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3. Maximizing compliance

In 2010-2011, we implemented Year 2 of our Three-Year Plan for report cards and systemic investigations. Our performance assessments highlighted outstanding results as well as concerns and challenges at institutions that had only recently come under the Act. We also followed up on the progress achieved by central agencies and individual institutions in implementing previous recommendations to address delay-related issues. We are honoured by the fact that the House of Commons Standing Committee on Access to Information, Privacy and Ethics called our report cards "an essential tool which allows parliamentarians to hold the government accountable."


"AN ESSENTIAL TOOL TO HOLD THE GOVERNMENT ACCOUNTABLE"

The House of Commons Standing Committee on Access to Information, Privacy and Ethics followed up on our 2008–2009 Special Report by inviting two underperforming institutions—Environment Canada and Foreign Affairs and International Trade Canada—to provide evidence on their efforts to improve.

The Committee, in turn, issued its own recommendations within its report, such as asking Environment Canada to report back to the Committee on internal performance statistics in three-month increments for the next fiscal year. More generally, it recommended "That the Government of Canada give priority to the access to information file and demonstrate the necessary leadership to fix the systemic problems identified by the Information Commissioner in her report on the report cards so that a greater number of federal institutions comply with the Act's requirements."


A three-year plan to maximize compliance

Responding to access requests in a timely fashion is one of the cornerstones of the Access to Information Act. Over the years, this principle has been increasingly ignored. The prevalence of delays led to the introduction of report cards in 1999. Two years ago, we took a strategic approach to assessing institutional compliance to get to the root causes of the problem, while encouraging institutions to more readily comply with their statutory requirements. The approach was formalized in July 2009 with the launch of our Three-Year Plan for report cards and systemic investigations.

This integrated approach guides us in gathering reliable and sufficient data to accurately assess institutions' compliance and develop specific recommendations. Our methodology combines findings from investigations of complaints, performance assessments of select groups of institutions as well as in-depth analysis of systemic or recurrent issues. It includes follow-ups with institutions to evaluate their progress in implementing our recommendations. It has the advantage of limiting duplication of effort and reducing the reporting burden on institutions.

By sharing our three-year plan with institutions and widely publicizing performance results and recommendations, we encourage proactive compliance, while helping institutions deal with specific challenges that inhibit performance. As an example, the Department of Finance Canada uses our report card questionnaire to self-evaluate its performance each year. An increasing number of institutions have started reporting their achievements in their Annual Report on the Administration of the Access to Information Act, using our report cards and recommendations as a benchmark.

Over the last two years, we have assessed 32 institutions. These accounted for nearly
91 percent of all access requests the federal public service received in 2008–2009. Fifteen of those institutions were found to perform below average, among them the Canadian Broadcasting Corporation and Canada Post Corporation, which joined the 13 underperformers listed in Table 3. As documented in our special reports to Parliament, the performance of these institutions has been affected by a range of issues, including inadequate delegation orders, lack of leadership, inappropriate use of time extensions, pervasive and protracted consultations, insufficient resources and training, and poor records management. The information gathered through the report card process has allowed us to develop recommendations to effectively address those issues.

In 2011–2012, we will complete the implementation of our first three-year plan. Our goal is to provide the government with a thorough, fact-based diagnostic of delay-related issues to guide efforts for improving the administration of the Act.

Recommendations to Treasury Board of Canada Secretariat

We have addressed a number of recommendations on systemic issues to the Treasury Board of Canada Secretariat (TBS) as the designated administrator of the Act. These recommendations pertain to delegation orders, leadership, extensions, consultations and resources.

We followed up with TBS on its progress implementing these recommendations. Of particular note are the initiatives that will be launched in 2011–2012 to collect and publish more statistical information about workload, time extensions and consultations, which should help strengthen accountability.

We had also recommended that TBS develop and implement an integrated human resources action plan to address the government-wide shortage of access to information personnel. In the spring 2010, TBS undertook to develop work descriptions and competencies to standardize work processes and it plans to launch a collective staffing process.

