Library and Archives Canada (Re), 2022 OIC 17

Date: 2022-04-19
OIC file number: 5820-03262
Institution file number: N/A

Summary

In January of 2021, the Information Commissioner initiated a systemic investigation into Library and Archives Canada’s (LAC) delayed responses to access requests. This investigation was prompted by the Office of the Information Commissioner’s (OIC) investigations conducted over a number of years, resulting in findings that LAC was not responding to access requests by the legislative deadlines, a trend that worsened during the pandemic.

The complaint is well founded since the investigation found that for the period under investigation, almost 80% of the requests completed by LAC did not comply with the timeframes set out in the Act.

In January 2022, the Minister of Canadian Heritage, as head of LAC was informed of the Commissioner’s findings. A total of ten (10) recommendations were made to the Minister and a response to the Commissioner’s recommendations was received in February 2022.

In April 2022, the Commissioner tabled a special report in Parliament pursuant to paragraph 39(1) of the Act. The special report sheds light on issues within LAC and also draws Parliament’s attention to two broader challenges facing Canada’s access to information system:

• the manner in which consultations on access requests are conducted between institutions; and
• the lack of a Government-wide framework for the declassification of records.

Introduction

[1]      The Office of the Information Commissioner (OIC) has investigated several complaints over a number of years, resulting in findings that Library and Archives Canada (LAC) was not responding to access requests by the legislative deadlines. These findings, along with a steady stream of new complaints about delayed responses during the pandemic – and no sign of any concrete action on the part of LAC’s leadership to address the underlying problem – prompted me to initiate this investigation.

[2]      This report is issued pursuant to paragraph 37(2) of the Access to Information Act. It presents the results of my systemic investigation into LAC’s failure to meet its legislative obligation to provide timely access to records in response to access requests received between April 1, 2020, and January 20, 2021.

[3]      As the minister responsible for LAC, the Minister of Canadian Heritage was informed of my findings in January 2022. I also made a total of ten (10) recommendations to the Minister and received his response to my recommendations on February 14, 2022. My findings and recommendations, as well of my assessment of the Minister’s response, are found in the report below.

[4]      While the Minister acknowledges the serious challenges that prevent LAC from meeting its legislated obligations under the Act, his response lacks any sense of urgency or assurance that change is on the way. Furthermore, in some cases, the Minister did not directly address my recommendations.

[5]      That being said, the tenth recommendation I made was that LAC publish on its website by the end of 2022 the concrete results achieved to implement my recommendations and to provide quarterly updates. The Minister has confirmed that bi-annual updates will be published. I look forward to reading the updates – perhaps as much as the Canadians directly impacted by LAC’s inability to provide timely access to information, including historians, researchers and academics – and I hope that the results will be discernable. Concrete and positive improvements to LAC’s access to information processes will ultimately depend on the Minister’s leadership in seeing this work through to completion.

[6]      Finally, this investigation has led me to issue a special report to draw Parliament’s attention to two of the broader challenges facing Canada’s access to information system:

• the manner in which consultations on access requests are conducted between institutions; and
• the lack of a Government-wide framework for the declassificationof records.

[7]      I intend to submit the special report to Parliament in May 2022, as per subsection 39(1) of the Act.

Context

[8]      LAC has a broad mandate to acquire, preserve, make known and facilitate access to the documentary heritage of Canada. Among the records LAC collects, preserves and makes available for research and other purposes, are historical records created by virtually all federal departments and agencies. LAC is currently the custodian of more than 200 linear kilometres of textual, cartographic, photographic, audiovisual and, increasingly, digital Government of Canada records, dating back to 1867.

Three categories of requested records

[9]      Access requests are made to LAC for records in its Government of Canada archival collections. Based on the statistical information provided to the OIC, of all access request LAC received between April 1, 2020, and February 4, 2021, 43 percent were for these records. Yet, they accounted for 95 percent of the complaints made to the OIC over the same period. These access requests are handled by the Archival and Operational Records Unit within the Access to Information and Privacy (ATIP) and Litigation Response Division.

