2013-2014 Annual Report on the Administration of the Access to Information Act

April 1, 2013 to March 31, 2014

1 Introduction

This report to Parliament, prepared and tabled in accordance with section 72 of the Access to Information Act, describes the activities of the Office of the Information Commissioner of Canada (OIC) in administering the Act during 2013–2014.^{Footnote 1}

The purpose of the Act is to protect the public’s right to access records under the control of government institutions, while ensuring that the use of any exemptions and exclusions is limited and specific. The Act also specifies that any decisions on the disclosure of information should be reviewed independently of government. To this end, the OIC was established under the Act in 1983 as an independent oversight body reporting to Parliament. The OIC conducts efficient, fair and confidential investigations into complaints about government institutions’ handling of access to information requests. The goal of this work is to maximize compliance with the Act while fostering disclosure of public sector information.

The OIC became subject to the Act in 2007. Since then, the organization has made every effort to provide exemplary service to requesters. Here are some highlights from 2013–2014:

• completing formal requests in an average of 25.5 days;
• continuing to waive the $5 application fee for access requests; and
• invoking discretionary exemptions less often than previously, which has resulted in more disclosure to requesters.

Requesters who are of the view that the OIC has improperly handled their access request are entitled to file a complaint. To prevent any conflict of interest and to ensure the integrity of the complaint process, an independent Information Commissioner ad hoc investigates complaints regarding access requests submitted to the OIC. John Sims, the Commissioner ad hoc since May 2011, is assisted by an investigator and has the same powers and obligations as the Information Commissioner with respect to conducting investigations and making recommendations in relation to access requests to the OIC.

During the reporting period, four complaints were filed with the Commissioner ad hoc and two complaints were carried forward from the previous fiscal year. Three investigations are ongoing and three were completed during 2013–2014 with findings: two not well founded and one well founded.

2 Organization

The Information Commissioner, Suzanne Legault, is supported by employees working under the direction of the Assistant Commissioner, Complaints Resolution and Compliance, the Director General, Corporate Services, and the General Counsel, Legal Services.

The OIC has three branches, as follows:

The Access to Information and Privacy (ATIP) Secretariat processes all requests under the Access to Information Act for records under the control of the OIC. The ATIP Secretariat had three staff members in 2013–2014:

• The Complaints Resolution and Compliance Branch carries out investigations and dispute resolution efforts to resolve complaints. It assesses the performance of government institutions and conducts systemic investigations.
• Legal Services represents the Commissioner in court cases and provides legal advice on investigations, as well as on legislative and administrative matters.
• Corporate Services provides strategic and corporate leadership for various functions, such as communications, human resources, and information management and technology. It also manages the access to information and privacy function.
• The Director, ATIP Secretariat, oversees the handling of requests, policy development and training. The Director holds full delegated authority under the Act as ATIP Coordinator. The Director reports to the Director General, Corporate Services.
• The Senior ATIP Officer processes requests and holds some delegated authority for tasks such as transferring requests to other institutions, claiming time extensions, charging fees and notifying third parties about requests. The Senior ATIP Officer reports to the Director, ATIP Secretariat.
• The Junior ATIP Officer processes requests and performs administrative tasks in the ATIP Secretariat. The Junior ATIP Officer reports to the Director, ATIP Secretariat.

3 Delegation order

Under the Access to Information Act, the Information Commissioner is the designated head of the institution for the purpose of administering the legislation.

During the reporting period, the delegation order under section 73 of the Act, signed on July 16, 2011, was in effect (Appendix A).

The delegation for the Information Commissioner ad hoc under subsection 59(1) of the Act was renewed for the reporting period and signed on April 23, 2013 (Appendix B).

4 Interpretation of the statistical report

The statistical report details all aspects of the ATIP Secretariat’s processing of the access to information requests the OIC received from April 1, 2013, to March 31, 2014 (Appendix C). Below are some items of note from that report.

