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2. Taking stock of systemic issues
A systemic issue is a system-wide development that affects the capacity of institutions to fulfill their obligations under the Access to Information Act. If not properly addressed, it may become the norm and negatively impact the system as a whole, translating into less government accountability and greater infringements of requesters’ rights to access information.
Five systemic issues were identified in last year’s special report: leadership, as the most determining factor; time extensions and consultations, the immediate causes of delay as discussed in Chapter 1; resources; and records management. The Office of the Information Commissioner (OIC) made several recommendations to the Treasury Board of Canada Secretariat (TBS) and the Canada School of Public Service in order to address these issues. As the update below shows, much remains to be accomplished and therefore, the same issues have resurfaced this year.
This year’s process has also uncovered oral evidence that delegation orders have a direct and significant impact on the ability of institutions to meet the statutory deadlines for responding to requests for information.
Pursuant to the Act, the head of each institution is responsible for the administration of the Act within the institution. Through a delegation order, he or she delegates specific authorities to officials to ensure that decisions are efficiently implemented at the proper level. A key player is the access to information coordinator. Ideally, the coordinator receives full delegated authority for the access program. In reality, the roles and responsibilities of coordinators, their levels within the management structure and the amount of authority they have for administering the Act vary widely across government. Some institutions have expansive delegation, with various people involved in approvals and sign-offs, which protracts the approval process. In other cases, the coordinator may have the authority on paper but in practice others intervene in the process or question the coordinator’s decisions on which records to release.
At the time of going to press, the OIC had undertaken to investigate a series of complaints highlighting the risks of political interference and delays that may stem from inappropriate or ill-enforced delegation orders.
An appropriate delegation of authority is crucial to a well functioning access to information program. A delegation order requiring multiple layers of senior management and ministerial review and approval heavily taxes senior management’s time and is likely to generate delays. If the delegation order requires senior managers to apply exemptions and exclusions, they may not have the expertise to interpret these provisions of the Act and may be ill-prepared to defend their decisions before the OIC during an investigation. The greater risk, however, is the potential to negatively impact requesters’ rights to be given timely access to records and to obtain all the information to which they are entitled under the Act.
It follows that a delegation order must be appropriate, efficient and transparent. This means that responsibilities should be delegated to officials who have full knowledge of the legislation and jurisprudence. Associated review and approval processes should not cause any delay in the processing of access requests or unduly restrict disclosure under the Act.
The President of the Treasury Board recently finalized a study of best practices for access to information requests subject to special processing. This study stems from a recommendation made in the Canadian Newspaper Association investigation. Among the 18 best practices listed in the TBS report, the first one recommends that the coordinator be delegated full authority by the head of the institution for the administration of the Act.
That the Treasury Board of Canada Secretariat assess the extent to which institutions implement the best practices on the delegation of powers, duties and functions pursuant to section 73 of the Access to Information Act with the view to achieving appropriate, efficient and transparent delegation orders.
Executive leadership is the key to how well institutions fulfill their obligations under the Act. As the policy centre, the Treasury Board of Canada Secretariat is responsible for giving institutions the guidance they need to implement the Act correctly. Within institutions, it is the head and the officials with delegated authority who are ultimately accountable.
Throughout the research phase for this special report, it became apparent that a large number of institutions still do not give access to information the priority it deserves as a legislated responsibility. Where deputy heads have fully assumed their responsibilities, their institutions have demonstrated high levels of compliance or drastic improvements in recent years. Employees in both the access to information offices and the program areas took their cues from leaders who have made clear and strong statements about the importance of access to information. However, judging from specific actions that undermine the system—such as funding cuts and acceptance of poor performance ratings—it would seem that many officials do not fully recognize the significance of the Act and the principles of freedom of information.
After a number of years struggling with substandard compliance with the Access to Information Act, Canada Border Services Agency, the Department of Justice Canada and Public Works and Government Services Canada developed multi-year plans to bring about significant improvement. The plans received strong support from senior officials and have resulted in stronger performances.
