2009-2010 3. Taking stock of institutions new to the Access to Information Act

The challenges of institutions who became subject to the Access to Information Act in recent years—including our office—came to the fore this year, in both investigations and legal proceedings. Solutions for dealing with those challenges also became apparent, however, as we collaborated with institutions.

The 70 or so institutions that became subject to the Access to Information Act in 2006 and 2007 under the Federal Accountability Act have now had a few years of experience working with the legislation as they respond to access requests and complaints. These institutions include Crown corporations (such as the Canadian Broadcasting Corporation [CBC], Canada Post and Via Rail), various foundations and agencies, and officers of Parliament (such the Auditor General of Canada, the Privacy Commissioner of Canada, and our own office). The distinctive features of these organizations, as well as their newness, presented challenges as they developed access to information expertise and implemented significant administrative and cultural changes to achieve compliance.

As Table 1 indicates, we have received complaints against about one quarter of the new institutions since 2007. More than 80 percent of the complaints were against the CBC, largely involving one requester. Eighty-five percent of the complaints completed with a finding were found to have merit. For our part, requesters filed all but one of the 24 complaints against us in 2007-2008 and 2010-2011. We have not been subject to a complaint since August 2009.

Table 1. Complaints received and completed, 2007-2010 

*Including one complaint that was cancelled before the investigation began.

**Including two complaints that were cancelled before the investigation began and two that the complainant withdrew after the investigation began.

***Including one complaint that was cancelled before the investigation began.

Collaborative strategies

Throughout our investigations, we significantly stepped up our collaborative efforts to better understand the challenges that new institutions face when applying the Access to Information Act. Beyond our desire to resolve these complaints efficiently, we also wanted to help institutions prevent such issues from reoccurring. To this end, we regularly offered our expertise and advice when needed, and built strong working relationships between all stakeholders to help address their special circumstances.

For example, the former Information Commissioner met with senior officials of the larger of the new institutions during their first year of processing access requests to explain their duty to assist obligations and our role in investigating complaints, and to learn more about the obstacles that they were facing. This year, we also implemented a portfolio approach, grouping some complaints by institution and topic to give our investigators a clearer understanding of an institution’s business.

We established links and relationships with new institutions, and adapted to their reality in recognizing that Crown corporations and officers of Parliament function differently than other institutions. For example, the Act provides that the Auditor General of Canada shall not disclose to a requester information that it gathers or creates in the course of conducting an audit or examination (section 16.1). This exemption applies to both ongoing and completed audits or examinations. In recognizing the volume and class nature of the information involved, and to gain efficiencies in our investigations, we established a protocol with the Auditor General of Canada whereby we may review the information on its site to satisfy ourselves that the exemption has been properly applied.

During our work with new institutions we also learned of some best practices. For example, Via Rail demonstrated that it sees complying with the Act as part of its everyday business practice. Upon becoming subject to the Act, Via Rail immediately posted on its website, as a service to the public, instructions on how to make an access to information request.

Developing experience with new and existing provisions

When the new institutions became subject to the Act, they were required to navigate new legislation and learn what information they must disclose as well as justify the reasons for applying exemptions and exclusions to withhold information. On top of this, additional exemptions were created to protect some of their specific interests, such as the economic interests of Canada Post and Via Rail, and audits conducted by the Auditor General of Canada.

When we became subject to the Act, section 16.1 became particularly relevant, due to the nature of our work and the kinds of records that are under our control. Section 16.1 is a mandatory exemption protecting the confidentiality of the investigative process. We cannot reasonably conduct an investigation into a complaint without full access to all pertinent information, even information that may be considered sensitive or private. By erecting a strong wall of confidentiality around our work that is bolstered by mandatory exemptions, the Act provides us access to vital material without compromising any of the stakeholders involved.

But what happens after the investigation has closed? What remains confidential and exempted from release, should a requester seek access to that investigation’s records? As a new institution negotiating a new exemption without any jurisprudence to guide us, we experienced some challenges in answering such questions appropriately.

Our initial efforts to address the complexity of these issues resulted in several complaints made against our office. Learning from our decisions and the independent feedback we received from the Information Commissioner ad hoc, our office set out to develop a sound approach to meeting our duty to assist obligations while maintaining the confidentiality of our investigations. We put a new policy in place that sets clear rules for working with section 16.1, and administrative practices that balance the needs of all stakeholders involved—requesters, institutions and ourselves.

Subsequently, we received only a small number of complaints about our application of section 16.1. Upon investigation, the Information Commissioner ad hoc found them to be not substantiated. It is worth noting that the process of receiving feedback from the Information Commissioner ad hoc and then subsequently improving our practices confirms the value of this independent oversight. We agree with the Information Commissioner ad hoc that it should be formalized in the legislation. See Appendix 1.

Our experience mirrors challenges that other new institutions have faced. For example, section 68.1 is a new provision that specifically excludes CBC’s journalistic, creative and programming information. As such, CBC began to regularly apply section 68.1 exclusions when responding to requests, resulting in a large number of complaints.

We have not been able to investigate these complaints because there is a difference of opinion between us and the CBC about the implications of this exclusion in our investigations. As reported in Chapter 5, we are currently before the courts because the CBC has refused to provide us with records that we subpoenaed related to complaints. Without the benefit of reviewing the information alleged to be excluded, we cannot assess whether the CBC was correct in its initial decision to withhold records respondent to the original requests. In light of this legal proceeding, we have had to place around 120 refusal complaints on hold.