[10]    LAC also holds and preserves millions of historical military and civilian personnel files. Individuals continue to seek access to these records to demonstrate eligibility for government programs and benefits. Access requests for these records accounted for 56 percent of the total LAC received between April 1, 2020, and February 4, 2021. These access requests are handled by the Personnel Records Unit of the ATIP and Litigation Response Division. The OIC rarely receives complaints about this type of record.

[11]    Finally, LAC holds records about its own operations, but only 1 percent of access requests made to LAC between April 1, 2020, and February 4, 2021, were for these records.

Workload

[12]    The OIC gathered details of LAC’s access to information workload over the investigation period, as well as before and after, to shed light on trends and assess patterns of delay (Table 1).

Table 1. LAC access to information workload, April 1, 2018, to August 31, 2021

Source: Some figures were provided by LAC at the outset of the investigation and later, while others were taken from LAC’s annual reports to Parliament on access or calculated by the OIC from supplied information.
*Reported data may be adjusted from year to year to correct minor errors.

[13]    The number of access requests LAC receives has grown in recent years. In its annual report on access to information for 2019–20, LAC associated this increase with the waiving of fees under the Interim Directive on the Administration of the Access to Information Act and a growing awareness among the public and LAC clients of their rights under the Act. During the investigation, LAC further attributed the increase to individuals possibly affected by two class-action lawsuits (the Federal Indian Day School Settlement and the LGBT Purge Class Action Final Settlement Agreement) seeking information to confirm their eligibility for compensation.

Investigation

[14]    The OIC reviewed the files associated with the 213 active complaints for the investigation period against LAC in its inventory at the beginning of this investigation to glean details on how LAC processes access requests and the circumstances that led to delays in responding. The OIC also examined the information LAC ATIP officials provided on their operations and workload during the investigation, along with LAC’s representations on specific matters.

Providing timely access: a requirement of the Access to Information Act

Responding by the legislated deadlines

[15]    Subsection 4(2.1) of the Act sets out institutions’ obligation to provide timely access to records under their control.

[16]    Section 7 sets out the specific terms of this obligation, requiring 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).

[17]    According to information LAC supplied, LAC did not live up to its obligation to provide timely access during the investigation period. It responded to 79 percent of the access requests it completed in 2020–21 after the 30-day or extended time limit had passed. In addition, LAC was late in responding to 53 percent of the access requests received between April 1 and August 31, 2021. See Table 1, above.

[18]    The OIC received 37 delay complaints during the investigation period on top of the 135 it had open predating April 1, 2020. An additional 36 delay complaints were registered against LAC between April 1 and August 31, 2021. All of these complaints focus on LAC’s failure to respond to access requests by the 30-day or extended time limit.

[19]    As Table 1 also shows, LAC has been carrying over more and more access requests each year. For example, LAC started 2019–20 with 510 active requests, but that figure had increased to 1,153 at the start of the subsequent fiscal year. As of August 31, 2021, LAC had more than 2,100 requests pending. Over the same period, LAC took increasingly longer to respond to access requests: 102 days on average in 2020–21 but 115 days between April 1 and August 31, 2021.

[20]    A significant factor in the build-up of the backlog and growing response times was LAC’s suspension of its ATIP operations during the early months of the pandemic, when only a few staff members had access to its work sites, records and network. As I concluded in Canadian Heritage (Re), 2020 OIC 10, institutions are under a continued statutory obligation to respond to requests within the prescribed timelines. The pandemic does not suspend their obligations under the Act. To protect the quasi-constitutional right of access, institutions must be able to process requests at all times.

[21]    During investigations into delay complaints involving LAC that were completed by the OIC in 2021–22 to date, many of which cover the early months of the pandemic, the OIC gathered evidence that LAC had taken no action to process the access requests under investigation. Records had not been retrieved, requests had not been assigned to analysts and no extensions of time had been taken to allow LAC sufficient time to respond. The requests were all for Government of Canada archival records, which fall under the responsibility of the Archival and Operational Records Unit.

