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, Privacy and 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.

In 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.

We 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 2012–2013.

However, 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 them.