Assistant Deputy Ministers Advisory Committee - Highlights of Meetings

October 4, 2001

• Chair's update/status report

The meeting began with an update on the research projects. The Chair presented a brief summary of the public submissions received to date.

The result of the public consultations conducted on behalf of the Task Force by the Public Policy Forum were discussed. The key concerns of stakeholders were delays, the complexity of the process for making a request, possible increase of fees, overuse of exemptions by institutions, and the fact that some federal institutions were not covered by the Act. Putting Cabinet confidences under the Act and giving order-making powers to the Information Commissioner were very high on the list of reforms for stakeholders.

The Chair also mentioned ongoing consultations with the Senior Access Coordinator Committee to better understand departmental practices and challenges, and to test preliminary ideas in a practical way.

This was the last meeting of the ADM Advisory Committee and as such was the last opportunity to seek their guidance and advice. This meeting focused on recapping their ideas for improvements and recommendations, reviewing any issues that were of particular interest to them, and discussing how to build a culture of access in the public service.

• Public Service Culture - Work environment

The Chair debriefed on focus groups conducted with 35 public servants, at different levels (from officers to ADM) and from a range of departments, to explore the organizationnal culture dimensions of access. Participants were asked to share their experiences concerning access and encouraged to suggest ways to facilitate the promotion of access in their work environment. When asked what were the enablers and disablers in providing access, participants were very clear. As enablers, they listed good information management, efficient filing systems, proper training, leadership that includes support and coaching, proactive release policies that reduce the need for ATI, clearly/articulated requests, adequate resources and ATI identified as a priority by senior management. The identified disablers included lack of clear direction and policies, sub-standard filing systems, insufficient resources, inadequate tools, mixed messages from leaders, frivolous requests, competing priorities, e.g. juggling ATI responsibilities with other duties, and ATI considered an "add-on" and not as part of the "real job". A research report based on the data provided by the focus groups would address the issues of supporting a culture of access in the public service.

The Committee members recognized that senior and middle management had an important role to play in supporting a culture of access by ensuring their staff had the tools and systems to deliver on access, and by creating a work environment where the access work and the release of information was valued. They saw their key role as helping their staff understand the democratic and public accountability values underpinning access to information.

The ADMs were concerned about maintaining the public service ability to develop options by thinking 'outside the box', participate in 'brainstorming' activities, and be creative. This ability could be eroded by the premature release through access requests of early working documents before they had been properly developed and approved by senior management.

They were particularly concerned about ensuring that Deputy Ministers and Ministers continue to receive good policy advice in a full and frank manner. They affirmed the need for the section 21 exemption. However, they agreed that the exercise of discretion should be improved, and that only those parts of documents that could result in identifiable injury if they were released should be exempted.

The ADMs also were of the view that the restriction in section 21 for consultants work should be removed, since consultants' were increasingly called on to provide strategic and policy advice to Ministers along with public servants in those narrow circumstances. The deliberative process and authority of Ministers to decide should be afforded some protection. The majority of consultants' work, however, should not be protected.

• Time Frame for exemptions

ADMs discussed the length of time that government information is protected and supported a move to generally shorten timeframes for exemptions. They noted that the United States is opening up a lot of files after 10 or 15 years.

They also supported the consistent consideration of the passage of time in applying discretionary exemptions, recognizing that in some cases, for example international trade negotiations, the sensitivity of the information and continued relevance of the protection could extend to longer time frames.

• Processing requests

Members discussed current problems encountered by departments in processing requests:

• Voluminous requests were of the greatest concern because they require Herculean effort to respond to. There was a sense that they were becoming more frequent and that requests are often made in the context of litigation, and in parallel to a request for legal discovery. Currently, the Canadian Act only provides some relief to institutions by allowing for time extensions. The Task Force was urged to look at some of the administrative limits in place in other jurisdictions such as a maximum dollar amount to produce the response, the possibility to disregard a large request if the response would detract from important and critical department work, or full cost recovery for mega-requests.
  
  
• Members were also concerned with frivolous and vexatious requests. They acknowledged that there were few but they gave access a bad name. Some were of the view that departments should have the right to disregard requests that are clearly targeted towards specific public servants. Others were more concerned with requests that are not sufficiently focused (such as, "all e-mails sent by Mr. X), which require that the department process a huge numbers of documents that are of no interest to the requester. However, it was acknowledged that any direction in this area would need to be very narrowly crafted so as not to deter or disallow requests from sincere requestors.

