Key messages

Funding - complaints and inventory

Based on our current funding, we are expected to close 4400 files annually.
Since April 1, 2022, we registered nearly 3500 complaints and already managed to close more than 3100 complaint files. This is 45% more complaints closed than last year for the same period.
Additional resources for my office are needed to reduce the number of complaints in our inventory, while at the same time ensuring that new complaints are investigates in a timely manner.
We are currently working on a budget proposal seeking additional resources to ensure we can deliver on our mandate and uphold the quasi-constitutional right of access.

Funding - independence

There is a larger issue underpinning our funding pressures: the process by which our Office, like other agents of Parliament, receives its funding.
The fact that government departments that we investigate are involved in determining how much money is allocated to us is not consistent with our independence or our accountability only to Parliament.
For example, we investigate complaints regarding the Department of Finance or Treasury Board Secretariat, both of which are involved in supporting government decisions about our funding. That does not make sense.

Leadership and culture within federal institutions

Leaders set the direction by their words, and more importantly, by their actions.
Complying with the law as it currently exists would represent an important first step to improving things. The message has to come from the leadership, way on top.
Clear directives regarding disclosure of information, more proactive and voluntary disclosure, more resources, and more innovation would go a long way to ensure timely disclosure. Government leaders have the power to make this happen.
Senior leaders must be held accountable for their institution’s performance in the area of access.
In institutions that are doing better than others, leaders are engaged and playing an active role. They know what is going on across their department when it comes to access. They understand ATIP challenges and bottlenecks in their institution. They ask for reports and debriefs on performance. They also understand the importance of innovation, of harnessing technology, and of managing records effectively.
In institutions where things are going in the right direction, the message that ATIP is a core part of a public servant’s job, rather than a distraction from other responsibilities, has gotten through. If ATIP teams do not receive the necessary cooperation from other areas of department in the retrieval of records, they cannot respond to requests in a timely manner.

Need for innovation and resources

Since the beginning of my mandate, I have consistently called for additional resources to be dedicated to the system.
The dramatic increase in access requests we have tracked over time has not been matched with an increase in resources, or the tools and processes required to manage the increase.
Injecting money is not the only solution. Innovation at all levels is also key.
Experience has shown that adopting specialized technological tools results in more efficient use of financial and human resources. Simply put, if the technology is out there, we should make use of it.

Duty to document and information management

The right of access cannot exist without records. Ministers and deputy ministers must ensure that they and their officials generate, capture and keep track of records that document decisions and actions, and that information is being properly managed at all times. This is particularly important as we are learning to work in a hybrid environment.
Currently, there is no legislative requirement regarding the duty to document. This should be required by the legislation.

Declassification

As things currently stand, handling classified information is an extremely complicated and lengthy process. Any initiative that aims at either declassifying or lowering the classification level of documents both facilitates the processing of access requests and enhances access overall.
By declassifying records when it is reasonable to do so, institutions would allow easier access to information that is no longer sensitive as declassified records can be more easily processed.
A strong declassification strategy for national security and intelligence records should be seen as a contributor to the goals of accountability, transparency and democratic practices as well as offering performance enhancing benefits to the security and intelligence community itself.
I have raised the issue several times in the past, most recently in my systemic investigation into LAC.

Legislative Review

We can agree that 35 years was too long. Prior to the 2019 amendments, the Act was in severe need of an update so the amendments were a step forward.
The Access to Information Act is still not reflective of our reality, which is the world of digital government. The Act needs to be reviewed regularly and that is why it is critical to have mandatory reviews.
The fact that the ETHI committee is taking the initiative to undertake a study on the access to information system is a positive development.
The scope of the review being conducted by TBS, underway now for two years, does not only cover the legislation, but also cover an examination of ways to improve proactive publication and make information publicly available as well as a look at processes and systems to improve service and reduce delays.
In January of 2021, I submitted my observations and recommendations to the review. They can be read in two parts:
Part I: how to improve Canada’s access to information regime in four fundamental areas in which immediate, concrete measures can be taken now without waiting for the completion of the legislative review (E.g. leadership and clear guidelines on transparency and disclosure expectations; innovation and the need to allocate enough resources to the access regime; the declassification of records in a timely manner)
Part II: deals with the review of the legislative framework

Questions and Answers

Legislative Review

Q1. What legislative changes should be prioritized?

