Highlights of Meetings - External Advisory Committee

March 12, 2001
OTTAWA

Members Present
Dean Beeby
Paul-André Comeau
Norman Hillmer
Aldéa Landry
Gaétan Lussier
Wayne MacDonald
Paul Thomas

Facilitator - Roger Tassé

Chair - Andrée Delagrave, Access to Information Review Task Force (ATIRTF)

Presenters
Mary Anne Stevens, ATIRTF
Sherry Moran, ATIRTF


Update on Research

The purpose of the meeting was to update the Committee on the Task Force's recent work and the options under consideration, as well as to go over its general directions.

The Chair updated the committee on research activities.

Members discussed the report prepared by Gladys Symons, "Constructing a Culture of Access in the Federal Public Service," and reiterated their earlier comments about the importance of changing the organizational culture. A signal on cultural change as well as an incentive to improve performance would be for access to information to appear in departments’ business plans. As significant cultural change can only be effected over the longer term, however, members also stressed the importance of immediate action for improvement by developing service standards for access, providing more help for requesters, providing mandatory training and increased support for access officials and other public servants, and by improving records management and consistency within and across institutions.

While considering the report prepared by Jerry Bartram, "Maintaining the public right of access to information when service delivery models change," there was a discussion on how to apply the criteria proposed for coverage under the Act to new as well as existing alternative service delivery organizations. The members were unanimously in favour of legislated criteria for coverage of institutions, while recognizing the need to leave Parliament some flexibility in the matter. They also strongly supported the inclusion of the same criteria in the new Alternative Service Delivery Policy as suggested in the research report.

Mary Anne Stevens summarized the research which has been completed on Access to Information performance measurement, emphasizing a movement away from the minimalist statistics model to an effective performance-reporting framework that would enhance accountability and continuous improvements. One member suggested that there should be regularly scheduled audits of the Access to Information program similar to those for Official Languages. Members agreed that the data should allow for benchmarking over time. It was suggested that there should be an interdepartmental committee to discuss the data and analysis and propose action for improvements and increased consistency across the system.

Members expressed their interest in the research being completed on aboriginal concerns. Among other things, they noted the 'heritage' sites exemption in some provinces which covers aboriginal sacred sites, and generally supported a similar provision at the federal level. However, most members had strong concerns about extending, at this point in time, the protection for information obtained in confidence from other governments to Indian bands, since bands do not yet have disclosure regimes that would allow their members to access band information. Members recommended that access by aboriginal researchers to historical information concerning their interests should be facilitated in every way possible and protocols to do so should be strengthened. However,they disagreed with the notion of a separate access regime or the suggestion that aboriginal requesters should otherwise receive differential treatment under the Act.

The Chair updated members on the research under way on the redress process, the structure and powers of the Information Commissioner and the investigative process. She also noted that the report was taking longer to complete than expected because of the researcher's extensive consultations and efforts in verifying the vast amount of information it contains.

Mary Anne Stevens presented the early results of statistical research on fees which discloses a number of interesting facts: 80% of access requests are small, resulting in the review and release of fewer than 100 pages; only 1% of requests result in the release of more than 1,000 pages; a large percentage of fees payable are neither collected nor waived; and for 95% of the requests studied, less than $25 was paid.

General Discussion on Reform

This lead to a general discussion on options for fee structure. Although a few members were opposed to any fee increase, the members were generally supportive of the idea of a general indexing of the 1983 fee rates, but not any further. Members recognized that there were costs attached to most rights. What is important is that the fees do not create an obstacle to the effective exercise of the right. In particular, most members agreed with the indexation of the application fee to $10, while a few members were still debating whether there should be any application fee at all. All endorsed an approach whereby a modest set fee would be the only fee payable for the large majority of non-commercial requests.

Given the predominance of business requests (over 40%), the majority of the members agreed with the concept of a differential and higher fee structure for commercial requests as long as it was clear that requests from the media, the general public, Parliamentarians, and public interest groups were not to be considered business requests. Finally, there was some support for a cost recovery approach for the very rare extremely large requests (about 1% of all requests). Members believed, however, there should be a duty for institutions to assist requesters in framing their requests in an efficient way.

