Highlights of Meetings - External Advisory Committee

JUNE 25-56, 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
Sherry Moran, ATIRTF
Murray Rankin, Arvay Finlay
Helen McDonald, Treasury Board Secretariat
Ian Sinclair, Treasury Board Secretariat
Ken Kernaghan, Brock University
John Reid, Information Commissioner
Alan Leadbeater, OIC
Dan Dupuis, OIC

Report on Discussion:

The following is a summary of the discussion of the meeting of the External Advisory Committee (EAC), June 25-26, 2001.

New Context of ATI

Members discussed preliminary findings of research papers commissioned by the Task Force on the evolution of citizens' values and on governance issues and ATI. The purpose of this research is to provide a strong contextual background for ATI reform.

Members discussed trends that indicate that a growing segment of Canadians with higher levels of education will have a higher degree of political interest, preference for "more open government", less confidence in government institutions but a higher degree of satisfaction with democracy. These trends could lead to an increased use of the Access Act and a more sophisticated understanding of governmental information.

The governance challenges of the new information society were discussed. Issues include the necessity of providing more information to support social learning and the difficulty of communicating complex information to the general public at a time when there is evidence of more adversity and lack of public trust towards government. Members once again highlighted the need to put more information in the public domain.

An updated list of the research being done for the Task Force was discussed with the EAC members. Members were told the list is posted on the ATIRTF web site and, as they are completed, the research papers are being posted as well. This list is evolving as more research could be commissioned if need be.

After a general discussion on social trends, Members agreed there is a need to consider the impact of modernization on the ATI Act and to build public trust. It was suggested that change should follow a three-pronged approach: Legislative Reform, Administrative Reform and Cultural Reform.

Ministerial responsibility and Public Sector accountability

Ken Kernaghan, a professor of Political Science and Management at Brock University, is under contract to the ATIRTF to write a research paper on ministerial responsibility and accountability in the Public Sector. Professor Kernaghan opened the discussion with the subject of ministerial responsibility. Some hold the view that ministerial responsibility is a cornerstone of Canada's parliamentary democracy and others believe that ministerial responsibility is obsolete. He explained that the constitutional convention is a complex one that is widely misinterpreted both unintentionally and deliberately. The purpose of ministerial responsibility, said Professor Kernaghan, is to ensure that someone in government is answerable for decisions. After discussing collective ministerial responsibility Professor Kernaghan told the committee that individual ministerial responsibility has two components - a resignation component and an answerability component. While the resignation component is now rarely used, the answerability component - requiring that each Minister answer to Parliament for the actions of his or her department - is still very relevant and is the most important of the two.

Professor Kernaghan questioned comments made by the Information Commissioner (IC) who referred to Ministerial responsibility as an "outdated notion" and his view that public servants are now directly accountable to the public for their actions based on a statement made by Mr. Justice La Forest, speaking for the Supreme Court of Canada, in the Dagg case. According to Professor Kernaghan, public service anonymity and political neutrality, which allow public servants to provide advice to Ministers in confidence, are two elements tightly linked to ministerial responsibility. They support ministers' authority for making decisions.

When asked about the decline of public service anonymity, Mr. Kernaghan explained that there were many reasons for this decline including media, public service reform, Parliamentary Committees practice and to some extent the ATIA. He referred to the John Tait report on values and ethics which concluded there was not much that could change this trend. Members were told they should not just look at anonymity but at neutrality of the public service, both being in support of ministerial accountability and authority. In Professor Kernaghan's view, these three elements are linked and must be viewed as a whole.

During a general discussion with Members, Professor Kernaghan expressed the view that Canada is moving toward increased visibility and accountability of the public service. However, he cautioned against a simplistic and hasty separation of accountability of policy and administration with the latter being devolved to the public service. Where this approach has been attempted, it has proven difficult to separate policy matters from operational ones. Moreover, only Ministers are accountable to Parliament and they reserve the right to intervene in operational issues.

The Committee acknowledged that the current accountability structure under the ATIA, with the Minister being responsible and the Deputy having delegated authority which he/she in turn delegates to an ATI Coordinator, is perfectly compatible with the constitutional convention of ministerial responsibility.

