Report Cards 2011-2012

Message from the Commissioner

Suzanne Legault - Information CommissionerWith this report, I present the closing chapter of a three-year study to review and assess the root causes of delay in the access to information system. In the wake of my 2009–2010 special report, I undertook to revisit two years later the two institutions—the Canada Post Corporation and Canadian Broadcasting Corporation (CBC)—that did not receive a passing grade that year to measure their progress in implementing my recommendations.

What these two latest report cards demonstrate, in stark terms, is the difference that leadership and engagement can make in addressing issues of delay in the system. In just two years, senior management at the CBC transformed that organization into one committed to meeting its obligations under the Access to Information Act. The same cannot, unfortunately, be said of the Canada Post Corporation, which continues to struggle. 

While I have observed and reported on measurable improvement across the system in my last two special reports, I recognize that the system is still fragile. Overall performance is far from the best levels we saw in 2002–2003, when institutions responded to 69 percent of all requests in 30 days or fewer. It would not take much to undo the good work some institutions have done recently, particularly in light of budgetary cutbacks and competing priorities.

There is, therefore, a need to maintain continued vigilance so that these modest improvements are not lost and the time it takes to receive a response to an access request continues to improve. An important recommendation in my May 2012 special report was that institutions report on their progress implementing my recommendations in their annual report to Parliament, so they can be held accountable for their access to information operations. This recommendation is key to my ability to continue to monitor the health of the access to information system. So far, only one institution has responded to this recommendation satisfactorily. I will look closely at next year’s reports with the expectation that institutions will have provided a detailed account of their work.

I also call on Parliament to continue the valuable oversight role it played following previous reports, particularly through the House of Commons Standing Committee on Access to Information, Privacy and Ethics. Should issues of concern come to my attention, I will not hesitate to bring them to Parliament’s notice and, when appropriate, take action.

Access to information ensures government accountability and fosters the engagement of Canadian citizens with their government. As a result, it must be accorded the highest priority through compliance among subject federal institutions and the government that oversees them.

Introduction

The Canada Post Corporation and Canadian Broadcasting Corporation (CBC) are the subject of this report. It focuses on these institutions’ performance during 2011–2012 in terms of the timeliness of their responses to access to information requests and compliance with the Access to Information Act.

These two institutions, which had become subject to the Act in 2007 as a result of the Federal Accountability Act, both received failing grades on the Office of Information Commissioner’s 2009–2010 report cards. Through a re-assessment, and following our standard methodology, we sought to learn how well these institutions had done, two years later, implementing our recommendations and improving their performance.Footnote1 (Canada Post report cardCBC report card).

Image of the cover of the 2009-2010 Report Cards: Open Outlook, Open Access

Since this is the final report we will be issuing as part of our three-year study into delay, we also take stock (see Chapter 1) of elements key to fostering continuous improvement and protecting requesters’ right of access to government information.

1. Ensuring continuous improvement

Four key elements for continuous improvement

  • Leadership on the part of ministers, and senior institutional executives and management
  • Leadership from the centre: TBS
  • Vigorous oversight by the Information Commissioner and Parliament
  • Best practices

The results of our three-year study into the causes of delay in the access to information system have generally been positive in terms of service to requesters. We have seen a small improvement—the first of any size in a decade—in the timeliness of institutions’ responses. In addition, many institutions now process new requests in an average time approaching—or in a few cases even less than—the ideal time frame of 30 days set out in the Act. In addition, a number of institutions have eliminated or greatly reduced their backlog of longstanding cases. Our complaints inventory also reflects institutions’ improved performance, since in 2011–2012 we received 58-percent fewer complaints about administrative matters, including delays, than we did three years earlier.

Nonetheless, the current report cards, and those we issued in May 2012, show that the situation has not improved uniformly. In fact, there remain, despite the overall progress, institutions with serious performance-related problems. As well, we found that the access to information system is still fragile, particularly in light of budget cuts. These are likely to threaten institutions’ ability to respond in a timely manner to access requests and to our complaint investigations.

Within this context, it is crucial that continued vigilance take place to ensure these gains are not sacrificed and performance continues to improve. In our view, there are four key elements that will make this possible: leadership on the part of ministers and senior institutional executives and management, leadership by the Treasury Board Secretariat (TBS), as the system administrator, vigorous oversight by us and by Parliament, and implementation by institutions of recognized best practices. Moreover, the evidence of efforts in these areas and any resulting system-wide improvement will inform future report card exercises and be a key factor in any decision to re-launch the process.

Institutional leadership

Our report cards found again and again that strong, committed and sustained leadership—from the minister, deputy minister and senior management team—is the single most important fact in ensuring a successful access to information operation. Why is this so?

