2015-2016 5. Protecting and promoting access

The Commissioner works to protect and promote access to information rights. In addition to investigations, she does so through a number of other activities.

Collaborating with federal, provincial and territorial commissioners

Information and privacy commissioners at the federal, provincial and territorial levels from across Canada regularly discuss common and pressing issues, particularly as they relate to upholding the fundamental right of access to government information.

In October 2015, the commissioners convened in Edmonton for their annual federal, provincial and territorial conference. Topics of discussion this year included legislative reform, collaborative community initiatives, and investigation challenges.

The conference allows the commissioners to share best practices, exchange information and prepare joint resolutions on information rights of particular importance for Canadians.

Joint resolutions to address current access to information issues

In 2015-2016, the federal, provincial and territorial commissioners released joint resolutions that addressed two areas of particular concern.

Repeating the call for a duty to document

The first joint resolution issued by the commissioners called on their respective governments to create a legislated duty requiring public entities to document matters related to their deliberations, actions and decisions. The commissioners further stated that this duty must be accompanied by effective oversight and enforcement provisions to ensure that Canadians’ right of access to public records remains meaningful and effective (see “Statement of the Information and Privacy Commissioners of Canada on the Duty to Document” and “Backgrounder on A Duty to Document”).

The commissioners underscored in their resolution that the lack of a legislated duty to document continues to produce an accountability gap in Canada’s access to information and records management legislation. By not creating and retaining records, public entities can effectively avoid disclosure of documents and public scrutiny. This is because when public entities fail to document key decisions and activities, Canadians’ right of access, and the accountability inherent in such access, is denied.

This is the third time the commissioners have jointly called on their respective governments to establish such a duty (see “Protect and Promote Canadians’ Access and Privacy Rights in the Era of Digital Government: Resolution of Canada’s Information and Privacy Ombudspersons and Commissioners” (November 14, 2014) and “Modernizing Access and Privacy Laws for the 21st Century: Resolution of Canada’s Information and Privacy Commissioners and Ombudspersons”).

Respecting rights in information sharing initiatives

A second joint resolution was also issued by the commissioners calling on all levels of government to protect and promote privacy and access to information rights when embarking on information sharing initiatives aimed at improving government services.

In the resolution, the commissioners recognized that although information sharing initiatives are intended to more easily facilitate the sharing of personal information to better serve citizens in the delivery of social programs, community safety, research, health and education, there are significant privacy and access to information implications for these initiatives.

As such, governments should be open and transparent about how information sharing initiatives will be implemented; proactively undertake assessments to help identify possible privacy risks at the outset; and implement information sharing initiatives that will share the least amount of information needed to satisfy the goals of the initiative and implement all reasonable and necessary safeguards.

Analysis of the health of the access to information regime

In December 2015, the Commissioner published her observations on the health of the access system in 2013–2014, including detailed analysis of the annual statistics on access to information operations in 27 institutions. This analysis is based on multiple sources of publicly available information.

The Commissioner undertakes this analysis for a number of reasons. First, it provides a comprehensive picture of the state of the access system. This is beneficial for the Commissioner, institutions and the Treasury Board Secretariat (TBS), which is responsible for the administration of the Act, as it indicates how the system is performing across a representative sample of institutions. Second, this analysis allows the Commissioner to proactively identify issues. For example, she can identify if one particular institution needs to manage a surge of requests. She is in a better position to evaluate the performance of this institution, as well as being able to develop strategies to prepare for a complaint fluctuation to her office.

The Commissioner’s observations for 2013–2014 found that performance among the selected institutions was volatile and varied significantly from one institution to another during this time period.

In terms of the two primary indicators the Commissioner uses to assess the overall health of the access to information system - the percentage of requests completed within 30 days and the percentage of requests for which all information was disclosed - the Commissioner found that across government, 61.0% of requests were processed within 30 days, and all information was disclosed for 26.8% of requests. However, of the 27 institutions reviewed, only three outperformed these rates (the Canadian Border Services Agency (CBSA), Library and Archives Canada, and Immigration, Refugees and Citizenship Canada (IRCC) (formerly Citizenship and Immigration Canada). Over half of the other institutions reviewed had below average results for the two key performance indicators.

These results indicate a gap in many instances between overall performance across government and the individual results of institutions, where overall performance was influenced by the performance of two institutions: CBSA and IRCC. These two institutions have a strong statistical impact because they account for more than half (53.8%) of completed requests.

The Commissioner also observed that most institutions that had underperformed in terms of timeliness in 2012–2013 had worsened in 2013–2014  (such as the Canadian Food Inspection Agency, Global Affairs (formerly Foreign Affairs, Trade and Development Canada), Transport Canada and the Royal Canadian Mounted Police), which further widened the gap between high and low performing institutions.