Members wanted to examine the links between accountability and culture and suggested that even if authority for access to information was delegated within departments, Ministers would still have a very significant impact on creating a culture of openness and compliance with access to information. The letter of the DND Minister to his Deputy was cited as an example of the kind of message a Minister should send to his department and totally compatible with ministerial responsibility and the Act.

Members agreed that in today's large bureaucracies vertical responsibility misrepresents the complex reality of decision-making. They suggested that there is a need to move away from individual accountability that focuses on blaming individuals to a remedial approach of collective accountability. They suggested report card approaches and including access to information as a reporting item in departmental business plans. Business plans are tabled before Parliament and this would provide an opportunity to keep Parliament informed of the progress on ATI.

The Committee was also of the view that Ministers leadership was an important factor and that a strong signal should be sent at the political level to the public service on the importance of openness.

Influencing Culture and Compliance

There was a general discussion concerning the possible ways and means of influencing culture. Members agreed that the culture in the Public Service needs to shift towards more openness and transparency and away from grudging compliance with the ATIA.

Discussion turned to the influences or levers that can facilitate changes to culture. Members recognized that there was no magic solution and that a range of levers should be looked at in an integrated manner. Some of the levers identified include: the Act and the ATI policy and guidelines; political and public service leadership; training; to ensure competent, knowledgeable ATI staff; awareness-raising in the whole public service; ATI considerations in staffing; ensuring organizational capabilities such as budget, knowledge and structural support; ensuring adequate space for ATI in the flow of decision-making; events and ceremonies - celebrations of success; communications patterns; performance measurement; fostering research on ATI; an active, responsible ATI constituency; interested and knowledgeable MPs; and, ongoing monitoring by Parliament, including monitoring of the Office of the Information Commissioner. It was noted that the Public Service is not taking advantage of the levers available for change toward more openness.

Members agreed with authorities on culture that change does not happen quickly. Patience and perseverance as well as consistency, clear values and reinforced rules are required to make change. While strong leadership and a commitment to change is fundamental to a cultural shift, putting the whole burden of change on Ministers and Deputies in a system as complex as the public service is naïve and will not generate results. A holistic approach is required.

Technology Applications to Facilitate Access

Members discussed how technological advances could enhance access to information. They were provided with information on the use of technology today in the access process including: an annotated version of the ATI Act on the Department of Justice web site; Treasury Board policy and guidelines on the TBS web site; tracking systems for access requests such as ATIPflow and ATIPimage. Other developments include: the use of e-mail for notifying managers of ATI requests; pilot projects for accepting access requests by e-mail; electronic management of records; use of CD burners; one department's practice of placing summaries of requests on the Internet; and departments looking into the possibility of virtual reading rooms.

In the future it is expected more requests will be handled electronically with payments also made electronically. There will likely be more wide-spread electronic tracking systems of requests, more integration between electronic document management systems and more use of the Internet to post request information. Issues related to these developments include the capacity to respond to users increased expectations of instant service, improved information management, software capability and better co-ordination of information between departments.

Solutions put forward by Members for consideration in dealing with these issues include: the classification of documents at the front end to identify what and when information can be released; dropping the $5 request fee to facilitate electronic requests; implementing government-wide posting of requests; and publishing a registry of released documents (Central Registry System). On this latter suggestion, members recommended that the Federal government work at putting this information on-line as soon as possible with the ability to do keyword searches. That one improvement would simplify access significantly for users.

Information Management and Providing Information to Citizens (Government on Line)

Helen McDonald, Director General of Government On-Line (GOL) and Ian Sinclair, Director, Information Policy, at Treasury Board discussed with the Committee the Information Management and Government On-Line initiatives. Both initiatives could significantly enhance access to information.

The Information Management Framework is a key deliverable for the government. Currently very few departments have a framework or strategy in place. Within the next six months, Ms. McDonald indicated she expects to see guidelines and standards on information management through its life-cycle from creation to disposal. This should assist access to information by providing policies and standards regarding requirements to document and generally by raising awareness of the importance of good information management.

The GOL initiative can also facilitate access both in providing more information directly on-line to Canadians and providing more information about how to access government's information under the Act. Ms. McDonald warned however that publishing information on the web is neither instantaneous nor inexpensive and that some official languages issues have yet to be resolved. The "common look and feel" policy for all government information will facilitate access to information by making it easier for Canadians to navigate government sites. Ms. McDonald recognized that access to information has not been a priority in the first round of departmental funding for GOL.

