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As part of its mandate to promote open and transparent government, the Office of the Information Commissioner of Canada (OIC) reviews selected federal institutions to assess their compliance with the Access to Information Act (the Act) and identify any problem areas that should be corrected.
The Special Report for 2007-2008 reflects the introduction of a new process for establishing the report cards of institutional performance, which make them more relevant and useful to Parliament in increasing accountability and transparency. The enhanced process provides more information on various contextual factors that affect the performance of an institution. It also allows us to examine important system-wide issues which confront most institutions yet are beyond their immediate control.
In this report, the OIC makes various recommendations to the Treasury Board Secretariat (TBS) and to the individual institutions in order to address these issues.
In carrying out its system-wide assessment, the OIC has identified five closely related areas of concern, namely: information management, time extensions, consultations, human resources and leadership.
Access to information depends heavily on information management practices. If institutions cannot effectively manage their information, they will most likely have difficulty in responding to information requests in a timely, complete and consistent manner.
Therefore, it is of particular concern that standards for information management seem to be poorly applied across the federal government. Outmoded, inconsistent or inefficient records management practices and systems tend to slow down the process of finding and retrieving records. This year’s process also uncovered irregularities and inconsistencies between the information that institutions provided the OIC and data collected by TBS.
Clearly, the federal government has not succeeded in addressing the challenge that the modern digital information environment presents. There is now an urgent need for leadership and government-wide action in this area, including developing and maintaining state of the art information management practices and resources.
A second area of concern is the use of time extensions when institutions are unable to fulfill an access to information request within the statutory 30-day limit.
Contrary to the original intention of the Act, it would seem that extensions have become the norm rather than the exception. The OIC’s analysis shows a trend toward greater use of time extensions and for longer periods of time. Some of the institutions reviewed this year took an average of 120 days to respond to requesters.
There is a variety of possible reasons for this trend. Part of it can be legitimately attributed to the ever-increasing complexity and interdependency of government work, which call for more partnerships and consultations. There could also be underlying challenges — such as a lack of resources — that make it difficult for institutions to respond to requests on a timely basis. Finally, it could be the case that institutions are relying on extensions as a tactic to avoid a poor performance record as measured by deemed refusals.
Also of concern to the OIC is the lack of checks and balances needed to make sure the system is not being abused and that all institutions using extensions are doing so for legitimate and documented reasons. There is currently little guidance on the use of time extensions and their duration. There are limited powers to enforce the existing requirements, and there is no sanction provided in the Act for poor performance.
There is no doubt that more discipline is required on the use of time extensions. Although irregularities and inconsistencies in the data available on extensions do not allow us to draw any definitive conclusions at this point, the OIC has sufficient evidence that the use and duration of time extensions have significantly slowed down the treatment of requests. The OIC will closely monitor the situation while undertaking a systemic investigation of the use of extensions across federal institutions.
Consultations have now become an issue of concern for two reasons: first, their increasing volume and impact on institutions’ workload; second, the delays and resulting risk management practices.
Because so much of the government’s work today is shared across several institutions, the sheer number of consultation requests is rapidly increasing and, therefore, adding to the workload of institutions. Yet, this burden on institutions is not currently recognized, measured or appropriately resourced.
Moreover, only the institution subject to the request is currently accountable for meeting the requirements of the Act. Other institutions that might be consulted are not held to any standard. Institutions have therefore adopted practices in order to manage the risk of long delays resulting from consultation requests.
The magnitude of consultation requests clearly needs to be better documented with a view to allocating adequate resources for this function.
Human resources and training
Because of an acute shortage of experienced personnel in the area, institutions have had a difficult time attracting and keeping qualified professionals to manage access to information operations. They are attempting to cope with the shortage by hiring consultants — a practice which is unsustainable over the long term.
As a matter of urgency, the OIC reiterates its recommendation that the federal government set standards for recruiting access to information specialists and recognize them as professionals pursuant to a certification process.
It is also worth noting that there is currently no mandatory staff training on access to information in federal institutions, despite the high payoff in terms of raising awareness about the Act and improving the processing of access to information requests.