4.1 Workload

Requests	Number
Received during reporting period	33
Carried over to next reporting period	2
Total completed requests	31

The OIC received 33 new requests in 2013–2014, 11 fewer than in the previous reporting period. The number of pages reviewed totalled 25,782, compared to 27,083 in 2012–2013, a decrease of 5 percent. Of the 33 new requests, 12 pertained to investigations, 6 to administrative records and 14 to records on various other subject matters. One request was transferred to another institution.

A notable trend in the type of information being requested is a large proportion of requests for records relating to investigation files. This has meant that the OIC has continued to apply the mandatory exemption in paragraph 16.1(1)(c) to protect investigative information. As always, however, the OIC strives to foster transparency while observing the mandatory provisions of the Act.

The OIC responded to 31 requests in 2013–2014. Two requests were carried over into 2014–2015.

4.1.1 Requests for previously released records

Individuals can review summaries of all completed requests on the OIC website and then ask to receive a copy of the records. The OIC received 24 such requests in 2013–2014, compared to 4 in the previous year.

4.2 Sources of requests

Source	Number of requests (% of total)
Media	10 (30%)
Academia	0 (0%)
Business	3 (9%)
Organization	2 (6%)
Public	18 (55%)
Total	33 (100%)

During the reporting period, the majority of the new requests (55 percent) came from the public. No requests were received from academia.

4.3 Disposition of completed requests

Disposition	Number (% of total)
All disclosed	5 (16%)
Disclosed in part	14 (45%)
Nothing disclosed	4 (13%)
No records exist	6 (19%)
Transferred	1 (3%)
Abandoned	1 (3%)
Total	31 (99%; due to rounding)

The OIC disclosed part of the information sought in almost half (45 percent) of all of the requests to which it responded in 2013–2014. A large portion of requests yielded no records (19 percent).

The percentage of requests for which the OIC disclosed some of the requested information has remained stable over the past four years. The percentage of requests for which all the requested information was disclosed increased to 16 percent from 6 percent the previous year.

4.4 Exemptions

Section of the Act	Number of requests*	Percentage of requests completed	Total number of requests (by section)*	Total percentage of requests completed
Paragraph 16(2)(c) (Security of buildings or systems)	1	3%	1	3%
Paragraph 16.1(1)(c) (Investigations)	16	52%	16	52%
Subsection 19(1) (Personal information)	11	35%	11	35%
Paragraph 20(1)(c) (Third-party information)	1	3%	1	3%
Paragraph 21(1)(a) (Policy advice)	2	6%	6	19%
Paragraph 21(1)(b) (Consultations or deliberations)	4	13%
Section 23 (Solicitor-client privilege)	3	10%	3	10%

*Since one request can involve more than one exemption, this column may total more than the 31 requests completed in 2013–2014.

The most frequently invoked exemption during the reporting period was paragraph 16.1(1)(c) (investigations). The OIC applied this to 52 percent of requests completed, compared to 42 percent the year before.

The OIC applied subsection 19(1) to 35 percent of requests completed (compared to 34 percent in the previous year), and section 23 to 10 percent of requests completed (compared to 30 percent in the previous year).

4.5 Exclusions

There were no records subject to exclusions during the reporting period.

4.6 Completion times

Period	Number (% of total)
1 to 15 days	12 (39%)
16 to 30 days	12 (39%)
31 to 60 days	4 (13%)*
61 to 120 days	2 (6%)
121 to 180 days	1 (3%)
Total	31

*Three of these requests were completed in 30 days; however, the due dates fell on a weekend or statutory holiday and were, therefore, moved to the next business day.

The OIC responded to the majority of requests within the legislated timeframe of 30 days. Four requests required extensions to the original due dates. No requests were overdue (known as deemed refusals) at any point.

4.7 Extensions

Reason	30 days or less	31 to 60 days	61 to 120 days	121 to 180 days	181 to 365 days	365 days or more	Total (% of total)
Searching for and through a large volume of records	0	0	1	0	0	0	1 (25%)
Inter-institution consultations	0	1	0	0	0	0	1 (25%)
Third-party consultations	0	2	0	0	0	0	2 (50%)
Total	0	3	1	0	0	0	4 (100%)

4.8 Translations

No translations of records were requested during the reporting period.