Reviewing the issue of the coverage of records under the Act, members had a lengthy exchange of views about the status of notes prepared by public servants for their own use, which are not shared or placed on the office file. In a number of jurisdictions (for example the USA) these kinds of notes are not considered covered. At the federal level, the situation is unclear. A number of members expressed the view that such 'memory joggers' have nothing to do with government accountability, and should not be considered part of the government file. Other members, however, were of the view that anything written by a public servant in the course of their work should be covered by the Act. Some members for their part thought this latter standard to be unreal and unworkable. All agreed that clear direction would be needed about what constitutes a record under the control of an institution.

In discussing the scope of the Act, members had questions about how the Act could apply to Cabinet confidences, and all agreed that a recommendation to bring confidences under the Act would be well received. The general view was that this would be considered a ‘touchstone’ recommendation. The members were also of the view that the definition of Cabinet confidences should be narrowed, to focus on the protection of the deliberations of ministers.

In looking at exemptions, the Committee discussed whether consultants’ work should be covered by the advice and recommendations exemption as it is in many jurisdictions. Some members had concerns. The majority of members recognized the change in how consultants are used by government, and that section 21 should protect not only trust in the relationship between ministers and public servants, but also the policy development process and the authority of ministers to make decisions based on confidential advice.
Most members, but not all, agreed that consultants' work should be covered by the exemption in section 21, provided that it clearly falls within the parameters of the exemption (e.g. advice and recommendations similar to those of public servants). Members also stated that training for all public servants on the proper application of section 21 is essential.

The need for administrative limits for large unfocussed requests (for example all the records in the office of Ms. X.) was discussed. Everyone recognized the need but also the challenge of ensuring reasonable efficiency in the process by requiring a certain level of precision in requests while not creating an obstacle to accessing information. The Committee again recommended assisting requesters in framing more effective requests.

There was some discussion of concerns raised by the internal audit community about the release of draft internal audit reports and related working papers. The Auditor General is being consulted on this. Most members agreed that release of incomplete audit papers could cause real damage as the work is not yet validated and may contain errors. This result would be inconsistent with professional auditing standards and could be harmful to the quality of future audits being conducted. A differing view was that access to the draft audit reports is useful for interested parties who may wish to provide comments before the audit is finalized. Members discussed whether there should be an exemption to protect unvalidated information in draft reports and working papers until the report is finalized. It was suggested that any such exemption should be clearly limited to internal audits, and ‘working papers’ clearly restricted to those recognized as such by the auditing profession. Members were also of the view that such an exemption would have to have strict parameters to ensure it was not abused by keeping audit reports in draft form indefinitely.

Members had a lively discussion about the redress process in general, and the role and powers of the Information Commissioner in particular. Most members support a move toward an order-making power for the Commissioner, and encouraged the Task Force to consider a recommendation in this regard. Members disagreed on expanding the role of the Commissioner to include, for example, public education. Some members were of the view that an expanded role could increase time in handling complaints unless the Commissioner is given substantially more resources. Most members, however, were of the view that the Commissioner should take a leadership role in public education on access to information. All agreed that the publication of his findings and investigative procedure would contribute significantly to the education and guidance of all parties.

Members, while not unanimous on all the directions contemplated by the Task Force, considered overall that the Task Force's directions for reform represented a well-balanced package that would constitute significant progress for access reform. In a final analysis, the Committee believed that lasting improvements to access to information would best be accomplished within a strong culture of service and responsiveness to the public within the public service.

The Chair ended the session by thanking the members for their input to the Task Force’s considerations over the past year. She spoke for the entire Task Force when she said that, by sharing their wisdom and experience, the External Advisory Committee added immeasurable value to the review and a had a high degree of influence on the recommendations envisaged by the Task Force.

External Advisory Committee Highlights