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Remarks to CAPA Conference
One year ago, the CAPA executive was kind enough to invite me to introduce a panel of two members of Parliament who spoke to you of their strong interest in, and support for, the right to know in Canada. I was honoured by that invitation because the future vitality of the right to know in Canada depends heavily on the enthusiasm for it shown by members of Parliament. Politicians instinctively appreciate the public’s distrust of secrecy.
And in the intervening year, members of Parliament have shown their enthusiasm for open government in very tangible ways. In an almost unprecedented, unanimous vote, Parliament adopted
Colleen Beaumier’s private member’s bill making it an offence to hide, alter or destroy records (or to counsel any such act) for the purpose of thwarting the right of access. The offence is now set out at section 67.1 of the Access to Information Act. I will talk more about that provision later.
As well, John Bryden’s private member’s bill, (C-264) which would radically reform the Access to Information Act, received supporting signatures from more than one hundred MPs. Under new House rules, at least one bill which has received 100 signatures will be added to the Order of Precedence of bills, without having to win the lottery of private member’s bills. John Bryden’s bill has not yet been added to the Order of Precedence but there is a very high likelihood, I am told, that it will.
Of course, this turn of events has forced the government to consider its strategic options--how should it react? Should it support Bryden’s bill? Should it introduce its own bill to amend the Access to Information Act? Should it adopt the process set out in subsection 75(2) of the Access to Information Act? That process, as you know, would task the Justice Committee to undertake a comprehensive review of the law and make recommendations to Parliament for amending the Act.
The government has not officially or unofficially asked me for my opinion, although I am told that many of you have been asked for your views in this regard. Perhaps you’ll share your views with me during the question period. But I am not shy to give my views, even unsolicited, and I will do so today on this topic.
It is no coincidence that the deficiencies in the access law are beginning to show in the dying days of the 20th century. The terrifyingly fast pace of development in information and communications technologies challenges our (and the law’s) notion of what is a "record". What is a reasonable "search"? What is the cost of retrieving and producing electronic records? What records should be created and retained? How do we properly retain electronic messages? What pricing philosophy should government adopt when it decides to sell the information it holds? Can there even be a meaningful right of access to records in the absence of legislated information management rules? Perhaps, instead of a reformed Access to Information Act, we need an Information Management Act!
All of which to say that we owe it to future generations to take all the time necessary to get this reform right. For that reason, I do not favour immediately adopting the Bryden Bill (even though I think there are some excellent features of it), or the adoption of a possible government-sponsored bill. I favour, rather, a rigorous, open process before a joint Senate/House of Commons Committee to consider all proposals for change from all interested parties.
Even if a joint committee process would delay amendments to the Act, I am convinced that it would result in a stronger Act. All of the proposals for reform--those put forward by my office, by private members, by government officials--suffer from the same fault: None have been born of an open process; the public has been excluded; users have been left out of the loop. By getting the process right we are more likely to end up with the very best proposals for reform.
I came to the job of Information Commissioner, some 14 months ago, convinced that the number one issue to be tackled was the problem of delay. In every speech since, in every meeting with officials, ministers and members of Parliament, I have insisted that the problem of delay be solved. A very good law has earned a bad name because of delays.
Over the past year, I have been given a judicial push towards a zero tolerance policy on delays. The Federal Court of Appeal agreed that I had the discretion to approach delay complaints in a low-key manner-- cajoling departments into answering late requests. However, the court also told me not to come to it for help if those "friendly" efforts failed. Rather, the court urged my office to use its formal power of subpoena to require Ministers and Deputy Ministers to justify "deemed refusals". If unsatisfactory explanations are given, the Court will then intervene to order disclosure. In implementation report 67, issued on September 17, 1999, Treasury Board has commented on the court’s decision. I recommend that you take cognizance of the Board’s guidance, especially the suggestion that senior management be alerted when requests fall into "deemed refusal".
In addition to a less tolerant investigative philosophy, I have also decided to be more aggressive in exposing to Parliament and the public the performance records of specific institutions. To that end, I tabled special reports with Parliament (the so-called Report Cards) on the performance of six departments in meeting response deadlines. I was very disappointed to find that the performance of all six was unacceptable. All received a failing grade on their report cards.
