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Report Cards


Year


Justice Canada

Status report on access requests in a deemed-refusal situation

 

1. Background

Every department reviewed has been assessed against the following grading standard:

% of Deemed Refusals

Comment

Grade

0-5%

Ideal compliance

A

5-10%

Substantial compliance

B

10-15%

Borderline compliance

C

15-20%

Below standard compliance

D

More than 20%

Red alert

F

This report reviews Justice Canada’s progress, since the previous report, in coming into compliance with the time requirements of the Access to Information Act. In addition, this report contains information on the status of the recommendations made in the 2006 Status Report.

  1. COMPLIANCE HISTORY

The Office of the Information Commissioner has conducted Report Cards and status reviews on Justice Canada on two occasions. The department has never come into ideal compliance during the period of our reviews. Therefore, Justice Canada has not been able to meet its obligations under the Access to Information Act to respond to access requests in a timely manner.

In fiscal year 2003-2004, the department received 362 new access requests. Of the completed requests received in 2003-2004, 92 were completed in a deemed-refusal situation, while 43 were carried over to the next fiscal year in a deemed-refusal situation. The deemed-refusal ratio including access requests carried over at the start of fiscal year 2003-2004 was 39%, resulting in an "F" on the grading scale.

In the 2005 Report Card, Justice Canada received a red alert grade of "F". 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. As a result, for the reporting period April 1 to November 30, 2004, Justice’s deemed-refusal ratio was 43.5%.

For fiscal year 2004-2005, Justice Canada received a grade of "F", with a 52.7% request to deemed-refusal ratio.

In the 2005-2006 Report Card, Justice Canada’s deemed-refusal ratio was 38.8%, earning the department a grade of "F".

3. CURRENT STATUS

For the reporting period April 1 to November 30, 2006, Justice Canada’s deemed-refusal ratio was 37.3%, a grade of "F".

This year, however, many factors worked against Justice Canada’s ability to come into substantial compliance with the Act’s deadlines. For example, the number of access requests received has significantly increased (216 for the first eight months versus 174 last fiscal year), an increase of 24%. In 2005, Justice Canada reviewed 27,563 pages in responding to formal access requests. In 2006, the department reviewed 200,305 pages.

4. RECOMMENDATIONS

Because of the factors described in this report, Justice Canada was not able to achieve ideal compliance with the time requirements of the Access to Information Act.

Recommendation #1

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.

Recommendation #2

That the ATIP Office develop a fee waiver policy for search and preparation of records.

Although the department has established a policy to waive photocopying fees in certain instances, it has not included a fee waiver policy for search and preparation of records.

Recommendation #3

Where Justice Canada consults with or is consulted by a department routinely, the departments enter into a Memorandum of Understanding to cover timeframes and their responsibilities in the consultation process, including the provision of rationales for claiming exemptions.

This previous recommendation #1.9 was not fully implemented. Therefore, the same recommendation will be maintained this year.

 

5. status OF 2006 RECOMMENDATIONS

The following recommendations were made to support Justice Canada’s continuing efforts to process requests within the time requirements of the Access to Information Act:

Previous Recommendation #1.1

The reason(s) for flagging an access request as sensitive be documented.

Action Taken:

This was completed.

Previous Recommendation #1.2

The completed access requests for FY 2004-2005 be reviewed to determine the reason(s) for delayed responses to access requests flagged as sensitive and measures be developed and implemented to eliminate the delays.

Action Taken:

This was completed.

Previous Recommendation #1.3

The Deskbook for ATIP Staff be amended to include a requirement to notify a requester of the limitation of the right to complain when an access request is almost one year old.

Action Taken:

While the Deskbook for the ATIP Staff has not yet been amended, template letters used by Justice Canada to acknowledge receipt of a request, request for fees, request for a time extension or provide a final response to a requester contain a notification advising of the right to complain.

Previous Recommendation #1.4

The ATIP Office develop a fee waiver policy for access requests.

Action Taken:

Justice Canada has established a policy to waive photocopying fees where access is sought via CD ROM or where less than 200 double-sided pages are provided to the requester. This will be included in the Deskbook for ATIP Staff.However, no formal fee waiver policy has been established for search and preparation.

