Assistant Deputy Ministers Advisory Committee - Highlights of Meetings

May 4, 2001

DISCUSSION:

Archives - Records Disposition Framework

At the request of the Committee, Lee McDonald, Assistant National Archivist, Archives Canada outlined the approach to records disposition which is driven by the Archives Act. He explained that all records of government belong to her Majesty but are managed by the institutions controlling them. He contrasted the United States approach where the focus is on what is or is not "a record" and the Canadian approach where the key question is whether a record is "under the control" of the government institution.

With a graphic (attached), he outlined the framework for records retention according to their archival value, long-term business, and short-term business value in the areas of policy, program and service delivery, and administrative activities. Only a thin slice, approximately 3%, of all departmental records are of archival value and are transferred to the National Archives. Most records are kept within institutions, either for the long term (for the most part records relating to decisions, policies or processes) or the short term (mostly administrative or program records).

Mr. McDonald informed the Committee that the National Archives was currently conducting research on the impact of the ATIA on the quality of record keeping in the federal government.

There was a discussion of transitory records. With the adoption of s. 67.1 of the Act, creating an offence for destroying records, public servants are understandably nervous about disposing of any note or e-mail. Mr. McDonald defined transitory records as those records not deemed necessary for the ongoing operations of government. They should be disposed of regularly once their usefulness is over. Personal notes, notebooks, telephone slips, drafts and e-mails are, for the most part, considered to be transitory unless they contain information that should be part of the official file such as a record of policy or operational decision or if they constitute a significant draft in a process leading to a decision or a policy. The Committee was advised that research has been commissioned by the Task Force to examine the issue of transitory records and ATI.

The Committee discussed the uncertainty surrounding the disposal of electronic records and recommended that a standard be developed for the disposal of electronic records and back-up tapes.

The Committee concluded that standards and a lot more clarity, guidance and support needed to be provided to the public service on issues of records management and that it would have a significant positive impact on compliance with ATIA.

Person's Right of Access

The Committee considered whether the right of access under the Access to Information Act should continue to be restricted to Canadian citizens, permanent residents and those present in Canada, or be extended to all persons. Currently, Access Coordinators have to ensure this criteria is met for every request. It was noted that while New Zealand has similar restrictions to Canada, freedom of information legislation in the other countries comparable to Canada provides a right of access for any person regardless of their citizenship or location. In fact, the current restriction would be unworkable with the introduction of requests.

Members discussed the potential impact opening the right of access to the world could have on specific departments such as Citizenship and Immigration Canada, already receiving the largest number of requests at the federal level. Most members of the Committee came to the view that -- as a result of globalization, the practice in other jurisdictions of allowing access by Canadians, and the need to use information technology to facilitate access - the restriction should be removed. Others had significant concerns as the potential additional workload could be staggering to some departments. They added that if this change was implemented, the impact on the volume of requests would have to be monitored and resources adjusted accordingly to specifically respond to the additional workload.

Fees

The Committee discussed the need for an approach to fees, which would work and make sense in today's environment and in conjunction with time limits. They recognized that it was one of the most contentious issues for users and departments alike. Members were anonymous that the fee structure should not be inconsistent with the objects of the Act.

All jurisdictions in Canada and abroad make the communication of information conditional upon the payment of fees, which may be waived in the public interest. However, the fee structure itself varies significantly. No jurisdiction today thinks of fees as a cost recovery mechanism, and the federal government currently recovers approximately 1.4% of the cost of providing information under access. Fees constitute a modest contribution toward the cost of processing the request and act as a regulating mechanism. The Committee was of the view that the right fee structure would deter broad, unfocussed requests and fishing expeditions that are detrimental to the capacity of institutions to process other requests, and ultimately to the taxpayers, but it should not discourage legitimate requests.

The members agreed that to the greatest extent possible, the fee structure should have the following characteristics: easier for ATI offices to administer; be more transparent and predictable for requesters; strike a proper balance between costs borne by users and by taxpayers; encourage users to focus their requests; and encourage institutions to release information. The Committee expressed strong doubts that the current fee structure and processing of fees was either cost efficient or effective in providing the right incentives and given this conclusion, suggested a new approach be considered instead of mere tinkering with the current structure.

The Committee expressed interest in the fees approach recommended by the Law Commission of Australia. Under this model, the fees would depend on the amount of information released, irrespective of the medium. An application fee would represent the entire fee for a large number of requests and additional fees could be charged for amounts of information over this base. Fees could also be set for consultations with third parties or translation from foreign languages. Members asked the Task Force to study in more depth the feasibility of this model.

