CAPA Meeting


        

Keynote address by Information Commissioner Suzanne Legault, Canadian Access and Privacy Association (CAPA)

December 3, 2012

Check against delivery

Introduction

Thank you very much for your invitation and your kind introduction. It has been two years since I was last here and it is good to see that CAPA is still going strong.

Around 1860, Abraham Lincoln succinctly expressed his commitment to open and transparent government. He said:

"Let the people know the facts, and the country will be safe."

A simple but profound statement. And an inspiring and appropriate starting point for my presentation today.

Traditionally, the importance of open government has been tied to citizens' ability to exercise their democratic rights and hold the government accountable. However, I would say that in 2012, open government addresses several other issues.

In the information age and in the context of globalization, our participation in the knowledge economy increasingly impacts our competitiveness, so that government information becomes a national resource.

At this time of reduction in the size of governments, greater need for efficiency, and need to address major social issues, sharing government information has the potential to generate efficiencies in program and service delivery, and to stimulate debate on the great political issues such as health and the environment.

Add to this citizens' amazing capacity to use and reuse this government information, and we see before us ever-increasing pressure in terms of the supply of, and demand for, government information.

As Alasdair Roberts recently said:

“…real transparency is the best way to assure that the public understands the hard choices that governments are being compelled to make during this economic crisis.”

In short, Canadians want and expect more transparency in government, not less.

It is in this context that I developed – together with my team – my vision for the access to information regime in Canada.

That vision is for Canadians to benefit from a leading edge access to information regime that values public sector information as a national resource, that is recognized for its state of the art legislative framework, and that upholds information rights to ensure government transparency, accountability and citizen engagement.

To give expression to this vision our work and our priorities are structured in our Strategic Plan which has three overarching objectives:

  1. A leading access to information regime
  2. An exemplary service to Canadians and
  3. An exceptional workplace.

I will address these in turn and highlight aspects which may have an impact on your work, but first let me review some of the changes made to the OIC structure this year.

I have streamlined our operations with only three direct reports. The General Counsel, the Director General of corporate services and the Assistant Commissioner. Allison Knight has been acting as General Counsel, Layla Michaud has been named permanently in the position of DG of Corporate services and, as you probably know, Assistant Commissioner Emily McCarthy was appointed permanently in October.

The Assistant Commissioner is now responsible for all of our investigative work including individual complaints, report cards and systemic investigations. Our legal group has been strengthened with a view to conducting more of our work in federal court using in-house litigation capacity. Budget cuts have affected my office significantly but so far, we have managed to shield our number of investigative staff from any cuts. However, our number of chiefs in investigations was reduced from 7 to 4.

A Leading Access to Information Regime

In achieving our objective of a leading access to information regime, our immediate focus is on reversing the declining trends in timeliness of responses and on maximizing disclosure.

Many of you have heard me say this before but it bears repeating again and again. The last ten years have seen a significant decline in performance in the access to information regime at the federal level.

In 2002-2003, institutions responded to 69% of all access to information requests in 30 days or less. In 2010-2011, only 56.9% were within the 30 day timeframe. In 1999-2000, 41% of requests resulted in full disclosure compared to 19.6% in 2010-2011.

There has been however, a statistically relevant, albeit modest, improvement in the last year on both performance measures, for the first time in ten years. There was a .8% increase in the requests responded to within 30 days and an increase in the number of requests where all the information is disclosed – from 15.69% to 19.60%. This is more significant than it seems given that the total number of requests overall increased more last year than in previous.

This improvement in performance can be in part explained by the reduction in the use of the exemption in section 15 dealing with international affairs and defence.

This modest improvement is also linked to the successful implementation of our report card recommendations, both by Treasury Board and by institutions, and greater parliamentary scrutiny. Indeed, in the most recent Special Report, that was tabled in May 2012, thirteen of the eighteen at-risk institutions from the 2008-2009 exercise, had clearly improved their performance.

The improvements can be attributed to strong leadership at the senior management level resulting in a general will within the organization to improve performance, as well as stronger compliance oversight and training, and the dedication of access professionals in responding to requesters.

On December 6, I will present to Parliament the closing chapter of the three-year cycle in the form of a follow-up report on the two institutions that did not receive a passing grade in 2009-2010: the Canada Post Corporation and Canadian Broadcasting Corporation.

In an effort to reduce the burden on institutions I have recommended that institutions that were the subject of report cards provide an update on the implementation of my recommendations in their annual report to Parliament. Indeed, this may come as a surprise, but I actually read these annual reports.

I will hence follow the progress of the system overall through the updates in the annual reports, the more detailed statistics that Treasury Board will produce following our previous recommendations and through our complaints inventory.

Given this, I have suspended the Report card exercise until 2014.

However, improvements are not uniform across the federal government and it will be a challenge to sustain this fragile momentum. The health of the access to information system remains vulnerable – a situation compounded by the most recent round of budget cuts, the impacts of which have yet to be fully felt. We have, however, started to see alarming signs of resource strains in some ATIP offices, which are already impacting negatively requesters and are resulting in an increase in complaints to my office.

