Archived Content

Information identified as archived is provided for reference, research or recordkeeping purposes. It is not subject to the Government of Canada Web Standards and has not been altered or updated since it was archived. Please contact us to request a format other than those available.

Public Policy Forum Report

2008

ACCESS TO INFORMATION AT 25 YEARS:
NEW PERSPECTIVES, CREATIVE SOLUTIONS?

Workshop Outcomes Report

December 2008

Public Policy Forum

Building Better Government

The Public Policy Forum is an independent, not-for-profit organization aimed at improving the quality of government in Canada through better dialogue between the public, private and voluntary sectors. The Forum’s members, drawn from business, federal and provincial governments, the voluntary sector and organized labour, share a belief that an efficient and effective public service is important in ensuring Canada’s competitiveness abroad and quality of life at home.

Established in 1987, the Forum has earned a reputation as a trusted, neutral facilitator, capable of bringing together a wide range of stakeholders in productive dialogue. Its research program provides a neutral base to inform collective decision making. By promoting more information sharing and greater links between governments and other sectors, the Forum helps ensure public policy in this country is dynamic, coordinated and responsive to future challenges and opportunities.

Public Policy Forum
1405-130 Albert Street
Ottawa, ON KIP 5G4

Tel.: (613) 238-7160
Fax: (613)238-7990

www.ppforum.ca

About the Authors

Michael Lister is Deputy Director, Public Policy, Public Policy Forum.

Katherine Baird is Vice-President, Strategy and Corporate Affairs, Public Policy Forum.

ACKNOWLEDGEMENTS

This workshop was organized by the Public Policy Forum under the direction of Katherine Baird, with the assistance of Michael Lister and Matt Leblanc, Project Administrator, Public Policy Forum.

The Office of the Information Commissioner provided financial support.

TABLE OF CONTENTS

Executive Summary
Introduction
Methodology
Background
Opening Remarks: Robert Marleau, Information Commissioner of Canada
Major Trends and Challenges
Modernizing the Culture/ Modernizing the Administration
Modernizing the Legislation
Annex 1 – Agenda
Annex 2 – Participant List

EXECUTIVE SUMMARY

On June 10, 2008, the Public Policy Forum (PPF) held a full-day workshop on Modernizing the Federal Access to Information Regime. The workshop brought together 40 leading thinkers, practitioners, and decision-makers from academia, the private sector, civil society, and government. The purpose was to generate new ideas and catalyze creative thinking around options for modernizing the culture, administration and legislation of the federal Access to Information (ATI) regime.

Three overarching themes emerged from the workshop:

1. The View From 30,000 Feet

Though participants did not reach consensus on all details, there was broad agreement on the current state of the ATI regime, the ideal state, and many of the necessary steps to move from one to the other.

The current state of the ATI regime is characterized by…

  • a public service culture that is resistant to transparency, and in which Access to Information and Privacy (ATIP) is seen as a legalistic function as opposed to a broadly accepted principle
  • ATIP shops that are isolated, under-resourced, under-professionalized, and in which the general rule is "when in doubt, cross out"
  • slow request response times and long delays for resolution of complaints
  • a records management crisis across government

…whereas the ideal ATI regime should…

  • facilitate a general principle of access to information across government, in which most information is made routinely public
  • cultivate a service mentality in which requests and complaints are processed efficiently
  • provide a viable career path for ATIP professionals

…and moving from the current to ideal state will require:

  • champions at the political and senior bureaucratic levels (e.g. deputy ministers), as well as from civil society
  • a dramatically improved records management regime across the public service
  • better use of technology
  • a performance management regime with appropriate metrics that incentivises transparency as an important public service value
  • more training for all officials and greater awareness across government with respect to the ATI regime, including the use of "Access Impact Assessments" in policy and program development
  • ongoing "professionalization" of the ATIP community
  • ongoing and improved dialogue between ATIP community and requesters, including a better sense of "user" needs and satisfaction rates
  • adequate resources

2. A New Perspective on Familiar Issues

Many of these conclusions will be familiar to observers of the ATI regime. In particular, the importance of political leadership, of creating a culture of transparency in the public service, and of enabling and nurturing that culture with appropriate supports have all been identified in previous reform efforts. Participants highlighted certain elements, however, for specific mention.

The requests and complaints processes need to improve—but there was no consensus on how to move forward.

Requesters and ATIP professionals both need to take responsibility for improving the requests process. On the one hand, ATIP shops need to embody a service mentality where requests are seen as opportunities rather than threats. On the other, there was a debate around the extent to which "professional" requesters—sometimesacting as brokers for clients—have "poisoned the system" with vexatious requests for information. Many felt that fees could be a useful tool to educate and discipline requesters, though some took the view that fees should never be a barrier to access. But the key to making the ATIP professional-requester relationship less adversarial is to engage in ongoing dialogue.

