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Report Cards

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Institutions assessed in 2007–2008 and reassessed in 2008–2009

Foreign Affairs and International Trade Canada

Foreign Affairs and International Trade Canada (DFAIT) is responsible for Canada’s foreign policy and all matters relating to Canada’s external affairs. DFAIT’s specific areas of responsibility include international peace and security, global trade and commerce, diplomatic and consular relations, administration of the foreign service and Canada’s missions abroad, and development of international law and its application to Canada.

2008–2009 report card at a glance

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Red Alert

  • DFAIT’s deemed refusal rate was 59.6 percent, compared to 34.7 percent in 2007–2008.
  • The average time to complete a request was 163 days, the highest among the institutions surveyed.
  • DFAIT received more consultation requests than access requests and started the year with a backlog of 459 cases.
  • DFAIT’s compliance affects the entire system because of its role with regard to mandatory consultations about records pertaining to Canada’s international relations. While DFAIT provided no data on the actual amount of time it takes to respond to these consultation requests, nearly all of the other institutions surveyed complained about the length of consultations with DFAIT.
  • Delay-related complaints (those involving overdue requests and problems with time extensions) more than doubled from 2006–2007 (27) to 2007–2008 (62) but stabilized in 2008–2009 (58).
  • With the hiring of 12 new staff members, and having consultants to work on the backlog, DFAIT processed 1,000 more files in 2008–2009 than it had the previous year. The consultants, however, had to be let go due to budget constraints in 2009–2010.
  • With the assistance of a senior consultant, DFAIT thoroughly reviewed its management of and approach to access to information in order to seek improved processes and partnerships in the future.
  • In light of its critical central role, DFAIT is working with central agencies to secure additional funding to fulfill its access to information obligations.
  • DFAIT submitted 9(2) notices in 95 percent of the cases in which it took extensions of more than 30 days.

Some facts about access to information operations at DFAIT in 2008–2009

Number of requests carried over from 2007–2008
459
Number of new requests
665
Number of requests completed
739
Deemed refusal rate
59.6%*
Average time to complete a request (in days)
163
Number of consultation requests
1,039
Number of complaints registered with the Office of the Information Commissioner
93
Number of complaints the Office of the Information Commissioner resolved
29**
Number of full-time equivalents in access to information office, as of March 31, 2009
24.9
 

* Percentage of carried over and new requests delayed beyond the deadlines (30 days and extended) set out in the Access to Information Act. (See Appendix B for the formula the Office of the Information Commissioner used to calculate this rate.)

** A complaint is resolved when the Office of the Information Commissioner finds it has merit, and the institution resolves it to the Commissioner’s satisfaction.


Follow-up on 2007–2008 report card

Foreign Affairs and International Trade Canada’s (DFAIT) ability to comply with the Access to Information Act in 2007–2008 was severely hampered by its overwhelming workload associated with requests related to the mission in Afghanistan and mandatory consultations from other institutions. Consultation requests have increased significantly in recent years, to the point that they outnumber access requests. Clearly, DFAIT did not have the internal capacity to meet such demand in 2007–2008, given both its deemed refusal rate of 34.7 percent and its average completion time for consultations of 75 days. The institution committed to continuing to search for the permanent resources it needed to successfully handle both aspects of its workload and received funding to hire 12 full-time equivalents in 2007–2008. The growth in workload, however, more than outpaced the capacity of even the augmented staff complement. Despite the fact that DFAIT developed a case management strategy and improved its rate for submitting notices under subsection 9(2) of the Act, the Office of the Information Commissioner (OIC) finds the situation of DFAIT’s continuing non-compliance to be critical. The OIC is gravely concerned about the effect on the overall compliance of all federal institutions that must consult with DFAIT and the negative impact on Canadians’ right to know.

2008–2009 report card

The situation at DFAIT went from bad to worse in 2008–2009, with its deemed refusal rate approaching 60 percent, a level the institution had not seen since 2005. This is the worst record among the institutions surveyed for the 2008–2009 report cards and suggests quite clearly that the institution’s compliance with legal obligations of the Access to Information Act is not a high priority. The OIC’s concern about DFAIT’s deeper slide into non-compliance cannot be understated. DFAIT received more than 1,000 consultation requests in 2008–2009, on top of the ordinary access workload of 665 new requests. Moreover, with 459 requests carried over from 2007–2008, DFAIT faced close to the equivalent of a full year’s work at the start of the new fiscal year. The fact that nearly 60 percent of overdue requests were late by more than 30 days shows just how dire the situation has become.

DFAIT reports an increase in the complexity of the requests and consultations it receives. In particular, more and more requests involve multiple stakeholders, including foreign governments, sensitive information with the potential for serious harm if it were improperly released, and records being processed in parallel with litigation and public inquiries. DFAIT is also hampered by so much of its workforce being rotational, which limits the development of consistent and long-term knowledge that would facilitate the processing of access requests, as well as by having no means at its disposal to ensure prompt turnaround of consultation requests by foreign governments.