Should institutions not report their progress in their annual report, or should issues of concern start to escalate, I will not hesitate to bring them to Parliament’s notice and, when appropriate, take action, including the reinstatement of the report cards.

To address other system wide issues we are also continuing our systemic investigations into allegations of interference, on the issue of delays resulting from consultations and on the impact of pin-to pin communications’ on requesters’ rights. We plan to conclude these investigations this fiscal year.

Open Dialogue on Modernizing the Act

Another key initiative of the OIC this year in working towards a leading access to information regime is the Open Dialogue initiative on Modernizing the Access to Information Act.

2013 will mark the 30th anniversary of the coming into force of the Access to Information Act and the creation of the OIC.

The Act, at the time of its Royal Assent, was characterized as ‘groundbreaking’. Canada was one of a handful of countries to enact freedom of information legislation. It was also among the first to do so in a Westminster style of parliamentary democracy. The legislation passed with great promise.

The Honourable Francis Fox, the sponsor of the bill at the time, said that the Act will make changes in our parliamentary institutions, changes that will have long term consequences for our democracy. History has proven him right. Not one day passes without a myriad of newspaper articles premised on the now consecrated words: ‘According to information released under the Access to Information Act….’

However, over the last three decades, many reports, including those of my predecessors, have documented a number of weaknesses in the Act. These weaknesses have remained unaddressed by legislative reform.

It is not surprising that the Act would be in need of an update. After all, the 1980s saw the advent of the first mass production and marketing of the personal computer. The Commodore 64. In 2013, the Economist predicts that the number of internet connected mobile devices, such as smartphones and table computers will exceed the number of desktop and laptop personal computer users. The world in which the Access to Information Act operates has changed. Canada is no longer the leader it once was.

Noting that the Centre for Law and Democracy’s Right to Information Index ranks Canada in 55th position out of 92 countries, the Centre observed:

Canada ’s Access to Information Act, while cutting edge in 1983, has not been significantly updated since then, and reflects outdated norms. Canada’s lax timelines, imposition of access fees, lack of proper public interest override, and blanket exemptions for certain political offices all contravene international standards for the right of access.

Indeed,all Information Commissioners across Canada recommended recently that the federal government conduct a comprehensive review of the federal access act with the goal of modernising it and re-establishing Canada’s leadership position.

In order to provide informed and objective advice to Parliament about Canada’s access to information regime, my Office initiated an open dialogue on the modernization of the Access to Information Act. The dialogue was launched as part of the Right to Know Day celebrations, on September 28 th of this year.

Our open dialogue will run until December 21, 2012. The submissions are posted on our website.

As you reflect on your submissions to this process let me share with you some of Alasdair Roberts’ thoughts on the matter:

‘Today it is possible to approach the subject of reforming the Access to Information Act with more confidence. We are advantaged by decades of experience with the actual operation of right to information laws – not only in Canada, but in many other countries. There is a world of experience to be drawn upon while updating the Access to Information Act, and no good reason why it should not be done with boldness.’

I plan to report back to Parliament on the results of the dialogue in the Fall of 2013.

Exemplary service delivery to Canadians

In achieving our objective of providing exemplary service to Canadians, our immediate focus is to conduct efficient, effective and confidential investigations.

At the beginning of this fiscal year, we had 1823 complaints in our inventory.

As you might expect, we are constantly looking at ways to streamline processes to reduce the inventory of complaints and maximize the disclosure of information. We have been making progress: since April 1, 2008, we have closed more than 7,400 complaints and reduced our inventory by 21 percent over that time.

Here are some of the challenges we face in our investigations.

Composition of inventory

Our over-arching challenge is linked to the make-up of our complaints inventory which has been changing. Just five years ago, refusals accounted for only half of complaints. In 2011-2012, 67% of all complaints registered by the OIC were refusal complaints. This is a good trend as it means that access professionals in institutions are doing a better job at the front end. However, this means that our caseload is now almost exclusively composed of complex files.

Status of Longstanding Complaints

We have been working diligently to complete the longstanding complaints that had accumulated at the Office over the years. We have very few left that date back to before 2008. As you can see from this table, most of our complaints are with the CBC, CRA or are Special Delegation complaints. Indeed these three groups of cases represent about half of our case load.

The large proportion of refusal cases, particularly those involving issues of national security and international affairs - also known as “special delegation” cases- indicate the complexity of our caseload.

These challenges have required more sophisticated approaches as well as an increase in the formality of our investigative process.

Last year, Emily McCarthy talked to you about the pilot project to address these national security complaints so I won’t get into it in great details. As well, we published an Advisory Notice concerning this process on our website.

But I will remind you that the goals of this approach are two-fold:

  • to investigate special delegation files efficiently and effectively in a consistent manner, in accordance with jurisprudence, that promotes access to information where disclosure would not injure the public interest; and,
  • to create an environment of open dialogue between the OIC and government institutions that promotes the timely resolution of complaints.

Currently, we have 375 files in our special delegation inventory or approximately 20% of our overall inventory. Most involve consultations with at least one and sometimes several government institutions or international entities which have an interest in the records subject to the complaint.

The positive news is that this initiative has borne fruit: we closed 99 special delegation complaints last year and to date this year, we are on target to close approximately 150.

