Taking stock of the past year at the OIC

Remarks at the ATIP Coordinators Meeting

by Suzanne Legault, Information Commissioner of Canada

September 26, 2017
Ottawa, Ontario

(Check against delivery)

Introduction

Good morning everyone.

Thank you for joining us in our celebration of Right to Know Week.

Right to Know Week gives us an opportunity each year to celebrate the work that we do in providing Canadians with access to government information.

It is also an opportunity to meet with you, to take stock of the past year, and to provide you with an update on things to come.

First, a quick update on the OIC organisation. We now have two Deputy Commissioners, Layla Michaud and Nancy Bélanger. Layla is responsible for investigations and governance. Nancy is my general counsel and is also responsible for parliamentary affairs, policy issues, and communications. Not so much a change in actual practice as we have been operating under this model for some time, but a recent confirmation of this order of things at the OIC.

Update on Investigations

In terms of administrative cases, we have continued to improve with comments received from various departments, our simplified process. This process is an unmitigated success.

In 2016-17, over 800 administrative complaints were processed. Of these 800 complaints, nearly 470 were resolved at the preliminary stage of the investigation. If you recall, the objectives of that strategy were to ensure that the information the complainant had the right to access was provided to him or her as quickly as possible, and that the resources of departments and the OIC were used effectively.

The results show that these two objectives were achieved. The development of this simplified investigative process is a good example of successful collaboration among departments and the Office of the Commissioner. So far this year, slightly more than 50% of our administrative complaints have been resolved at the preliminary stage of the investigation.

The median turnaround time for administrative cases is now 36 days, not 48.

In terms of refusal cases, we are also continuing the mediation process we launched collaboratively last year. There too, the increased effectiveness is undeniable, as are the tangible results.

The median turnaround time for a refusal case dropped from 166 to 70 days.

Last year, there were more meetings with deputy ministers, assistant deputy ministers and coordinators from various departments.

The purpose of those meetings was to better understand the department’s environment, to present our analysis of the situation, and to find potential options. All to improve collaboration and investigative effectiveness and thereby obtain better results for Canadians.

An excellent example of collaboration last year is the case involving Shared Services Canada. The President contacted me immediately to inform me that documents may have been destroyed at his institution. The resolution of this contentious case was greatly facilitated by the fact that the Office of the Commissioner was quickly notified of the case, and the fact that the coordinator worked collaboratively throughout the investigation.

I also had two meetings with the Canada Revenue Agency’s executive committee. During these meetings, I was able to share my perspective with senior managers on actual access to information management at the Agency.

Their workload, their challenges and the steps senior managers could take to resolve some of the Agency’s specific challenges. This also shows senior managers and coordinators that we often are well aware of the specific dynamics within some institutions.

Don’t forget, your applicants are our complainants.

Elsewhere, we recently saw that some departments are reluctant to provide our investigators with the information they require. We followed up in person with the officials of primary interest. After more than eight years as Commissioner, I can assure you that this reticence is never productive. As you know, we must complete investigations and we must take the steps required to do so. The more collaboration there is the quicker the turnaround time. Even in challenging cases, in fact particularly in challenging cases, collaboration is key to optimizing results for each party.

Maximizing the result for the complainant, minimizing the impact for the government in contentious cases, and optimizing the use of the Office of the Commissioner’s and departments’ resources.

If you are having trouble with the administration of your access unit, do not hesitate to involve your organizational leaders. They are there to assist you. The Prime Minister’s message is clear. He supports an open and transparent government. Your leaders are responsible for achieving that goal. Your leaders can work with us to move forward constructively.

However, our work is far from complete. There are still over 3,000 complaints in our inventory. Complaints continue to increase. The number of access requests in your institutions as well.

Here are some of the highlights of what lies ahead on the investigation front to address some of our challenges.

We have recently been informed that the OIC will receive some additional temporary funding again this year. You may have already been dealing with newly hired consultants from our Office. Many of the consultants were there last year so you should see some continuity.

There is also a competition for new investigators. We have received several hundred applications.

We are continuing with our ongoing training to ensure maximum consistency in our investigation process.

Next week, we have a full week of in-house training on national security files, for instance.

We are working on guidance documents in relation to subsection 10(2), section 20, and third party consultations, and how the OIC will deal with instances of multiple complaints from one complainant.

We will also work specifically with institutions who have received and F or a Red Alert in the most recent analysis of performance that was reported in my last annual report. Those institutions should expect a letter from my Office in the coming months.

We plan to publish the results of this work in a semi-annual report in December.

In keeping up with the advancement of digital practices, my Office is in the process of completing an online complaint form. This application was developed and tested with input from the ATIP community, stakeholders and journalists.

We are currently making changes to the online complaint form based on this feedback, and we will be conducting a Threat Risk Assessment in the near future. We are hoping to launch the application later this fall.

