Canadian Access and Privacy Association Conference 2014

Speaking notes for Emily McCarthy, Assistant Commissioner

Ottawa, Ontario
December 8, 2014

Check against delivery


Introduction

Thank you for inviting me to join you today. It is a privilege for me to represent the Office of the Information Commissioner at this year’s CAPA meeting.

As members of an organization that has as its mission “to promote knowledge and understanding of access and privacy laws in Canada”, I know you are better attuned than most to the subtleties and nuances of language people like me tend to use when reporting on the state of Canada’s access to information regime.

As frontline practitioners, it is vitally important that you understand what we at the Office perceive as risks to the integrity and viability of Canada’s access to information system. What we see as jeopardizing our ability to fulfill our mandate…  Our ability to meet our obligations to Parliament and to Canadians.

It is important because that assessment of risk also informs the solutions we will be putting forward. And those solutions will have an impact on your day-to-day work. Accordingly, I expect many of you will want to play a role in helping shape them.

Last year in her remarks to CAPA my colleague, Nancy Bélanger, used the phrase “Signs of a System in Crisis” to describe the state of Canada’s access to information system. Suffice it to say; the picture she painted was not a pretty one…

Despite our efforts, and despite your efforts, we were falling further behind.

The Commissioner found that the system was increasingly fragile. And while we can point to some minor improvements this year, they are the exception, not the norm. We are still going backwards.

In my remarks today, I will bring you up to date on recent measures undertaken by the Commissioner to address this fragility from our perspective…  I will tell you which measures we have already implemented and which ones we plan to roll-out over the coming months- to make it easier for practitioners like you to support us in this goal.

I will also provide you with a broad update on the overall health of Canada’s access to information system. To use a medical analogy- the patient is in remission, but hovering somewhere between serious and critical condition. And so I will conclude my remarks by summarizing the Commissioner’s prescription for promoting a full recovery.

There is much to talk about and so let me begin by providing a big picture overview of the ongoing challenges we face, our strategies to overcome them and the opportunities to work more cooperatively together to produce better results for Canadians.

Big Picture

Our Office has seen a steady increase in the number of complaints received in recent years, including complaints about missing records.

Between 2011-12 and 2012-2013, overall complaints increased by 9 percent. Over that period, missing record complaints increased by 51 percent!  

Based on our annual report 2013-14, these numbers are still trending up with a 30 percent overall increase in complaints:

  • administrative complaints about delays, time extensions and fees grew by 54 percent;
  • Cabinet confidence refusal complaints jumped by 65 percent; and,
  • refusal complaints about the application of exemptions rose by 17 percent.

Now to be sure, these trends reflect an overall increase in the number of requests to institutions. While some organizations were able to adapt successfully to this growth, others had – and continue to have – difficulty meeting their basic obligations under the Act.

We get this. We understand the resources issue. Even though our workload at OIC rose by 30 percent last year, budget cuts have reduced our Office’s resources for resolving these complaints by roughly 11 percent since 2009.

As the Commissioner stated in our 2013-14 Departmental Performance Report:

“With the incoming complaints volume showing no sign of abating, and with no financial flexibility, it is increasingly difficult, if not impossible, to keep ahead of demand and respond to complainants in as timely a manner as possible.”

There is pressure on all of us to do better with less. But avoiding meeting the obligations of the Act is not an option.

Doing things differently

That is why the Commissioner is being proactive, tackling these issues head on…

One of the underpinnings of the Clerk’s “Destination 2020” initiative is strengthening individual and institutional resiliency.

The goal here isn’t simply to squeeze more and more work out of people; that approach is destined to fail.

Instead, it is about encouraging people and organizations to re-think how they work and why, what comes next and what needs to change to create a healthier and more sustainable workplace.

We are committed to strengthening the OIC’s resiliency and sustainability.

That is why we have initiated a two-track approach to delivering the results Canadians need while trying to live within our ever decreasing means – focusing both on process issues as well as the nuts and bolts of how we do business.

EI pilot

Let me start with the first of these innovations – an Early Mediation Intervention pilot project, which I know some of you have already experienced and benefitted from.

Since last June, prior to assignment of a complaint, senior investigators have been contacting complainants and institutions in a proactive effort to resolve or clarify refusal complaints, which account for the bulk of the complaints we review.

In some cases, this may mean helping complainants to identify more clearly the goal of their requests. In other instances, it provides complainants with a better understanding of the reasons for the refusal. In some instances, it is has resulted in institutions releasing information which was not properly withheld.

And in a best case scenario, the parties settle the complaint amicably at the outset of the process.

Of course, success requires a commitment to flexibility from both the complainant and the institution.

If this sounds Pollyanna-ish, consider this. Since we implemented the Early Intervention pilot, our success rate has been a staggering 75 percent. By success, I mean that a complaint has been settled, discontinued, amalgamated or narrowed sufficiently to be assigned immediately. This has far exceeded our initial goal of a 25 percent success rate.

This approach is as good for government institutions as it is for complainants.

