Treasury Board of Canada Secretariat (Re), 2022 OIC 12
Date: 2022-02-14
OIC file number: 5820-01156
Institution file number: N/A
Summary
The Office of the Information Commissioner (OIC) received a complaint under paragraph 30(1)(f) of the Access to Information Act alleging that the Treasury Board of Canada Secretariat (TBS), in its role as administrator of the federal access to information system, failed to provide adequate support to government institutions during the COVID-19 pandemic. The complainant alleged that this, in turn, impeded, and continues to impede, the right of access to government information the Act affords.
The complainant also alleged that TBS’s failure to adequately support government institutions in managing their access to information and privacy (ATIP) offices and processing access requests during the pandemic was contrary to the principles of openness and transparency.
The investigation showed that TBS was engaged in reminding institutions of their obligations under the Act, made efforts to clarify institutions’ responsibilities under the Act and policy, and addressed matters of misinterpretation on the part of at least some institutions.
The Information Commissioner was, therefore, unable to conclude that the guidance provided by TBS during the period covered by the investigation was inappropriate. Given the scope of TBS’ limited authority to exert any direct control over institutions’ day-to-day access to information operations, the Commissioner concluded that the support provided to institutions, in the early months of the pandemic, was adequate.
The complaint is therefore not well founded.
Complaint
[1] The Office of the Information Commissioner (OIC) received a complaint under paragraph 30(1)(f) of the Act alleging that the Treasury Board of Canada Secretariat (TBS), in its role as administrator of the federal access to information system, failed to provide adequate support to government institutions during the COVID-19 pandemic. The complainant alleged that this, in turn, impeded, and continues to impede, the right of access to government information the Act affords.
[2] The complainant also alleged that TBS’s failure to adequately support government institutions in managing their access to information and privacy (ATIP) offices and processing access requests during the pandemic was contrary to the principles of openness and transparency.
Investigation
[3] As the designated minister under section 70 of the Act, the President of the Treasury Board of Canada is responsible for administrating the Act. This includes preparing and distributing directives and guidelines on the operation of the Act and its Regulations. The Treasury Board Policy on Access to Information provides direction to government institutions on administering the Act, and TBS established its Information and Privacy Policy Division to provide guidance and support to institutions on all access-related matters. It should be noted, however, that this means TBS has no authority over institutions’ day-to-day access operations. In accordance with subsection 4(2.1), it is the responsibility of the head of the institution to respond to requests “accurately and completely and, subject to the regulations, provide timely access to the record in the format requested”.
[4] This investigation spans from the beginning of the pandemic in mid-March 2020 to June 22, 2020, the date on which the complaint was made.
TBS guidance
[5] The OIC reviewed more than 5,000 pages of emails and official guidance documents from TBS and posed numerous questions to TBS to determine whether it had met its obligation to provide guidance to institutions.
[6] The investigation showed that TBS was actively engaged over the investigation period in reminding institutions of their obligations under the Act, made concerted efforts to clarify institutions’ responsibilities under the Act and policy and addressed matters of misinterpretation on the part of at least some institutions.
[7] For example, on March 20, 2020, TBS issued a guidance document entitled: “ATIP Implementation Notice 2020-01: Guidance on delays resulting from measures to mitigate the impact of novel Coronavirus (COVID-19) on federal workplaces.” The stated goal of this notice was to provide guidance to federal institutions about their obligations under the Act during the pandemic. Since the notice was posted within a week of the official declaration of the pandemic, it is clear that TBS recognized early on that institutions’ ability to meet the requirements of the Act might be limited due to operational constraints.
[8] Despite improvements to institutions’ respective operational capacities, TBS did not update the notice, explaining in its representations that the conditions under which it was issued persisted. In addition, TBS indicated that it used other mechanisms to support and inform the ATIP community, including regular conference calls, guidance tailored to specific institutions facing unique challenges and updates to GCPedia.
[9] When questioned about the merits of following what appeared to be a decentralized approach to timely information sharing during an emergency, TBS stated that it communicated with institutions through multiple channels and then consolidated the guidance provided to ensure all stakeholders could benefit from it. For example, TBS shared questions institutions posed during conference calls with the entire ATIP community, including institutions unable to attend the conference calls. Doing so allowed TBS to communicate as broadly as possible while also addressing institutions’ unique situations.
