2012-2013 2. Ensuring compliance with the Act
Our core business is investigating complaints, in support of our mission to defend and protect Canadians’ right of access to public sector information. During the course of our investigations we encountered a number of novel and complex issues—some of which are found in the summaries below.
We also uncovered a number of causes for concern about the health of the access to information regime at the federal level, particularly associated with complaints about basic administrative matters. Among those were a number of complaints about extremely lengthy extensions of time. In one mildly worded letter we received this year about a lengthy response time for a request, a complainant wondered whether the “[access to information] process that I’m experiencing really meets the intent of the program” (see "A complainant asks," below).
Our investigative context
We received 9-percent more complaints in 2012–2013 than we did the year before. We also saw the number of new administrative complaints increase by 42 percent from 2011–2012.
This is a sign of clear deterioration in the access to information system and indicates that institutions are having difficulty meeting even their basic obligations under the Access to Information Act, such as adhering to the legislative deadlines for responding to requests or following proper procedures for taking time extensions.
A complainant asks: Is this what Canadians should expect from the access to information system?
I would like to report my concerns with [my access to information] request. […] I have still not received the requested information almost 18 months later. […]
I’m not sure how long “final approval” takes, but I’ve paid a substantial amount of money, and have no idea when the CD of requested documents will arrive—or how relevant they will be at that point.
I’m just not sure that the [access to information] process that I’m experiencing really meets the intent of the program.
The most obvious problem is the lengthy time period that I have been waiting. […]
I would […] appreciate hearing whether you feel that my experience (so far) meets the spirit and intention of the [access to information] process available to Canadians. If you have the ability to encourage completion of this request, I would appreciate that, too.
Administrative investigations demonstrate that institutions are failing to meet basic obligations under the Act
Responding to access to information requests is institutions’ legislative duty and, as such, the access function should be properly resourced. However, in many of our investigations this year, institutions told us they had insufficient staff, both in the access to information office and program areas (subject matter experts) to properly respond to the number of access to information requests they receive.
One particularly notable instance of this concerned the failure of Parks Canada to meet an extended deadline to respond to a request for documents related to the announcement that Sable Island would become a Canadian National Park Reserve. Our investigation revealed that access officials took no action on the request for 11 months, neither processing the records nor initiating the required consultations. Parks Canada informed us that the underlying cause of this delay was heavy workload and understaffing at the institution. Cutbacks were compounded by the disappearance of some regional offices, which led to confusion about where access officials should send the records during final approvals. As a result of cumbersome approval processes and the lack of internal resources, Parks Canada missed its legislative deadline by more than 11 months.
Other instances of insufficient resources
We found a number of other instances of the access office, program areas or both not having enough staff to respond to requests in a timely manner.
For example, in Transport Canada’s case (under “Lengthy time extensions,” below), one sector took roughly a year to provide records, due to a shortage of staff. In addition, the access office initially said it would only be able to respond to the request more than two months after the due date, again, due to a lack of resources. Similarly, Health Canada (under “Failure to meet commitment dates,” below) cited a lack of resources as the primary reason why a request had been untouched for a number of months and that consultations had not been initiated in a timely manner.
In light of these circumstances, the Commissioner made recommendations to both Ministers, which they accepted, about the necessity for proper resourcing of the access function.
Another institution, the Royal Canadian Mounted Police (RCMP), was so understaffed that it was unable to even acknowledge receipt of access requests within the 30 days in which it should have, generally, responded (see box, below, for a sample response). This failure hampered our ability to investigate, since the complainant did not even have file numbers for the requests to provide to us. We note that the number of administrative complaints we have received about the RCMP more than tripled from 2011–2012 to 2012–2013. We have held a number of meetings with the RCMP, and it has put a plan into place to respond to our concerns. We will be monitoring the effectiveness of the plan and the RCMP’s performance closely.
In an April 2013 response to a request submitted in September 2012, the RCMP responded to a complainant as follows:
“Unfortunately, we are experiencing a huge backlog due to the high volume and complexity of requests. We cannot give you a time frame for when your request will be completed at this time, but it is approximately half way thru [sic] the process.”