4.9 Method of access

The OIC delivered 19 releases on CD in 2013–2014. No requests to examine records were received.

4.10 Fees

Type of fee	Amount
Application	0
Reproduction	0
Total	$0
Fees waived	Frequency	Amount
Up to $25	33	$165
More than $25	0	0
Total	33	$165

Conscious of the duty to assist requesters and to ensure there are no barriers to access, the OIC has continued to waive the $5 application fee for all access requests. This has not had any significant impact on workload.

4.11 Consultations

The OIC received 13 consultation requests from other institutions to provide input on records concerning the organization and its work. However, since the Commissioner may be required to investigate complaints on any file, the OIC does not provide recommendations on the application of exemptions. This allows the Commissioner to maintain impartiality and avoid conflicts of interest.

The OIC consulted 19 parties regarding three requests.

4.12 Costs

Category of cost	Amount
Salary	$166,273
Administration (operations and management)	$3,613
Total	$169,886
Person-years	2.11

Costs incurred during the reporting period are calculated based on the salaries of ATIP Secretariat members and expenses associated with the administration of the Act.

4.13 Duty to assist

The OIC continues to make every effort to fulfill its duty to assist requesters. Here are some examples of how the OIC put this duty into action in 2013–2014:

• When the wording of requests could have resulted in limited or no disclosure, the OIC promptly contacted requesters for clarification and to afford them an opportunity to modify their requests.
• The OIC promptly informed requesters when a requested record was available online.
• For a large request, the OIC issued interim releases to provide the requester with records as they became ready for release, thereby reducing delays.
• When the OIC received a request for an ongoing investigation file, access officials informed the requester that the open status of the investigation prohibited disclosure and also suggested that the requester make a request at a later date when the investigation was closed.
• The OIC released records via email when possible.

5 Education and training

The ATIP Secretariat provided one-on-one training on ATIP procedures to OIC employees, as needed. Secretariat staff also provided ongoing guidance to offices of primary interest (subject-matter experts) regarding the search and retrieval of relevant records.

Legal Services provided several training sessions on the Act to OIC employees during the reporting period. Nine sessions were held in September 2013, on the following three topics: overview of the Act (12 participants), communication with institutions and complainants (15 participants), and the duty to assist (21 participants). In October and November 2013, three sessions were held on exercising discretion, with a total of 42 participants. Two sessions were held in December 2013 on section 23, with a total of 13 employees in attendance. Finally, in January 2014, four sessions on section 19 were attended by a total of 24 employees.

6 Changes to the organization, programs, operations or policies

The ATIP Secretariat no longer issues informal releases to individuals seeking access to records pertaining to investigations of their own complaints. It had introduced this practice in the interests of transparency, since otherwise it would be unable, due to the requirements of paragraph 16.1(1)(c) of the Act, to release to requesters information they themselves had provided to the OIC in the context of investigations. The decision to cease this practice was made in light of observations by the Information Commissioner ad hoc in the context of an investigation about the OIC’s application of paragraph 16.1(1)(c). The Commissioner will address this matter in her upcoming special report on modernizing the Act.

7 Complaints

Four complaints were lodged with the Information Commissioner ad hoc against the OIC in 2013–2014. All four complaints concerned the application of paragraph 16.1(1)(c). One investigation was closed as not well founded. Investigations into the other three complaints are ongoing.

During the reporting period, the Commissioner ad hoc closed two investigations carried over from the previous year. One complaint pertained to the duty to assist and was found to be not well founded.

The second complaint focused on the OIC’s response to a request for an investigation file. When the OIC received and responded to the request, the OIC had completed the investigation, which examined, among other things, an institution’s practices when charging fees. However, a legal proceeding on the matter of fees was ongoing at the time.

Under section 16.1 of the Access to Information Act, the OIC is required to exempt information about its investigations until both the investigation and “all related proceedings” have been concluded. Until that time, the OIC may not disclose any information obtained or created in the course of an investigation. However, once the investigation and related proceedings are concluded, the OIC is no longer allowed to exempt the information it itself created during the investigation.

