2020-2021 Annual Report

Message from the Commissioner

This report highlights the work and dedication of the employees of the Office of the Information Commissioner (OIC) during the 12-month period of April 2020 to March 2021, summarizes the OIC’s efforts to ensure that Canadians’ right of access is fully respected and shares some observations regarding the state of the access to information regime.

The past year has brought significant changes to the way the OIC conducts investigations and carries out the other work that supports my mandate. The way my team adapted to these transformations demonstrated the resilience of the OIC’s workforce and the high calibre of the people who work in my office.

The pandemic forced the OIC to greatly expand the use of technology, ensuring health and safety measures were in place for those who were required to physically go to the office, and sharing information with employees to help them manage their health and safety at home and maintain their physical and mental health. Most importantly, it meant finding ways to continue to carry out the investigations that are at the core of our mandate in an environment where access to our physical premises was significantly curtailed for significant stretches of time. We were able to meet the objectives we had set for ourselves, while also concluding several systemic investigations that have become a catalyst for change within institutions. 

The year also brought welcome financial news: in August 2020, an OIC request that temporary funding it had received for four years be made permanent was approved by the Treasury Board of Canada. This ongoing funding in the amount of $3 million has been allocated to the OIC to ensure it can continue to effectively play its oversight function. Thanks to this permanent funding, the OIC will be able to maximize the effectiveness of its resources and the results it can achieve for Canadians.

In addition, through my submission to the review of the access to information regime, I highlighted a number of areas requiring leadership on the part of the government, including investing in human resources as well as technological innovation. I continue to stress, as I have for months, that there is an immediate need for concrete action, independent of the review process, to address the critical state of the system that changes to the Access to Information Act (the Act) alone cannot fix. As I stated in the early days of the pandemic, I believe that it is only by being fully transparent, and respecting good information management practices and the right of access, that the government can build an open and complete public record of decisions and actions taken during this extraordinary period in our history—one that will inform future public policy decisions. Without these actions, the government’s capacity to respond to access requests and provide the information that Canadians are seeking will continue to be restricted, putting at risk the quasi constitutional right of access to information.

Caroline Maynard
Information Commissioner of Canada

The systemic investigation into National Defence’s overall processing of access to information requests was instigated partially in response to serious allegations made during the pre-trial hearings of Vice-Admiral Mark Norman, along with findings that the OIC had made in an earlier investigation involving the Office of the Judge Advocate General.

In both cases, it was alleged that National Defence had inappropriately withheld information in response to a request. The concerns raised by these findings and allegations warranted immediate action and compelled the OIC to investigate further.

The Information Commissioner identified issues and shared her findings with the Minister of National Defence, who agreed that significant improvements were needed to ensure that National Defence was fully meeting its obligations under the Act. 

In response to the OIC’s recommendations, National Defence has initiated changes to improve its access to information processes, including the following:

• developing and implementing a standard operating procedure that clearly established criteria to ensure the original intent of the request is met;
• developing and maintaining a reference document list explaining the programs and mandate of each branch/program area, as well as key areas of interest;
• ensuring consultations and discussions are as efficient as possible by providing program areas with a reasonable, but specific, timeframe to respond to requests and consultations, and encouraging the use of face-to-face and teleconference discussions rather than emails and letters to facilitate consultations;
• exploring technological options and paperless systems that provide secure electronic transfer of records within National Defence’s classified systems to reduce the risk of lost or damaged records and facilitate information management;
• increasing communication and training for employees to help ensure program areas fully understand their responsibilities under the Act regarding obstruction and all employees who have access to information responsibilities as a primary and/or secondary duty have mandatory work objectives to comply with the Act.

The OIC launched an investigation into systemic issues regarding the inability of the Royal Canadian Mounted Police (RCMP) to provide timely responses to access requests. The OIC received numerous complaints indicating that the RCMP was consistently unable to meet statutory timeframes under the Act for responding to access requests.

The special report tabled in Parliament following this investigation details six issues of concern impacting the RCMP’S ability to respond to access requests in a timely manner. The report also provides 15 recommendations for tackling these issues effectively.

