2014-2015 Findings and recommendations

From the evidence gathered in the investigation, the Commissioner reached a number of findings of fact and conclusions that are set out in Appendix A. The main conclusions can be summarized as follows.

1. Interference with the processing of access requests

The Commissioner’s first main conclusion is that the improper involvement of ministerial staff members in the processing of five of the eight access request files reviewed in depth by the OIC constituted interference with those files. This interference took the form of directions to the ATIP Directorate from the ministerial staff members, who had no authority under the Act, to sever or remove information that the delegated authority had decided to disclose.

Based on the findings of fact in Appendix A, the Commissioner concluded that there was interference in five files: A-2008-00519, A-2008-00588, AC-2009-00039, A-2009-00033 and A-2009-00169. Appendix A contains a detailed account of the evidence in relation to the processing of those files.

The documentary and testimonial evidence obtained during the investigation led the Commissioner to conclude that three ministerial staff members— Mr. Sébastien Togneri, Mr. Marc Toupin and Ms. Jillian Andrews—interfered with the processing of requests. In each instance, the ministerial staff members testified that they were aware that they did not have delegated authority under the Act. The ministerial staff members were also aware that those with delegated authority had made a decision as to disclosure. Despite being aware of these facts, the ministerial staff members insisted on changes or modifications to the information ATIP officials had decided to disclose.

Specifically, the involvement of Mr. Togneri in the processing of five requests and his directions to members of the ATIP Directorate concerning these requests constituted interference with requesters’ right of access under the Act (files A-2008-00519, A-2008-00588, AC-2009-00039, A-2009-00033 and A-2009-00169).

The involvement of Mr. Toupin in the processing of a consultation request, his directions to members of the ATIP Directorate in that regard and his interactions with ministerial staff members at Health Canada constituted interference with the requester’s right of access under the Act (file AC-2009-00039).

Finally, the involvement of Ms. Andrews in the processing of an access request and her directions to members of the ATIP Directorate in that regard constituted interference with the requester’s right of access under the Act (file A-2008-00519).

In the above files, ministerial staff members directed the non-disclosure of information that was responsive to requests and that delegated authorities had decided to release.

2. Failure to comply with the statutory duty to assist

The Commissioner’s second main conclusion is that PWGSC failed to comply with its legal obligation to assist requesters, as found in subsection 4(2.1) of the Act. In four of the eight requests reviewed in this investigation, PWGSC did not release information when it was ready to be disclosed.^{Footnote 6} Instead, officials delayed responding, between six and 30 working days, in order to obtain the approval of ministerial staff members who did not have any delegated authority under the Act. In the view of the Commissioner, these actions were inconsistent with the duty to assist, even when the response was provided to the requester prior to the expiry of the extended due date.^{Footnote 7}

The obligation to provide timely access is a key element of the duty to assist. This obligation is not limited to the obligation to respond by the extended due date. The duty to provide timely access requires that institutions respond to a request when the response is ready—that is, when it has been approved by a delegated decision maker.

3. A culture of maintaining good relations with the Minister’s Office

The Commissioner’s third main conclusion is that ministerial staff exerted pressure over employees in the ATIP Directorate. The evidence demonstrates that employees were instructed to preserve good relations with the Minister’s Office and that this, at times, came at the expense of these employees’ responsibilities under the Act. This culture of pleasing the Minister’s Office was exacerbated by the failure of senior officials to ensure that members of the Minister’s Office followed proper communication protocols.

Guidance issued by the Privy Council Office in 2008, Accountable Government: A Guide for Ministers and Ministers of State, makes it clear that “exempt staff do not have authority to give direction to public servants, but they can ask for information or transmit the Minister’s instructions, normally through the deputy minister.”^{Footnote 8}

In this investigation, the evidence demonstrated that ministerial staff members, without any delegated authority under the Act, became increasingly involved in the processing of access requests and gave instructions to employees in the ATIP Directorate. This was contrary to Accountable Government.

In May 2011, the Privy Council Office updated the guide to specify that “significant contact between the Minister’s Office and departmental officials should take place through or with the knowledge of the Deputy Minister’s Office.” Annex E of the revised guide emphasizes that ministerial staff members “do not have a role in departmental operations,” that they “have no legal basis for exercising the delegated authorities of Ministers” and that “they may not give direction to departmental officials on the discharge of their responsibilities.”^{Footnote 9}

In the view of the Commissioner, it is essential that ministerial staff fully understand the limitations of their role in the institution. Steps should be taken to ensure that all members of the Minister’s staff and PWGSC employees are fully aware of the role of the Minister’s staff and the limitations on that role.

PWGSC informed the OIC that there is no longer any contact between the ATIP office and ministerial staff. It also indicated that ministerial staff members no longer participate in the meetings that identify requests that might require communications products. These processes have been documented and were provided to the OIC in PWGSC’s representations made under section 35 of the Act.

4. Records held in the Minister’s Office

Another issue that arose as a result of this investigation concerns the retention and storage of information relating to departmental matters in the Minister’s Office. Some of the evidence obtained by the OIC was only retrieved as a result of a follow-up with the Minister’s Office on a production order issued to PWGSC that had sought, in part, electronic records between ministerial staff members. In response to the production order, PWGSC had refused to produce these records, claiming that they were not under PWGSC’s control but rather under the control of the Minister’s Office.

