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Appearances before Parliamentary Committees
Speaking notes for Suzanne Legault
Interim Information Commissioner of Canada
Standing Committee on Access to Information, Privacy and Ethics (ETHI)
April 15, 2010
CHECK AGAINST DELIVERY
Thank you Mr. Chairman. I am pleased to discuss with you in greater detail this year’s Special Report, which provides an assessment of delays and examines federal institution’s compliance with the Access to Information Act.
The purpose of the report cards is not to chastise institutions. This process is a tool at my disposal to effect greater compliance with the requirements of the Act. It allows me to see compliance issues in their full context, and to recommend meaningful solutions.
This year’s report confirms and substantiates our diagnosis from last year. Although timeliness is the cornerstone of the Act, chronic delays continue to be its Achilles’ heel. In 2008-2009, only 57% of all requests received across the federal government were responded to within 30 days. Almost half of the complaints my office received in 2008-2009 dealt with delays and 3 out of 4 complaints completed with a finding were resolved with merit.
Clearly, this is not what the legislators had envisioned when they established 30 days as the appropriate length of time to respond to a request. It is now imperative to tackle this issue head-on. This is why the Three-Year Plan I announced last summer focuses on assessing the root causes of delays so that solutions can be found. This year’s report cards are the first step under this plan.
To obtain a sound, fact-based assessment, I expanded this year’s sample from 10 to 24 institutions. These 24 institutions received 88% of all access requests. The assessment therefore provides a reliable picture of the overall situation. We rated the institutions globally: we assessed not only their statistical compliance with statutory timelines, but also looked at practices and policies that impact on their performance.
For individual institutions, I have made recommendations that are tailored to their unique situations and challenges. In addition, I am making recommendations to the Treasury Board Secretariat (TBS) as the central agency responsible for the administration of the Act.
With the evidence collected during the process, we have confirmed the continued presence of system-wide issues we identified last year. These include: lack of leadership, inappropriate use of time extensions, time-consuming consultations, insufficient resources and deficiencies in records management. We have also discovered that flawed or ill-enforced delegation orders within institutions constitute another significant obstacle to timely access to information.
A leading cause of delay is the extensive or inappropriate use of time extensions. In fact, institutions’ use of time extensions account for 31 percent of complaints to my Office.
I also want to emphasize that frequent and lengthy consultations between institutions represent a major problem. Federal institutions often consult other institutions before determining whether to exempt, exclude or disclose information. The time needed to complete the consultation then also depends on the efficiency and the goodwill of the institution being consulted. Yet only the consulting institution is responsible under the Act for completing the request within the statutory timelines.
The situation is even worse when government policy requires consultations that are far more extensive than those stipulated by law. For some institutions such as Foreign Affairs and International Trade, the Department of Justice and the Canadian Security Intelligence Service, these mandatory consultations represent more than half of their workload.
Although a persistent issue, there is little known about the impact of these mandatory consultations because there are no statistics or no studies available to assess their impact. I am concerned that this lack of data fails to assign responsibility where it belongs.
Despite previous warnings and recommendations, our findings show that little progress has been achieved to remedy delays across the system. Of the 24 institutions assessed this year, 13 performed below average or worse. These poor performers accounted for 27% of all the access requests made to the federal government in 2008-2009 (45% if not counting the large share of requests sent to Citizenship and Immigration, which are mostly privacy-related).
We used three indicators which taken together expose different facets of timeliness.
In terms of deemed refusals, 9 institutions present rates ranging from 20 to 60 percent.
The second indicator used is the average time required to complete requests. The average figure varies significantly between institutions from 34 days for Citizenship and Immigration to 163 days for Foreign Affairs and International Trade. Seventeen of the 24 institutions completed their requests in 60 days or more. In addition, we looked at the number of requests responded to after statutory deadlines expired. We found that 27 percent of overdue requests took more than 60 days to close.
Mr. Chairman, there is a silver lining in this year’s special report. Two institutions, Citizenship and Immigration and the Department of Justice achieved an outstanding score due to senior management’s ongoing support for a compliance-prone culture. Since last year’s assessment, we also witnessed some very impressive results at the Canada Border Services Agency, the Royal Canadian Mounted Police and Public Works and Government Services. These institutions have adopted a strategic approach to their access to information programs and, therefore, have substantially improved service delivery to Canadians.
This is proof that the system is not irrevocably broken, as we so often hear. We need to look more closely at the challenges that impede the performance of the institutions that did not perform well.
I also believe that Treasury Board Secretariat must establish strong standards to guide institutions and collect more detailed statistics to adequately monitor and measure institutional compliance. These measures are crucial to strengthen institutions’ accountability pending legislative reform.
I would like to acknowledge the collaboration from the subject institutions, and particularly from the access coordinators and their staff in this process. This community represents a unique culture within government, as their mandate is transparency amid an environment that tends to be risk averse.
Before closing, Mr. Chairman, I’d like to clarify my Office’s activities in relation to recent allegations of political interference. As I announced on March 2, my Office is conducting three priority investigations into complaints we received over specific allegations of political interference with requests made under the Access to Information Act. It is my hope that these investigations will be completed promptly.
In addition to these investigations, my Office will undertake a systemic investigation into delays and time extensions, as announced in the three-year plan published last July. The scope and focus of the systemic investigation will be expanded to examine whether political interference in the processing of access requests is a cause of delay or unduly restricts disclosure under the Act. I hope to complete that investigation within eighteen months.
I would be pleased to answer your questions.