Assistant Deputy Ministers Advisory Committee - Highlights of Meetings

June 22, 2001

• Introduction

The Chair distributed copies of the submission of the Ontario Information and Privacy Commissioner to the Task Force and copies of the Information Commissioner's 2000-2001 Report which included comprehensive proposals for reform of the Act.

This led to a discussion of records management which figured prominently in the Commissioner's report. The members of the Committee were clear that the standard of documentation needs to be much higher in the public sector than in the private sector to support public accountability. They agreed with the need for the establishment of a standard for records management that would be applicable throughout the public service. The Committee members felt that a standard should address the public servants own notes, transitory records, e-mails and filing electronic information and paper documentation. They were doubtful, however, that legislation, as suggested in the Commissioner's report, was the right instrument choice. In their view, clear guidelines, training, good tools and accountability would be more successful in bringing about required changes. Treasury Board Secretariat, National Archives and the National Library should partner in an effort to provide the framework, guidance and support needed by public servants.

• New Context of ATI

The Committee briefly reviewed the conclusions of three recently published research reports on citizens' values and expectations, governance and access, and globalization and access.

1. Canadians are moving to "post-materialist values" characterized by a significantly higher preference for autonomy and more open government; they have less confidence in government institutions but a higher level of belief in democracy. They are more motivated to seek out information and have a greater capacity to sort through it themselves. It is predictable that a growing segment of the population will expect greater access to government information.

2. In a knowledge-based and information society, information is a public good and a public resource. Access to government held information is a necessity for collective learning and should be made as easy and routine as possible, recognizing the need for limits to prevent disclosure that would result in personal harm or prevent the state from operating effectively in the public interest.

3. Free flow of information is one of the forces behind globalization and there is a rapid increase in bilateral, lateral and multilateral managements and agreements. There is a convergence across the world to provide access to information: 40 countries now have or are about to enact access legislation. FOI regimes are no longer discrete. In the future, government information will have fewer national attachments, and information held by a government will be of interest to citizens from other jurisdictions. The more policy-making activities that take place at the international level, the more relevant domestic exemptions concerning international relations, diplomatic confidences and affairs of foreign states will be. There could be, in the future, pressure for alignment of domestic access policies as a result of international developments.

The Members agreed that Canadians' appetite for government information will grow and they will demand increased transparency. Government needs to develop new ways of providing information routinely that are less onerous than the access under the Act. Access under the Act should be a last resort kind of mechanism and not the vehicle through which Canadians get most of their information from government.

The ADMs supported encouraging departments to proactively release information of interest to the general public through the internet without waiting for access requests. They believed that more information probably could be provided proactively, including the results of tests, information about contracts, bids, grants and contributions. They acknowledged that, though this might not necessarily reduce the number of access requests, it would be a good policy and a demonstration of commitment to open and transparent government.

The Committee agreed that the access policy of Canada should be based on the values and interests of Canadians, however, they advised the Task Force to consider US access policies since so much interaction occurs between the two countries, that some level of harmonization was desirable.

Finally, the Committee discussed whether the current restriction of the right of access to Canadians, Canadian residents and those present in Canada still made sense in a globalized world and with information technology. It was noted that, with electronic requests, it would no longer be feasible to verify the criteria of presence in Canada and that other nationals were already making requests through Canadian agents. Some of the Committee members did argue that even so, the costs of opening access to the world could be expensive and would absolutely increase the number of requests and public service effort and resource demands, especially for some departments. In light of the difficulty departments experience in meeting demand, they wondered about the advisability of removing the restriction on the right of access.

• Facilitating access with technology

Access rules and processes were designed for a paper world. However, information technology has revolutionalized how we create, store and retrieve information. The use of information technology in providing information about access (Info Source, Annotated Act, Policy and Guidelines on website) and in processing requests (ATIPflow tracking system, ATIPimage allowing for electronic processing, and CAIR government wide request registry) has gradually increased.

Two departments now accept electronic requests and others are investigating this option. Information is routinely provided on CDs or diskettes. In the future, there should be greater integration between electronic document management systems and access tools, and more use of the internet for posting access request information. Smaller departments and agencies, however, rarely have the resources to move to more efficient information technology.