Lengthy time extensions
The Access to Information Act allows institutions to extend the time they take to search for and process large volumes of records (paragraph 9(1)(a)) and to consult other institutions (paragraph 9(1)(b)) and third parties (paragraph 9(1)(c)). However, the Act does not state how long those extensions should be, except to say that they must be “for a reasonable period of time, having regard to the circumstances” (subsection 9(1)).
We investigated a complaint about a 540-day time extension Transport Canada took to respond to a request for records related to the development of a joint Canada–U.S. declaration on security and competitiveness.
Our investigation determined that Transport Canada’s extension under paragraph 9(1)(a) was invalid, since Transport Canada did not demonstrate that there was a large volume of records or that searching for the records would unreasonably interfere with operations. We also determined that the extension under paragraph 9(1)(b) was unreasonable, since Transport Canada had taken no action to initiate consultations for almost one year after receiving the request. This was largely because of one sector’s reluctance to provide records they deemed to be sensitive. There was also no effective follow-up mechanism for taskings within the access to information office.
When we asked Transport Canada to provide us with a commitment date, officials told us that they would be able to respond more than two months after the expiry of the extended legislated due date. Given our findings about the extension, we were unwilling to accept a date after the time the institution was required to respond. Accordingly, the Commissioner wrote to the Minister, who committed to responding one month before the extended due date.
We also investigated an instance of an extension that was more than twice as long as Transport Canada’s. National Defence took a 1,100-day extension to respond to a request for information about the sale of surplus military assets to Uruguay. At slightly more than three years, this extension was one of the longest we had seen in recent memory. The extension comprised 230 days to process the approximately 3,000 pages responsive to the request, and 880 days to consult other government institutions.
During the course of our investigation into the subsequent complaint, National Defence did not justify the 230 days claimed for the purpose of processing the responsive records. We were also informed that National Defence’s consultations would, in fact, take approximately 160 days, falling well short of the 880 days claimed for the time extension taken for this purpose. As a result, we agreed with the complainant that the extension was wholly unreasonable and was therefore invalid, since subsection 9(1) requires extensions to be “for a reasonable period of time.” We recommended to the Minister that he respond within 90 days of the expected completion of the outstanding consultation. Our recommendation was not accepted and, having obtained the consent of the requester, we commenced judicial review proceedings in the Federal Court.
Failure to meet commitment dates
One way we seek to resolve complaints about lengthy time extensions is to obtain a work plan and a date by which an institution formally commits to respond to a request. Once an institution commits to responding by a certain date we generally close our investigative file as resolved. This year, we investigated several complaints in which institutions failed to meet or refused to agree to commitment dates.
For example, Health Canada received a request in November 2010 for records relating to a television advertisement about childhood obesity and sugar-sweetened drinks. The institution did not take an extension of time. As a result, the request became overdue in January 2011. In March 2011, our office received a complaint.
During our investigation, we noted that the request had lain dormant for significant periods of time and that consultations, although required, had not been started in a timely way. On numerous occasions we asked Health Canada to provide us with a work plan and a commitment date. In the end, the Commissioner found it necessary to write to the Minister to seek her commitment to respond to the requester by the end of June 2012. The Commissioner also made a number of recommendations, including that consultations be undertaken in a timely manner and that Health Canada ensure that access requests are processed expeditiously. In response, the Minister agreed to respond by the recommended date and to take measures to improve the processing of access requests.
Unfortunately, it became apparent after we had reported the result of our investigation to the complainant that the institution was not going to meet its commitment date. In subsequent discussions with Health Canada senior management, the Commissioner emphasized the importance of complying with a commitment date, particularly once a Minister has agreed to meet it, since respecting such agreements is essential to the proper functioning of the Commissioner’s ombudsman’s role, as set out in the Act. In the end, Health Canada responded to the request approximately one month after the commitment date.
Failure to respond accurately to requests by not retrieving records
Investigations in 2012–2013 revealed that access to information officials were not retrieving records when they were of the view that the records would be exempted or excluded under various provisions of the Act. Failing to retrieve the records led to incorrect and incomplete responses to requesters.
For example, we investigated more than a dozen complaints about the Canadian Broadcasting Corporation’s (CBC) use of its unique exclusion in section 68.1. At the time of the requests, the CBC had a guideline in place that allowed it to claim section 68.1 without gathering or reviewing any responsive records if officials decided that a request, on its face, was for information related to the CBC’s journalistic, creative or programming activities. Instead of retrieving these records, officials simply responded to the requester that the records were excluded. The requesters then complained to our office.