[22]    By not responding to access requests by the 30-day or extended due dates under section 7—and since LAC’s access staff did not process requests during the early months of the pandemic—I find that LAC did not meet its obligation to provide timely access to requested records, as per subsection 4(2.1), during the period under investigation.

Recommendation

1. Respond to the backlog of access requests that resulted from LAC suspending ATIP operations during the pandemic.

Minister’s response

[23]    The Minister acknowledged that LAC’s ATIP operations were suspended due to the health and safety measures put in place during the pandemic. Given that most government archival records are in paper format, processing access requests require staff to be on-site.

[24]    LAC will recruit additional human resources, and has committed all ATIP staff to reducing the backlog, except for staff responding to urgent requests or requests related to class action lawsuits.

[25]    Furthermore, LAC will respond to access requests in the order they were received.

Assessment of the Minister’s response to my recommendation

[26]    Every request in the backlog is late and should be considered a priority. The Minister’s response fails to address or identify strategies to tackle the accumulated backlog. Rather, the response prioritizes requests categorized as urgent or those related to class action lawsuits first.

[27]    The Minister’s response does not convince me that he has an understanding of the critical situation at LAC and I continue to urge the Minister to ensure that the backlog is dealt with in the most efficient way possible. Developing streamlined work processes, innovative approaches, setting timelines and goals, are just a few examples of concrete actions that one would expect to be considered and implemented by LAC and the Minister.

Consultations with other institutions

Are all consultations necessary?

[28]    Institutions may consult other institutions about disclosing requested records that relate to them. Consultations are not mandatory under the Act. If a government institution consults another institution, it must still respond within the 30-day time limit unless the conditions in paragraph 9(1)(b) are met. This provision permits extensions of time to be claimed only if: the consultations are necessary to comply with the request and those consultations cannot reasonably be completed within the original 30-day time limit.

[29]    Also of note regarding consultations is section 7.7 (Limiting and reducing the need for inter-institutional consultations with respect to sections 15 and 16 of the Act) of the Interim Directive on the Administration of the Access to Information Act, which clarifies that:

• Institutions are only to initiate consultations with respect to sections 15 (international affairs, national security and defence) and 16 (law enforcement and investigations) when they require more information in order to exercise their discretion to decide whether to disclose information or when they intend to release sensitive information.
• Institutions are to treat consultations requests from other government institutions with the same importance as access requests.

[30]    According to LAC, eight institutions accounted for 445 consultations that were outstanding as of August 31, 2021. See Table 2, below. These included institutions such as National Defence, the Canadian Security and Intelligence Service (CSIS) and the Royal Canadian Mounted Police (RCMP).

[31]    LAC reported that it responded to 1,210 access requests without consultation between April 2020 and August 2021. However, that leaves 429 requests (or 26 percent of the total closed over that period) for which LAC initiated consultations with other institutions. This compares to roughly 5 percent of closed requests for which institutions across government carried out consultations with their counterparts during 2020–21, as per figures published by the Treasury Board of Canada Secretariat.

[32]    It is understandable that LAC would consult other institutions more than most other institutions as it holds records it did not create. The fact that their number of consultations is five times the average government-wide is significant, and demonstrates the unique role LAC plays. LAC explained that it must consult with other institutions on security and intelligence matters, “…because LAC does not have subject matter experts. The related requests deal with complex and sensitive topics that require other government department (OGD) expert advice and recommendations so that LAC can assess whether requested information must be protected.”

[33]    Given LAC’s mandate, I cannot accept LAC’s position that it must consult institutions as a matter of course on all security and intelligence matters. LAC archivists curate collections of historical records, study the events described in the records, publish articles and write books on these events and subjects. I recognize that LAC may be justified in initiating consultations on some topics, issues or historical events portrayed in the records. However, abdicating responsibility for reviewing all security and intelligence matters in their historical context would seem to contradict the institution’s very raison d’être.