Participants also debated, with no consensus, how to improve the complaints process—including the use of a "triage" approach to prioritize complaints, which would accelerate the resolution process. Some participants noted that the fact that the complaints resolution process is slow means that citizens are delayed access to court, because they have to wait until the end of the complaints process to challenge the decisions. These participants emphasized that the right to information is quasi-constitutional and deserves to be tested in court in order to build up a body case law.

Requests should be a last resort.

We heard that the Act is not being used as it was originally intended—as a last resort. Participants agreed that in a healthy ATI regime the general principle would be the automatic publication of information; requests for access would be the exception. The solution, according to participants is to revive the Act’s original vision in which most government information would be made available as a matter of course, a practice participants called "proactive disclosure."

A robust records management regime is an urgent priority.

Participants reported, however, that proactive disclosure implies a level of records management in the federal government that currently does not exist. The government faces a significant challenge in adapting its information and records management practices to the pace of technological change. For this reason, some participants suggested that a priority of future legislative reform should be to indicate an approach to records management across the federal government—such as a "duty to create a record."

3. Reforming the Legislation

There was significant debate around many aspects of reforming the Access to Information Act, including a number of recommendations related to specific exclusions and exemptions (see p. 8-9 for details). The most heated discussion, however, hinged on whether the Information Commissioner should have order-making power—that is, the power to issue final decisions settling disputes about complaints. Some participants argued that provincial experience has demonstrated that the power to make binding orders is an effective stick with which to encourage mediation. They suggested looking at the Ontario model in which the Commissioner can make orders that are binding but reviewable. Others expressed concern about the accountability implications of an Officer of Parliament with the power to issue binding orders over deputy heads. They maintained that the ombudsman model—non-binding recommendations with a possible review of departments’ decisions by the Federal Court—is sufficient, particularly given the OIC’s record in court.

INTRODUCTION

On June 10, 2008, the Public Policy Forum (PPF) held a full-day workshop on Modernizing the Federal Access to Information Regime. The workshop brought together 40 leading thinkers, practitioners, and decision-makers from across a range of sectors, including academia, the private sector, civil society, and government. The purpose was to generate new ideas and catalyze creative thinking around options for modernizing the regime. Participants focused on three topics:

  • Modernizing the culture
  • Modernizing the administration
  • Modernizing the legislation

This report captures the key messages that emerged from the workshop. The next section describes the workshop methodology. This is followed by a background section that puts the workshop in context. The following section summarizes Commissioner Marleau’s opening remarks. The remaining sections summarize plenary and table discussions on major trends and challenges facing the Access to Information (ATI) regime, and on modernizing the culture, administration, and legislation governing theregime. The report concludes by rolling up some final thoughts from participants.

METHODOLOGY

For over twenty years, the PPF has gained a reputation as a trusted, neutral facilitator of multi-stakeholder dialogue on a wide range of challenging public policy and public management issues. Our approach is based on the following principles:

  • The discussion is conducted in a neutral manner.
  • The discussion is based on shared information, including identifying key stakeholders, highlighting relevant research, and drawing attention to areas of disagreement.
  • The right players are around the table.
  • The results of the dialogue are communicated to key decision-makers and stakeholders to help mobilize action.

Based on this approach, the workshop was organized as a neutral space in which a cross-section of participants from all sectors could discuss the opportunities and challenges facing the ATI regime. In order to help generate a forward-looking discussion, we asked participants to imagine a regime that would best respond to current and emerging trends. What would it look like? What are the obstacles in the way of that vision? How do we move past those obstacles?

Discussion was held according to the Chatham House Rule. The conversation was on the record to allow the PPF to draft a summary report, but individual comments have not been attributed. Experience has shown that this helps create the right conditions for candid and constructive conversations. Though we fully expected participants to bring their expertise and corporate memory to bear on the topic, the principle of non-attribution allows individuals to speak freely and to express views that may or may not necessarily be those of their organizations. Finally, participants received three background documents to prepare them for the workshop:

  • The Access to Information Act 25 years later: Towards a new generation of access rights in Canada by Murray Rankin Q.C.;
  • Summary of Administrative Reform Recommendations in the Access to Information, Review Task Force by Laurence Kearly, Office of the Information Commissioner of Canada;
  • A Thematic Comparison of Access Legislation Across Canadian and International Jurisdictions by Randall Hofley and Craig Collins-Williams, Stikeman Elliott, LLP

BACKGROUND

2008 marks the 25th anniversary of the coming into force of Canada’s Access to Information Act. The Act sets out the right of Canadians to access information that the Government of Canada holds, with certain exceptions. According to the Supreme Court of Canada:

The overarching purpose of access to information legislation is to facilitate democracy by helping to ensure that citizens have the information required to participate meaningfully in the democratic process and politicians and bureaucrats remain accountable to the citizenry.[1]

The Act identifies the institutions it applies to and the types of government information that must be protected in response to requests, as well as setting out a process for making a request. It also established the Office of the Information Commissioner (OIC) to receive and investigate complaints and provided a right to review by the Federal Court. Government institutions subject to the Act are required to report to Parliament annually on their administration of the Act.