The CBC made changes to this guideline in the fall of 2011. Moreover, in November 2011 the Federal Court of Appeal confirmed that the CBC (and by extension all institutions) must retrieve all records responsive to access requests before determining whether exemptions or exclusions apply and must also consider whether severance is required.
Following our intervention, the CBC withdrew its reliance on section 68.1 and conducted supplementary searches for responsive records. We concluded that in many instances the CBC had responded that the “record” was excluded when it did not in fact even exist. This practice resulted in inaccurate responses to requesters, unnecessary complaints to our office and a waste of public resources.
We can now report, however, that officials at the CBC retrieve and process all records responsive to requests made under the Act. They also consider whether it is possible to sever and release information, as is required by the Act.
In a second case, a requester sought access to all staff disciplinary investigation reports produced by the Correctional Service of Canada (CSC) in the Pacific Region in 2006 and 2007. CSC withheld the records in their entirety under subsection 19(1), the mandatory exemption for personal information. The requester complained to our office about this refusal, stating that redacted versions of similar records had been provided by CSC in the past.
During the course of our investigation, we requested a complete copy of the records on numerous occasions. CSC stated that the records were held in individual paper files and that retrieving them would require a search through hundreds of such files. When we reviewed the institution’s records associated with processing the request, it became clear that the access to information office had never retrieved the records but had simply reviewed samples of similar records. We reviewed these samples and determined that CSC could have removed certain information that would have identified individuals and released the remaining information.
In the end, CSC informed us that the actual records, which would have now been more than two years old, had been disposed of even though our investigation was ongoing.
Our report to the complainant concluded that CSC had failed to properly respond to the request since it did not retrieve the records, had not properly responded to our investigative queries, had disposed of records responsive to an access request despite being aware of our ongoing investigation and of our requests to be provided with copies of the records, and had wholly failed in its duty to assist the requester. Indeed, CSC’s failure to retrieve and preserve records resulted in irremediable harm to the requester’s rights under the Act.
CSC has assured us that it now retrieves and processes all records that may be responsive to a request even when those records may be exempted as personal information.
All-round failure to meet the duty to assist
Instances of a lack of compliance with the basic obligations of the Act, including those described above, demonstrate a failure on behalf of government institutions to abide by the duty to assist, as found in subsection 4(2.1) of the Act. Among other things, this legislated duty requires institutions to make every reasonable effort to assist a requester, and to respond accurately and in a timely manner to a request.
One of our investigations uncovered a particularly notable failure by an institution to meet its duty to assist. Aboriginal Affairs and Northern Development Canada (AANDC) provided a requester with an incomplete response to a request for information about the Food Mail Program. When the requester identified specific documents that had not been retrieved, AANDC insisted that he submit a new request, saying, “Due to the volume of information, we feel this goes beyond the duty to assist.” Despite our showing AANDC access officials the complainant’s detailed list of records, they continued to refuse to conduct a further search for the records. A subsequent formal letter produced no results. In the end, the complainant received the additional documents in response to a second request. When we reviewed the documents, we found that they were responsive to the first request and that the requester should not have been forced to make a subsequent request.
We concluded that AANDC’s obstinate refusal to retrieve all responsive records, even in the face of evidence of their existence, as well as its insistence that the complainant make a second request, was a complete failure to abide by the legislated duty to assist.
Exemptions and discretionary decisions
Impact of the Federal Accountability Act
A number of changes were made to the Access to Information Act by the coming into force of the Federal Accountability Act (FedAA) in 2006. The amendments added institutions and institution-specific exemptions to the Act.
Definition of “general administration”
Two of the institutions that became subject to the Access to Information Act as a result of the FedAA were the Canada Post Corporation and the CBC. A new exemption (section 18.1) was added to the Act for confidential commercial information “belonging to” specific institutions, including Canada Post. A new exclusion (section 68.1) was also added to the Act for information that relates to the journalistic, creative or programming activities of the CBC. Both of these provisions, however, are subject to an exception for information relating to these institutions’ “general administration.” Although section 3.1 of the Act provides some examples of what constitutes information that relates to an institution’s “general administration,” the list of examples is not exhaustive, and the absence of a definition of this term has resulted in a number of complaints to our office.