• Identity of requesters

Some members questioned the need to protect the identity of requestors. They noted that identity is not protected in some other jurisdictions, such as Ireland or France. In that way they believed true transparency would be achieved, and possibly requests of a less than sincere nature would be discouraged. Others believed that there was merit in the assumption that anonymity guarantees a neutral, fair and consistent response by institutions. The Chair indicated that the protection of the identity of individuals making a request was a function not of the Access to Information Act but of the interpretation of the Privacy Act. She noted that the protection of identity was only for individuals, the identity of corporate requestors is not protected.

• Time limits

The ADMs indicated that many departments believed the number of days required to respond to requests should be extended because of the increase in the complexity of requests.

But the inclusion of holidays also reduced considerably the number of days to meet the deadline in months like December. Members agreed with the suggestion of the Coordinators to calculate time limits in working days instead of calendar days as it is done in some jurisdictions (e.g., USA, New Zealand). A few suggested changing the 30 calendar days time limit to 30 working days, and thereby increase the time period allowed for the government to prepare its response, but most believed this proposal would probably not get any external support. It was recognized that if the conversion to working days was made, it should remain reasonably consistent with the current time limit.

• Fees

ADMs discussed amending the fee structure which they recognized was bound to be a very polarized issue with both users and the public service.

They agreed that Parliament had not designed the fee structure as a cost recovery mechanism but rather to ensure the sustainability of the access system through incentives to focus requests and a modest contribution toward the cost of processing requests.

They understood that the current fee structure was both vastly insufficient to cover even perfunctorily access costs and that in many circumstances, the fees were waived or not collected. They discussed the possible reasons for this but could not come to a conclusion. They discussed briefly the abolition of the application fee, but concluded that a low application fee had been effective in keeping out most frivolous requests while not being an obstacle to legitimate applicants. They therefore recommended keeping an application fee and keeping it at a modest level.

The Committee members discussed commercial requests which account for a large proportion of requests (over 50% in some departments). They were favourable to a distinct and higher fee structure for business users but were uncertain how it would work out in practice. Members urged the Task Force to look into the practicality of it.

The Committee supported an update and modernization of the 1983 fee structure but cautioned against a significant increase in fees that could appear to be in conflict with the objectives of the Act.

• Releasing information outside the Act

There was also an important discussion on encouraging departments to automatically release information to the public without waiting for access requests. Committee members believed, particularly in light of technology and the opportunities presented through the use of web sites, that more information should be made public and electronically posted on departmental web sites. They also talked about the importance of creating electronic reading rooms and were of the view that encouraging the proactive release of information, and creating electronic reading rooms, could ultimately reduce the number of formal access demands. They also approved the concept of a robust publishing scheme similar to the one provided in the UK legislation.

• Records Management

The need for better records management was a recurring theme in all the discussions. Members were insistent that records management had to be tackled now for there to be any improvement to access.

They discussed the importance of providing advice and guidance to public servants on record keeping, and the individual's responsibilities to maintain good records management. They stated that there is widespread confusion and inconsistency across departments in maintaining records, and filing and storing both electronic and paper documents. The Advisory Committee suggested that clearer definitions and guidance would be welcomed by public servants so that they would know how and when to file paper and electronic documentation. The ADMs encouraged the Treasury Board Secretariat to work with the Department of National Archives to develop modern information management.

• Role of TBS

The ADMs were concerned over the lack of consistency between Departments on the application of the Act. They were unanimous in their view that central agency advice and guidance capacity, TBS and Justice, needs to be strengthened. Departmental officials, especially in the ATIP offices, would welcome this assistance. They supported TBS becoming a centre of excellence and providing advice and support to departments.

• Access Officials

Members of the Committee acknowledged the need to build the role of access coordinators and their staff and experience as important within departments, and recognized as a valuable career experience. They supported succession planning and career development by TBS for access officials.

• Awareness and Compliance

The members expressed the need for the access system to move to clear, predictable rules and consistency of outcomes. Compliance, in their view, should not be a moving target. In their view clear rules, well communicated, would enhance the performance of departments.

There was a discussion about the need to anchor the practice of access in good understanding in the public service of its values and principles. Some members believed this could be helped by putting a more fulsome purpose clause or a preamble in the Act. Others believed it was more a matter of awareness raising and training of public servants.

• General Advice

The Committee encouraged the Task Force to make meaningful recommendations and use the opportunity to recalibrate the access regime even though it was a very difficult file on which to generate any consensus.

• Next step

This was the last scheduled meeting of the Advisory Committee. The Chair thanked the Committee members for participating in this process and acknowledged the significant amount of time and dedication that had been required of them. Members were told that the Task Force would be posting information on the Web regularly and that Committee members would be advised as additional material was posted.

Assistant Deputy Ministers Advisory Committee - Highlights of Meetings