When the Act was adopted in 1982, Prime Minister Trudeau promised that the law would promote "effective participation of citizens and organizations in the taking of public decisions."[2] In the years since the Act came into effect, however, the environment in which it operates has changed dramatically. The revolution in information and communications technology has had a massive impact on how government operates, how it is organized, and how it relates to citizens—all with major implications for the ATI regime. At the most basic level, the sheer volume of digital information has exploded, with implications for how records are defined, created and stored. Moreover, horizontal policy development within and across jurisdictions has made it harder to find information while citizens continue to hold governments to higher account with respect to accountability and transparency. Furthermore, experimentation with new forms of service delivery to Canadians has resulted in a variety of arrangements with the private and non-profit sector. The result of this experimentation is blurred boundaries, self-regulation, non-profits doing governmental tasks—and a fear that the principle of access to government documents is beginning to break down.

Against this backdrop, there have been a number of attempts to reform the regime and its legislation. The first parliamentary committee review of the legislation resulted in the release in 1989 of Open and Shut: Enhancing the Right to Know and the Right to Privacy. Many of its recommendations went unfulfilled and have been repeated in subsequent reform attempts. They dealt with the scope of the Act, the role of the Information Commissioner, exemptions, the use of fees, and the complaints process. In 2002, the Access to Information Review Task Force reported on the possibilities for access reform. The Task Force concluded that the Act was not well understood. "The principles of access to information," according to the report, "need to be integrated into the core values of the public service and embedded in its routines."[3] The Task Force also found that the challenges were similar to those in other jurisdictions: timeliness of responses, problems in information management, managing growth in demand, transparency of new service delivery organizations, effective oversight and resolution of disputes, and creating and maintaining support for access among politicians and public servants. Several private members’ bills and a set of proposals by former Information Commissioner John Reid followed the Task Force’s work. Most recently, the Federal Accountability Act (FAA) increased the number of federal organizations covered by the Act.[4]


[1]Quoted in "A Comprehensive Framework for Access to Information Reform: A Discussion Paper," Department of Justice, April 2005, p. 3.

[2]Cited in Alasdair Roberts, Blacked Out: Government Secrecy in the Information Age, p. 87.

[3]Information Review Task Force (June 2002). Access to Information: Making it Work for Canadians, p. 5.

OPENING REMARKS: ROBERT MARLEAU, INFORMATION COMMISSIONER OF CANADA

In his opening remarks, Commissioner Marleau described his key challenges from his first year in office and outlined priorities going forward. His first challenge was to rebuild the administrative capacity of the office. The second challenge was the complaints inventory or backlog, the result of what he described as "unrealistic" service standards: complaints on administrative issues go into backlog if they are not resolved within 30 days; denials of access complaints go into backlog after 120 days. The Federal Accountability Act (FAA) has compounded the problem in the sense that it increased the number of federal institutions covered by the Act. In the last year, the number of complaints increased by 80 percent.. Complaints by a small number of users make up the majority. Average turnaround on complaints is about one year; some take much more. "The status quo," Commissioner Marleau concluded, "is not working." One of the administrative changes the OIC is experimenting with is an early resolution unit that will triage and prioritize complaints. Finally, the Commissioner acknowledged that he had not to date taken a position on previous reform efforts. The OIC is preparing a report to Parliament, should it be asked to provide its views on legislative reform.

MAJOR TRENDS AND CHALLENGES

The first plenary session on major trends and challenges facing the ATI regime was preceded by a brief presentation that introduced key topics for discussion.

  • Political will and commitment are the preconditions for legislative reform.
  • "Proactive disclosure" would reduce the need for citizens to make access requests, by making most information routinely available to the public. The Government of Québec issued a report in 2002 called Choosing Transparency that calls for government documents to be digitized and put up on department websites. The challenge with this approach is the state of records management in Ottawa, which was described as being in "crisis."
  • Alternative service delivery—in which government services are outsourced to the private or not-for-profit sector—presents challenges to the public’s right to know. Some jurisdictions, such as British Columbia, confirm in contracts with service providers that the government remains in control of documents created in the course of providing a service to the public. Horizontal initiatives across jurisdictions pose similar problems with respect to transparency and the public’s right to access government information. Both trends will likely continue to grow so governments will need to come up with ways to adapt their access to information regimes to these new realities.
  • Information technology poses another set of challenges. One is the explosion in the amount and kinds of digital records. For example, should the huge volume of emails generated daily by public servants be subject to access requests? If so, how should that information be stored? Should we distinguish between emails that are "transitory" records and those that are substantive? Another, broader, challenge is making sure the ATI regime keeps pace with massive technological change. "Access impact assessments" would be a useful tool in this regard. As privacy impact assessments already do for privacy, access impact assessments would assess the access to information implications of new government programs or technologies, early in the policy development process.
  • Order-making power for the Information Commissioner should remain on the table in discussion about legislative reform. Though it was acknowledged to be a "hard sell" in Ottawa, some participants felt that provincial experience demonstrates that the power to make binding orders has been effective. 90 percent of complaints continue to be resolved by mediation. In the remaining cases, the orders create a body of case law that clarifies the rights and responsibilities of the various players in the regime.

