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Chapter 3. A Tale of Best and Worst Performers: 2009-2010 Report Cards
For the 2009–2010 report cards, the Office of the Information Commissioner (OIC) examined institutions that had only recently become subject to the Access to Information Act. The new institutions are different in a number of regards from the departments and agencies the OIC usually assesses and bring a different perspective on access to information operations.
This year's cohort comprises Crown corporations and Agents of Parliament. Crown corporations operate in a largely private sector environment and have both commercial and public policy objectives.6 These corporations are wholly owned by the Crown but are managed by a board of directors appointed by the government. They obtain public funds through various funding vehicles, depending on their governing statute and the Financial Administration Act. In 2010, total parliamentary funding for all Crown corporations was $6.666 billion. Of the five the OIC assessed, Atomic Energy Canada Limited, the Canadian Broadcasting Corporation and the National Arts Centre Corporation each receive part of their funding through parliamentary appropriations. VIA Rail Canada Inc. receives its funding from the Government of Canada based on cash flow requirements, and the Canada Post Corporation receives compensation for certain programs it undertakes on behalf of the government, such the Food Mail Program, and may also borrow funds from the Government of Canada's Consolidated Revenue Fund.
Agents of Parliament, such as the Auditor General and Information and Privacy Commissioners, are independent officers who scrutinize the activities of government in relation to duties assigned to institutions by statute. They report directly to Parliament, not to an individual minister, and receive their funding through parliamentary appropriations.
The appointment of these Agents usually involves the House of Commons, the Senate or both, who deliberate on recommendations by the government.
The OIC selected for assessment institutions about which it had received more than five complaints since they had become subject to the Act. Despite having varying fiscal years, each institution reported their results for the report card process from the period from April 1, 2009 to March 31, 2010, as per a Treasury Board of Canada Secretariat directive. The institutions' complete responses to the OIC questionnaire are posted on the OIC website.
Table 5 provides the 2009–2010 ratings by institution. The OIC assigned scores ranging from A to F, based on how well the institutions met a series of criteria (see Appendix C). These include timeliness and compliance with statutory obligations, as well as qualitative data.
Table 5. Rating for institution assessed, 2009-2010
Overall performance rating
|National Arts Centre Corporation
|Office of the Auditor General of Canada
|Office of the Information Commissioner of Canada*
|Office of the Privacy Commissioner of Canada
|Atomic Energy Canada Limited
|VIA Rail Canada Inc.
|Canadian Broadcasting Corporation
|Canada Post Corporation
*The performance of the Office of the Information Commissioner was assessed by Mario Dion, the Information Commissioner ad hoc at the time of reporting.
The institutions falls into two groups in terms of their performance in 2009–2010: the National Arts Centre Corporation (NAC), Office of the Auditor General (OAG), Office of the Information Commissioner, Office of the Privacy Commissioner (OPC), Atomic Energy of Canada Limited (AECL) and VIA Rail Canada Inc. which achieved an above average or better rating; and the Canadian Broadcasting Corporation (CBC) and Canada Post Corporation, which received an unsatisfactory grade or worse.
Although this year's cohort is small and accounts for less than 2 percent of all access requests the federal government received in 2009-2010, it features the largest proportion of top performers since the OIC started issuing report cards in 1999. The six institutions with above average or higher ratings exhibited many of the key components that the OIC has identified in previous report cards as being directly responsible for enhanced access to information compliance-notably, strong leadership, appropriate delegation orders and adequate resources. These institutions have also demonstrated distinctive characteristics and approaches that contributed to the strong compliance levels they were able to achieve.
On the other hand, it would seem that the CBC and Canada Post did not fully recognize the significance of the Act and the principles of freedom of information. This translated into high rates of requests being completed beyond the legislated deadline (known as deemed refusals), lengthy average completion times and protracted approval processes, all of which put them at the bottom of the performance scale. Much improvement is required.
No new systemic issues emerged.7 As noted, the best performers have the right ingredients in place to fulfil their obligations under the Act, including, above all, leadership. The worst performing institutions did not give access to information the priority it deserves as a legislated responsibility.