In this case, the OIC determined that the ongoing court proceeding was a related proceeding and applied the exemption to refuse access to the investigation file. In investigating the requester’s complaint about this response, the Commissioner ad hoc was asked to assess whether the proceeding was related to the investigation in question.

During the Commissioner ad hoc’s investigation, the proceeding was discontinued and the OIC provided additional information to the requester. Nonetheless, the requester asked the Commissioner ad hoc to complete his investigation.

On August 27, 2013, the Commissioner ad hoc found the complaint to be well founded. He recognized that the words of section 16.1, in their grammatical and ordinary sense, supported the conclusion that the proceeding was, in fact, a proceeding related to the OIC’s investigation. However, he was of the view that such an interpretation was incomplete. Once the words “related proceedings” were read and analyzed in light of the purpose, scheme and larger context of the legislation, as well as the intention of Parliament, a different interpretation emerged. He concluded that the term “related proceedings” referred to court matters brought under section 41 or 44 of the Act that relate to a prior investigation. For any other proceedings, the term was to be read as applying only to those proceedings that connect to an investigation in a way that potentially interferes with the effectiveness or integrity of that investigation.

The Commissioner ad hoc therefore recommended that the Information Commissioner re-examine the OIC’s policy and procedures for considering the possible application of section 16.1 of the Act in future cases, and that, in doing so, the OIC adopt an approach consistent with his interpretation of the term “related proceedings.”

The Information Commissioner carefully considered this recommendation but was unable to agree with the Commissioner ad hoc’s interpretation of “related proceedings.” In her view, the proposed interpretation of “related proceedings” would have the effect of reading an injury test into section 16.1, where Parliament had explicitly declined to include one. The Commissioner did agree that the interpretation of section 16.1 poses ongoing challenges in this and other regards, and informed the Commissioner ad hoc that she would be providing recommendations to Parliament on addressing these challenges as part of her upcoming special report on modernizing the Act.

8 Monitoring timelines

The ATIP Secretariat monitors the time to process requests and generates, through the electronic case management system, a report on all open requests, including their status and due dates. This report is circulated to OIC senior management once a week.

9 Conclusion

The OIC is in a unique position, since it is subject to the statute that the Commissioner oversees. Despite its small size, and the OIC’s low request volume compared to other institutions, the ATIP Secretariat strives to lead by example in compliance with the Access to Information Act.

Appendix A

Text Version

Delegation orders for the purpose of the Access to Information Act and the Privacy Act

Arrêté de délégation en vertu de la Loi sur l’accès à l’informationet de la Loi sur la protection des renseignements personnels

The Information Commissioner of Canada, pursuant to Section 73 of the Access to Information Act and of the Privacy Act, hereby designates the persons holding the positions set out in the schedule hereto, or the persons occupying on an acting basis those positions, to exercise the powers and functions of the Information Commissioner of Canada as the head of a government institution that is, the Office of the Information Commissioner of Canada.  This Delegation Order supersedes all previous Delegation Orders pursuant to section 73.

This delegation order is effective on July 18, 2011

Dated, at the City of Ottawa,this 16 day of July 2011

En vertu de l’article 73 de la Loi sur l’accès à l’information et de la Loi sur la protection des renseignements personnels, la Commissaire à l’information du Canada délègue aux titulaires des postes mentionnés à l’annexe ci-après, ainsi qu’aux personnes occupant à titre intérimaire lesdits postes, les attributions dont elle est investie en qualité de responsable d’une institution fédérale, c’est-à-dire le Commissariat à l’information du Canada.  Le présent arrêté de délégation annule et remplace tout arrêté antérieur fait en vertu de l’article 73.

Cet arrêté de délégation prend effet le 18 juillet 2011.

