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II. Catalyzing synergies for a leading access regime
Given increasing public expectations for transparency and openness, 2010−2011 presented the Information Commissioner with various opportunities and forums to provide her views and offer her expertise on the need and means to modernize the access regime. We assisted the House of Commons Standing Committee on Access to Information, Privacy and Ethics in efforts to bring initiatives together for an open government strategy and improved access regime. We collaborated with a wide range of partners and stakeholders to cultivate and share knowledge on challenges and best practices. As a central and independent source of expert knowledge, we are well positioned to catalyze stakeholder engagement to bring about greater transparency and accountability.
Fulfilling public expectations for timely and optimal disclosure of information necessarily involves modernizing the Access to Information Act. To this end, the Commissioner's presentations and our reports to Parliament in 2010-2011 highlighted and documented various gaps and deficiencies in the current legislation.
For example, as discussed in Chapter 3, our report cards exposed the difficulties associated with the legislative scheme that was put in place under the Federal Accountability Act (FedAA). Institution-specific FedAA exemptions and exclusions prevent the universal application of access provisions to all records held by the institution. These limitations raise controversial issues regarding their interpretation and, consequently, increase the risk of complaints and litigation. On March 21, 2011, the Commissioner appeared before the House of Commons Standing Committee on Access to Information, Privacy and Ethics to discuss the challenges in accessing information held by the Canadian Broadcasting Corporation, largely as a result of the FedAA-induced section 68.1 of the Act (see Chapter 4). The Commissioner believes that a reform of the access legislation must include a review of the amendments introduced by the FedAA.
REPORTS AND APPEARANCES BEFORE PARLIAMENT AND PARLIAMENTARY COMMITTEES
April 15, 2010: 2008−2009 report cards, a presentation before the Standing Committee on Access to Information, Privacy and Ethics (ETHI)
April 29, 2010: Presentation on proactive disclosure before ETHI Committee
June 8, 2010: Presentation of the 2009-2010 annual report, and nomination to the position of Information Commissioner, ETHI Committee
June 14, 2010: Presentation before the House of Commons Standing Committee on Government Operations and Estimates on the impact of the federal cost-containment measures on access to information
June 22, 2010: Address by Suzanne Legault on her nomination as Information Commissioner before the Senate Committee of the Whole
September 28, 2010: Conference for parliamentarians as part of Right to Know Week 2010
November 16, 2010: Presentation on open government before the ETHI Committee
March 10, 2011: Presentation and tabling of the 2009-2010 report cards and special report, Open Outlook, Open Access
March 16, 2011: How Cabinet Confidences are treated under the Access to Information Act, a presentation before the House of Commons Standing Committee on Procedure and House Affairs
March 21, 2011: Access to Information at the CBC, a presentation before the ETHI Committee
March 21, 2011: Tabling of special report, Interference with Access to Information, Part 1
The right of access has also been eroded over time through prohibitions made under section 24 of the Act by adding to Schedule II various provisions from other pieces of legislation. Schedule II should be reviewed to ensure that the provisions represent appropriate and necessary exemptions to the access legislation.
Our March 2011 special report to Parliament on a case of political interference with the administration of the Act highlighted additional gaps in the legislation. This report results from our investigation into a complaint about the interference by a member of a minister's office staff with the processing of an access request. A key conclusion was that the Act currently limits the Commissioner's ability to ensure that political staff members are held accountable for inter-fering with access requests. Confidentiality provisions prevent the Commissioner from disclosing information about a possible criminal offence and from referring matters to the appropriate law enforcement agency. Relevant sections of the Act should therefore be revised to enable the Commissioner to respond fully and appropriately to all instances of interference.
Access as part of open government
Given recent developments, any legislative reform or amendment should be considered in the context of open government, the digital environment and progressive changes adopted by other jurisdictions.
The access legislation gives citizens a right of access to government information and emphasizes the legal obligation of institutions to respond to requests for information. However, it is completely out of tune with current open government principles, which dictate the proactive release of large amounts of information in machine-readable and reusable formats.
As early as January 2010, the Commissioner started taking part in discussions on open government and the implications for access to information. In April 2010, she broached the subject before the House of Commons Standing Committee on Access to Information, Privacy and Ethics (ETHI) in a presentation on proactive disclosure, during which she suggested the need to develop a made-in-Canada strategy for open government. The Commissioner was invited again before the ETHI Committee in November 2010 to discuss concrete suggestions for achieving greater openness. As a result, the Committee undertook a public consultation on open government in January 2011, with testimony from a wide range of influential experts and open-data practitioners from Canada and abroad.
Leveraging peer support and expertise
In September 2010, the Information Commissioner and her federal, provincial and territorial access and privacy counterparts issued a joint Resolution on Open Government. This landmark resolution calls on all levels of government to embrace open government principles for greater transparency and accountability. The resolution promotes the paradigm shift from reactive to proactive disclosure as a precondition for open government. It also sets out the basic tenets of a sound open government strategy.
