Remarks before the Canadian Access and Privacy Association

December 2, 2013
Ottawa, Ontario

Address by Nancy Bélanger
General Counsel

(Check against delivery)


I. Introduction

I am very happy to be with you today on behalf of the Information Commissioner of Canada.

The Commissioner, Suzanne Legault, sends her regrets, as she is unable to attend because of a rash of commitments.

I have to admit that I am somewhat pleased that the Commissioner could not attend….I joined the Office last July and this is my first speaking engagement on behalf of the Office; this gives me an opportunity to meet with all of you.

Before I go any further, I want to congratulate CAPA for having received the 2013 Grace-Pépin Access to Information Award. This is a very well deserving recognition of the work that you do. So Congratulations / Félicitations!

As you are all no doubt aware, in July of this year, we celebrated the 30th anniversary of the federal Access to Information Act.

In 1983, this was a very important event – Canada was a world leader in the field of access to information.

But, as Commissioner Legault noted in her remarks on the release of the Office’s Annual Report on October 17, 2013:

“In last year’s annual report, I provided a mild note of optimism … [T]hat optimism, I’m afraid, is no longer warranted. In fact, there are unmistakable signs of significant deterioration in the federal Access to Information system.”

Today, I would like to review a number of those “signs” which led the Commissioner to that conclusion.

I would also like to touch upon the positive steps our Office has been taking to reverse the trend and additional actions that we propose to take in the future.

In addition, as General Counsel, I would like to discuss a few of the cases and challenges we are facing in Legal Services.

II. Signs of a System in Crisis

Looking strictly at the numbers, we are seeing an ATIP system at the federal level that is falling further and further behind.

Overall complaints to our Office were up by nine per cent in 2012-13.

But administrative complaints – those dealing with delays – were up a staggering 42%.

Some specific cases cited in this year’s Annual Report illustrate the magnitude of the problem.

In one case, Transport Canada requested a 540-day extension.

However, we discovered that, within those 540 days, no steps were taken to initiate consultations until nearly one year after the request was received.

In another case, Parks Canada took 11 months to initiate any steps to respond to a request.

In a case involving the Correctional Service of Canada, not only did the institution never retrieve the requested records, but it actually got rid of them while our investigation was in progress.

Another case cited illustrates a newer problem, one that will arise as more and more government institutions share responsibility for services, and correspondingly for information.

The case involved the Canadian Border Services Agency and Citizenship and Immigration Canada who bounced a request back and forth between them, each saying that the other had control of the records.

A requester should not be disadvantaged because the government decides to reorganize or streamline operations.

The files and records of an organization should be treated with the same care and respect as its physical, financial and other assets, when a re-organization takes place.

Commissioner Legault was quite clear on the subject of government and departmental accountability at her October 17, 2013 press conference when she said:

… [P]eople who do not respect legal obligations in a quasi-constitutional status should actually have their performance reviewed negatively … [A] performing public service means a public service that respects its legal obligations.”

Strong words – but this is one of the few real powers that the Commissioner currently has – to sound the alarm and, hopefully, turn things around.

Perhaps the “grand-daddy” of all cases cited in the 2012-13 Annual Report involves the Department of National Defence which requested an extension of an incredible 1110 days for an access request.

On investigation, we found that the Department was claiming 880 days – over two years! – for consultations and 230 more for processing records.

Our Office found the extension to be totally unreasonable and initiated an action in the Federal Court – one of the other real powers that our Office has under the current legislation.

Disturbingly, the department released the requested information 26 days before it was to appear in Federal Court and almost six months before the date it had requested in its original extension.

III. Turning Things Around

Commissioner Legault has been quite careful not to assign blame or ulterior motives to any individuals or specific departments.

But she has met with the President of the Treasury Board (the Honourable Tony Clement), the Minister responsible for the administration of the Act, not only to express her concerns, but also to propose constructive actions on how the system can be turned around.

The Commissioner also met with the deputy ministers at their weekly breakfast, and meets regularly with access to information directors and coordinators to hear and understand how things are going in their respective institutions.

At a press conference last October, the Commissioner identified a number of pragmatic solutions for reviving the federal access to information regime.

A. Sharpening the Focus

Although there are over 250 institutions covered by the Act, the Commissioner is suggesting that a clear focus be placed on the top 20 institutions who receive the bulk of requests and generate the most complaints – like the Canada Revenue Agency, the RCMP, and Citizenship and Immigration Canada.

B. Creating an ATIP SWAT Team

The Commissioner is also suggesting that the government set up a special unit at the Treasury Board – like a SWAT team – to deal with unusual surges in access requests because of special circumstances or events.

One recent event is the tragic derailment and loss of life at Lac Megantic.

There is especially high public interest in the details of policies and operations that led to this disaster.

Transport Canada, already hampered by a lack of resources to deal with access requests, has asked for a one-year extension to deal with the matters related to this tragedy.

A term of trained ATIP professionals could be sent to the department to deal with the influx of requests and provide anxiously required information to the public.

C. Proactive Disclosure

Closely connected to this suggestion is the notion that institutions proactively disclose information concerning unusual occurrences – such as the situation in Lac Mégantic – in the spirit of an open government. This would reduce the number of access requests and save time, money and grief.

D. More ATIP Resources

As more people become familiar with the ATI process - a virtuous cycle develops where more information creates demand for even more information - there is a need to expand the resources dedicated to managing the ATI function in departments.

Access requests are becoming more and more complex with many more files, records and pages needing review. As the size of demand grows, so too must the supply of persons to do the work.

E. More Trained ATIP Professionals

In responding to the problem of capacity, it is also important to ensure that resources are professionally trained to deal with ATI matters – CAPA certainly understands this requirement and your sessions are important in expanding the knowledge and skills of ATI professionals.