Delays are the biggest issue for access. The Act should set out a maximum length of time for consultations needed to respond to access requests. (Recommendation 1 of my submission to Government’s review of the access to information regime)
The Offices of the Prime Minister and Ministers should be subject to Part 1 of the Act, (Recommendation 3 of my submission to the Government’s review of the access to information regime)
Cabinet confidences should be subject to the Act and covered by and exemption rather than an exclusion in order to allow for independent review. (Recommendations 7 and 8 of my submission to the Government’s review of the access to information regime).
Subsection 21(2) of the Act should be amended to add a list of categories of information not covered by the exemption. The 20-year-period provided for in subsection 21(1) of the Act should also be reduced to 10 years. The current exemption is too broad. (Recommendation 9 of my submission to the Government’s review of the access to information regime)

Q2. Is it realistic to expect that the system can change?

During the pandemic, we have seen that some heads of institutions are willing to accept significant operational limitations, including not meeting their access obligations. This is not acceptable, and is an illustration of failure in leadership.
It is vital that heads of institutions ensure that the necessary resources, processes and tools are in place so that the institutions can meet its obligations under the Act. The buck stops with them.
Canadians rightfully expect that the Government of Canada responsible for passing Canadian laws will itself comply with them.

Complaints and investigations

Q3. How do you explain the large number of complaints that you have received in 2021-22 and continue to receive this year?

The impact of the pandemic: Some institutions have used the pandemic as a justification for delays in the processing of requests. (Problems with access requests = more complaints)
When institutions do not provide the information to the requester or there is an unjustifiable delay, there is the potential for a complaint.
The OIC is still receiving a large number of complaints for IRCC (65 % of complaints).
Some of the growth is likely attributable to interest in government decisions made during the pandemic, on such topics as vaccinations and government assistance programs to business and individuals.

Q.4 The OIC received 4,198 complaints regarding IRCC during fiscal year 2021-2022 out of 6,945 complaints. This still represents a large portion of the complaints. Are the measures IRCC is taking following the systemic investigation addressing the problem?

Almost all (98.9%) of the access requests IRCC receives are related to immigration application files.
The majority comes from representatives of foreign nationals and immigration lawyers seeking information about their clients’ immigration file. The only way they can receive information pertaining to their file is through an access request. This is where the problem lies.
The OIC receives complaints because IRCC does not have the resources to answer within 30 days. Therefore, most of the complaints we receive from IRCC are delay complaints.
For the OIC to see a reduction of complaints, IRCC will have to respect the 30-day limit.
That said, following my systemic investigation, IRCC is working on the development of various tools, including a tool designed to improve communication of the status of immigration case information to clients through MyAccount.

Funding

Q5. The OIC received a permanent funding (3M$) in 2020-21. Is this funding enough to execute its mandate?

It was at the time. However, the volume of complaints has more than doubled since.
In order to adequately respond to the increasing number of complaints (70% increase/ 6,900 complaints in 2021-22), the OIC will be pursuing additional funding (around $6.6M). Based on current funding, the OIC is expected to close 4,400 complaints annually but is forecasting receiving more than 7,700 this fiscal year and 8,200 the next year.
Additional funding would be invested in hiring investigators, lawyers and corporate support staff (46 FTEs in total), strengthening our security and cybersecurity infrastructures, supporting IM/IT mandatory projects and collaborative tools (including a major cloud project to provide investigators with the tools to work effectively in a hybrid mode), as well as publishing final reports on investigations.

Q6. What will happen if you do not receiv e additional resources?