During the latter part of 2010-2011, we ramped up efforts to organize the Seventh International Conference of Information Commissioners, which we will host in collaboration with the Canadian Bar Association in October 2011. The aim of the gathering is to advance access to information by sharing the perspectives and experience from various national and international jurisdictions, while enhancing the ability of information commissioners to deliver on their mandate. With the theme "Access to Information: A Pillar of Democracy," the program has been developed with the assistance of an advisory committee consisting of prominent access to information practitioners and experts from different countries to meet the various needs of the international community.
KEY ELEMENTS FOR AN OPEN GOVERNMENT STRATEGY
Commitment from top leadership. At a minimum, this commitment involves issuing an official declaration of the importance of open government. It entails assigning clear responsibility and accountability for coordination, guidance and deliverables. It also requires prescribing specific timeframes.
Ongoing, broad-based public consultations. It is critical to determine what public sector information citizens want and how they wish to receive it. Therefore, the public should be encouraged to contribute their views using electronic means. This process becomes the basis for establishing priorities.
Accessible, open and reusable information. Information should be provided free or at minimal cost. It should be available in open standard formats, supported by metadata to assist in the discovery, understanding and interpretation of the information. Users should be allowed to reuse and adapt the data for commercial, research or community purposes.
Due consideration to all pertinent issues. Privacy, security, Crown copyright and official language issues need to be considered and resolved.
In principle and policy. Open government principles should be anchored in statutory and policy instruments.
Joining forces on the agenda for change
In September 2010, we joined forces once again with our provincial and territorial counterparts to present Right to Know Week 2010. A wide range of activities took place in communities across Canada to raise awareness of citizens' right to access public sector information as an essential condition for democracy and good governance. This year, Assistant Commissioner Andrea Neill visited Iqaluit to take part in special events organized by Nunavut's Information and Privacy Commissioner, Elaine Keenan-Bengts.
At the federal level, we owe the success of the event to various partnerships with key advocates and stakeholders, including the Canadian Bar Association, the Honourable Senator Francis Fox, Carleton University's Faculty of Public Affairs, and Microsoft Canada. Events were well attended—in person and via webcast—and were later archived as podcasts on the www.righttoknow.ca website. More than 2,100 and 3,500 people, respectively, attended the Right to Know conference for parliamentarians and the town hall via webcast. Through Twitter, these same events engaged more than 13,000 and 20,400 people, respectively.
Under the theme "Openness in the Public Interest," expert panels explored challenges inherent in moving from reactive to proactive disclosure of public sector information, particularly in an environment of heightened security and budgetary constraints. Speakers showcased various national and international open data and open government initiatives, while highlighting fundamental principles that contribute to their success.
In turn, the Commissioner and senior members of our office were invited to speak at more than 20 national and international events during 2010-2011, attending 12 to share the Commissioner's views and expertise as keynote speakers or panellists. These events included Newfoundland and Labrador's Access and Privacy Workshop, the annual conference of Quebec's Association sur l'accès et la protection de l'information, the 2010 Access and Privacy Conference in Edmonton, the 2010 Canadian Access and Privacy Association Conference in Ottawa, as well as the Canadian Bar Association's Symposium.
In addition, the Commissioner addressed the Second Annual Public Sector CIO Forum in Ottawa. She discussed the means through which leaders can create a true culture of openness within the public sector, notably by facilitating the convergence between access to information and open government. She explained the urgency of achieving the required cultural and technological shift and stressed the resulting benefits, particularly in terms of policy development. All speaking notes and presentations are posted on our website.
Openness in the Public Interest, Right to Know Week 2010
In collaboration with
- Provincial and territorial information commissioner offices
- Canadian Bar Association
- Carleton University's Faculty of Public Affairs
- The Honourable Senator Francis Fox
And with the participation of
Canadian Access and Privacy Association
Canadian Association of Professional Access and Privacy Administrators
A first: Live online chat sessions with information commissioners from across the country
Events in the National Capital Region
Canadian Bar Association, Privacy and Access Law Symposium: Privacy and Access Rights in the Age of Technology—The State of Canadians' Information Rights in 2010 and Beyond
Conference for Parliamentarians: Balancing Openness and the Public Interest in Protecting Information
Town Hall: Push or Pull: Liberating Government Information-What datasets should be prioritized? How do we mitigate the risks? What policy frameworks are needed?
Town Hall: Making the Case for Open Government—Strategies and benefits behind various projects and initiatives
- Mediated Access: Journalists' Perspectives on the Uses and Abuses of Access Regimes
- From Principle to Practice: Enhancing Access in the Public Service
- Accessing Research: Accessing Government Information in the Research Process (co-sponsored by the Canadian Journal of Law and Society)
Celebrating exemplary practices
In September 2010, we introduced the Canada-wide Grace-Pépin Access to Information Award in collaboration with our provincial and territorial counterparts. The award was created in memory of John Grace (1927−2009) and Marcel Pépin (1942−1999), two public figures who contributed significantly to the development and promotion of access to information principles in Canada. The award will be given out each year as part of the Right to Know Week to officially recognize outstanding contributions by an individual, group or organization to promoting and supporting transparency, accountability and the public's right to access public sector information.