Timeliness of institutions’ responses to investigations

Although I recognize that many ATIP offices are under great pressures and working at close to maximum capacity, it is crucial that our investigative inquiries be responded to in a timely manner. The Act provides a right to complain to the OIC; responding to our investigations must be considered part of ATIP professionals’ core business. It is essential to the spirit of the Act and the obligations we all share to protect requesters’ rights.

As was stated by Mr. Justice Noel in the Bronskill case:

“ Suffice it to say that the Information Commissioner’s mandate is one that should be taken with the utmost vigour and energy. In keeping with the principle of independent review in the Act, it is clear that the Commissioner has a determinative role to play… and a thorough and independent review must be undertaken with a critical mind, in keeping with the legislative objectives at play.”

While we attempt to work in a cooperative manner with institutions, where we do not receive timely or sufficient responses, we will increase the formality of our investigative process (by issuing sections 35 and 37 letters more quickly). I must also point out that any request for an extension of time beyond 30 days to provide a response to our office must now be approved by the Assistant Commissioner.

To counter-balance this increased emphasis on timeliness and completeness, my office will undertake to ensure that our inquiries and analyses are more thorough at the outset of the process. To this end we are working on increasing the level of training provided to our investigative staff as well as standardizing investigative tools.

Turnaround time

This increased discipline in our investigative process is already showing signs of success. Our median turnaround time is improving for all types of complaints, which means that we are getting to a more contemporary inventory.

Our target is to close 85% of administrative complaints within 90 days. We are making in-roads. So far, we are at 49%. Sixty-five percent are closed within 120 days.

We have also established a more effective Early Resolution unit and are identifying files that could be closed rapidly (due to low number of pages or complexity) and ensuring that they are dealt with rapidly. To date this year, three investigators have closed 185 early refusal files.

Our overall turnaround median time, stands at 234 days, which is a little over 7 months.

I would like to take this opportunity to thank all of the coordinators and access professionals who have embraced our streamlined approach to investigations. Without your co-operation, we would not be able to work effectively as an ombudsoffice. Working together, we can better limit the impact of our investigations on your workload and increase the timeliness of our investigative process while ensuring that the rights of requesters are protected. That is a goal we have in common and it is an excellent starting point for collaboration.

Other issues of interest

We are also undertaking more direct contacts with the Coordinators of institutions against which we receive the most complaints. We will do the same with our top complainants in the New Year. We hope to have these meetings on a quarterly basis.

In terms of other issues of interest to you, we are finalizing an advisory notice on the process for consulting third parties pursuant subsection 9(1)c). We will consult Coordinators for their views on our document.

You may also want to take note that House of Commons Standing Committee on Procedure and House Affairs, is looking into how parliamentary privilege intersects with the Access to Information Act.

I have been following the Committee’s deliberation and some interesting and practical issues have surfaced.

For example, as per the testimony of a representative of the House of Commons, it appears that there is a practice of acceding to the representations of the House of Commons not to release information on the basis of parliamentary privilege.

I wrote a letter to the Committee and appeared before it on November 22 to bring a number of issues to the attention of members.

My remarks before PROC are available on our Website.

I proposed to amend the Act to bring Parliament under the purview of the Act and to include a discretionary exemption for parliamentary privilege.

The Committee is continuing to study the issue and will report back to the House with recommendations.

An Exceptional Workplace

Finally, before I close my remarks and give you the opportunity to ask questions, I would be remiss not to talk about our third overarching objective, making the OIC an exceptional workplace.

As an employer, I am committed to building a workplace of choice, which will nurture and demonstrate the values of our organization: Excellence, Leadership, Integrity and Respect.

We are currently working at implementing a talent management programme while at the same time, staffing investigator positions at the PM-4 and PM-5 levels. Our investigator development program is continuing to train a number of investigators.

We are also exploring how we can establish an exchange program that would allow an analyst at the PM-4 level to work at the OIC and an investigator to work in that person’s institution. In my view, an opportunity to walk a mile in the other person’s shoes can do much to improve our mutual understanding.

Conclusion

Those of you that have previously heard me speak know how much I respect the leadership of access professionals and the indispensable role you play in fostering a culture of openness within public bodies.

You are the real front line leaders in access to information. It is your efforts that help ensure that the hard-won rights of citizens to government information isn’t simply an abstraction, but something tangible that produces real results for people on the ground and in their communities.

While I opened my presentation by citing an American President on the link between information and democracy, let me close by citing a former Canadian Prime Minister on the same subject.

Almost 40 years ago, in an appearance before the Standing Committee on Regulations and other Statutory Instruments, then-Prime Minister Pierre Elliot Trudeau famously observed:

“…the democratic process requires the availability of true and complete information. In this way, people can objectively evaluate the government’s policies. To act otherwise is to give way to despotic secrecy.”

Those words have as much resonance today, as they did then. And you should keep them in mind and remember that for all of its challenges and tribulations, our vocation is an exceptionally honourable one.

Through your individual and collective efforts, you are helping to build more accountable public institutions, a stronger democracy and a better Canada.

Thank you!