Members wondered whether Canada should not emulate the US requirement for agencies to have Freedom of Information on line, with information at a single point of access and virtual reading rooms.

Members expressed support for the Information Management and GOL initiatives but were very concerned that Treasury Board does not seem to properly appreciate how these initiatives should be supporting greater access to information. They advised the Task Force to make a recommendation for better harmonisation of these initiatives with access to information.

Finally, some scepticism was expressed within the Committee that on-line information does not necessarily mean more openness. The opinion was expressed that it would be naïve to assume departments will post embarrassing information and that information can be sanitized or edited before it is posted. Therefore there would always be a need for formal requests under the Act.

Other Scope Issues

The ATI Act applies to records "under the control of a government institution". Members discussed the concept of control with respect to a number of areas and types of records such as MPs' and Senators' offices, Ministers' offices, judicial and quasi-judicial notes, records held by contractors and public servants' notes. Members noted that the intent of the exemptions in the ATI Act is to protect, among other things, the principles of our political system and various deliberative processes. If Parliament and the courts were to be included under the Act in the future, the in camera deliberative processes of parliamentary committees and judges would need to be protected. In looking at other jurisdictions, there is no one approach to providing protection for these kinds of records.

Members also discussed differences between Party caucus offices, Parliament, Cabinet and government as a whole. While they were generally supportive of covering Parliament under the Act as "giving the right signal", they indicated it would be difficult to justify making records of Members of Parliament subject to the Act as this could impact adversely on the relationship between MPs and their constituents.

The Committee then discussed records in Ministers' offices. Ministers' offices are dual in nature, Ministers being both parliamentarians and heads of institutions. Government has always been of the view that ATI Act does not apply to ministerial records. A similar rule is found in Quebec law. Current litigation at the Federal level indicates that there is some uncertainty about the issue. Members suggested that there is a need for clarification and implementation of the standard practice for managing ministerial and departmental records separately in minister's offices. Some members suggested that Ministers could consent to, or veto with reasons, the release of information exclusively held in their office. It was recognized that this is a very difficult and sensitive issue in need of more clarity.

Many members supported the view that there needs to be a mechanism to ascertain that the records are not covered under the Act, because they are ministerial, Parliamentary or judicial in nature.

Members turned to quasi-judicial notes. Members expressed the view that judicial deliberative processes should be exempt if courts are made subject to the Act and that the same rule should apply to the deliberations of quasi-judicial bodies.

With respect to the records of contractors, it was noted that other jurisdictions vary in their inclusion of this information under their respective access legislation. Members pointed out that this issue has become more significant with the increase in privitization and alternative service delivery. The possibility of introducing guidelines to indicate when records are related to government accountability was suggested as well as "deeming" the records to be under the control of the appropriate governmental institution.

Members also considered the issue of public servants' notes and the need to balance privacy in the workplace with the need to make government information available to the public where it related to the accountability of public servants in the exercise of their duties. It was agreed that this is a grey area and can negatively impact the capability to document government action. Members generally supported the establishment of guidelines on the creation of records by public servants. There was some support for the suggestion that public servants' personal aide mémoires, that do not impact on decisions or do not constitute a record of decision, should be excluded from the ATI Act as is the case in some jurisdictions such as Quebec.

Third Party Provisions

Murray Rankin is a partner in the law firm Arvay Finlay and is under contract to the Task Force to conduct research on the application of third party provisions in the Access to Information Act (ATI Act), and to assess options for reform. Mr. Rankin provided an overview of the objectives of his research and his review of section 20 of the ATI Act to date.

He noted that a key question is when the government has custody or control of information but he pointed out that there can be disagreement on what constitutes control for the purpose of the Act. The courts, in Mr. Rankin's view, have given a broad interpretation to the concept of control, ensuring a meaningful right of access. Mr. Rankin added that he is impressed with the way the courts have interpreted all aspects of the exemption in section 20.

EAC members reviewed the exemption and public interest override.
Mr. Rankin explained that many of the terms used in section 20 (such as "trade secrets") are not defined in the ATI Act, although, he again noted that there is good case law in this regard.

