Canada Border Services Agency (Re), 2024 OIC 15

Date: 2024-04-17

OIC file number: 5822-06783

Institution file number: N/A

Summary

In February 2023, the Information Commissioner initiated a systemic investigation to better understand and address the root cause of the growing number of access requests made to the Canada Border Services Agency (CBSA).

The complaint is well founded. CBSA should expect to continue to receive a high number of access requests for immigration information because Immigration, Refugees and Citizenship Canada (IRCC) has not implemented an effective system that would allow client immigration information to be retrieved directly. CBSA must find ways to meets its obligations under the Act.

In February 2024, the Minister of Pubic Safety and Emergency Preparedness was informed of the Commissioner’s findings. A total of four (4) recommendations were made to the Minister and a response to the Commissioner’s recommendations was received in April 2024.

In May 2024, the Commissioner tabled a special report in Parliament pursuant to paragraph 39(1) of the Act. The special report sheds light on how the Access to Information and Privacy (ATIP) units of both institutions are being negatively impacted by IRCC’s lack of progress in introducing an alternative to access to information requests that provides clients with information they are seeking.

Complaint

[1]      The Office of the Information Commissioner (OIC) has recently received a high number of complaints alleging that the Canada Border Services Agency (CBSA) failed to respond within the time limits set out in the Access to Information Act to access requests for records related to immigration application information.

[2]      To better understand and address the root cause of the growing number of access requests made to CBSA for immigration application information and the increased delay in responding to them, I initiated this systemic investigation.

Investigation

[3]      CBSA provided information, documentation and statistics to help the OIC to better understand its context. Then, pursuant to subsection 36(1) and in order to gather information from all relevant perspectives, the OIC sought additional information from immigration consultants who file complaints with the OIC about access requests for immigration-related information they make to CBSA or to Immigration Refugee and Citizenship Canada (IRCC) or to both institutions. Finally, the OIC obtained additional information from IRCC to inform this investigation.

CBSA’s Context

[4]      As part of its mandate, CBSA is responsible for identifying, detaining and removing people who are inadmissible to Canada. To carry out this responsibility, CBSA has access to the data related to immigration application information stored in the Global Case Management System (GCMS). GCMS is the system developed and used by IRCC to process applications for citizenship and immigration services. Both institutions have access to the same information through GCMS.

Increase in access requests made to CBSA

[5]      Between 2019-20 and 2022-23, there was a 130% increase in access requests made to CBSA.

Table 1: Access requests received by CBSA by fiscal year, by type

[6]      Table 1 demonstrates that the number of access requests received by CBSA related to Traveller History Reports (THRs) has remained stable at between 3,000 and 4,000 per year. THRs are a record of a traveller’s entries, exits or both into Canada and is information collected by CBSA.

[7]      Since 2021-22, as shown in Table 1, there has been a dramatic increase in the number of access requests made to CBSA for immigration application information stored in GCMS, to which both CBSA and IRCC have access.

[8]      While CBSA has historically been in the top five institutions that receive the most access requests each year, in 2021-22, the majority of the requests made to CBSA was for records related to immigration application information (60% or 6,875 requests). In 2022-23, this proportion of access requests increased to 77% (14,487 requests). The file shows that immigration lawyers and representatives submit the majority of these requests on behalf of and with the consent of their clients, foreign nationals who have applied to come to Canada, either temporarily or permanently.

[9]      As demonstrated in Table 2 below, to exacerbate the situation, CBSA also carries a significant backlog of access requests. The number of outstanding access requests carried over from one year to another almost doubled between 2021-22 and 2022-23 (from 3,381 to 6,410). The growing backlog demonstrates that the CBSA’s access to information and privacy (ATIP) unit is not able to keep pace with the workload generated by the increase of requests for immigration application information.

Table 2: Number of access requests received and closed during 2022-23

Increase in delay complaints against CBSA

[10]    Section 7 requires institutions to respond to access requests within 30 days unless they have transferred a request to another institution or validly extended the time they have to respond by meeting the requirements of section 9. When an institution does not respond to a request by the 30-day or extended deadline, it is deemed to have refused access to the requested records under subsection 10(3).

[11]    Between 2020-21 and 2021-22, there was also a 900% increase in delay complaints submitted to the OIC against CBSA (see Table 3). Complaints submitted to the OIC against CBSA are mostly about deemed refusal of access for its failure to respond to access requests for records related to immigration application information within the time limits set out in the Act (delay complaints).

[12]    Even if the number of refusal complaints has remained relatively stable, this increase in delay complaints shows that the CBSA’s ATIP unit is having trouble in keeping pace with the workload generated by requests made for immigration application information.

