Interference with access to information: Part 2

Gatineau, Quebec, April 10, 2014—Suzanne Legault, Information Commissioner of Canada, tabled a special report in Parliament today that concludes there was improper involvement by ministerial staff with five access to information requests at Public Works and Government Services Canada. The investigation that is the basis of the report covered the period from July 2008 to January 2010.

“I found interference by three members of the staff of former Minister Christian Paradis in the access to information process and a failure of departmental officials to prevent this from happening,” said Commissioner Legault.

The ministerial staff members directed access to information officials to remove information that these same officials had decided to disclose. The access to information officials had authority under the Access to Information Act to decide what information could be released. The ministerial staff did not.

The Commissioner also found that the involvement by ministerial staff led to delays in responding to requesters. “The duty to provide timely access requires that institutions respond to requesters as soon as the release has been approved by a delegated decision maker” said Commissioner Legault.

The report follows an earlier finding of interference against one of the three staffers involved in this investigation.

The report is available on the Office of the Information Commissioner’s website.

Highlights

Investigation into interference with the processing of and responses to access to information and consultation requests

1. The Information Commissioner found that three members of the staff of former Minister of Public Works and Government Services (PWGSC) Christian Paradis were improperly involved in responding to five requests under the Access to Information Act.
   • Ministerial staff, as well as various PWGSC senior officials, reviewed the records associated with access requests prior to their release, as part of an internal review process.
   • During this review, ministerial staff issued a series of directions to access officials about what information should be released to requesters.
   • The ministerial staff members did not have authority under the Act to make decisions about what information PWGSC would release to requesters. Only delegated departmental officials are allowed to make those decisions.
   • Ministerial staff members were aware that they did not have delegated authority under the Act.

The Commissioner’s report details the activities surrounding these access requests.

2. Direct communications between ministerial staff members and access to information officials contributed to the interference.
   • Although PWGSC had a process in place that required all communications between ministerial staff and departmental officials to be channeled through the Deputy Minister’s Office, ministerial staff became increasingly involved in the processing of access requests, regularly communicating with access officials directly.
   • Guidance from the Privy Council Office makes it clear that ministerial staff may not give direction to public servants (Accountable Government: A Guide for Ministers and Ministers of State, 2008; updated 2011).
   • The situation was compounded by the culture of maintaining good relations with the Minister’s Office that was in place at PWGSC, which at times, came at the expense of its meeting their responsibilities under the Act.

3. The interference led to delays in responding to requesters.
   • Institutions have an obligation under the Act to provide timely responses to requests, as part as the duty to assist requesters.
   • In four cases, access officials did not release information when it was ready to be disclosed. Instead, they delayed responding to requesters between 6 and 30 working days, in order to obtain the approval of ministerial staff members to release the records.

4. The investigation was complicated by the fact that ministers’ offices are not covered by the Access to Information Act.
   • Under the current state of the law, ministerial offices are not “government institutions” for the purpose of the Act.
   • In response to one of the Commissioner’s order for the production of records, PWGSC took the position that it was unable to provide records from the Minister’s Office, since they were not under the institution’s control but rather the control of the Minister’s Office.
   • A 2011 Supreme Court of Canada decision determined that records located in ministers’ offices are “under the control” of the institution when they concern departmental matters and a senior official of the institution should reasonably be able to obtain a copy of the records upon request.
   • In response to a letter from the Commissioner, the Minister eventually produced the records—three months later.

5. The Information Commissioner could not exercise her discretion to refer the matter to the appropriate investigative authority.
   • Under subsection 63(2) of the Act, the Commissioner may only disclose evidence of the commission of an offence to the appropriate investigative authority when the offence involves a director, an officer or an employee of a government institution.
   • Since ministers’ offices are not government institutions under the Act, ministerial staff are not considered officers, directors or employees of government institutions.
   • At the time of the investigation, the Commissioner was therefore unable to disclose any information to the Attorney General of Canada about the involvement of the three members of the staff of former Minister Paradis in the processing of requests.
   • The Commissioner recommended to the current Minister to refer the matter directly to the appropriate investigative body for further examination.

6. PWGSC agreed to implement all the Commissioner’s recommendations but one. The Minister declined to refer the matter to an investigative body for further examination.(The report includes PWGSC’s and the Minister’s responses to the Commissioner’s recommendations.)

6. • Recommendation 1: Refer the five files in which the Commissioner has concluded there was interference to the appropriate investigative body.
   • Recommendation 2: Draft and post clear protocols guiding the interaction of ministerial staff with departmental access to information and privacy officials.
   • Recommendation 3: Provide training to ministerial staff members about their role within the institution particularly in relation to the institution’s obligations under the Act. Ensure that this training is given to all incoming ministerial staff members.
   • Recommendation 4: Provide consistent training to access to information and privacy staff members about the role of ministerial staff under the Act. Ensure that this training is given to all incoming employees in the access to information and privacy directorate.
   • Recommendation 5: Establish and communicate a clear mechanism for employees in the access to information and privacy directorate to complain, without fear of reprisal, about interference by individuals who are not delegated under the Act.
   • Recommendation 6: Amend the policy concerning possible breaches of section 67.1 of the Act to reflect the recommendations made in investigation 3209-00718 (the Commissioner’s previous interference investigation).
   • Recommendation 7: Draft and post a policy on the duty to assist requesters under subsection 4(2.1) of the Act. Ensure that the policy distinguishes between the requirement to respond to requests within the legislative timeline under the Act and the broader duty to give timely access to information. This obligation includes a duty to respond as soon as possible. Training materials should be revised accordingly.
   • Recommendation 8: Ensure that all records of business value created by ministerial staff that relate to departmental matters are transferred to the appropriate corporate repository or are stored in a repository within the Minister’s Office. That ministerial staff be reminded that the proper handling of information is a term and condition of employment for ministerial staff members and that measures to sanction non-compliance with proper information management practices be implemented.