The TBS statistical report for 2014–2015 has been published. The Commissioner is currently analyzing this information, as well as institution-specific data. The results of this analysis will be published in 2016. A preliminary review indicates that the overall performance across the government has improved in terms of timeliness, while remaining at similar levels for disclosure.

Ensuring compliance with the Commissioner’s recommendations

In 2014–2015, the Commissioner completed a systemic investigation into the use, duration and volume of time extensions for consultations and the delays to respond to access requests that may have resulted (see “Delays stemming from consultations on records related to access requests”).

As part of that investigation, the Commissioner learned that a number of institutions had established processing standards for interdepartmental consultations, based solely on the volume of pages to review, that resulted in extensions of standard lengths being taken.

In light of this practice, the Commissioner made recommendations to the President of the Treasury Board in 2014 in his capacity as the minister responsible for the proper functioning of the access to information system. Many of these recommendations were agreed to and changes were made to the Manual on Access to Information.

By late 2015, the Commissioner found evidence that extensions of standard lengths were still being taken by institutions.

This practice is, on its face, contrary to the Federal Court of Appeal’s decision in Information Commissioner of Canada v. Minister of National Defence, where it was determined that institutions “must make a serious effort to assess the required duration” of an extension and that “an effort must be made to demonstrate the link between the justification advanced and the length of the extension taken.”

In order to address this on-going issue, officials of the Office of the Information Commissioner of Canada (OIC) and representatives from TBS collaborated on a solution. In the end, an email was sent to the ATIP community by TBS reminding institutions of the need to assess time extensions and time required for consultations on a case-by-case basis, taking the volume and complexity of information in relation to a specific request into account.

The Commissioner will continue to monitor complaints about this practice and will follow up with TBS and other central agencies if necessary.

The Commissioner launches her blog

The Commissioner launched her blog, www.suzannelegault.ca, in 2015–2016 to engage directly with Canadians.

A Time for Openness

In February 2016, the Commissioner published her first blog post, “A Time for Openness”. This post traces many promising developments, both in Canada and internationally, for access to information that have occurred in the past year. These include the newly-elected Canadian government’s promise to “set a higher bar for openness and transparency” and review of the Access to Information Act; UNESCO’s vote to declare September 28, already recognised internationally as Right to Know Day, as “International Day for the Universal Access to Information”; and the designation of 2016’s theme for World Press Freedom Day, which occurs on May 3, as “Access to Information and Fundamental Freedoms: This is your right!”

In light of these promising developments, the Commissioner advocates in her blog post for comprehensive reform of the Access to Information Act and, in so doing, calls on Canadians to become engaged and involved in Canada’s democracy.

An Opportunity to Lead: Duty to Document

A second blog post, “An Opportunity to Lead: Duty to Document”, posted in March 2016, discusses the need for a legislated duty to document. This post reviews the technical challenges faced by governments in the “new world order of information” and how the ever-accelerating information landscape has become a real issue for creating and preserving government records.

The post lists how a duty to document will protect access rights, by creating official records; facilitating better governance; increasing accountability; and ensuring a historical legacy of government decisions.

In closing her post, the Commissioner notes that the technical challenges faced by the government also presents a real opportunity for government to lead by example as open and accountable.

A New (Old) Wave of Transparency?

The Commissioner’s third blog post, “A New (Old) Wave of Transparency?”, was posted in April 2016. This blog post notes that although a “transparency wave” is currently being witnessed within the new government, this concept, and others like it, are not entirely new. Transparency and openness are foundational principles of democracy.

In her post, the Commissioner encourages all Canadians to take part in ensuring that a transformation within government occurs towards more openness. 

The blog post features videos of Sweden’s ambassador to Canada, Per Sjögren, and Don Lenihan, a Senior Associate at Canada 2020.

Other activities to protect and promote access rights

The Commissioner, as well as her senior officials, were involved in several other activities in 2015–2016 that protected and promoted access rights.