Nearly every institution the OIC surveyed reported being extremely frustrated with the lengthy turnaround times for consultations with DFAIT, particularly since they are accountable for processing the associated requests, yet powerless to hasten the consultation process. In response, institutions have increased the length of the extensions they take.

At the same time, DFAIT has been counselling other government institutions to close files when there is the prospect of certain exemptions under the Act. The OIC is concerned about this practice, since it might compromise requesters’ rights to records that might otherwise be available to them. The OIC calls on DFAIT to cease this practice and instead follow the mandatory consultation process in a timely manner.

DFAIT stabilized its staff complement by funding permanently the 12 new staff members it brought on in 2007–2008, but this improvement was not adequate to manage the ballooning inventory of requests. Consultants were hired to work on the backlog to allow staff to concentrate on the new requests, and DFAIT reports that it processed 1,000 more files during the reporting period than the previous year, as a result of the increased capacity. With this caseload, however, employee recruitment and retention has become even more of a challenge, which has had an impact on the access to information office’s overall operations and morale.

DFAIT is an internationally focused federal institution, but it should be more responsive to Canadians through rigorous support for access to information operations, fortified with stable resourcing. Responding to information requests promptly is the law and DFAIT must act accordingly. The OIC believes that DFAIT could take a more proactive approach to sharing information with Canadians, for example, in regard to its role in Afghanistan. This could at least somewhat stem the influx of requests, and eliminate the duplication of work from responding to similar applications by simply directing requesters to an established resource. In fact, in January 2008, the Independent Panel on Canada’s Future Role in Afghanistan recommended that “the Government should provide the public with franker and more frequent reporting on events in Afghanistan, offering more assessments of Canada’s role and giving greater emphasis to the diplomatic and reconstruction efforts as well as those of the military.”

DFAIT’s compliance translates into increased complaints to the OIC. Although DFAIT provides good cooperation at the intake stage of a complaint when the OIC requests documents, collaboration in advancing investigations is very difficult. For example, DFAIT will not provide commitment dates to respond to requests that the OIC determines to be overdue. The OIC also disagrees with two of DFAIT’s practices in responding to requests: taking lengthy extensions automatically (e.g. 180 days) and refusing to waive fees after a request is overdue. DFAIT does not concur with the OIC’s view of these practices.

DFAIT did make a number of process improvements in 2008–2009, such as reporting monthly access statistics at executive meetings as a way to engage the senior officials of each program area in addressing their obligations, and DFAIT reports improvements to internal response times as a result of this. DFAIT also reports having streamlined its approvals and communication process for sensitive requests. However, none of these improvements has yet had a dramatic impact on DFAIT’s compliance rate or processing time. DFAIT is also working with central agencies to secure funding for its access program; however, those efforts had yet to come to fruition in the fall of 2009.

A development that may have greater impact in the short term is the comprehensive report on DFAIT’s access to information operations that the institution commissioned from the experienced consultant Andrée Delagrave. The report, completed in May 2009, makes specific recommendations for improved compliance with the Act. Unless DFAIT, which has been subject to the report card process each year since it began in 1999, takes meaningful steps to implement them, however, a continued lack of resources—both financial and human—will undoubtedly hinder its operations and, in turn, those of other institutions into 2009–2010 and beyond.

Recommendations

When formulating the following recommendations, the OIC was mindful of the pressures affecting DFAIT and has, consequently, limited its recommendations to those that DFAIT can immediately implement to reverse the increase in the deemed refusal rate while officials formulate a comprehensive, long-term and achievable plan to improve the institution’s compliance with the Act.

1. The deputy ministers of Foreign Affairs and International Trade Canada must immediately devote the necessary personnel and financial resources, both in the access division as well as in the program areas, in order to comply fully with the Access to Information Act and, more specifically, enable staff to deal with the backlog, new requests and consultations alike.

Response

The department will continue its active review of the allocation of resources to build the required capacity to meet all its legislative access obligations. To that end, the department did in fact increase its operational funds for access to information in 2008–2009 and as a result processed almost 1,000 more access requests and brought forward many other improvements to the function.

Access officials will follow up with senior departmental officials to address the ongoing need for long-term resource commitments.

2. The Office of the Information Commissioner recommends that the deputy ministers of Foreign Affairs and International Trade Canada, as well as the appropriate assistant deputy ministers, directors general and directors, comply with the Act, including their responsibility to respond to mandatory consultations, and that these responsibilities be included in their performance agreements.

Response

The senior departmental officials will continue their efforts to meet legislative obligations and will continue to have this commitment reflected in senior management performance management agreements across DFAIT. We should add that the introduction of Monthly ATIP Performance Reports at the senior level did result in improved turnaround times from the program areas.

Access officials will follow up with senior departmental officials.