We also seek to develop and share best practices through collaborative undertakings with foreign counterparts and international bodies. While assisting other countries and organizations in developing effective tools and instruments to implement access to information, these efforts inform our benchmarking activities and therefore are critical to advancing transparency at home as well as worldwide.
For example, in 2010-2011 we advised the Chilean Council for Transparency on a project funded by the World Bank to assist the Council in improving transparency and account-ability in that country. We provided data and expertise for a comparative study of ombudsmen's offices in five countries. The study examines the various issues these offices face with respect to operational matters, resources, jurisprudence, technology, proactive disclosure, communications and inter-institutional relations. Results will be discussed at an international seminar, "Transparency as Modernization of the State," to be held in Chile in April 2011.
In 2009-2010, we collaborated with other representatives from the 35-member Organization of American States (OAS) to develop a model access to information law and implementation guide for the Western hemisphere. In June 2010, the OAS General Assembly adopted the complete text of the Model Inter-American Law on Access to Public Information. Approval of this law received ample media coverage and has had a tangible effect in states whose parliaments are discussing access to information legislation.
In September 2010, the Information Commissioner hosted a group of public service leaders from Canada, United Kingdom, Australia and New Zealand who were participating in the Canada School of Public Service's Leadership Across Borders Program. We also addressed two groups of Latin American and Caribbean graduate students taking part in the international Emerging Leaders in the Americas Program. These exchanges provide excellent opportunities for current and future public service leaders to learn about the systems approach to tackling complex access to information issues within and across jurisdictions.
Leading by example
Our Access to Information and Privacy Secretariat has a vital role to play in championing our goals of timeliness and maximum disclosure of information about our policies, activities and decisions. The following highlight some of the achievements.
In 2010-2011, we processed 48 access requests for information about our activities and other matters, including two requests outstanding from the previous year. Of this total, 46 were completed in an average of 15 days, while 2 requests were received too late to allow for a response by the end of March 2011. All release packages were produced free of charge in CD-ROM format. We also received 18 electronic requests for previously disclosed information, to which we responded within an average of 2.5 days.
For the third consecutive year, we responded to a majority of cases within the 30-day timeframe prescribed by the Act. No requests were in a deemed refusal situation at any point. Three extensions were taken for files requiring consultations with other federal institutions. In each case, we contacted the institution we were consulting to negotiate the shortest turnaround time possible. In this way, we were able to ensure that the extensions we took were for no longer than 15 days. Our use of extensions has been steadily decreasing from 10.7 percent of requests in 2008-2009, to 9.7 percent in 2009-2010 to 6.5 percent in 2010-2011.
We received 21 consultation requests in 2010-2011, compared to 4 the previous year. We also had to administer a higher number of consultations than we did the year before. For example, we processed one request for which we had to perform 34 consultations; yet records were provided to the requester within 30 days. The average time to respond to consultations was nine days. This reflects our commitment to supporting the consultation process, while ensuring that other institutions do not have to resort to extensions to cover unnecessary delays on our part.
No complaints were filed about our processing of access requests in 2010-2011. As part of the report card process on new institutions under the Act, the Information Commissioner ad hoc assessed our overall performance. He granted us an "A" for fulfilling our obligations, recognizing the leadership of our Access to Information and Privacy Secretariat in ensuring that access requests are dealt with efficiently in the spirit of the greatest possible access. (See Chapter 3).
As a pilot project, we waived the $5 application fee for formal access requests from November 1, 2010 to April 30, 2011. In the spirit of the duty to assist, this measure ensures that the application fee does not act as a barrier to accessing our records. It also enables us to accept requests by e-mail and prevents delays associated with fee payments. The results of this pilot project will be assessed in 2011-2012.
In today's digital and fast-paced information environment, access to information takes on a new dimension in the form of proactive disclosure. This involves routine and electronic dissemination of public sector information that is of interest and high value to Canadians before it becomes the subject of an access request.
We undertook to post, in both official languages, summaries of all completed access requests, with the number of pages of information disclosed. Requesters now have the opportunity to electronically ask for the documents released under a previous request. These documents can then be quickly provided in the language in which the records were originally created. We are also posting more corporate information, including monthly statistics in open format on complaints registered and closed.
THE SIX PILLARS OF ACCESS TO INFORMATION AT THE OFFICE OF THE INFORMATION COMMISSIONER
1. Full implementation of duty to assist
– Exercise discretion to waive application fee.
– Advise requesters on ways to clarify their requests to facilitate faster and greater disclosure.
– Expedite consultation process when required.
– Provide interim releases when time extensions are necessary.
2. Maximum disclosure
- – Apply a presumption in favour of disclosure and due consideration to the public interest in the information requested.
3. Minimal extensions of deadlines
- – Resort to extensions only when unavoidable and for the shortest time possible.
4. Timeliness of responses
- – Release as soon as possible without waiting for the 30-day deadline.
5. Confidentiality of the investigative process
- – Refrain from making recommendations to institutions consulting the office regarding information that could be the subject of a subsequent investigation, thereby eliminating any potential conflict of interest.
6. Protection of personal information
- – Guarantee the privacy, confidentiality and security of personal information in accordance with the Privacy Act.