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1. The evidence of delay
Timeliness is the cornerstone of the Access to Information Act. This obligation was reaffirmed a few years ago by the passage of the Federal Accountability Act, which introduced a duty for federal institutions to assist requesters and respond to their requests for information without delay.
The 2008–2009 statistical report published by the Treasury Board of Canada Secretariat (TBS) states that 57.1 percent of all requests are responded to within the statutory period of 30 days. This is clearly not the performance that the legislator had intended. Actually, we often hear from access to information commentators that it is taking increasingly longer to process access requests, a sign that the system is broken.
In fact, 44 percent of the complaints received by the Office of the Information Commissioner in 2008–2009 related to delays and the time extensions that institutions had taken to process requests. Moreover nearly three out of four delay-related complaints completed with a finding in 2008–2009 were resolved with merit.
How do we explain this performance? What is the extent of delays in responding to access requests? And what are the reasons?
TBS collects information on how institutions administer the Act. This data is published once a year in aggregated form. Federal institutions also table their individual statistical reports to Parliament annually. This is the only publicly available data set on access to information requests that offers a glimpse into the way federal institutions administer the Act.
The problem with aggregated data is that it evens out the performance of institutions, subsuming the performance of those that fare well with that of less performing ones. This results in a rather skewed picture of the situation. For instance, Citizenship and Immigration Canada received 41 percent of all requests made in 2008–2009. On average, CIC responded to requests within 34 days. As shown below (Figures 1 and 2), the picture worsens when CIC statistics are not counted.
The disadvantage of this aggregated data is that it does not provide the level of detail required to compare and contrast the performance of institutions. It does not give any insight into the number and the duration of delays, and whether they were legitimate. Nor does it provide any information on what happens to requests that have not been completed beyond 121 days.
Figure 1 Time to complete a request in 2008–2009
Figure 2 Time to complete a request in 2008–2009, without statistics from CIC
To supplement existing data and derive enough information to further analyze the issue, the Office of the Information Commissioner expanded the sample of institutions this year to 24 institutions. This sample accounts for 88 percent of all access requests made to the federal government. The quantitative data came from institutions’ responses to our questionnaire and printouts from each institution’s case management system.
The questionnaire included three time indicators, namely the deemed-refusal rate, the average completion time and the number of requests the institution responded to after the statutory deadlines. These indicators taken together expose different facets of timeliness.
The OIC has long used the deemed refusal rate to measure an institution’s compliance with statutory timelines. Pursuant to the Act, requesters have a right to timely access to information. As a result, a delayed response is considered to be a deemed refusal. In 2008–2009, the OIC received 261 complaints about deemed refusals; among those that were completed with a finding, 80 percent were resolved with merit.
The goal for institutions is to have as few deemed refusals as possible. As illustrated in Figure 3, the range of deemed refusals between institutions is large. This variance may be attributable to a number of factors including the level of resources, the length or complexity of approval processes as well as records management practices within the institution. Most institutions, however, mention inter-institutional consultations as an important factor in delays and a great source of frustration, because this delay is often out of their control. These factors are discussed at greater length in the following chapter on systemic issues.
Figure 3 Deemed refusal rate, 24 institutions, 2008–2009
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Deemed refusals signal delays. However, they provide little information about the duration of delays. Figure 4 provides an additional level of information about institutions’ response time. As illustrated, Canadians may frequently have to wait much more than 30 days to receive a response to their requests. Of the 24 institutions surveyed, 7 responded to access requests within 31 and 60 days on average; 6 responded between 61 and 90 days; 6 more responded between 91 and 120 days, while the last 5 institutions reached levels as high as 157 and 163 days on average. The complexity of requests has an obvious impact on the time an institution takes to process those requests, as do consultations and the volume of pages to review. However, time extensions are the main culprit for average completion time beyond 30 days.
The number of requests responded to after the statutory deadlines—and how late those responses were—is a critical indicator of an institution’s commitment to complete requests as quickly as possible. We found that once a response to a request is late, there is no guarantee that it will be answered quickly after that.
