Canadian Heritage (Re), 2020 OIC 10

Date: 2020-12-16
OIC file number: 5820-00645
Institution file number: N.A

Summary

[1] The Information Commissioner initiated a complaint against the Department of 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, 2020 and July 10, 2020, PCH’s Access to Information and Privacy Secretariat was not granted access to its work premises and was unable to access its departmental network remotely. This created a backlog of 224 access requests.

[2] The complaint is well founded as PCH’s failure to respond to the 224 access requests was not based on any of the specified circumstances set out in subsection 9(1) and effectively breached the requesters’ quasi-constitutional rights of access under the Act.

[3] The Commissioner made six recommendations to the Minister of Canadian Heritage who agreed to take corrective measures to ensure that PCH is fully meeting its obligations under the Act.

Complaint

[4] I initiated this complaint against the Department of Canadian Heritage (PCH) as a result of reports that it had suspended the processing of its access to information requests due to the circumstances surrounding the COVID-19 pandemic in Canada.

Investigation

[5] The investigation revealed that during a four-month period, from March 16, 2020 to July 10, 2020, PCH’s Access to Information and Privacy (ATIP) Secretariat was not granted access to its work premises and was unable to access their departmental network remotely.

[6] PCH admits having taken the decision to suspend its ATI operations based on recommendations of its own Crisis Management Core Committee. This recommendation was made pursuant to the direction put forth by Central Agencies, the Chief Public Health Officer of Canada, as well as provincial and local public health authorities who suggested that all employees should work remotely, where possible, to mitigate the spread of COVID-19. In the present instance, PCH’s ATIP Secretariat was unable to work remotely for the following reasons:

PCH had not deemed ATI to be a critical or a priority service for the department;
All ATI files and supporting ATI software were located on a secured (secret) stand-alone network and was not available remotely; and
The only way to access files and supporting software was to enter the building physically.

[7] The investigation also revealed that PCH’s decision to suspend its ATI operations between March 16, 2020 and July 10, 2020 created a backlog of 224 access requests that had not been responded to. PCH resumed its ATI operations on July 13, 2020, one month after I initiated my investigation.

[8] The Act requires that the head of an institution respond to access requests within 30 days of their receipt, unless an institution meets the specified circumstances described in subsection 9(1) in order to claim an extension of time. This provision allows institutions to extend the time limit set out in the Act for a reasonable period of time, having regard to the circumstances, if both of the following conditions are met:

the request is for a large number of records or necessitates a search through a large number of records; and
meeting the original time limit would unreasonably interfere with the operations of the government institution.

[9] PCH’s failure to respond to the 224 access requests received between March 16, 2020 and July 10, 2020 was not based on any of the specified circumstances set out in subsection 9(1) and effectively breached the requesters’ quasi-constitutional rights of access under the Act.

Result

The complaint is well founded.

Recommendations

[10] On October 7, 2020, I issued my initial report to the Minister of Canadian Heritage setting out my recommendations. The Minister of Canadian Heritage responded on November 10, 2020 by committing to take the necessary measures to ensure Canadians’ right of access is respected.

Recommendation 1: Reflect the Act’s quasi-constitutional status and absence of legislated authority to cease ATI operations in PCH’s departmental operational plans.

[11] In his response, the Minister of Heritage wanted to assure me that while “difficult choices” had to be made in the early days of the pandemic, moving forward the PCH is committed to providing Canadians with access to information at all times and that measures would be put in place to ensure full compliance with the intent and spirit of the Act. As the current pandemic continues to present a number of challenges, I am satisfied that the Minister of Canadian Heritage and its senior officials have now recognized the Act’s quasi-constitutional status and the absence of legislated authority to cease ATI functions. That said, the Minister’s response did not address the need to review and amend PCH’s existing departmental operation plans in order to eliminate any barriers that would prevent the institution from being in full compliance with the Act. Failure to do so and maintaining the current operation plans could result in Canadians’ right of access being breached again during future emergencies. I urge the Minister of Heritage to reconsider this part of my recommendation in their next reiteration of the PCH’s Business Continuity Plan.

