Highlights of Meetings - External Advisory Committee

JUNE 5-6, 2001
OTTAWA

Members Present
Dean Beeby
Paul-André Comeau
Norman Hillmer
Arthur Kroeger
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
Bruce Mann, ATIRTF
David Zussman, Public Policy Forum
Paul Tetro
Lee McDonald, National Archives
Denis Kratchanov, Department of Justice
Anne Brennan, Treasury Board Secretariat
Judith Mooney, Department of National Defence

Report on Discussion:

The following is a summary of the discussion of the meeting of the External Advisory Committee (EAC), June 5-6, 2001.

Public Consultations - Roundtables

David Zussman, President of the Public Policy Forum (PPF), provided an overview and status report on the roundtables held to date by the PPF on behalf of the Task Force. A summary of discussion from the first roundtable, convened by the Task Force in which 17 stakeholders participated, was also circulated for Members information. Over 480 access stakeholders and experts, including the media, academic, non-government organizations and business communities, were invited to participate in the 4 PPF roundtables. The take-up rate in the PPF roundtables was uneven, low for some of the round tables, high for others. Mr. Zussman reported that PPF has consistently heard there is strong support for the ATI legislation with most concerns directed to the administration of the Act. Almost all participants recognised legitimate boundaries to release of governmental information.
There was a sense that the information could be released in a more timely manner and a suspicion that public servants and political aides are not implementing the Act as it should be. There was concern about lack of consistency in the application of ATI across departments and the perception of conflict between privacy and access rules.

Members of the EAC discussed options for making information more routinely and easily available. Members of EAC supported building into the legislation a forward-looking direction that would anticipate technological advances and foster routine proactive release of information. The challenge posed by the Official Languages Act to web posting was briefly discussed.

Complaint/Redress/Appeal Process

Paul Tetro, a former General Counsel with the Office of the Information Commissioner and consultant doing research for the Task Force on redress models, discussed some of his early findings. Section 2 of the Act enshrines a right of an independent review of the decisions of institutions. He noted that the 1977 Green Paper states the "review process should ideally have the attributes of public credibility, consistency with Ministerial responsibility, speed, efficiency and minimal cost". During the Parliamentary debate of the Bill, there was surprisingly little discussion of the selected two step redress model of an ombudsman to investigate complaints with a judicial review by the Federal Court.

The Information Commissioner (IC) is a Parliamentary officer generally described as an Ombudsman. The responsibilities of the Commissioner under the Act are to receive and investigate complaints and to make recommendations to the institutions on proposed medial action where complaints are well founded. The Commissioner cannot make orders. The Commissioner has to submit an annual report to Parliament on the activities of his office. Section 36 of the Act gives the Commissioner very broad investigative powers, the powers of a superior court of record and almost total discretion in the conduct of investigations and in the exercise of his responsibilities.

Mr. Tetro reported that in the 1983 Parliamentary review there was again no real discussion of the merits of the redress model and independent review process of institutions' decisions except to recommend a 90 day time limit for the IC to complete investigations.

By comparison most other jurisdictions, for example the recent U.K. Act, spell out in much more detail the role, responsibilities and powers of the review body.

The members discussed what had led to the current adversarial and litigious relationship between government institutions and the Office of the Information Commissioner (OIC). The point was made that this deterioration had been progressive over five or six years. A number of factors were raised such as mounting frustration on the part of the OIC, lack of resources on both sides over a number of years, lack of knowledge of the Act by public servants and users, lack of guidance in the Act on the conduct of investigations, individual circumstances and personalities. Once a harder line was taken on investigations, government reacted with more adversarial attitudes which in turn resulted in more litigious approaches. The Committee members expressed concern about this vicious circle and the break down in the relationship and discussed how to move from a naming/blaming/suing approach to a more collaborative working relationship.

Mr. Tetro suggested that better precision as to the role, responsibilities and conduct of the Information Commissioner could be beneficial. For example, the Act could spell out clearly a public education role, an audit role to solve systemic problems collaboratively with departments, and the conduct of investigations to ensure due process and natural justice.

In general, Mr. Tetro expressed the view that departments had not learned well enough how to live with the ATI Act and that the publishing of the reasons for the Commissioner's findings and practice notes could go a long way in providing clarity and guidance to the public service on the proper application of the Act.

Mr. Tetro reviewed the most interesting features of the redress models in other jurisdictions (provinces, U.S.A., U.K., Ireland, Australia, New Zealand). Members encouraged Mr. Tetro to continue with his research in looking at review/redress models and lessons learned from other jurisdictions.

