2014 Letter to the President of the Treasury Board on Action Plan 2.0

November 5, 2014

The Honourable Tony Clement, P.C., M.P.
President of the Treasury Board and
Minister for the Federal Economic
Development Initiative for Northern Ontario
140 O’Connor Street
Ottawa, Ontario  K1A 0R5

 

Dear Minister:

I am writing to provide you with my perspective on the Government of Canada’s draft Action Plan 2.0 (the Plan) for the Open Government Partnership initiative (OGP).

First, let me congratulate you as the lead Minister on this initiative, and the Government of Canada, for embracing the global open government movement to broaden access to data and information, ensure transparency and accountability, and strengthen citizen engagement in the activities of government and in our democratic process. It is promising to see that Canada is taking on a leadership role, both nationally and internationally, on the development of Open Data. The Plan tackles key Open Data issues by committing to deliverables on digital literacy, data commercialization, and the sharing of open data across jurisdictions. These are commendable commitments on Open Data.

However, I remain of the view that the current commitments in your Plan will not achieve the stated objectives of the Government to effect a fundamental change in government culture, one that will drive the release of federal information and foster transparency, accountability and citizen engagement. Let me explain.

1. The Directive on Open Government and the Access to Information Act

The Plan states that the Directive on Open Government (the Directive) will provide the foundational support for each of the commitments of the Plan,^{Footnote 1} which fall under the three streams of Open Data, Open Information, and Open Dialogue. As noted in the Plan, the Directive is a “mandatory policy requiring federal government departments and agencies to maximize the release of data and information of business value^{Footnote 2} subject to applicable restrictions related to privacy, confidentiality and security. Eligible data and information will be released in standardized, open formats, free of charge" [emphasis added].^{Footnote 3}

This key commitment to create a government culture that is "Open by Default" is indeed an ambitious and laudable commitment for the Government of Canada. Unfortunately, the parameters of what would qualify as eligible information and data, i.e. information and data that would not need to be protected from disclosure for privacy, confidentiality and security reasons, are found mostly in the antiquated Access to Information Act (the Act).^{Footnote 4}

The exemptions and exclusions regime found in the Act is overly broad and is not subject to universal injury tests and public interest override. Hence, it is my view that without a modern access law to base these parameters on, the Government will not effect a change in government culture that will drive the release of federal information and foster transparency, accountability and citizen engagement.

At best, the Government will achieve proactive disclosure of the information that it wants to disclose, but it will not achieve proactive disclosure of information that it ought to disclose in order to achieve the open government objectives.

Consequently, an essential foundational commitment to achieve a meaningful "Open by Default" culture in the Government of Canada is to modernize the Act.

Recommendation #1: That the Government of Canada commit to modernizing the Access to Information Act, in line with the principle of “open by default” and the most progressive national and international standards.

2. The Directive on Open Government and Information Management

The Directive on Open Government correctly indicates that “strong information management practices are the cornerstone of the Government of Canada's open government activities. These practices increase efficiency, reduce costs, improve services, safeguard personal, classified and confidential information, and ensure the availability of high-quality, authoritative information, ultimately enabling departments to be more responsive and accountable to Canadians.”^{Footnote 5}

As the Directive that is ultimately the tool that establishes “Open by Default” information practices in the Government of Canada, it is imperative that the Directive be as strong as possible. In my view, as currently drafted, the Directive is good, but not adequate for the electronic records age.

In a digital environment, unprecedented volumes of information are being generated, which present great challenges for government institutions to organize and manage their information holdings effectively.

At the same time, there is a lack of clarity about the difference between a record of business value and a transitory record^{Footnote 6}. During our investigation into instant messaging^{Footnote 7}, it was the view of the government that non-email text-based messaging services such as pin-to-pin are a means of informal communication that are transitory in nature. However, we found that instant messaging was permitted to be used to transmit information of business value.

