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Speaking notes for the Access and Privacy Conference 2009,
Edmonton, Thursday, June 11, 2009

The Pursuit of Truth…
Counteracting Secrecy with Urgency

By Suzanne Legault
Assistant Information Commissioner
Office of the Information Commissioner of Canada

Good afternoon to all of you. My thanks extend to the conference organizers for inviting our office to participate in this year’s conference.

Please accept Commissioner Marleau’s apology for not being here today. Many important matters arising from last week’s parliamentary committee hearing kept him close to home.

I also wish to thank the many participants who are giving generously of their valuable time to share their knowledge, experience and ideas to advance the very important cause of freedom of information in Canada.

To echo the theme of this conference, the pursuit of truth will only successfully reach its goal if an urgent and fundamental shift occurs in the mindset of our political and institutional leaders, if systems are modernized, and if most legislative frameworks are reformed to align to international standards. We need to remind ourselves of the fundamental goal of freedom of information which is to provide timely, complete and accurate information to citizens, subject only to very limited exceptions.

 John Kotter, one of the world’s top management gurus, argues that organizations need to create a sense of urgency as the first step in a series of actions if they want to succeed in a changing world. I would argue that we — all together — need to instil this sense of urgency in access to information if we want to ensure that Canadians can truly exercise and benefit from this fundamental democratic right. Otherwise, we run the risk that access to information regimes in Canada will become irrelevant.

Everyone here knows how drastically our environment has changed since most Canadian FOI legislation came into effect. Technology has transformed our world and our mindset about the availability of information. Information now circulates widely and in extraordinary quantity on the Web, on cell phones, on Blackberries and other countless devices at ‘twittering’ speed.  

In effect, information technology has eliminated the concept of jurisdictional boundaries, contributing to an increasing globalization of issues and markets. The current recession illustrates how closely knit our economies have become. In our modern and complex economies, knowledge is now a critical tool for success.

Government business has also changed dramatically. The complexity of issues and the scarcity of resources require multi-jurisdictional collaboration and partnerships with the private sector. Moreover, government clients — the public and young Canadians in particular — expect to have access to an increasing range of information just a click away…instantaneously, easily and free of charge.

In this context, how can we instil a sense of urgency throughout the system in order to bring about the changes that are urgently required?

In a well relayed blog article entitled Creating a Sense of Urgency, Michael Hyatt, President and CEO of Thomas Nelson Publishers, wrote about the importance of urgency and the difference it makes between success and failure. He explained how we can initiate, create and sustain a sense of urgency in favour of change through four simple, yet very effective actions: assess, activate, accelerate and achieve—the four A’s of urgency.

The loop in the urgency model suggests two things. First, change is no longer episodic, it is continuous. Second, maintaining, or rather managing an ongoing sense of true urgency helps to create the motivating forces we need to reduce complacency, encourage engagement from all players, and improve responsiveness, or better still, ‘proactiveness’ in the face of external changes and challenges. A sense of urgency also provides a sense of focus and direction.

In keeping with this model, let us start with the assessment of our freedom of information regimes.

In his report entitled Fallen Behind: Canada’s Access to Information Act in the World Context, Stanley Tromp discusses twelve key points where our federal legislation fails to conform with internationally accepted standards.

Further, the degree to which the federal legislation has fallen behind was also indicated in the recent Global Integrity Scorecard. Canada scored only a “moderate” rating when measured against its international counterparts. Notably, Canada lost points for not routinely disclosing documents to the public, for its very broad exemption that applies to policy advice and completely excludes Cabinet records from the purview of the legislation, and for not giving the Information Commissioner order making power that would allow a faster resolution of access refusals.

The federal Access to Information Act, if you wish, is the grandmother of access to information laws. She has created a steady system based on sound values and has established a number of governing rules to assist in the release of information. However, she is tenacious and stubborn, and despite advice to keep up with the times, she has failed to adapt to an ever changing environment and remains anchored in a static, paper-based world. She is somewhat technophobic. She has weakened and slowed down over time. She has not followed a rigorous exercise regime. She now uses a walker and will soon be in a wheelchair. There is no doubt in the extended family's mind that she is in need of a hip replacement to be fully functional again.

In striking contrast, as recently as May 4, 2009, the Honourable Rob Nicholson, the federal Minister of Justice, testified as follows before the Standing Committee on Access to Information, Privacy and Ethics:

“When we bring forward any legislation, we do check with other like-minded countries, but I’m going to tell you something: this country has an outstanding record. If anybody has anything different to say to that, I say that they are completely wrong. This is an excellent piece of legislation. This is a huge step forward, and so was the Federal Accountability Act.