Figure 4 Average time to complete a request, 24 institutions, 2008–2009
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Figure 5 How long requests completed late were overdue, 24 institutions, 2008–2009
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As illustrated in Figure 5, of the 2,216 requests that the 24 institutions completed after their original due date (either 30 days or an extended deadline), 594 (27 percent) took more than 60 days to close. During interviews, officials from at least one institution said that they are likely to choose to complete a request that is still on time over one that is already late, in order to improve their report card rating. We find this practice somewhat troubling and we are concerned that there could be more instances of institutions placing less emphasis on overdue requests than on more recent requests.
Overall, looking at the results from this year’s report cards, some institutions (with ratings between 4 and 5) are performing well with respect to the timeliness of their responses to access requests. They have sound and efficient processes in place and make the best of the tools at their disposal. As a result, they have provided timely services to requesters with limited meritorious complaints. By contrast, about half of the institutions surveyed have had a below average or unsatisfactory performance.
What are the immediate causes of delay in responding to access requests?
The inappropriate use of time extensions is a leading and well recognized cause of delays. Federal institutions must complete access requests within 30 days of receipt. Extended time may be claimed if there are many records to examine, other federal institutions to consult or third parties to notify. The legislators’ intent was that extensions would be for a “reasonable” period of time, so that requesters would still have timely access to information. However, the Act sets no limits on how long an extension can be and does not prescribe criteria for what constitutes “reasonable.” It leaves it to institutions to determine what would be reasonable based on the particular circumstances of the request.
With limited scrutiny, time extensions have become more frequent and longer over the years. Looking at complaints registered in 2008–2009, institutions’ use of time extensions is the most important ground for complaining (31 percent) to the Information Commissioner. For 70 percent of the complaints completed with a finding, time extensions were not applied appropriately. The Office of the Information Commissioner will probe the use and duration of time extensions as part of the systemic investigation that it is conducting pursuant to subsection 30(3) of the Act.
As mentioned earlier, inter-institutional consultations are also a well recognized source of delays. Federal institutions frequently consult other institutions before determining whether to exempt, exclude or disclose records. In order to do so, they may claim a time extension to allow the other institution(s) to provide their views. The time needed to complete the consultation in order to release the information to the requester then depends on the efficiency and goodwill of the institution being consulted. There are currently neither requirements nor incentives to quickly process consultation requests, even where required by government policy.
Prolonged delays due to consultations have therefore given rise to various circumventing tactics to manage the risk of delays, which are cause for concern. For example, institutions may routinely take longer time extensions than warranted to ensure that requests requiring consultations are completed within the set timelines. They may encourage requesters to narrow the scope of their requests to exclude records rather than risk lengthy delays due to consultations—a tactic that, in some cases, might also limit the information to which requesters may be entitled. Alternatively, institutions may choose to close request files before consultations are completed, therefore jeopardizing future follow-ups on the request.
It is difficult at this time to accurately assess the impact of inter-institutional consultations on delays because there are still no statistics on this issue. We will examine the volume of consultations, particularly mandatory consultations, as part of our systemic investigation into delays and time extensions.
Recent high-profile complaints to the Information Commissioner have highlighted yet another source of delays in responses to access requests. The scope of our systemic investigation into delays and time extensions will therefore be expanded to examine alleged political or other improper interferences with the processing of access requests and with established delegated authorities.
Last year’s special report called on TBS to improve the scope of statistics collected annually, particularly regarding completion time, extensions and consultations. Although the Secretariat has carried out some groundwork to collect additional statistics in 2010–2011, implementation has been delayed. In practical terms, informative and comparative data on performance will not be publicly available in the near future. Yet this information is crucial to holding institutions accountable for their performance under the Act.
Based on the information derived from this year’s expanded report cards process, the next chapter provides an in-depth look at a number of significant issues that affect the performance of the access to information system, particularly in providing timely service delivery to Canadians.