Highlights of Meetings - External Advisory Committee

August 20, 2001
OTTAWA

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

Facilitator - Roger Tassé

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

Presenters
Mary Anne Stevens, ATIRTF
Sherry Moran, ATIRTF
Marta Khan, ATIRTF
Valerie Lasher, ATIRTF

Report on Discussion:

The following is a summary of the discussion of the meeting of the External Advisory Committee (EAC), August 20, 2001.

A short update was provided on the work of the Task Force including recent discussions held with the B.C., Ontario, and Québec Information Commissioners' offices. Members discussed the report on the public consultations conducted by the Public Policy Forum. It was noted that the public consultations and consultations within the public service revealed important misconceptions about the Act and its operation. The need for public education was raised as an important issue for the Task Force.

Updated Statistics on Access to Information

Members reviewed preliminary ATI data for 2000-2001. Overall there appear to be no major changes or emerging trends. Some of the statistics are less than precise. For example, it was noted that requesters are not required to identify themselves, therefore, it is difficult to assess what the user profile truly is or whether it has changed. It was suggested that the Task Force consider options that would lead to improved data to profile the users of ATI. More statistics on fees were requested. The Chair indicated that further analysis of the data would be carried out and would be part of the Task Force report. All Members supported the need for better statistics and stronger data on access.

Summary of Submissions

Members were provided with a status report on the written submissions sent to the Task Force on a range of issues related to the legislation and implementation of the Access to Information Act. A total of 31 written submissions had been received at that point with over 260 recommendations and comments related to the full range of access issues. A thematic synopsis of the recommendations and input was being prepared by the Task Force and would be posted on the Task Force web site.

Summary of Research

An update on the research undertaken on behalf of the Task Force was provided. Research has been completed or is underway in four key areas, i.e. understanding the context, scope of the Act, access process and the complaints/redress process.

Professor Neil Nevitte has produced a paper, "Citizen Values, Information and Democratic Life". The paper has been posted on the Task Force web site. Professor Nevitte has concluded that more Canadians are looking for a more open government and greater access to government information.

Luc Juillet and Gilles Paquet have completed research on information policy and governance. The document is now on the Task Force web site. Their paper concluded that in the emerging knowledge-based and information society, the value of government information as a public resource has increased and ATI has become a basic necessity for social learning. The paper also makes reference to governance challenges noting public sector restructuring and the decline of citizen trust in government. The authors noted that justifiable limits on disclosure of information occur where there could be harm to the capacity of the state to act in the public interest. Members expressed the view that any references to limits on disclosure of information by the government must be clear so that there is no misunderstanding within the general public.

Professor Colin Bennett in his research on Globalization and ATI Regimes, has concluded that Canada's ATI legislation is consistent with other jurisdictions but finds that the restriction on the right of access to Canadian citizens, residents and to persons present in the country is out of step. Professor Bennett concludes that globalization is exerting some emulating pressure for jurisdictions to adopt FOI legislation but at this point there is no real pressure for Canada to "harmonize" FOI standards with other jurisdictions.

Research has been done by Professor Ken Kernaghan on ministerial responsibility and ATI. Professor Kernaghan has concluded that the convention of ministerial responsibility remains strong in Canada and there is thus a continuing need to protect advice and recommendations to Ministers in some circumstances (section 21 of the Act). While Members supported the need to have provisions to ensure that Ministers can receive full and frank advice, some cautioned that there is the potential for abuse and that this exemption should not be used as an excuse for not releasing information.

Research conducted for the National Archivist on the impact of the ATI Act on the quality of recording keeping in the federal government has concluded that problems with information management are not new and that the ATI Act has had little or no overall effect on record keeping. Members were surprised with this conclusion and found it hard to reconcile with anecdotal evidence that minutes are no longer taken or taken differently, and that public servants briefed orally since the passage of the ATI Act. Some Members pointed out the need for "space" for public servants to formulate ideas and be creative. It was recognized that creating the right balance between a space for formulation of thinking and the right to information is a significant challenge. Members suggested a set of standards or guidelines might be used to provide direction on what records should be created and kept. It was also suggested that public servants should be made aware that the creation and management of records, as well as the provision of information to the public, are part of their role and responsibility. It was also suggested that government should study where information management is going in the future and look for opportunities, for example making links with initiatives such as Government on Line.

