2010 Executive Summary

The Department of Foreign Affairs and International Trade (DFAIT) is having serious difficulty fulfilling its access to information obligations within the time limits imposed by the Access to Information Act. In her report entitled Out of Time, presented to Parliament this spring, the Information Commissioner notes, among other problem areas, the Department’s consultations with foreign governments and international organizations for access requests it receives, as well as its consultations on behalf of a number of departments and agencies. Such consultations are initiated when the documents being sought may affect Canada’s international relations or if the documents are from a foreign government or international organization.

This comparative study seeks primarily to understand the impact of these consultations, not only on how access is managed at DFAIT, but also on the departments and agencies that have to defer to the Department, pursuant to a Treasury Board Secretariat directive. It will also attempt to identify possible steps that DFAIT could consider to streamline the procedures put into place for this foreign consultation process.

Such consultations account for approximately 10% of all access files processed by DFAIT. Most of these consultations are conducted on behalf of federal departments and agencies. Of the access requests received by the Department, barely 3% are the subject of consultations.

The results of a summary examination of these consultations during the 2008–09 and 2009–10 fiscal years speak for themselves. For example, some 30 foreign governments were the subject of such consultations by Canada. The United States topped the list of countries receiving the most consultation requests. The average length of time it took to receive decisions from foreign governments was 83 and 151 days, respectively, for each of these two years. Of the consultations initiated in 2008–09, responses from foreign governments were, in June 2010, on average, 574 days overdue, or more than 19 months.

The consultation process is fraught with ramifications, not only for members of the public awaiting a response, but also for the Access to Information Division at DFAIT and such units in the other federal departments and agencies involved in this process. The cumulative delays invariably affect DFAIT’s performance in access to information matters.

Five countries were chosen for comparison purposes with Canada in terms of how they deal with provisions governing international relations where document access requests are concerned. Such provisions are contained in access legislation in the United States, Australia, New Zealand, the United Kingdom and Mexico. These five countries have several constitutional and administrative traits in common with Canada, hence this comparative study.

There is no requirement in the legislation in any of these five countries or in Canada for such consultations to be initiated. Rather, it is an implicit concept arising from the obligation imposed on each of these countries to maintain good diplomatic relations with countries concerned by access requests. In Canada, a directive issued by the Treasury Board Secretariat confers upon DFAIT the exclusive mandate to initiate such consultations with foreign countries regarding access requests it receives, as well as consultations on behalf of other federal departments and agencies. These consultations, which are conducted through traditional diplomatic channels, are directed solely to the departments of external affairs of the countries concerned.

Two possible avenues for reducing the scope of the problem that has plagued DFAIT for several years now can be identified from this study, which focuses on the processes and procedures favoured by these five reference countries.

(1) The first avenue concerns the technical side of the consultation process. In view of practices of other departments of external affairs, consultation officials at DFAIT, in cooperation with their missions abroad, should identify the best gateway for soliciting consultations with other countries. Is it preferable to always use the habitual foreign affairs channel? In some cases, would it not be more efficient to direct such requests to the embassy of the country in question in the nation’s capital? This question warrants consideration in the case of countries to which access requests have yet to be directed or which have received very few such requests in recent years. Such an approach could enhance relations between DFAIT and the embassies in question and even produce unexpected dividends.

Given the ever-increasing scope of the reciprocal consultations between Ottawa and Washington in access to information matters, consideration should be given to attempting to streamline the procedures in place. Access to information officials at the State Department and at DFAIT would benefit from initiating discussions in that regard.

On a more fundamental level, it would also be in DFAIT’s interest to use the quickest channels it can for documents that its missions have to forward to departments of external affairs for consultation purposes. The possibility of sending such documents using the quickest diplomatic pouch for each destination post should be explored.

(2) The second avenue to be investigated involves a more thorough examination of the practices in use at DFAIT for more than two decades and of the very principles underlying consultations with foreign governments.

This consideration is warranted in view of the information gleaned concerning the practices in use in four of the countries chosen for comparison purposes. Consequently, the possibility that certain departments and agencies could engage consultations directly in other countries, subject to terms and conditions to be established, is conceivable. The departments in question would be ones that maintain significant and ongoing relations with their foreign counterparts, departments or international organizations, through well-established relations and procedures.

Such an approach would also be in line with an option envisaged some time ago by the Treasury Board Secretariat: “Only when an established and acceptable system of liaison and consultation already exists should direct consultation take place. External Affairs should be kept informed of these channels of consultation.”^{Footnote 1} The UK Ministry of Justice, which plays a role similar to that of the Treasury Board Secretariat in matters of access to information, recently adopted this principle.

A two-tier procedure is conceivable. A department or agency would first have to establish for DFAIT the nature and significance of the relations maintained with its foreign counterparts. When an access request arises, the department or agency should provide DFAIT with the wording of the proposed foreign consultation and the rationale behind the anticipated decision. DFAIT would then have 10 working days to forward to the entity concerned its comments and suggestions, or even its categorical refusal.  

Such an approach would streamline the consultation process and avoid delays incurred when documents are sent back and forth between Foreign Affairs in the two countries concerned. It would also reduce the lengthy delays under the current system.

This discussion should involve both DFAIT and the Treasury Board Secretariat in view of the latter’s responsibilities with regards to the implementation of the Access to Information Act.

These avenues and perspectives should also be of interest to the Information Commissioner. She could consider calling on her fellow commissioners in the other countries to study this issue and, in so doing, possibly jump-starting the move towards a common framework that would harmonize and streamline foreign consultations.

The overarching goal of these possible steps is to ensure that citizens have access to requested documents within a reasonable amount of time, in keeping with the provisions and spirit of the Act of 1982.