Previous Recommendation #1.5

The ATIP Office document the criteria for categorizing an access request as abandoned or unable to process.

Action Taken:

The following criteria will be integrated in the 2007-2008 Deskbook for ATIP Staff:
  1. Abandoned access requests:
  1. when a request does not meet the formal requirements of the Act, namely, because no application fee was provided or it is impossible to determine whether the requester is a Canadian citizen, a letter is sent to the requester advising that the request will be deemed abandoned if formal requirements are not met by a given date (20 calendar days);
  2. where a request requires clarification, or Justice Canada requires a deposit for search, preparation, or reproduction, a letter is sent to the requester advising formally that the request will be deemed abandoned if formal requirements are not met by a given date (20 calendar days);
  3. where the requester abandons the request.
  1. Unable to process request:
  1. where it is impossible to reach requester; or
  2. where records relating to the request do not exist.

Previous Recommendation #1.6

A Deskbook for ATIP Staff incorporate criteria to consider treating an access request informally.

Action Taken:

Justice Canada will incorporate new criteria in the 2007-2008 Deskbook for ATIP Staff. The policy of the ATIP Office is generally to consider as informal any requests for: material already released in response to previous access to information requests; documents releasable without exemptions; call-ups against standing offers for temporary help service; etc. A determination is made for each request and, whenever possible, the request is processed on an informal basis.

Previous Recommendation #1.7

The ATIP Office produce a weekly report that provides information on access requests that are required to be completed at each stage in the request-processing model in order to proactively manage the deemed-refusal situation.

Action Taken:

A weekly report is provided to the Deputy Ministers and to the Minister. The ATIP Director reviews the status of the files and inquires about requests which are soon due in order to take all necessary measures to prevent a deemed-refusal situation.

Since April 2006, a new report is sent to the DM’s direct subordinates on the performance of their units. A report is sent in April and another in September. These reports have generated many reactions which have brought awareness to the dramatic situation in which Justice Canada finds itself. As such, many units have reorganized their methods to better track and process access requests. Some have requested assistance from the ATIP Office to validate their new process. Due to the positive results of these performance reports, the ATIP Office is producing a monthly status report as of 2007-2008.

Previous Recommendation #1.8

The ATIP Office review the access request process to eliminate numerous review stages in the process.

Action Taken:

The access request process has been studied to eliminate unnecessary steps. The new procedure now contains five main steps, including the review of interesting requests by the Minister/DM’s offices; unfortunately, this review requires five unnecessary calendar days. In our view, this step should be placed in parallel of the process to allow more time to the OPI and ATIP offices. The Office of Primary Interest Guidance Checklist has also been completely redrafted to facilitate the OPI’s work and ensure that the ATIP Office receives all relevant information at the beginning of the process. An approval process, with recommendations by the OPI, at the onset of the life cycle of the request was approved by senior management and the review of interesting requests is now incorporated concurrently.

Previous Recommendation #1.9

Where Justice Canada consults with or is consulted by a department routinely, the departments enter into a Memorandum of Understanding to cover timeframes and their responsibilities in the consultation process, including the provision of rationales for claiming exemptions.

Action Taken:

Justice Canada is often consulted on the application of the solicitor-client privilege. Rather than entering into a Memorandum of Understanding with departments often seeking consultations, the Director of Access and Privacy sent, in July 2006, a memorandum to ATIP Coordinators providing instructions on how to seek consultations involving solicitor-client privilege information and describing the responsibilities of departments seeking these consultations. No timeframes or commitment dates have been expressly addressed in the memorandum. Also, the memorandum makes no reference to rationales for claiming exemptions.

While useful, the memorandum constitutes only one step in the right direction. Justice Canada should ask departments to call Justice ahead to obtain timeframes based on the volume of records to be reviewed. Justice Canada should also commit itself to providing full rationales for claiming exemptions under the Act. Finally, Justice Canada did not enter into a Memorandum of Understanding with departments with which it consults on a regular basis. A review of the memorandum is being undertaken and more detailed guidelines will be included because of the new approval process. An impact assessment on the feasibility of entering into Memorandum of Understanding will be undertaken by Justice Canada to determine whether this course of action is applicable.

