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CHAPTER II:

DELAYS IN THE SYSTEM – REPORT CARDS AND TIME EXTENSION STUDY

A: Report Cards: Part I


For several years, a number of institutions were subject to review because of evidence of chronic difficulty in meeting response deadlines. In his 1996-97 annual report to Parliament, the former information commissioner reported that delays in responding to access requests had reached crisis proportions.

In 1998, at the beginning of this Information Commissioner’s term, the "report card" system was commenced. Selected departments were graded on the basis of the percentage of the access requests received that were not answered within the statutory deadlines of the Access to Information Act. Under the Act, late answers are deemed to be refusals. Initially, the report cards were tabled in Parliament as specials reports; since the fiscal year 2000-01, they have been included within the commissioner’s annual report.

Since the introduction of the report cards, the Information Commissioner has observed a dramatic reduction in the number of delay complaints: from a high of 49.5 percent in 1998-99 to a low of 14.5 percent of complaints in 2003-04. This year, the delay complaints account for 21.1 percent of our workload. The Office of the Information Commissioner will continue to focus its attention on the delay problem in order to remind government institutions of their responsibilities to provide timely responses to requests.

The Information Commissioner has adopted the following standard as being the best measure of a department’s compliance with response deadlines – percentage of requests received which end as deemed refusals:

In previous years, the deemed-refusal ratio to requests received did not take into consideration those requests carried over from the previous year, nor the number of requests already in a deemed-refusal status on April 1. These figures are taken into consideration in this year’s report.

This year, the Office of the Information Commissioner reviewed the status of requests in a deemed-refusal situation for the following twelve departments: Canada Revenue Agency (CRA); Citizenship and Immigration Canada (CIC); Correctional Service Canada (CSC); Fisheries and Oceans Canada (F&O); Department of Foreign Affairs and International Trade (DFAIT); Health Canada (HCan); Human Resources and Skills Development Canada (HRSDC); Industry Canada (IC); National Defence (ND); Privy Council Office (PCO); Public Works and Government Services Canada (PWGSC); Transport Canada (TC).

Using the grading scale, the results attained by the twelve government institutions reviewed this year, during the period April 1 to November 30, 2004, are set out in Table 1.

From observing Table 2, five institutions improved their performance over last year, two showed no change and five received lower grades than last year. Congratulations to Human Resources and Skills Development Canada (formerly part of Human Resources Development Canada) for achieving an "A" compared with the "F" received by HRDC last year. A positive effort was noted by Industry Canada, in its second year in the reporting system, going from an "F" to a "D". Of particular concern is the Privy Council Office, which went from an "A" last year to an "F" in this year’s report. National Defence has levelled off at a grade of "B" over the last two years, which is a good report, but the department needs to press ahead to achieve ideal compliance. Correctional Service Canada deserves credit for its ability to maintain a grade "A" in the last two years. Although Fisheries and Oceans Canada narrowly missed getting an "A" this year by 0.2%, it had maintained a grade of "A" for the two previous years.

Table 3 shows how difficult it is to maintain a high performance in meeting legislated timeframes under the Access to Information Act. For example, PCO and DFAIT show a large degree of performance fluctuation over the years. Industry Canada’s progress in the past year is actually more positive than the figures would indicate. A lot of work was done by the department in addressing the many recommendations that were made last year by the Office of the Information Commissioner. Industry Canada is encouraged to continue pressing forward to attain a better performance next year. DFAIT and PWGSC constitute chronic problem cases which are at the top of the commissioner’s list of priorities for attention.

There appear to be five main causes of delay in processing access requests:

  • Inadequate resources in ATIP offices;
  • Chronic tardiness in the retrieval of records due to poor records management and staff shortages in offices of primary interest (OPIs);
  • Difficulties encountered during the consultation process with third parties and other government institutions;
  • Top-heavy approval processes, including too much "hand-wringing" over politically sensitive requests and too frequent holdups in ministers’ offices; and
  • Poor communications with requesters to clarify access requests.

