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Institutions assessed in 2007–2008 and reassessed in 2008–2009
Privy Council Office
Led by the Clerk of the Privy Council, the Privy Council Office (PCO) facilitates the operations of Cabinet and the Government of Canada by implementing the Government’s policy agenda and coordinating responses to issues facing the country. PCO oversees the federal public service.
Some facts about access to information operations at PCO in 2008–2009
Number of requests carried over from 2007–2008
Number of new requests
Number of requests completed
Average time to complete a request (in days)
Number of consultation requests
Number of complaints registered with the Office of the Information Commissioner
Number of complaints the Office of the Information Commissioner resolved
Number of full-time equivalents in access to information office, as of March 31, 2009
* 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
Access to information office
The Privy Council Office’s access to information office (PCO-ATIP) improved its compliance in 2007–2008 from the previous year but it was still not as good as the Office of the Information Commissioner (OIC) would expect from the institution that is at the centre of government. PCO-ATIP undertook a reorganization, staffing actions, and process and software improvements, none of which appear to have been accomplished completely. It committed to continuing to streamline its processes and upgrade its technology, although the latter effort was significantly delayed due to concerns about software and its applicability to PCO’s case management needs.
Cabinet confidences counsel
The OIC recommended that PCO’s Cabinet confidences counsel office (PCO-CCC) develop a tool to track the progress of its consultation requests for section 69 exclusions, and the institution responded that its legal schedules provide such a tracking function. Treasury Board guidelines for processing Cabinet confidence consultations recommend that an institution’s legal counsel act as its conduit to PCO-CCC, which necessitates these schedules. Rather than adding work, PCO-CCC reports that this assists institutions by facilitating the consultation; their own legal representatives are apprised of potential issues and are often able to respond to access staff about technical concerns and in response to questions, rather than having to go to PCO-CCC for interim advice. Further, PCO-CCC reported that the historical and horizontal research that some requests required continued to affect processing times. PCO-ATIP is one of PCO-CCC’s main clients, but despite a recommendation that a protocol be struck between the two for the sake of expediency, PCO-CCC continues to require PCO-ATIP to submit its consultation request as does any other institution.
2008–2009 report card
Access to information office
As the institution responsible for managing Cabinet business and the government’s policy priorities, PCO-ATIP is a hub of information. This centralization of government data should constitute a pivotal resource from which Canadians receive an integrated and efficient response to their access requests. Consequently, it is of concern to the OIC that PCO-ATIP’s deemed refusal rate was 24 percent in 2008–2009 and has been no better than 17.9 percent in recent years.
Due to its central role, it is not uncommon for PCO-ATIP to need to consult upwards of 15 institutions for their representations pertaining to a single request. Not surprisingly, the immediate impact on requesters is that the request process has to stop until consultations are complete. PCO-ATIP extended nearly three quarters of all requests it received to consult with other institutions. In addition, 61 percent of extensions were for more than 120 days beyond the initial 30-day deadline. PCO-ATIP also took more than 30 days to complete 80 percent of its 50 overdue requests. It took 90 days to complete nearly half of them.
PCO-ATIP insists that its priorities are Canadians’ priorities, yet the case must be made that Canadians value government transparency by virtue of the fact that they file access requests and expect records to be forthcoming in a timely manner. PCO-ATIP’s average completion time for requests in 2008–2009 was 157 days.
When it comes to Cabinet confidences, PCO-ATIP has to consult PCO-CCC to have these vetted. Both groups within PCO reject the suggestion of a protocol that would recognize the central role of PCO and facilitate faster turnaround time for requests at the centre of government.
The OIC is concerned that PCO’s access to information delegation order accords more power to senior management in the branches than it does to the director of the access to information office. PCO-ATIP reports no evidence of delay from this structure. The delegation order was updated in June 2008, but does not concentrate authority with the director of PCO-ATIP, as officials said it would during testimony to the House of Commons Standing Committee on Access to Information, Privacy and Ethics in June 2005.