I would like to personally thank the ATIP who came to our focus group in June to test the online complaint form. Shelley Chambers, Blair Isaac, Stephane Boudrais, Isabelle Dugas, Kofi Kodua, Kara Cardy, Cathy Leclair, Marie-Josee Trudel, Danielle Golden and Valerie Lance, thank you all very much for your time and considered feedback.

Finally, last year, I told you that we were working on a Code of Procedure. This is now on my desk, but it is held in abeyance pending the outcome of the legislative process relative to Bill C-58.

Update on C-58, An Act to amend the Access to Information Act and the Privacy Act.

This is clearly the most significant development in our field of work this year.

The government promised to amend the Access to Information Act. This promise was included in the mandate letters of the President of the Treasury Board and the Minister of Justice and it is one of the government’s commitments in its third National Action Plan as part of the Open Government Partnership.

Bill C-58, An Act to amend the Access to Information Act and the Privacy Act, was tabled in the House of Commons on June 19, 2017. This bill makes significant amendments to the Access to Information Act. Many amendments being proposed may indeed reduce your workload but they are, in my view, a true regression of access to information rights in Canada. As you have heard probably from the media reports and the debates in the House of Commons, I am not the only one to hold this view.

First, the bill imposes significant new obligations on requesters when making requests that create a barrier to access.

Requesters would be required to provide:

the specific subject matter of the request;
the type of record being requested; and
the period for which the record is being requested or the date of the record.

Second, it would also add four new grounds for requests to be declined.

I have previously recommended that institutions should be allowed to decline to process requests that are frivolous, vexatious or an abuse of the right of access as these rare requests can impede processing of other requests.

Bill C-58 includes this ground to decline a request, and this is positive.

However, it also adds three other grounds to decline requests that in my view would allow legitimate requests to be denied. These include:

requests that do not meet the new, detailed requirements for making a request;
requests where the requester has already been given access or can access the records by other means; and
requests that are so large or require searching through so many records that acting on them would unreasonably interfere with the operations of the institution. These requests could be declined even if an extension could be taken.

This would mean that an access request for an electronic immigration file or a tax audit file of a specific individual could be declined because the request lacks a date. Or a re-request for records that were lost because of a flood or computer failure could be declined because access had already been given.

Bill C-58 also proposes to give the Information Commissioner order-making power. In the House of Commons last Friday during second reading of Bill C-58, the President of the Treasury Board called this new power a “game changer”.

I’m afraid I don’t share his view.

While it is true that at the end of an investigation the Information Commissioner will now be able to issue an order, the authority of this order is undermined by several procedural deficiencies in the bill. This includes the fact that if an institution decides it does not wish to follow an order from the Commissioner and instead takes the Commissioner to court, the review at Court is de novo, just like it is currently. There is also no mechanism in the bill to enforce orders from the Commissioner.

The “order-making power” in Bill C-58 takes advantage of none of the benefits of a true order-making model. I do not believe it will significantly improve the timeliness and efficiency of investigations.

From your perspective, however, the good news is that if the bill passes in its current form, there will be minimal changes to our investigative processes.

Finally, Bill C-58 also includes a new proactive disclosure regime for ministers’ offices, government institutions, Parliament and the courts administration services.

While proactive disclosure is in itself a good thing, it must be remembered that proactive disclosure should not be substituted for the right of access. The approach to proactive disclosure in the bill leaves much to be desired.

Most significantly, the bill allows exemptions to be applied to proactively disclosed materials but specifically states that the Commissioner has no oversight over proactive disclosure.

The public will have no independent oversight to ensure these exemptions are being applied appropriately.

I was pleased to see, however, that Bill C-58 codifies my Office’s powers to review those records over which solicitor-client privilege has been claimed.

I will be tabling a special report to Parliament this week on my assessment of Bill C-58 and recommendations for improvements. You have just gotten a short preview.

Parliamentarians are debating the bill as we speak. During the debates, Minister Brison has stated the bill is a work in progress. I am hopeful the government will make amendments to address my concerns and those of other stakeholders in order to enhance and protect access rights.

Conclusion

We clearly have a lot on our plates.

We have, however, already accomplished a lot. I am always reminded that it is important to celebrate success. As you know, I will be stepping down as Canada’s Information Commissioner in December.

I would therefore like to take this opportunity to thank you for, and to congratulate you on, the incredible work you do for Canadians. Just counting the resolution of complaints, we will soon have resolved nearly 15,000 cases.

However, as I always say to my team: we have to do more. There is still so much to be done.

We are in the midst of the fourth industrial revolution. The digital world is here.

This is a profoundly transformative time.

We need to change our way of thinking. From secrecy to openness, from risk aversion to risk taking. Easier said than done, I know. But the time is now. The government is committed to effecting this change. This is apparent from the choice of the new Chief Information Officer.

You will play a crucial role in this culture shift, because you are the primary actors in this seminal shift. You are on the first responders to demands for transparency. You are key to the government's success in this open by default agenda.

Open government cannot exist without the modernization not just of our access law but of our current access to information practices.

My Office and I will continue work towards this goal with you. It is our collective responsibility.