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This special report is part of the Office of the Information Commissioner’s Three-Year Plan for Report Cards and Systemic Issues. This Plan aims to assess and investigate the extent and root causes of chronic delays across federal institutions in handling access to information requests.
Pursuant to the Access to Information Act, institutions have 30 days to complete access requests, or may claim a time extension in limited and specific circumstances. In 2008–2009, 44 percent of all complaints received by the Office of the Information Commissioner related to delays and time extensions. And of those delay-related complaints that were completed with a finding, three out of four were resolved with merit.
We enlarged our sample for this year’s report cards process to 24 institutions, which represent 88 percent of all access requests submitted in 2008–2009. We selected all institutions against which we had received at least five delay-related complaints (requests completed late and problems due to the time extensions that institutions claimed to process requests) during the reference period. This sample generated enough statistical data and information on contextual factors for a sound, fact-based assessment of delays.
For a detailed assessment of delays, we used three indicators, which together expose different facets of timeliness. Looking at the deemed refusal rate—i.e. the percentage of requests that have exceeded the statutory timelines—we found a very large range between institutions, from 0 percent for Telefilm Canada to 59.6 percent for Foreign Affairs and International Trade Canada (DFAIT).
As for the average completion time, only one institution—Citizenship and Immigration Canada with 34 days—managed to come close to the 30-day timeframe. The figure reached as high as 157 days on average for the Privy Council Office and 163 days for Foreign Affairs and International Trade Canada. This is of great significance given the high number of mandatory consultation requests these two institutions process.
We also looked at the number of requests responded to after statutory deadlines have been missed as an indicator of institutions’ commitment to assist requesters as promptly as possible. We found that over one-fourth (27 percent) of all overdue requests took more than 60 days to close after their original due date (either 30 days or an extended deadline).
Our analysis clearly confirmed the increasing misuse of time extensions as well as the number and duration of inter-institutional consultations as the most common causes of delay. Under-resourced institutions are increasingly using extensions as an administrative measure to cope with heavy workloads, which in our view is contrary to the spirit of the Act and the intent behind the provision for extensions. The increasing number of consultations creates bottlenecks within the system. At the time of going to press, recent complaints also highlighted the risk of delays stemming from alleged interferences in the processing of requests or delegation authorities.
Institutional report cards
As this year’s report cards indicate, timeliness was once again an issue for all institutions. Of the 24 institutions assessed this year, 13 had a below average or inferior performance in 2008–2009.
Both Citizenship and Immigration Canada and Department of Justice Canada achieved a perfect score primarily due to senior management’s ongoing support for a compliance-prone culture. Three institutions achieved greater success than in the previous reporting year. The Canada Border Services Agency and Public Works and Government Services Canada had an above average performance due to effectively implementing three-year action plans aimed at improving compliance. The Royal Canadian Mounted Police substantially improved its performance by introducing procedures to reduce turnaround time for record retrievals and reducing its deemed refusal rate.
Twelve institutions performed at a below average or unsatisfactory level. They accounted for 9,047 (or 27 percent) of all the access requests made to the federal government in 2008–2009. (This percentage increases to 45 percent if we remove the large share of requests sent to Citizenship and Immigration Canada.) Most of them had deemed refusal rates of well over 20 percent, reaching a high of nearly 60 percent, as indicated above. Their poor performance resulted from the following factors to varying degrees: insufficient resources, dispersed delegation orders, drawn out review and approval processes, high staff turnover, and extensive or inappropriate use of time extensions. Some of these institutions also had a major impact on the access system as a whole given their pivotal role in the mandatory consultation process. Foreign Affairs and International Trade Canada’s performance was so poor that the OIC could not rate it against its established criteria.
Our holistic approach to assessing delays in responses to access requests enables a more in-depth analysis of recurring and system-wide issues facing most institutions. This year’s report cards process confirmed across a wider spectrum of institutions the presence and persistence of the five systemic issues that were identified last year. It has also highlighted flawed or ill-enforced delegation orders as another significant obstacle to timely access.
Delegation orders set out the powers, duties and responsibilities that are being delegated by the institutional head for administering the Act within the organization. Our process uncovered oral evidence of delegation orders with multiple layers of review and approval which, in some instances, resulted in additional and unwarranted delays. Given this evidence, we will examine through a systemic investigation whether these practices further delay responses to access requests or whether they have a negative impact on the amount of information disclosed. Greater guidance is also required to achieve appropriate, efficient and transparent delegation orders and prevent improper influence on the processing of access requests.
Leadership is clearly the single most important determinant of how well institutions fulfill their obligations under the Act. Senior management’s commitment to the access regime determines the level of resources allocated to their access program as well as the degree of institutional openness. The criteria under the Management Accountability Framework must be revised to adequately measure institutional compliance, which will serve to hold institutional heads and senior managers accountable for their performance.
As stated earlier, the misuse of time extensions represents an important cause of delay within the system. We observed an inconsistent application of paragraph 9(1)(a), which provides for the use of time extensions in specific circumstances. Contrary to the spirit of the Act, under-resourced institutions are increasingly using extensions as an administrative measure to cope with heavy workloads. The OIC will closely monitor the use of time extensions through the extension notices it receives. These notices are the only means of accountability for extensions provided for by the Act aside from complaints. Better statistics are also required to accurately track the use and length of time extensions and thereby hold institutions accountable.
Inter-institutional consultations represent a definite challenge for the timely delivery of information. Only the institution subject to the request is currently accountable for meeting the requirements of the Act. This compounds the problem of bottlenecks resulting from the increasing number of mandatory consultations. There are still no data to measure the magnitude and impact of consultations.
Evidence shows that insufficient resources—funds, staff and tools—undermine the effectiveness of access to information. This deficiency also creates excessive risks, including the erosion of requesters’ right to information. Sustained compliance can only be achieved with permanent and qualified staff and proper tools. An integrated human resources action plan is urgently required to address the shortage of staff.
Finally, access to information relies heavily on sound records management. Institutions that are unable to effectively manage information requested under the Act face time-consuming retrieval of records, uncertain, incomplete or unsuccessful searches, as well as the risk of substantial delays and complaints. Long-term initiatives have been undertaken to address information management deficiencies across government, but they require sustained efforts and commitment to achieve the expected results.
Recommendations and commitments
Despite warnings and recommendations to individual institutions as well as the Treasury Board of Canada Secretariat, little progress has been achieved so far to remedy the root causes of delay across the system. As mentioned, there is an urgent need for an action plan to address the current shortage of access to information staff. In the absence of legislated reform, more detailed and reliable information is also required—notably on time extensions, consultations, workload and outcomes—to accurately measure institutions’ overall performance in meeting their obligations under the Act and improve accountability mechanisms.
For its part, the Office of the Information Commissioner has fulfilled the commitments contained in last year’s report. Specifically, revised disposition categories for closed complaints will soon be introduced to provide a more accurate picture of institutional performance. We have also taken steps to begin measuring the degree to which institutions are releasing records in accordance with the Act. After updating our Three-Year Plan in light of recent developments, we will move ahead with a thorough systemic investigation into the causes and sources of delays across the system.
As the Interim Commissioner stated before the House of Commons Standing Committee on Access to Information, Privacy and Ethics, the Office of the Information Commissioner will work closely with institutions to better understand the challenges they face in providing greater access to information. It will provide greater guidance through practice directions and other means to improve the timeliness of responses to access requests and accelerate the resolution of complaints.