Section 18.1 of the Act
Canada Post received a request for records concerning its procurement rules. In response, the institution applied section 18.1 to exempt the majority of the responsive records, which consisted of two related guidelines for employees.
In the course of our investigation, we questioned whether guidelines issued to Canada Post employees in the context of the evaluation of responses to requests for proposals constituted “commercial” information. In the end, we came to the view that the guidelines were not commercial information. We also concluded that even if they were, they related to Canada Post’s “general administration,” since they served as a mechanism to ensure sound management practice. In coming to this conclusion, we referred to the dictionary definition of “administration,” which included the “management of business,” an extremely broad concept. In the end, Canada Post released the records without exemption.
Another new exemption whose application has resulted in complaints to our office is section 16.5. This section exempts information created for the purpose of making a disclosure under the Public Servants Disclosure Protection Act or information created in the course of an investigation into a disclosure under that statute.
We investigated a complaint against Public Works and Government Services Canada (PWGSC) concerning its refusal to disclose reports involving cases of workplace wrongdoing. During our investigation, we determined that section 16.5 could apply not only to information created in the course of any investigation into a disclosure conducted under the Public Servants Disclosure Protection Act, but also in the course of other types of investigations conducted under different statutes, provided that those investigations were into disclosures under the Public Servants Disclosure Protection Act.
After carefully considering the matter, we concluded that, as long as the investigation took place because of a disclosure under the Public Servants Disclosure Protection Act, section 16.5 could apply. We, therefore, found that PWGSC had properly applied section 16.5. However, it should be noted that we were only able to reach this conclusion after experiencing difficulty obtaining a copy of the responsive records from PWGSC.
Briefly, PWGSC’s senior disclosure officer resisted providing the access office with a copy of the responsive records and, during the course of our investigation, also expressed reluctance to provide us with a copy of the records. Although we appreciate that, in some instances, information responsive to requests under the Access to Information Act may be perceived to be sensitive, an institution’s access office still needs to have it on hand for the purpose of processing the request and ensuring that possible severances are done in accordance with section 25 of the Act. The information also needs to be provided to our office in order for us to complete our investigation independently and in private.
Other exemptions of note: section 19 (personal information)
Each year, the most commonly applied exemption about which we receive complaints is section 19. This provision applies to personal information about individuals, other than the requester, that appears in records. To apply subsection 19(1) properly, institutions must show that the information falls under the definition of “personal information” in section 3 of the Privacy Act. Thus, the information must be about an identifiable individual. It must also not fall within the exceptions to the definition of “personal information” set out in paragraphs 3(j) to (m) of the Privacy Act. In addition, the institution must also consider whether any of the conditions that would permit disclosure of personal information apply. This would include, among other things, determining whether the information is publicly available, whether the person to whom the information relates might consent to the information’s release or whether the information warrants being disclosed in the public interest.
Disclosure of the identity of a wrongdoer in a report made by the Public Sector Integrity Commissioner
The Public Sector Integrity Commissioner (PSIC) issued a report concerning allegations of wrongdoing at Human Resources and Skills Development Canada (HRSDC). The report did not name the recipient of the report nor did it identify the person whom was its subject. In response to a request for access to the identities of these individuals, PSIC exempted the information under subsection 19(1). In a complaint to our office, the requester argued that the information should be released under paragraph 19(2)(c), which encompasses disclosure pursuant to paragraph 8(2)(m) (public interest disclosure) of the Privacy Act.
We agreed that the identity of the report’s recipient, HRSDC’s chief executive officer, should be disclosed, since receiving such a report was related to his position or functions as a government employee, and consequently fell within the exception to the definition of personal information found at paragraph 3(j) of the Privacy Act.
We then examined whether the institution had properly exercised its discretion under subsection 19(2) and, more specifically, paragraph 19(2)(c), which encompasses paragraph 8(2)(m) of the Privacy Act. Paragraph 8(2)(m) permits the disclosure of personal information when “the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure.” The discretion to disclose under paragraph 8(2)(m) is, however, subject to any other Act of Parliament. Since the Public Servants Disclosure Protection Act provides that the identity of the subject of a report may only be disclosed in accordance with the provisions of that Act, we concluded that paragraphs 19(2)(c) and 8(2)(m) were not applicable in the circumstances. Accordingly, the only public interest mechanism that allows PSIC to identify the subject of a report on wrongdoing is found in the Public Servants Disclosure Protection Act. In the end, PSIC released the identity of the recipient chief executive officer but not the subject of the report.