During the discussion, Mr. Rankin noted there is a need to educate third parties about their obligations. He also recommended better incentives to encourage the public sector to "do the right thing". He told Members that, in his view, there is currently an appropriate or healthy tension between the public's right to know and protection of commercial interests. With respect to business information collected by the government, Mr. Rankin expressed the view that businesses who chose to contract with the government are familiar with the rules of disclosure and should be prepared to release information. When the government issues a call for tenders, it should make it clear to tendering companies it cannot guarantee confidentiality in all cases.

Members were provided with an overview of concerns about third party notice requirements, such as files that involve tens of thousands of third parties to be notified of a decision to disclose.

On the issue of "trade secrets", Mr. Rankin indicated that the Act could be amended to include a narrow definition but added that the courts had already developed a narrow application in this regard and any amendment could lead to more litigation.

Among the issues he is researching are the application of the specific public interest override in the third party provision to trade secrets and extending it to consumer protection. He is also looking into whether an amendment could obligate the government to exercise its discretion in favour of access but, in his view, there is no apparent problem that would be fixed by such an amendment. Mr. Rankin indicated that he did not support a general duty to disclose in the public interest, noting that jurisdictions with these provisions such as B.C. and Ontario do not use them because they are considered too broad.

Mr. Rankin concluded that although he started with quite a different perspective he was now of the view, in light of the excellent job done by the courts, that the legislation requires only minimal adjustment, if any, but that substantial gains could be made with the administration of the Act.

Information Commissioner

John Reid, the Information Commissioner of Canada (IC), met with the EAC to discuss issues raised in his recent report and to respond to members' questions. A copy of the full text of Mr. Reid's remarks is attached as an appendix.

Mr. Reid expressed the view that leadership is the key to improving access. As an example, he referred to his annual report cards to departments and the significant improvements and turnarounds achieved on delays where Deputy Ministers have shown the leadership needed to improve results in departments. When Deputy Ministers send out signals in support of openness and transparency, results can be seen. However, progress across the public service is still uneven. He told members it is time for the Prime Minister to take the lead to begin a cultural change within the Public Service, something, in his view, no Prime Minister in the last 18 years has done.

When asked how to shift the culture within the Public Service to one that is more open and transparent, Mr. Reid suggested basic training on ATI throughout government. He noted that he did not think training is a responsibility of his office although it had assumed some functions related to training because Treasury Board has not taken up the responsibility. He added that the IC has become the spokesperson for the ATI Act, again because no one else in government has assumed the role. Leadership again was the key. He believes leadership would be enhanced by having a single Minister responsible for access, instead of two. He urged the Task Force to emphasize the need for leadership in its report.

Mr. Reid expressed the view that delays in processing access requests are chronic and widespread. For the Commissioner, meeting timelines is a kind of litmus test for ATI performance. He added that the government is facing a serious problem of management of information both to meet its own business needs and to ensure access under the law. In his view, better information management would go a long way in solving delay problems. He acknowledged there have been improvements and noted Treasury Board's initiative to provide more resources to ATI.

The Commissioner stated that he would like to see more on-going, top to bottom, education of public servants and ministerial staff, not just ATI Co-ordinators. Asked if the IC has a role in training and public education,
Mr. Reid deplored that so few people have a good understanding of the legislation but said that he would be reluctant to take on the role without the resources to carry it out. It could also be perceived as a conflict of interest ("drumming up business") for the Commissioner to carry such a role. If a public education role was necessary, perhaps the responsibility should rest with the Treasury Board Secretariat. Treasury Board should also be responsible for collecting ATI statistics and providing on-going monitoring of the situation.

Acknowledging that the Act is a very good law, the Commissioner is, however, of the view that it is long past time to mend its weaknesses and to make the numerous "fine-tuning" changes necessary to keep it current with new forms of governance and technology. Among the key targets for reform, he identified Cabinet confidences, coverage, section 24 (statutory prohibitions), incentives and penalties to meet deadlines, and a legislated mandate for coordinators. His suggestions for reform are fully described in his 2000-2001 annual report. He also presented 16 potential changes, also found in his report, that he maintains could undermine ATI and cautioned members not to endorse changes of this kind.

