Highlights of Meetings - External Advisory Committee

October 15, 2001
OTTAWA

Members Present
Dean Beeby
Paul-André Comeau
Norman Hillmer
Aldéa Landry
Gaétan Lussier
Wayne MacDonald
Paul Thomas (by telephone for part of the meeting)

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 Chair provided an update on the research undertaken on behalf of the Task Force.

There was some discussion regarding the report prepared by the National Archives on the Access to Information Act and record-keeping in the federal government. The paper reports the results of an investigation by the National Archives into a variety of archival records from seven different areas of government to determine the impact of the access legislation on record-keeping. Archivists examined records from the same series created before and after 1983, according to certain record-keeping criteria.

They had assumed that it would be discovered that ATIA had a significant and negative influence on record-keeping. However, after extensive analysis it was found not to be the case. It does not seem that the promulgation of the ATIA has an impact on the way records were created and managed. The study notes that the content of records remained the same after the introduction of ATIA and in some instances the quality of the records improved.

Other factors were likely to have had move impact limiting on record-keeping: new technology; lack of documentation standards; downsizing; and the difficulty in assessing the motivation of individuals in creating records. These factors made it difficult to isolate the impact of ATIA on record-keeping practices.

Some members of the Committee were surprised at the study's findings as it went against what they believed the situation to be.

Research on investigations

The Members were brought up to date on preliminary findings by Barbara McIsaac on the Information Commissioner's investigative powers and procedures. Ms. McIsaac's research looks into the structural model for the oversight body and investigation practices in other jurisdictions. Generally speaking, it appears that the federal Information Commissioner has the same investigative powers as other Information Commissioners and Ombudsmen in other jurisdictions.

However, the mandate of the Information Commissioner is often more fully defined in the legislation of other jurisdictions. Most Information Commissioners in provinces have full order-making powers. Some investigative practices at the federal level appear to be significantly different from the practices in the provinces.

The vast majority of investigations at the federal level are not formal and do not use of coercive powers. However, there has been a steady growth of formalized investigations in recent years which raise new issues. Also a number of issues on investigation procedure and the jurisdiction of the Commissioner are now before the Courts. In completing her report. Ms. McIsaac will be consulting with parties who were involved in investigations as requesters, coordinators, counsel, senior management of the public service and will consult with the Office of the Information Commissioner.

The Committee agreed that investigations needed to be examined. They discussed whether increasingly formalized investigations were not a signal that the ombudsman model was past its usefulness.

Some members suggested that giving order-making powers to the federal Information Commissioner could solve many of the tensions in the current system, be more effective for requesters and less confrontational with government. Others thought that other factors were at play in the current tension between the Information Commissioner and the government, and that would not change with an adjudicative model. It was also noted that the Information Commissioner had indicated that he does not wish for order-making powers and that a recommendation power was more compatible with ministerial accountability.

The Task Force was encouraged to study the merits of the various structural models and in particular of adding the power for the Commissioner to look at systemic issues in a non-confrontational way, as this was often how the best ombudsman work was done.

Research on public service culture

Members were briefed on research underway by Dr. Gladys Symons on an assessment of the impacts of ATI on the public service work environment and of the public service culture on the provision of ATI. Five focus groups were recently conducted with public servants at all levels, to assess their perceptions of the enablers and disablers of providing access to Canadians. Preliminary results indicate a commitment to the principles of the Access to Information Act but a level of frustration and anxiety about the application of the Act. Officers also believed the work they do on access is not valued by the institutions. Members of the Committee noted the comments on the sense of frustration but it was pointed out that requesters are also experiencing a lot of frustration.

During the discussion, members raised ideas they considered enablers to support the provision of ATI. These included endorsing the practice of clarifying the request with requesters, more support, including resources, more incentives for proactive release of information and making access a part of the public service values.

Access to Information and Privacy Acts

Members discussed the interaction between Access to Information Act and the Privacy Act which were designed in parallel with common definitions and similar structures of enforcement. The Courts has made it clear that the two Acts need to be interpreted together.