The Supreme Court of Canada’s decision in Canada (Information Commissioner) v Canada (Minister of National Defence) (2011 SCC 25) determined that records located in a Minister’s Office are nonetheless “under the control” of the related government institution when they concern departmental matters, and a senior official of the institution reasonably should be able to obtain a copy of the records upon request.

The records ultimately obtained from Minister Ambrose included electronic communications between former ministerial staff members at PWGSC and their counterparts at Health Canada about the processing of a consultation request. Accordingly, the Commissioner concluded that these communications contained information that enabled and documented decision making in support of the ATIP Directorate’s activities and mandate. The Commissioner also found that a copy of the records should have been stored in a departmental repository in the Minister’s Office, as required by governmental and ministerial policies, guidelines and directives, or been transferred to PWGSC to be put in its processing file.

Treasury Board’s Policies for Ministers’ Offices (2011) provides that “unless specifically exempted, ministers and their exempt staff are subject to Treasury Board policies and regulations.” Section 10.1 of this document requires that “Ministers should maintain separate information systems for Cabinet documents, institutional records, ministerial records and personal and political records.”

Institutions are bound by the Treasury Board document Policy Framework for Information and Technology.

The Treasury Board Directive on Recordkeeping (2009) provides numerous instructions aimed at “enable[ing] departments to create, acquire, capture, manage and protect the integrity of information resources of business value.” These are defined as any materials “created or acquired because they enable and document decision-making in support of programs, services and ongoing operations, and support departmental reporting, performance and accountability requirements.”

The 2011 version of Accountable Government, which applies to Ministers’ offices and exempt staff members, similarly acknowledges in Annex C that there are four categories of records kept in these offices, and requires records in these categories, including departmental records, to be filed separately.^{Footnote 10}

Finally, Library and Archives Canada’s Guidelines for managing recorded information in a Minister’s Office identifies the same four categories of records created and received in Minister’s Offices and provides guidance on how these records groups are to be managed. More specifically, the guidelines provide that “for quick reference to those official matters in which both the institution and the minister’s office are involved, the minister’s office may wish to maintain a complete or partial set of copies of institutional records.”

The position of PWGSC, communicated to the OIC, is that “in general we take the view that the Minister and her office do not generally create IRBV (information resources of business value), but when they do, they must transmit it to the department’s control for it to have any impact – or value.” The presumption is that unless information is communicated to the institution, records created in a Minister’s Office do not have any business value.

Based on the evidence obtained in this investigation, the policies noted above and the above-mentioned Supreme Court of Canada decision, the Commissioner does not agree with this approach.

It is the Commissioner’s view that the records provided to the OIC by Minister Ambrose in response to the third production order were of business value. Thus, the records should have been transferred to the appropriate corporate repository or stored in the Minister’s Office in accordance with the relevant legal and policy instruments.

5. Internal procedure to address possible breaches of section 67.1 of the Act

Finally, in the previous interference investigation involving PWGSC (OIC file 3209-00718) the Commissioner recommended that PWGSC establish internal procedures that specifically address possible breaches of section 67.1 of the Act and, among other things, that they outline measures for investigating and reporting suspected contraventions.^{Footnote 11} During this investigation, the OIC received a copy of PWGSC’s Procedure to Report a Potential Breach to Section 67.1 of the Access to Information Act, and the Commissioner is of the view that it does not fully address the earlier recommendation. PWGSC’s procedure meets the requirements of the Treasury Board Policy on Access to Information. However, given the findings of interference in the processing of requests and with requesters’ right of access in this investigation and the similar findings of her previous investigation, the Commissioner is of the view that PWGSC should implement a more robust reporting system for possible breaches of section 67.1. This would include a requirement to notify the departmental security officer and where appropriate the relevant law enforcement agency.

Based on the foregoing and on the factual findings in Appendix A, the Commissioner concluded that this complaint was well founded.

In order to resolve the complaint, the Commissioner made the following recommendations to the Minister responsible for PWGSC, who is the head of the institution for the purposes of the Act. The Minister and the Deputy Minister provided responses to the recommendations.

Recommendation 1

Refer the five files in which the Commissioner has concluded there was interference to the appropriate investigative body.

PWGSC’s response

Recommendation 2

Draft and post clear protocols guiding the interaction of ministerial staff with departmental access to information and privacy officials.

Recommendation 3

Provide training to ministerial staff members about their role within the institution particularly in relation to the institution’s obligations under the Act. Ensure that this training is given to all incoming ministerial staff members.

Recommendation 4

Provide consistent training to access to information and privacy staff members about the role of ministerial staff under the Act. Ensure that this training is given to all incoming employees in the access to information and privacy directorate.

Recommendation 5

Establish and communicate a clear mechanism for employees in the access to information and privacy directorate to complain, without fear of reprisal, about interference by individuals who are not delegated under the Act.

Recommendation 6

Amend the policy concerning possible breaches of section 67.1 of the Act to reflect the recommendations made in investigation 3209-00718.

Recommendation 7

Draft and post a policy on the duty to assist requesters under subsection 4(2.1) of the Act. Ensure that the policy distinguishes between the requirement to respond to requests within the legislative timeline under the Act and the broader duty to give timely access to information. This obligation includes a duty to respond as soon as possible. Training materials should be revised accordingly.

Recommendation 8

Ensure that all records of business value created by ministerial staff that relate to departmental matters are transferred to the appropriate corporate repository or are stored in a repository within the Minister’s Office. That ministerial staff be reminded that the proper handling of information is a term and condition of employment for ministerial staff members and that measures to sanction non-compliance with proper information management practices be implemented.