The Committee also discussed the feasibility of establishing a different fee structure for commercial users. Businesses constitute the largest group of users (40% of all requests), and are unlikely to be deterred by higher fees. The Committee debated the public policy rationale of having all Canadians pay for what was primarily a private benefit. In the end, the Committee concluded that a two-tiered fee structure was unmanageable in practice but remained interested in a more "equitable" approach to fees.

It was agreed that collecting fees must be complemented with a duty to assist requesters in focussing their request and a service approach to the provision of information. Members added that it was important to maintain the discretion to waive fees but that additional criteria could be added to guide departments.

Time Limits

The Committee reviewed a number of options based upon an examination of other jurisdictions. Members discussed the challenges for departments in meeting the current timeframes but also recognized that timely provision of the information was critical to requesters and that they were unlikely to support extending current time limits. The Committee endorsed, however, the suggestion made by ATI Coordinators to change from 30 calendar days to the equivalent number of working days. The suggestion was also made that the time spent in negotiating the scope of the request with the requester not be counted in the time allocated to process the request.

In the view of the Committee, the challenge of meeting the 30 days timeframe is likely to increase as requests are becoming more complex and requesters are routinely asking for greater amount of information. Increased horizontality in government activities has increased the requirement for interdepartmental consultation, while changes in government structures and increased relationships with other governments and third parties has increased the need for consultations.

The Committee agreed that managing timeframes should include: the appropriate use of extensions, possibly adding criteria to the extension provisions for extraordinary circumstances and unanticipated high volume of requests; improved records management; triage of requests according to complexity at the point of intake; and moving toward proactive release of more information on government web sites.

The Committee supported a recommendation previously put forward by the Information Commissioner, that institutions not collect fees on requests that do not meet the prescribed time limits. They also supported time limits for the Information Commissioner to complete investigations, as in their view, open-ended investigations were often compounding delay problems in departments. Some departments had experienced spending more time on investigations than on processing access requests.

Administrative Flexibilities

The discussion was on whether administrative flexibilities should be added to the Access to Information Act. Members agreed that time limits, fees and administrative limits must be considered in an integrated fashion. The Committee noted that the Canadian Act contains almost no administrative limits except for those based on interpretation of conformity with section 6, on time limit extensions or on fee application. The Committee reviewed administrative limits and flexibilities in other access legislation in order to control overloading of the system, either through deliberate effort to waste resources or through excessively large requests.

Members discussed the frustration of departments with extremely large and unfocussed requests ("fishing expeditions") and the concern with requests which are intended to harass individual public servants or the institution. However, they recognized users would be concerned that administrative flexibility provisions would be abused in order to refuse legitimate requests.

Committee members were of the opinion that frivolous or unfocussed requests cannot be allowed to impinge on the operations of the institutions or to unreasonably divert resources to a single requestor at the expense of all other requestors. A principled approach must be taken to ensure better service to all requestors, and any administrative provisions for frivolous, vexatious or abusive requests should be based on the nature of the request and not on the intent of the requestor.

Published/published materials

The Committee discussed whether or not a definition of "published" should be added to the Access to Information Act; the meaning of "published" has become more significant in light of the increasing amount of governmental information being posted on departmental web sites. Bringing web site posting under the definition of "published" may provide an incentive for departments to more proactively disclose information. Members were warned, however, that increased proactive disclosure does not necessarily mean fewer access requests under the law, as demonstrated by the American experience.

Members raised the fact that web site information is frequently updated or replaced, may be difficult to find and is not accessible without computer. The Committee agreed on the need to ensure that the public has access to such information and concluded that one safeguard could be to ensure that information posted on departmental web sites is considered "published" only if it is also available in public libraries.

The Committee agreed that a definition of "published" should be extended to web site posting for access purposes. They recommended that the departmental responsibility to help requestors find electronic and/or paper information they seek be formalized.

NEXT STEPS/FOLLOW UP:

The next Committee meeting is scheduled for May 18, 2001. It was agreed that:

• Professor Rick Snell, University of Tasmania would attend the meeting and make a presentation comparing different Freedom of Information legislations and practices.
  

RECORDS DISPOSITION FRAMEWORK

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Assistant Deputy Ministers Advisory Committee - Highlights of Meetings