Follow up letter to ETHI Chair
February 3, 2015
Mr. Pat Martin, M.P.
Chair, Standing Committee on
Access to Information, Privacy and Ethics
House of Commons
Ottawa ON K1A 0A6
Dear Mr. Martin:
I would like to thank the Committee for inviting me to appear on December 4, 2014, to discuss the important issue of the general operating budget of the Office of the Information Commissioner.
During my appearance, there were three specific items that committee members asked me to follow up on:
Information on fees to make and process access to information requests in other jurisdictions
As stated during my appearance, I do not support the charging of fees. Based on my experience, they add complexity to the administration of the Access to Information Act (the Act) and are not effective as a cost-recovery mechanism. There is no explicit provision in the Act detailing the rationale for the application of fees. Based on my experience, they have been used inappropriately as a barrier to access.
In Annex A, you will find our benchmarking report. As you will see, fees vary significantly between jurisdictions. In Canada, only the province of British Columbia has a two-tiered fee regime, where applicants are divided into commercial applicants and applicants other than commercial. Many jurisdictions do not charge an application fee or limit it to $5. In 2011, New Brunswick abolished all fees related to access requests.
It may be of interest to the Committee to review a study commissioned by the Treasury Board Secretariat in 1996 entitled, Review of the Costs Associated with the Administration of the ATIP Legislation - Number 7. This report presents the results of a review of the costs associated with the administration of the Access to Information Act and the Privacy Act, an analysis of the fee schedule to assess the appropriateness of recoverable and non-recoverable costs, and a review of the approach used to prescribe fees. The report includes summary suggestions to improve the ability to recover costs and to reduce the costs of administration. The report is available electronically at http://www.tbs-sct.gc.ca/pubs_pol/dcgpubs/manbetseries/vol7toctb-eng.asp.
In 2000, the Treasury Board Secretariat commissioned a follow-up report. The report included an examination of the fee schedule and an assessment of its adequacy, and a review of the approach used to prescribe fees and identify alternatives which would make it easier to maintain the fee schedule. The report briefly addressed the issue of differential fees. This report entitled, Review of the Costs Associated with Administering Access to Information and Privacy (ATIP) Legislation is available online at: http://www.tbs-sct.gc.ca/pubs_pol/gospubs/tbm_121/atip01-eng.asp.
I would also like to bring to your attention that, as part of the G8 Open Data Charter, Canada adopted an Action Plan in which it committed to “Review user fees being charged for accessing Government of Canada data, and work with departments to eliminate these fees where they still exist” by December 2015. http://open.canada.ca/en/g8-open-data-charter-canadas-action-plan.
Statistics on the number of complaints to my office for Cabinet confidences
The Act does not apply to confidences of the Queens’ Privy Council for Canada. Therefore, when an institution claims that a record contains Cabinet confidences and a complaint is made to my office, I have no power to require the institution to provide the records over which the confidence is claimed. I am therefore limited to verifying a list or a schedule of records provided by the institution. In Annex B, you will find a chart broken down by fiscal year with the percentage of Cabinet confidence exclusion complaints closed by disposition category between April 1, 2009 and November 30, 2014. As you will see, although I do not get to see the records, some of these complaints are well-founded.
It is important to note that, based on my investigations, I know of situations where applicants specify in their access requests not to include information that could be considered a Cabinet confidence, or of applicants narrowing their request to exclude such information. I am also aware that some requesters do not complain to my office about such information because of my inability to review the records. These situations would not be captured in statistics.
The number of access to information requests that are made by businesses to Industry Canada, Natural Resources Canada, and the department of Finance
Attached in Annex C, you will find our compilation of the sources of requests based on the 2013-2014 annual reports on the administration of the Access to Information Act of the institutions that receive the most requests and/or complaints across the federal government. The compilation highlights Industry Canada, Natural Resources Canada and the Department of Finance Canada. For all three institutions, most requests are not made by businesses.
Please note that the issue of fees, and that of cabinet confidences will be addressed in my recommendations on modernizing the Act that I will be submitting to Parliament before the end of March 2015.
Please be advised that we have identified two errors in the numbers previously submitted to the Committee on our December 4th submission. The following changes were made to the table entitled “summary of performance 2012-13 and 2013-14, 27 institutions”, which can be found on page 3 of tab 4 of the submission:
- The number of requests received in 2013-14 for all the institutions that received less than 1,000 requests was reduced by one request (the error seems to be due to the manipulation of data on the Excel sheet);
- The proportion of requests for which all the information was disclosed in 2013-14 for Public Safety Canada was changed. The proportion is 6.83%, and not 14.01% as it was mentioned in the original submission.
You will find attached (Annex D), a copy of the modified table. We apologize for any inconvenience that these errors may have caused.
Should the committee require additional information, please do not hesitate to contact my office at 819-994-0002.
Information Commissioner of Canada
c.c.: Joann Garbig
Clerk, Standing Committee on Access to Information,
Privacy and Ethics