The RCMP reacted to the OIC’s call for leadership

So far, the investigation has resulted in the creation of a dedicated Information Technology team at the RCMP to look at technological solutions to ease the transition from using archaic records systems to becoming a paperless organization. The RCMP also created a Divisional Consultation Committee, with each division providing resources to ensure representation from all areas and regions of the organization.

Throughout the past year, the RCMP has been one of the leading government institutions in regards to responsiveness during the pandemic, based on the number of closed files and a backlog that has not grown. The RCMP is looking at ways to add resources and refine their overall processes, approval system, and digitizing and receiving information in a timelier manner. Both the RCMP Commissioner and Minister of Public Safety have reiterated their commitment to fully address the challenges that the investigation highlighted. The Information Commissioner is looking forward to the concrete results of these measures, and will continue to monitor this institution’s performance over the coming year.

The Information Commissioner initiated a complaint against Canadian Heritage (PCH) based on reports that the institution had suspended its processing of access requests as a result of the COVID-19 pandemic.

The investigation found that between March 16 and July 10, 2020, PCH did not meet its legal obligations related to access to information, which had not been suspended during the pandemic.

During that period, PCH’s Access to Information and Privacy Secretariat was not granted access to its work premises and was unable to access its network remotely. This created a backlog of 224 access requests.

The investigation had an impact on PCH

The Minister of Canadian Heritage assured the OIC that although “difficult choices” had to be made in the early days of the pandemic, PCH was committed to providing Canadians with access to information at all times and that measures have been put in place to ensure full compliance with the intent and spirit of the Act.

As a result of this investigation, PCH took action to meet its legal obligations and has worked towards addressing the backlog of requests stemming from its suspension of access to information operations. PCH has also posted its progress on its website.

In partnership with Shared Services Canada, PCH has also acquired a server with remote access to house all files classified at or below Protected B. The new server, along with all requisite software, allows its staff to respond to requests remotely.

In 2020–2021, the Information Commissioner concluded a systemic investigation she had initiated into Immigration, Refugees and Citizenship Canada (IRCC). The investigation looked at the processing of access to information requests to better understand and address the dramatic increase in requests IRCC received from April 1, 2017, to February 26, 2020, as well as in complaints registered by the OIC against IRCC. The OIC closed 2,601 IRCC complaints in 2020–2021, largely administrative complaints about late responses. In many instances, the OIC’s initial inquiries determined that IRCC had already responded to the access requests. Consequently, the OIC was able to quickly resolve the vast majority of the complaints.

While the investigation was completed during the 2020–2021 fiscal year, a special report on this investigation which provides recommendations to IRCC, was tabled later in May 2021. This special report highlights priorities on which the institution is invited to focus, including the need to transform the way in which it delivers information to its clients in order to decrease the need for access requests. 

IRCC is working towards a better immigration client experience

A few days after the OIC completed its investigation, IRCC sent to the Information Commissioner a plan detailing its commitments, with associated timelines, to address the issues raised in the investigation. The plan also highlights other access to information initiatives undertaken by various sectors of the institution.

The Commissioner is encouraged by IRCC’s positive reaction to her recommendations.

On the litigation front

Three applications are currently before the Federal Court where the Information Commissioner is appearing on behalf of the complainants. The applications seek disclosure by Health Canada of the second and third characters of postal codes and names of cities relating to those licensed to grow and use medical marijuana as of 2017.

Health Canada disclosed only the first character of postal codes, withholding all of the second and third characters and the names of cities as personal information. In investigations of complaints about Health Canada’s responses to access requests, the Commissioner found that additional characters of postal codes and additional names of cities could be released without disclosing personal information, as it would not render individuals identifiable. Since this information is not personal information, it must be severed from any exempt material and disclosed to the complainant. The Commissioner recommended that Health Canada disclose additional characters of postal codes and additional names of cities. Health Canada refused.

The parties’ written argument and evidence will be filed with the Court in the summer of 2021. A hearing is expected to occur in the fall of 2021. 

In January 2021, the Commissioner provided the President of the Treasury Board with a written submission pertaining to the review of the access to information regime launched in June 2020. The submission was in two parts, with the first outlining general observations on the state of the access regime and the second providing concrete solutions on how to improve the system without waiting for legislation changes. The submission synthesizes actions that can be taken now, to improve the system as a whole.