On frivolous and vexatious requests, Mr. Reid told members that while some jurisdictions have provisions to deal with these kinds of requests, they are seldom, if ever, used. He explained that he would not object to a provision in the ATI Act but cautioned that the terms would have to be well defined. Mr. Reid added that in his view the issues could be addressed if departments took a proactive stance and tried to resolve problems. On whether the Act should provide tools to deal with burdensome requests, he indicated that the concern with burdensome requests is totally tied to resources and this is where the solution lies.

On the subject of a possible preamble for the ATI Act that would make reference to broad aims for access, Mr. Reid said that in his view the Act already has a purpose clause that is quite unique and has been important in influencing the way in which the courts have interpreted the Act. He did add that he would not like to see the current purpose clause weakened in any respect.

The members asked several questions about the powers of the Commissioner. The Commissioner does not have order-making powers but he has strong investigative powers. These powers are real incentives to government institutions to adhere to the Act. In his view these powers are to be used sparingly and only in conjunction with vigorous negotiation and mediation attempts. Mr. Reid spoke at length about the investigation process and the training and supervision of his investigators. A very high proportion of cases are resolved by successful negotiation and mediation and 99.9% of all cases are resolved without going to court. Only two judicial reviews were conducted in 2000-2001.

The Commissioner stated his strong preference for investigations to be conducted by consent and cooperation in order to foster an atmosphere of mutual trust between the public service and the OIC. In his view, trust can be undermined if the OIC is heavy handed. Subpoenas are used with great reluctance by the OIC and officials are seldom put under oath and recorded during their evidence. However, over the past two years, he noted that trust on both sides has been waning and attitudes hardened. OIC officials have been meet with recalcitrance and reluctance. Investigations of systemic delays in the system have led the OIC to the doorsteps of Deputy Ministers who have the power to solve delay problems through resource allocation and leadership. Subpoenas to DMs resulted and were deeply resented.

Members raised the way investigations were conducted behind closed doors and what has been called by some a "star chamber" process. The Commissioner reminded members that his process is that of an Ombudsman and that under the Act his investigations must be conducted "in private" in order to protect the integrity of the information in dispute.

Mr. Reid was asked to clarify the position of the Office of the Information Commissioner (OIC) regarding the right to counsel for public servants called to testify during investigations and confidentiality orders. Members were told that witnesses are granted a hearing in private and that it would be improper for a Department of Justice lawyer to represent an individual public servant while at the same time providing advice to the department of the employee. Public servants have been entitled to private counsel when the request has been made. In some circumstances Crown counsel and witnesses are asked to sign a confidentiality undertaking.

The IC was asked for his views on possible legislated time-limits for investigations, as open-ended investigations could be a problem. Members were told that the volume and response time for investigations is resource driven. Mandatory deadlines would place increased stress on the OIC and departments involved in investigations to meet ICO deadlines; this could possibly result in fewer mediated resolutions and more subpoena orders being issued.

The members were told that the current investigative powers under the Act which are very unspecific if compared to those of other jurisdictions, make for more flexibility in the conduct of investigations, and for results to happen. As an investigative body with police powers and powers of compulsion, the OIC believes it is more effective without too many rules to bind its process. The Commissioner reminded the Members that the effectiveness of any ombudsman depends entirely on his having the tools to ensure a thorough investigation is conducted. It was suggested to the IC that it may be helpful if the OIC would publish his investigation procedure so that it would be better understood by public servants.

For the Commissioner, leading indicators of performance of his office would be (1) how many cases had to be taken to court for resolution; (2) the number of complaints processed, and (3) the level of satisfaction of the Department and the complainant with the resolution and the process.

Mr. Reid said he saw no need for order-making powers for the IC, that he was satisfied with his current authority. He said the OIC ratio of success is good and felt that order-making powers would create a more confrontational situation. He added that if Ministers had an override power, as they do in many jurisdictions abroad, there would be no point in giving the IC order-making powers.

On the possibility of the IC going to court for interpretations of the Act, on a reference or stated case, members were told that while the OIC would not be against being given such a power, it is better for the IC to go to court on substantive issues and with actual cases.