A successful access to information program depends, above all, on leadership. Therefore, recommendations must be directed to the officials who have the authority to implement them. In many instances, the OIC recommended to the head of the institution that he or she take a strong leadership role in establishing a culture of compliance and proactive disclosure. Going one step further, a strong message to support an institution’s careful and responsible stewardship of access to information obligations would be to include access to information in managers’ performance agreements.
Last year’s special report also recommended that TBS review the current criteria in the Management Accountability Framework (MAF) to ensure that they adequately measure institutions’ performance in meeting their obligations under the Act. TBS has reviewed the compliance assessment methodology used for the MAF and will include new ATIP-related statistical data to refine its performance monitoring capability. (See Appendix A for the TBS response to OIC recommendations.)
Round VI of the MAF provided an assessment of whether the statutory and regulatory requirements of the Act were met in 2008. Except for Telefilm Canada, all institutions surveyed this year in the report cards process are subject to the MAF requirements on access to information. No institution scored a “strong performance.” Only 4 of the 23 institutions (Canadian Heritage, Citizenship and Immigration Canada, Industry Canada and Privy Council Office) were deemed to have an “acceptable performance,” where no significant deficiencies were observed and the indicators met TBS expectations. For the other 19 institutions, however, moderate deficiencies pointed to an “opportunity for improvement” with respect to their reporting requirements.
Whether or not an institution complies with reporting requirements offers little insight into their actual performance in providing timely access to information. Indicators under the Management Accountability Framework (MAF) should measure the overall performance of federal institutions in meeting their obligations under the Act. As a result, we reiterate the recommendation from last year’s special report about the necessity to have stronger indicators in the MAF.
That, as part of the Management Accountability Framework, the Treasury Board of Canada Secretariat review current criteria to ensure that they are measuring the overall performance of federal institutions in meeting their obligations under the Access to Information Act.
The Access to Information Act allows institutions to extend the time limit they have to complete a request in specific and limited circumstances and for a reasonable period of time.
This year’s report cards process once again revealed numerous instances of institutions’ using time extensions in a manner that the drafters of the Act never intended, thereby creating unnecessary delays. The OIC has observed an inconsistent application across institutions of paragraph 9(1)(a), which provides for time extensions when a request involves a search through or for a large volume of records and would unreasonably interfere with operations. This results from varying interpretations of what constitutes a “large volume of records” per request. Institutions are also using this type of extension to manage access to information workloads rather than resourcing offices properly to ensure there is enough staff to handle the volume of requests.
The OIC will publish a practice direction to clarify how it interprets paragraph 9(1)(a) of the Act. (See Chapter 3, Commitment 1.)
The OIC remains concerned with the lack of checks and balances needed to ensure that all extensions are legitimate, appropriately applied and well documented. The fact that the Act contains no time limits for time extensions and no sanctions for this or any other practice that leads to delays certainly further exacerbates the situation.
Last year’s special report offered several recommendations to TBS about time extensions. In particular, in the absence of legislated reform, we need more and better statistics in order to accurately assess institutions’ performance and hold institutions accountable before Canadians. Due to delays in implementation, TBS will not start collecting these improved statistics in 2010–2011, as recommended. (See Appendix A.)
We reiterate the recommendations from last year’s special report about the necessity to collect stronger data to strengthen accountability.
That the Treasury Board of Canada Secretariat collect annual statistics in accordance with Recommendations 3, 4 and 5 included in the 2007-2008 Special Report.
Institutions regularly consult with one another about information in records subject to an access to information request, to confirm what information may be released or exempted (paragraph 9(1)(b)). Treasury Board (TB) policy requires federal institutions to consult on requests involving the application of exemptions relating to international affairs, defence and national security (section 15), and exemptions relating to law enforcement and penal institutions (section 16). TB policy also requires institutions to consult the Privy Council Office (PCO) to confirm whether records are Cabinet confidences. These are called “mandatory consultations.”