The Committee was of the view that the use of information technology in facilitating the processing of requests as well as the provision of information should be encouraged. ADM recognized, however, that there were significant issues of costs, software compatibility, security and official languages to be solved, to achieve this goal.

The Committee felt strongly that there should be a central access portal on the Canada site for Canadians to easily have plain-language information on the various ways to obtain government information, including submitting an access request under the Act. This should be part of the Government on-line initiative.

• Scope of the Act

The ADMs reviewed the Scope of the Act in other jurisdictions and the options put forth in Dr. Bartram's research report on expanding the Act to cover a greater number of federal institutions, including crown corporations and some parliamentary officers. The ADMs discussed the associated impacts of such a move, i.e. machinery of government issues, capacity of institutions to respond, creation of access units, need for expertise, and the exercise of the investigative function should Parliament and Parliamentary officers be covered.

The Committee members discussed the parameters of extending coverage and considered the key factors to be (1) the need for public accountability and (2) the mandate of institutions. In their view the need for public accountability could be satisfied in more than one way, including through a regulator. The Committee recognized that in a few cases the critical mandate of the institutions could be harmed by coverage under the Act. In these cases, a rigorous disclosure and strict accountability mechanism should be put in place. The Committee favoured a mixed criteria for coverage based both on public funding and the public mandate of the institution.

In the case of the courts, however, which are publicly funded and have a public interest mandate, the Committee believed that there may be good policy reasons to exclude them from the purview of the Access Act. Members thought that this should not preclude the examination of a voluntary code of disclosure.

In recent years, governments across the world have contracted out, to the private sector, functions previously exercised by government. The Committee was of the view that the determinant criteria to maintain government control over the records should be the need for public accountability and ministerial answerability. Where there was such a need, the records should be deemed to be in the control of the government institution. In other cases where there was no such need (e.g. a motel or a mine put back in the private domain where it should have always been in the first place) there would be no need for continued access to the records.

• Records "under the control" of an institution

The Committee discussed the notion of records "under the control of an institution" and concepts under the National Archives Act such as records "owned by the Crown", the distinction between "political records and personal records of a Minister" and "records relevant to a Minister's mandate that are not institutional records". The point was made that information technology was already making the notion of "control" obsolete. The Committee concluded that the notion of what is "under the control" of an institution is not clear enough, should probably be modernized to reflect new technology and that the essential criteria should not be one of ownership or "control" as much as one of the need for public accountability.

In discussing public servants notes, the Committee drew a sharp distinction between different kinds of notes, along lines of public accountability. For example, the Committee was of the view that there was a need to distinguish between notes taken by a plant inspector and notes taken by a member of a selection board on the one hand, and notes made by a public servant for his/her own use as memory jolter on the other hand. In the first two cases public accountability and rights of individuals were involved, in the third case none was.

A number of jurisdictions such as Quebec and the USA draw this kind of distinction. ADMs recommended that notes made by a public servant for his or her own use as an aide-memoire, that do not relate to the rights of others, were neither shared or put on file, should not be considered to be under the "control" of a government institution.

Finally, the Committee was of the view that the Act should be clear that notes of an individual acting in a judicial or quasi-judicial capacity or notes prepared for their use in proceedings are not covered by the Act.

• Overall structure of exemptions and the protection of privacy

Researcher Barbara McIsaac, Q.C. made a presentation on the overall structure of exemptions in the Act. She compared the Canadian Act exemption structure with that of other jurisdictions and indicated that overall the structure of the Canadian legislation is largely similar to other jurisdictions with a balance between the general principle of openness and the need to protect information in specific cases in the public interest. The structure of mandatory versus discretionary exemptions and class-based versus injury-based exemptions is one found in the legislation of most jurisdictions. Mandatory exemptions protect information which does not "belong" to the government such as personal information, information obtained in confidence from other governments or from third parties. In these cases the exemption is about protecting the relationship and the capacity of government to continue to obtain the information in the future. The mandatory nature of the personal and third party information exemption is tempered by a public interest override allowing the head to disclose information if the public interest in disclosure clearly outweighs injury. Mandatory exemptions tend to be very consistent across jurisdictions.

In some jurisdictions, on top of exemptions the legislation adds a government override. For example, in New Zealand there is a provision for a Prime Minister or Attorney General certificate; in Australia and Great Britain there is a provision for a Ministerial certificate.