Since we are all investigators either by profession, or by inclination, in our pursuit of the truth, let us look at some facts.

In preparation for this conference our team at the Office did a comparative analysis using twenty principles based primarily on a combination of the nine Article XIX principles and principles enumerated in the more recent Atlanta Declaration. Examples include such key concepts as a requirement for proactive disclosure, harms test and public interest override for discretionary exemptions, and education mandates.

As you can see from the map − where green indicates a relatively high degree of compliance with these standards (Québec scored highest with a 12 out of 20), yellow indicates a moderate degree of compliance and red, with points ranging from 1 to 6, indicates a low degree of compliance − work still needs to be done in Canadian jurisdictions to align with international standards. You might be interested to know that the federal legislation scored the lowest with one out of 20. In fact, the single point awarded to the federal legislation was for its “reasonable costs.” This is not surprising since the cost structure dates back to 1983!

Given our less than optimal legislative frameworks, how are we supplementing our laws in administering the acts to ensure the goals of timely transparency are met?

Again let us consider some facts.

As many of you know, our office has been measuring institutional compliance with legal deadlines for over ten years. As you can see from the chart, failure rates in meeting the legal deadlines over the years have ranged from 42% to 70%. In our most recent exercise, six out of ten institutions still performed below average.

This dismal performance is also to be found in the report cards prepared for 2007-2008 by the Office of the Information and Privacy Commissioner for British Columbia and by the Canadian Newspaper Association.

To make matters worse,federal institutions are making greater use of extensions for longer periods of disclose less information. Extensions are now routinely used — against the spirit of the Act — to manage workloads while exemptions are also used to protect officials or institutions from public embarrassment. Over the years, there has been a gradual but noticeable decrease in the number of instances where all information in records has been disclosed pursuant to requests.

The record, I would argue, is crystal clear: the legal deadlines are the exception rather than the norm.

There are also a number of systemic issues affecting access to information over which central institutions have clear accountability. These problems — discussed in one of the sessions this morning — include serious deficiencies in information management; cumbersome and lengthy consultations; chronic gaps in personnel and training; and a clear lack of executive leadership.

The increasing number of complaints that our Office receives about the way institutions handle access to information is a confirmation that the system is not meeting statutory requirements, nor is it meeting public expectations.

The lengthy delays and the lack of disclosure are also symptoms of a transparency adverse culture which has been rightfully denounced by civil groups and journalists, among others. This sorry state of affairs has serious ramifications for our knowledge-based economy and the state of our democracy. 

Given this dire diagnostic, supported by a significant body of evidence, it is clearly time to act in order to achieve our goals of timeliness and completeness of disclosure of publicly held information.

To those of you who have become sceptics, who have said to me in the course of my first two years at the OIC that you have tried and tried again to achieve reform, to change the culture, without success, I would say try and try again.

As Malcom Gladwell states in his most recent book The Outliers, success in the 21st century is about collaboration and hard work – 10,000 hours of hard work!

So this is our call to action – as these are, in fact, exciting times for freedom of information. In Canada, fourteen commissioners can join intellect and resources and lead change. Technology offers innovative solutions to facilitate fast, easy access and to support our collective efforts for change. President Obama’s executive order has recharged the American battery of freedom of information, and introduced new standards of performance and leadership for our Canadian leaders. Time is indeed ripe to recharge our batteries, to take action. Let’s seize the day.

For the past two years, under the leadership of Commissioner Marleau, we focused on three key areas to improve timeliness of responses to requesters. This fiscal year, we plan to increase our efforts in this respect as we have come to the conclusion that urgent action is required. Otherwise Canadians risk losing faith in the ability of the system to provide them access to information held, on their behalf, by publicly funded bodies.

First, we looked at solutions to solve our historic plague with backlogs of cases. Second, we developed a multi-faceted, strategic approach to address systemic issues and to maximize compliance. And third, we made recommendations for legislative reform to improve the compliance model.

One only needs to look at the first annual report in 1984 to realize that even as far back as its first year of operation, the OIC accumulated a backlog of 104 cases out of the 150 it received that year. The situation has never been resolved, has compounded year over year, and was further aggravated in 2007-2008 when the volume of complaints received at our office increased by 80%. It became evident that a new way of doing business was required.

As you can read in our brand new annual report for 2008-2009, the assessment of the OIC’s own operations led to a significant business re-engineering and the implementation of a new, streamlined investigative process, which, although it still faces many challenges, is starting to show promising results.