[34]    LAC stated that it always consults with CSIS on access requests for records that originated there or with its predecessor. LAC has agreed to carry out these consultations as a condition of receiving records from CSIS. The agreement reached with CSIS under the Library and Archives Canada Act makes consultations necessary under 9(1)(b) the Act. However, in doing so, it may impede LAC’s ability to comply with their obligations under the Act to provide timely access. The right of access operates notwithstanding any other act of Parliament and transfer agreements ought not undermine timely access. On its face, an agreement to conduct mandatory consultations with CSIS is inconsistent with the Interim Directive, which directs institutions to limit consultations on sections 15 and 16 to two specific circumstances. Both situations require a preliminary analysis of the records by LAC who must be satisfied that sections 15 or 16 apply. This is consistent with the Act that envisions a preliminary analysis in order to determine if a consultation is necessary to respond to the request. Institutions are expected to exercise their delegated authority to exempt and disclose records under the terms of the Act, without adding time for unnecessary consultations.

[35]    According to LAC, the purpose of its consultations is to release as much information as possible. However, the OIC’s investigations of a number of complaints against LAC have demonstrated that when LAC consults, it does not normally frame the advice sought or carve out the specific information for which advice is sought. In addition, these investigations have shown that LAC does not follow a rigorous process to establish the length of time the consultations should take. Such preliminary analysis—with a view to focussing consultations—would improve the ability of consulted institutions to respond within a reasonable time.

Waiting unduly long for consultation responses

[36]    According to LAC, on average, they wait more than 3.5 years to receive disclosure recommendations from the institutions they consult. Of the 445 outstanding consultations as of August 31, 2021, 11 have been pending for more than 66 months (5.5 years; see Table 2). These consultations are with six institutions: National Defence, CSIS, the Privy Council Office, the Canadian Institutes of Health Research, the RCMP and Global Affairs Canada.

Table 2. Time elapsed since consultation request sent

Source: LAC

[37]    Of the access requests associated with the 445 outstanding consultations, 381 are in deemed refusal in accordance with subsection 10(3).

[38]    Out of the 213 complaints against LAC that were active at the beginning of this systemic investigation, 109 (51 percent) featured outstanding consultations with other institutions. In most cases, LAC had taken an extension of time under paragraph 9(1)(b) to account for these consultations, but it expired before LAC issued a response.

[39]    LAC informed the OIC that it generally does not wish to adjust other institutions’ priorities—since these organizations, too, are under-resourced for their workload. When necessary, however, it will negotiate to receive prompter responses while ensuring as little disruption to the institutions’ workflows as possible. LAC also stated that its ATIP officials push each institution to provide its disclosure recommendations by the agreed-upon deadline, but the OIC received little evidence that officials make this effort as a matter of course or that it yields tangible results.

[40]    In addition, LAC told the OIC that it had developed a model to help institutions prioritize consultation requests. In that regard, LAC shared its list of outstanding consultations with CSIS in September 2020 and again in August 2021. In return, CSIS returned disclosure recommendations in response to six of the nine outstanding consultations. While this initiative had a positive outcome with CSIS, LAC did not provide the OIC with the results it was able to achieve with any of the other consulted institutions.

[41]    The OIC recognizes that LAC has no control over how other institutions handle its consultations; however, my investigation has shown that LAC is being overly complacent in waiting for consultation responses. This, in combination with the number of consultations LAC carries out, is having a disproportionately negative effect on access for LAC requesters.

[42]    LAC must develop better practices around consultations, which could be achieved by:

• Conducting a detailed analysis of the information in its historical context;
• Including relevant reference material and targeted questions with each consultation request;
• Setting a reasonable timeframe for response;
• Monitoring the timelines established;
• Taking action when the timeline for response is expired.

[43]    I conclude that LAC has not demonstrated that its failure to respond within legislated timeframes under the Act is based on consultations that are necessary as per paragraph 9(1)(b). Furthermore, I conclude that automatic consultations on all security and intelligence-related information does not conform to the Interim Directive. I also conclude that waiting for consultation responses, rather than exercising its fully delegated authority to respond to access requests, regardless of whether it received disclosure recommendations, is impeding LAC from providing timely access to requested records.