Staffing issues affected PCO-ATIP as much as other institutions, and not only in the access to information office. PCO-ATIP had 17 full-time staff, despite the fact that it is approved to 27 full-time equivalents. The institution reports, however, that it is difficult to attract and retain competent staff and, despite ongoing efforts to maintain a full complement, it finds itself habitually understaffed.
Employee turnover is constant throughout the rest of the organization, as well, to the extent that an estimated one third of its staff is in transition at any given time. PCO-ATIP recognizes that solid comprehension of access to information within the operations groups is paramount to its success and has a dedicated training manager to provide awareness sessions. PCO-ATIP gave formal training and awareness sessions on access to information to 267 staff in 2008–2009. Total indeterminate staff in the institution is 849.
PCO-ATIP has recently switched to electronic scanning of records, reducing its paper burden and realizing production efficiencies. Given its responsibility for the flow of Cabinet documents, PCO as a whole has a disciplined and localized information management capacity, which enhances its efficiency in responding to requests.
The Office of the Information Commissioner registered 198 complaints against PCO-ATIP in 2008–2009, but resolved only 8 and found 13 to be not substantiated; 106 were discontinued (mostly at the request of one complainant) and 71 were pending at year-end.
PCO-ATIP reports that it has vastly improved its processes, and felt over-audited as it responded to another edition of the OIC report card. The OIC will continue to assess this office, largely due to its central role in the access to information system, and as long as its deemed refusal rate and average completion time do not dramatically improve.
Cabinet confidences counsel
PCO-CCC certifies Cabinet confidences contained within the records held by institutions. Its operations remain challenged by staffing issues because of the unique combination of qualifications it requires its staff to have related to the access to information legislation and broader, legal capabilities to determine Cabinet confidences.
As of the fall of 2009, there were only four staff to manage the entire workload. Most federal institutions have reported continued frustrations with the review process, in terms of procedures and delays.
PCO-CCC reviews documents for the application of Cabinet confidences in strict accordance with guidelines established by Treasury Board in 1993. These guidelines specify that the required consultations be managed through an institution’s legal representative, a requirement that is criticized by many institutions as overly bureaucratic and resulting in added administrative burden. However, PCO-CCC reports that it has significantly improved the quality of the schedules institutions submit to PCO-CCC. The OIC is of the view that, given the dissatisfaction with the consultation process, PCO-CCC should review the consultation process with the access to information community. It should also show greater flexibility in responding to consultations from other institutions.
PCO-CCC has a triage system whereby each incoming request is reviewed on the day it arrives to determine whether further research and documentation is required to certify whether the records contain Cabinet confidences. PCO-CCC estimates the turnaround time for submitted documents; however, it reported that factors such as litigation and multi-institutional involvement make it difficult to do so with a consistent level of accuracy. This has a ripple effect on the compliance rates of the consulting institutions.
PCO-CCC stands by its approach because it ensures equal treatment among consulting institutions, and allows them to do their work instead of responding to countless questions that the institution’s own legal counsel can perhaps answer.
1. The Office of the Information Commissioner recommends that the Clerk of the Privy Council demonstrate leadership in establishing access to information as an institutional priority without exception. Access to information is a mandatory program and its associated legislated duties within a federal institution must be paramount.
The Clerk of the Privy Council is committed to access to information as a core activity of government, and to ensuring that corporate responsibilities under the Access to Information Act are met. With the full support of the Clerk and PCO Executive Committee, PCO completed its comprehensive reorganization of the Access to Information and Privacy Division in the fall of 2007. This action was reported by the OIC in the 2007–2008 OIC report card. Major process improvements in areas such as document review and reporting were finalized by the end of 2007 and continue as an “evergreen” initiative. Staff turnover and skill shortages are endemic to the field and adequate staffing is never “accomplished completely.” PCO launched its ATIP Officer Development Program in 2007 and, to date, has had nine officers in the program. PCO’s redaction capacity was transformed by the acquisition of modern on-screen software in 2008. However, a further software upgrade was postponed until 2010, due to technical concerns.
The report card comments on overall turnover of the department and, although it may tangentially affect performance, the ATIP training program for departmental staff proactively promotes compliance. During the reporting year, 267 employees received training and awareness sessions, and several awareness events were conducted on a department-wide basis.