A dedicated team now handles the older inventory of pre-April 2008 complaints. This inventory has been our Achilles’ heel in our pursuit for greater efficiency. We now have a process and strategies to eliminate it by the end of this fiscal year. Indeed, in its first four months of operation, the team in charge already eliminated 30% of the backlog.

For post-April 2008 cases, we take a three-step approach. Our Intake Unit assesses and prioritizes all incoming complaints, freeing investigators from time-consuming administrative tasks, allowing them to focus on the job of investigating. Our Early Resolution Unit then takes on those cases that can potentially be resolved quickly and easily. The more complex cases are assigned to our Complaints Resolution and Compliance team.

We will focus our efforts this year in fully implementing this model and improving on the timeliness of our investigations. While we do so, we will also assess the time it takes for institutions to provide us with documents relevant to the complaints. Currently, some institutions may take up to several months before gathering and submitting the documentation, thus increasing the overall time to complete investigations. This situation must improve. We will work with institutions to significantly reduce this delay. Failing an acceptable and timely resolution of this issue, it may be necessary to use formal powers to protect the rights of complainants to a timely response from our office.

Keeping up with our times, we will be adding to our staff next year an investigator with a specialization in electronic evidence. We are also implementing a comprehensive IM/IT strategy to support our new business processes.

For systemic issues, we have developed a comprehensive and proactive approach that will help us identify and address problems before they become endemic. While some issues may become the subject of fullfledged systemic investigations, others will be addressed through the annual report cards process or through advocacy.

In 2007-2008, we introduced a new methodology for our report cards to better assess the performance of the system. We will soon publish our first three-year plan for our report cards, giving institutions advance notice of the type and scope of information we will be seeking with a view to encouraging proactive compliance.

This fiscal year, following up on the preliminary findings of last year’s report cards, we plan to initiate an investigation into the systemic use of increasingly lengthy extensions.

In a context of limited resources and imperative for action, we realized that to maximize institutional compliance and to promote requesters’ rights, we needed to widen the scope of tools we use to advance the cause for continuous improvements. Our compliance continuum offers a range of possible interventions, from partnering with stakeholders, to making representations to parliamentarians, to fullfledged court action.

On the legislative front, we engaged in an ongoing dialogue with stakeholders — including access to information specialists, professionals and users — to learn more about what the priorities for modernizing the Act should be. We did an extensive exercise of benchmarking to compare the federal legislation with other national and international standards and focused our recommendations for reform on improving the compliance model. Based on our consultations, the Commissioner presented twelve legislative recommendations to the House of Commons Standing Committee on Access to Information, Privacy and Ethics in March. These recommendations do not represent an exhaustive list by any means. Rather, they include the most pressing matters for reform to strengthen the currently deficient compliance model of the federal legislation.

As you can see from the chart, these recommendations received broad support from the witnesses who appeared before the Committee. Indeed, I would be remiss if I did not take this occasion to thank all those who participated in this important process.

All in all, these past few years at the OIC have been exciting times. We must be getting close to the halfway mark to our respective 10, 000 work hours! However, much remains to be done. The OIC’s actions over the next year will clearly be cast into that model of urgency, focusing our attention on timeliness.

We are set to achieve greater efficiencies, internally, by implementing and further refining our business model and various renewal initiatives as well as achieve greater compliance, externally, by strategically using our compliance continuum.

We will go full circle on the urgency loop and assess our success based on our internal audits, institutional performance assessments, the feedback provided by our partners and stakeholders, and hopefully the long-awaited modernization of the Access to Information Act.

All of us will succeed in bringing our access to information systems into the 21st century by working together to instil a sense of urgency into our plans of action. We are now in the process of planning and organizing the 2009 Right to Know Week with this very same sense of urgency in mind, and we are looking forward to joining forces to make this event a truly national one and to raising the awareness of Canadians on freedom of information issues.  

What we envision is a fundamental shift in mindset. A culture of openness where information is disclosed on a ‘right to know’ basis, as opposed to a ‘need to know’ basis. Where access is the default mode, and where information is released proactively through virtual reading rooms.

A system that is guided by modern laws and a stronger compliance model. In fulfilling their obligations, institutions, among other things: allocate appropriate resources; use technology as an enabler; improve intragovernmental consultations; and fully integrate their duty to assist. They are provided with clear performance objectives, explicit directives and adequate financial support and resources.

Access to information becomes a core public service value with strong political support and leadership from the top.

At the heart of this system, we all work together and show leadership in urgently promoting and effecting the changes required by our ever evolving environment so that access to information and transparency reclaim their rightful place within our democracy.