1. Introduction

This report is submitted to Parliament by the Office of the Information Commissioner of Canada (OIC). It represents the first annual report of its kind for the OIC and as such this report details the activities of the institutional ATIP program for the period of 2007–2008, pursuant to section 72 of the Access to Information Act (ATIA).1

The purpose of the ATIA is to provide Canadians with a right of access to information under the control of a federal institution. The principles underlying the ATIA are that information held by federal institutions should be made available to the public, that necessary exceptions to the right of access should be specific and limited, and that any decisions on disclosure of information should be reviewed independently of government.2

The Information Commissioner of Canada is appointed under the ATIA to be the authority responsible for investigating complaints related to the disclosure of information under the Act. The Commissioner reviews the complaints of individuals and organizations who believe that federal institutions have not respected their right to access under the Act. The Commissioner is also given the power under the legislation to initiate a complaint if there are reasonable grounds to do so.3

While the Act has been in force for over 25 years, for most of this time only federal departments and certain agencies were subject to its provisions. On December 12, 2006, the Federal Accountability Act 4 received Royal Assent, making the OIC, and approximately 70 other agencies, subject to both the ATIA and the Privacy Act. 5

Once the Federal Accountability Act received royal assent, the OIC had to establish an Access to Information program from the ground up and achieve operational readiness by April 1, 2007.

In its initial year of operation, the institutional ATIP program was staffed with one position: the Director of Information Management, who was responsible for all aspects of request processing. Over the course of the year a submission to Treasury Board Secretariat was prepared for funding effective April 1, 2008, in order to ensure full capacity as the ATIP program got underway.

An additional challenge facing the OIC in implementing the ATIA was the fact that the legislation is silent as to how complaints against the OIC related to the processing of requests are to be dealt with. Consequently, in order to safeguard the integrity of the complaints process, the Commissioner established and implemented an arm’s length mechanism to investigate complaints against the OIC. For the period in question the Honourable Peter de C. Cory accepted to act as Information Commissioner ad hoc. Mr. de C. Cory operated under the same legislated functions and powers as the Information Commissioner in receiving and investigating complaints against the OIC. A copy of the delegation order for Mr. de C. Cory is attached as Appendix A.

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2. Organization

During the reporting period, the OIC was set up along four business lines:

The Complaints Resolution and Compliance Branch carries out investigations and dispute resolution efforts to resolve complaints.

The Policy, Communications and Operations Branch monitors federal institutions’ performance under the Act, provides strategic advice and direction for the Office to address systemic and policy issues, leads the Office’s external relations with the public, the government and Parliament, and provides strategic and corporate leadership in the areas of financial management, administration and security, internal audit and information management. This Branch is also responsible for the OIC’s ATIP function.

The Legal Services Branch represents the Commissioner in court cases and provides legal advice on investigations and legislative and administrative matters.

The Human Resources Branch oversees all aspects of human resources management—staffing, classification, staff relations, employment equity, planning, learning and development, compensation and official languages—and provides advice to managers and employees on human resources issues.

The ATIP Secretariat within the Policy, Communications and Operations Branch carries out the administration and processing of requests for information under the ATIA. For the period in question, the ATIP Secretariat was staffed by the position of Director, Information Management.

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3. Delegation Order

Under section 3 of the ATIA, the Commissioner is designated as the head of the institution for the purpose of the administration of the Act.

For the reporting period in question, consecutive delegation orders were put in place that reflected the evolving composition of the organization and in particular, the developing profile in the ATIP Secretariat. The initial order delegated responsibility for compliance with the Act to the institutional ATIP Coordinator, and to the Senior Legal Advisor. The second order designated both the Assistant Information Commissioner and the ATIP Coordinator. The final order that was in place as of March 31, 2008, included the third position of Senior Policy Analyst as well as the two positions that were already stipulated in the previous delegation order.

All orders accorded the designated individuals full delegation authority. Copies of all three delegation orders is attached are attached as Appendices B, C and D.

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4. Statistical Report

The statistical report is attached as Appendix E.

5. Interpretation of the Statistical Report

The following section provides details on ATI requests received by the OIC during their first year of operation. Specific data is included on the number of requests received, requester type, sections of the legislation invoked to apply exemptions to disclosure, and request completion times. Further details also follow on extensions to the legislated timeframe of 30 days for completion of requests, method of access, fees charged and costs associated with the operation of the institutional ATIP program.

Table I—Source of ATI requests to the OIC between April 1, 2007 and March 31, 2008  

For the fiscal period March 2007–2008, the OIC received 93 formal requests for information under the ATIA. The bulk of those requests 63 (67.74%) were made by businesses, 20 (21.50%) were submitted by the general public, and 10 (10.75%) came from media sources.

The topics of the requests varied from questions on CIC investigations, to the administration of the OIC, contracts awarded, and senior management meeting proceedings.

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5.1 Requests Received Under the ATIA Program

5.1.1 Received During Reporting Period

A request is considered to have been received by a federal institution if:

• The application is made in writing.
• The request is accompanied by a $5.00 application fee.
• The applicant is present in Canada.
• The applicant stipulates the request is being made under the Act.