But the dark cloud of poor performance has a silver lining. I am pleased to report that the heads and deputy heads of all six institutions--Health Canada, National Defence, Revenue Canada, Citizenship & Immigration, Foreign Affairs and International Trade and Privy Council Office--responded in effective and constructive ways. Where resources were required to handle a backlog of work, resources were allocated. And, in all institutions, the re-engineering of processes was undertaken--reducing the number of steps in the ATIP process, streamlining the approval process and separating the ATIP processing system from the media relations/communications system--the latter being to serve the Minister without adding value to the processing of an access request.
In the coming months my office will revisit these six institutions to assess the success of the reforms which were implemented. As well, one or two other institutions will be audited and the results reported to Parliament and the public. I urge all institutions to redesign their annual reports to Parliament on access and privacy, to make them into performance report cards akin to those my office prepares as a result of audits. Why wait for my officials to arrive at your door? Take the initiative and admit your shortcomings or announce your successes--that is the role which Parliament intended for the institutional annual reports.
It is my fervent hope that the day will come soon when I will be able to drop the problem of delay as my number one priority. I want 50% of my workload, which delay complaints represent, to disappear. But let me be perfectly clear on this point. I intend to «finish the check» when it comes to the problem of delays. I do not believe that I am being unreasonable in expecting every government institution to get an "A" on their performance report cards. Let me remind you that an A is earned when five percent or less of access requests received are deemed by the Act to have been refused because of failure to meet response deadlines.
Implementation Report #67
A moment ago, I made reference to the implementation Report #67 which Treasury Board issued on September 17th to:
- provide guidance on applying extensions under section 9 of the Act;
- allay general apprehension surrounding the new offence set out in section 67.1 of the Act; and
- describe the implications of the Federal Court of Appeal decision in the Information Commissioner v. The Minister of National Defence (A-785-96).
I have already spoken about the third matter, but I do wish to make a few observations respecting sections 9 and 67.1 of the Act. To begin, however, I want to congratulate the Treasury Board for providing guidance on these subjects. It is critically important that the extension of time provisions be managed professionally and consistently across government.
There is no shame in, nor should there be any reluctance to, claim time extensions when the conditions for so doing are met. As well, it is vitally important to help public servants understand what the new offence in 67.1 means for them. With the possible exception of the offence of torture, this offence is the only one I am aware of which is directed exclusively at public servants.
While I am grateful to Treasury Board for providing this guidance, I want the CAPA community to also be aware of my office’s views concerning sections 9 and 67.1.
Defining "reasonable", "unreasonable" and
"large number of records"
In deciding how to administer the extension provisions set out in subsection 9(1), institutions must operationalize the following tests:
"reasonable period of time",
"large number of records", and
"unreasonably interfere with operations".
These tests are objective tests cast in subjective terms. Their meaning will vary depending on the circumstances and the context of each specific institution and request. The following factors will aid institutions in assessing whether the tests for extensions have been met:
1) Reasonable Period of Time
i) if the extension is claimed under paragraph 9(1)(c), an extension of 60 days will be considered reasonable because the statute sets out specific times for 3rd party consultations which enable the consultations to be completed within 60 days;
ii) if the extension is claimed under paragraphs 9(1)(a) or (b), the duration of extensions should be consistent with historical experience in the institution in processing similar requests;
iii) if the extension is claimed under paragraph 9(1)(b), the duration of the extension should ordinarily not be more than 30 days (which would be the response period if the consulted institution had received the request directly) and rarely, if ever, should such an extension be more than 60 days, taking into account the fact that third parties have a maximum of 60 days to make their views known. In other words, unless a compelling case can be made, other institutions should not be given longer to express their views concerning a request than are third parties; and
iv) in deciding what is a reasonable period of time for an extension, the institution should calculate the time needed to process the request using the available resources in ATIP and in the relevant OPI(s). Extensions are not appropriate, however, to compensate for inadequate resourcing to meet the institution’s ordinary ATI workload.
It is important to bear in mind that, except in the case of third party information (see subsection 27(4)), only one extension may be claimed and it must be claimed within 30 days of the receipt of the request. If the extension is inadequate or if it is not claimed at the proper time, the request will be deemed to have been refused by virtue of subsection 10(3).