Recommendation #2.1: That the Government of Canada provide more guidance and training on information management to public servants, including on what records are transitory and of business value.

Over the past two fiscal years, my office has seen an increase in the number of complaints received about missing records (+51-percent from 2011-2012 to 2012-2013 and +66-percent from 2012-2013 to 2013-2014). For missing records complaints completed with finding in 2013-2014, 51-percent were well founded compared to 29-percent in 2012-2013.

Open government relies on recorded information. Therefore, in order to ensure the availability of high-quality and authoritative information which will enable federal institutions to be more responsive and accountable to Canadians, the Plan must ensure that relevant records are being created and retained.

There is currently no federal statute or regulation that sets out a comprehensive and enforceable legal duty to create records documenting decision-making processes, procedures or transactions. Existing federal policy instruments set out general requirements for ensuring government officials document decisions and decision-making processes.^{Footnote 8} However, these are not currently codified in law. The Library and Archives Act does speak to the retention and disposition of records but does not impose an obligation on government officials to document their decisions and how they are made. Other laws require that only certain types of records be prepared and maintained.^{Footnote 9}

The increase in missing records complaints, reports from other information commissioners^{Footnote 10} in Canada and my investigation into instant messaging demonstrated the need for a comprehensive legal duty to document decisions made by federal government institutions, with appropriate sanctions for non-compliance. Without a legislated duty, there is a risk in the instant messaging environment that not all valuable business information is being recorded.

Recommendation #2.2: That the Government of Canada commit to legislate a comprehensive duty to document decisions made by federal government institutions, with appropriate sanctions for non-compliance.

Following the results of my special investigation on the use of instant messaging to transmit government information,^{Footnote 11} it is clear that some electronic information of business value is at real risk of being lost. There is no acceptable rationale that explains why the government is willing to take this risk.

In my view, it is essential that the Government of Canada take further steps to ensure that the use of new technologies to transmit information of business value is well managed and that strong information management practices are in place within each institution.

To accomplish this, I recommend that the Government of Canada study the example of the United States, where the National Archives and Records Agency (the NARA) has piloted measures to better manage electronic information, including instant messages and emails.

This automated electronic information management tool, called “Capstone” identifies key employees or office holders and retains all of their emails and instant messages on the basis that these individuals are most likely to create information of business value. This approach reduces the burden of electronic records management on the end-user and the risk of unauthorized destruction of those records.

Recommendation #2.3: That the Government of Canada commit to study and implement electronic information management tools available to ensure that emails and instant messages of key officials are preserved.

The removal of restrictions on government records is another way to improve access to records. Both the Directive and the Plan speak to the removal of access restrictions or the declassification of departmental information resources of enduring value prior to transfer to Library and Archives Canada (LAC) or as it occurs within LAC. However, the Directive and the Plan do not speak of a systematic review and the implementation of a declassification process for its government records of enduring value.

Responding to requests for access to information about international affairs, national security and defence requires the balancing of the public’s right to information necessary to hold the government to account with the need to protect records that could injure international relations and national security. This balancing exercise is complex.

In a 2011 decision^{Footnote 12} the Federal Court observed that: “Perhaps, if Canada proceeded as other democracies do, with a declassification process of dated records, many of these issues would arise in a more limited context.” The Court noted that such a process could reduce the complexity of requests for information, particularly in the context of national security matters.

I recommend that the Government of Canada commit in its Plan to systematically declassify records of enduring value and transfer eligible records to LAC for public access. This will give Canadians the opportunity to better understand the rationale of decisions that were taken by their government.

Recommendation #2.4: That the Government of Canada implement a systematic declassification process for government records.

The Act does not to apply to confidences of the Queen’s Privy Council for Canada, which includes Cabinet records and records of Cabinet committees. The exclusion does not apply to records that are more than 20 years old. After that period, an access request can be made to obtain these records.

The Privy Council Office used to systematically review Cabinet Confidences that were more than 30 years old in order to declassify them and transfer eligible records to LAC for access by the public. It has been reported that this process has stopped and that there is now a backlog in the Privy Council Office of these records.

