speaking notes - atip practitioners meeting september 26, 2013

7/28/2019 Speaking Notes - ATIP Practitioners Meeting September 26, 2013

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Speaking notes for

Suzanne Legault

Information Commissioner of Canada

to the

ATIP Practitioners Meeting

Ottawa, Ontario


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September 26, 2013

Presentation to ATIP Practitioners meetingSeptember 26, 2013

Acknowledgements

Good morning everyone.

It is a pleasure to meet with you again this year. I thank you all for being heretoday.

If you have been following the news lately, you will know that I havent been sopositive. I have deep concerns about the current state of performance.

Some may have taken this as criticism about the work that you do. Please do nottake it that way. Remember that I am one of the very few independent voices onthe performance of the government. It is important that I speak out.

So let me take this opportunity to recognize your hard work and dedication in tryingto ensure that the Act is respected, despite the challenges you are facing every day.

As you know, the Office of the Information Commissioner has been subject to theAct since 2007. I had to sit down with our coordinator and go through certaindocuments to see if I was going to exercise my discretion in favour of disclosure.

Going through this exercise gave me an ever-growing appreciation for the work thatyou do every day to administer the Act in your respective institutions. The attentionto details, the volume of pages, the concentration required and the tight deadlinesare just some of your many challenges.

***30th anniversary

As you know, we celebrated the 30 th anniversary of ourAccess to Information ActonJuly 1st of this year.

More than ever, Canadians want and expect more transparency in government, notless.

They want access to accurate information on the issues that confronts them eachday.

They want to know the rationale behind policy and spending decisions.

The Act is critical to the functioning of our democratic institutions. It allows citizensto be better informed and participate more effectively in the countrys democraticprocess.

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For these reasons we should always be proud to have been one of the first countriesto have adopted such law.

So lets look back at these 30 years in the context of access to information inCanada.

First, I will reflect on some accomplishments that the enactment of the Act hasbrought to Canadians.

Second, I will give you my take on the current state of access to information inCanada, including the major challenges we all face.

I would finally like to share some of the main issues that were raised during ourinvestigations of complaints and discuss what can be done to address these issues.

Accomplishments

Over the past 30 years, the Access to Information Act has basically

changed how citizens and governments interact.

Not only did the Act provide a legal and policy framework for confirmingthe right of citizens to access government information, it also established apresumption in favour of disclosure and imposed a duty on government toprocess requests in a timely, responsible and complete fashion.

These rights were further entrenched in our democratic institutions by the SupremeCourt of Canada when it confirmed the quasi-constitutional nature of the Act.

With this legal underpinning, we have seen the development of an ATIP communityincluding a large body of jurisprudence.

We have also seen a growth in the number of access requests. Every day there is anews story based on an access request.

More and more Canadians are making requests for information, with requestscoming from a broader cross-section. However, we are still some ways from the50,000 requests mark expected by the government in 1984.

Current State

While there have been accomplishments, we cannot ignore the fact that there havebeen a great deal of changes in the information environment during the past 30years that have brought about its share of challenges.

However, the law has essentially remained unchanged, while the world around ithas continued to evolve.

First, the nature of information has changed radically with the advent of newtechnologies.



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Back in 1983, most government information was paper-based, composed mostly ofhandwritten and typed files. Record-keeping was mechanically managed by fileclerks who patrolled rows of metal filing cabinets- some locked, some not.

The volume of information was manageable and in most cases the sources andrecipients were identifiable.

Today, virtually all government information is electronic or digital.

With the advent of technologies, the volume of information has grownexponentially, as has the number of sources and recipients, many of thempotentially anonymous.

In this era of smartphone, emails, PIN to PIN communication and text-basedmessaging, it becomes a real challenge to keep record of all information exchangedwithin the government.

Government management and administration has also changed.

Government structures were relatively simple and stable in 1983 compared totoday. A department was responsible for a specific public policy area, such ashealth, agriculture, or employment.

But today, government is much more complex.

Issues are no longer bound by jurisdiction or limited to a single governmentorganization.

Issues are spread across a number of policy areas and multiple governments maybe involved.

Rather than relying on the personal wisdom and experience of a small cadre ofdeputy ministers and senior public servants, policy development and decision-making is now centred in the ministers offices.

Governments have also created quasi-commercial entities and special operatingagencies expanding the type and number of government structures. Partnershipswith the private sector are expanding.

Governments are streamlining their operations to become more efficient andreduce spending, leading to centralization of operations.

New technologies, new government structures, new processes these have allcombined to create enormous pressures on records management systems, andraised issues such coverage of the Act and the preservation of records of businessvalue and who has control over such records.

Many records management systems still in place today were designed for an era ofpaper-based information.



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The speed, methods of transmission and sheer volume of electronic data continueto challenge governments ability to collect, retain, manage and share informationwith the public.

Thirty years is a long time - more than a generation.

