Upholding the right of access to information: The Commissioner’s perspective
Canadian Access and Privacy Association (CAPA) Annual Conference
By Caroline Maynard, Information Commissioner of Canada
November 28, 2022
(Check against delivery)
The world has changed since the last time I attended the CAPA Conference in November of 2018, 6 months into my mandate as Information Commissioner.
It was the one and only time I met Michael Dagg, who had a tremendous impact on government transparency.
I was sad to hear of his recent passing, and I offer my sympathies to his loved ones and his friends.
Retrospective on the impact of the pandemic
When I last attended the CAPA conference, I could not have imagined how only 16 months later, a global pandemic would have such a profound impact on government institutions and on my own office.
During the early days of COVID-19, it became obvious to me that unless the government took immediate action in several areas, the access to information system, already under pressure, was headed for even more trouble.
To start, federal employees were suddenly working from home in a way nobody had anticipated.
That meant that information management, and the documenting of decisions, was going to become a big challenge, not to mention the retrieval of documents and the processing of access to information requests.
Nobody had planned for this sudden shift away from federal buildings.
I was sure that in a lot of cases the tools and infrastructure were not in place to support the move to remote work.
This is why in April of 2020, I urged heads of federal institutions to provide clear direction and update guidance on how government information was to be managed in this new operating environment.
I also pressed institutions to disclose information that was of fundamental interest to Canadians on a voluntary basis.
During this time of crisis, Canadians were looking for reassurance from their government.
As I said at the time, by respecting good information management practices and the right of access, the government could build an open and complete public record of decisions and actions taken during this extraordinary period in our history.
I also noted that the law provided no dispensation. It must be respected even under exceptional circumstances.
We can see that, in some cases, my call for action was disregarded.
While some institutions were paralyzed, or used the pandemic as an excuse to limit the right of access, others took this as an opportunity to innovate.
In the case of my office, we were able to adapt to a new operational reality.
I did everything I could to ensure that my team continued its operations, including processing access requests and investigating complaints in accordance with the law. The OIC kept pace and even improved its performance.
Where we started
From Day 1, the focus of my mandate has been getting results.
My priorities were to eliminate the backlog, implement the changes to the Access to Information Act, make our processes more transparent, and collaborate with stakeholders.
And I was able to make real progress in each of these areas.
When I was appointed in March 2018, I inherited a backlog of about 3,500 complaints.
During the last four years, new complaints have continued to increase in volume.
Last year was a record year, with almost 7,000 new complaints registered. That was 70% more than the previous year.
Despite this rise, the OIC has managed to clear 93% of the backlog of files that were in the inventory when I arrived.
We did this while continuing to work on new files. Every year, our efficiency has improved. For example, we were able to close 6,900 files last year. This is almost three times the number of files we closed during the first year of my mandate.
While I am proud of my team for this achievement, I know it is not enough. The fact is, every year, we receive more complaints than we can close.
In addition to having to respond to a never-ending increase in volume, many of the files remaining in our inventory are very complex.
They sometimes involve tens of thousands of pages with many exemptions claimed.
That being said, I am committed to do everything I can to get those remaining older complaints resolved before the end of my mandate.
As our inventory of pre-June 2019 complaints is diminishing steadily, an increasing number of complaints are now subject to orders.
As you know, in June of 2019, changes to the Act introduced the order-making power. This power allows me to compel government institutions to respond to access requests and to release records.
This was a major improvement as it enabled me to be more effective in my role.
While we are still unable to assign all our files as quickly as I would like, once my office begins an investigation, it diligently works to complete it within a reasonable time.
At some point, discussions and negotiations with institutions have to end.
We may agree to disagree, but eventually the final step is the issuance of an order.
Currently, I have one institution that has refused to implement my order and has decided to challenge it before the Federal Court.
I invite you to visit our web site where we just added a comprehensive Frequently Asked Questions section on orders.
You can also find on our web site many decisions and reports I have published since June 2019, including decisions regarding requests that institutions feel were vexatious, made in bad faith or otherwise an abuse of the right of access.
It is clear that having a bank of published reports to refer to has helped resolve complaints more quickly.
We see our reports quoted in representations by both complainants and institutions.
In accordance with my priorities, I also work with institutions to help them meet their obligations under the Act and to address barriers in the system.