Even if cases are not resolved, our pilot has allowed us to narrow down the scope of investigations in 13 percent of cases- reducing pressure on our investigators and institutions while better meeting the expectations of complainants.

For comparison’s sake, prior to the June pilot, that happened in less than 2 percent of cases…

Think about that for a moment. Think about what that means for your workload - and ours!  Narrowing the scope of complaints in 13 percent of cases versus 2 percent of cases!  

And if that wasn’t incentive enough, now consider this: in every instance since our June pilot where an investigation was narrowed, in most instances the case has already been assigned and, in many instances, completed.

Quicker resolution of issues means fewer ageing cases that get an airing eight to 10 months after the complaint was made. And quicker resolution means we can focus our scarce resources to where they are needed most.

Best of all, all of this builds Canadians’ confidence in the system.

I am not suggesting that this is a panacea for all the problems facing our office. But our mediation efforts are demonstrating that we can work more efficiently. And in the process, we are proving that it is possible to save time and resources while avoiding conflict that serves neither the public’s nor the government’s best interests.

Streamlining strategy

While early mediation is the first track we are pursuing, streamlined and more efficient administration processes for resolving refusal complaints is the second.

This approach will result in a more consistent and efficient processes with tighter timelines at each step along the way. Like everyone, we want a level access to information playing field across all departments and institutions that are subject to the Act—with clear rules, consistently applied.

Reducing overhead and doing better with less- because, frankly, we have less and you too have less- was a key motivation. But equally important, the Commissioner wanted to bring more rigour and consistency to the process.

We began by conducting a step-by-step analysis of how the current complaint process works, mapping out where the logjams are, where the system is duplicative, major areas for improvement and how to best tackle these issues.

We have found, and are eliminating, unnecessary re-work loops and duplication. We have consulted in-house to capture current best practices to support more effective management of a complaint’s progress.

We will be clarifying the responsibilities of all participants in the complaint process – complainants, institutions and investigators. And we will be developing a procedural manual, rules and training materials as well as standardized investigation and reporting tools to ensure they are consistently applied.

This, in turn, will make our Office and the complaint process more transparent and accountable. It will allow for consistent performance metrics that let us measure our performance and the causes of delay, be they internal, in institutions or external.

Our streamlining strategy is still a work in progress. It was presented to our investigative group last week. We will await their input before commencing external consultations. There will undoubtedly be growing pains as the initiative unfolds. But I can assure you that this will be an iterative process that involves close cooperation with institutions and complainants. We are committed to working with you to get it right.

We plan to pilot this in the New Year, working closely with complainants, the Treasury Board and front-line institutions.

Other Activities: Annual Report Cards

Now let me turn to other of the Commissioner’s activities and priorities.

A few weeks ago, the Commissioner published her observations on the health of the access to information system for 2012-2013. These observations were based on a review of the public information available in institutions’ annual report to Parliament and on the statistics set out in Info Source.

Although the Info Source Statistics are not available yet for 2013-14, we have looked at the annual reports of a number of institutions. The good news is, we have seen some improvement with respect to disclosure. The bad news is, we unfortunately cannot say the same with respect to timeliness. And, as we all know, falling behind in timeliness means more work for us and for you.

Our preliminary analysis shows that institutions’ performance remains fragile. Their success, or lack thereof, depends on factors such as a sudden increase in requests received or the lack of resources in the ATIP office.

No institution is immune to an increase in workload, a change in leadership, high staff turnover or budget cuts, all of which can impact access to information requirements. However, experience has shown that how institutions respond to these challenges affects compliance with their obligations under the Access to Information Act in future years.

Based on our past report card exercises, it has proven difficult for some institutions to reach or maintain strong compliance with the requirements of the Act. Without constant efforts and attention, it is clear that institutional performance, even among top performers, can slip.

This underscores the urgency to make progress on system streamlining and innovations like early mediation. Absent new resources – or new legislation – we all need to be able to deploy our resources as effectively and efficiently as possible to ensure Canadians’ access to information.

Cabinet confidences

Another area that poses particular access challenges for many – most especially the OIC – is the matter of Cabinet confidences, or Section 69 Reviews. In the last four years, the use of the exclusion found in section 69 has increased by 23 percent.

Our overarching concern is that the exclusion, by prohibiting our office from reviewing the records at issue in a complaint, removes effective oversight of decisions to withhold information, which is a basic tenet of the Act. This gives rise to, at the very least, a perception that the exclusion is being interpreted far more generously than it should be. Recent changes to documents setting out the content of memoranda to Cabinet appear to be circumscribing the amount of information that could fall within the “discussion paper” exception to the exclusion.

In July 2013, Treasury Board changed its policy on the review of Cabinet Confidences. Where previously the Privy Council Office (PCO) reviewed the application of section 69, it is now done by departmental legal service units.

Our Office has raised a number of concerns about this new process with Treasury Board, the Department of Justice and PCO. These concerns revolve around issues of consistency, oversight and the impact on the Commissioner’s investigative processes.