Table 3: OIC Complaints Submitted against CBSA by Fiscal Year

[13]    The number of complaints submitted to the OIC against the CBSA continues to be very high; CBSA received 762 complaints during 2023-24 and currently holds an inventory of 515 complaints, more than any other institution.

Transfer of Access Requests

[14]    As part of the investigation, the OIC also asked CBSA why access requests for immigration information are not transferred to IRCC under section 8 of the Act, which allows such a transfer when another institution has a greater interest in the records. In response, CBSA explained that it has considered transferring requests to IRCC. However, the CBSA fails to see how shifting the burden of requests to IRCC, where volumes are much higher and response times longer, would align with CBSA’s duty to assist obligations. Accordingly, CBSA does not believe that transferring the requests would be in the best interest of applicants. Moreover, it is not lost on my office that transferring thousands of requests each year to IRCC, may in itself create more work for CBSA than responding to the requests themselves, as the process provided under the Act to transfer a request is administratively demanding.

Complainant’s Context

[15]    In order to understand why there is such a high number of access requests for immigration information made to CBSA, when immigration applications are managed by IRCC, the OIC reached out to regular CBSA and IRCC complainants. Specifically, the OIC contacted ten complainants who, over the course of the last 3 years, have made access requests to both CBSA and IRCC for immigration application information and have also submitted complaints to the OIC, against both institutions. Five of these complainants provided insight into why there is an ongoing and sustained desire to access immigration application information from CBSA.

[16]    These complainants admitted having started in 2021 to making requests to CBSA when they experienced ongoing delays with IRCC.

[17]    These complainants seek access to GCMS notes, immigration application status updates, and in particular the reasons an immigration or visa application was refused. Complainants have also admitted that they may make identical requests to both IRCC and CBSA. Those who make the same access request to both institutions do so for various reasons. Some do it with a view to obtain as much information as possible because IRCC and CBSA rely on different exemptions to withhold information which yields different responses. Others have their clients pay for both requests to ensure the information they need is obtained as quickly as possible from either institution since it is difficult to predict who will respond fastest.

[18]    The complainant responses revealed that much of the time, neither CBSA nor IRCC respond to access requests within legislated time limits.

[19]    One complainant indicated that using the IRCC’s application status tracker is useful and has reduced the need for making access requests. However, the complainant specified that the tracker is not available for all streams of immigration applications and does not provide the reasons immigration or visa application was refused. Therefore, the IRCC’s tracker does not eliminate the need to make access requests for this type of information.

The Root Cause

[20]    In 2021, I conducted a systemic investigation into IRCC’s processing of access requests, in particular, requests for immigration application information. The aim was to better understand and address the root cause of the high volume of requests and lateness of responses.

[21]    The systemic investigation clearly showed that access requests were being made to IRCC because there was insufficient information provided about client immigration files through other means, including the IRCC application status tracker.

[22]    Following the issuance of my special report and recommendations, IRCC issued a Management Action Plan, committing to address the conclusions of my systemic investigation. Despite IRCC’s commitments through its Departmental Plans to make it easier for clients who apply for programs and services to access information about their application and to improve the availability of client immigration information, change and results are lagging.

[23]    Three full years have now gone by since my systemic investigation into IRCC, and access requests still have to be made by requesters to get information regarding immigration applications. As my current systemic investigation is demonstrating, the impact is not only on the IRCC ATIP unit, but it has now trickled into the CBSA ATIP unit’s workload as well.

[24]    Based on information provided by IRCC, individuals who make an immigration application will not be able to access their application status information directly through the program area for at least another two years.

[25]    In the meantime, the statistics continue to be disturbing. In 2022-23, IRCC received 78% (184,587) of all access requests received by all institutions subject to the Act. 99% (182,741) of these access requests continue to be for immigration application information.

[26]    As for CBSA, in 2021-22, the majority of the access requests received were related to immigration application information (60% or 6,875 requests). In 2022-23, this proportion increased to 77% (14,487 requests).

[27]    For years, IRCC has committed to modernizing GCMS, including to improve the quality and quantity of information provided to its clients, yet progress is slow.

[28]    IRCC’s lack of implementing an effective system that would allow client immigration information to be retrieved by them directly, i.e., information about the reasons why their application is delayed or refused, continues to significantly impact its ATIP unit. The spillover is now impacting CBSA.

[29]    CBSA is now faced with a high volume of access requests and cannot simply wait for IRCC to implement better client services. CBSA has to find ways to meet its obligations under the Act.