2) Large Number of Records
There is no magic number of records which qualify as a "large number". Historically, however, the Information Commissioner has rarely accepted 500 or fewer records as being a large number. On the other hand, it has not been unusual for the Commissioner to accept 1,000 or more records as being a large number. No matter what the number of records may be, if an institution wishes to make a case for an extension based on a large number of records, it should take into account the following factors:
- are the records easily reviewed, despite the number of pages, due to their homogeneity [example: a large computer printout where review of one or two pages results in a uniform approach to be applied to all pages];
- have the records been reviewed in response to a previous request;
- does the number of records exceed the average number of records requested per request in the institution;
- does the number of records exceed the number which, historically, the institution has been able to process in 30 days; or
- would processing the request in 30 days unreasonably interfere with the operations of the institution?
3) Unreasonable Interference With Operations
For the purposes of 9(1)(a), the processing of an access request may be considered to unreasonably interfere with the institution’s operations if processing the request within 30 days would require:
i) transferring resources to ATIP from other operational areas;
ii) diverting OPI subject matter expertise to the detriment of the OPI’s core functions; or
iii) devoting such a high proportion of ATIP resources to responding that the processing of other requests is negatively affected.
As a general rule, when an institution’s information holdings are well managed, the ATIP unit is adequately resourced, and processing procedures are streamlined, extensions should only be required for a low percentage of requests. As a rule of thumb, the longer the extension, the greater the likelihood that there will be a complaint to the Commissioner.
Notice of Right of Complaint
Subsection 9(1) requires institutions to notify requesters, in the notice of extension, that the person has a right to make a complaint to the Commissioner about the extension. The Information Commissioner recommends that all such notices remind requesters that complaints to the Commissioner must be made within one year from the date of the request.
In order to ensure that response periods extended under 9(1)(b) are met, consultations with other institutions must be carefully managed. Before claiming an extension, the institution to be consulted should be asked to estimate the time it will need to provide its views. The consulting institution must decide whether the estimate is reasonable before using it as a basis for claiming an extension. However, once the extension is applied, the consulting institution has an obligation to answer the request within deadline, whether or not the consulted institution has provided its views by the deadline. Institutions should bear in mind that they have an obligation to respond in a timely manner to consultation requests from other institutions.
The management of consultations with third parties (where the extension is taken under paragraph 9(1)(c)) is governed by the times set out in sections 27 and 28. These times should not be modified by institutions for the purpose of accommodating the third parties’ conveniences or to give the institution additional time to persuade the third party to the institution’s view. In sections 27 and 28, Parliament has struck a careful balance between the rights of requesters to receive a timely response and the rights of third parties to protect their interests; institutions should not upset this balance by deviating from the times therein set out.
Now, let me turn to the matter of section 67.1.
I am told by officials in Justice Canada and Treasury Board that there is anxiety within the ranks of the Public Service concerning the coming into force of section 67.1 of the Access to Information Act. This news puzzles me. Why would public servants be nervous about a provision which makes it an offence to destroy, alter, falsify or conceal a record with the intent to deny a right under the Access to Information Act? It is certainly not part of the public service culture to engage in such actions. Frankly, I have not heard, first-hand from public servants, that this offence causes them any concern. Rather, it is the leadership of the public service which seems most troubled.
In this context, I regret that Treasury Board chose, in its Implementation Report, to dilute Parliament’s strong message by connecting it to the National Archives disposal rules. The implication may have been left that, if public servants follow the National Archives disposition rules, they need have no fear of committing the section 67.1 offence. Nothing could be further from the truth! No matter what archival rules are followed, if a person destroys, mutilates, alters, falsifies, makes a false record or conceals a record (or directs, proposes, counsels or causes any such act) with the intent to deny a right of access, he or she will have committed the offence.
It seems to me that public servants should hear, and can certainly take, the simple, clear message: Don’t take any of the prohibited actions (even if they comply with archival rules) with the intent to deny a right of access. Did you notice, for example, that Treasury Board did not even set out the text of s. 67.1 in its Implementation Report? On this matter, there has been too much soft pedaling.
Where public servants need guidance, it seems to me, is in how to react to instances of possible violations of section 67.1 if and when such instances come to their attention. In this regard, the Treasury Board has decided that possible breaches of section 67.1 should be treated as any other criminal offence: Police will be called at the discretion of Deputy Ministers. The Board has not provided Deputy Ministers with any guidance concerning the exercise of the discretion. However, the Board has decided not to accept my proposal that Deputy heads should, at a minimum, notify my office of any such allegations.