A member suggested that if the IC's recommendations where published, it would bring more transparency to the process and help the ATI community to understand the reasoning behind decisions of the OIC. Mr. Reid replied that because the IC cannot disclose the results of his investigations, his reporting on cases has to be very careful, however, he does publish the decisions of approximately 20 cases in his report each year. These cases are selected to provide guidance to ATI Coordinators and others. He questioned the utility of publishing other cases. However his office is looking at posting findings of interpretative value on their website.

In response to a question from a member on ways to ensure continuous monitoring of ATI, Mr. Reid indicated that he was disappointed with the way in which Parliament has dealt with his annual reports. The overburdened Standing Committee on Justice, which has responsibility for ATI, has not scheduled the time Mr. Reid would like to see devoted to a review of access issues. He noted that this has had an impact on the accountability for his office since key questions are not being asked. All organizations, including his office, should have some kind of accountability and scrutiny. Mr. Reid suggested that Parliament should revise the way in which it deals with officers of Parliament. Mr. Reid was open to a member's suggestion that the OIC could report to a joint Standing Committee of Members of the House of Commons and Senate.

Finally, the Commissioner urged the EAC to be vigilant on defence of access and to speak out on the adequacy of the Task Force recommendations when they were released.

The members concluded that there is deep misunderstanding between the IC and the public service and they were concerned with the need to rebuild trust and mend the relationship.

Putting the Pieces Together

Members turned to bringing together the issues they have discussed in previous meetings and providing overall advice to the Task Force. They recommended three components for ATI reform - legislative reform; administrative reform; and cultural reform.

They started reviewing general principles then turned to a number of specific points:

• Scope - institutions - Members stated that the status quo is not realistic and the coverage of the Act should be broadened. There is a need for a framework or guidelines for deciding which institutions should be covered by the ATI Act. The framework should include some flexibility. They agreed on a refutable premise of inclusion of Crown corporations with appropriate carveouts. Coverage could be extended to Parliamentary officers such as the Auditor General and the Information Commissioner again with appropriate carveouts. For Parliament and the courts, they leaned toward a regime of voluntary disclosure.
  
  
• On ministerial records, members recognized that Ministers were political figures and needed room to play their political role. They discussed the possibility of a ministerial certificate or consent but did not come to a conclusion. However, they noted that adequate training for ministerial staff would need to be provided and there would have to be clear distinction between what information belongs to the Minister (political and personal) and what is departmental - which should be found elsewhere in the Department - although Members acknowledged this distinction would not always be easy to achieve in practice.
  
  
• Scope - exemptions - There was discussion regarding the objective of section 21 of the ATI Act. Members wanted to know if the section was designed to protect public servant anonymity, to uphold ministerial responsibility and authority or to protect full and frank advice? The Committee was concerned that some exemptions could apparently be applied forever and wanted some mechanism to ensure disclosure as soon as possible of all material. There was also discussion related to section 69, Cabinet confidences. Members suggested it could possibly become a mandatory class exemption; they supported the principle that it is the substance of Cabinet deliberations that should not be revealed and endorsed a practice of separating factual information that should not be withheld. In their view Cabinet Confidences were a litmus test for ATI reform. Some Members felt very strongly that the best way to do that was to put a specific time limit on each exception.
  
  
• Access process - Members discussed frivolous requests, and unreasonable diversion of resources. While all were of the view it is imperative that the right of access not be reduced, some members did indicate they recognized the need for some boundaries. However, others felt that even a large number of requests from a single requester could adequately be managed with the current provisions for fees and time extensions.
  
  
• Fees - Members generally supported doing away with the $5 application fee. On process fees, Members discussed the merits of a graduated fee system based on number of pages released as recommended by the Australian Law Commission. Most members showed an interest for a concept of paying for volume released (not search time) but suggested the principle of the system would have to be carefully explained. They were also supportive of equal treatment for all requestors and of a simple system that should make it easier for requesters to predict fees and would provide less opportunities for disputes. However, without more information on how it would play out in practice, they were unable to come to a conclusion.

Wrap-up

Members agreed on the need for more time to conclude on these issues and others related to the access process, the complaint process, administrative and cultural changes. The Task Force will canvass members on possible dates for another meeting.

External Advisory Committee Highlights