As Justice Canada partly complied with this recommendation, it will be reiterated this year.

Previous Recommendation #1.10

The ATIP Office conduct an analysis of the completed access requests for FY 2003-2004 and FY 2004-2005 to determine the reasons for missed extension dates and develop a plan to resolve the situation.

Action Taken:

An action plan has been established by Justice Canada following a business case which identified the main reasons for deemed refusals. The main reason identified was the lack of resources. The cornerstone of the action plan has, therefore, been to hire eight additional analysts. Three additional consultants were also hired to address the backlog.

Additional measures were also undertaken by Justice Canada during the course of its action plan. Statistics were drawn at the DM’s request about the performance of each unit which were sent to each Direct Report. Each Direct Report will be held accountable for compliance with the Act as part of the annual Performance Agreement. Measures were established to ensure the ATIP Office could rely on departmental employees’ cooperation to ensure full compliance with the law. A training program has been delivered and has been developed on the operational and practical aspects of ATIP.

Previous Recommendation #1.11

If an extended date will not be met, the ATI office should routinely contact the requester in writing to indicate it will be late, to provide an expected response date and of the right to complain to the Information Commissioner. This will not impact the deemed-refusal status once the extension date is missed. However, it will alleviate some of the requester’s frustration and perhaps avert a complaint.

Action Taken:

The Deskbook for ATIP Staff will be amended to include this recommendation. The recommendation has already been implemented by Justice Canada.

Previous Recommendation #1.12

The ATIP Office institute requirements for documenting the rationale for claiming all exemptions for the exercise of discretion and for the consideration of exceptions to mandatory exemptions.

Action Taken:

The OPI Guidance Checklist and Return Form has been amended to provide additional information to the ATIP Office for the exercise of discretion. However, the Checklist should be re-amended to provide better guidance and specific criteria related to the exercise of discretion and to the consideration of exceptions to mandatory exemptions. An ATIP Guideline is being developed to communicate the new approval process, which requires OPI recommendations when the records are provided, eliminating the approval process at the end of the life cycle.

Previous Recommendation #2.1

The ATIP Office produce a monthly report that provides the ATIP Office and Senior Management at Justice Canada with information on how well timelines are met when responding to access requests. The reports will provide Senior Management, OPIs and the ATIP Office with information needed to gauge overall departmental compliance with the Act’s and department’s time requirements for processing access requests.

Action Taken:

A weekly report is provided to the Deputy Ministers and to the Minister. The ATIP Director reviews the status of the files and inquires about requests which are soon due in order to take all necessary measures to prevent a deemed-refusal situation.

Since April 2006, a new report is sent to DM’s direct subordinates on the performance of their units. A report is sent in April and another in September. These reports have generated many reactions which have brought awareness of the dramatic situation in which Justice Canada finds itself. As such, many units have reorganized their methods to better track and process access requests. Some requested assistance from the ATIP Office to validate their new process. A new monthly performance status report is now being provided, rather than twice a year.

Previous Recommendation #2.2

The ATIP Director should exercise the delegation to answer requests within deadlines whether or not the review process has been completed.

Action Taken:

This recommendation has been fully put in place. The ATIP Director exercises the delegation whether or not the review process with the MO/DMO or OPI has been completed.

Previous Recommendation #2.3

Justice Canada should come into substantial compliance with the Act’s deadlines no later than December 2006.

Action Taken:

Justice Canada was not able to implement this recommendation. At the beginning of fiscal year 2006, 102 requests were in a deemed-refusal situation. As of November 30, 2006, only 34 were still in this situation. This improvement should significantly improve next year’s results if Justice Canada continues to process current requests in accordance with the law.

 

Previous Recommendation #3.1

The use of consultants to provide processing resources for long-term increases in the ATI workload should be discontinued as a staffing strategy.

Action Taken:

Justice Canada agrees with this recommendation. Eight additional positions have been staffed in order to reduce the need for consultants. A review of the 2005-2008 Action Plan is also being undertaken.

