Presentation by Commissioner Legault to the ATIP Practitioners’ Meeting

September 26, 2013

30th Anniversary

30th Anniversary

  • On July 1st, we celebrated the 30th anniversary of the Act;
  • This anniversary is a source of pride;
  • It bears reminding that Access to information
    • is a fundamental right of citizens and a tenet of democracy;
    • is a key tool for citizens’ engagement with the public policy process;
    • ensures greater accountability of those who govern us;
  • This time offers great opportunity to take stock of the last 30 years:
    • What have we accomplished?
    • What is the current state of access to information?
    • What are the key issues that needs to be addressed?
    • What is left to be done?

Accomplishments

  • The enactment of the Act irreversibly changed the relationship between the state and its citizen;
  • The Act created the right of citizens to access government information. Given its importance, this right was recognized as “quasi-constitutional”;
  • The Act imposed a duty on government to process requests in a timely, responsible and complete fashion;
  • The development of an ATIP Community including practical experience and judicial guidance;
  • Not a day goes by without having news stories resulting from access to information requests;
  • The number of requests increases every year. Individuals are using the Act more often;

Current state

  • Major challenges: the changing nature of information and changes in government management and administration:
    • Explosion in the volume of information;
    • Nature of information: from paper-based to electronic;
    • Advent of the emails, smart phones and text-based messaging;
    • Record keeping did not keep up with these changes;
    • Network government;
    • Centralization of control of policy at the political level;
    • Special operating agencies;
  • Changing expectations of Canadians:
    • Increased transparency and accountability;
    • Coverage of all democratic institutions;
    • Open Government
  • Constant erosion of the right of access:
    • Supreme Court of Canada ruled that ministers’ offices are not part of the government institutions for which they are responsible;
    • TBS Implementation Report adds additional criteria that will further restrict access to records contained in ministers’ offices;
    • Significant increase in the number of restrictions contained in Schedule II to override the ATIA;
    • Negative impacts on disclosure of exemptions and exclusions introduced in 2006 with the Federal Accountability Act;
  • A year ago, mild optimism about improvements by federal institutions in complying with the Act;
  • In a short period of time, however, we are seeing evident signs of deterioration in the federal access system;
  • This has resulted in an increase in complaints to my office:
    • The number of administrative complaints in 12-13 increased by 42% after 3 years of downward trend;
    • In the first 5 months of this year, our complaints are up by 35% by comparison to the same time last year;
    • Significant increase in the number of administrative complaints, complaints related to national security and “no records/incomplete response” complaints.

Our investigations 

  • What we see in our investigations:
    • Lengthy time to respond, lengthy time extensions and impact of budgetary cutbacks;
    • Several complaints in which institutions failed to meet or refused to agree to commitment dates;
    • Exemption/exclusion:
      • Exemptions applied broadly;
      • Some institutions simply do not retrieve the records before claiming they are excluded/exempted;
  • Failure to meet the duty to assist;

Addressing key issues

  • We are working to facilitate the investigation process by making it clearer and more predictable:
    • Advisory notice on s. 9(1)c) consultations;
    • Advisory notice on missing records complaints;
    • Following the progress of files more closely;
  • We are addressing specific problems in the context of individual files;
  • We have ongoing communications with institutional officials, from the deputy minister to the access to information coordinator;
  • We initiated a series of semi-annual meetings with coordinators (2nd meeting scheduled for October 30, 2013). We will also consult with complainants;
  • 2012-2013 Annual Report will be tabled when Parliament resumes its activities in October;
  • Some important investigations will be completed and reported to Parliament this fall:
    • Investigation into text-based messaging (pin-to-pin);
    • Investigation into political interference at PWGSC;
  • Special report on the modernization of the Act will be tabled in late fall;

Best Practices to turn things around

  • Leadership is required by heads of federal institutions:
    • Giving clear direction to the ATIP team in respecting the intent and spirit of the Act;
    • Responding on time and maximizing disclosure;
    • Allocating sufficient resources to the ATIP units;
    • Empowering analysts to make certain judgement calls (e.g. fee waiver);
    • Keeping apprised of the progress of requests and complaints;
    • Designating an official at ADM level to interact with the Assistant Commissioner about complaints;
    • Sending clear message to collaborate with our Office. We resolve 98% of complaints without going to Court.

Looking to the future

  • After 30 years, continued lack of awareness about the Act;
  • Access to Information is a fundamental right of Canadians. It is critical to the functioning of democracy and our democratic institutions;
  • Recommendations to Parliament on the modernization of the Act. Some recommendations will be about:
    • Expanded coverage e.g. to bring Parliament, Courts and ministers’ offices under the Act;
    • More effective independent oversight including order-making power;
    • Stronger incentives in the Act to ensure timeliness and disclosure;
    • Regular statutory reviews of the Act.

Conclusion

  • The right to know should not be confined to a special day or week. It is a right that must be observed and respected year-round;
  • It is not enough for government institutions to say that they are doing their best. Canadians have a quasi-constitutional right to access government information. The government has to ensure that it is abiding by its legal obligations under the Act and does what is required;
  • We all have a role to play in the creation of a virtuous cycle of information and in upholding the fundamental tenets of the Act.