One issue that frequently recurs in our investigations is whether the signature of a government employee, placed on documents created in the course of his or her official functions, is “personal information.” While we are of the view that a signature is information about an identifiable person, it is also our opinion that the signature of a government employee, provided in the course of official functions, falls within the exception to the definition of personal information found in paragraph 3(j) of the Privacy Act.
In one instance this year, the Privy Council Office had exempted the signatures and initials of various senior public servants from a briefing note provided to the Prime Minister in 2008. Through our investigation, we concluded that these individuals had provided their signatures, which appeared on official correspondence and routing slips, to authenticate that they had viewed and approved the briefing note in a professional context. We also noted that the presence or absence of signatures or initials is an important piece of information in the context of government accountability. Not being persuaded that the signatures were properly withheld, the Commissioner recommended to the Clerk of the Privy Council Office that the information be released. Although the Clerk did not accept our recommendation, most of the signatures were later released with the consent of the individuals. The requester agreed to settle the complaint after receiving the supplementary information.
Basic business information of third parties
A further question investigated this year was the extent to which individuals’ general professional information constitutes personal information. This question arose when investigating a complaint about Natural Resources Canada’s refusal to disclose the names, professional titles and basic professional contact information of individuals working for a non-government entity who may have received data from Natural Resources Canada
When considering this question, we noted that the Federal Court of Appeal has held that “personal information” must be understood as equivalent to information falling within an individual’s “right of privacy” and that this right, in turn, connotes “concepts of intimacy, identity, dignity and integrity of the individual.”
In keeping with this jurisprudence, the mere fact that certain individuals may have received information in their professional capacity, coupled with these individuals’ professional titles and basic business coordinates, led us to conclude that the information was of a professional and non-personal nature and did not fall within the right of privacy that subsection 19(1) is intended to protect.
We therefore recommended that the Minister release the information at issue. The Minister did not accept our recommendation. We received consent from the requester to seek judicial review of the Minister’s decision. We will report on this proceeding in our 2013–2014 annual report.
Over the past several years, the courts have elaborated on the requirements for the exercise of discretion in the context of the Access to Information Act. We have reviewed these decisions and are now requiring from institutions a more detailed accounting of how they exercise their discretion under the Act. More specifically, we now require that institutions tell us who exercised the discretion and what factors that person took into consideration. We review the factors considered and make a determination as to whether the discretion has, in our view, been exercised reasonably.
National security matters
The Federal Court rendered a key decision in 2011 about the exercise of discretion related to historical records involving national security issues. In that decision, subsequently affirmed on appeal, the Court enumerated a number of factors institutions must take into consideration in that context. This decision has had a very positive impact on the access Canadians have to their documentary history. In particular, we note one investigation into a refusal by the Library and Archives Canada (LAC) to disclose information gathered by the RCMP about literary critic, university professor and editor Northrop Frye, who died in 1991. As a result of the Court decision and our investigation, LAC, in consultation with the Canadian Security Intelligence Service, undertook a complete re-review of the subject files. Subsequent to this re-review and after further questioning by our office, LAC released significantly more information to the complainant based on the passage of time and its exercise of discretion. We have a number of files in which similar re-reviews have been completed and institutions have disclosed substantially more information.
Relevant factors to consider when exercising discretion
As noted by the courts, the exercise of discretion must be reasonable and based on relevant considerations only.
In the context of a request made to the Privy Council Office (PCO) for all information concerning the requester’s application for a Governor-in-Council position, PCO refused to release information relating to the assessment of the requester. Although this information was the requester’s own personal information, PCO applied a discretionary exemption, section 21 of the Act (advice or recommendation to the government), to withhold the information at issue. Although we were not persuaded that the information constituted advice or recommendations, we also questioned whether PCO had reasonably exercised its discretion.
In the course of our investigation, we noted that the Privacy Act does not contain a provision analogous to section 21. We, therefore, concluded that even had PCO properly applied section 21 (which, in our view, it did not) it was unreasonable for it to continue to withhold information to which the requester had a right of access under the Privacy Act. In the end, PCO released the information.