In discussion, participants raised a number of interrelated issues around leadership, culture, and administration, as well as fundamental questions about the purpose of the regime.


[4]For a summary, see Kristen Douglas, "The Access to Information Act and Recent Proposals for Reform," Parliamentary Research and Information Service, Library of Parliament, February 2006.

Political leadership

Participants agreed that political will is the key to reforming the ATI regime. The Act owes its existence to the leadership of politicians such as Joe Clark, Francis Fox and Pierre Trudeau. The government of the day has to be committed to openness for the regime to live up to its potential. This challenge is ongoing: the Manley Panel’s recommendation that the government be more open about the challenges in Afghanistan is a case in point.

A Culture of Transparency

At the bureaucratic level, senior public servants play an important leadership role by influencing the extent to which a "culture of transparency" exists in the public service. As one participant put it: "Culture means you need buy-in from deputy ministers." Another argued that the lack of a culture of transparency in government is the biggest problem facing the regime. Canada’s ATI regime is slower and less generous, they said, than that of countries such as the United States and the United Kingdom. One participant noted that the original intent of the Act was as a last resort: departments were supposed to make information routinely available to public, thus mitigating the public's need to make official requests. In this context, technology should be an enabler of transparency, rather than an obstacle.

Enabling a Culture of Transparency

The discussion on leadership and culture raised another theme: namely, that the way in which the ATI regime is administered can support, or undermine, a culture of access in the public service. First, participants emphasized that the regime needs to be resourced appropriately. As an example, it was pointed out that former Commissioner Reid’s recommendation on information management (i.e. a requirement that appropriate records be created, properly filed and carefully maintained) was dismissed because the price tag—$120-million—was too high. On this point, we heard that the state of record keeping in the public service has deteriorated since the personnel cutbacks in the mid-1990s. There is no classification of official record keepers; the use of technology is limited.

Second, participants emphasized the importance of measuring results in the ATI regime and embedding these in performance management programs for public servants. A system that compensates public servants for enabling the ATI regime would send a strong signal about the value the public service puts on transparency. One participant suggested the fundamental issue was that no public servant has ever been disciplined for not releasing information. "Unless there is an attitudinal change so that bureaucrats don’t feel they are going to get into trouble every time they release information," they said, "it’s a hopeless situation."

Finally, some participants pointed out that the fact that the complaints resolution process is slow means that citizens are delayed from going to court to challenge the decisions. This is because citizens cannot go to court before the Information Commissioner’s investigation is completed. Advocates of swifter access to the courts argue that because access to information is a quasi-constitutional right, it requires jurisprudence and deserves to be tested in court..

Access to Information and the Public Interest

Resistance to openness and transparency at the political and senior bureaucratic levels is a familiar theme. One participant familiar with the early days of the ATI legislation commented that they did not think we would "still be debating a culture of openness, 25 years later." The persistence of the dilemma around culture—and how it is enabled and sustained—raises a fundamental question: as one participant put it, "why is it so difficult for people in power to accept openness, transparency and accountability?"

One participant highlighted what was perceived as an "unspoken tension" between two narratives that had been expressed in the discussion: the need for culture change within government and an emphasis on "rights" and the use of the courts to enforce the right to know. In this regard, the question should be asked as to whether allowing citizens greater access to the courts would help create a culture of openness within government or whether it would entrench a culture of confrontation. Others countered that the "right to know" is sometimes, by its very nature, confrontational: citizens can use the Act to hold governments to account by forcing officials to release information whereas opposition parliamentarians can use it for political purposes. "We have to live with that," said one participant.

While agreeing that an ATI regime is certainly in the public interest, it was suggested that what the public wants is "good government"—which means more than just the ability to access information. An important part of the conversation should include issues around whether complying with the Act has any significant downsides for public servants, politicians and the public. Access to information and a well-functioning public service are both central to Canadian democracy. In reforming the regime, attention should be paid to ensuring access as well as to the broader "public interest" context in which the Act operates. Though the concept of the "public interest" is, in fact, embedded in the existing regime through exemptions, exclusions, and the public interest override, another participant suggested that the Act had created unintended consequences that are not in the public interest. For example, the argument was made that the Act is having a negative effect on record keeping in government and that this is undermining the historical record of policy-making in Canada.