Requesters have the right under the Act to timely access to information. Consequently, a delayed response is considered to be a deemed refusal to release the requested information. The Act allows 30 days to complete a request in normal circumstances and makes it possible to extend that period in specific situations. Since institutions must comply with the law, a deemed refusal rate of zero-that is, all requests are completed within 30 days or within the extended time period-should be the universal goal. The cohort of institutions surveyed for 2009-2010 includes some of the best and the worst deemed refusal rates since the OIC started doing report cards.
As illustrated in Figure 5, access to information requesters can expect a quick turnaround on their requests from most institutions surveyed this year. In many cases, turnaround times are less than the basic deadline of 30 days set out in the Act. The CBC's and Canada Post's average completion times were much longer, but extensions were not a factor. The CBC, in fact, only took one extension in the reporting period. Canada Post reported that it did not take extensions to manage its workload. Internal delays in the processing of access requests are the main culprit in the delays.
Finally, in terms of workload, as Figure 6 illustrates, the CBC dealt with a much higher workload than the others, with AECL and Canada Post distant seconds. None of the institutions surveyed this year commented on lacking resources to fulfill their obligations under the Act.
In addition to reviewing whether these selected institutions responded to their requests in a timely fashion, the OIC collected, through its questionnaire and follow-up interview, valuable information on their start-up efforts, including the challenges they encountered being newly subject to the Act. In particular, the OIC looked at how institutions managed in terms of finding and training staff, developing the tools necessary for an effective access program and fostering internal support for the function.
Several institutions hired an experienced access coordinator and staffed the analyst positions with employees who were familiar with institutional operations: analysts could readily locate records and the coordinator could ably apply the Act, resulting in an efficient approach to responding to requests. Citing a lack of in-house expertise when initially subjected to the Act, three of the institutions (AECL, Canada Post and VIA) engaged consultants to establish their access offices and operations. This included establishing budgets, networks and communication processes, and delivering training to staff. In some cases, the consultants remained with these institutions to process incoming requests or to play training and advisory roles that continue to this day.
Training and Tools
Institutions universally reported that training was an immediate priority. However, who delivered the training and how varied greatly, as did the target audiences. Institutions offered various levels of training-ranging from that aimed at access to information analysts who needed specific instruction on how to apply the Act, to general training for senior executives and liaison officers. In certain institutions, access officials reported that they had to familiarize all staff about the obligations associated with access to information legislation. However, given time constraints and workload, this was not always accomplished, leading to gaps in employee familiarity with the need for efficient responses to tasking requests for records-gaps that persist in some institutions. Access staff usually posted policies, procedures and guidelines on the institution's intranet site as easily accessible resources for employees. Most institutions developed their own policies, guidelines and procedures or are in the process of doing so.
The culture of the subject institutions, since they are new to the Act, was of considerable interest to the OIC. Each member of this year’s cohort has had historically to report on its business and results each year, but has never had to reveal the details of its operations. Becoming subject to the Act has changed that, since details of their operations and decisions can suddenly be made public.
The Office of the Privacy Commissioner and the OIC reported that it was not a great stretch for them to become subject to the Act because an appreciation of the value that information has for its holders was already part of the corporate culture. Similarly, the Office of the Auditor General reported that the access to information function complemented its mandate, since auditors expect a high level of transparency from the organizations they audit. As a result, it was quite amenable to exposing its own organization to the same level of scrutiny. The open outlook inherent in the mandates of these three institutions had a direct and positive impact on their performance. The outlook at both Canada Post and the CBC was different. Officials there emphasized that their operations were unique and more complex than those of other institutions and, consequently, required additional protections—for competitive commercial activities, and journalistic and programming activities, respectively. An evident apprehension about disclosing information resulted in significant delays in responding to access to information requests at both institutions.
A Crown corporation can either be an agent or a non-agent of the Crown. Agent corporations are conferred the immunities, privileges and prerogatives of the Crown, such as immunity from taxes. Atomic Energy of Canada Limited, Canada Post and the Canadian Broadcasting Corporation have agent status. The National Arts Centre Corporation and VIA Rail Canada Inc. are non-agents. See Treasury Board of Canada Secretariat, Agent status and Crown corporations: http://www.tbs-sct.gc.ca/gov-gouv/agent-mandataire/agent-mandataire-eng.asp.
In the previous special reports, the OIC identified six systemic issues: leadership, time extensions and consultations, resources, records management and delegation orders.