There is a lack of empirical data on how the exemptions are applied in Canada and in other jurisdictions, making it very hard to draw useful comparisons between regimes. However, the researcher's personal experience and information gathered by the Task Force point to a tendency to claim exemptions if available. Current guidelines do not seem to provide a clear process of balancing the public interest in disclosure against the public interest in protecting the information. There is very little case law about access and courts have been loath to review the exercise of discretion.

Ms. McIsaac commented on the supposed surgical "precision" that is expected of the exemption and severing process and offered that in her view, this was not the original intent of the Act. She suggested that this focus on process and form instead of substance might have moved the original application and implementation of the Act to an area that was not Parliament's original intention, nor in the spirit of releasing information to the public. The greatest single improvement to access in her view resided not in the reform of the exemption provisions but in better exercise of discretion.

Members agreed that more guidance is required, as program staff too often do not understand the principles of ATI and tend to over protect their information. On the other hand, ATI staff do not have the knowledge of the file and its context to determine its sensitivity and the impact release would have. Treasury Board Secretariat should be working in cooperation with the Office of the Information Commissioner at providing guidelines that would include balancing the public interest and taking into account that sensitivity of most information diminishes with the passage of time.

Ms. McIssac concluded that the system works - the structure of the Act is sound, the objectives continue to be relevant - and the application of the Act is where the focus needs to be.

The Committee agreed with her conclusions that the exercise of discretion and better balancing of the public interest was where improvements were needed. However members cautioned against a complicated decision-making process that would make it impossible to meet tight response deadlines. It is inevitable that more time will be taken in balancing the public interest, than in automatic recourse to exemptions because it implies knowledge of the subject matter and a judgement call. Guidelines should make this as simple and easy as possible.

In the view of the ADMs the current decision-making system could do with some streamlining. Better balancing of the public interest should not result in everything ending up on the Deputy Minister's desk.

They acknowledged that the interaction of the departments with the Minister's office staff on issues of access can be tricky, with some confusion at times on their part between the Minister's communication needs and the release of information under the Act. In this context, the letter of Minister Eggleton - informing the Department of Defence that his legitimate need to be able to answer questions and to manage communications should in no way interfere with release of information - was seen as a best practice in giving the right message to departmental and ministerial staff alike.

The Committee also recognized that the sensitivity of most information is context driven and diminishes greatly with time. Members believed that some mandatory exemptions could possibly be turned into discretionary after a period of time.

The Committee concluded that the application of exemptions has a lot to do with the culture of the public service and should be also addressed at that level.

• Discussion on exemptions / exclusions

The Committee reviewed briefly the exemptions and exclusions in the Act and discussed several.

• Information obtained in confidence from other governments – the ADMs reviewed the application of the exemption to information obtained in confidence from other governments and considered that information obtained from Aboriginal governments when they have this status (i.e. the Nisga'a government) should be added to this category.
• International Affairs – they reviewed this exemption and concluded that it should stand as it is.
• Third Party Information – the Committee discussed the importance of continuing the practice of consulting with third parties on the release of their information as they are uniquely positioned to assess injury. They also recommended that third parties receive more information on the right of access.
• Statutory Prohibitions – the members stated again their previous recommendation of reducing the number of provisions on the schedule, with application of appropriate criteria and periodic review of those remaining on the schedule.
• Advice to Ministers, internal deliberations – the Committee was generally of the view that some material (statistics, data, factual information) should not fall within the scope of the exemption, although some members argued that in some instances the disclosure of data could be injurious. The point was made that facts and advice are necessarily interwoven in memoranda to Ministers and difficult to separate neatly. Members agreed that clear guidelines should be provided to public servants in order to ensure appropriate use of the exemption and balancing of the public interest. The Committee was also of the view that the current time limit of 20 years could be reduced.
• Cabinet Confidences – the Committee supported bringing Cabinet Confidences under the Act, recognizing, however, their unique nature in our parliamentary system and the need for strong protection. As well, they believed that a proper format should be put in place in the future separating advice to Cabinet from background information and analysis allowing the latter to be released earlier: for example, when the announcement of the decision is made.

• Next steps

The next meeting of the Advisory Committee will be in the Fall.

Assistant Deputy Ministers Advisory Committee - Highlights of Meetings