It was also pointed out that the Supreme Court will be hearing a case within the next year involving the the Ontario Ministry of Public Safety and Security and the Criminal Lawyers Association concerning the constitutionality of Access to Information and the use of the public interest override (Section 23). There was hope that the Supreme Court decision would shed light on this issue and propel movement toward legislative reform.

MODERNIZING THE CULTURE/ MODERNIZING THE ADMINISTRATION

In the second session, participants delved deeper into some of the topics raised during the opening plenary as they broke into table discussions on modernizing the culture and administration of the federal ATI regime. Comments on both topics are grouped together as discussion reflected the view that culture and administration are mutually reinforcing. Comments fell under three broad topics:

  • the current state of the ATI regime;
  • the ideal state of the ATI regime; and,
  • how to move the regime from one state to the other.

Current State

Many participants felt that the challenges facing the regime were well documented and that the most important thing to focus on at this point is how to move forward. Nevertheless, they highlighted several features of the ATI regime for specific mention.

Under the category of unintended consequences, participants noted the paradox of living in an increasingly information-saturated society, at the same time as some public servants resort to ‘post-it’ notes to avoid creating a record that would be subject to an ATI request. Some participants argued that "professional" requesters have overburdened the ATI regime. While others maintained that these citizens are merely exercising a quasi-constitutional right, others pointed to the negative consequences of small numbers of people "taking advantage of the system," by making a large amount of increasingly complex requests for information. These "fishing expeditions," they said, overwhelm Access to Information and Privacy (ATIP) shops, make it difficult to meet service standards, and have helped create an ATI regime that is increasingly adversarial.

Participants also pointed out that the ATI regime exists in a public service environment that is itself facing challenges. According to one participant, the current government’s strict, centralized communication policies have exacerbated the difficulties facing the ATI regime, by making it more difficult for public servants’ to speak to the media. Another pointed out that risk aversion is not unique to the ATI regime; it is a challenge across government as a whole.

Ideal State

As in the first session, several noted that the ATI regime was supposed to help instil a culture of transparency across government; access requests were meant to be a last resort. One implication of this is that access should not be a specialty confined to departments’ ATIP shops, but should be a value that is shared across the public service. At the same time, there will still be a need to process requests for information, and these should be handled in a professional manner. ATIP shops should adopt a service mentality, participants suggested, where requests are seen as opportunities rather than threats. Again, participants pointed out that this would be much easier if ATIP shops were supported in departments across government by a broad understanding of the regime and how it is governed. More importantly, the public service should make it a priority to develop ATIP experts, and to make their work a legitimate career path with advancement opportunities.

Moving From One to the Other

Culture, according to participants, is paramount. But culture is multi-faced, and experience shows that it is hard to change. Indeed, many of the recommendations from the previous session were not new. So, how can Access to Information be internalized as a public service value? Participants discussed this question in the context of leadership, at the departmental level, and inside ATIP shops.

With respect to leadership, the regime needs champions at the political and senior bureaucratic levels. Desired attitudes and behaviours should be incentivized through performance management systems for senior managers. This would require appropriate metrics to measure transparency.

At the departmental level, participants suggested using existing accountability mechanisms, such as the Management Accountability Framework (MAF), to steer the regime toward desired outcomes. Participants also noted that a culture of transparency—embodied in a policy such as proactive disclosure—would require a level of records management that currently does not exist within government. This has implications with respect to departments’ business processes, publication standards, and translation policies. Finally, participants suggested two ways in which a broad understanding of the ATI regime across government could be reinforced: first, through expanded training on the practical application of the Act to anyone in decision-making positions; second, through "access impact assessments" to build-in the access to information implications of new programs or technologies early on in the policy development process.

With respect to ATIP shops, participants suggested that the ATIP profession needed to be seen as a legitimate career path with advancement opportunities— along the lines of finance or human resource professionals. We heard that educational programs for ATIP specialists would help shape this emerging profession by developing and expanding core competencies. These programs are in early days, however, and it will require a concerted and consistent effort to train aspiring ATIP specialists appropriately, and to ensure that the appropriate professional standards and certification are in place. Participants also called for more dialogue between ATIP professionals and requesters. In the experience of some participants, ongoing dialogue can make these relationships less adversarial. For example, when a relationship based on trust is in place, public servants can help requesters tailor their requests to be both more useful to the requesters and less time consuming for public servants. Finally, many participants felt that technology could help "unburden the system". Specific examples include electronic reading rooms, electronic communication with requesters, and making previously disclosed records available online. One participant suggested the departmental ‘Intranet’ sites—which contain a wealth of information—could be mined for documents to be made public.