[44]    Having concluded that LAC is not meeting its obligations to provide timely access to records, I have further examined four systemic issues that I have found to be contributing in varying degrees to the delays.

Recommendations

2. Direct LAC ATIP officials to use their delegated authority to respond to all access requests with outstanding consultations forthwith.
3. Direct LAC ATIP officials, for new access requests requiring consultations, to establish a rigorous process to determine the length of time the consultations should take and to respond to those requests before the expiry of the extension sought, with or without the institutions’ input.

Minister’s response

[45]    The Minister did not directly address recommendation two (2). However, the Minister did commit LAC to establishing a process by which it will better exercise its delegated authorities, including training its staff.

[46]    With respect to recommendation three (3), the Minister confirmed that LAC would collaborate with consulted organizations and establish service standards for systematic follow-ups. LAC will also evaluate its workflows and establish a risk-based approach to be applied by delegated officials to reduce the number of consultations with OGDs.

Assessment of the Minister’s response to my recommendations

[47]    The way that LAC currently conducts consultations with OGDs is equivalent to abdicating its responsibilities to those institutions. Sub-delegating LAC’s authority under the Act to other institutions, which neglect to respond to consultation requests for more or less 3.5 years, does nothing to serve Canadians.

[48]    Clearly, the OGDs LAC consults, do not treat LAC’s requests with the same importance as their own. My recommendations are aimed at empowering LAC’s ATIP staff to exercise the full authority that has been delegated to them under the Act. The fact that the Minister did not commit to give this specific direction, as recommended, undermines the delegation instrument itself.

[49]    The lack of a statutory maximum length of time for institutions to respond to consultations impedes timely access for Canadians, a fact I have already raised to the President of the Treasury Board of Canada’s attention.

Lack of infrastructure to process Secret and Top Secret records

[50]    Processing access requests in a timely manner requires infrastructure (people and equipment) appropriate for all formats and classifications of records.

[51]    Responding to almost all access requests LAC receives requires ATIP officials to ask for the records to be delivered from a storage facility, often in another city. Then, officials have to sort through the boxes by hand to determine what files are responsive to the access request. The archival records from other institutions and the personnel records LAC holds are, according to LAC, mostly fragile paper records in non-standard formats.

[52]    Once the records are identified, they are triaged to determine whether they can be released in full or require redactions. When the records require, or are likely to require, redactions, the files are sent to another team for digitization prior to being processed.

[53]    During the investigation, LAC provided evidence that it is able to digitize records designated at Protected B and lower at a rate of 99,000 pages per month. According to LAC, this is sufficient and does not hinder the processing of these records in response to access requests.

[54]    However, this is not the case for Secret and Top Secret records as LAC is lacking adequate infrastructure to digitize, review, consult, and redact them. Out of 213 active complaints, the OIC had against LAC at the beginning of this investigation, 58 (27 percent) involved delays responding to access requests for Top Secret records.

[55]    The investigation showed that only a limited number of people have the requisite security clearances to handle these records and that there is limited space in which to review them. In addition, LAC has no means of easily consulting other institutions about these records, since it does not have a network secure enough to transmit them.

[56]    An example of the delays that result from this lack of infrastructure is found in the OIC’s recently closed complaint 2021 OIC 14. The investigation demonstrated that LAC’s processing of the RCMP security service records it holds on George Raymond Motolanez was delayed in part by a lengthy consultation with CSIS. Moreover, once CSIS provided its recommendations, LAC had to redact the Top Secret records by hand.

[57]    During the course of the current investigation, LAC confirmed that in September 2021 it had designated physical space and established a digital environment suitable for processing Top Secret records.

[58]    In addition, LAC explained that it is undergoing certification to allow staff to process Top Secret records that require additional segregation. LAC estimated that the certification would be in place by April 1, 2022.