Daté,  à la ville d’Ottawa, ce 16 jour de juillet 2011

Original signed by

______________________________________________

Suzanne Legault
Information Commissioner of Canada
Commissaire à l’information du Canada

Appendix B

Appendix C

Appendix A

Previously released ATI package released informally

Institution	Number of informal releases of previously released ATI packages
Office of the Information Commissioner	24

Completed Privacy Impact Assessments (PIAs)

Institution	Number of Completed PIAs
Office of the Information Commissioner	0

Completion Time of Consultations on Cabinet Confidences under the ATIA - Requests with Legal Services

Number of Days	Fewer Than 100 Pages Processed	101‒500 Pages Processed	501‒1,000 Pages Processed	1,001‒5,000 Pages Processed	More Than 5,000 Pages Processed
Number of Requests	Pages Disclosed	Number of Requests	Pages Disclosed	Number of Requests	Pages Disclosed	Number of Requests	Pages Disclosed	Number of Requests	Pages Disclosed
1 to 15	0	0	0	0	0	0	0	0	0	0
16 to 30	0	0	0	0	0	0	0	0	0	0
31 to 60	0	0	0	0	0	0	0	0	0	0
61 to 120	0	0	0	0	0	0	0	0	0	0
121 to 180	0	0	0	0	0	0	0	0	0	0
181 to 365	0	0	0	0	0	0	0	0	0	0
More than 365	0	0	0	0	0	0	0	0	0	0
Total	0	0	0	0	0	0	0	0	0	0

Completion Time of Consultations on Cabinet Confidences under the ATIA - Requests with Privy Council Office

Number of Days	Fewer Than 100 Pages Processed	101‒500 Pages Processed	501‒1,000 Pages Processed	1,001‒5,000 Pages Processed	More Than 5,000 Pages Processed
Number of Requests	Pages Disclosed	Number of Requests	Pages Disclosed	Number of Requests	Pages Disclosed	Number of Requests	Pages Disclosed	Number of Requests	Pages Disclosed
1 to 15	0	0	0	0	0	0	0	0	0	0
16 to 30	0	0	0	0	0	0	0	0	0	0
31 to 60	0	0	0	0	0	0	0	0	0	0
61 to 120	0	0	0	0	0	0	0	0	0	0
121 to 180	0	0	0	0	0	0	0	0	0	0
181 to 365	0	0	0	0	0	0	0	0	0	0
More than 365	0	0	0	0	0	0	0	0	0	0
Total	0	0	0	0	0	0	0	0	0	0

Completion Time of Consultations on Cabinet Confidences under the PA - Requests with Legal Services

Number of Days	Fewer Than 100 Pages Processed	101‒500 Pages Processed	501‒1,000 Pages Processed	1,001‒5,000 Pages Processed	More Than 5,000 Pages Processed
Number of Requests	Pages Disclosed	Number of Requests	Pages Disclosed	Number of Requests	Pages Disclosed	Number of Requests	Pages Disclosed	Number of Requests	Pages Disclosed
1 to 15	0	0	0	0	0	0	0	0	0	0
16 to 30	0	0	0	0	0	0	0	0	0	0
31 to 60	0	0	0	0	0	0	0	0	0	0
61 to 120	0	0	0	0	0	0	0	0	0	0
121 to 180	0	0	0	0	0	0	0	0	0	0
181 to 365	0	0	0	0	0	0	0	0	0	0
More than 365	0	0	0	0	0	0	0	0	0	0
Total	0	0	0	0	0	0	0	0	0	0

Completion Time of Consultations on Cabinet Confidences under the PA - Requests with Privy Council Office

Number of Days	Fewer Than 100 Pages Processed	101‒500 Pages Processed	501‒1,000 Pages Processed	1,001‒5,000 Pages Processed	More Than 5,000 Pages Processed
Number of Requests	Pages Disclosed	Number of Requests	Pages Disclosed	Number of Requests	Pages Disclosed	Number of Requests	Pages Disclosed	Number of Requests	Pages Disclosed
1 to 15	0	0	0	0	0	0	0	0	0	0
16 to 30	0	0	0	0	0	0	0	0	0	0
31 to 60	0	0	0	0	0	0	0	0	0	0
61 to 120	0	0	0	0	0	0	0	0	0	0
121 to 180	0	0	0	0	0	0	0	0	0	0
181 to 365	0	0	0	0	0	0	0	0	0	0
More than 365	0	0	0	0	0	0	0	0	0	0
Total	0	0	0	0	0	0	0	0	0	0