Some participants felt that ongoing dialogue would be important to bridge the gap between the current and ideal state of the ATI regime. And they suggested that there is an opportunity to be creative in working through some of the polarized debates of the past. For example, public servants have a responsibility to serve the government of the day while being responsive to Canadians. Some note that this creates dynamic tension insofar as meeting the expectations of citizens (i.e. by being transparent and open) can sometimes be seen to conflict with government requirements (i.e. when information needs to be legitimately withheld). But, some wonder if it isn’t time to articulate how the "duty to assist" citizens through more open and accessible government can also support government in meeting some of its principle objectives, namely efficiency and accountability. Finding this "sweet spot" of mutual interest may help generate a discussion that is less polarized and allow for the kinds of approaches that are acceptable to politicians, public servants and Canadians. Several participants suggested that it was time for the requester and freedom of information advocacy community to better organize themselves. One justification referred to the need to cultivate public champions for access to information. "We have simply left the Information Commissioner to do the job on our behalf," one participant said. It was suggested that the Information Commissioner should have an education and outreach mandate to help build the capacity of external partners (such as the media, journalism schools, and academics). Another justification was that a more coherent "user" perspective would help in efforts to reform the regime. A combination of better organized stakeholders and ongoing consultation on the part of the OIC might identify the ‘low-hanging fruit’ of reform options—though some felt that implementing reforms rather than identifying them was the real challenge.

One of the key challenges for access to information advocates, according to one participant, is to make the case for a convergence of transparency standards across the country—that is, a national standard for freedom of information that would "bring the laggards up to the superior performers." They suggested that access to information report cards would help raise awareness.

Participants recognized that, ultimately, many of these suggestions come down to providing the necessary resources to support a healthy ATI regime. The kind of culture described here cannot be attained when ATIP shops are overworked and under-compensated. Nor can a performance management system hold senior managers accountable for their departments’ culture of transparency if the appropriate infrastructure is not in place to support that culture.

MODERNIZING THE LEGISLATION

In the afternoon, participants turned their attention in table discussions to the legislative component of the ATI regime. Participants’ comments touched on exclusions and exemptions, records management, "access for everyone", and order-making power for the Information Commissioner. In general, participants reported a significant amount of debate at table discussions, reflecting the fact that there are competing public interests to take into consideration in reforming ATI legislation.

Exclusions and Exemptions

There was no agreement on Section 69 of the Act, which states that the Act does not apply to Cabinet confidences, such as Cabinet memoranda, agendas, records of decisions, pre-Cabinet briefings of Ministers, and draft legislation. While participants generally agreed that the principles of Cabinet confidentiality and solidarity—designed to protect the process of Cabinet decision-making—are important, some felt that the blanket exclusion on Cabinet confidences should be reviewed to define what is and what is not a Cabinet confidence. For example, could factual information or background analysis be severed from advice to Cabinet or should they be subject to review by the Commissioner?

Most participants agreed that records from Cabinet ministers’ offices related to ministerial decisions or to the administration of the office should be subject to the Act. Records related to constituency work or to political activity should not.

With respect to specific exemptions, some participants felt that section 16 on Law Enforcement and Investigations should be cleaned up and reorganized. It is a complex provision with three separate exemptions, a mix of mandatory and discretionary.

Section 20—Information Provided by Third Parties about Critical Infrastructure Vulnerabilities—protects confidential commercial, financial, scientific or technical information that is supplied to the government by a third party. Some participants felt that the right to review provided by Section 20 causes unnecessary delays in the disclosure of information.

Section 21—Operations of Government—has been criticized in the past for being too broad and for being applied too broadly. It is a discretionary exemption allowing the head of a government institution to refuse to disclose records on the internal decision-making processes of government. This was described as a "catch-all" clause for the amount of information it covers; it should be re-written.

Some participants expressed concern that Section 24 on Statutory Prohibitions—which prohibits the disclosure of records that are subject to confidentiality provisions in other legislation (for example, from the Income Tax Act or Criminal Records Act)—provided for an ever-expanding area of blanket exemptions. They suggested that partial disclosure of information be allowed and that decisions to add to the list of prohibitions be reviewable.

With respect to partial disclosure, several participants suggested that the principle of "severability" in Section 25 needs to be clarified. Section 25 requires the head of a government institution to disclose any information in a record that does not fall within an exemption, and that can reasonably be severed.

Several tables discussed the desirability of a general public interest override. Two mandatory exemptions have public interest override provisions that allow the head of a government institution to disclose exempted information when it would be in the public interest to do so. Some felt that extending the public interest override to mandatory exemptions in "compelling categories" such as safety, public health, and the environment would be a worthwhile addition to the legislation. Discretionary exemptions already imply a balancing of the public interest in disclosing or not disclosing information. There was some concern, however, that discretionary exemptions were being used too broadly. According to these participants, all discretionary exemptions should be subject to an injury test, in which the deputy head must make the case that demonstrable harm would result from the disclosure of the exempted information.