As mentioned during my last appearance in front of this committee in May, we are at risk of not being able to provide even the most basic minimum of service to Canadians.
With the current complaint trend, the backlog could reach 20,000 complaints by 2025-26. This would overwhelm the OIC’s operations and result in even longer waits for complainants awaiting the results of their complaints.

Innovation

Q7. What are some examples of institutions that are innovating?

IRCC’s Advancements in the area of communicating with clients include:
- To assist clients in tracking their application, IRCC initiated use of a Case Status Tracker Tool for the Citizenship and Permanent Residence Family Class lines of business. This tool is designed to improve communication of the status of immigration case information to clients through MyAccount.
- The design, development, implementation and integration of robotics process automation (RPA or “Bots”) into the processing of ATIP requests. This involved identifying processes that were routine, data entry based and high in volume, allowing an automation solution to complete the required tasks.
CRA: Launched a reengineering initiative to tackle backlog. Going paperless; Dedicated teams to deal with surge backlogs; Use of technology to automate processes; Error proofing new processes.
Health Canada/Public Health Agency: During the pandemic, requests received by PHAC increased by 393%. Implemented a number of initiatives to reduce wait times for key information related to the ongoing management of the pandemic.
- Success Factors: Targeted Post-secondary recruitment; Efficient onboarding and training programs for recruits; Automated real-time reports for OPIs
TBS: new ATIP Community Development Office initiative. The community has been asking this for many years now.

Q8. Are you aware of attempts by departments and agencies subject to the Act to use artificial intelligence or other non-human means to process requests, that is, identify documents prior to vetting? Does this comply with the Act?

I have been made aware that certain institutions have begun experimenting with artificial intelligence or other non-human means, but I am not aware of specific details.
In order to comply with the Act, it is the responsibility of institutions to provide all documents relevant to a request, regardless of the method used to process such requests.
Artificial intelligence software could be one of the tools used to process ATI requests in order for an institution to comply with the Act, but it can only be a means to an end.
For heads of institutions, the goal must be ensuring compliance with the Act and meeting legislative responsibilities whether through the use of AI or through any other means.

Approval to decline to act on an access request

Q9. Institutions get voluminous and broad requests. Some of them are made in bad faith. As a result, ATIP shops are overwhelmed by these requests. How can the OIC help?

I understand that institutions do get voluminous/broad requests. Time extensions under section 9 of the Act are available for requests that meet the requirements of that section.
Under section 6.1 of the Act, institutions can seek approval to decline to act on an access request. Reasons for declining to act on a request are the following: the request must be vexatious, made in bad faith or otherwise an abuse of the right to make a request for access to records.
Institutions can make such application after having made every reasonable effort to help the requester, as required under the duty to assist. This includes helping requesters clarify the substance of their access request and, when appropriate, narrow its scope.
When I am not satisfied that the institution has fulfilled its obligation, I may find an application to be premature.
The 6.1 process is completely open: both parties see what has been submitted.

Order-Making Powers

Q10. Why haven’t you issued more orders since June 2019?

I have the power to make orders since June 2019.
I can only use the power to make orders on complaints submitted on or after June 19, 2019.
I have issued 67 orders since the coming into force of C-58 (as of September 28, 2022).
More than half of my orders (55%) were issued during the current fiscal year.
The vast majority of complaints received since June 19, 2019 have been resolved prior to reaching the order stage.

Q11. Have any institutions who received an order challenged that order in federal court?

There have been two applications under s. 41(2) by institutions seeking review of the subject matter of my orders.
The first case is about whether ongoing delay in responding to an access request is reasonable. I concluded that it was not reasonable and ordered that a final response to a request be provided by mid August 2022. The institution did not follow this order and filed an application to have the matter reviewed by the Court.
The second case is about the application of specific exemptions to a record. I concluded that some of the information did not warrant exemption under the Act and ordered disclosure of specified information. The institution indicated that it would implement my order in respect of one type of information in the records, but filed an application pursuant to section 41(2) challenging the rest of the order.