Federal ATIP operational capacity and TBS support
[10] In April 2020, TBS began collecting data on each institution’s operational capacity in light of federal, provincial and institution-specific workplace restrictions. This survey covered topics such as institutions’ ability to process paper records and Secret documents, to respond to requesters electronically and to provide meaningful responses to interdepartmental consultations. TBS posted the survey results on the Open Government Portal.
[11] Between April and June 2020, most institutions that responded to the survey indicated having limited network access and unresponsive offices of primary interest, and were unable to access Secret documents. In its representations, TBS stated that, as of April 12, 2021, 139 institutions had the capacity to process paper records; of these institutions, 118 could process Secret records.
[12] TBS also confirmed that it shared the survey results with TBS senior management, including the Chief Information Officer of Canada (CIO), and the Secretary and President of the Treasury Board. Updates were provided more frequently over the summer and early fall of 2020 and then reduced as the capacity of institutions stabilized.
[13] Collecting weekly capacity data allowed TBS to gain a better understanding of how operational capacity varied across institutions. TBS shared the results of the survey with all institutions subject to the Act so they could align their operations and meet their legislated responsibilities, share best practices, and identify and resolve access-related systemic challenges caused by the pandemic.
[14] When questioned by the OIC on the specific actions TBS took in response to the survey results, TBS provided a detailed list of activities to support institutions address the challenges they were facing between March and June 2020. For example, in May 2020, TBS reached out to six institutions that had reported having no capacity to respond to access requests: the Department of Canadian Heritage, Global Affairs Canada, the Canadian Commercial Corporation, the Canadian Security Intelligence Service, Communications Security Establishment Canada and the Office of the Intelligence Commissioner. In various discussions with these institutions, TBS gathered more information on their operational capacity for responding to access requests, reiterated institutions’ responsibilities under the Act and identified potential next steps that these institutions could take to address their respective challenges, including connecting these institutions with other institutions that had overcome similar challenges. By June 2020, only one of the six institutions reported that it could not process access requests. By the next month, it reported it could.
[15] In addition, TBS arranged several meetings with senior officials to raise awareness of and attempt to address systemic access-related challenges. For example, TBS held a meeting with officials from Canada Post to explore whether institutions could use ePost to deliver secure electronic responses to requesters promptly and efficiently, and highlighted the importance of completing the security validation of this tool as soon as possible.
[16] TBS also made a presentation to the Deputy Minister Public Service Management Advisory Committee on March 20, 2020. As part of this presentation to senior officials across government, the CIO emphasized the importance of access to information to senior officials across government. This was in addition to several communiqués the CIO sent advising deputy ministers and other heads of institutions that ATIP operations should be considered as early candidates for the resumption of services in their business continuity planning exercises.
Result
[17] In light of the above, I am unable to conclude that the guidance provided by TBS during the period covered by the investigation was inappropriate. Given the scope of TBS’ limited authority to exert any direct control over institutions’ day to day access to information operations, I have to conclude that the support provided to institutions, in the early months of the pandemic, was adequate.
[18] The complaint is therefore not well founded.
[19] Nonetheless, the pandemic has served to emphasize the relative unimportance institutions place on access to information compared to other priorities, something my predecessors and I have commented on for many years as having a grave impact on openness and transparency.
[20] The failure of institutions to fulfill their obligations under that Act and give the quasi-constitutional right of access the attention it deserves stems largely from a lack of leadership and commitment across institutions. Several institutions failed entirely to fulfill their obligations under the Act in the early months of the pandemic, and access operations across the federal government have only partially recovered even now.
[21] In my January 2021 submission to the government’s review of access to information regime, I highlighted the absence of leadership and clear direction on transparency and disclosure expectations as requiring immediate attention, without waiting for legislative change. I subsequently reached out to a number of ministers to discuss the state of access within their institutions and how, as leaders; they must be part of the solution. I later reported on those meetings in a July 2021 letter to then-Treasury Board President Duclos.
[22] I note, however, that the timeline to complete the review of access has been extended and that none of the legislative or operational recommendations I have put forward in the last two years have gained any serious traction.
[23] While appreciating the challenges institutions have faced throughout the pandemic, the right of access, which allows citizens to hold their government to account, remains essential to a healthy democracy.
[24] Given this, should I find shortcomings in a specific institution during a complaint investigation, I will not hesitate to raise them with the minister responsible.
[25] I will also continue to stress—publicly and in discussions with ministers—the importance of compliance with the Act, as well as the need for a real commitment to augmenting openness and transparency.
[26] Culture change starts at the top and requires real leadership. Canadians do not deserve anything less.