[59]    I find that LAC’s efforts to implement infrastructure to allow it to digitize, process and review Top Secret records are steps in the right direction. However, it is essential that these initial actions quickly translate into timely responses to access requests and that LAC continue to process requests for Top Secret records as efficiently as possible, in the meantime.

Recommendations

4. Process all pending access requests for records classified as Top Secret forthwith, even as implementation and certification of new infrastructure continues.
5. Implement fully functional infrastructure to allow ATIP officials to process Secret and Top Secret records efficiently.
6. Ensure ATIP officials have access to the LAC network and record-processing software at all times, so LAC is always in a position to respond to access requests.

Minister’s response

[60]    The Minister confirmed that an information technology solution was put in place for handling Top Secret records in October 2021 and acknowledged that work remains to be done. LAC is planning for increased Top Secret processing capacity in 2023 and will process access requests in the order they were received.

Assessment of the Minister’s response to my recommendations

[61]    The Minister’s response does not actually commit LAC to anything different than the status quo, which I have already found to be wholly inadequate. The Minister’s response provides no detail on the pace at which LAC will start responding to its backlog of requests containing Top Secret information, nor does it provide assurances that Canadians will be able to gain access to these records anytime soon.

[62]    The Minister’s response has completely ignored recommendation 6. LAC has had almost two years to adapt to the new operational realities imposed by the ongoing pandemic. My views have been consistent on this matter: under the Act, an institution cannot suspend the processing of access requests because of the pandemic, or owing to its lack of infrastructure.

[63]    Again, given the Minister’s response, I am not sure that the significance of the urgent need for LAC to upgrade its capacity to process classified records is well understood.

Lack of declassification program

[64]    Subsection 13(1) of the Library and Archives Canada Act governs the transfer of government or ministerial records of historical or archival value to LAC. However, this law does not require records to be transferred, nor does it set out any timeframe for doing so, since each institution is responsible for setting its own retention schedules. This means that any given institution may retain records indefinitely—including those of historical significance—with LAC having no power to compel the institution to transfer them to its care and control.

[65]    LAC explained that agreements between the Librarian and Archivist of Canada and government institutions govern the transfer of records of historical and archival value to LAC. These agreements must be in place before records can be transferred, but there is no obligation for institutions to enter into an agreement at all.

[66]    Finally, once an institution enters into a transfer agreement, there is no legislated obligation for it to review, declassify or downgrade classified records before they are transferred to LAC’s control. In fact, Canada is the only member of the Five Eyes intelligence alliance (Canada, Australia, New Zealand, the United Kingdom and the United States) without a national declassification program.

[67]    The security designation of a record does not determine whether it warrants being withheld under, for example, section 13 (confidential information from government bodies) or section 15 (international affairs, national security and defence). However, the designation often contributes to institutions’ overreliance on these exemptions. It also extends the time required to process access requests and to consult other institutions, due to stringent security requirements. The combination of these circumstances may significantly delay responses to access requests.

[68]    During the investigation, the OIC learned LAC had convinced the Interdepartmental Declassification Working Group to launch a pilot project to declassify records of the Joint Intelligence Committee dating from 1943 to 1960 and held at a variety of institutions. While this pilot project is encouraging, I am of the view that only a mandatory and standard approach across government to declassification will loosen the logjam associated with requesting security and intelligence records.

[69]    I conclude that the lack of any requirement, statutory or otherwise, for institutions to downgrade classified records prior to their transfer to LAC, is contributing to delays when such records are responsive to access requests made to LAC.

Recommendation

7. Require institutions to review and, whenever possible, declassify or downgrade the classification of records prior to transferring them to LAC.

Minister’s response

[70]    The Minister has shared my initial report with the President of the Treasury Board Secretariat.

Assessment of the Minister’s response to my recommendation

[71]    While I agree that the Treasury Board Secretariat is responsible for the policy frameworks within which public servants work, including those related to security classification, my recommendation was also directed at LAC as it relates to transfer agreements for archival government records.