The Members discussed the conclusions of a draft research paper by Barbara McIsaac on the nature and structure of exempting provisions. Ms. McIsaac has concluded that overall the current exemption structure is a good one and should be maintained. In her view, reform should be considered in the application of discretionary exemptions, the obligation to provide information proactively, policing and third party information and Cabinet Confidences.

Members also discussed a report from Murray Rankin and Kathryn Chapman on third party provisions. The researchers have concluded, after reviewing the case law, that there is currently a good balance in the Act between the public interest in disclosure and in protecting commercial information. They have recommended allowing alternative forms of notice when there are numerous third parties involved and educational as well as information initiatives for third parties.

Members were also advised that Dave Stephens has completed his research on the s. 21 exemption protecting internal deliberations, advice and recommendations to Ministers. Mr. Stephens has concluded that a section 21 exemption is required to protect important features of the Canadian political system such as ministerial responsibility. However, he recommends targeted amendments to narrow the application of the exemption and guide the exercise of discretion.

Christine Ardern is researching the issue of published materials and is concluding that the meaning of published should be modernized to include posting on web sites thereby supporting wider and more proactive distribution of government information. Some Members expressed concern that the current exemption in the Act for materials to be published in 90 days is excessive for material posted on the web and suggested there should be procedures and protocols to speed up the process for posting on a web site. They were concerned that the 90 day waiting period can be used to delay release of controversial information. Members recommended guidelines and good practices to discipline inappropriate use of s. 26 of the Act to delay release of information. Departments should be able to show coordinators their plans to publish when claiming s. 26. Some Members noted that postings on the web should be of full and original documents, rather than edited versions. It was also suggested web posting should be done in conjunction with effective use of the government's Depository Service as recommended by the researcher.

Ms. Ardern has completed her report on transitory records and concluded that a sound records management regime is required and that ongoing, appropriate disposal of transitory records should be understood by public servants and others so as not to be contrary to the ATI Act.

Members discussed a draft report entitled, "Managing Response Times Under ATI" authored by David Flaherty, former B.C. Information Commissioner. In his report, Mr. Flaherty concludes that administrative reforms are required for the management of time responses. He suggests that an effective access regime is a management issue and presents a number of solutions. The report also highlights the need for the application of a "reasonableness" standard and concludes that incentives work better than penalties. Some Members disagreed with the author's conclusion on penalties, indicating it would be unrealistic to design a system solely based on incentives and suggested that inability to use certain exemptions if deadlines are missed would be an effective penalty. Other Members strongly disagreed, commenting that exemptions were created by Parliament with the public interest in mind and should not be a valid object for penalties. They suggested incentives can be effective if used with other tools such as appraisals to highlight poor performance.

Members also briefly reviewed the conclusions reached by Paul Tetro in his research project on models for a complaint/redress system. Mr. Tetro has concluded that the ATI Act should be more precise on the role and powers of the Information Commissioner (IC) and the redress process. The report lists an assessment of the current problems with redress and provides options for the role of the IC and redress process.

Putting the Pieces Together

Note: The following includes comments provided in writing and on the phone by EAC Member Paul Thomas.

The Committee pursued the discussion begun at the previous meeting on June 25-26 on overall directions for reform. Members confirmed their previous recommendation that ATI reform include three components - legislative reform; administrative reform and cultural reform.

As part of the general discussion on accelerating support within government for ATI, Members again endorsed requiring a reference to ATI in departmental business plans as part of the management responsibility.

In developing the overarching themes for the reform, Members encouraged the Task Force to promote informal and proactive release of information and that ATI should be considered a last resort for acquiring information. Members also emphasized that the ATI process should be simple, easy, inexpensive, timely and accessible. Leadership was described as critical in terms of establishing ATI as a priority and projecting its importance throughout the public service. Members also felt that one of the themes should be the promotion of public understanding of the values and principles of ATI. Members agreed with a statement of values and principles, emphasis on release of information, better data collection and monitoring, and integrity of the system.

Members were of the opinion that the current restriction of the right of access to those who are citizens, residents or present in Canada should be abolished.