Records Management

A number of comments dealing with specific exemptions related to the broader issue of records management. Some felt that this was more important than the regulation. The debate around what constitutes a record in the electronic age is ongoing. How do we define records in this new (and constantly evolving) context? What does the duty to create a record mean in this context? For, example, is a database query a "record"? It was suggested that a definition of records, for example with respect to emails, should be embedded in management policy.

The discussion of how to adapt the ATI regime to new circumstances led to a debate around the extent to which the regime should be articulated in legislation or in management policy. On the one hand, management directives are more responsive than legislation to a changing environment; the government’s definition of "records" in the context of rapid technological change, for example, might be best expressed in policy. On the other hand, participants emphasized the importance of having the regime’s fundamental principles expressed in legislation, in order to promote compliance. From this perspective, many suggested that reformed legislation should include, for example, an approach to records management across government, such as a "duty to create a record." The challenge is to anchor the regime in legislation but ensure it is sufficiently nimble in policy.

Access for Everyone

There was debate around the issue of "access for everyone". Should use of the Act be open only to Canadian citizens, or to anyone, regardless of citizenship? One view was that in today’s increasingly interdependent world, it is both increasingly difficult and meaningless to restrict access to Canadian citizens. According to this view, the time has come for universal access, perhaps with a differential fee structure for foreign requesters. Other participants were of the view that taxpayer dollars should be spent on Canadians. Even supporters of restricting access to Canadians felt that the need to validate requesters’ location or citizenship should not hold back the move to electronic requests. It was suggested that, if necessary, government could learn from practices in other sectors using enabling technologies to authenticate individuals.

Role of the Commissioner

There was extensive debate about whether or not the Information Commissioner should have the power to make binding orders on settling complaints. Some felt that order-making power was appropriate given that other jurisdictions have adopted it with success. Provincial experience with order-making power shows that mediation continues to the main approach to resolving complaints. Where no agreement can be reached, binding orders create a body of precedent that would be helpful in terms of consistency. Some suggested following the Ontario model, in which the Commissioner can make orders that are binding but reviewable.

Others felt that the current ombudsman approach was sufficient. The proportion of complaints that go to Federal Court is similar to that of provincial Information Commissioners with order-making power. According to these participants, the Information Commissioner already has to the tools to promote compliance: persuasion combined with a tendency to win in court is an effective combination. According to this view, the political capital required to acquire order-making power would be best expended elsewhere—such as fixing the requests and complaints processes. Finally, some participants were fundamentally uncomfortable with the accountability implications of an Officer of Parliament having the power to make binding orders over deputy heads.

The fact that participants agreed broadly on desired outcomes suggested to some that there would be an opportunity in future deliberations on legislative reform to work through some of these questions. The debate about order making vs. ombudsman, for example, revealed that though there was no consensus on the tools, there was agreement around outcomes such as efficiency and transparency. It was suggested that these outcomes could be achieved in an ombudsman model in which recommendations are given with a time limit to complete investigations, along with a provision to allow findings to be reported publicly.

Participants agreed that the Office of the Information Commissioner should have an education role enshrined in legislation as part of its mandate, which is currently limited to oversight and investigative roles.

ANNEX 1 – AGENDA

Modernizing the Access to Information Regime:

A Public Policy Forum Workshop

T uesday, June 10, 2008

8:00 a.m. – 4:00 p.m.

Main Lounge , Rideau Club, Ottawa , Ontario

AGENDA

"There is no magic solution to the shortcomings of the system. A healthy access to information system needs all its parts functioning well in order to deliver the outcomes intended by Parliament: the right systems to process requests, skilled staff, supportive managers and Ministers, adequate resources, good information management, good understanding of the principles and the rules by all, including third parties, and effective approaches to oversight." Report of the Access to Information Task Force, 2002

8:00 – 8:30 a.m. Breakfast
8:00 – 8:30 a.m. Welcome
Jodi White, President, Public Policy Forum
8:35 – 8:55 a.m. Introductory Remarks
Robert Marleau, Information Commissioner
8:55 – 9:00 a.m. Comments from Facilitator
9:00 – 10:15 a.m. Plenary Discussion
  • Major trends and challenges facing the Access Regime in the 21st Century
10:15 – 10:30 a.m. Break
10:30 – 10:45 a.m. Comments from Facilitator
10:45 – 11:45 a.m. CONCURRENT TABLE DISCUSSIONS
  • Modernizing the Culture
  • Modernizing the Administration
11:45 – 12:15 a.m. REPORT FROM TABLE DISCUSSIONS
12:15 – 1:00 p.m. Networking Lunch
1:00 – 1:15 p.m. Comments from Facilitator
1:15 – 2:15 p.m. TABLE DISCUSSION: Modernizing the Legislation
2:15 – 2:45 p.m. REPORT FROM THE TABLE DISCUSSION
2:45 – 3:00 p.m. Break
3:00 – 3:15 p.m. Comments from Facilitator
3:15 – 3:45 p.m. PLENARY DISCUSSION
  • Other issues of interest to participants and general observations
3:45 – 4:00 p.m. Closing Remarks and Wrap up (Facilitator and Commissioner)

