Remarks during Right to Know Week
Access to Information Practitioners’ Meeting
by Suzanne Legault, Information Commissioner of Canada
September 27, 2016
Ottawa, Ontario
(Check against delivery)
Introduction
Thank you for inviting me to come and speak with you. As you know, a lot has happened over the past year and so I look forward to our discussions today.
I will start with providing an update on the investigative front, building on some of the issues and initiatives we discussed last year, and then I will outline some of the policy changes that are on the horizon. I will finish with a short overview of what we can expect in the coming months.
First, just a little update on the organization of the investigation team. Marc-André Bujold is its acting director, and he is part of the Complaints Resolution Team.
Like last year, I also want to bring you up to speed on the inventory of complaints. In early September 2016, there were 2,987 complaints in the inventory. The two largest categories are still Canada Revenue Agency files and special delegation files. The composition is identical to last year’s with almost 90% refusal files.
Updates on the Investigative Process
Following the court of appeal decision last year dealing with the reasonableness of extensions, we issued revised advisory notices on both paragraph 9(1)(a) and 9(1)(b) of the Act. In February, we began our pilot project to test a simplified process for delays and extensions complaints with eight institutions, the Canada Revenue Agency, CBSA, the Privy Council Office, National Defence, Health Canada, RCMP, Immigration and Refugee Canada, and Global Affairs. On July 18, we informed all federal institutions that the process was being rolled across all institutions.
As part of our effort to improve, we met with officials from most of the institutions involved in the pilots and obtained their feedback.
The following are some of the comments we received:
- In general, the institutions we met with recognize that the “Resolved” category allows many files to be closed, reducing the work required for both the institutions and the OIC. This disposition category is used when the complainant has or will be receiving the information at the preliminary stage of the investigation. Since the start of the fiscal year, 200 complaint files have been closed in this manner.
- You also told us that the portfolio approach had a number of advantages and should be maintained. This approach was implemented primarily for administrative files, and we intend to keep it.
- Lastly, you mentioned that you appreciated the elimination of the informal back-and-forth process between the OIC and the institutions.
In meeting with the institutions over the past few weeks, we also received some suggestions. They include:
- Re-organize the request forms and online ATIP system used in institutions to better reflect the steps to process a request.
- Provide investigators with access to the APCM (or its equivalent) so they have a better understanding of the ATIP workflow, including the status of a request and to help get information to help the investigation.
In the coming weeks, we will start to incorporate some of your suggestions and then we will test them with, among others, CBSA and CRA.
Some institutions have also told us that they are concerned with the formalized nature of forms – since they are equivalent to section 35 letter. I understand that this was a significant change in the process but it is, in my view, entirely appropriate for delay complaints, which need a quick resolution. What I like to do in these cases is to base my comments on the facts.
When we look at the number of administrative files closed between April 1 and September 16, 2016, and for the same period in 2015, I am very happy with the results. We were able to resolve and close more than a hundred more files this year than during the same period in 2015.
Among these 333 cases closed, we sent only one section 37 letter. In some cases, we must accept that my office and the institution will not always agree. It is, however, extremely important to keep the flow of communication open between the institutions and my office. Apart from that one file out of 333, we have been able to come to an agreement with the other institutions.
At the same time over this past year, we put a lot of emphasis on interest based mediation.
We try to understand exactly what the complainant is looking for, so we can work more effectively with the institution afterwards. This often allows us to reduce the scope of the request and the number of exemptions to be analyzed. A lot of our work is done with the complainant.
We have also set up a small SWAT team for contemporaneous files. I am personally involved in reviewing these files.
Once we receive the records, the OIC reviews the files. Where we see potential for a quick resolution, we try to address those files right away. This in turn helps to reduce the work for the institutions as well.
Policy update
On the policy side, at our last meeting, we noted the election of a new government with an open government by default agenda and the publication of mandate letters.
Since then, the government has been quite active on the transparency issue. There are still a number of initiatives to be monitored.
The mandate letters actually prioritize some amendments to the Act: conferring order powers on the Commissioner and extending the scope of the Act to ministers’ offices, administration of the courts and Parliament.
The minister announced publicly that the legislative process would involve two phases: one in 2016–2017 and the other in 2018.
In the meantime, the parliamentary committee has completed a comprehensive study of the Act and tabled a report in Parliament with numerous recommendations.
In its report, the ETHI Committee made 32 recommendations. Most notably, it urged the government to move forward with an important series of recommendations in the first phase including:
- Extending the scope of the Act.
- Establishing a legal duty to document with appropriate sanctions for non-compliance.
- Allowing institutions to refuse to process requests that are frivolous and vexatious.
- Providing information to requestors in an open, reusable and accessible format.
- Implementing time limited extensions.
- Abolishing the $5 fee – but reinstate fees for voluminous requests.
- Replacing all exclusions with exemptions.
- Implementing a public interest override with a non-exhaustive list of criteria.
- Adding a new provision for advice and recommendations.
- Amending the Cabinet confidence exclusion.
- Giving the commissioner order making power, with a ministerial veto in matters of national security, subject to judicial review.
The government also eliminated all fees except the $5 fee, and published its third action plan as part of the Open Government partnership. This third plan is included as part of its commitments to the modernization of the Access to Information Act.
These have been busy times indeed, but there is still much more to come in the coming months.
What to expect in the coming months
On the policy front:
- Response of the government to the ETHI Committee report expected during the week of October 17.
- The federal government's new legislative bill.
