Questions and answers – Appearance before OGGO

Improvements

• Overall, the system is grim, but there have been some rays of light. No institutions are completely closed, it appears that ATIP operations have resumed to some capacity in most institutions
• To deal with operational challenges, some ATIP units have experimented with immediate fixes such as revisiting classification of files; moving operations off of secure networks with limited access; reaching out directly to requesters to explain the situation and better understand needs
• Best practices are being shared across institutions through various interdepartmental networks
• Some institutions have adopted the recommendations I made in my special reports regarding DND, the RCMP and Canadian Heritage and I am seeing improvements here. However, it’s unfortunate that it takes a systemic investigation to force change

Challenges

• The main challenge for institutions is the access to records on site while lockdowns or stay-at-home orders are in effect
• Systems were not set up to allow employees to work and access files from home at full capacity. In the beginning of the pandemic, some employees did not even have laptops; they do now. There is still an issue with remote access to the government services, which is not capable of sufficiently processing large files; employees are accruing overtime
• Working from home requires better documentation of decisions and information management practices
• There is also an issue with the ATIP units’ access to public servants who created the records (known as the Offices of Primary Interest or, more informally, OPIs)
• The government has not capitalized on technology to improve service to Canadians in the area of access to information
• The delay in the roll-out of technology and tools that could help improve the system, like TBS’s new online request service causes me concern
• This service upgrade, which would allow Canadians to receive their records electronically directly through the portal, rather than a third party delivery service such as ePost, is a step in the right direction, so I am disappointed in its delay

• I have spoken with Minister Duclos with the most recent conversation being approximately two weeks ago, regarding TBS’ review of the access legislation
• I took the opportunity to stress to him once again that the pandemic has only exacerbated to precariousness of the access system, which was already on the verge of collapse even before the pandemic
• I conveyed that I was pleased that his review focuses on improving the Canadian access to information regime as whole but I also expressed my disappointment with the delay in the review process, the report resulting from the Minister's consultations will not be available until end of January 2022
• In the meantime, I urged him to consider what can be done outside of the consultative process that can help to improve the access regime. Some of the ideas are outlined in the Part 1 of my submission (leadership, voluntary disclosure, duty to document, use of technology)

• I self-initiated a complaint into this issue
• I issued a final report at the end of our investigation that contained recommendations to avoid this type of failure in the future
• These recommendations include, recognizing the Act’s quasi-constitutional status and their legal obligations to comply, and assigning the necessary resources to process the backlog
• Some departments have already implemented the recommendations I provided in my special report. I invite other departments to read them in an effort to improve their own situation

• Leaders set the direction by their words, and more importantly, by their actions
• Clear directives regarding disclosure of information, more proactive disclosure, more resources, and more innovation would go a long way to ensure timely disclosure. Government leaders have the power to make this happen
• 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
• I want to see zero tolerance for complacency. It is vital that Ministers 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 will comply with the Access to information Act

• Access to information is a quasi-constitutional right. It should be treated as such
• The Pandemic did not suspend the right of access. If anything, the pandemic increased the appetite for the right to know what the government is doing
• Heads of institutions must take all means necessary to ensure that they are in compliance with the law, regardless of how access to information is categorized in Business Continuity Plans

• The Act should set out a maximum length of time for consultations needed to respond to access requests (Recommendation 1) WHY: delays are the biggest issue for access
• Extending coverage of the Act to Offices of the Prime Minister and Ministers (Recommendation 3)
• Subsection 21(2) of the Act should be amended to add a list of categories of information not covered by the exemption. (Recommendation 9) WHY: The 20-year-period provided for in subsection 21(1) of the Act should be reduced to 10 years.  The current exemption is too broad
• Cabinet confidences should be subject to the Act and covered by and exemption rather than an exclusion in order to allow for independent  review(Recommendation 7 and 8)
• Overall, there should be more voluntary disclosure to pre-empt access requests

• Simply put: don’t delay, don’t wait for legislative change.  Take action on 4 areas I highlighted in the first part of my submission immediately

• Inadequate leadership and a lack of clear guidelines on transparency and disclosure expectations
  • Leadership, commitment at the highest level and a change in culture are essential
  • Respect the existing legislation and be transparent from the outset through the voluntary publication of information of public interest
  • Adopt optimal information management practices
  • Take the measures to reduce response times, and do not tolerate delays. The culture of complacency must end
• A pressing need to innovate and to allocate enough resources to the access regime
  • ATIP teams need resources. The government has to adequately invest in human resources, by creating pools, hiring qualified staff and developing training
  • Institutions are not taking advantage of new technology. Technological tools would result in more efficient use of resources
  • New technology could also be used to gather operational statistics on access from institutions providing a more accurate picture of the access regime
• The necessity of properly documenting decisions and efficiently managing institutions’ information
  • The right of access cannot exist without records, and properly managing information related to key actions is essential to efficiently respond to access requests
  • OIC’s investigations show that actions are not always properly documented and information is not always managed properly
  • A statutory duty for public servants to create a complete, accurate registry of key actions would strengthen responsibility, transparency, good governance and public trust
  • The government could look to successful legislative models abroad, such as those of the United States, New Zealand and some Australian states
  • Canada’s information commissioners ask their respective governments to legally oblige public entities to document their deliberations, actions and decisions in 2016 through a joint resolution
• The declassification of records in a timely manner
  • The lack of a declassification system in Canada is increasingly affecting the access regime
  • About 20% of the OIC inventory consists of complaints regarding national security exemptions (sections 13 and 15 of the Act)
  • National security records often become less sensitive over time
  • A proper declassification system based on regular reviews and consensus by experts would enable researchers and others to gain access to records that are no longer sensitive to national security, through mechanisms other than the Act

• I can speak for my own office. After I last spoke with you, I received 3 million in ongoing funding.  Before, we had to go and ask for additional funding every year
• This will help ensure my office has a sufficient and stable investigative workforce in place. Where we used to have short-term consultants doing some of the work, we have been able to start staffing positions permanently, leading to an increase in corporate memory and expertise
• We have been hiring in the last year, and are in the process of hiring 20 investigators
• Our plan for retention and structure is now stabilized, ongoing processes for hiring, development program for investigators
• We have more resources, but if institutions do not have more, we will hit the capacity for the institutions to answer our questions
• A problem my office faces, as well as in institutions is a dearth of human resources. There are not enough properly trained ATIP professionals

• Canada released general information about vaccines cost estimates, vaccines makers to whom the government has awarded contracts
• This is one of the areas where the government could exercise its discretion and voluntarily disclose  some information. There may be concerns about confidentiality clauses in vaccine agreements, and information that might be subjected to s.18; s. 20 (1) (b) and (c) of ATIA
• I cannot elaborate on this topic, as it may become the subject of a complaint

• Legislative changes – a strong legislative framework is the foundation of a strong access to information system
• Culture – the best legislation will never work if government leaders don’t commit to making access a priority with performance objectives, resources, training, and innovation
• Boldness– leadership is about taking risks, which is difficult within government; all leaders should take the steps they can to institute positive change