First and foremost, leaders directly and through their actions communicate the importance of access to information to all staff—that employees have a legislated obligation to respond to requests in a timely manner, along with a duty to assist requesters in any way they can. By emphasizing these points, strong statements from senior officials can help make access to information an integral part of the organizational culture, rather than an add-on to an institution’s mandate-associated work. Active championing of access to information can also ensure that employees understand the concept of transparency and why engaging with Canadians in this manner is an important public policy goal.

This is true in the case of the Canadian Broadcasting Corporation, which made a dramatic improvement in performance between 2009–2010 and 2011–2012. We have also noticed over the years that leadership from the top often translates into tangible resources that allow institutions to better carry out their access to information duties. This may result in an injection of financial resources, more people in the access office, training for access officials and employees, or new business tools.

We have also seen leadership take the form of including compliance with access obligations in the performance management agreements of senior executives. This, in itself, is a catalyst for better compliance.

The higher profile of access at an institution leads to, in our experience, greater comfort with the access process and confidence that it is possible to respond to requesters in an open and transparent manner, while still protecting essential and sensitive information. This is particularly true when employees across the institution receive comprehensive training on the access function.

Leadership from the centre

Leadership for access to information must also flow from the centre of government—that is, from TBS, the system administrator.

In the 2008–2009 report cards, we recommended that TBS take action in areas such as information management, human resources, training and accountability for performance to promote general improvement across the access to information system. While TBS has responded to our recommendations in a number of regards (progress report as of May 2012), it must continue to implement these recommendations to the fullest extent to support institutions and facilitate system-wide improvement.

Of particular note was our 2008–2009 recommendation that TBS increase the amount of statistical information it collects from institutions each year on their access to operations. This data provides an annual snapshot of, among other things, the volume of requests institutions received, some details on how quickly institutions completed them, the exemptions they claimed, the time extensions they took and the resources involved in carrying out the access function.

We were of the view, however, that there were gaps in the statistics. As a result, they did not provide the complete picture needed to fully understand the challenges associated with access to information operations at the federal level or to propose effective solutions. For example, TBS did not request statistical information about the consultation requests institutions received or the number of pages involved in access requests—both indicators of the real workload of access to information offices. At our recommendation, TBS revised the reporting requirements to include these items and others.  2011–2012 was the first year in which institutions provided this additional data.

The aggregate figures are expected to be released soon, and we will analyze them to see what they say about trends in workload, timeliness, resources and other points. We also encourage institutions to analyze the data they glean about their operations and take the opportunity to adjust their procedures and resourcing levels accordingly.

Vigorous oversight

The report card process clearly showed the value of ongoing and vigorous oversight of the access to information system. After re-assessing the 20 at-risk or poorly performing institution (of the 33 we had studied overall since 2008–2009), we generally found that institutions that made a concerted and effective effort to implement our recommendations did, in fact, perform better.

We will continue that oversight through our complaint investigations, during which we focus on improper institutional practices and errors in application of the Act. To resolve complaints, we issue informal or, when the situation requires it, formal recommendations to institutions. In certain circumstances, we ask the head of the institution to provide a plan for how the institution will avoid the identified problems in the future. (For a recent instance of this, see “Consultations” in our 2011–2012 annual report.)

Through self-initiated complaints (subsection 30(3) of the Act) and systemic investigations that look at a particular concern across a range of institutions, we provide recommendations to institutions. For example, the Commissioner launched in October 2012 a systemic investigation into whether, in the absence of a government-wide policy, text-based messages containing government information sent from, or received on, government-issued wireless devices are being properly managed and preserved to ensure the right of access to information.

We will also continue to pursue in the courts complaints that cannot be resolved satisfactorily otherwise.

Finally, we will assess the annual reports on access to information operations that institutions submit to Parliament each year—in particular, to see whether institutions have reported on their progress implementing the recommendations we issued in our two 2012 special reports.

Having reviewed the 2011–2012 annual reports, we found a variety of responses, only one of which fully met our expectations—from Natural Resources Canada, which provided a detailed account of its work since we issued its report card in May 2012. We encourage other institutions to follow this model and will be closely reviewing the 2012–2013 annual reports to not only determine whether institutions, in fact, report their progress to Parliament but also to assess the work they have done in response to our other recommendations.

Parliament itself, particularly the House of Commons Standing Committee on Access to Information, Privacy and Ethics, could enhance its important oversight role by conducting an in-depth review of these reports and taking follow-up action, as it has done in the wake of previous report cards.

Between the new TBS statistics and the annual reports, our complaint and systemic investigations, and any necessary court actions, we will continue our oversight of institutions. We would respond as required if we were of the view that the recent fledgling gains had been, or were at risk of being, lost. This could include self-initiating complaints, meeting with senior institutional officials or re-instating the report cards earlier than planned.

Best practices

Over the course of preparing report cards over the past three years, we have gathered many best practices that institutions across government would do well to emulate or from which they could take inspiration. Among these are the following notable examples:

Leadership

  • Incorporating access to information into the performance management agreements of senior executives.
  • Communicating regularly, clearly and openly the importance of public institutions’ being transparent and meeting their obligations under the Access to Information Act—to build a culture of openness at the institution.
  • Ensuring the access to information function is adequately resourced.