Previous Recommendation #3.2

The ATIP Office develop an Advisor’s Manual on the policies and procedures for processing access requests.

Action Taken:

Many procedures have already been put in place. The Manual will be produced during the course of 2007.

Previous Recommendation #3.3

Departmental OPIs providing advice on what might be exempted from disclosure under the Access to Information Act be made aware of their responsibilities for documenting the rationale for claiming an exemption and a demonstration of the proper exercise of discretion.

Action Taken:

Contrary to other departments, OPIs within Justice Canada do not formulate recommendations. They are simply consulted after the ATIP analysts have applied exemptions. If, during the course of this consultation, OPIs disagree with recommended disclosure, they must provide a rationale for claiming an exemption and a demonstration of the proper exercise of discretion. The new approval process will address the requirement for recommendations, impact and rationales when the records are being retrieved.

Previous Recommendation #3.4

The User’s Guide be updated by the ATIP Office.

Action Taken:

Many procedures have already been put in place. The Manual will be produced during the course of 2007.

Previous Recommendation #3.5

The ATIP Office develop criteria to consider for exercising discretion on whether or not to release information considered subject to a discretionary exemption.

Action Taken:

The ATIP Office claims to abide by Treasury Board Guidelines. It did amend the OPI Guidance Checklist and Return Form in order to provide additional information on the exercise of discretion. However, too little has been done and the Checklist should be re-amended to provide better guidance and specific criteria related to the exercise of discretion. The Checklist will be included in the ATIP guidelines to provide more guidance on the exercise of discretion.

Previous Recommendation #3.6

The ATIP Office develop and implement an Access to Information Training Plan.

Action Taken:

A new PM-06 position was created and one of the tasks of this employee is to develop and implement an Access to Information Training Plan. The ATIP Office has already developed and delivered awareness and training sessions to departmental staff. It also has given specific training to the ATIP advisors and analysts, in collaboration with colleagues at TBS and Justice Information Law and Privacy (ILAP). A Communications strategy to inform departmental staff of the new approval process is being completed, and awareness sessions will be provided in the regions and at headquarters.

Previous Recommendation #3.7

The ATIP Office review its use of ATIPflow to provide proactive management of ATIP administration.

Action taken

: This recommendation has been implemented.

Previous Recommendation #4.1

Justice Canada, as part of the renewal of the Information Management Program, determine categories of information that may be disclosed proactively.

Action Taken:

This recommendation has been implemented.

 

 

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

Mar. 31/06

Apr. 1/06 to

Nov. 30/06

1.

Number of requests carried over:

153

138

2.

Requests carried over from the prior fiscal year in a deemed-refusal situation on the first day of the new fiscal year:

78

102

Part B: New Requests - Exclude requests included in Part A.

Apr. 1/05 to

Mar. 31/06

Apr. 1/06 to

Nov. 30/06

3.

Number of requests received during the fiscal period:

174

216

4.A

How many were processedwithin the 30-day statutory time limit?

124

119

4.B

How many were processed beyond the 30-day statutory time limit where no extension was claimed?

24

9

4.C

How long after the statutory time limit did it take to respond where no extension was claimed?

1-30 days:

14

4

31-60 days:

5

0

61-90 days:

1

1

Over 91 days:

4

4

5.

How many were extended pursuant to section 9?

37

69

6.A

How many were processedwithin the extended time limit?

10

24

6.B

How many exceeded the extended time limit?

5

11

6.C

How long after the expiry of the extended deadline did it take to respond?

1-30 days:

2

3

31-60 days:

1

3

61-90 days:

2

4

Over 91 days:

0

1

7.

As of November 30, 2006, how many requests are in a deemed-refusal situation?

10

 

EXCERPT FROM DEPUTY MINISTER’S RESPONSE TO STATUS REPORT

"The Department has made a tremendous effort to improve its compliance rate and began fiscal year 2007-2008 with a "B" rating, with 9% of requests in deemed refusal. I assure you that senior management is fully aware of its ongoing responsibilities and measures were implemented to further improve the process in March 2007."

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