Members agreed that the coverage of institutions under the ATI Act should be extended. There was support for a rebuttable premise of inclusion of Crown corporations. Members also agreed that a framework or set of guidelines would be required to determine which institutions should be covered by the ATI Act. Members discussed the need to design rules for coverage of certain agencies or offices, for example, the Office of the Auditor General or the Information Commissioner, and protection of parliamentary privilege in the event that Parliament is included. Views differed on the extent of coverage and the appropriate mechanism to review coverage.

The concept of "under the control" was discussed. Members agreed that there needs to be more clarity for determining information under the control of a government institution. Members also identified the need for an independent review mechanism to determine whether the records in dispute are under the control of an institution and thereby subject to the Act. With reference to public servants' notes, the majority felt there is a need for a minimum of personal space in the workplace. However, others thought that if individuals are working in the public service, none of their notes should be considered private and should all be public. It was suggested that this could lead public servants to minimize note taking for their own needs with eventual negative impact on the effectiveness of program delivery. The current rule in Québec - notes only for personal use and not shared, are not subject to the Act - was discussed as a possible compromise but no consensus was reached. One Member identified the issue as where to draw the line between personal or private space within a public function. All Members agreed this issue was important for the public service and some suggested better standards or guidelines on record creation and disposal would help to add some clarity.

In discussing the exemptions/exclusions structure in general, it was suggested that an interpretative clause could be added to the Act to send a signal that discretionary exemptions should not be applied automatically. All supported the notion that the Act should have a built-in bias for release. Some Members raised the possibility of adding a time limit for each exemption under the Act. Others disagreed, indicating sunsets could send a signal not to release information before the designated dates. Generally, there was agreement that administrative guidelines would be helpful with clear directives putting an emphasis on release.

On section 21 of the Act, Members supported a move to spell out a public interest or injury test on the exemption protecting advice to ministers and internal deliberations. It was agreed that guidance should be provided on the exceptions to s. 21 and it was suggested that examples could be used to illustrate and provide clarity.

It was agreed that there should be more proactive release of some third party information without notice. Members emphasized the need to educate third parties with respect to the government's responsibilities for ATI. It was suggested that a clause could be added to contracts outlining the government's ATI obligation with a requirement that the third party sign to acknowledge. Some Members expressed the sense that there is some unneeded third party litigation and suggested consideration be given to allowing third parties to complain first to the Information Commissioner regarding release of their information so the issue could be mediated before going to Court.

Generally, it was agreed by Members that there is a need for an exemption to cover statutory exemptions (s. 24), however, it was stressed that this exemption should be limited. With reference to Schedule II of the Act, it was emphasized by Members that the Schedule should be reviewed regularly by an external body and that the institutions on Schedule II should be expected to show cause for inclusion.

Members agreed that a move to turn the Cabinet confidences exclusion (s.69) into an exemption would provide a strong signal from the government with regards to its commitment to openness and transparency. It was also agreed that a principled approach and an independent review are necessary with respect to the provisions of s. 69. Members supported a practice of separating factual information and analysis from recommendations in memoranda to Cabinet and to make these available for release after a decision is announced or within a period of four years.

In discussing the access process and administrative limits and flexibilities, there was general agreement among Members that there should be appropriate resources for access and that the emphasis should be on a requirement to assist requesters. Most Members were cautious with respect to proceeding with a provision for frivolous and vexatious requests. It was acknowledged that some requests can be burdensome. However, some Members felt that public servants should not attribute motives to requesters. It was suggested that an option for dealing with frivolous or vexatious requests would be to seek the permission of the Information Commissioner to disregard them.

In general, Members supported an approach to fees that would be a contribution towards the sustainability of the ATI system as well as an incentive to make it work. Principles would include a fee structure that does not discourage the average requester and one that is simple and more predictable for users and co-ordinators. Members also rejected moving to a differential fee structure for commercial users and suggested the Task Force give consideration to eliminating the $5 request fee. Members discussed options for a fee schedule that included the status quo, indexing the status quo, or an innovative model based on a framework proposed by the Australian Law Commission (ALC) that uses a graduated approach to fees based on the amount of material released.