2. The Office of the Information Commissioner recommends that the Clerk of the Privy Council amend the delegation of authority pursuant to section 73 of the Access to Information Act so that the access to information director has the authority to approve the release of records.
PCO does not agree with this recommendation. Under section 73 of the Access to Information Act, it is the prerogative of the head of a government institution to designate who may exercise functions or powers of the Act. It should be noted that other government organizations operate with a delegation structure similar to PCO. Access to information requests to PCO, which are often complex and horizontal in nature, require a strong consultative relationship between records holders and the access to information authority, which the delegation provides. PCO would retain such consultation and consensus regardless of the structure of the delegation. As stated in the PCO access to information process timeline, offices of primary interest are allotted four days for review and approval of the records package. Finally, internal monitoring of the PCO approval process has provided no evidence that its delegation of authority creates delay, and the OIC has not brought forward data to support the assertion.
3. The Office of the Information Commissioner recommends that PCO-ATIP develop a clear plan to tackle the backlog of access requests.
PCO has assigned specific resources to the completion of backlogged requests. Of the 688 requests received in 2007–2008, there were 135 backlogged requests at the end of that year. By comparison, of the 650 requests received in 2008–2009, there were a total of 34 backlogged requests at the end of 2008–2009. Completion of all outstanding requests remains a departmental priority.
4. The Office of the Information Commissioner recommends that PCO-ATIP document and review the criteria it uses for extensions to ensure that the extensions are reasonable and legitimate.
The Access to Information Act, Treasury Board guidance, annual reports by the Information Commissioner and past experience shape the criteria for PCO in its use of extensions. As reported by PCO in the 2007–2008 OIC report card, extensions taken are backed by written rationales. PCO extensions are designed to provide clients with a realistic expectation of when their requests will be complete.
PCO fully complies with OIC guidance such as its 1999–2000 annual report, in which the OIC acknowledged that experience and judgment should inform the use of extensions, stating that “the duration of extensions should be consistent with historical experience in the institution in processing similar requests.”
By maintaining a working dialogue with its consultation partners, PCO also follows the OIC recommendation in its 2007–2008 report card that “ideally this [extension for consultation] is consensually determined with the consulted institution.”
Media requests represent the majority of PCO’s access to information volume, at 56 percent, followed by requests from the public at 17 percent and from business at 9 percent. It is PCO’s experience that media requests tend to be complex and multi-departmental in scope, driving up requirements for consultation and for attendant extensions. Considerations of national security, international affairs, federal-provincial relations and the government’s decision-making process routinely arise in the review of PCO records.
Further to the issue of extensions and the “Length of Extension” graph, PCO’s database indicates that during 2008–2009 a total of 355 extensions under section 9 were taken: 54 under paragraph 9(1)(a), 276 under paragraph 9(1)(b), and 25 under paragraph 9(1)(c). “Volume” extensions during 2008–2009 were taken less than 15 percent of the time. This conflicts with the impression given by the report. There is also no comparison of these statistics with other years.
The majority of complaints against PCO have related to extensions taken. The department has explained to the OIC why extra time was necessary, and the OIC has largely supported these extension rationales in its complaint findings, and found in PCO’s favour.
5. The Office of the Information Commissioner recommends that PCO-ATIP reduce the average completion time for requests.
PCO is committed to the timely completion of access requests. It further acknowledges that any on-time performance rate of less than 100 percent is unacceptable. The department will continue to work towards this goal using all available resources, although factors that are government-wide, such as rising workload, staffing challenges and the heavy traffic of consultations, will have an impact.
The statement that “PCO-ATIP’s average completion time for requests in 2008–2009 was 157 days” requires context. The Access to Information Act addresses and allows for time extensions. As noted in the response to recommendation 4, extensions are determined in compliance with the guidance provided by the Act, Treasury Board, the OIC and past experience.
The report card notes that “approximately one in three requests to PCO’s access to information office results in a complaint,” which implies that all complaints are well-founded, which is not the case. Also, as the OIC has previously reported, complaints are increasing for all departments, up by 80 percent in 2007–2008.
