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2. Continuing the much-needed oversight
When we launched the
three-year plan for report cards in 2009, we sought to bring detailed attention
to the causes of delay in the access to information system and make
evidence-based recommendations for improvement. We also aimed to encourage greater
compliance with the Access to Information Act, and prompt institutions to make
every effort to enhance the service they provide to requesters and Canadians.
The overall improvement in institutions’ performance and against the measures
of timeliness that we have been tracking over the past three years suggests
that the situation is getting better and that the report cards and the
follow-up by the House of Commons Standing Committee on Access to Information,
Ethics (ETHI) have had a positive effect. In addition, we received 16-percent
fewer administrative complaints, including deemed refusal and time extension complaints, against the 18 subject
institutions in 2010–2011 compared to 2008–2009.
Nonetheless, we remain
concerned about the fragile health of the access to information system,
particularly in light of the budget cuts affecting institutions across
government. These reductions could jeopardize the recent gains institutions
have made, especially if the number of requests continues to climb.
In addition, from the
report card exercise and our complaints investigations, we have learned
about practices that are contrary to both the spirit and the letter of the Act.
For example, we have seen institutions that wish to avoid having their requests become overdue close files before
receiving responses to consultations. In some instances, institutions exempted
all the information in records subject to a request without considering whether
they could sever information that could be released. In other cases, institutions simply
closed the file without applying any exemption. Neither of these practices
meets an institution’s obligation to
respond completely and accurately to a request. Moreover, closing a file
eliminates any incentive on the part of either institution to complete the
consultation promptly. This practice also potentially compromises requesters’ right to
complain about an institution’s response. Our systemic investigation into delay will look into this issue in
more detail, and will be completed in 2012–2013.
We have also learned
of instances in which institutions have decided to not retrieve records
when—in their view but without even looking at the records—the information
would be exempt in its
entirety. This is contrary to clear jurisprudence of the Federal Court of
Appeal, which has confirmed that an institution must retrieve and review all
responsive information (see paragraph 53 in Canadian
Broadcasting Corporation v Canada (Information Commissioner) 2011 FCA 326). In addition, the complaint
process can be compromised, since unidentified records may be disposed of
despite the existence of an ongoing complaint or judicial review.
These practices appear
to be designed to expedite the processing of requests and avoid files becoming
overdue, at the expense of requesters’ rights.
light of both the improvements we have seen in institutions’ performance and
our ongoing concerns, we take this opportunity to emphasize the importance of
oversight to the access to information system.
The report card
process and initiatives we took in parallel with it, including systemic
investigations and meetings our senior officials held with their counterparts
at the institutions, have impressed upon them the importance of living up to
their access to information obligations and yielded improvements in compliance.
ETHI hearings subsequent to the release of the report cards further underlined
the importance of oversight of the access function. To help solidify the gains,
we have recommended that each of the 18 institutions report on their progress
implementing our recommendations and any improvement plans they have in place
in their annual report to Parliament on access to information operations. We
will be reviewing these reports and call on TBS as well as ETHI to do likewise
and, when necessary, act on areas of concern.
are also ensuring effective oversight through our complaints investigations by
more fully, systematically and proactively addressing poor administrative practices and
instances of non-compliance with the Access to Information Act. We have
advanced formal recommendations related to systemic issues and will pursue
egregious examples of non-compliance in Federal Court. We will also be
monitoring, through our investigations and ongoing meetings with senior
officials, institutions whose performance was average or below this year
(received a “C” grade or below).
This report brings
this three-year project almost to a close. As a final step, we will prepare in
2012 assessments of the performance of the Canadian Broadcasting Corporation
and Canada Post, the two institutions that performed very poorly in the
2009–2010 report card exercise. We will also report the results of our systemic
investigations into specific causes of delay, including time extensions, in
we will not publish report cards for the next two years. Instead, we will,
having focused since 2008 on the subject of delay in the access to information
system, dedicate all our investigative
resources to pursuing individual complaints against institutions in order to
maximize disclosure of information. We will deal with recurring problems
through systemic investigations, as required. We will then launch, if necessary,
a new series of report cards in the spring of 2014, to look at access to
information performance in the 2013–2014 reporting year. We would choose
institutions based on our analysis of their performance, as set out in the
expanded TBS statistics, and the number and type of complaints we receive about