situation to determine if therewere any systemic reasons for thedelays. If so, measures can beidentified and implemented as part ofthe ATI Improvement Plan to reducethe number of delays.

V. Management Response tothe Problem of Delay

PWGSC has experienced a growingnumber of access requests forsponsorship information. The numberand complexity of these requests hasplaced severe constraints on the ATIPDirectorate’s ability to respond in atimely fashion.

Additional information on causes ofdelays is contained in Section B.II, PartC: Contributing Factors of the ReportCard.

PWGSC has instituted a number ofmeasures to deal with the deemed-refusal situation.

1. Request Tracking

The ATIP Directorate has extensivereporting in place to track requesttimelines in the access process.

ATIPflow has an icon that alerts theATIP Directorate and Team Leadersthat a request deadline is approaching.Since ATIPflow is viewed on a dailybasis, an Officer and/or Team Leaderwill note any cases coming due.

ATIP Officers use ATIPflow reports.Officers generate these reports todetermine the status of their ongoingcases and identify those that arecoming due or overdue. Officers alsoproduce a Deadline List Report and aSituation Report.

ATIP Officers prepare action plans forvarious ATI requests that are in dangerof becoming overdue or are overdue.The plans are intended to clearlyoutline the milestones and key datesfor each access request and serve as aguide to the ATIP Officer when

processing the request. Thepreparation of the action plans is also acoaching tool and serves as a basis fordiscussion between the Officers andTeam Leaders about progress, trainingrequirements and performance issues.

The support staff prepare weeklyreports that they send electronically toall ATIP Directorate staff. Theinformation is derived from ATIPflowand is intended to remind ATIPOfficers of their cases coming due andcases that are overdue.

A Files Coming Due Report isprepared and sent to staff eachWednesday. It identifies the routinefiles that are coming due within thenext 8 days as well as the "interesting"requests coming due in the next 15days.

A Files in Senior Management ReviewProcess Report is prepared on aweekly basis and is sent to all TeamLeaders. It identifies the "interesting"request release packages that havebeen sent to the Deputy Minister’s andMinister’s Offices for seniormanagement review. The reportincludes the text of the request, thedate the request was sent and theexpected review completion date. Thereport is intended to prompt TeamLeaders to follow up when theexpected completion date of the releasepackage is near or has been exceeded.

2. ATIP Funding

Funding has been increasedsignificantly year over year for theATIP Directorate. Staffing has alsoincreased. In 1999-2000, 11.89 person-years were allocated to the ATIPDirectorate. This allocation increasedto 23.5 person-years for the 2001-2002fiscal year.

3. Review Process

There have been a number of measurestaken to streamline the reviews in theaccess process. The ATIP Directorate iscontinuing discussions to streamline212

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the process. For example, only twoBranch Assistant Deputy Ministers arenow involved in the seniormanagement review process.

4. ATI Training and Awareness

The ATIP Directorate is planning tohold regular meetings with ATI liaisonofficers in the 2003-2004 fiscal year.The revised Handbook for PWGSC ATIPLiaison Officers and OPI Managers willbe distributed to departmental ATIPliaison staff in early 2003.

5. Third-Party Delays

The department has implemented anumber of measures to reduce thenumber of access requests in adeemed-refusal situation. The letterwhich is included with the packagesent to third parties under section 27 ofthe Act can be sent back to the ATIPDirectorate of PWGSC by facsimile toauthorize disclosure of the recordssubject to the third-party notice.

An ATIP Officer will contact the thirdparty shortly after the notice istransmitted. The purpose of thecommunication is to confirm receipt ofthe notification and to explain thethird-party notification process underthe Act.

VI. RecommendationsThe department is to be commendedon the quality of the substantialdocumentation provided to supportinformation in the ReviewQuestionnaire. This indicates that asolid foundation for improvementexists.

There are a number of departmentsthat have found themselves in an Fgrade, red alert situation, with regardto the new access request to deemed-refusal ratio. Through deliberatecommitment, well-planned andexecuted measures and in timeframesas short as two years, otherdepartments have attained substantialand ideal compliance. With these

possibilities in mind, this reviewrecommends the following:

1. The ATIP Director is directlyresponsible for ensuringcompliance with the Access toInformation Act and should take astrong leadership role inestablishing a culture ofcompliance throughout PWGSC.Such a role requires theunwavering support andendorsement of the Minister andthe Deputy Minister. Seniormanagement support for thedevelopment and monitoring of anATI Improvement Plan is onemethod of making a commitmentto comply with the timerequirements of the Act.