Referencing the report card table, of the total of 198 complaints received in 2008–2009, 13 were not substantiated and 106 were discontinued, with 71, or 90 percent, pending.
6. The Office of the Information Commissioner recommends that PCO-ATIP comply with the Act and notify the Office of the Information Commissioner of all the extensions it takes for more than 30 days.
PCO’s data indicates a 100 percent compliance rate in providing written notifications of extensions in 2008–2009. Written notification to the OIC on extensions taken is a standard procedure in the PCO access to information process. This procedure has been in place since the reorganization and renewal of the Access to Information and Privacy Division in 2007.
7. Given its pivotal role in the processing of access requests and its endemic effect on the compliance rate of the entire federal government, the Office of the Information Commissioner recommends that the Clerk of the Privy Council take a leadership role to make PCO-CCC responsive to consultation requests in a timely manner, and report its progress, as all other federal institutions do, directly to Parliament.
The Clerk of the Privy Council, as the custodian of Cabinet records, most certainly takes a leadership role. As such, PCO-CCC has been delegated to ensure the review and response to requests for consultation in a timely manner. With respect to reporting progress to Parliament, PCO believes that the current process, which allows for information to be included within the annual report to Parliament prepared by the PCO access to information office, adequately reflects accountability.
8. The Office of the Information Commissioner recommends that PCO-CCC identify and target recruitment sources of Privy Council officers, and develop a retention program to ensure that a full staff complement is available to facilitate faster turnaround time for consulting institutions.
PCO-CCC is working on recruiting qualified personnel. As previously stated, however, there is a scarcity of personnel across government with the acquired skill set to do the work at the level required. In addition, there have been further staffing issues surrounding the hiring of skilled support staff for this very technical work, which has led to added delays in the processing of requests.
9. The Office of the Information Commissioner recommends that PCO-CCC review its consultation process in collaboration with the access to information community and adopt a more flexible approach with consulting federal institutions.
PCO-CCC believes that given the measures it has implemented within the past two years (including revised procedures), the quality of work has improved. Added to this is the one-on-one departmental training that PCO-CCC has provided to both access to information offices and legal counsel throughout government. For example, from April 8, 2008, to March 12, 2009, 12 training sessions were provided to approximately 250 attendees. This is in addition to the daily calls received from counsel with specific queries relating to Cabinet confidentiality.
Response time for the 1,549 consultation requests to PCO-CCC in 2008–2009, of 1,701 received
|Fewer than 7 days
||More than 180 days
Deemed refusal rate, 2004 to 2008–2009
This graph shows the deemed refusal rate for PCO-ATIP for the last five reporting periods. This is the percentage of carried over and new requests PCO-ATIP delayed each year beyond the timelines set out in the Access to Information Act.
How long requests completed late were overdue, 2008–2009
PCO-ATIP reported that it completed 50 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 80 percent of these requests were late by more than 30 days.
Number and length of time extensions reported in 2008–2009
This graph shows the number and length of the time extensions PCO-ATIP 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. PCO submitted these notices 90 percent of the time; the OIC expects this figure to be 100 percent in 2009–2010.
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 PCO-ATIP in the last three reporting periods: complaints about deemed refusals (access to information requests that PCO-ATIP delayed beyond the deadlines—30 days and extended—set out in the Access to Information Act) and complaints about PCO-ATIP’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
The OIC resolved all but 1 of the 16 deemed refusal complaints in 2006–2007, 3 of this type of complaint in 2007–2008, and 3 out of 6 in 2008–2009.
Time extension complaints
The number of time extension complaints increased each year (20; 84; 108), although many of these complaints were discontinued in both 2007–2008 and 2008–2009 (56; 83).
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 PCO-ATIP in each of the last three reporting periods. Resolved complaints are those that the OIC finds to have merit and that the institution resolves to the Commissioner’s satisfaction.
The total number of complaints more than doubled between 2006–2007 and 2007–2008 (from 107 to 232) but decreased the subsequent year (198). The total number of administrative complaints increased significantly over the three years (39; 100; 119); however, there were a large number of pending files at the end of 2008–2009 (71) and 106 files the OIC discontinued at the request of complainants.