I do this by meeting with ministers and senior leaders and reminding them of the importance of good information management, leadership and accountability at all levels.
Indeed, access to information is an essential part of the work of all public servants. It is not a distraction from their other responsibilities.
I also believe that my four systemic investigations have had a broad impact, addressing larger issues across the system.
Facing the challenges head on
During my last appearance before the ETHI Committee in October, I once again stated that respecting the law as it currently exists would represent an important first step to improving the state of access to information.
As Information Commissioner, I have done my best to outline what the implications are for Canadians when institutions are unable to uphold the right of access in the face of increasing volumes and limited resources.
It means requesters are not able to obtain the records they are seeking, either because the information was not properly managed, or because the Act was not properly applied.
It means long waits for requesters as consultations are carried out between institutions.
And unfortunately, it means complainants wait for months for their complaints to be reviewed by my office.
As I recently told Parliament, in the face of ever-increasing volume, more permanent resources are needed.
We cannot stay on the current trajectory. We will reach a point of no return if we get to 20,000 complaints as we are projecting for 2024-2025.
The challenges my office faces are not the only areas in need of attention.
I heard from a few frequent users recently. They have raised several issues.
Some have pointed to a lack of expertise in ATIP teams, with analysts who work as a go-between, rather than performing a challenge function, or properly fulfilling their duty to assist as required by the Act.
Experienced ATIP analysts are vital to the system.
They help requesters to clarify their access request. And they enable institutions to process requests more efficiently, particularly those that are more complex.
As one frequent requester puts it: “Working with seasoned ATIP coordinators and their staff solves so many problems.”
Let me be clear: I understand what ATIP teams are facing.
So far this year, my own ATIP unit has seen a fivefold increase in volume of pages they are required to process.
I have done what I can to support them, encouraging proper information management practices within my own organization, and providing the team with additional support to help mitigate the pressure.
In addition, I have made it clear to all employees that access to information is also their job. It is a collective responsibility.
But the fact is, more and more requesters are asking for more and more information.
The capacity to attract qualified resources to deal with requests and complaints remains limited within the system.
And the number of requests and complaints continues to increase.
The result is a system that is overwhelmed by the pressure and often unable to deliver.
This is why I press for meaningful change across the system, and I will continue to do so.
What we need to do next
Despite the increase in workload for ATIP offices across the board, the fact remains that less than 3% of requests processed result in a complaint to my office.
The OIC has a role to play in ensuring this continues to be the case.
Practically speaking, the best request is the one that did not need to be made, because information was available through other means.
Institutions need to continue to explore alternatives to the access system, which should be a last resort.
And if a request must be made, it should be dealt with on a timely basis or lead to the disclosure of the information the requester is entitled to.
My point is if a request must be made, then institutions need to take all possible measures to ensure it does not become the object of a complaint.
Institutions need qualified staff and a commitment from their leaders. ATIP units know their workload and their needs. Leaders need to listen to them closely.
Institutions also need better technology, information management practices and tools.
Canadians are used to having quick access to the information they are seeking—just a click away on their phone, tablet or computer.
Canadians’ expectations towards government institutions are high but not unreasonable given the technology and innovative solutions available.
Canada is also in urgent need of a declassification system.
A good declassification program should seek to open records up so they are made available beyond the access system.
Declassification and the dissemination of important historical national security and intelligence records would also alleviate pressure on the access system.
To sum up, giving access the level of importance it deserves would be a good place to start.
In closing, I want you to remember the following:
The 7,000 complaints my office responded to last year were from Canadians seeking:
- copies of residential school files that belong to their communities;
- clarity on immigration applications;
- facts on Federal support measures for families;
- data on Government contracts;
- information on interest rates and measures taken to strengthen our economy;
- and other government information they are entitled to.
These are often issues of vital importance to the individual making the request.
What’s more, these Canadians are not asking the government to go above and beyond. They are simply exercising their legal rights.
The right of access is enshrined in law. It is a quasi-constitutional right.
The person receiving a response to an access to information request is not receiving a service from the government or benefiting from a privilege.
Canadians are entitled to timely access to information. They should not tolerate a situation where their institutions don’t respect the law of the land.
While we await the results of the review of the access regime, I urge leaders to take decisive actions to address the issues across the system in order to uphold this fundamental right.
And I strongly encourage Canadians to hold their government to account for its performance in the area of transparency and access to information.