Oversight

  • Having senior management regularly review the institution's access to information performance, including the deemed refusal rate, average completion time, backlog of pending requests and overall caseload, and making adjustments accordingly.

Delegation orders

  • Providing the access to information coordinator with full delegation for all access to information decisions.

Duty to assist

  • Always following the principle behind the duty to assist provision of the Access to Information Act (subsection 4(2.1)): making every effort to provide accurate, complete and timely responses to requests.
  • Ensuring access officials and program areas fully understand the scope and nature of the request, prior to retrieving records, including immediately contacting the requester for clarification.
  • Informing requesters early in the process of what to expect when their request involves a large volume of records—that significant fees may be required and considerable time may be needed to complete the response.
  • Ensuring that communications requirements, such as preparing a communication plan or media lines, do not delay the release of records.
  • Providing the records to the requester as soon as the processing has been completed (prior to the statutory deadline).
  • Interpreting the exemptions and exclusions narrowly to ensure that as much information as possible is released.

Training and awareness

  • Holding training and awareness sessions across the institution for employees at all levels and ensuring that key officials, including from senior management, are on hand to answer questions.
  • Through such sessions, promoting the need to respect the spirit of the Access to Information Act, as well as setting out the procedures and obligations associated with complying with it.

Outreach

  • Apprising third-party stakeholders and other external audiences of the implications of the Act, including meeting with community leaders and residents to not only promote transparency but also facilitate informal and formal access.
  • Developing a strong Web presence for access to information that includes comprehensive but user-friendly information and tools for the public and stakeholders.

Proactive disclosure

  • Identifying the most-often requested types of information and posting it for the public before being asked for it.
  • Processing frequently requested records to facilitate prompt responses to requests.

Consultations

  • Developing protocols with frequently consulted institutions, to expedite the consultation process.
  • Keeping in regular contact with institutions being consulted to mutually determine how long the consultation will take and to track the status of the consultation response.
  • When institutions fail to respond to consultation requests on time, exercising discretion and applying the necessary exemptions, severing records and releasing the rest, as is required by the Act.

Time extensions

  • Ensuring extensions are being taken for legitimate reasons, are for as few days as possible, and the rationales are properly documented.

Contingency planning

  • Anticipating special events that may have a large impact on the ability to respond to access requests in a timely manner and putting contingency plans in place. These could include embedding an access resource on site at the event, ensuring that program areas have back-up resources to cover for staff involved with the event or augmenting the staff complement in the access office.

2. Report cards

The 2011–2012 report cards focus on the two institutions that received an “average” rating (“C”) or below in 2009–2010. Both institutions improved their performance, the Canadian Broadcasting Corporation (CBC) substantially but Canada Post only marginally, and not to an acceptable level (see Figure 1).

Figure 1: Overall performance ratings, 2009–2010 and 2011–2012

Institution 2009–2010 grade 2011–2012 grade 2011–2012
overall performance
Canada Post Corporation Red Alert F Unsatisfactory
Canadian Broadcasting Corporation F A Outstanding

As we noted in our May 2012 special report, institutions that implement our recommendations tend to noticeably improve their performance. This was once again shown to be true in our re-assessment of Canada Post and the CBC. As Figure 2 shows, Canada Post did not meet (or fully meet) our expectations for four out of the five recommendations we issued, and while its performance did improve, it was only marginal. In contrast, the CBC implemented all our recommendations to our satisfaction, particularly with regard to senior institutional leadership, and increased its grade by several levels.

Figure 2: Implementation of 2009–2010 recommendations

Recommendation Canada Post Corporation Canadian Broadcasting Corporation
Show leadership Did not meet expectations Met expectations
Develop action plan Did not fully meet expectations Met expectations through alternative action
Reduce deemed refusal rate Did not meet expectations Met expectations
Amend delegation order Did not meet expectations n/a
Submit all notices of extension Met expectations n/a
Deliver training n/a Met expectations

The number of complaints we received about Canada Post in 2011–­2102 increased from 35 to 46, with the majority of them being about the institution’s refusal to release information. Fifty-five of the 71 complaints we received about the CBC in 2011–2012 were about refusal to release information.

Footnotes

Footnotes

Return to footnote 1 referrer

Figures A note regarding statistics: Most of the figures cited in the report cards come from the questionnaire subject institutions complete at the start of the process. Any data about complaints are from our own records. On occasion (always noted), we use figures from the annual statistical reports institutions submit to the Treasury Board Secretariat (TBS). These figures may differ from our data. For example, our analysis of institutions’ use of time extensions, unless otherwise indicated, stems from the notices institutions send us as they take the extensions. In contrast, TBS asks for information about extensions based on the requests institutions complete during the year.

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