ANNEX 2 – PARTICIPANT LIST

Modernizing the Access to Information Regime

A Public Policy Forum Workshop

June 10, 2008

Ottawa

Public Policy Forum

Ms. Katherine Baird
Vice President, Strategy and Corporate Affairs
Public Policy Forum

Ms. Amélie Crosson
Communications Associate
Public Policy Forum

Ms. Kate Fawkes
Executive in Residence
Public Policy Forum

Mr. Matt LeBlanc
Project Assistant
Public Policy Forum

Mr. Michael Lister
Senior Research Associate
Public Policy Forum

Mr. Yves Poisson
Vice President, Public Policy Programs
Public Policy Forum

Ms. Jodi White
President
Public Policy Forum

Ms. Winnie Wong
Research Associate
Public Policy Forum

Office of the Information Commissioner of Canada

Mr. Daniel Brunet
General Counsel
Legal Affairs Branch
Office of the Information Commissioner of Canada

Ms. Nadine Gendron
Counsel, Legal Affairs Branch
Office of the Information Commissioner of Canada

Ms. Sandra George
Investigator, Complaints Resolutions and Compliance
Office of the Information Commissioner of Canada

Mr. Larry Kearley
Senior Legal Advisor
Complaints Resolution and Compliance
Office of the Information Commissioner of Canada

Ms. Suzanne Legault
Assistant Information Commissioner
Policy, Communications and Operations
Office of the Information Commissioner of Canada

Mr. Robert Marleau
Information Commissioner
Office of the Information Commissioner of Canada

Ms. Andrea J. Neill
Assistant Commissioner, Complaints Resolution and Compliance
Office of the Information Commissioner of Canada

Ms. Josée Villeneuve
Director
Strategic Planning and Parliamentary Relations
Office of the Information Commissioner of Canada

Office of the Privacy Commissioner of Canada

Mr. Raymond D'Aoust
Assistant Privacy Commissioner
Office of the Privacy Commissioner of Canada

Ms. Jennifer Stoddart
Privacy Commissioner
Office of the Privacy Commissioner of Canada

Participants

Mr. Amir Attaran
Institute of Population Health
University of Ottawa

Ms. Irène Boilard
Access to Information and Privacy Coordinator
National Arts Centre

Ms. Sharon Chamberlain
Director General
Corporate and Shared Services
Department of National Defence

Mme Danielle Corriveau
Administratrice
Association sur l'accès et la protection de
l'information

Mr. Michael Dagg
President
Michael A. Dagg Associates

M. Charles Dufour
Chef du cabinet
The Senate of Canada

Dr. David Flaherty
Privacy and Information Policy Consultant
David H. Flaherty Inc

The Honourable Francis Fox
Senator The Senate of Canada

Mme Linda Girard
Directrice générale
Association sur l'accès et la protection de
l'information

Mr. David Gollob
Senior Vice President
Policy and Communications
Canadian Newspaper Association

Mr. Marvin Harik
Legal Counsel
Canadian Bar Association

Mr. Ross Hodgins Director, Access to Information and Privacy Health Canada

Mr. Randall Hofley
Partner
Stikeman Elliott LLP

Mr. Luc Juillet
Director Graduate School of Public and
International Affairs University of Ottawa

Mr. Denis C. Kratchanov
Director/Senior Counsel
Information Law & Privacy Section
Justice Canada

Ms. Sue Lajoie
Senior Director
Information and Access Policy
Treasury Board of Canada, Secretariat

Mr. Wayne MacDonald
Program Manager, Information Access and
Protection of Privacy Certificate Program
University of Alberta

Ms. Noa Mendelsohn Aviv
Director, Freedom of Expression Project
Canadian Civil Liberties Association

Ms. Colette Montpetit
Director
ATIP Office
Office of the Auditor General of Canada

Mr. Tobias Nussbaum
Corporate Secretary and Director General
Foreign Affairs and International Trade Canada

Mr. Geoffrey O'Brian
Advisor, Operations and Legislation
Canadian Security Intelligence Service

Ms. Sharon Polsky
National Chair
Canadian Association of Professional Access
and Privacy Administrators

Mr. Michel Poulin
Director General
Executive Secretariat
Public Works and Government Services
Canada

Mr. Murray Rankin
Partner Heenan Blaikie LLP

Mr. Esteban Uribe
Researcher/Analyst
Public Interest Advocacy Centre

Professor Wesley Wark
Professor, International Relations Centre
Munk Centre for International Studies University of Toronto

Ms. Ann Wesch
Director, Access to Information and Privacy
Privy Council Office

Ms. Patricia Wilson
Partner
Osler, Hoskin and Harcourt LLP

Mr. Hugh Windsor
Columnist (emeritus)
The Globe and Mail