Speaking events

• April 21-23, 2015: The Commissioner attended the 9th International Conference of Information Commissioners in Chile. While in Chile, she gave a presentation on her experiences balancing the right of access against the need for confidentiality. She also took part in a series of meetings with government officials and Cabinet members, and had an interview with a national newspaper.
• May 8, 2015: The Commissioner gave a speech at the Canadian Journalists for Free Expression’s conference, Flying Blind: The right to know, government obstruction, and fixing access in Canada.
• May 12, 2015: A senior official of the OIC was part of a panel discussion on issues in access to information and privacy law for law enforcement agencies, as well as civilian oversight, at the annual Canadian Association for Civilian Oversight of Law Enforcement conference.
• May 13, 2015: The A/Assistant Commissioner gave two presentations at the Forum of Canadian Ombudsman and the Association of Canadian College and University Ombudspersons: a first on evaluations and a second on the role of the ombudsperson in a social media world.
• May 29, 2015: The Commissioner gave a seminar at the Library of Parliament on her special report Striking the Right Balance for Transparency: Recommendations to modernize the Access to Information Act.
• June 5, 2015: The Director of Legal Services and General Counsel gave a presentation at the Canadian Libraries Association Conference 2015 on modernizing the Access to Information Act.
• June 11-12, 2015: The Commissioner attended the Access and Privacy Conference hosted by the Information Access and Protection of Privacy program at the Faculty of Extension, University of Alberta. The theme for this year’s conference was A Bird’s Eye View: An Integrated Look at Information Access and Privacy Protection and the Commissioner gave the plenary address.
• September 29, 2015: The Commissioner gave an update on recent court cases and access to information issues at a staff retreat for the Central Agencies Portfolio of the federal government.
• October 1, 2015: The Commissioner and her Director of Legal Services and General Counsel attended the executive committee meeting of the Privacy and Access Law Section of the Canadian Bar Association and gave a presentation on the long-gun constitutional challenge.
• November 17, 2015: The Director of Legal Services and General Counsel presented a Freedom of Information webinar for Osgoode’s Professional Development program at Osgoode Hall Law School, York University.
• November 23, 2015: The Commissioner met with members of the Fédération des francophones de la Colombie-Britannique and gave a presentation. The meeting was attended by representatives from organisations that are dedicated to promoting a welcoming and inclusive Francophone community in British Columbia.
• November 24, 2015: The Commissioner was a guest speaker at the Allard School of Law of the University of British Columbia. She spoke about the role of access to information in a democratic society.
• November 26, 2015: The Commissioner and one of her legal counsel were guest speakers at a political law class at the Faculty of Law at the McGill University. The theme of the class was Public Information: The Life-Blood of Democracy.
• November 30, 2015: The Commissioner gave a speech at the Annual Canadian Access and Privacy Association Conference entitled 2016: The Year of Access to Information?
• December 9, 2015: The Commissioner gave a presentation at the ATIP Community Meeting.
• February 19, 2016: The Commissioner participated in a panel with other agents of Parliament as part of the orientation for new members of Parliament.
• February 26, 2016: The Commissioner took part in judging the 2016 Canadian Association of Programs in Public Administration/Institute of Public Administration of Canada Case Competition.
• April 17, 2016: The Commissioner participated in a Policy Options podcast on Reviewing the Federal Accountability Act.
• April 22, 2016: The Commissioner attended a moderated Q&A, known as Freedom of Information (FOI) Friday, where she discussed the current state of the access to information regime. The Q&A was in person and online, via Google Hangouts livestream and Twitter.

Publications

• July 31, 2015: The Commissioner published a discussion paper with Don Lenihan, a Senior Associate at Canada 2020, entitled Open Government: Toward a Pan-Canadian Vision?.
• April 21, 2016: The Commissioner published an article for Policy Options’ special feature “The Federal Accountability Act, Ten Years Later”.

Visits from international dignitaries

• June 30, 215: The Commissioner met with a delegation from Nepal’s National Information Commission, including Nepal’s Chief Information Commissioner. Nepal was in the process of promulgating a new permanent Constitution at the time that would recognize the right of access to information. The delegation wanted to learn from Canada's experience in formulating and implementing national policies for increasing access to information and improving the right to information. In addition to giving the delegation an overview of her own work, the Commissioner also facilitated introductions with other stakeholders across Canada that the delegation could learn from.
• March 1, 2016: The Commissioner met with the Ukrainian Minister of Justice and the Head of the Coordinating Centre for Legal Aid Provision in the Ukraine. The officials from Ukraine wished to learn about Canada’s legal framework surrounding freedom of information. Freedom of information legislation serves an important role in facilitating the effective provision of legal aid in the Ukraine, in particular as it relates to the protection of human rights and the legal empowerment of vulnerable and marginalized groups.

Interaction with the media

The Office of the Information Commissioner received 127 calls from the media in 2015–2016. Two peaks in media calls occurred during this time. The first occurred in May and June 2015. This can be attributed to activities related to the Commissioner’s special report to Parliament on an investigation into an access to information request for the Long-gun Registry and subsequent constitutional challenge.

The second peak, occurring in September through November correlates to a general increased interest in access to information, beginning during the 2015 election period and into the mandate of the new government.

In addition to media calls, the Commissioner gave 23 interviews to the media in 2015–2016.