3. The Office of the Information Commissioner recommends that Foreign Affairs and International Trade Canada immediately cease counselling other government institutions to close files when there is the prospect of section 13 or section 15 exemptions, and follow through instead with the mandatory consultation process in a timely manner.

Response

The department will continue its efforts to respond to consultations in a timely manner and will no longer suggest to other institutions to close their files when awaiting DFAIT’s recommendations vis-à-vis sections 13 and/or 15 of the Act. We should add that DFAIT has always followed through on consultations received from other government departments, but that foreign governments sometimes take one to three years to respond and, more importantly, are not legally obliged to respond at all. As such, when consultations are anticipated to be lengthy due to the sensitive or complex nature of the issues, DFAIT will support other departments’ interim partial release, where possible, to ensure the applicant’s legitimate request for information is met at the earliest possible time.

The Access to Information and Privacy Division has already modified its response templates for other government departments accordingly.

4. The Office of the Information Commissioner recommends that Foreign Affairs and International Trade Canada adopt a collaborative approach with the OIC to respond to complaints, in accordance with the specific points enumerated by the OIC in DFAIT’s report card.

Response

The department will continue, as it has always done, to collaborate with the OIC in order to resolve complaints as expeditiously as possible. Current access to information office policy is to respond to all calls and emails from the OIC within 24 hours. In addition, the access office consistently meets the OIC’s 10-day deadline for providing requested records.

The access to information office will continue to assess each complaint on a case-by-case basis in order to come to a mutually agreeable solution. In addition, in cases in which the applicant responds to the fee estimate and wishes to re-scope, the access office will accept to continue with the processing of that initial request if the applicant responds within the specific deadline in the fee notice. Should an applicant respond after a file has been closed, the applicant will be invited to submit a new request to proceed with

Deemed refusal rate, 2004 to 2008–2009

This graph shows the deemed refusal rate for DFAIT for the last five reporting periods. This is the percentage of carried over and new requests DFAIT delayed each year beyond the deadlines (30 days and extended) set out in the Access to Information Act.

Deemed refusal rate, 2006 to 2008–2009

How long requests completed late were overdue, 2008–2009

DFAIT reported that it completed 163 of the requests it received in 2008–2009 after their due date. This graph shows how long these requests stayed open beyond that deadline. It is of concern that 59 percent of these requests were late by more than 30 days.

Number and outcome of delay-related complaints to the OIC, 2006–2007 to 2008–2009

Number and length of time extensions reported in 2008–2009

This graph shows the number and length of the time extensions DFAIT reported to have taken in 2008–2009. The institution supplied this information in the notices it sent to the OIC under subsection 9(2) of the Access to Information Act. DFAIT submitted the notices 95 percent of the time in 2008–2009.

Number and outcome of delay-related complaints to the OIC, 2006–2007 to 2008–2009

Number and outcome of delay-related complaints to the OIC, 2006–2007 to 2008–2009

These graphs show the number and outcome of two types of complaint registered against DFAIT in the last three reporting periods: complaints about deemed refusals (access to information requests that DFAIT delayed beyond the deadlines—30 days and extended—set out in the Access to Information Act) and complaints about DFAIT’s use of the time extensions allowed under the Act. Resolved complaints are those that the OIC finds to have merit, and that the institution resolves to the Commissioner’s satisfaction.

Deemed refusal complaints

Deemed refusal complaints

The number of resolved deemed refusal complaints decreased from 2007–2008 to 2008–2009 (from 19 to 10). However, the proportion of resolved complaints to the total was high in each of the three years (88 percent; 90 percent; 53 percent).

Time extension complaints

Time extension complaints

The total number of complaints increased significantly from 2006–2007 to 2007–2008 (from 11 to 41), as did the number of resolved time extension complaints (from 7 to 12). The respective totals were about the same the following year (39; 11).

 

Number and outcome of complaints to the OIC, 2006–2007 to 2008–2009

This table sets out the number and outcome of the complaints the OIC registered against DFAIT in each of the last three reporting periods. Resolved complaints are those that the OIC finds have merit and that the institution resolves to the Commissioner’s satisfaction.

  Resolved Not
substantiated
Discontinued Pending Total
2006–2007
Administrative 23 4 4 0 31
Refusals 16 0 3 3 22
Cabinet confidences 0 5 0 0 5
Total 39 9 7 3 58
2007–2008
Administrative 31 15 15 1 62
Refusals 2 5 2 19 28
Cabinet confidences 0 0 1 1 2
Total 33 20 18 21 92
2008–2009
Administrative 26 7 32 10 75
Refusals 3 1 1 12 17
Cabinet confidences 0 1 0 0 1
Total 29 9 33 22 93

The number of resolved administrative complaints was very high each year (23; 31; 26), while the number of resolved refusal complaints decreased significantly from 2006–2007 to 2007–2008 (from 16 to 2) and remained low (3) in 2008–2009. The OIC discontinued 33 complaints in 2008–2009 at the request of complainants.

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