Therefore, the OIC recommends that the Treasury Board Secretariat work with the Canada School of Public Service to develop an integrated learning strategy for all employees of the public service.
Leadership is a crucial factor in determining how well an institution meets its obligations under the Act. When a senior manager sends a clear message that access to information requests deserve full and efficient co-operation, performance standards improve. Unfortunately, that leadership currently depends on responsible and committed managers stepping forward. If these managers move on to other institutions, there is no guarantee that their standards will be upheld.
The OIC expects that TBS will fulfill its responsibility and exercise the high-profile and forceful leadership which is required in the area of access to information. To this end, the Office also recommends that TBS review its current criteria to measure institutional performance.
Institutional Report Cards
The system-wide issues discussed in this report emerge from a detailed analysis of the performance of ten federal institutions covered by the Act. The institutions were sampled according to specific criteria including: their previous performance, the number of consultations with other institutions on access requests, their use of extensions, the approval process, and good practices.
The assessment framework used for this year’s report has been expanded to provide a broader picture of institutional performance. Where appropriate, the report card includes a description of contextual factors — such as changes in workload, capacity, process or leadership — which might have impacted the ability of the institution to fulfill its obligations under the Act.
Institutions received a score — ranging from one to five stars — according to their overall performance. For 2007-2008, the Department of Justice Canada achieved the best score despite significant challenges, such as a steep increase in the number of consultation requests from other departments. This outstanding performance results from new practices introduced in recent years which have allowed the department, among other things, to complete two thirds of the new requests received during the year within 30 days and to fulfill most extended requests within 90 days. Library and Archives Canada maintained a high level of performance from the previous review period and succeeded in responding to roughly three quarters of requests within 30 days. However, it was determined that the length of the vast majority of time extensions could not be justified.
Two institutions had a fair level of compliance in 2007-2008: the Privy Council Office and Natural Resources Canada. Although the OIC assessed the performance of the Privy Council Office’s ATIP Office on many occasions in the last decade, it is the first time the performance of the Privy Council Office’s Cabinet Confidences/Counsel was reviewed. This group is responsible for determining whether records containing Cabinet confidences should be protected from disclosure. There is much criticism expressed by federal institutions about mandatory consultations with Cabinet Confidences/Counsel and the time it takes to receive a response. The questionnaire used this year only provided a glimpse into the consultation process related to Cabinet confidences. A more precise tool will be developed for future assessments.
The remaining six institutions performed at a below average level in 2007-2008 for a variety of reasons. Most institutions struggled due to a significant increase in their workload (the number of requests received, the number of pages reviewed and/or the number of requests for consultation received). Some also made great use of prolonged time extensions, have convoluted approval processes and lack expediency in responding to consultation requests.
The Canadian Border Services Agency and Public Works and Government Services Canada have elaborated and implemented a three-year improvement plan, which allowed them to reduce significantly their backlog of requests during the review period and improve various elements of their operations.
Health Canada and the Royal Canadian Mounted Police also put a lot of efforts to reduce their backlog of requests. However, Health Canada needs to review and streamline its processing model to avoid additional delays and the Royal Canadian Mounted Police should enhance its case management system to monitor more closely all aspects of its operations.
The Department of Foreign Affairs and International Trade Canada’s overall workload significantly increased during the review period, especially considering the volume of consultation requests it received from other federal institutions. Due to limited resources, its turnaround time on consultation requests is on average 75 days. Prolonged consultations are a major concern to the OIC because of their effects on the access to information system.
Finally, Canada’s mission in Afghanistan and the associated complexity of processing records stemming from an ongoing mission continued to be a challenge for the Department of National Defence. This situation has led to an increase in the workload as well as in the use of time extensions to alleviate this increase, and the creation of an internal task group to review sensitive information related to the ongoing mission. Overall, the access process has been delayed.
Office of the Information Commissioner Commitments
In implementing its new report cards process, the OIC has devised ways to further improve its own work. As a result, it will review the classification used to describe the outcome of complaints so that it provides more useful and fairer information about institutions’ responses. Moreover, by 2009-2010, the Office will implement criteria for measuring the degree to which institutions are releasing information in compliance with the Act. It also commits to better inform federal institutions about the report card process and its requirements well ahead of time.