The system simply needs more ATI professionals.

F. Enhanced OIC Investigations

One final suggestion from the Commissioner is to enhance our own internal investigation function.

Right now there are 41 persons in our investigations unit; the Commissioner would like to have ten more.

The management of investigations also has to be streamlined so that investigation results come out more quickly.

This would allow access requesters to seek redress sooner in the Federal Court, if they are not satisfied with the results of the investigations.

Quicker turnaround times for investigations would add additional discipline on the system where access requests have been denied.

These pragmatic solutions could materially affect the performance of the federal ATIP system in its current state.

But the world of information is constantly changing.

IV Emerging Issues

A. Instant Messaging/PIN to PIN

Just last week the Commissioner released her report on the risks to access to information created by the widespread use of instant messaging devices, like Blackberries.

There are currently 98,000 Blackberries in use in federal government institutions, and instant messages are automatically deleted, usually after 30 days.

One of the main problem areas lies in ministers’ offices – a subject that has already arisen in another important legal case.

Unfortunately, new Treasury Board policy makes it even more difficult to access information that is department-related in ministers’ offices – there has to be reasonable grounds to believe, based on credible evidence, that requested information exists in ministers’ offices.

The possibility that an instant message would still be around once all other departmental records had been searched would seem to be remote.

This year, our Office has seen a 34% increase in the number of complaints where “no records exist”.

Without an explicit “duty to record”, there is a risk that more and more information will disappear into a “black hole”, outside the reach of current ATI legislation and practices.

One suggestion from our Office to curb this disappearance of information is for Treasury Board to develop and implement a government-wide policy to disable instant messaging on all government-issued wireless devices with very few exceptions.

Commissioner Legault has already pointed out strongly that the reasons for having so many instant messaging devices are shallow when compared to the public interest costs of lost or non-existent information.

B. CURRENT LITIGATION FILES

Fees for ATIP Requests

The fees for making an ATIP request continue to raise questions, legal and otherwise.

Our Office is currently in Federal Court on the issue of whether electronic records should be considered non-computerized records for the purpose of the search and preparation fees authorized by subsection 11(2) of the Access to Information Act and subsection 7(2) of the Regulations.

In a case involving HRSDC, the Commissioner recommended that the department cease charging fees for the search and preparation of electronic records.

I will not go further into the details of the case today, but, of interest, is the fact that this is the first time that our Office is using a reference procedure under Section 18.3(1) of the Federal Courts Act.

Why? Because the Commissioner is of the view that this is a means by which she can refer, as part of an investigation, a question of law to the Federal Court for hearing and judgment.

The Department of Justice, however, on behalf of HRSDC, filed a motion to strike this Reference claiming that it was an abuse of process and that effectively the Commissioner could not use a Reference to obtain an ‘opinion’ by the Court since her investigation was in fact complete.

The OIC vigorously objected to these claims in court, arguing that the Commissioner was legally within her right to bring a Reference and that she had acted reasonably in doing so.

This motion was heard on November 21, 2013, so we await a determination with great interest.

Unreasonable delay and dealing with a motion to dismiss

Another legal matter that we are dealing with is the fallout from the DND case I mentioned earlier (the 1110 days). The question is whether an unreasonable delay constitutes a deemed refusal.

When DND did release the documents, shortly before the hearing date in October, the Department of Justice brought a motion seeking to dismiss the Commissioner’s s.42 application because it argued that the issue was now moot.

In its oral argument, DOJ claimed that although at the time of our filing the application in Court, the investigation was complete, we should have asked for a Reference, (rather than a s.42 application), to resolve this matter. Again, the Commissioner argued that she was acting within her proper statutory authority in bringing this application.

This motion to dismiss was filed at a time when we already had a hearing date set for the substantive part of the file. So in October, the Court heard both the motion to dismiss as well as the substantive matter of the case, on its merits, to determine whether an unreasonable delay constitutes a deemed refusal.

We are awaiting a decision on this file.

V. The Need to Modernize the Act

These and many other disputes demonstrate the need to modernize an act that has remained virtually unchanged for 30 years.

The Office of the Commissioner has undertaken a large-scale consultation in search of ideas for reform.

The Commissioner plans to issue her recommendations early in the new year.

I have no intention of “scooping” the Commissioner, but she has already indicated publically the kinds of recommendations she is considering.

  • First, order-making power for the Information Commissioner of Canada. Right now, as I have indicated, she can only influence departmental decisions on disclosure through discussion or by referring the matter to the Federal Court.
  • Second, stronger incentives or penalties in the Act to ensure timeliness of disclosure.
  • Third, a review of current exemptions in the Act with a view to increased disclosure.
  • Fourth, making the duty to record more active – especially in light of the new technologies.
  • Fifth, the whole area of Cabinet confidences needs to be revisited.
  • Sixth, and this is particularly timely in light of recent events, extension of the Act to cover Parliament (both the House of Commons and Senate), ministers’ offices, and courts administration.
    I should point out that this idea has been put forward by a number of Commissioners, long before the Senate scandals attracted national attention. But, I daresay, most Canadians probably thought the Senate and the House of Commons were already covered by the Act – not so.
  • Seventh, there should be mandatory, periodic reviews of the Act – there is too much going on in the world of information to have a static Act and the public needs to be consulted on its attitudes and values with respect to government-held information.
  • Finally, the Office of the Information Commissioner should have an education mandate, especially for the public. I have already referred to the benefits of creating a “virtuous cycle”.

VII Conclusion

Access to information is the law of the land.

Information is the lifeblood of a country.

Our job is to ensure that the access to information system is restored to good health.

We need solutions that are both legal and practical in order to create and nurture a culture of openness and disclosure in Canada.

Anything less is a disservice to our citizens.

Thank you / Merci