If these criteria are met, the institution can consider the application as a formal request under the ATIA.

Table II provides the number of requests received by the OIC during the reporting period.

Table II—ATI requests received by the OIC between April 1, 2007 and March 31, 2008

In its first year of operations the ATIP Secretariat processed 93 requests for information under the ATIA. Of those requests 92 (98.92%) were completed before the end of the reporting period. None of the requests were in deemed refusal status. One request (1.08%) was carried over into the new reporting period. There are no requests outstanding from previous years since the OIC only became subject to the ATIA in April 2007.

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5.1.2 Disposition of Requests Completed

While the ATIA focuses on access to records under the control of federal institutions, there are nonetheless several ways in which a request could be concluded:

• There may be severances applied under the legislation resulting in only partial disclosure.
• There may also be instances where there are no records disclosed since all may fall under a specific exemption or exclusion.
• In some cases, a request may be transferred to an institution that has greater interest in the records.
• At times, there could be no records responsive to the request within the institution.
• Some records might be released informally outside the legislated process, while others may be abandoned by the applicant.

Table III below details the disposition of completed requests by the OIC ATIP Secretariat

Table III—Disposition of completed requests

Figure 1: Disposition of completed requests

Of the 92 requests administered by the OIC ATIP Secretariat during the period, the most frequent outcome was partial disclosure 43 (46.74%), followed by full disclosure 30 (32.61%) and no disclosure, or all exempted 8 (8.69%).

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5.1.3 Exemptions Invoked

The ATIA specifies a number of exemptions that can be invoked in the processing of an access to information request. Exemptions are divided into two distinct categories: mandatory and discretionary. When dealing with a mandatory exemption, the head of the institution must sever the records in question. In the case of a discretionary exemption, the head of the institution may sever the records but is not obligated to do so. Exemptions are also injury- or class-based, and tests to determine their validity must be applied. Severing must be limited to only the smallest portion of the record necessary to protect the information in question.

Since the spirit and intent of the Act create a presumption of disclosure, the OIC limited the application of exemptions and favoured disclosing the maximum amount of information. Whenever exemptions were applied the OIC carefully considered the appropriate injury and class tests as follows:

• Exemptions that are injury-based were applied only if there was an identifiable and imminent harm that could reasonably be expected to result from disclosure.
• In the case of exemptions that were class-based and could apply to a category of sensitive information, even though there is a presumption of injury, the latter still had to be imminent and identifiable.

While there are 16 exemptions listed in the Act, only the exemptions invoked by the ATI Secretariat during the reporting period are listed below. There were no instances of subsection 13(e) or subsections 14(a) and 14(b) being invoked, as reported in Appendix E: “Supplemental Reporting Requirements for 2007–2008.” Exemptions applied under subsection 16.1(1) are listed below and in Appendix G: “Discrepancies.”

Table IV—Exemptions invoked  

The exemption most frequently invoked during the reporting period was section 16, and more specifically:

• subsection 16.1(1)(c), which deals with information on ongoing OIC investigations and was invoked 14 times (19.44%)
• subparagraph 16(1)(c), which covers the enforcement of Canadian law or the conduct of a lawful investigation and was applied 10 times (13.89%)
• subsection 16(2), which applies to security and facilitating the commission of an offence and was invoked 5 times (5.56%)
• subparagraph 16(1)(b), which deals with investigative techniques and plans for lawful investigations and was used once (1.39%)

The second most frequently applied exemption was under section 19, which deals with the protection of the personal information of individuals. Most often the information severed under section 19 comprised the personal information of an individual other than the requester. Subsection 19(1) was applied 23 times and comprised 31.94% of the total exemptions applied.

The third most frequently invoked was section 21, which was cited 11 times, as follows:

• subparagraph 21(1), which covers policy advice and was cited 5 times (6.94%)
• subparagraph 21(1)(b), which covers consultations and deliberations and was applied 5 times (6.94%)
• subparagraph 21(1)(c), which applies to negotiating positions and was applied once (1.39%)

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5.1.4 Exclusions Cited

Exclusions to information being disclosed under the ATIA are listed under sections 68 and 69 of the legislation and comprise four types of information:

• material that is already publicly available
• library or museum material preserved for public reference purposes
• material available through Library and Archives Canada and other specific federal archival or museum collections
• Cabinet confidences

For the period in question, the OIC ATIP Secretariat did not cite any exclusion under the Act in administering requests.

5.1.5 Completion Time

The ATIA sets out a clear timeline of 30 days for the processing of requests. If certain conditions are met, additional time can be added to the initial 30 days, which in turn changes the statutory deadline. In its first year of operation the OIC ensured that all requests were responded to within the statutory timelines.

Table V sets out the completion times for requests submitted to the OIC during the reporting period.