Our commitments to improving the system

In our special reports to Parliament on performance assessments, we make specific commitments to support the access to information system. Our previous report cards clearly identified the inappropriate use of time extensions as a leading cause of delays in responding to access to information requests. Consequently, in 2010-2011, we published advisory notices on time extensions and notification of extensions.

The advisory notice on time extensions sets out the factors that we generally take into account during an investigation when interpreting paragraph 9(1)(a) of the Act. This provision permits institutions to extend the time limits for responding to requests for a reasonable period of time when they involve a search for or through a large number of records that would unreasonably interfere with operations. The notice clarifies our views of what could constitute a large number of records as well as a search through a large number of records. It also provides the factors we may consider when determining whether meeting the 30-day timeline would unreasonably interfere with operations of the institution. This guidance will assist institutions and us, respectively, in preparing and reviewing rationales and documentation for extensions. This will ultimately accelerate investigations regarding complaints about the use of time extensions.

According to paragraph 9(2) of the Act, institutions must notify the Information Commissioner of all time extensions taken for more than 30 days. When properly filed, extension notices constitute a useful tool to monitor and report on the use of extensions, which in turn fosters institutions' self-discipline in providing timely service to requesters. To facilitate and improve the reporting of time extensions, we developed an electronic template for the notification of time extensions, which is available on our website.

The Commissioner has also assigned an official to review extension notices and compile quarterly and annual statistics regarding system-wide and institutional compliance with notification requirements. Starting in 2010-2011, data per institution and at the aggregate level are available online, in a reusable format, as illustrated in Table 1.

Table 1. Extension notice report, all institutions, 2010–2011

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Performance of new institutions under the Act

Our latest performance assessments focused on institutions that came under the Access to Information Act as a result of the Federal Accountability Act. The cohort included five Crown corporations and three Agents of Parliament. As part of the review, our own performance at processing access requests was assessed by the ad hoc Commissioner.

The review enabled us to examine whether institutions were responding to access requests in a timely fashion. We collected information about key factors such as the application of exemptions and exclusions, and the challenges faced by institutions in terms of resources and internal support.

As Table 2 indicates, six of the eight institutions demonstrated excellent results. They all achieved strong compliance rates with their legal obligations. What we observed first and foremost is that these institutions had the right attitude and approach towards transparency. Their leaders had made the necessary efforts to establish the right tools, allocate sufficient resources and implement sound approaches to fulfilling their obligations. Our own achievements reflect our efforts to lead by example.

On the other hand, we observed in two of the institutions some of the worst results in the 12 years that we have been doing report cards. We issued a red alert to the Canada Post Corporation, whose performance was so far off the chart that we were unable to ascribe a rating. We observed an astonishing 190-day average completion time for the 84 requests the institution completed in 2009-2010. Three out of four requests were delayed far beyond their deadlines. The new President of Canada Post has made a personal commitment to improve performance.

Table 2. Rat ing for institution assessed, 2009–2010.jpg

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We also issued a failing grade to the Canadian Broadcasting Corporation (CBC), which took 158 days on average to complete requests. The CBC continued to struggle from the effects of an initial flood of 547 requests received in 2007-2008, within seven months (including 335 in the first month alone) of becoming subject to the Act. Promising signs of improvement in terms of timeliness were noticeable at the CBC towards the end of the 2009-2010 reporting year.

As part of our process, we issued recommendations to help the institutions improve their performance. We also invited the best performers to extend their leadership role by sharing their best practices with the access to information community.

Our findings also confirmed that the legislative scheme put in place under the Federal Accountability Act is a double-edged sword. While increasing the number of institutions covered by the Access to Information Act, this scheme introduced new institution-specific exemptions and exclusions. Contrary to the stated purpose of the access legislation, this piecemeal approach prevents the Act from being generally applied to all the records the institution holds. Therefore, the gains for transparency have been limited.