Atomic Energy of Canada Limited (AECL) also has a provision particular to it. Section 68.2 excludes from the Act information that is not related to AECL’s general administration or to the operation of a nuclear facility. AECL has been the subject of two complaints about how it has applied this exemption. During our investigations, AECL has cooperated fully in providing us information that it had excluded from an access request under section 68.2. This cooperation has allowed us to proceed with our investigation without unnecessary delays.

Noteworthy investigations

Our investigations into complaints against the CBC have been instructive in terms of the challenges new institutions have faced as well as breaking new ground on applying new provisions in the Act. The following summarize three such investigations.

Justification is required

Background

Overwhelmed by a large volume of requests, the CBC began to automatically exempt all records containing certain internal accounting codes and certain credit card numbers. To do so, it claimed the exemption that protects any information that might facilitate the commission of an offence (subsection 16(2)). The requester complained to us about the CBC’s use of this provision in several requests.

Resolving the complaint

Since the onus falls on institutions to prove the applicability of an exemption, we requested a detailed rationale for each instance the CBC applied the exemption.

In the course of doing so, the CBC’s access to information officials conceded that, in order to commit an offence using the internal codes, a breakdown of accounting controls would have to happen at several levels within the institution itself. After this re-evaluation, the CBC released the records, which were previously exempted, to the requester.

As for the corporate credit card numbers, we agreed with the institution that the release of information could facilitate the commission of an offence. As such, this information remained withheld.

Lessons learned

When deciding to withhold information under the Act, institutions must assess and demonstrate how disclosure of the requested information would result in probable harm to the particular interest it has identified. When it cannot demonstrate the harm, it must disclose the information.

Proper assessment for proper fees

Background

The Access to Information Act allows institutions to charge fees for every hour (after the first five hours) they reasonably need to search for records and prepare them for release.

The CBC received 68 requests and assessed that the resulting processing fees would total several thousand dollars. The requester complained to us, stating that he considered the fees to be excessive. The requester also suggested that the CBC might be using the large fees as a general deterrent to requesters.

Resolving the complaint

To evaluate whether the CBC properly estimated the fees, we asked them to provide a detailed justification for each request. The CBC did so and we worked closely with officials there to assess each one.

We found that most of the fees were, in fact, unjustifiably high, in some instances due to mistakes made by inexperienced access staff. However, we found no evidence that the CBC was using excessive fees as a way to deter requesters.

As a result of our investigation, the CBC re-assessed the excessive fees and ended up processing many requests for free.

Lessons learned

Institutions are responsible for providing their staff with appropriate advice and training on calculating processing fees, particularly if they are large and out of the ordinary. Institutions must also be able to adequately justify any fees that are out of the ordinary. In this case, a more diligent approach to the assessment of fees on the part of the CBC would have resulted in a better service to the public and fewer complaints to our office.

In addition, we recognize that the fee scheme in the Access to Information Regulations, which dates back to the 1980s, needs to be revisited to reflect the electronic-based environment in which all institutions work and to address the discrepancies in how the regulations are applied. This will likely reduce the number of fee complaints we receive each year. (They accounted for four percent of new complaints in 2009-2010.) We will pursue this issue with the Treasury Board of Canada Secretariat.

Missed commitments

Background

This is a follow-up to a case that we originally reported two years ago and again in last year’s annual report.¹

A person submitted hundreds of access requests to the CBC in the first few months that it became subject to the Access to Information Act. He then made hundreds of complaints to us when the institution failed to respond on time.

Although we found the bulk of these delay complaints to have merit, we agreed to the CBC’s undertaking to respond to the remaining requests within one year. We understood that the institution was overwhelmed by requests and dealing with a heavy workload.

We monitored CBC’s progress as it worked to meet the April 1, 2009, deadline for more than 260 outstanding requests. Unfortunately, the CBC failed to respond to 32 of these requests by that deadline. Consequently, the Commissioner initiated a complaint for each of the outstanding requests.

Resolving the complaint

In order to investigate these complaints, we had to ask the CBC for additional documentation. Given the delays in processing these requests up to that point, we also informed the CBC that we would exercise our formal powers to compel it to produce the responsive records, if required. In response, CBC sent us all of the information we requested (processing files) but not the responsive records at issue.

The CBC responded to all of the outstanding requests between April 3 and May 28, 2009, before it became necessary to issue the order for production of records. We found the complaints to be valid and resolved.

It is our view that the institution might not have responded to these requests as soon as it did, had it not been for strong action on our part—initiating our own complaints and then expressing our willingness to issue an order for the production of records—and the requester’s—taking the CBC to court. (For a summary of that proceeding, see “Large volume of requests”.)

Lessons learned

While we acknowledge that the CBC has been working under difficult circumstances, we expected that the institution would fully meet its commitment to respond to all the requests in the year provided. In its breach of not only the provisions but also the spirit of the Access to Information Act, the CBC clearly did not respect the rights of the requester. This case also raises the broader question of whether the Act needs to be reformed to allow institutions to take time extensions for responding to multiple and simultaneous requests from a single requester. This was one of the amendments we proposed in our 2009 legislative reform package.²

Looking ahead

Working with these institutions to overcome their obstacles gave us invaluable insight into broad-based issues that may be affecting institutional performance across the entire access to information system. As such, our experience resolving these cases has directly informed our ongoing systemic investigations into compliance. For example, next year we will be producing report cards on new institutions. For more information, see Chapter 4.

¹ See 2007-2008 annual report and 2008-2009 annual report.

² See recommendation 12.