Litigation:
Fontaine et al. v. Canada (A.G.) et al. (SCC 37037)
This case may have repercussions on how the missing and murdered indigenous women’s inquiry is conducted. It will also impact some of our current investigations.
On August 6, 2014, Justice Paul Perell, in his role in supervising the administration of the Indian Residential Schools Settlement Agreement (IRSSA) determined that documents and, in particular, narratives of the abuse suffered by residential school survivors used in the adjudication of individual claims under the Independent Assessment Process (IAP) established by the IRSSA were not government records subject to federal legislation, including the Library and Archives of Canada Act, the Privacy Act or the Access to Information Act.
This matter was appealed. The Court of Appeal essentially agreed with Justice Perell’s decision.
On May 31, 2016, the Attorney General of Canada filed an application for leave to appeal to the Supreme Court of Canada. We are awaiting the decision on leave.
Information and Privacy Commissioner of Alberta v. The Board of Governors of the University of Calgary(SCC 36460)
As you know, in this case, the University of Alberta challenged the Alberta Commissioner’s ability to review records over which a claim of solicitor client privilege had been made. The courts at both first and second level agreed with the university’s position.
The Alberta Commissioner applied for, and was granted leave to appeal at the Supreme Court of Canada. The appeal was heard by the Supreme Court on April 1, 2016 and the matter is under reserve. All commissioners are intervening in this case.
We know that this exemption is regularly over applied. Without the ability to review the records, this exemption could become the next major loophole in our access laws.
Defence Construction v. UCANU (A-414-15)
Defence Construction Canada (DCC) wanted to raise an additional mandatory exemption under section 24 of the Act that incorporates by reference section 30 of the Defence Production Act (DPA). Section 30 of the DPA mandates that no information with respect to an individual business that has been obtained under or by virtue of the DPA, shall be disclosed without the consent of the person carrying on that business.
If validly raised, the exemption would serve to withhold all of the records at issue.
The Federal Court concluded that DCC was not entitled to rely on the additional statutory exemption to withhold the remaining records.
On September 23, 2015, the government filed its Notice of Appeal before the Federal Court of Appeal. On December 21, 2015, the Federal Court of Appeal granted the Commissioner intervenor status in the proceedings. The sole issue on appeal is whether the judge erred in refusing to allow DCC to rely on the additional mandatory exemption.
The Court of Appeal will assess whether an institution should be permitted to raise additional mandatory exemptions post-investigation.
The case will be heard in Ottawa on November 1, 2016 before the Federal Court of Appeal.
Long-Gun Registry litigation files
The May 2015 budget bill included provisions to erase retroactively the application of the Access to Information Act. It erased all administrative, civil, or criminal liability arising from any action, from any person, under the Act, back to the time when the Ending the Long Gun Registry Act was first tabled in Parliament. This was done at a time when we had referred evidence to the Attorney General of Canada of the possible commission of an offence under the Act. The evidence pointed to the destruction of records in the registry while an access to information request was validly made.
We quickly issued a Special Report to Parliament, filed an application for judicial review in the Federal Court (Information Commissioner of Canada v.Minister of Public Safety and Emergency Preparedness, T-785-15), and initiated a constitutional challenge in the Ontario Superior Court (Information Commissioner of Canada and Bill Clennett v. Attorney General of Canada et al., 15-64739). Meanwhile, the Federal Court ordered the production of the remaining records to be sealed and kept at the Federal Court. The Ontario Provincial Police did not investigate because, as they told us, there was no longer a criminal offence to investigate.
These litigation cases are being held in abeyance. Negotiations with the current government point to a resolution in the near future.
OIC investigations
- Continue new process for delays and extensions complaints
- Continue interest-based mediation
- Advisory notice on discretion
- Special delegation files
- Canada Post
- Cabinet confidences
- Code of Procedure
Conclusion
These are exciting times. 2016 is the year for transparency and access to information. This is, as you know, the Right to Know Week and tomorrow, September 28, 2016, has been traditionally recognized as International Right to Know Day. It has further been recognized by UNESCO as “International Day for the Universal Access to Information.”
2016 also marks the 250th anniversary of the world’s first freedom of information law, which was passed in Sweden and Finland in 1766. I am happy to be here today to celebrate these milestones with you.
Much lies ahead in what promises to be a very exciting year for access to information. With so much going on, there will be pressure on institutions and on the OIC.
We have consulted and worked with you to implement the changes to our processes outlined earlier. I thank you for your willingness to work with us on these changes, for your collaboration and your input. The results speak for themselves and are a collective reward of good work. Most importantly these efforts have resulted in a better administration of the Act, which in turn is a benefit to all Canadians.
The Prime Minister and Minister Brison are both demonstrating strong support for transparency. It is important that this direction is implemented into the day-to-day administration of the Access to Information Act.
A strong community of access to information professionals is a key component to an effective access to information regime. You are the front line of response. The government's commitment to transparency will be judged by your responses to requesters. You are the voice and the face of the government.
It is fitting therefore that I would end my presentation today by congratulating you for the efforts you are making on the timeliness front. There has been a significant increase in the number of access to information requests in the last few years. Nonetheless you are close to reaching a milestone in the percentage of requests responded to within 30 days.
I therefore challenge you to beat the record for the best performance in the history of the access to information regime at the federal level and get at least 70% of requests responded to within 30 days. I am confident that next year, we will be able to report on this record-breaking performance. This would be a great result for Canadians and their access to information rights. And this would be a great result for our democracy.