Given the principle that high-quality information be open by default and the time limitation in the Act, I recommend that the Government proactively declassify Cabinet Confidences after 20 years^{Footnote 13}.

Recommendation #2.5: That the Government of Canada declassify Cabinet confidences after 20 years.

3. The Draft Action Plan 2.0 and technology

New technologies are fundamentally changing how governments serve the public in a more cost effective, transparent, accountable and responsive way. This raises expectations for e-enabled and easy-to-access government services at Canadians’ fingertips^{Footnote 14}.   

While I commend the Government of Canada for piloting an online, centralised platform for making access requests,^{Footnote 15} and committing to develop standardized, whole-of-government services and solutions to expedite ATIP requests in the Plan, more can be done to take advantage of new technologies and improve administration of the Access to Information Act.

The deployment of advanced technologies in other jurisdictions warrants examination. For example, Mexico’s InfoMex represents a one stop approach that incorporates requesting information, receiving responses and initiating complaints with the oversight body.

In Canada, more and more jurisdictions publish proactively similar information.

As such, I recommend that the Government of Canada work with my office to add an online complaints feature to the current platform. This process should seamlessly integrate with the request portal while at the same time preserve the independence of my Office and the confidentiality of complainants.

Recommendation #3.1: That the Government of Canada add to its online platform a feature for making complaints to the Office of the Information Commissioner.

In the Plan, the Government of Canada is committing to work with provinces to pilot a federated search for open data to provide a cross-Canada search of governments’ open data portals. This will provide citizens with a useful tool to search for and obtain data on cross-cutting issues such as health and the environment.

In the field of access to information, similar tools exist. For example, the Mexican portal InfoMex is linked electronically to systems within the federated states which permits public access to a central, searchable repository of all access requests and responses.

I recommend that a similar approach be taken in Canada for access to information where access requests and disclosure logs from the federal government, provinces and territories can be linked and searched.

This would be in-line with an integrated open government approach, and is also a way to leverage and connect the Completed Access to Information Requests database, which was created during the first two years of Canada’s OGP membership, to the commitments being established in the Action Plan 2.0.

Recommendation #3.2: That the Government of Canada work with other governments at all levels to link their access to information systems together and allow for centralized searches.

4. Integrated vision for open government

As noted earlier, I acknowledge some of the positive aspects of the Plan. I believe that the Government is heading in the right direction with its open data commitments such as creating an open data exchange and a pan-Canadian data service. I also note that these commitments are being met with positive feedback from the open data community.

I am of the view, however, that in its current form, the Plan lacks a broader, integrated vision that will allow it to be truly transformative. Without this integrated vision, we will continue to see individual departments acting in ways that are inconsistent with the purpose of open government.

Open government and transparency is not just about identifying government information that should be proactively disclosed in an open format. The overall purpose of open government is to make governments more transparent, accountable, and responsive to citizens. 

In order to realize profound and enduring effects across all of government for the benefit of Canadians, the Government’s Plan must ensure that all systems, policy instruments, directives, training, staff and most importantly culture, align with open government’s purposes. Doing so will enable Canadians to better evaluate the decision-making and actions of their government.

Pursuant to the Directive, departmental information management senior officials are responsible for overseeing the implementation and monitoring of the Directive in their department, in collaboration with key stakeholders, including heads of communications, chief information officers (CIOs), departmental security officers (DSOs), data owners, functional specialists, and access to information and privacy coordinators.

However, the designated official to carry on these responsibilities would not have a role in overseeing the implementation of all policies that are intrinsically connected to open government such as communications, information management and access to information, and would therefore have limited ability to raise awareness on how to implement open government values and access to information requirements in day to day operations.

I believe that creating the position of Chief Open Government Officer within institutions with the responsibilities over the full range of related policies, including access to information, will allow the Government of Canada to be better equipped to implement an integrated vision.