The discretionary public interest override in paragraph 8(2)(m) of the Privacy Act
This year we also investigated complaints that the Correctional Service of Canada and the National Parole Board had failed to consider the public interest override to the exemption for personal information in relation to requests for the full file about an offender who was convicted of killing a police officer. This override is set out in subparagraph 8(2)(m)(i) of the Privacy Act and incorporated by reference in paragraph 19(2)(c) of the Act. Our role, in this context, is to ensure that the question of public interest disclosure is considered by an individual with delegated authority and that the exercise of discretion is reasonable and is based solely on relevant considerations.
After seeking formal representations from the institutions, we were convinced that persons with properly delegated authority had each exercised their discretion reasonably, albeit to not disclose the information. We learned that in doing so, the institutions had considered, among other relevant factors, the nature and gravity of the offence, other mechanisms for the disclosure of information, as well as the interests of the victim’s family and the public in the conditional release process and outcome.
Discretion to assess fees and the duty to consult First Nations
An interesting question concerning the exercise of discretion arose in the context of a request made on behalf of a First Nation for records relating to the design of the government’s Aboriginal consultation process for the proposed Northern Gateway pipeline. The recipient institutions, the Canadian Environmental Assessment Agency and the National Energy Board, assessed substantial fees to search for and prepare the requested records.
The requester complained to our office about the fees, noting that the “honour of the Crown” imposes a constitutional obligation on the government to consult affected First Nations groups about the proposed pipeline. The requester argued that institutions would fail to meet that obligation were they to charge prohibitively large fees.
We agreed that the institutions ought to have considered the “honour of the Crown” when exercising their discretion to charge fees in response to a request under the Act for records relating to the consultation process. In our view, the institutions’ exercise of this discretion must be based on all relevant considerations. In this instance, among those considerations ought to have been the Crown’s obligation to consult the First Nation on the project.
As a result of the institutions’ failure to consider this relevant factor, as well as the fact that most of the records were in electronic format, we formally requested the institutions to re-consider their fee assessments. In our view, the institutions did not exercise their discretion in this matter reasonably. In the end, both institutions waived the fees assessed and processed the requests.
Shared services and questions of control: Whose record is it?
New challenges relating to who has control of records are arising from recent government-wide information technology and shared services initiatives. Based on the current jurisprudence, it is clear that both the institution with physical possession as well as the institution with the right to obtain a copy of the record have control for the purposes of the Act.
A complaint involving Citizenship and Immigration Canada (CIC) alleged that the institution had conducted an inadequate search for records about an individual’s immigration history, dating to the 1970s.
CIC stated that it was unable to process the request, since the records in question now belonged to the Canada Border Services Agency (CBSA). When the requester sought the information from CBSA, it replied that CIC would have originally generated the file and would likely hold the information. Through our investigation into the complaint against CIC and a subsequent one against CBSA, we learned that both institutions had access to microfiches containing the requested information. We also learned that these microfiches are located on CIC premises. Consequently, we concluded that both institutions had erred when they told the requester they did not have responsive records: CBSA had access to the records and the ability to request and obtain them from CIC; CIC had physical possession of the records. As pointed out by the courts, “control” of government information is not limited to physical possession but encompasses information that a government institution has a right to obtain. As the government increasingly turns to shared services, it will be essential for institutions to ensure that they properly task for records under their “control” even when they are not in their physical possession.
Moving towards more open government
Canada has committed to open government initiatives, through the international Open Government Partnership, for example, and by developing its own Open Government Initiative. Open government principles require that governments publish data in a format that is useful to the public. The duty to assist in the Access to Information Act also requires institutions to provide information to requesters in the format in which they wish to receive it. To effectively move towards a more open government, institutions must consider how they make information available to the public and address issues of access and data re-use.
For example, Industry Canada initially refused to provide the requester with a copy of Corporations Canada’s main database, citing subsection 68(a), which excludes from the Act information that is already published, on the grounds that it is publically available. In investigating the complaint, we determined that the search engine of the database was limited to a maximum of 200 results. We therefore concluded that this was inadequate to render the information publicly available. Industry Canada subsequently increased the number of search results from 200 to 500 but nevertheless maintained that the information was publicly available.