[72]    Declassification of highly classified records created in the federal public service is certainly not an issue that LAC could be expected to tackle on its own. While I hope that the President of the Treasury Board Secretariat will hear my call to action, I remain convinced that there are steps that LAC can take unilaterally. For example, LAC could include additional clauses in its transfer agreements requiring institutions to declassify or downgrade records.

[73]    Recommendation seven (7) also aimed to limit the transfer of highly classified records at the source by imposing “housekeeping” requirements on institutions. While LAC knows that  it does not have adequate infrastructure to handle highly classified records, especially not when it comes to processing them under the Act, I note that LAC nevertheless continues to accept the transfer of such records. This is shocking, given the detrimental impact this ongoing practice has on LAC’s ability to process access requests and uphold the right of access of Canadians.

Lack of funding to support various LAC business lines

[74]    As the custodian of historical records about veterans and former public servants, LAC plays a crucial role in helping these individuals and their families prove their eligibility for, for example, retroactive and litigation payments, workers’ compensation, veterans licence plates and service cards. In addition, Canadians who are part of class action lawsuits or settlements against the government (e.g. the Federal Indian Day School Settlement) often turn to LAC for information to prove their eligibility for compensation.

[75]    In one current instance, National Defence has funded from 2018 to the end of 2022 a team of ATIP Analysts at LAC to help respond to access and privacy requests resulting from the LGBT Purge Class Action Final Settlement Agreement. This agreement compensates federal public servants and members of the military and RCMP who were affected by discriminatory policies and practices between 1955 and 1996.

[76]    In contrast, LAC received no additional funds to respond to client requests related to the Indigenous Day School settlement despite numerous appeals from LAC for such funding, to Crown Indigenous Relations and Northern Affairs Canada. The claim period began in 2019 and closes in mid‐July 2022. LAC estimated it would have to process approximately 2,600 access and privacy requests over that period, on top of its regular workload.

[77]    LAC ATIP staff also respond to requests from the Parole Board of Canada to separate and extract criminal information from the military personnel files LAC holds. As LAC explained, these requests vary in number and complexity each year. However, LAC indicated that this workflow is not funded; rather, it is absorbed into the ATIP office’s overall workload.

[78]    Finally, LAC explained that ATIP staff coordinate access to archival records for researchers from other institutions. These individuals are mandated by their institution to access, with or without restriction, records it created but that are under the control of LAC.

[79]    These are legitimate lines of business for LAC to pursue, given its mandate. However, according to LAC, the burden for carrying them out falls almost exclusively on the ATIP and Litigation Response Division.

[80]    I find that these additional business lines place a significant and variable amount of pressure of the ATIP office. I also conclude that, since LAC has to manage them, with one exception, with its existing resources, these responsibilities are contributing to LAC’s inability to respond to access requests in a timely manner.

Recommendation

8. Negotiate adequate funding for LAC’s ATIP office to support new programs introduced by other institutions.

Minister’s response

[81]    The Minister confirmed that LAC is consulting the necessary departments to ensure that adequate funding and consideration is given to LAC, as new programs or class action lawsuits are negotiated.

Assessment of the Minister’s response to my recommendation

[82]    I am satisfied by the Minister’s response.

Lack of ATIP resources

[83]    In addition to supporting various LAC business lines, LAC’s ATIP staff respond to requests under the Privacy Act. LAC also accepts and responds to what it calls informal access requests for personnel records of former public servants, military service files for former members of the Canadian Armed Forces after 1919 and Government of Canada archival records.

[84]    The current number of formal and informal access requests in LAC’s backlog—due in no small measure to LAC’s having suspended ATIP operations during the pandemic—is astonishing (Table 3).

Table 3. Backlog of formal and informal access requests, as of August 31, 2021

Source: LAC

[85]    LAC informed the OIC that it had temporarily reallocated internal resources to help the ATIP and Litigation Response Division manage its responsibilities and, therefore, respond to formal access and privacy requests more quickly: 2.5 full-time equivalents (FTEs) to administer and resolve complaints and 6 FTEs to review formal and informal access requests in the Archival and Operational Records Unit. LAC also offered to set aside more space so more ATIP staff could be safely onsite during the pandemic. However, clearing the backlog of those requests (not to mention the informal ones) will likely require a more robust action plan.