Over the course of the investigations conducted in 2020–2021, the OIC compiled additional observations related to vulnerabilities in Canada’s access regime. Some of these are a direct result of the pandemic. Others are long-standing issues that have only been exacerbated by the pandemic. These include the following:

• unresponsive offices of primary interest;
• deficiencies in infrastructure for processing requests; and
• units in charge of access to information under-resourced and overwhelmed with requests, resulting in delays.

The fact that government employees spent the year working remotely on a large scale, with limited access to physical files, protected information and other resources, curtailed much of the gathering of requested documents, and by extension, the ability of access to information teams to process requests and respond to complaints. The failure to adopt proper information management practices may have also resulted in some records that are of public interest never having been created in the first place, while documents not being sorted or organized properly may have led to a lack of relevant records.

The over-classification of documents created issues in certain institutions, resulting in documents being housed on secure servers and beyond the reach of employees working remotely. Had they been properly classified, these documents would have been more easily accessible.

The OIC also observed that the access to information system relies heavily on software that has not been updated for years and on bureaucratic processes that have not kept up with the times. Even before the pandemic and the widespread adoption of alternative work arrangements, chronic under-resourcing had created backlogs in responding to access requests that had grown year after year.

While there has been a slow improvement in the last year, there are still institutions where the network cannot manage the quantity of documents to be processed, forcing employees to work evenings, nights or weekends.

Another issue unique to the pandemic is how the new working arrangements for much of the public service have had an impact on documentation practices. Working remotely has necessitated the use of different tools, such as online meeting technology and instant messaging. There is concern that decisions are not being properly recorded when using these methods, raising questions as to how information is being managed, how it is stored, how it could be shared with others, and how it could be disclosed to Canadians.

In some institutions, non-essential staff had limited network access. This posed challenges for managing information and responding to access requests for this information. Some archaic practices, such as paper-based processes, became even more inefficient with restricted on-site access.

The pandemic has also jolted the process of adapting to technological advances, such as improving telework capacity for institutions and ATIP units across government. The use of electronic transmissions of documents, e-signatures and the shift from paper documents to electronic ones are all helping the access system. It should be noted that best practices are being shared across institutions through various interdepartmental networks, which should be encouraged and commended.

At the end of 2020–2021, most institutions were still negatively impacted by on-site restrictions and remote work. In fact, while some improved their capacity during the year, many institutions were still operating at limited capacity as of March 31, 2021.

Maintaining our operations

Investing in our resources

The OIC’s Professional Development Program (PDP), which was set up to enable career progression for investigators, was reconfigured and expanded to more junior levels this year. As investigators move through the program, they are assigned more complex files. The expanded PDP was launched on April 1, 2020, to enable career progression for investigators from the entry-level on up. Given the commitment to invest in our resources, staff received feedback, training and mentoring necessary to graduate from the program.

When the permanent funding for additional investigators that the Commissioner had been seeking since the start of her mandate was secured in August 2020, the OIC was able to move quickly to increase its overall staffing complement, in spite of the ongoing remote work arrangements and the overall limitations of running hiring processes during a pandemic.

Portfolio approach

This year, the Investigations and Governance Sector took the opportunity to further bolster the portfolio approach introduced prior to the pandemic. This approach consolidates the management of both administrative and refusal complaints within each of the teams, giving each directorate overall responsibility for dealing with all types of complaints against their assigned institutions.

The fully implemented portfolio approach, coupled with the PDP, allows an investigator to develop an understanding of the type of information a particular grouping of institutions produces, as well as the application of the Act to the records at issue.

Information Technology

With staff working remotely throughout the year, the OIC saw an immense increase in demand for network access. The sudden move to mostly electronic operations and investigations meant accelerating the introduction of online platforms, such as MS Teams and SharePoint to provide employees with the ability to share documents and collaborate in a virtual environment. This shift also required the testing and launching of videoconferencing software and the introduction of online surveys and training platforms. Chat platforms further enhanced the OIC’s ability to operate fully in a virtual space.

The measures introduced during this period, including all-electronic investigations (moving to a paperless environment and digitizing all steps of the investigation process), online collaboration, flexibility, working remotely and others will continue to be central to the OIC’s operations in the future.