Treasury Board was responsive to our concerns and has indicated that it will work with PCO to provide effective training, it also updated the ATIP Manual to require that all institutions provide our office with information similar to that which was previously provided by PCO – the type of document, the date, the originator and the recipient as well as the number of pages. This allows us to conduct a cursory review and pose limited questions.

We continue to monitor issues relating to the change of process. To facilitate this we have decided to assign all new Cabinet confidence investigations to one investigator. The Commissioner will report on our observations in her Annual Report.

The broader issue of Cabinet confidences will be addressed on in the Commissioner’s upcoming report on the modernization of the Access to Information Act. It is no secret that she is of the view that the exclusion should become an exemption – similar to the regimes that exist in all other Canadian jurisdictions.

Digital technologies

Another critical issue of concern to the Commissioner is the challenge posed by the rapidly growing use of digital technologies to transmit government information – something that wasn’t envisioned when the legislation was written three decades ago.

According to Treasury Board Secretariat statistics on the administration of the Act, in 2012/13, more than 6,300 requesters were denied access to records on the basis that no records existed.

Consider the impact of smart phones on this statistic…

There are over 98,000 Blackberries issued to federal employees.

However, only two of the 11 institutions examined by the Commissioner for her 2013 special report had enabled automatic back-up storage for some or all of these messages.

The report revealed that a number of institutions use virtual messaging to transmit information of business value. She also found that the onus is left primarily on individuals to identify virtual messages that contain information of business value – an area where many fall short due to lack of time and training.

It is no coincidence that more than half of missing records complaints completed with finding in 2013-2014 were well founded.

There is an obvious, and urgent, need for consistent government-wide training to ensure public servants can identify information of business value. They need to be reminded off their responsibilities to appropriately manage the information they create and receive via emails and text-based messages.

Just as important, there needs to be effective monitoring of compliance with the various directives and policies related to information management. This would include ensuring employees are properly preserving information of business value in corporate repositories.

Interestingly, in the U.S. the Federal Archives Act stipulates that agencies must notify the Archivist whenever an unauthorized disposal or destruction of records occurs. We see this not infrequently in our investigations.

Another innovation being recommended for use in the US by the Archivist to manage e-mails is an automated tool called “Capstone.”

Capstone allows agencies to automatically capture from the accounts of designated officials, records that contain information of business value that should be preserved. Under Capstone, e-mails and other communications are then maintained for a set period of time based on the agency’s needs.

While not perfect, this reduces the burden of email management on the user and diminishes the risk of unauthorized destruction of key electronic messages by reversing the onus on the user to delete information that is not of business value.

As many of you know, the Commissioner has called for the legislative enactment of an enforceable duty to document.

In the same vein, she has recommended that new technologies should not be adopted until measures to preserve the right to access to information and address privacy concerns are in place.

New legislation

Obviously, the solution to many of these issues I’ve raised lies in updated legislation in step with the times and today’s technologies.

We welcome the Government of Canada’s Action Plan 2.0 for the Open Government Partnership initiative. However, as the Commissioner has stressed repeatedly, real improvement in the access system will only come from modernizing the Act – a long-overdue step that is crucial to advancing the cause of transparency and accountability in Canada.

The exemptions and exclusions regime found in the Act is overly broad and not subject to universal injury tests and public interest override.

Without a modern access law to base these parameters on, at best, the Government will achieve proactive disclosure of the information that it wants to disclose. But it will not achieve proactive disclosure of information that it ought to disclose to achieve its open government objectives.

The Commissioner has strongly urged Government to commit to modernizing the Access to Information Act, in line with the principle of “open by default” and the most progressive national and international standards.

Conclusion

The Government has made a commitment to access by default in its recent Open Government Directive.

To make this truly effective, we need legislative reform.

We also need a culture change within government.

A culture change is something we can all work towards. Something within our control.

So I encourage you to create a culture of openness and access to public information within your respective institutions. While you are best placed to determine how to do that, I’d like to leave you with some closing suggestions- which paraphrase Commissioner Legault’s prescription for ATI recovery and renewal:

First, government should focus on its use of technology and what is needed to ensure the right of access is protected. And how it can be leveraged to make access more effective.

Second, systems should be designed and built with access in mind, rather than addressing issues after the fact in an ad-hoc manner. An ounce of prevention is worth a pound of cure.

Third, coverage of the Act should include all manner of organizations that perform public services and receive public funding, such as public-private partnerships, subcontractors, shared services, and special operating agencies.

Fourth, there needs to be more training so that government employees understand their obligations under the Act and other policies that pertain to information management and the obligation to document decisions.

Fifth, monitoring and auditing needs to occur to ensure compliance with the Act and related policies, as well as consequences for non-compliance.

Sixth, a culture of transparency must be promoted from the top, by ministers and senior management who favour openness over secrecy.

And finally, we must all continue to raise awareness among Canadians as to their rights to an accountable government. Our democracy depends on it.

This is an ambitious agenda but, given what is at stake, that is not a bad thing.

Thank you.