Contacting the institution being consulted to mutually determine how long the consultation will take is a best practice more institutions should adopt. It is standard procedure at the Canadian Food Inspection Agency, Industry Canada, and Canadian Heritage.
The volume of these mandatory consultations has grown over the years such that it now accounts for a significant part of some institutions’ workloads. (See the workload distribution below in the institutions most frequently consulted.) As a result, many institutions no longer quickly respond to consultation requests. This in turn affects the speed at which the consulting institution can close the associated access requests and release the information to requesters.
Consultations with other federal institutions represent a definite challenge because the institution in receipt of the request remains responsible for completing the request within the statutory timelines. However, it is entirely dependent upon the efficiency and goodwill of the consulted institution to complete the consultation in a timely fashion.
Institutions that receive mandatory consultation requests like those in Figure 1 have an additional responsibility to ensure that their performance does not significantly affect the workings of the access to information program. A poor performance on their part creates bottlenecks that have rippling effects across the system and negatively affect requesters’ rights.
Due to the lack of information on consultations, the current system does not place responsibility for action where it belongs. There is no incentive in law, in policy, in performance agreements or under the Management Accountability Framework for the consulted institution to respond quickly or to treat a consultation as a priority.
All institutions in this year’s report cards process reported that the turnaround time for consultations is increasing and deadlines for responses are often being missed. This is particularly the case when dealing with Foreign Affairs and International Trade Canada and the PCO Cabinet Confidences Counsel.
In the case of mandatory consultations, much of the time a file stays with the institution being consulted is spent waiting in queue to be processed. This forces consulting institutions to adopt circumventing tactics to manage the risk of delays resulting from the consultation process. Institutions claim long, blanket time extensions as a contingency, to ensure that the requests are completed within the timelines. Many accept the response times set by their counterparts (in cases where they ask) and do not challenge unreasonable turnaround times when circumstances would sensibly warrant this (such as for very small or straightforward records packages). Some institutions have also implemented a practice of closing files before the consultation is completed in order to avoid any negative effect on their compliance rate.
Public Safety Canada has adopted a firm stance against situations where the institution consulted fails to respond on time. It uses its own judgment to decide what to release, applying the necessary exemptions itself.
The Canada Border Services Agency, the Department of Justice Canada, Citizenship and Immigration Canada and the Canadian International Development Agency have developed protocols with the institutions they consult frequently, to expedite the consultation process.
In last year’s special report, the OIC recommended that TBS assess the magnitude of consultations, including mandatory consultations, and their impact on the workloads of institutions. TBS reported that it has examined the issue. However, no specific action was taken during the reference period to assess the impact of consultations. The Proposed Directive on the Administration of the Access to Information Act mentions the importance of timely consultations. In addition, the new statistical data will track the volume of consultations. However, none of these measures are in force at this time. (See Appendix A for the TBS response to OIC recommendations.)
We reiterate the recommendation from last year’s special report about the necessity to assess the magnitude and impact of consultations.
Figure 1 Workload distribution in institutions receiving mandatory consultation requests
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That the Treasury Board of Canada Secretariat, together with relevant institutions, assess the magnitude of consultations between federal institutions and the impact of such consultations on institutions’ workloads with a view to allocating appropriate resources for this function.
A fully compliant access to information program requires adequate resources. These include stable funding, a sufficient number of qualified employees and modern tools to do the work on time and efficiently.
Last year’s special report included three recommendations for TBS on human resources and training. These called for developing and implementing an integrated human resources action plan, an extensive training program for access to information specialists, and an integrated learning strategy for all employees of the public service.