[86]    LAC confirmed that all occupied positions, including temporary positions, within ATIP were maintained, despite budget pressures. Three distinct funding proposals (initiated in 2017, 2019 and 2020) had each failed to secure additional resources for ATIP operations. According to LAC, all possible avenues to reallocate resources internally to support its ATIP operations have been explored, but no further reallocations are possible without severely undermining critical program activities in other business areas.

[87]    Given the budget pressures, LAC says that it has not been able to fill vacancies and there have been no funds available for additional temporary support. In the fall of 2021, 46 percent of ATIP office staff were in acting positions and 18 percent in term positions. In addition, there were 16 vacant positions. LAC told the OIC that this instability meant that it could not launch its new career development program after it was approved in October 2021. This program would have allowed staff to access promotional opportunities within the organization in an attempt to retain fully trained ATIP Analysts, who are regularly recruited by other institutions.

[88]    Finally, LAC indicated that the OIC is placing significant pressure on its limited resources to respond to inquiries related to ongoing complaint investigations. I understand that responding to complaint investigations also requires resources from its ATIP and Litigation Response Division; however, the complaints are largely the result of LAC’s own inability to fulfil its obligations under the Act. It is a vicious circle; as more requests remain unanswered, more complaints are being submitted to the OIC. Once LAC is in a position to respond to requests in a timely manner, having addressed the issues raised in this report, I am confident that it will result in a decrease of delay complaints. Until then, the OIC must continue to investigate the complaints in its inventory.

[89]    I conclude that the ATIP and Litigation Response Division’s large workload, the number of vacant positions and possible instability resulting from many staff being in acting and term positions are contributing to delays in responding to access requests.

Recommendation

9. Review and adjust the permanent funding for the various units with the ATIP office to reflect their workload.

Minister’s response

[90]    The Minister has committed LAC to establishing an action plan, which will measure progress in securing adequate funding for its ATIP operations.

Assessment of the Minister’s response to my recommendation

[91]    The Minister does not appear to understand the full extent to which the ATIP unit at LAC is under-resourced. My investigation did not include a review of LAC’s budget – they will have to determine what steps are necessary to address, if at all, the resource concerns raised by their ATIP officials.

[92]    The fact remains: although LAC received 485 fewer access requests in 2020-21 as compared to 2019-20, its backlog of files increased by 792. Under the current circumstances, LAC must consider immediately assigning additional resources to address the massive workload issues facing its ATIP unit. This is a deplorable and critical situation that cannot be ignored by the Minister. LAC will need his full support in order to secure adequate funding for LAC’s ATIP operations.

Result

[93]    The complaint is well founded.

Conclusion

[94]    LAC prides itself on being the custodian of Canada’s “distant past and recent history,” providing access to Canada’s documentary heritage and serving “as the continuing memory of the Government of Canada and its institutions.”

[95]    I will note that staff within LAC’s ATIP and Litigation Response Division fully cooperated and were candid during the course of this investigation.

[96]    However, as this investigation and numerous others the OIC has completed in recent years show, the state of access at LAC is extremely poor. Canadians are waiting well beyond the legislated deadlines for responses to their access requests. Compounded by service cuts in other areas, these delays are, as the OIC has learned through complaint investigations, significantly impeding the work of LAC clients (historians, researchers and academics) to understand and tell Canada’s story.

[97]    I have made targeted recommendations that, if implemented, would result in significant improvements to LAC’s access to information program. These improvements would serve Canadians in the near and long-term and align with LAC’s core mandate.

[98]    In my view, what is perhaps most disappointing is that the measures the Minister hasproposed will not be sufficient to reduce response times for Canadians seeking access to records held by LAC. I sincerely hope the bi-annual results LAC intends to publish on its web site will prove me wrong.

Caroline Maynard
Information Commissioner of Canada