Recommendation #4.1: That the Government of Canada establish Chief Open Government Officers within institutions that will implement an integrated vision for open government.

The Plan notes that “the Directive will support broader accountability and transparency, ensuring that open government requirements are considered in the development and implementation of all federal programs and services”.

Key to achieving this goal is to develop an open government lens that could be included in Memoranda to Cabinet when proposals are presented to Cabinet on policies, programs, initiatives and legislative proposals.

For example, in recent years, there has been a growth in the number of laws tabled in Parliament that contain language that is intended to supersede the Access to Information Act.  It is my experience that in most instances, these provisions are unnecessarily affecting the general right of access to government information and are overly complicating the application of the Act. As a result, they are negatively affecting the transparency agenda of the Government. With an open government lens, the need for such limitations would have to be demonstrated.

Recommendation #4.2: That the Government of Canada create an open government lens that will be used in the design and implementation of policies, programs, initiative and legislative proposals.

Since 1999-2000, the proportion of requests where all information was disclosed has fallen from 40.5-percent to 21.6-percent in 2012-2013, despite the Act not changing substantially during this period. This seems to indicate that the current culture within government is focused on how to use the Act as a shield to prevent disclosure, rather than using it as a tool in favour of disclosure.

I recommend that the Government of Canada commit to implementing training that is in keeping with the integrated vision of open by default. This means that the training must convey that the exceptions in the Act should be limited and specific and that the exercise of discretion be done in favour of maximizing disclosure.

Recommendation #4.3: That the Government of Canada provide training to ensure that all government employees under the Access to Information Act interpret the Act in favour of maximum disclosure.

A key source of information to measure institutional performance in responding to ATIP requests is statistics annually published on the Info Source website. Currently, these statistics are usually published nine months after the reporting period has closed. By this time, the statistics are often out of date and may not reflect the current realities within institutions.

As a way to more accurately track and measure institutional performance, I recommend the Action Plan 2.0 include a commitment that these statistics will be published on a more frequent basis in order to maximize the use and currency of them.

This is the approach taken by leading open government countries such as the United Kingdom,^{Footnote 16} which publishes FOIA statistics on a quarterly basis and no longer than 3-4 months following the end of the reporting period.

Recommendation #4.4: That the Government of Canada report statistics on the administration of the Access to Information Act on a quarterly basis, in a easy to re-use format.

Increasing performance accountability is a priority for this Government, as stated in the 2013 Speech from the Throne. Therefore, a lot of effort is made to improve performance and productivity within the public service while providing better service to Canadians, at a reduced cost.

Canadians expect to be able to access information when they need it. The Act requires that all requests be responded to within 30 days, with possibility of extension in specific circumstances. Therefore, when access to information is delayed, Canadians are in effect denied their right to know.

My office has received a growing number of complaints about delays over the last few years which signals that institutions are struggling with their basic responsibilities under the Act.

As timeliness is an important measure of compliance with the Act, I have recommended in the past a number of administrative solutions to improve response times to access requests made under the Act.

In a letter dated April 25, 2014,^{Footnote 17} I recommended that federal institutions set clear access to information performance targets in their Report on Plan and Priorities and report back in the Departmental Performance Reports.

I suggested that a target for timeliness should be that at least 75-percent of requests be responded to within 30 days.

Recommendation #4.5: That the Government of Canada commit to increasing compliance with the Access to Information Act by setting specific performance targets to improve timeliness.

It is my experience that the commitment of institutions towards the principles of transparency and accountability and the leadership exercised by the higher echelon of an organization are the most important ingredients for success in complying with the Act. 

As a result, I also recommended^{Footnote 18} that the performance agreements for the deputy head of a government institution should include specific performance targets such as the one proposed under Recommendation 4.5 as well as requirements to comply with the obligations of the Act (including in the resolution of complaints).