Table V—Completion times  

Figure 2: Completion times

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5.1.6 Extensions

There are three circumstances under which additional time may be added to process a request under the ATIA:

• The large number of records or the search for records would interfere unreasonably with the institution’s operations.
• Consultations are necessary that cannot be completed within the original timeframe.
• Notice is given under section 27 that consultations are required with third party(ies).

Table VI—Extensions 

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5.1.7 Translations

The ATIA specifies that the head of an institution may provide translation of records upon request, if it is deemed in the public interest to do so. For the period in question, no translations were requested.

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5.1.8 Method of Access

Applicants may receive the response to their requests in paper format or electronically in CD format. Requesters can also elect to examine records in person in an institutional reading room required by the legislation.

Of the 93 requests opened during the reporting period, 16 did not result in records being provided since:

• In eight of the files, all responsive records were exempted.
• Seven requests were abandoned by the applicant.
• One file was carried over to the new reporting period.
• There was one request that the OIC was not able to process.

For the remaining files that were processed, photocopies of the records were provided.

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5.1.9 Fees

The ATIA regulations specify that fees may be charged under specific circumstances, as follows:

• Application processing fees
• Covering the cost of reproduction
• Covering the cost of converting a record into an alternate format
• Hours in excess of 5 hours spent by any person on search and preparation

The Act also provides the heads of institutions the authority to waive fees if they deem it in the public interest to do so.

Table VII lays out the fees charged during the period by the ATIP Secretariat of the OIC for applications and for reproduction. Since no fees were charged for searching, preparation or computer processing, those categories are not included in the table. Table V also details the fees waived by frequency and by amount.

Table VII—Fees 

The amount of application fees is not consistent with the number of requests submitted to the ATIP Secretariat, since one of the requests received was actually six requests in one, accompanied by only one application fee. The decision was made to waive the application fees in order not to jeopardize the timely delivery of records by waiting for additional application fees. The “fees waived” section in the second part of the table represents fees not charged for reproduction of records.

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5.1.10 Costs to Administer the ATIA Program

Table VIII—Costs 

The financial costs and person years associated with administering the legislation have been calculated solely on the basis of the ATIP Secretariat costs. It is anticipated that in future reports, the cost to the organization as a whole will be captured.

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6. Education and Training Activities

The ATIP Secretariat is responsible for the administration of the Act, and also for training and awareness activities for the organization as a whole. Given the small size of the organization, the ATIP Secretariat was able to train all employees. Sessions were provided in both English and French. The training provided focused on employees’ responsibilities under the Act and on greater knowledge of the legislation.

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7. Changes to the Organization, Programs, Operations or Policy

Once it was made subject to the provisions of the ATIA, the OIC had to move quickly to build an ATIP Secretariat from the ground up, and to put in place the processes and procedures within the organization that would support the institutional ATI program. In addition, the OIC was determined to create a program that was fully compliant with the legislation. This endeavour involved a strategy to staff the position of Director, Information Management and submit a proposal for funding to Treasury Board Secretariat to ensure capacity as the program evolved.

This strategy yielded positive results, since the ATIP Secretariat was able to begin responding to requests under the Act in April 2007 and completed all requests received within the legislated timelines.

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8. Overview of the ATIA Policies and Procedures Implemented During the Period

In its first year of operations, the ATIP Secretariat has focused on developing and implementing the basic infrastructure necessary to support the day-to-day operations of the ATIP program. With respect to policies and procedures, work began on an institutional ATIP manual, and a workflow process was devised that focuses on transparency and timely access to records.

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9. Major Changes Implemented as a Result of Issues Raised by the Information Commissioner ad hoc  

There were no major issues raised by the ad hoc Information Commissioner during the first year of operation.

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10. Major Changes Implemented as a Result of Issues Raised by the Auditor General

No issues were raised about the ATIP Secretariat by the Office of the Auditor General in its annual report.

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11. Complaints and Investigations

In its first year of operation, applicants filed 10 complaints with the Office of the ad hoc Information Commissioner. Reasons cited were as follows:

Table IX—Complaints made to the Information Commissioner ad hoc

The majority of complaints alleged that the OIC had withheld information (6 out of 10, or 60%). There were an equal number of complaints about the length of extensions taken and the fees assessed (20 complaints or 20%).

Table X—Outcome of complaints made to the Information Commissioner ad hoc

The Information Commissioner ad hoc found that most complaints investigated during the period were not well founded or unsubstantiated (4, or 40%), while a further two complaints (20%) were discontinued, and one (10%) was resolved.

In the case of the complaint that was resolved, the OIC had initially exempted what was believed to be the initials of an individual, when in fact the letters in question referred to an abbreviation of the title of a corporate document. As soon as clarification was received, the information was disclosed to the complainant who declared himself satisfied.

Three (3) complaints were still outstanding at the time of writing and will be reported on in the next fiscal period.

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12. Requests for Judicial Review

There were no requests for judicial review registered with the Federal Court of Canada in 2007–2008.

Appendix A

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Appendix B

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Appendix C

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Appendix D

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Appendix E

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Appendix F

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Appendix G