With a generational shift come new values and attitudes, including new ideas aboutinformation, privacy, and individual rights.

Information is the new currency.

There is a new generation of information consumers in Canada in 2013, with adifferent perspective on the value and importance of government information in thehands of the public.

The nascent importance of open data reflects this shift.

The recognition of access to information as a fundamental human right in manyaccess laws internationally and the fact that there are more than 90 countries thatcurrently have an access to information law also reflects the importance of thisright.

Here in Canada, the scandal over the spending habits of senators has exposed tothe public that this right does not extend to one of our most important democraticinstitutions: the Parliament.

Unfortunately, these changes and other issues within the government have hadnegative impact on performance results. It is true that in the last year alone, thegovernment has responded to more access requests than ever before and that the

number of requests goes up every year.

But the resources have not followed this increase.

What I am currently seeing unfold is that many institutions are struggling to meetthe demand of requesters.

Over the last decade, requesters have been faced with lengthy timelines for lessdisclosure.

But just as troublesome is the constant erosion of the right of access.

As you know, the Supreme Court of Canada ruled that the Prime Ministers Officeand the ministers offices are not part of the government institutions for which theyare responsible- and hence, are not subject to the Act. I was very disappointed withthis decision.

The Court did, however, note that some information in these offices might bedeemed under the control of a government institution, and therefore subject to theAct. The Court proposed a test for making this determination.



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To add to the complexity, the Treasury Board Secretariat issued the ImplementationReport No. 115 on Access to Records in a Ministers Office. The report instructs youto delay requesting records relevant to a request from the ministerial office untilafter collecting all or most of the records from within your institution and only whenyou have reasonable grounds to believe that departmental records related to an ATI

request may be located in a ministers office. I am deeply concerned with thisimplementation report as it introduced a new part to an already complicated test.

This new component is not found in the Supreme Court of Canadas decision. In myview, it is potentially damaging to requesters rights in the time of electronic dataand Im sure, will lead to complaints.

The Federal Accountability Actalso introduced new exclusions or exemptions. Theresult has been much complexity of administration and in some cases, protractedlitigation such as the famous CBC cases.

But perhaps, the most egregious amendments are those that have gone mostly

unnoticed, but have, in my view, slowly eroded our access rights. I am talking aboutthe increasing number of provisions in Schedule II.

The inclusion of statutory provisions in Schedule II has reduced governmenttransparency unnecessarily by expanding the scope of information that issusceptible to being withheld and by making that information the subject of amandatory, non-injury based and unlimited in time exemption.

It also requires government institutions to consider more than one statute in theirdecision-making process and making it more difficult for requesters to understandand exercise their access rights.

The number of provisions included in Schedule II has increased. When the Act waspassed 30 years ago, 33 statutes were listed in Schedule II. Today, it contains 56statutes.

A year ago to this day, when I stood in front of this group, I was reassured to seesome sign of improvements by the federal institutions in complying with the Act.

Sadly, this mild optimism was short lived. The last year has shown clear signs ofdeterioration, which has resulted in an increased number of complaints to my office:we have received 42% more administrative complaints and a noticeable increase inthe complaints related to national security.

At present, our complaints are up by 35% by comparison to the same time lastyear.

I am seeing signs of a system in crisis, where departments are unable to fulfil eventheir most basic obligations under the Act, let alone being proactive or meetingtheir duty to assist.

We have noted that institutions are taking lengthy response and extensions times.



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Let me give you some recent examples that best illustrate this deterioration.

As you know, I brought a case before the Federal Court where the Department ofNational Defence took a 1110 days extension thats more than 3 years!Interestingly, with a court date set for October, the information was just released in

the last few weeks, about half a year before the date that the department hadinitially determined. This type of case is not rare.

In other cases that we have investigated, institutions have failed to meet or simplyrefused to commit to deadlines that we have recommended.

What we are hearing from institutions is that they simply do not have the resourcesto properly respond to the number of access to information requests they received.One institution (RCMP) was so understaffed that it was unable to even acknowledgereceipt of access requests within 30 days.

Other improper practices have also emerged from our investigations. For instance,

some institutions simply do not retrieve records before claiming an exemption or anexclusion.

Addressing Key Issues

As you do every day, our office continues to work hard in ensuring that Canadiansrights conferred by the Act are protected.

We are presently working on a number of ways to facilitate the investigationprocess. For instance, we have issued an advisory notice on section 9(1)c). The useof this section has resulted, in some instances, in unreasonable lengthy extensions,which have brought more complaints to our office.

We have also published an advisory notice on missing records. We are beginning tosee a disturbing trend in our investigations. So far this fiscal year, there has been a34 per cent increase in the number of refusal complaints where a department hasresponded no record exists, up from 19 per cent in fiscal year 2011-12.

We also have ongoing communication with institutions to improve our investigativeprocess. In January 2013 we launched our first meeting with coordinators of theinstitutions that received the most complaints. The next meeting is next month.