Recommendation 2: Commit the necessary resources in order to address any backlog in PCH’s processing of requests stemming from its suspension of ATI operations by March 31st 2021.

[12] In his response, the Minister committed to addressing the backlog of requests stemming from its suspension of ATI operations, but fell short of committing to the March 31^st, 2021 timeline. The Minister did indicate that additional resources had been provided to PCH’s ATIP office to help reduce the inventory and that the institution would assess its remaining workload on a quarterly basis to determine whether or not the resources in place would suffice.

[13] The commitment to address the backlog of access requests and proactively assess the needs of PCH’s ATIP office in completing this task is encouraging.

Recommendation 3: Abide by PCH’s commitment to provide the OIC with a detailed assessment and plan to address its ATI workload and proactively publish same by November 16, 2020.

[14] In his response, the Minister provided assurances that PCH had conducted a detailed analysis and strategy to address the backlog of 224 access requests resulting from the suspension of PCH’s ATI operations. Specifically, the Minister indicated that PCH’s strategy would include: (1) responding to requests ready to be disclosed for the weeks of March 16 and 23, 2020; (2) processing priority requests related to Government of Canada COVID initiatives; (3) continuing the processing of pre-March 2020 files; and (4) initiating the processing of files received from March 16 to July 13, 2020.

[15] As of the issuance of this final report, PCH has confirmed that all requests received during the suspension of services have been tasked and 45% have been completed. PCH has also proactively published its ATIP Secretariat Resumption Strategy and Progress report on its website. At this rate, I am cautiously confident that PCH will be able to comply with this recommendation and eliminate the backlog created by suspending its operations by the end of this fiscal year.

Recommendation 4: Proceed with its plan to migrate files at the Protected B (or lower) level from a designated Secret Server to one designated Protected B in order to facilitate remote access to those records by ATIP officials. AND

Recommendation 5: Ensure that access to the departmental network and ATI software is available to members of PCH’s ATI team at all times, to ensure that PCH is always in a position to respond to access requests. AND

Recommendation 6: Continue to pilot PCH’s approach for Paperless ATIP processes.

[16] In response to the above recommendations, the Minister indicated that PCH is working in partnership with Shared Services Canada to acquire a server with remote access to house all files classified at or below Protected B. The new server, along with all requisite software, will allow departmental ATIP staff to respond to requests remotely by the end of December 2020. In the meantime, PCH Offices of Primary Interest have begun sharing documents electronically since resumption of ATI operations on July 13, 2020 and PCH is actively working with the Office of the Chief Information Officer to provide training to its ATIP liaison officers on the electronic transfer of documents.

[17] With the widespread adoption of alternative work arrangements, federal institutions need to commit to proper resources to ensure the right of access for all Canadians. As 85% of PCH’s records are classified at or below Protected B, it is reassuring to learn that PCH has committed to facilitating ATIP officials’ remote access to records. This will provide PCH with greater flexibility for maintaining ATI functions during future emergencies where access to physical offices is limited.

[18] In the context of the current pandemic, federal transparency and the access to information system are more important than ever. Access to information is a key pillar of government accountability and democracy in Canada. Not only was PCH’s complete suspension of ATI operations for 4 months unauthorized under the Act, it also stood in stark contrast with other federal institutions who adopted measures to ensure ATI services would be available despite the operational challenges posed by the pandemic.

[19] PCH is implementing my recommendations. I will monitor its progress through future ATI complaint investigations, with the expectation that the institution will have put the necessary measures in place to allow it to meet its access to information obligations, as prescribed by the Act.

[20] A pandemic—or, indeed, any emergency—does not suspend Canadians’ right of access or the need for transparency.

Caroline Maynard
Information Commissioner of Canada