How CBSA is addressing the increase in access requests received

[30]    Since the start of my investigation, CBSA has confirmed that it has implemented the following measures:

Increased funding to the ATIP office

[31]    CBSA began providing its ATIP unit with surge capacity funding in 2021-22 which increased the following year. According to the CBSA’s Annual Report on Access to Information (ATI), the cost of its ATI program increased from $2.3 to $3.3 million between 2020-21 and 2022-23. CBSA plans to stabilize the funding of its ATIP unit in 2024-25 through an increase in its A-base funding.

Robotic Process Automation (RPA)

[32]    CBSA continues to invest in the implementation of additional RPAs – tools to automate repetitive processes, adding an additional 3 tools by March 2024. This will allow CBSA to leverage human resources where decisions are required. It is estimated that these tools will do the work of 15 full-time employees. Additional RPAs are planned for 2024-25.

Updated delegation order

[33]    In November 2023, CBSA delegated, under section 95 of the Act, its power to respond to access requests to more individuals in its ATIP unit. This allows individuals at more levels of the organization to make decisions when responding to access requests and generally, improves efficiency.

Improving consistency

[34]    CBSA, the Canadian Security Intelligence Service (CSIS) and IRCC are currently reviewing the memorandum of understanding on how to be more consistent in the processing of immigration information under the Act. According to CBSA, this review is on track to be completed by the end of March 2024. Obtaining consistency should improve the quality of the responses received by requesters, whether the request is made to either of these three institutions. The goal should not be to reduce the amount of information released, but rather ensure that a requester would trust that the information would be the same and therefore, eliminate the need to make multiple requests for the same information.

Improving collaboration

[35]    Since the beginning of the surge in immigration application information related access requests, the CBSA and IRCC ATIP units have met on a monthly basis to discuss solutions to common problems, including trends, patterns, the application of exemptions, strategies to reducing timelines under the Act and staffing. Meetings at more senior levels of management have also taken place and according to CBSA, these meetings have been to mutual benefit.

Findings

[36]    I note that the multi-pronged approach CBSA has taken to improving its efficiency in order to respond to more access requests, seems to be generating results. From April 1, 2023 to December 14, 2023, CBSA responded to nearly 50% more requests compared to the same time period in 2022. As of November 2023, it is responding to more requests than it receives each week. Finally, according to CBSA, it anticipates reducing its backlog of requests by 50% (10,000 requests) by September 2024.

[37]    While there are early signs that the measures adopted by CBSA so far are yielding positive results, it remains to be seen whether these efforts will be enough to bring it back on track and able to provide timely responses to access requests.

[38]    Based on an examination of CBSA’s inventory of complaints as well as information received, I find:

• As IRCC’s implementation of its action plan is out of CBSA’s control, CBSA should expect that immigration clients will continue to seek access to immigration application information by making access requests for the foreseeable future.
• The number of requests and complaints is high and must be addressed.
• CBSA has invested in a multi-pronged approach to ensuring its ATIP team has adequate resources and efficient processes to meet the high demand for its services yet only time will tell if these measures are sufficient to meet the demand for immigration application information.

Outcome

[39]    The complaint is well founded.

Recommendations

I recommend that the Minister of Public Safety and Emergency Preparedness:

Continue to:

1. Develop Robotic Process Automation tools to improve efficiency;
2. Improve the consistent application of minimal exemptions by collaborating with IRCC and CSIS;
3. Collaborate with IRCC and other partners to ensure best practices are adopted in a timely manner.

I also recommend that the Minister:

1. Secure adequate funding and human resources for the CBSA ATIP office to meet its legal obligations under the Act, and ultimately eliminate its backlog of access requests.

Initial report and notice from institution

On February 20, 2024, I issued my initial report to the Minister, setting out my recommendations.

On April 8, 2024, the President of the CBSA responded on behalf of the Minister and gave me notice that CBSA would implement my recommendations. Specifically,

• the CBSA continues to invest in Robotic Processing Automation tools;
• expects to establish a consistent approach to redactions with IRCC and CSIS in early 2024-25;
• has onboarded to the Treasury Board Secretariat-hosted portal and is currently onboarding to the newly procured ATIP processing software; and
• has taken steps to stabilize funding to its ATIP unit.

Extraneous to my investigation, I was also informed of a significant disruption to the CBSA’s ATIP unit due to its servers being rendered inaccessible following an infrastructure maintenance performed by Shared Services Canada. In her response to my initial report, the President of the CBSA acknowledged this setback and confirmed that she is seeking emergency assistance from partner departments to help the CBSA recover. She added that it should be back to its regular operational cadence by the fall. Accordingly, in addition to monitoring the progress made by CBSA as a result of my systemic investigation, I will continue to monitor the results of CBSA’s efforts to fully re-establish its ATIP operations and servers, through the investigation of ongoing or any new complaints submitted against CBSA.

I intend to issue a special report to Parliament in May 2024, as per subsection 39(1) of the Act.