Governance

In 2020–2021, the OIC implemented a new governance structure that formalizes how the OIC operates, based on the Commissioner’s priorities. For example, a new Web and Social Media Governance Committee now oversees the OIC’s intranet, internet and social media presence, with input from across the organization. The governance structure is also designed to permit the creation of new ad hoc bodies, as well as providing several forums for employee input and information sharing.

More than ever this past year, the well-being of the OIC’s employees has been front and centre as a priority for the Commissioner and her management team. While the Senior Management Committee meets weekly, an engaged executive cadre is also well represented and fully engaged in the work of the various corporate committees, including in the Workplace Health, Safety and Wellness Committee.

Finally, a new Departmental Results Framework has been developed and published to better reflect the Commissioner’s priorities. Set to come into effect in 2021–2022, it will also guide the development of key performance indicators and goals to achieve in investigations.

Focussing on the future

Beyond 2020

The year 2020–2021 saw the implementation of the OIC’s first business continuity plan (BCP) and the formation of the BCP Committee. Early in the pandemic, this committee met twice a week with the Commissioner and deputy commissioners to share information, respond to strategic direction, and put operational decisions into action, as well as report to central agencies on COVID-19 measures and the status of operations. In order to facilitate remote work arrangements and foresee the transition back to a “normal” post-pandemic work environment, the BCP Committee was eventually succeeded by Beyond 2020. This working group was tasked with developing the OIC’s vision for its workplace of the future, along with guiding principles that would help chart a course for the organization during the months to come.

During 2020–2021, Beyond 2020 helped ensure employees could work effectively at home by undertaking a survey of equipment needs. The group also issued a roadmap for the return to the workplace that set out several stages for the return and the requirements for each. The roadmap was shared with all staff, and followed up with communication from the Commissioner through a monthly virtual all-staff meeting, known as the Commissioner’s Hour.

Over time, the group increasingly turned its focus to setting a vision for the OIC of the future. The increase in hiring that the permanent funding afforded had already led the OIC to begin considering whether its existing office space could be renovated, or whether additional space would be required in the future. However, the ongoing success of remote work has changed the focus to what the OIC’s true needs are in terms of physical space and how it will conduct business in the future.

Supporting our team

The year 2020–2021 was the first of the new five-year strategic plan, introduced in the fall of 2020. The plan established a new vision and mission for the organization, along with five new values and three strategic pillars to guide the work of the organization over the next five years. With one of the pillars being “Invest in and support our resources,” the OIC carried out two surveys on employee mental health, in order to gauge how employees were managing to work at home; assess the kind of support they required; and hear their views on returning to the workplace.

The OIC also reviewed and updated its telework directive and its code of values and ethics, and introduced programs and services through providers such as the Ombudsperson for Mental Health. Through a Memorandum of Understanding with Health Canada, the OIC’s capability to pursue external investigations of harassment complaints or wrongdoing has increased.

A three-year program of activities and resources to support employee mental health is being updated in accordance with feedback garnered through staff surveys, with revised strategies and a detailed action plan to be launched in 2021–2022. The OIC will also be working to foster diversity and inclusion in the workplace, welcoming and valuing the contributions of women, Indigenous peoples, persons with disabilities, and members of racialized groups and LGBTQ2 communities.

Canada’s Access to Information Act came into force in 1983, permitting Canadians to retrieve information from government files. The Act established what information could be accessed and mandated timelines for response.

The Office of the Information Commissioner was established that same year to support the work of the Information Commissioner of Canada. The OIC carries out confidential investigations into complaints about government institutions’ handling of access requests, giving both complainants and institutions the opportunity to present their positions.

The OIC seeks to maximize compliance with the Act, using the full range of tools, activities and powers at the Commissioner’s disposal. These include negotiating with complainants and institutions without the need for formal investigations, and making recommendations and/or issuing order to resolve matters at the conclusion of investigations. The OIC also supports the Information Commissioner in her advisory role to Parliament and parliamentary committees on all matters pertaining to access to information. It also actively makes the case for greater freedom of information in Canada through targeted initiatives such as Right to Know Week and ongoing dialogue with Canadians, Parliament and government institutions.

The Commissioner is supported by a staff of approximately 135 employees led by three deputy commissioners responsible for investigations and governance, legal services and public affairs, and corporate services, strategic planning and transformation services.