Appendix A: Access to information and consultation requests and the PWGSC ATIP Directorate

The ATIP Directorate at PWGSC is responsible for administering the Access to Information Act and managing all activities involving access and consultation requests received by PWGSC. Until June 2011, the ATIP Directorate was part of the Corporate Services, Policy and Communications Branch, at which time the branch was renamed the Corporate Services and Strategic Policy Branch to reflect the fact that the branch’s communications function was removed.

In 2009, a transition occurred at the senior levels of the Corporate Services, Policy and Communications Branch. In July and August 2009, the positions of Director General, Executive Secretariat, and ATIP Director were filled on a permanent basis. Prior to that, and for the remainder of that year, management positions within the ATIP Directorate were often acting appointments.

During the time period under investigation, the PWGSC Minister, the Honourable Christian Paradis, delegated his authority to make decisions regarding access and consultation requests to the Deputy Minister of PWGSC, the Director General, Executive Secretariat, the ATIP Director, and some managers within the ATIP Directorate.

The departmental officials interviewed in the course of this investigation were all aware that the delegated authority for access matters rested with the ATIP Directorate. One senior official stated that she did not exercise her delegation while acting in the position of Director General for the branch. Another senior official, the ATIP Director, testified that he was unaware, when the access and consultation requests at issue were being processed, that members of Minister Paradis’ staff, in particular the Director of Parliamentary Affairs, did not also have delegated authority with respect to access matters.

Members of the Minister’s staff involved in this investigation all testified that they knew they did not have delegated authority with respect to access matters and that they were also aware that the ATIP Directorate was the decision-making authority.

Weekly access meetings and “tagging” of access and consultation requests for review

The purpose of these meetings was to identify access and consultation requests needing communication products, such as media lines. The ATIP Directorate solicited the input of meeting participants to identify those requests that would undergo review by senior management prior to the requested information being released. Those requests were designated, or “tagged,” as some witnesses stated, either “high profile” or “interesting.”

Prior to Minister Paradis’ appointment in 2008, only representatives from PWGSC’s ATIP Directorate, its Communications Directorate, the Deputy Minister’s Office and, occasionally, offices of primary interest (OPI) attended the weekly access meetings. Members of the Minister’s staff began attending these meetings when Minister Paradis was appointed.

In the time period under investigation, the Deputy Minister’s Strategic Advisor attended the weekly access meetings on behalf of the Deputy Minister’s Office. The Director of Parliamentary Affairs attended on behalf of the Minister’s Office. Both officials played an active role in identifying requests that would be reviewed by senior management. The Deputy Minister’s Strategic Advisor, for her part, would identify requests for review when the subject matter of the request required media lines or other communication products. The evidence showed that as a general rule, the Deputy Minister’s Office did not want to review requests for which records were previously disclosed, since a communications strategy already existed.

The evidence demonstrated that the Director of Parliamentary Affairs would identify requests for review based on the subject matter and source of requests. He testified that he wanted to see requests from the media, political parties or the public (i.e. sources) and requests pertaining to issues management (i.e. subject). In cases in which information that was the subject of the request had been previously released, he would ask to review requests made by the media or a political party.

The evidence also shows that, during the time period under investigation, when the source of a request was not identified, such as with a consultation request, the ATIP Directorate attempted to obtain this information. Witnesses testified that the ATIP Directorate generally called consulting departments to obtain the source of requests.

Beginning in the fall of 2009, the Director General, Executive Secretariat (of the Corporate Services, Policy and Communications Branch), and/or other PWGSC senior managers started attending the weekly access meetings (see “Measures taken by a manager with delegated authority to end the direct interaction between ATIP officials and the Minister’s Office”).

Review of requests by PWGSC senior management

During the time period under investigation, access and consultation requests designated as “interesting” or “high profile” during weekly access meetings underwent a review process by senior management, occasionally referred to by departmental witnesses as the “purple folder process.” This term stemmed from the colour of the file folder on which the Notice of Release or Notice of Reply was attached and in which the responsive records and the proposed response letter to requesters were contained.

The Notice of Release or Notice of Reply read as follows:

Access to Information Request – Interesting – High Profile:

• 1) Enclosed, for your information, is a copy of the proposed letter of final reply along with the records.
• 2) Please review the document to ensure that you are aware of and prepared for any potential impact on the Department that may result from the disclosure of this material.
• 3) Note that the ATIP Directorate intends to respond to this request 6 working days after the date of this notice”.^{Footnote 4} [emphasis original]

In the middle of the notice, the ATIP Directorate set out its decision regarding disclosure of the requested records, in a section titled “ATIP Directorate’s decision on the disclosure of records.”

For the requests identified for review, once the ATIP Directorate completed the notice and signed it to indicate its decision to release the information, the folder was sent to the appropriate Assistant Deputy Minister (OPI) for his or her signature. From there, a representative from the Deputy Minister’s Office signed the form. Lastly, the folder was sent to a representative from the Minister’s Office for signature. Obtaining signatures confirmed that the various levels of review were aware of forthcoming disclosures and could prepare themselves accordingly.

Since as early as 1995, representatives from the Deputy Minister’s Office and Minister’s Office were involved in the process of signing notices for the requests identified for review. The ATIP Directorate would await their signatures before releasing the requested information. It did so even though it had the delegated authority to release information without these signatures.