The offices of the Information Commissioner and of the Privacy Commissioner were established separately. A number of members believed that the delicate balancing of privacy rights with the public's right to know would be more effectively and harmoniously achieved with having the two offices merged into a single body, as it is the case in most jurisdictions. However, they recognized that such a merger was unlikely in the near future.

It was noted that very different public positions by the two Commissioners on the issue of the public interest in releasing personal information created confusion for the public service and the public. Currently the two Commissioners do not consult on interpretation of section 19 of ATIA (protection of personal information). Some cases have gone to the courts, with the Commissioners on different sides. While in the view of the members, these situations should not happen too often, they believed that some of these issues may be best decided by the Courts rules. In practice, departments caught between conflicting interpretations of the two Commissioners, tend to withhold the personal information and let the Information Commissioner challenge their decision in Court.

The public policy issue was how best to achieve the objectives of both legislations. Members debated whether the Task Force should recommend a mechanism that would require the two offices to consult on privacy issues. Some believed it would at least send a signal; others were of the view that it would probably not make a difference.

Fee Structure

Further to the discussion on fees that took place at the last EAC meeting on August 20th, members were provided with a review of the current ATI fee structure and costs. There was a recognition that the application of the current application of fees can be inconsistent and that more consistency should be achieved.

The application fee was first discussed. Parliament had allowed an application fee up to $25 but it has stayed at $5 for the last 20 years. The experience at the federal level and in Ontario, had shown that a modest application fee ensured requesters were sincerely interested in the information. Most members agreed with a modest application fee for this purpose and, for the most part they believed it could reasonably be set at $10, more or less the equivalent of $5.00 in 1983. However, it was recognized that any raise of the fees, however modest, could be perceived negatively.

Some members thought that there were good public policy for reasons business requests to be treated differently than requests from the general public, since for them it is the "cost of doing business". It was recognized that a fee structure with incentives for requesters to focus their requests hardly has any impact on them.

Another issue was the very large requests for which no ATI office is resourced, for example the request to DFAIT for 1,2 million documents. In those cases, Departments have to find the resources to hire extra staff for long period of time. Some jurisdictions, such as the UK, deal with large requests by creating a cap over which institutions do not have to process the request or can do it at actual costs. Members were of the view that if such a cap was introduced, it should be significantly high and were concerned that poor records management could have effect of inflating the cost of processing.

However, there was support for the comment that users requesting massive volumes of material should not expect to be subsidized by ordinary taxpayers. It was suggested that the Information Commissioner could act as a mediator with power to make binding recommendations if fees were in question.

There was also general agreement among members that an application of fees for complaints should not be considered an option by the Task Force.

General Comments on Reform

Members suggested that it would be important to link access ATI to broader government objectives, e.g. service to the public, democratic accountability, citizens understanding and participation in the development of public policy. Increasing public understanding and public dialogue about public policy should be the long term goals.

Improvement in records and information management should be a priority within government.

All members agreed that culture within the public service is critical to the implementation of the ATI legislation. One of the tools strongly promoted by members to influence culture was a requirement for all departments to build ATI into their business plans, thus making them accountable for its implementation.

Members also agreed that it is important to provide improved guidelines to the public service on the implementation of the Act. It was recognized that with most exemptions institutions have to balance the public interest in releasing or withholding and Members emphasized the need to provide more guidance and training on how to interpret the discretionary powers.

Education was seen as key to the reform, both the education of the public service and raising awareness of the general public. It was pointed out that the government needs to define the responsibilities and roles for ATI education.

All members welcomed greater involvement of Parliament on access issues. Some members were of the view that a Committee of Parliament should be tasked specially with overseeing the implementation of the Act.

Members suggested they would support a regular schedule of review for the legislation and its implementation. There was support for the view that we need to move beyond blame to a more constructive measurement of performance of federal institutions and to learning models.

Finally, Members recognized the challenge of making recommendations for ATI reform, in light of the events of September 11 and the heightened awareness in the Canadian public of the need to balance protection of information with the right of the public to know.

External Advisory Committee Highlights