The complete text of the twelve reviews conducted this year is available on our website at www.infocom.gc.ca.

DELAYS IN THE SYSTEM – REPORT CARDS AND TIME EXTENSION STUDY 

B: Report Cards: Part II

As indicated earlier, as part of the proactive mandate of the commissioner’s office, each year a department (or departments) is selected for review and a report card is completed. The review is conducted to determine the extent to which the department is meeting its responsibilities under the Access to Information (ATI) Act. The responsibilities and requirements can be set out in the Act or its Regulations, such as the timelines required to respond to an access request. Or, the responsibilities may emanate from Treasury Board Secretariat or departmental policies, procedures or other documentation in place to support the access to information process.

Fundamental to the access to information regime are the principles set out in the "Purposes" section of the Access to Information Act. These principles are:

  • Government information should be available to the public;
  • Necessary exemptions to the right of access should be limited and specific;
  • Decisions on the disclosure of government information should be reviewed independently of government.

Previous report cards issued since 1999, and those in Part I of this chapter, focused on the deemed refusal of access requests, the situations that may have led to the deemed refusals and recommendations for eventually eliminating the problem. In 2004-05, the scope of the report cards was broadened. The scope now seeks to capture an extensive array of data and statistical information to determine how an ATI office and a department are supporting their responsibilities under the Act. The new report card is divided into chapters on the:

  • Access process and how it is managed
  • Deemed-refusal situation
  • Resources devoted to ATI and their adequacy
  • Leadership framework to create a culture of access to information in the institution
  • Information management framework as an underpinning of ATI
  • Complaint profile for ATI from the perspective of the Office of the Information Commissioner.

In 2004-05, three institutions were selected for review using the new report card format – Justice Canada, Agriculture and Agri-Food Canada, and Library and Archives Canada. Each department completed an extensive Report Card Questionnaire. The completed questionnaire was used as the starting point for an interview with the ATI coordinator of each institution. In addition, a random sample of approximately 15 completed access request files were reviewed to determine how decisions about access requests were made, approved and documented.

The grading scale used in the new report cards is described in the following table.

On the above grading scale, Justice Canada, Agriculture and Agri-food Canada, and Library and Archives Canada each rated an "F". Their performance was Red Alert.

JUSTICE CANADA

The report card on Justice Canada made a number of recommendations for ATI operations. Of particular note, it recommended, as an essential component in the administrative framework to support the operation of the Access to Information Act, the development of an ATI operational plan for the ATIP office. The ATI operational plan would establish priorities, tasks and resources, deliverables, milestones, timeframes and responsibilities to implement the business plan developed for the ATIP office. The business plan is essentially a business case on the need for additional resources for the ATIP office. Other recommendations in the report card focused on the need to have up-to-date comprehensive documentation in place to promote consistent decision-making by individuals with responsibilities in the operations supporting the Access to Information Act. These individuals require ATI training to support the fulfillment of their responsibilities.

AGRICULTURE AND AGRI-FOOD CANADA

This report card identified the need for an administrative framework to support the operation of the Access to Information Act through the development of an ATI improvement and operational plan for the ATIP office. The plan would establish priorities, tasks and resources, deliverables, milestones, timeframes and responsibilities. The plan could be used as an operational framework to manage improvements, guide day-to-day activities and manage the implementation of recommendations in their report card. The plan is also a method of engaging and obtaining senior management support for departmental improvements in ATI activities. Other recommendations in the report card focused on the need to have up-to-date comprehensive documentation in place to promote consistent decision-making by individuals with responsibilities in the operations supporting the Access to Information Act. These individuals require ATI training to support the fulfillment of their responsibilities.

LIBRARY AND ARCHIVES CANADA

The report card recommended the development of an ATI operational plan for the ATIP division. The plan would establish priorities, tasks and resources, deliverables, milestones, timeframes and responsibilities to ensure compliance with response deadlines and appropriate application of exemptions. An internal task force has already examined the 18 to 20-month backlog of access and privacy requests and proposed systemic, innovative and durable solutions to the situation.