I have watched carefully the process by which Colleen Baumier’s private members bill became law. She, and a great many other members of Parliament were outraged by the behaviour of some public officials who altered or destroyed records to undermine the right of access.
Ms. Beaumier and her colleagues were also grateful to, and supportive of my office, for investigating these unfortunate «incidents», for bringing them to light, for ensuring that possible wrongdoing was referred to law enforcement and for making general recommendations to departments to help them avoid recurrences. It was no coincidence that Ms. Beaumier’s bill was an amendment to the Access to Information Act rather than to the Criminal Code. She, and all members of Parliament, intended that allegations of infringements of section 67.1 be handled independently of the institutions in which they arise. The potential for improper interference with evidence and witnesses is simply too great in the case of this offence, for government to treat it in the same way it would treat allegations of theft or fraud.
The Office of the Information Commissioner is not a police agency and should not be conducting criminal investigations; but this office is fully independent of government, the office has specialized knowledge of governmental information handling practices and it has the expertise to inquire into such allegations. Finally, the Commissioner’s office would be best able to recommend procedural and policy changes to avoid reoccurences.
It simply gives the worst impression to the public and wrong signals to public servants, to ask government institutions to deal with potential 67.1 infringements on an in-house basis, with Deputy Ministers having the discretion whether or not to call in law enforcement.
Need I remind anyone that, in the records alteration incidents at DND, senior officers including officials of the Judge Advocate General’s office were informed that orders had been given to destroy records, yet no remedial action was taken by them. Only after a whistle-blower went to a member of the media, who--in turn--came to the Information Commissioner’s office, was action taken to inquire into the matter.
And, too, need I remind anyone, that the other incidents of improper records destruction investigated by my office over the years, have all included senior officials. During those investigations, the deputy
heads of the relevant institutions rallied around their executive members rather than dispassionately reviewing the evidence and taking remedial action. Is it really wise public policy, I ask, to fuel further the public cynicism of government by setting up a process which has all the appearance of damage control rather than adopting one which can and will get to the bottom of alleged wrongdoing?
The government’s approach raises this question in my mind: Will public servants be disciplined if they choose to bring such allegations to my attention rather than to departmental senior officials? I have put that question to the Secretary to Treasury Board, but have not received a reply.
I am also very pleased to note the joint initiative undertaken between the National Archivist and Treasury Board’s Chief Information Officer, to identify and assess the issues associated with the management of information in the Government of Canada and to prepare recommendations for action. As part of this initiative, the National Archives has agreed to provide one of its most experienced, knowledgeable information management executives (John MacDonald) to the office of the Chief Information Officer as the project leader. The recognition by the CIO that so-called "IM" issues need priority attention along with "IT" issues, is a new development and it is most welcome news. I look forward to playing a constructive role in assisting this work of the Archivist and the CIO.
While I am heartened by these positive signs of life from Treasury Board, we have other issues to deal with. I am still waiting to see when Treasury Board will adopt a code of professional conduct for ATIP officers and senior officials. My office proposed a version two years ago and the Board has been silent since. And too, I am waiting for the Board to revise the statistical reporting forms which institutions complete each year. As I mentioned earlier, the current statistical protocol does not assist the Board in diagnosing problems in the access system and prescribing remedies. That, after all, is the statutory responsibility of the designated minister and my office is forced to play the role by default. The current statistical information is not sufficient to permit a Deputy Head to make intelligent management decisions on ATIP matters. Until TB reviews this important management tool, they will continue to make it more difficult for Deputy Heads to manage effectively their ATIP units.
Perhaps most important, I am waiting for the Board to put together a comprehensive access training program for ATIP officers and other officials. And, I am hoping the Board will show in tangible ways that it is the protector and champion of ATIP coordinators. Those tangible ways include :
- interceding with senior management of departments to ensure that ATIP functions are appropriately resourced;
- setting appropriate classification benchmarks for ATIP coordinators. In the major departments they must be brought into the executive ranks;
- interceding with DMs and senior managers who are hostile to the notion of access so that ATIP coordinators are not left alone to work in an environment which devalues their role and efforts.
My remarks have gone on far too long, but I have only rare occasions to speak to this community and I feel I owe it to you to share my thoughts on the issues we face collectively as a community of access professionals.
Thank you for your patient attention.