Our 2012-13 Annual Report is now ready and will be tabled as soon as Parliamentresumes its activities on October 16.

Two other reports resulting from our investigations will be provided to Parliamentthis coming fall. One is related to text-based messaging, while the other concernsspecifically the political interference at Public Work and Government ServicesCanada.

Finally, we could not celebrate the 30th anniversary of the Act without rememberingthe need for reform. The law has grown tired and out-of-date and has been slowly



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eroded by a variety of constraints, practices and amendments to the Act. As I cantestify from my own experience, my Offices investigations increasinglydemonstrate the deficiencies in the law. I will give some specific examples in amoment.

We are working on a special report that will make recommendations to Parliament

on amendments to the Act. This is scheduled to be tabled later this fall.

Best practices to turn things around

Last winter, I was invited to meet with deputy ministers during the DM breakfastseries to talk about access to information. Here are a few of the messages I gavethem.

I stressed the importance of their leadership in the administration of the access to

information program. Leadership makes the most difference in matters of access.When departments do well, it reflects positively on the government. For the ten topdepartments, it actually reflects positively in the overall statistical performance ofthe government.

It is important that clear direction be provided by the heads of institutions to theirATIP teams with regard to respecting the intent and spirit of the access legislation,because commitment to respecting this legislation has an enormous impact.

By responding on time and by maximizing disclosure, your institution will incur areduction in complaints; hence, a reduction in the oversight impact. They musttherefore allocate sufficient resources to their ATIP unit.

39 per cent of the complaints received by my office last fiscal year wereadministrative complaints such as delays which could have been completelyavoided if departments responded within the allotted time frames.

Some departments have done so quite successfully (i.e. CSIS and CBC/Radio-Canada). Successes at improving delays have led to a positive reaction fromrequesters who felt that their right to information has been respected, and apositive outlook on government transparency is achieved.

I suggested to empower analysts to make certain judgement calls for example byletting them exercise discretion regarding the waiver of fees. These judgement callsmay prevent numerous requesters from making an administrative complaint to myoffice.

In terms of complaints resolution, progress may be achieved by designatingsomeone at an ADM level within your institution to interact with my AssistantCommissioner about complaints that are not getting resolved at the coordinatorlevel or to resolve a large number of complaints.



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It is our experience that an ADM level person often brings a different perspective inthe review process. We now have regular meetings between my AssistantCommissioner and an ADM at CBC, CPC, PCO, CSC, CRA and RCMP.

Collaboration with our office is the key to resolving complaints effectively and withina reasonable timeframe.

In the last three years, I negotiated a resolution for 98% of over 7200 cases. Thiscan only be done with the support of you and your team.

Conclusions

Information is the new source of wealth, power and influence. Those who have itwant to protect it. Those who dont, want access to it. Never before has information especially government information- been so high on the publics radar.

The more requests government gets from individuals or organizations, the moreawareness and understanding there is of how government works.

In these circumstances, the Act represents an even more powerful tool: as I notedearlier, it is a fundamental pillar of our democracy.

The past 30 years has seen fundamental changes in government information. Ayear ago on Right to Know Day, I initiated an Open Dialogue process to solicit ideason reforming the Act.

Later this year, I will be bringing forth a number of recommendations. Here are afew potential recommendations.

The Information Commissioner of Canada should have order-making

power. Right now, I can only try to influence departments decisions ondisclosure through discussion or by referring the matter to the FederalCourt.

There should be stronger incentives or penalties in the Act to ensure

timeliness of disclosures.

Current exemptions in the Act should be reviewed with a view to

increased disclosure.

The duty to record should be made more active especially in light of

new technologies.

The whole area of Cabinet confidences should be revisited.

As discussed earlier, the Act should be extended to cover Parliament,

ministers offices, and courts administration.



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And there should be mandatory, periodic reviews of the Act to promote

public discussion.

In this regard, the Office of the Information Commissioner should have

an education mandate, especially for the public.

The right to know should not be confined to a special day or week. It is a right thatmust be observed and respected year-round. As I have conveyed now publicly andwill continue to do: it is not enough for the government or government institutionsto say that they are doing their best. Canadians have a quasi-constitutional right toaccess government information. The government has to ensure that it is abiding byits legal obligations under the Act and does what is required.

In that context, modernizing the Act will address many issues but I will also continueto advocate for institutions to devote sufficient resources to meet their legalobligations under the Act. I have recommended this much as part of my letter to thegovernment on their Open Government Partnership Action Plan and I will continueto emphasize it at every occasion.

We all have our role to play. Your role is central to our good governance. Everysingle time that you respond within timelines and make a decision on disclosure inline with the intent and the spirit of the Act you make a difference.

Have a great 30years celebration today and happy Right to Know Week.

Thank you.


speaking notes - atip practitioners meeting september 26, 2013

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