In the end, after discussions with Industry Canada senior management about the principles of the Open Government Initiative—namely, the importance of providing data in a format that is useful to requesters—Industry Canada released the full database to the requester in electronic format.
When institutions cease to exist, where do the records go?
It came to our attention in 2012–2013 that a number of federal institutions had either been wound down or amalgamated with other institutions or were the subject of plans to do so in the near future (see box). Unfortunately, it does not appear that sufficient safeguards have been put in place to ensure the integrity of the public’s right of access to information held by the institutions that have been affected.
In one instance, the International Centre for Human Rights and Democratic Development was closed down while we were conducting an investigation. However, no measures had been taken to ensure the orderly transition of the centre’s records. During our investigation, we eventually learned that some were sent to Library and Archives Canada and others to Foreign Affairs and International Trade Canada (DFAIT). In the end, we closed our file and recommended that the requester make a new request to DFAIT, which, according to our investigation, should have received the responsive records.
Examples of institutions affected by recent legislation
- Canadian International Development Agency: amalgamated with the new Department of Foreign Affairs, Trade and Development
- Assisted Human Reproduction Agency of Canada: abolished
- Pensions Appeal Board: abolished; a new institution to be established
- Canadian Wheat Board: structure to be modified; no longer to be subject to the Access to Information Act
- Hazardous Materials Information Review Commission:abolished
Our website contains a complete list of affected institutions.
In April 2013, the Commissioner wrote to the President of the Treasury Board in his capacity as the Minister responsible for “causing to be kept under review the manner in which records under the control of government institutions are maintained and managed to ensure compliance with the Act” (section 70 of the Act). In her letter, the Commissioner stated that “it is imperative that measures are put into place to protect the rights of requesters under the Act and to preserve the integrity of the access to information system when federal institutions that are subject to the Act are eliminated or amalgamated with other institutions.” The President of the Treasury Board responded to the letter on June 4, 2013.
We issued two sets of comprehensive reports on the timeliness of institutions’ responses to access to information requests in 2012–2013. These reports were the third and fourth in a series looking into delays in the federal access system and assessing institutions’ overall compliance with the Access to Information Act.
To assess the subject institutions, we used three indicators of delay and then collected statistical and contextual information to form a complete picture of institutions’ operations. For the report we released in May 2012, we investigated 18 at-risk and below-average performers we had previously rated for 2008–2009. Out of these, 13 improved their performance in 2010–2011 (the subject year of our assessment), two received the same grade and three performed worse.
Canada Post and the CBC were the subject of the report we issued in December 2012. It focused on these institutions’ performance during 2011–2012. The organizations had become subject to the Act with the coming into force of the Federal Accountability Act in 2006. Both received failing grades on our 2009–2010 assessments. Our re-assessment revealed, in stark terms, 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 had transformed that organization into one committed to meeting its obligations under the Access to Information Act. The same cannot, unfortunately, be said of Canada Post, which continued to struggle with poor performance.
Given the overall improved performance we had seen, we announced in the May 2012 report that we would suspend this type of multi-institution investigation until at least 2014 in order to dedicate all of our investigative resources to pursuing individual complaints, unless circumstances changed. As this annual report demonstrates, the situation has changed dramatically and investigations into the overall performance of institutions will have to be reconsidered.
We also recommended that institutions report to Parliament in their annual report on access to information operations on their progress implementing our recommendations. This would help ensure federal institutions could be held to account for their access to information activities. The Treasury Board Secretariat has agreed to make this a mandatory requirement for institutions’ annual report to Parliament.
In 2012–2013, we completed the final stages of two other multi-institution investigations: one into delays caused by inter-institution consultations and the time extensions associated with them, and the other involving possible interference with the access to information process. Early in the new fiscal year, we began gathering final representations from the institutions involved and reporting back to them. We expect to report to Parliament on these investigations in the fall of 2013.
We launched an investigation into institutions’ use of PIN-to-PIN communications, as they impact access to information. Our plan is to also report on this investigation in the fall of 2013. Finally, at the very end of the fiscal year, we began investigating a complaint into whether government policies that restrict or prohibit government scientists from speaking to or sharing research with the media and the public are impeding the right of access to information under the Act.