Progress on systemic issues

We followed up with the 13 institutions that obtained the worst results in the 2008–2009 report cards for a progress report on the work carried out in response to our recommendations. The majority of institutions reported progress in improving performance in various areas, as indicated in Table 3. In 2011–2012, we will reassess the progress achieved by those 13 institutions using both qualitative and quantitative data, as well as five other institutions from that cohort that were considered at risk (Aboriginal Affairs and Northern Development, Fisheries and Oceans Canada, Human Resources and Skills Development Canada, Public Safety Canada and the Royal Canadian Mounted Police).

Table 3. Progress implementing recommendat ions in the 2008–2009 report cards

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Other sources of progress reports

We are also learning much from institutions through their reporting to Parliament. Annual Reports on the Administration of the Access to Information Act provide valuable insight into how individual institutions achieve compliance, on common approaches and good practices, as well as innovations that could benefit a large number of institutions.

We monitor these sources of information, since some institutions have started using them to report their progress in implementing our recommendations for improved performance. We believe that more institutions should be encouraged to do so to supplement Parliament's oversight mandate for government compliance with access legislation.

Investigating the sources of delay

As announced in our Three-Year Plan following the 2008–2009 report cards, we initiated a systemic investigation into the causes and sources of delay in the processing of access to information requests. In this investigation, we are examining delays resulting from mandatory consultations and matters of interference with the access to information process.

The investigation focuses on eight common recipients of mandatory consultations under the Act: Canada Border Services Agency, Canadian Security Intelligence Service, Correctional Service of Canada, Foreign Affairs and International Trade Canada, the Department of Justice Canada, National Defence, the Privy Council Office's Cabinet Confidences Counsel, Public Safety Canada and the Royal Canadian Mounted Police.

A second group of eight institutions are being investigated on matters of interference. They are Canada Revenue Agency, Canadian International Development Agency, Health Canada, Heritage Canada, National Defence, Natural Resources Canada, the Privy Council Office and Public Safety Canada. The investigation is scheduled to be completed in 2011.

Resolving CAIRS

The Coordination of Access to Information Requests System (CAIRS) was created in 1989 to facilitate the identification and coordination of access requests involving several institutions or raising significant legal or policy issues. CAIRS was a central registry containing the texts of access requests received by institutions covered by the Act. While information entered in CAIRS was not publicly available, users started making access requests for the list of all requests it contained.

In April 2008, TBS decided to discontinue the requirement to update CAIRS, which effectively rendered the system obsolete. We received two complaints against TBS regarding this decision. At the time the investigation was initiated, TBS had not proposed an alternative to CAIRS.

During the course of the investigation, we consulted with a number of stakeholders and obtained representations from the parties. Stakeholders demonstrated strong interest for the information contained in CAIRS. The lack of a centralized source of information made the search process for the same information time consuming, inefficient and costly. In its representations, TBS highlighted various factors that were considered prior to the decision to terminate CAIRS. Key considerations included the fact that the system was of limited value to institutions and that the information was still available directly from institutions.

Abolishing the requirement to update CAIRS effectively eliminated a centralized source of information on access requests. However, because records are still available from institutions, we were unable to conclude that the policy change constituted a denial of access under the Act.

To assist in resolving the matter and to facilitate the dissemination of government information, our recommendations were that TBS develop and implement a practice directing institutions to post on their websites the lists of access requests they receive. We also recommended that TBS enable a central search tool to allow users to search these lists.

After the conclusion of our investigation, the President of the Treasury Board announced on March 18, 2011, a commitment to expand open government through initiatives to promote open information, including requiring federal institutions to proactively release information on an ongoing basis. More specifically, all institutions subject to the Act will be expected to publish summaries of completed access requests in both official languages on their websites. TBS will examine ways to make the entire release package available online as well. We will continue to monitor progress on these positive developments.

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