As in the report cards for the other two institutions, other recommendations in the Library and Archives Canada report card focused on the need to have up-to-date comprehensive documentation in place to promote consistent decision-making by individuals with responsibilities in the operations supporting the Access to Information Act. These individuals require ATI training to support the fulfillment of their responsibilities.

CONCLUSION

All three institutions have recognized that there are serious and persistent problems in the processes that support the administration of the Access to Information Act in their institution. Each institution in 2004-05 took some positive initial remedial actions. But there was no commitment at the time of the report cards on precisely how and when the serious deficiencies described in the report cards will be addressed and how improvements will be sustained.

A critical component of the administration of the Access to Information Act is the leadership role of the ATI coordinator and senior management in a department. Senior management exercises leadership by identifying access to information as a departmental priority and then acting upon this by providing the appropriate resources, technology, training and policies. Together with the ATI coordinator, it is important for senior management to foster a culture of openness and access to departmental information, by adopting and staying engaged in a remedial plan with clearly defined deliverables and critical dates.

The full text of the report cards is available on our website atwww.infocom.gc.ca.

DELAYS IN THE SYSTEM – REPORT CARDS AND TIME EXTENSION STUDY 

C: Time Extension Study

In previous reports, concern was expressed that a system-wide improvement in meeting response deadlines might be the result of abuse of the Act’s extension of response-time provisions. Indeed, since the 2000-01 fiscal year, the number of complaints concerning time extensions has more than doubled. To assess the veracity of these impressions, the commissioner initiated a study in the fall of 2004.

Forty-two government institutions were canvassed by a written questionnaire concerning their general approach to applying time extensions. Based on an analysis of the responses, the commissioner chose a representative sample of eight institutions in which to conduct a more in-depth study. The methodology included in-person interviews with ATIP coordinators and a review of selected processing files for access requests in respect of which the response times were extended beyond 30 days. The main elements of the review included:

  1. Were reasons for extension documented on the files?
  2. Was there evidence supporting the need for an extension and the duration of the extension?
  3. Were answers given within the extended period and, if not, what was the duration of delay beyond the extended period?
  4. Does the institution have a tracking and BF system to monitor compliance with extended response times?
  5. Does the institution follow a practice of partial disclosure prior to the end of the extended period?
  6. When extensions are taken for the purpose of consultations with other government institutions, are there appropriate prior consultations and follow-up with the institution being consulted?
  7. When extensions are for the purpose of consultations with nongovernmental third parties, are the time delays specified in sections 27 and 28 of the Act respected?
  8. When extensions are longer than 30 days, does the institution fulfill its obligation to notify the Information Commissioner?
  9. Of all access requests received by an institution, in what percentage was the 30-day response time extended? What was the average length of the extension?

In half of the 42 institutions surveyed, 40 percent or more (up to a high of 80 percent) of all access requests received had an extension of time applied. The study also determined that the overall management of extensions demonstrates serious shortcomings.

First, there is a lack of comprehensive and consistently applied criteria for determining whether or not paragraph 9(1)(a) extensions are needed and, if so, the appropriate duration of the extension.

Second, there is no consistent practice in government institutions of documenting processing files with the justification for claiming extensions.

Third, there is widespread failure to meet the extended response times. This is particularly true in the case of extensions for consultations with third parties and despite the fact that the timelines for such consultations are set by the statute.

Fourth, consultations with PCO require twice as much time to complete than do consultations with other government institutions.

Finally, the study determined that institutions are not consistently notifying the Information Commissioner of extensions of more than 30 days. The study also showed discrepancies between the response-time statistics which institutions report to Parliament and Treasury Board, on the one hand, and those reported during this study. Treasury Board conducts no verifications of the statistics provided to it by government institutions.

These results support the need for more careful management of extensions by government institutions, better guidance and verification from Treasury Board, allocation of sufficient resources to ensure that extensions are the exception not the rule, improved turnaround time on consultations by PCO and continued monitoring by the Information Commissioner.