2008-2009 Do secret rules lead to delays?

In September 2008, we published the findings of an investigation into allegations by the Canadian Newspaper Association (CNA) that federal institutions were applying secret rules for processing media requests for records under the Access to Information Act.⁵ The CNA suggested that these rules resulted in systematic discrimination and unjustifiable delays in the processing of media requests.

We first sought to find out whether institutions treated access requests from the media according to secret rules or subjected them to some other form of systematic discrimination. We also examined whether the media’s requests were unfairly and unjustifiably delayed. Our investigation looked at the period from April 1, 2003, to March 31, 2005.

Although we were unable to conclude that secret rules existed or that systematic government-wide discrimination against the media took place, we found that institutions that label access requests as “sensitive,” “of interest” or “amber light,” or with some other marker indicating special handling, tend to delay requests for unacceptably long periods. We also found that the media are not the only ones to encounter such delays. Requests from parliamentarians, organizations, academics and lawyers are also delayed.

⁴ For example, Citizenship and Immigration Canada received 11,434 requests in 2007–2008, which represents 37 percent of all access to information requests received in Canada. It only extended 6 percent of these requests.

⁵ For more information, go here

To resolve the CNA complaint, we made three recommendations (see box). The President of the Treasury Board and the heads of all 21 institutions investigated agreed to follow our recommendations.⁶ We also followed up with the institutions in early 2009, which elicited various replies.

Recommendations

• Subject to section 9 of the Act, any government institution that categorizes or labels access requests in any way that may lead to any form of special handling shall undertake not to delay the processing of these requests.

• The President of the Treasury Board shall undertake a study of how the institutions that categorize or label access requests for special handling with no detriment to the timely processing of access requests, organize the process, with a view to issuing best practices to all government institutions.

• The Treasury Board Secretariat, as of 2009–2010, shall start to collect statistics from all government institutions to allow the monitoring of this system of categorization of access requests and how it affects response times.

Some institutions stated once again that they do not label requests for special handling. Others confirmed that although they do label requests, this does not delay the disclosure of information.

Two institutions clearly demonstrated their commitment to avoid delays. Citizenship and Immigration Canada reviewed their processes and eliminated several review and approval stages. Delegation of authority was assigned at various levels within the access to information unit to expedite decision making. The institution is also conducting audits and analyses of late files to develop strategies to identify any deficiencies and improve compliance. Indian and Northern Affairs Canada conducted an audit and was able to confirm that the “preparation of any communications package does not delay the release date to the applicant, the request is finalized whether Communications has completed its communications package or not.” By contrast, Health Canada has implemented solutions that will only decrease or reduce delays. This means that the institution will continue to fail to meet legal deadlines for its “highly sensitive” files. We intend to follow up with Health Canada in 2009-2010.

The Treasury Board Secretariat is working on publishing a list of best practices and is reviewing its collection of government-wide statistics to incorporate data that will facilitate determining how the categorization of access requests affects response times.

⁶ See Appendix A of our findings, here

In our opinion, there is nothing inherently wrong with labelling access requests as “sensitive,” “of interest” or “amber light,” or with some other marker indicating special handling. However, if federal institutions choose to handle certain access requests in a special way, the following suggestions should prevent delays in releasing information.

• Special handling of access requests should not create additional layers of approval. Not only does this situation run the risk of causing delay, it may also impede on the authority delegated to the access to information director. There is evidence that, even though access to information directors have delegated authority, senior officials override it.

• Content of the request should be the only factor considered in labeling a request for special handling. Institutions should not discriminate according to the requester or source of the request.

• The institution should narrowly define categories of requests deemed of interest so that they represent the exception rather than the norm.

• The source of the access request should not be identified outside of the Access to Information Office unless the information is necessary to locate records.

• It should be clear that communications requirements such as the preparation of a communication plan or media lines must not delay the release of the records.

• It should also be clear that records should be forwarded to the requester as soon as processing has been completed since timely disclosure can result in releasing information prior to statutory deadlines.

We will continue to monitor the situation. We could decide to investigate the issue further if institutions do not improve their practices in this area.