2. Routine reporting to seniormanagement on planned versusactual time taken to process accessrequests and the status ofmeasures taken to reduce requestsin a deemed-refusal situationshould be instituted. The reportswill provide senior management,OPIs and the ATIP Directoratewith information needed to gaugeoverall departmental compliancewith the Act’s and department’stime requirements for processingaccess requests.

3. The Delegation Order should berevised to reflect any delegation ofdecision-making within the ATIPDirectorate. The department isencouraged to delegateadministrative decisions under theAct to ATIP Team Leaders andOfficers and to review whether ornot decisions about anyexemptions can also be delegated.

4. The Minister should direct theATIP Director, in writing, toexercise the delegation to answerrequests within deadlines, whetheror not the approval process hasbeen completed.

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5. The approval process should bereviewed to remove multiplereview stages within the process.

6. PWGSC should develop an ATIImprovement Plan. The planshould identify the sources of thedelays in responding to accessrequests and include targets, tasks,deliverables, milestones andresponsibilities. The SeniorManagement Committee of thedepartment should monitor theplan.

7. The specific reasons for the accessrequests in a deemed-refusalsituation for this fiscal year up toNovember 30 should be identifiedand remedial measures developedfor incorporation into the ATIImprovement Plan.

8. A Training Strategy should bedeveloped for 2003-2004 thatincludes priorities, PWGSC staffidentified as benefiting from newor additional training, number andlocation of sessions and ATIPresponsibilities for delivery of thetraining.

9. PWGSC should set an objective ofcoming into substantialcompliance with the Act’s timerequirements for 2003-2004 and anideal compliance objective for2004-2005.

10.ATI training should be mandatoryfor all managers, including newmanagers as part of theirorientation.

11.The use of consultants to provideprocessing resources for long-termincreases in the ATI workloadshould be reviewed to determinewhat the best value for money isfor staffing.

12.The department should develop aFee Policy in determining when towaive fees under the Access toInformation Act.

13.Responsibilities for access toinformation should be included inthe job description of officers andmanagers where relevant.Performance contracts shouldmeasure to what degree theresponsibilities are met.

BASIS OF REPORT

I. Interview with PWGSC’sATIP Director—January 7,2003

On January 7, 2003, PWGSC’s ATIPDirector was interviewed for thepurpose of this Report Card.

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Questionnaire for Statistical Analysis Purposes in relation to official requestsmade under the Access to Information Act

Part A: Requests carried over from the prior fiscal period. Apr. 1/01 Apr.1/02 to to

Mar. 31/02 Nov. 30/02

1. Number of requests carried over: 201 159

2. Requests carried over from the prior fiscal — in a deemed-refusal situation on the first day of the new fiscal: 75 45

Part B: New Requests — Exclude requests included in Part A. Apr. 1/01 Apr. 1/02to to

Mar. 31/02 Nov. 30/02

3. Number of requests received during the fiscal period: 760 684

4.A How many were processed within the 30-day statutory time limit? 350 254

4.B How many were processed beyond the 30-day statutory time limit where no extension was claimed? 55 42

4.C How long after the statutory time limit did it take to respond where no extension wasclaimed?

1-30 days: 47 20

31-60 days: 7 9

61-90 days: 1 6

Over 91 days: 0 7

5. How many were extended pursuant to section 9? 324 342

6.A How many were processed within the extended time limit? 129 82

6.B How many exceeded the extended time limit? 67 80

6.C How long after the expiry of the extended deadline did it take to respond?

1-30 days: 20 38

31-60 days: 9 29

61-90 days: 17 10

Over 91 days: 21 3

7. As of November 30, 2002, how many requests are in a deemed-refusal situation? 58

II. PWGSC—PRE-INTERVIEW SELF-AUDIT QUESTIONNAIRE

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The Average PWGSC ATI Request:

On average, each request is associatedwith the retrieval of 315 pages ofrecords and requires consultationswith two government departmentsand two third parties. Each ATIPOfficer handles roughly 15 accessrequests simultaneously.

ATI Consultations from OtherGovernment Departments:

A notable trend is the increase in thenumber of incoming ATI consultationsfrom other government departments,commensurate with a near doubling ofthe volume of records to be reviewed.In FY 2000-2001, 169 consultationswere received, associated with 6,722pages of records; in FY 2001-2002, 186consultations were received, associatedwith 13,751 pages; and between April 1and November 30, 2002, 151consultations were received, associatedwith 13,080 pages of records.