Members expressed an interest in the ALC model, in particular, the emphasis on building in incentives for making the system work but some cautioned that the result should not be higher costs for most requesters. Other Members expressed concern that the rising scale under the ALC model could deter some requesters and asked for a sense of which requesters could be impacted. It was suggested that it might be a good idea to build into the system a period to review costs so adjustments could be made if average costs went up or down. The idea of a cap for very voluminous requests where a higher fee structure would be applied was discussed. Members were interested in a cap as an option but did not support a system similar to the U.K. model which gives a department the choice to refuse to process a request if its processing cost is over a cap. Again, Members were looking for more information on the types of requests which could be impacted by a high cap such as $5,000 for example. In summary, Members supported the following: if another fee structure was envisioned, fees for most requesters should not be higher overall than they are in the current system, the Task Force should explore the ALC model. There was some support for a cap if it is set high enough.

All Members agreed that delay is a serious problem and supported consideration of measures to deal with the problem that include incentives. Some Members would also include some form of penalties. One Member indicated a preference for a "reasonableness" test for government to respond to requests. However, it was acknowledged that determining how to apply such a test could be problematic. Members indicated departments should be encouraged to provide reasonable resourcing and streamline decision-making. Members supported a change from the 30 calendar day time limit to an equivalent in working days. It was agreed that extensions should be granted only for good reasons but support among Members was divided for a proposal that long extensions should be reviewed by the Information Commissioner.

On the redress process, Members supported spelling out the responsibilities and powers of the Information Commissioner (IC), a move away from adversarial approaches, fairness and predictability in investigations and time limits for investigations. There was discussion on whether the IC should have a public education role. Some Members felt the IC has two roles, i.e. resolution of complaints and education. Others did not agree with a formal education role, with at least one Member of the view that an investigative role conflicts with an educational role and that the priority for the IC should be placed on reducing delays in resolving complaints. Alternatives to the IC for a role in public education were the Treasury Board Secretariat or the Department of Justice. It was noted that in the US where there was a well developed freedom of information culture, the community of users and even a Congressional committee, played a significant role in contributing to public information and that the Canadian government should be encouraging a similar development here.

Also discussed was the issue of order making powers for the IC. Some Members were in support, others opposed. One Member suggested a compromise would be to give the IC order making powers for process issues (delays, format, fees, etc.) as suggested by the Ontario Commissioner in their submission to the Task Force. Other issues discussed under redress process included the need for the IC to provide transparency and guidance to the public service and users by publishing interpretative findings and practice notes.

Members were in agreement that the development of a knowledgeable ATI staff should be fostered through appropriate classifications and good career paths, delegated authority and appropriate resourcing. To ensure credibility, Members encouraged a system whereby ATI co-ordinators would have easy access to and the visible support of senior management.

Members discussed proactive and informal release. There was agreement that access should be considered a service to Canadians and as such there should be a better integration with the Government on Line initiative. Members also supported a registry of requests on the web such as the CAIR registry. There was support for built-in incentives for proactive and informal release. It was suggested that the administration of the Act and proactive and informal release could be part of the Deputy Ministers' annual performance reports. It was also suggested that a formal statement in support of access by a person in authority would enhance the profile and priority of access.

Members were very supportive of building in the facilitation of access in all government information management technologies and policies. There was also support for improved training and awareness on records management and possibly a set of standards similar to the United Kingdom's code of practice.

Many Members were of the view that reform at the administrative and cultural level was even more important than legislative changes. However, one Member reminded the Committee that some legislative reform was called for and that users would not be satisfied if the Task Force recommending only reforming the administration of the Act.

In addition to those listed above, Members identified other issues of importance. These included the need to create a framework within government that will highlight ATI as a priority and result in cultural and administrative reform. The government was encouraged to be logical and coherent in its recommendations, ensuring the right tools for good governance and high quality ATI. Some Members proposed that a Joint Parliamentary Committee be struck to provide an oversight function on issues of access to information and possibly other issues pertaining to information in government.

It was agreed there is a need to create a positive culture with strong leadership and stated principles and values. Members also acknowledged that incentives are important to cultural reform. Also important is a process to educate the public service and inform Ministers and their staff on their roles and responsibilities. Finally, the EAC was of the view that Canadians expected to be seen as leaders in access, not lagging behind.

External Advisory Committee Highlights