Minister’s office signature on a Notice of Release or Notice of Reply

PWGSC officials testified that both before Minister Paradis’ arrival as PWGSC Minister and during his time there, they could not recall a single instance when information was disclosed before obtaining a signature from the Minister’s Office.

The departmental officials interviewed as part of the investigation testified that awaiting a signature on the Notice of Release or Notice of Reply by the Minister’s Office is what led to delays in releasing information. Officials reported that the ATIP Directorate would not release information until a signature from the Minister’s Office was obtained, even when doing so resulted in PWGSC failing to comply with its zero-tolerance policy that was implemented to minimize delays. The documentary evidence obtained in the course of this investigation shows that information was released only after the Minister’s Office signed the Notice of Release or Notice of Reply, which one official described as “the blessing.” [translation] Obtaining a signature was considered as an approval of sorts for information to be released.

For their part, ministerial staff members testified that they could not recall any situation in which information was released before the Minister’s Office signed the Notice of Release or Notice of Reply. One ministerial staff member stated, “I’m not aware of a situation where they [the ATIP Directorate] would have released something without the Minister’s Office knowing about it.”

Senior departmental officials and ATIP officials who were interviewed agreed that the Notice of Release or Notice of Reply served as an informational document only.

Both the Director of Parliamentary Affairs and the Special Assistant in the Minister’s Office agreed that the notices were not a solicitation for input from the Minister’s Office or designed to solicit their questions about the ATIP Directorate’s decision to release information. However, the Director of Parliamentary Affairs testified that it was his understanding that signing the notices was “to approve the release of the access to information request.” When questioned further about this statement, he explained that the process of obtaining a signature on the notices “was here when I started.” Ministerial staff members later confirmed the Director of Parliamentary Affairs’ statement by indicating that requiring signatures on the notices indicated that the Minister’s Office was called upon by the department to “approve” the release, and that this was a pre-existing system created and operated by the department.

PWGSC’s zero-tolerance policy or practice

In July 2008, what was commonly called the “zero-tolerance policy” was implemented at PWGSC to minimize delays in releasing information reviewed by all levels of senior management. The policy, which was communicated in the Notice of Release or Notice of Reply, required that information be released six working days after the date of the notice. In practical terms, this meant that each level of senior management had two working days to review the information and to sign the notice. The information was to be released within six working days, even if the time had expired to obtain all the signatures.

In the course of this investigation, witnesses questioned whether the zero-tolerance policy was in fact a “policy.” One departmental witness testified that the zero-tolerance policy was more of a departmental “practice” to disclose information six working days after the ATIP Directorate signed the notice. This same official testified that he had never actually seen the policy. His testimony reflects the evidence given by another senior official, who stated being unaware that such a policy existed during the period of time under investigation. Our office requested a copy of the zero-tolerance policy to confirm its existence.

On June 23, 2011, PWGSC informed us that “no such document exists.”^{Footnote 5}

The zero-tolerance policy was to have been formally implemented in 2008 in response to the OIC report card on PWGSC, published in our special report to Parliament, 2007–2008 Report Cards on Systemic Issues Affecting Access to Information in Canada. PWGSC’s action plan identified procedures that were intended to ensure no delays would occur in the processing of requests identified for review. The zero-tolerance policy was also to be incorporated in PWGSC’s policy on ATIP in March 2009 and is reflected in the wording of the Notice of Release or Notice of Reply.

The evidence shows that the zero-tolerance policy was not always followed at PWGSC. Of the five files that were investigated in more detail (summaries), four responses were not released on time by the ATIP Directorate because the Notice of Release or Notice of Reply had not been signed by all levels of review within the six days mandated by PWGSC’s zero-tolerance policy. One notice was signed late by the Deputy Minister’s Office and the four other files were signed late by the Minister’s Office.

The evidence also shows that in instances in which the file under review was returned to the ATIP Directorate with the Notice of Release or Notice of Reply duly signed, the Directorate still did not release the requested information when an issue raised by the Minister’s Office had not been resolved. In four of the files that were investigated, the ATIP Directorate released the information only after an issue with the Minister’s Office was resolved, even though the Notice of Release or Notice of Reply had already been signed and returned to the ATIP Directorate. This delayed the responses to requests, even though the ATIP Directorate had already decided that the information should be released (see “ATIP Directorate’s approach to dealing with ministerial staff members on access-related matters”).

Monitoring of access and consultation requests in the review process

During the time period under investigation, the ATIP Directorate conducted regular follow-ups of access and consultation requests that were part of the review process. Several mechanisms were in place to disclose the information to the requester six working days after the date of the Notice of Release or Notice of Reply, including the preparation of weekly status reports tracking the location of files in the review process. These reports, which indicated the location of files at each stage of the review process, were electronically distributed to ATIP officials, departmental senior managers, members of the Minister’s staff and others.

Another monitoring mechanism was the weekly access meeting during which ATIP officials conducted verbal follow-ups of files in the review process. In addition, ATIP officials contacted departmental officials by phone and email to locate files in the review process. The documentary evidence shows that the ATIP Directorate conducted regular follow-ups of access and consultation files in the review process.