2009-2010 4. Shining a light on compliance

Our report cards highlighted both success stories and compliance concerns at individual institutions, and shed light on system-wide problems, gaining attention in Parliament. Our systemic investigations complement this work by giving us greater in-depth knowledge of widespread problems that have wide-ranging effects.

Report cards: assessing institutional performance

The most recent edition of our report cards, which we have been producing since 1999, looked at compliance with the Access to Information Act by 24 institutions. This is the most institutions we have ever looked at in one year.

This group, which includes nine institutions that we assessed last year, accounts for 88 percent of all the access requests submitted to the federal government in 2010-2011 (the year we were looking at). We produced a fact-based assessment of institutional compliance linked to a series of recommendations for improvement.

Eleven institutions performed reasonably well. Among this group, Citizenship and Immigration Canada, the Department of Justice Canada, Canada Border Services Agency and Public Works and Government Services Canada deserve special praise for their consistency in good performance or their significant improvement over last year. Thirteen institutions performed below average or worse (see Table 1). We found that the Foreign Affairs and International Trade Canada performed so poorly compared to last year that we assigned it a red alert rating.

The point of the report cards, however, is not to point fingers and ostracize institutions. Rather, we set out to shed light on issues that need to be addressed to ensure improvement across the entire access to information system.

Through the report card process, we confirmed the continued presence and detrimental impact of the system-wide issues identified in the 2007-2008 special report. These include the inappropriate use of time extensions and the increase in time-consuming consultations among institutions—particularly consultations that are mandatory under Treasury Board of Canada policy. We also uncovered a significant obstacle to timely access to information: the flawed or ill-enforced delegation of authority for access to information decisions within institutions.

With these facts in hand, we framed recommendations for individual institutions, tailored to their circumstances, and for the system administrator—Treasury Board of Canada Secretariat. These recommendations set out specific measures these organizations must take to resolve the problem of delays and other issues of compliance with the Access to Information Act.

We tabled the report cards and our assessment of systemic issues in a special report to Parliament on April 13, 2010.

Our commitments

In the special report to Parliament we released in February 2009, we committed to taking follow-up actions in three areas to ensure that we are doing our part to support the access to information system. We met those commitments in 2009-2010, as follows.

New categories describe outcomes of complaints

The terms we have used to describe the outcomes of our investigations have varied over the years. The general principle behind them all, however, has been whether the complaints were well founded, as per section 37 of the Access to Information Act.

Feedback we received from complainants and institutions over the years led us to review and reconsider the disposition categories. Access officials said that the terminology we were using gave a misleading impression of institutions’ conduct in some cases. For example, there was only one category—“resolved”—to cover a wide range of problems, from institutions missing just a few pages of records in a release to incorrectly denying access to records outright.

In light of this feedback, we committed to reviewing the current categories and proposing amendments as required. We consulted with access to information coordinators in March 2009 and with the public in March 2010, and sought the input of investigators. The four new categories we developed are simpler, more accurate and follow the terminology used in the law: well founded (with three-sub-categories), not well founded, discontinued and settled. More information about these categories is available on our website.

Releasing information under the Act

A key principle of the Access to Information Act is that institutions should release as much information to requesters as possible. However, measuring whether this is happening is challenging. We committed to designing a method for doing so.

Starting in April 2010, we will routinely capture data in investigation files to track the overall degree of disclosure subsequent to complaints.

Three-year plan for report cards

In July 2009, we launched our three-year plan to bolster our report cards as part of our effort to get to the root causes of delays in the federal access to information system.

The plan takes an integrated approach to compliance assessment, marrying institutional performance reviews with a systemic investigation into time extensions and whether interference with the access process—political or otherwise—causes delays or unduly restricts the release of information to requesters.

We carried out all the promised activities of year one of the plan in 2009-2010:

• We followed up on the action plans promised by the 10 institutions we surveyed last year.

• We increased our report card sample to include all institutions for which we received at least five delay-related complaints in 2008-2009.

• We added several new measurements to paint a better picture of each institution’s performance.

• We gave institutions the opportunity to explain the underlying reasons for their performance results.

• We let institutions comment on a draft version of their report card, and we published these responses.

• We laid the groundwork for our systemic investigation.

Each year, we will review the plan and adjust it as required.

New commitments

In our most recent special report, we made four new commitments:

• to publish a practice direction on the time extensions institutions take to process access requests;

• to develop a template for institutions to use when notifying us of those extensions, possibly by electronic means;

• to publish a practice direction on the procedure for notifying us of these extensions; and

• to assign an official to review and assess the notices we receive, based on the information institutions provide about the use and length of extensions, and to carry out any follow-up actions.

We will report on our work to meet these commitments in next year’s annual report.

Table 1. 2008–2009 report card ratings

Systemic investigations

Systemic investigations are a key component of our three-year plan, since they complement the report cards and allow us to look more deeply into the issues those institutional assessments reveal.

We laid the groundwork this year for our systemic investigation into time extensions that we had announced in last year’s special report to Parliament. We also expanded the scope of this self-initiated investigation to look at whether interference with the access process—political or otherwise—causes delays or unduly restricts the release of information to requesters. This was a result of oral information given during the report card process and complaints we received.

The report card process also clearly showed that two issues should be of particular concern to us during this investigation. The first is how consultations that institutions must have on certain issues, among each other and with third parties (here and, particularly, abroad, including with foreign governments) contribute to delays. The second is institutions’ delegation orders—that is, how decision making on access files is shared among senior officials and whether this slows down the processing of access requests or results in a reduction in disclosure that is contrary to the Act. With regard to consultations, we must find out the details of the process. We will look at practices in key institutions with whom other institutions must consult. Delays in these institutions result in a bottleneck across government.

Looking ahead

In 2010-2011, we will implement year two of the three-year plan. We will apply our report card process to a sample of institutions that became subject to the Access to Information Act in 2006 and 2007. We will be among the institutions in this group, and we are designing a method to allow for an independent assessment of our own compliance with the Access to Information Act. (For information on our access to information and privacy activities in 2009-2010, see “Providing timely assistance to requesters”.)

With regard to our systemic investigations, we are beginning to review the data we have in our possession; specifically, our extensive investigation files and the notices that institutions regularly send us about the extensions they take. We will further analyze the use and duration of time extensions, while looking into their root causes and impact.

In 2010-2011, we will also collect data from a select group of institutions and perform a comparative analysis of how other countries deal with the issue of international consultations.