2014 Letter to the President of the Treasury Board on improving the performance of the access to information system

April 25, 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:

During our last discussion on Tuesday, October 15th, 2013, I provided you with a number of recommendations on ways to improve the performance of the federal access to information system.

Since that date, I have continued to reflect on how to enhance compliance with the Access to Information Act (the Act). I have met with representatives of the federal institutions that receive the most access to information requests and/or generate the most complaints (commonly called the “Top 20 institutions”). I have also benefitted from an analysis of the 2012-2013 InfoSource Access to Information Statistical Report (InfoSource Report), published in December 2013. Finally, I have reviewed and provided comments to the Secretary of the Treasury Board on March 11, 2014, on the draft Policy on Access to Information (copy attached).

Thus, the purpose of this letter is to recap the key points I made to you during our last meeting, which now also include the additional insights I have gathered over the last six months.

• 1) Top 20 institutions

In my last annual report, I raised serious concerns about the state of the access to information system based on the number of complaints received at my Office in 2012-2013.  Since that time, my Office has continued to see the number of complaints grow. At the end of 2013-2014, complaints had increased by 30% over 2012-2013.

As a result, in addition to our investigations we are focussing our attention on the Top 20 institutions (see list attached). Together, these institutions represent roughly 90% of all requests received in any given year across the entire federal government.

I am of the view that in order to considerably improve the government’s performance in access to information these institutions should be the focus of a proactive intervention by the government. A strong performance from these institutions in terms of timeliness and disclosure will have a positive impact on the system overall.

The 2012-2013 InfoSource Report shows that institutions have generally been able to absorb the 27% increase in the number of requests received during that period.  I was pleased to see that the overall performance of institutions has improved during the review period in terms of the number of requests responded to within 30 days (64.8%). This improvement is largely due to Citizenship and Immigration and the Canadian Border Services Agency. In terms of the disclosure rate where all information is released, the performance of institutions is very similar (21.6%) to the year before (21.2%), and remains far from the 40.5% achieved in 1999-2000.

Since the InfoSource Report and my Office’s complaint information as reported in our 2012-2013 Annual Report seemed to be at odds, my Office performed a more in-depth assessment of the top 20 institutions’ performance based on the 2012-2013 InfoSource Report, their annual reports to Parliament on the Administration of the Access to Information Act, extension notices^{Footnote 1} and our complaint information. This assessment will be included in my next annual report scheduled to be tabled in June 2014.

Overall, I found that the access to information system continues to be very fragile and the performance of institutions is often volatile over a period of time.

One of the main reasons for this situation is that the current performance indicators do not effectively address performance deficits. When ATIP governance was removed from the Management Accountability Framework, I recommended to the Secretary of Treasury Board a number of reporting mechanisms that we have found to be effective in improving the individual performance of institutions. These included recommendations for the heads of government institutions, for the member of the executive responsible for the administration of access to information functions and for all other members of the executive.

For the heads of government institutions, I proposed that a more precise performance matrix with specific targets should be developed. For example, I suggested that heads of institutions should set a targeted performance level for access to information operations in their Report on Plans and Priorities. For instance, the target for timeliness should be that 75% of requests are responded to within 30 days. Institutions should also be required to report on their performance in their Departmental Performance Report. Another suggestion was for the head of the institution to create an “ATIP Champion”,^{Footnote 2} a position similar to the official languages or values and ethics champions, at a senior position within each federal institution. This person would oversee the implementation of the Act and ATIP policies as well as promoting the letter and the spirit of the law within their institution.

For the member of the executive that is responsible for access to information functions in that institution, I suggested that compliance with the administration of the Act and the resolution of complaints should be included in their performance agreement.

Finally, for all other members of the executive, I suggested that their performance agreements should contain a requirement to provide timely, accurate and complete responses when tasked for records by ATIP professionals within their institutions. Delays are often caused by institutions prioritizing other tasks over their legal obligations under the Act. This results in Offices of Primary Interest (OPIs) being late in providing records to ATIP units. It was my recommendation that should executives be delinquent in fulfilling their obligations, their performance pay should be affected.

• 2) Workload and capacity issues

There is currently a shortage of specialized ATIP professionals in the public service. A common complaint from coordinators is that staffing processes produce no net gain for the system overall, as institutions often take ATIP professionals from one another. I recommend that TBS take a leadership approach in centralizing staffing and creating prequalified pools of ATIP professionals.

When sudden increases in access requests occur as a result of unexpected events, ATIP units are quickly overwhelmed and incapable of responding to requests in a timely manner. When institutions suffer a surge of requests, TBS should work with these institutions to ensure Canadians get access to records as expeditiously as possible.

I recommend creating an emergency response team made up of experienced professionals. Such a team could be rapidly deployed to less nimble institutions, such as small institutions that have extremely limited capacity to respond to such increases.  During a recent meeting organized by my Office with ATIP coordinators, it was noted that institutional requirements for security clearances may be an issue that could have an impact on the rapidity of deployment. This issue will need to be addressed at the outset.

Further, when an issue of general public interest arises, such as the Lac-Megantic catastrophe, institutions responsible for managing and responding to such issues should proactively release information as soon as possible about their role, the status of any response to the issue, as well as any other existing information that might be of interest to the public. Proactive communication measures may reduce the impact of such events on the access to information system.

• 3) Fees

I also suggest that institutions should stop charging fees for electronic records until the matter currently before the Federal Court is resolved. This would avoid unnecessary complaints and hence, have a positive impact on the workload for all involved.

• 4) Cooperation

Cooperation with my Office and agreement with my Office’s recommendations, unless there is a substantive disagreement with the interpretation of a provision of the Act, are key for resolving matters. Issues such as providing commitment dates, respecting these dates and following timelines for providing representations are essential for the functioning of the access regime. This has become an issue of particular significance as reported in my most recent annual report. Ultimately, this results in a waste of taxpayers’ money and an increase in inefficiencies in the system.

• 5) Leadership

Finally, I urge you, as well as deputy heads, to take a strong leadership position with regards to compliance with the Act, both administratively and also in terms of its spirit and intent. It is my experience from our report cards exercise that strong leadership makes a difference within institutions.

In this context, although I have met with several deputy heads already, I will undertake to meet with each deputy head of all of the Top 20 institutions to discuss specific issues within their institutions and suggest the adoption of, or seek support for the above recommendations.

I commend the government for being an advocate of open data. However, if the government is to become a leader on open government, it must provide equal attention to access to information issues. At present, this focus is lacking. I intend to participate in your recently announced consultation regarding Canada’s Action Plan on Open Government. My submissions will include further thoughts on the government’s commitments to open government, specifically with respect to access to information.
I wish to thank you for the time you have given me already to address the access to information system. I would also take this opportunity to thank you for increasing the number of investigators able to work on special delegation files. I look forward to working with you to make continual improvements.

Sincerely,

Suzanne Legault
Information Commissioner of Canada