The ATIP Office must balance the needto respect the legislated timelines ofother government departments whoare consulting with PWGSC on anincreasing number of records at thesame time as it strives to respect thetimelines associated with its own ATIrequests.

Third-Party Notification ProcessSet Out in Section 28 of the ATIAct:

Refer to section 15(b) of theQuestionnaire.

As a common service agency, PWGSCprocesses a large volume of ATIrequests associated with procurementand real estate activities managed onbehalf of other governmentdepartments. These activities range incomplexity from the simple

procurement of office supplies to theprocurement of crown projects, such ashelicopters and jets.

In FY 2001-2002, the ATIP Officeconducted 710 third-partyconsultations. In general, compliancewith section 28 of the ATI Act is alogistically and legalistic process thatcauses delays in meeting timelines.Time is spent:

Ensuring that each third party isconsulted only once;

Ensuring that only the appropriatedocuments are sent to each thirdparty;

Educating third parties on theprocess in order to avoidunnecessary litigation;

Following up with third parties toensure that their rights arerespected and that the appropriateinformation is protected; and

Keeping requesters informed whenproblems arise.

Outgoing Consultations withOther Government Departments:

In FY 2001-2002, the ATIP Officeconducted 417 consultations in relationto the information it held relating tothe business of other governmentdepartments.

In general, 60-day time extensions aretaken by the PWGSC ATIP Office forthe purpose of consulting with othergovernment departments, includingconsultations relating to cabinetconfidences.

Although most consultations arecompleted with 30 days after thenotice has been sent, consultations216

Part C: Contributing Factors

8. Use this area to describe any particular aspect about a request or type of requestthat may impact on the difficulty or time necessary to complete a request:

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with the Privy Council Officefrequently require additional time.This is complicated by the fact thatPWGSC frequently consults PCO withrespect to information held in portionsof documents. Since not all cabinetconfidences are readily identifiable,several consultations notices may besent on the same request, and somenotices have been be sent late in theprocess.

Siemens Canada Limited v.Canada (Minister of PWGSC) 2001,FCT 1202:

On November 5, 2001, the FederalCourt Trial Division ordered that allthird-party information obtained byvirtue of section 16 of the DefenceProduction Act (DPA) is subject to amandatory exemption under section 24of the ATI Act (section 30 of the DPA).

In light of the judicial decision,discussions ensued between thePWGSC ATIP Office and JusticeCanada concerning the proceduralimplications and the new content ofthird-party notices. As thesediscussions were conducted overseveral months, there were significantdelays in processing more than 30DPA-related requests during FY 2001-2002.

Sponsorship Requests:

Since FY 1999-2000, the number of ATIrequests associated with sponsorshiprequests has increased dramatically.Between April 1 and September 1,2001, 18% of ATI requests receivedwere sponsorship-related. BetweenApril 1 and November 30, 2002, 31% ofATI requests received by PWGSC weresponsorship-related.

As a result, delays were incurred inprocessing all ATI requests due to the:

Shear volume of sponsorshiprequests received in a short periodof time;

Need to establish effective linkageswith other sectors within PWGSCand with Communication Canadato respond to the Minister’s anddepartment’s communication needsand to ensure a consistent approachwas taken in the processing ofsimilar ATI requests;

Need to reassign existing ATI staffand consultants to specialize in thehandling of these requests; and the

Need to hire and train new ATIstaff.

These factors significantly impactedthe compliance timelines ofsponsorship-related requests and, for ashort interval, the compliancetimelines of all other ATI requests.

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III. PWGSC—REVIEW QUESTIONNAIRE (FEBRUARY 2003)(available from the Office of the Information Commissioner)

EXCERPT FROM DEPUTY MINISTER'S RESPONSE TOSTATUS REPORT"The Minister and I fully support the department's Access to Information programand it is our continuing objective to improve its timeline performance. As younoted, the Access to Information and Privacy (ATIP) Directorate has a solidfoundation upon which an improvement plan may be developed over the courseof this fiscal year.

Of the thirteen recommendations made by your office, I am pleased to report thatwe have streamlined our "Interesting" request approval process, have examinedthe sources of delay within the department and are developing the improvementplan. Further, the ATIP Directorate will be increasing the number of informationawareness sessions to be delivered throughout the fiscal year and is developingtimeline compliance reports which will be communicated to Branch managementon a regular basis.

Please be assured that PWGSC will study and give careful consideration to each ofyour recommendations when determining the best courses of action required toachieve an improved timeline compliance rate."

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