It is in the area of training that most progress has been achieved. After a successful pilot in the summer of 2009, the Canada School of Public Service launched its new three-day access to information course for the federal public service in the summer of 2009. To date, four sessions have been delivered to 73 participants. Additional sessions are planned for the regions and online at the end of fiscal year 2009–2010. The course will also be tailored for employees of Crown corporations that became subject to access legislation under the Federal Accountability Act.
Library and Archives Canada considers access to information as a mandatory service to Canadians. Senior officials recognize, support and adequately fund the access to information function. They also take a business-like approach to ensuring that requests are dealt with the greatest efficiency.
The Canada School has added access to information into its information management curriculum which underscores the inextricable link between access and information management. Other courses for managers will be revised similarly.
TBS organized a number of activities to support the access to information community, including community meetings and awareness events. It is also exploring new training opportunities with the Canada School. Both institutions are working together to implement the Five-Year Integrated Learning Development Strategy for information management and access to information.
In contrast, TBS has been silent on the development of an integrated human resources action plan. It is looking to develop competency profiles for the access to information community, which will support recruitment and developmental activities. (See Appendix A for the TBS response to OIC recommendations.)
We have heard on numerous occasions that access to information offices across government are severely under-resourced. A realistic allocation of resources constitutes a key feature of a well functioning access to information program. Without the necessary resources, the effectiveness of the program is compromised.
The risks from inadequate funding are abundant, from the failure to meet legal requirements of the Act to declining performance, exhaustion of staff and an increase in complaints to the Information Commissioner. The ultimate risk is the erosion of requesters’ right to information. These risks, if realized, would create negative public perceptions about the transparency and openness of government as a whole.
In many instances during this year’s report cards process, the OIC recommended that senior officials devote the necessary personnel and financial resources in order to comply fully with the Act. Some have faced major increases in their workload, which has had an important impact on the timeliness and quality of their responses to access requests. It is therefore crucial to develop an effective long-term strategy for access to information operations. Sustained compliance can only be achieved with permanent and qualified staff. Many institutions surveyed have faced, over the years, successive increases in the volume of requests and pages to review without equivalent increases in their resources. They have often approached the problem with short-term or temporary funding to deal with the overflow.
In addition, all institutions interviewed this year mentioned difficulties in staffing their analyst positions due to a shortage of qualified and experienced personnel. Retention of qualified staff is also a great challenge for institutions. As a result of capacity gaps, access to information offices often had to invest considerable time in staffing and training, causing further delays in responding to access requests. There is an urgent need to develop a recruitment, renewal and retention strategy for access to information officers. We therefore reiterate another recommendation from last year’s special report about the necessity to develop and implement urgently an integrated human resources action plan.
That the Treasury Board of Canada Secretariat, in collaboration with relevant institutions and agencies, develop and implement, as a matter of urgency, an integrated human resources action plan to address the current shortage of access to information staff.
Information management goes hand in hand with access to information. Poor information management makes the retrieval of records time consuming, uncertain and incomplete. It also increases the cost and the level of efforts associated with access to information.
The OIC recommended that TBS assess the state of information management across government and develop an action plan to address institutional deficiencies in this area, including training on information management practices for the access to information function. TBS reports that it carried out a myriad of initiatives under the Government of Canada’s Information Management Strategy and Action Plan, including a new Directive on Recordkeeping. It is also working towards developing an information management certification program for information management functional specialists. These activities are promising but will be implemented over a five-year period. (See Appendix A for the TBS response to OIC recommendations.)
In 2009–2010, Library and Archives Canada collaborated with TBS in implementing the Directive on Recordkeeping.
It will be interesting to see if these initiatives will actually translate into more effective access to information. About six percent of all complaints received by the OIC are about incomplete searches or no records found. We have often found a correlation between poor information management and this type of complaint.
During the course of the report cards process, we have heard from institutions that their current practices have been developed out of operational needs without consideration to facilitating retrieval and disclosure of records. As a result, all but a few signalled difficult retrieval of records. The OIC will follow developments with great interest.