What to look for in a Redress Process

Many Members discussed the paradox that while today there is generally more information and more sensitive information released, and the Canadian statistics on access are some of the best in the world, the situation is now more acrimonious, with more dissatisfaction on all sides than in the past.

There was a recognition of the need to move away from adversarial approaches and to reduce irritation and unnecessary exasperation on both IC and government side.

A general discussion took place on the desired traits of an ATI redress model and the factors that influence the ability and willingness of people to comply with the law, such as incentives, sanctions and rewards (formal or informal), the capacity to comply, and internalised values. Adequate resources for the OIC and for departments and strong leadership from the top were seen as critical factors for compliance.

Many of the comments focused on changes that would reduce adversarial approaches that in the view of a majority of members will not result in more compliance and more openness and transparency. Some members questioned the capacity of the system to get out of its adversarial mode, given the personalities currently involved and the adversarial use made by the media and parliamentarians of information released.

Members discussed how to ensure greater accountability for public servants and for the OIC, the introduction of codes of conduct and bench marks (not only overall raw statistics but assessing if the Act works where we want it most to work) and the possibility of giving a permanent home to access with a joint House of Commons Senate Committee.

During the discussion it was noted that there has been an absence of transparency within both government and the Office of the Information Commissioner. There was general support, on condition that resources would be provided, to help build consistency and predictability into the process by publicizing the reasons of the IC.

Members were also in favour of moving the public service from a strict legalistic compliance model to one of enthusiastic proactive and informal provision of information to the public. This, it was felt, was more likely to be achieved by publicising best practices than focusing only on cases of failure to comply.

A number of Members were in favour of giving the IC order-making power, at least on process issues (fees, format, delays, etc.) one member described this as - "giving the IC a big stick so he can walk softly".

It was agreed that the "modus operandi" of all parties (users, government, IC) is probably more important than the legislation and is key to a well functioning access system.

Ending the downward spiral of distrust, and rebuilding respect for all parties in the process was seen as both very hard to achieve but critical to the future performance of the access framework. Members agreed that trust is one of the most important high level themes that should be considered by the Task Force.

Members considered various theoretical redress models from an education focussed ombudsman model to a full commission model and discussed various features such as internal review, mediation, an audit function and the role of courts. The Task Force was told that the model should be linked to values recognising that trade offs were inevitable in applying values. Among the values proposed were visibility and accessibility, simplicity and understandability; objectivity, impartiality, integrity, credibility; substantial fairness; "public interest" test; procedural justice; due process; collaboration and mediation balanced with definitive rulings; cost effectiveness; responsiveness balanced with thoroughness and consultation; consistency, predictability, definitiveness of results; transparency and performance reporting; and finally subjective responsibility and objective accountability for decision-makers on process and substance. Members requested the opportunity to revisit this issue.

Records, Record Disposal & Related Issues

A short presentation was made on the current definition of "record" under the ATIA and comparing it with similar definitions in other jurisdictions. The issue was whether the definition requires adjustment to address advances in technology. The Committee suggested that the definition could be amended to clarify that software is not a record.

Lee McDonald, Assistant National Archivist, explained the government's records disposition framework is covered by the Archives Act and is the link between the ATI Act, the Privacy Act and the Archives Act. The three Acts are interrelated pieces of legislation planned in symmetry.

Mr. McDonald explained that unlike the American system, which differentiates between "records" and "non-records", in Canada every document or piece of paper is considered a record and belongs to the Crown. In Canada, of all records "under the control of an institution", only 1-2% are considered to be archival records for permanent preservation. Mr. McDonald provided an overview of different types of records "under the control of an institution", including transitory record, and their appropriate disposal.

Mr. McDonald responded to questions concerning the disclosure of historical information by the National Archives during which he explained that they do not currently have the resources available to review all of the records in anticipation of an ATI request. Moreover, the review process is more complex that it was under the previous 30-year rule, particularly because of the protection now accorded to personal information and the transfer of more sensitive series of records, e.g. CSIS, to the Archives for preservation once the ATI Act was in place. In that discussion, Mr. McDonald described the 30-year rule as a solution designed for the 1970's and supported the idea of individual maximum time limits of less than 30 years for most exemptions in the Act as one that would be more likely to facilitate access by researchers.

Personal Information from the ATI Perspective - s.19

Denis Kratchanov, the Director of the Information Law and Privacy Section at the Department of Justice, provided an overview of the main areas of overlap between the ATI Act and the Privacy Act, including the definition of personal information, the roles and responsibilities of the two Commissioners and the structure of the exemption framework. Members were concerned by the current conflict of interpretation of the rules between the two Commissioners' offices. Members discussed whether it would be easier to balance privacy and access interests if both responsibilities fell to the same individual. Mr. Kratchanov indicated that the two Commissioners have rarely taken opposite positions in Court cases. Members suggested that having access to reasons of both Information and Privacy Commissioners could help administrators and legal advisors on access.