Recommendation #4.6: That the Government of Canada include in all deputy heads’ performance accord a requirement to meet performance targets and to comply with the obligations of Act.

One open government principle is to release data in open formats wherever possible and to release data in a way that helps all people to obtain and re-use it. This principle has not fully translated to access to information, even though the Act requires institutions to provide records in the format requested. My office has received complaints from requesters because government institutions have refused to release documents in electronic form, let alone open format.

Recommendation #4.7: That the Government of Canada release records to access to information requesters in accordance with the principles of Open Government

Over the last few years, there have been a growing number of requests made to government institutions as well as complaints received by my office. Historically, there has been a shortage of ATIP professionals throughout the public service. The Government cannot truly achieve the goals of open government if there are not sufficient professionals to respond to the demand.

I recommend that the Plan include a commitment to sufficiently resource access to information and privacy professionals. The Government of Canada must also take a leading role in the recruitment, staffing and retention of properly trained ATIP professionals.

Recommendation #4.8: That the Government of Canada support access to information and privacy professionals by providing sufficient resources and taking a leading role in the recruitment, staffing and retention of ATIP professionals.

In conclusion, I would like to close with commending the government on making open government a priority on its agenda, but at the same time encourage it to be more ambitious with its commitments and to take on a broader vision. As noted in the OGP’s Four Year Strategy^{Footnote 19}, action plans with less ambitious commitments run the risk of undermining the OGP’s credibility and ability to tackle truly relevant challenges in favour of citizens.

It is my belief that implementing these recommendations will ensure that the Government of Canada is making “stretch” commitments in its Action Plan 2.0 and will help toward achieving a change in government culture that support true openness and accountability.

I look forward to collaborating with you and your officials on this initiative.

Suzanne Legault
Information Commissioner of Canada

c.c. Yaprak Baltacıoğlu, Secretary of the Treasury Board of Canada

 

List of recommendations

Recommendation #1: That the Government of Canada commit to modernizing the Access to Information Act, in line with the principle of “open by default” and the most progressive national and international standards.

Recommendation #2.1: That the Government of Canada provide more guidance and training on information management to public servants, including on what records are transitory and of business value.

Recommendation #2.2: That the Government of Canada commit to legislate a comprehensive duty to document decisions made by federal government institutions, with appropriate sanctions for non-compliance.

Recommendation #2.3: That the Government of Canada commit to study and implement electronic information management tools available to ensure that emails and instant messages of key officials are preserved.

Recommendation #2.4: That the Government of Canada implement a systematic declassification process for government records.

Recommendation #2.5: That the Government of Canada declassify Cabinet confidences after 20 years.

Recommendation #3.1: That the Government of Canada add to its online platform a feature for making complaints to the Office of the Information Commissioner.

Recommendation #3.2: That the Government of Canada work with other governments at all levels to link their access to information systems together and allow for centralized searches.

Recommendation #4.1: That the Government of Canada establish Chief Open Government Officers within institutions that will implement an integrated vision for open government.

Recommendation #4.2: That the Government of Canada create an open government lens that will be used in the design and implementation of policies, programs, initiative and legislative proposals.

Recommendation #4.3: That the Government of Canada provide training to ensure that all government employees under the Access to Information Act interpret the Act in favour of maximum disclosure.

Recommendation #4.4: That the Government of Canada report statistics on the administration of the Access to Information Act on a quarterly basis, in a easy to re-use format.

Recommendation #4.5: That the Government of Canada commit to increasing compliance with the Access to Information Act by setting specific performance targets to improve timeliness.

Recommendation #4.6: That the Government of Canada include in all deputy heads’ performance accord a requirement to meet performance targets and to comply with the obligations of Act.

Recommendation #4.7: That the Government of Canada release records to access to information requesters in accordance with the principles of Open Government

Recommendation #4.8: That the Government of Canada support access to information and privacy professionals by providing sufficient resources and taking a leading role in the recruitment, staffing and retention of ATIP professionals.