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Status report on access requests in a deemed-refusal situation
Every department reviewed has been assessed against the following grading standard:
% of Deemed Refusals
Below standard compliance
More than 20%
This report reviews Health Canada’s (HCan) progress in to attain ideal compliance with the time requirements of the Access to Information Act, since the previous report. In addition, this report contains information on the status of the recommendations made in the Status Report of January 2006.
2. COMPLIANCE HISTORY
The Office of the Information Commissioner has conducted Report Cards and status reviews on HCan on six occasions. Although the department attained ideal compliance, a grade of "A", in the past, it has not been able to maintain that grade. Therefore, HCan has not been able to meet its obligations under the Access to Information Act to respond to access requests in a timely manner.
In the January 1999 Report Card, Health Canada (HCan) received a red alert grade of "F", with a 51.2% deemed-refusal to request ratio for requests received from April 1 to November 30, 1998. For the complete 1998-1999 fiscal year, the ratio was 61.8%.
The next year, for the period April 1 to November 30, 1999, the ratio improved dramatically to 3.1%, or an "A" grade. In addition, the backlog of deemed-refusal requests was entirely eliminated.
HCan had continued to achieve a grade of "A",for each of the reporting years since, with compliance ratios varying between 4.5-5% as in the last reporting period. However, the end of the fiscal year 2002-2003 found the department slipping to a 7.2% ratio of deemed refusals, resulting in a grade of "B".
In the 2004 Status Report, it was noted that HCan achieved a 5.4% deemed-refusal ratio for the period April 1 to November 30, 2004, signaling another grade of "B".
In the 2005 Report Card, HCan received a below standard compliance of "D", with a 17.2% request to deemed-refusal ratio for requests received from April 1 to November 30, 2004. This was the first year that requests carried over from the previous year, and the number of requests already in a deemed-refusal status on April 1, were taken into consideration.
For fiscal year 2004-2005, HCan received a grade of "D", with a 19.6% request to deemed-refusal ratio.
In fiscal year 2005-2006, HCan achieved an 18.9% deemed-refusal ratio, another grade of "D".
3. Current Status
For the reporting period April 1 to November 30,2006, HCan’s request to deemed-refusal ratio was 21.9%, a grade of "F".
While this represents a step back, many factors contributed to this situation. We believe this situation is temporary as the department rigorously followed last year’s recommendations and as the ATIP Coordinator is highly motivated to come into ideal compliance with the Act’s deadlines.
In 2005, the ATIP Office was provided with additional funding to hire 15 additional person-years. The hiring process was extended from August 2005 to February 2006. At the present time, 30 FTEs are dedicated to processing requests versus 15 FTEs in the past.
Some other reasons for the step back are:
- there was a 35% increase in the number of requests – from 1,363 to 1,842 in one single year;
- tardiness in retrieval of records due to poor records management and staff shortages in OPIs was also a problem. The department addressed this problem as it reduced record retrieval time from 15 to 7 days. It also increased awareness of timeframes by OPIs by increasing enforcement;
- the department suffered difficulties during consultation process with third parties and other government institutions. The main problem concerns the training of OPIs dealing with third-party exemptions;
- in the past, the department suffered from heavy approval processes, including issues regarding sensitive requests and delays in the Minister’s Office. The department had addressed this problem by implementing a new process for the Minister’s Office, Deputy Minister’s Office and Communications when dealing with sensitive requests to ensure that no delays occur. That process allowed three days for the entire approval process, and it was working well. Regrettably, this effective process was again changed in February 2007, by the new Executive Director of the Deputy Minister and has greatly added unnecessary delays in the approval process. We also noted that the department has just recently implemented Recommendation #2 of the 2004-2005 status report that recommended that the Delegation Order be amended to provide the ATIP Coordinator with similar delegated powers for the administration of the Privacy Act as for the administration of the Access to Information Act. Since March 20, 2007, the ATIP Coordinator holds full delegated authority. While we commend this achievement, because files are still being selected by the Deputy Minister’s Office for review before the records are being disclosed, we find that the new Delegation Order does not carry any weight;
- the department also suffered from poor communication with requesters in clarifying requests;
- finally, the department is still processing requests for the Public Health Agency of Canada (PHAC), which adds to the existing workload of the department.
Because of the factors described in this report, HCan was not able to achieve ideal compliance with the time requirements of the Access to Information Act.
That the Delegation Order be amended to provide the ATIP Coordinator with similar delegated powers for the administration of the Privacy Act as for the administration of the Access to Information Act.
At the time the ATIP Coordinator was interviewed for this report, the Delegation Order had not been amended as recommended in our previous 2004-2005 status report. However, we recently learned that the Delegation was modified on March 20, 2007.
That the approval process be streamlined to reflect the proper powers of the ATIP Coordinator for the administration of the Access to Information Act.
That the Deputy Minister take responsibility to ensure that the ATIP Office implement all of our recommendations in the Report Cards and status reviews to ensure that the department attains and maintains ideal compliance without further delay.
5. status OF 2006 RECOMMENDATIONS
The following recommendations were made to support HCan’s continuing efforts to process requests within the time requirements of the Access to Information Act:
Previous Recommendation #1
The ATIP Division produce a monthly report that provides the ATIP Division and Senior Management at HCan with information on how well timelines are met when responding to access requests. The reports will provide Senior Management and the ATIP Division with information needed to gauge overall HCan compliance with the Act’s and HCan’s time requirements for processing access requests
This was accomplished. The department has implemented a monthly report providing the ATIP Division and Senior Management with information on how well timelines are met. This report assisted in identifying current problems with processing access requests.
Previous Recommendation #2
HCan should come into substantial compliance with the Act’s deadlines no later than March 31, 2007.
HCan has set as a goal coming into ideal compliance before the deposit of the present report.
6. Questionnaire and Statistical Report
Questionnaire for Statistical Analysis Purposes in relation to official requests
made under the Access to Information Act
Part A: Requests carried over from the prior fiscal period.
Apr. 1/05 to
Apr. 1/06 to
Number of requests carried over:
Requests carried over from the prior fiscal year in a deemed-refusal situation on the first day of the new fiscal year:
Part B: New Requests - Exclude requests included in Part A.
Apr. 1/05 to
Apr. 1/06 to
Number of requests received during the fiscal period:
How many were processedwithin the 30-day statutory time limit?
How many were processed beyond the 30-day statutory time limit where no extension was claimed?
How long after the statutory time limit did it take to respond where no extension was claimed?
Over 91 days:
How many were extended pursuant to section 9?
How many were processedwithin the extended time limit?
How many exceeded the extended time limit?
How long after the expiry of the extended deadline did it take to respond?
Over 91 days:
As of November 30, 2006, how many requests are in a deemed-refusal situation?
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EXCERPT FROM DEPUTY MINISTER’S RESPONSE TO STATUS REPORT
"According to the formula established by your office, Health Canada was meeting deadlines in 78 percent of its cases when we submitted our statistics in November 2006 for the current report. As you noted, the grade was lower than forecasted primarily because of a 35 percent increase in requests received during the previous fiscal year. This, in turn, resulted in a higher than usual number of requests being carried over.
The Department is making progress. Our calculations indicated that, as of March 31, 2007, we were meeting deadlines in 86 percent of the cases for a grade of "C". While this is an improvement, it is still below our goal of greater than 95 percent compliance. This is because, during the past year, we processed a large number of complex and voluminous files that had been dormant in a backlog accumulated over several years. In addition, the Public Health Agency depends on the services of Health Canada’s Access to Information and Privacy Division due to difficulties in engaging a Coordinator and staff."