Mr. Kratchanov also responded to questions on the role of the Information Law and Privacy Section of the Department of Justice in providing advice and training on the ATI Act to departmental legal services. Members also raised the fact that the Information Commissioner has access to solicitor-client privileged information relating to complaints to the IC and this is then entered as evidence in Court. Mr. Kratchanov indicated that this goes against common law principles on solicitor-client privileged information and could limit the number of legal opinions requested from the Department of Justice on ATIP matters.

ATI Units and Staff

The ATI Act does not make reference to the position of ATI co-ordinator but the Treasury Board Policy states that institutions must designate an official to co-ordinate the duties imposed by the Act. The Guidelines recommend the Co-ordinator be no more than 2 levels removed from the Deputy Minister and be responsible to ensure compliance with the Act.

The Task Force is gathering data and conducting consultations on ATI units and staff. Some of the early findings include the fact that the responsibilities, workload, level and location of ATI co-ordinators varies considerably across 140 institutions; there is no clear career path into ATI or after ATI; recruitment, training and retention of ATI staff is problematic and there is fierce competition between institutions and the private sector for good people. Few co-ordinators expressed support for the idea of incorporating their role in the Act or having them all report to a single department such as the Treasury Board Secretariat or to the Information Commissioner. This would also fly in the face of the accountability structure under the Act. Executive level classification for the Coordinator's position, however, appears to have a positive effect on how influential the co-ordinator can be and the capacity to attract high quality candidates to ATI units.

Users have repeatedly indicated in consultations that capable, knowledgeable ATI staff may be the single, most important factor of success in providing effective access to information.

The EAC was supportive of a highly trained group of ATI professional staff that would have good careers across the various departments.

Anne Brennan, Director, Information and Security Policy Division, Treasury Board Secretariat and former ATIP Co-ordinator in the Department of Justice and Judith Mooney, Director of Access to Information and Privacy, Department of National Defence (DND) met with Members to answer their questions on the co-ordinators responsibilities, functions and process used by ATI units.

For access to work well, they emphasised the importance of the close cooperation of program staff who are the subject matter experts and the on-going support and leadership of senior management.

They acknowledged that working in access is a challenging, stressful job requiring high stamina. It is also rewarding when their work is valued in the institution.

In response to Members' questions on what they believed most influenced compliance, they suggested that recognition of senior management efforts was the most effective way to foster positive compliance. In their view exposing problems and poor performance could be effective - it certainly brought more visibility and resources for access units - but only to a certain point after which it became counter-productive. Asked for their views on the independent review process, they expressed a need for greater clarity and predictability of the investigation process and consistency in interpretation of the Act on the part of the OIC. The process too often seems capricious and unpredictable. They were favourable to a time limit for conducting investigations.

They saw fees not as a cost recovery mechanism but as the only tool imposing some discipline in the system to the benefit of all the users.

Then both stated that they would like to see more flexibility on time limits, possibly negotiated between the institution and the requestor with a review by the IC. While triage of files is helpful for timely compliance, it does not work for complex files. Both coordinators were especially concerned about the consequences of errors occurring with personal information when big files are processed too fast.

Members were interested in DND's innovative practice of posting summaries of information provided through access requests on their web site and once again expressed support for the voluntary release and posting of information by departments.

Treasury Board Policies & Guidelines

To follow up on the previous discussions on providing guidance to the public service, the Treasury Board Policy and Guidelines on the application of exemptions was presented to the Members.

They discussed the challenge of ensuring compliance with the spirit and objective of the legislation. They emphasised the need to maintain flexibility within the legislation and the importance of clear accountability, incentives and the means to measure success to ensure the objectives of the Act are met.

Next Steps

Members provided their views on the desirable traits in the Task Force Report. Members supported a statement of broad principles that delivers a message of openness and transparency. They proposed that the Task Force address broad philosophical issues in the report and expressed caution against taking a narrow focus based primarily on the technical aspects of access. Members told the Task Force to be fearless and aggressive and said that Canada should be on the leading edge of access to information when compared to other jurisdictions.

Members also noted that several issues are emerging as having consensus with the EAC. For the next meeting, the Committee will discuss outstanding issues and review the whole access framework. The Task Force was asked to try to put together the directions on the various issues previously discussed, as they have heard them from the EAC to facilitate this discussion on overall perspective and direction for access.

External Advisory Committee Highlights