Report 9 - Access to Information Review Task Force

THE ACCESS TO INFORMATION ACT AND RECORD-KEEPING IN THE FEDERAL GOVERNMENT

Published: August 2001

National Archives of Canada

Table of Contents

Executive Summary
Introduction
Working Hypothesis
Methodology
Records Examined
Results
Summary of Findings
Conclusions

Executive Summary

The Privy Council Office (PCO) has invited the National Archives to contribute to a study of the Access to Information Act (ATIA) by examining the impact of the Act on record-keeping since its promulgation in 1983.

This document reports the results of a Government Records Branch investigation into 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 series¹, created before and after 1983, according to certain record-keeping criteria.

Problems in information management exist now and always have. From this study, it does not seem that the promulgation of the ATIA in 1983 had an impact on the way records were created and managed. Other factors limiting the study appear to have had as much or more significance than the Access to Information Act on record-keeping. These constraining factors include the following:

• the impact of new technology (computerization, especially personal computers; methods of filing; and government business conducted in non-recording environments);
• lack of documentation standards against which to measure changes in record-keeping;
  
• downsizing;
  
• creation of records is an individual human behaviour difficult to measure or determine as motivated by ATIA.

The findings of this study are not definitive because these uncontrollable, limiting factors make it difficult to isolate and assess the impact of ATIA. Recognizing this, we nevertheless thought it worthwhile to conduct the study for the value an archival and record-keeping perspective brings to any examination of the ATIA.

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1. Introduction

Access to Government records and insights from working with them on a daily basis make archivists well placed to comment on the evolving archival record. Although a very small percentage of the total Government record, the archival record is the best representative documentation of the business of an institution as the archival record documents the functions and activities of Government institutions. In accordance with the National Archives of Canada Act only those records of historic or archival importance (between one and three percent of all Government records created) are transferred to the National Archives.

The National Archives of Canada is uniquely situated to provide insight into the Federal Government's fulfilment of responsibilities to the Act. Through observing record-keeping practices in the years leading up to and following the passage of access legislation, it might be ascertained whether or not those cases of records alteration and destruction (such as occurred during the Somalia Commission Inquiry and by the Canadian Blood Committee) are the anomaly or the rule for records management practices in response to the legislation.

2. Working Hypothesis

Before beginning the investigation, we assumed that we would discover that the Access to Information Act had a significant and negative influence on record-keeping. This presupposition was based on the knowledge that other studies support the conclusion that there have been negative changes in Government institutions since ATIA. The most authoritative and recent examples are in the annual Access to Information Commissioner Reports. As well, a private member's bill amending the Access to Information Act was unanimously passed in March 1998. Colleen Beaumier's bill added subsection 67.1 to the Access to Information Act establishing penalties of fines and jail terms for anyone attempting to deny a right of access to information by destroying, falsifying or failing to keep records. While the amendment does not provide specific examples of negative changes to record-keeping practices, the fact that it was added to the legislation implies that contraventions of the Act do take place and need to be punishable.²

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3. Methodology

There were several stages to the examination of records by archivists. First, the act of selecting appropriate records for examination was problematic. Once an appropriate selection was made, the job of scrutinizing the records was undertaken. Mostly textual records were looked at, but some examinations touched on electronic records and audio tapes. Finally, documents were analysed and the conclusions drawn were articulated in written reports (attached as Appendix 3).

Prior to commencing the investigation, it was apparent that, although archivists would have difficulty determining which variables directly correlate to Access to Information legislation, archivists are nevertheless well placed to make observations on record-keeping practices. We recognised that a number of factors affect a study of the impact of Access to Information legislation on record-keeping in Government: the impact of new technology; lack of documentation standards; downsizing; and the creation of records is an individual human behaviour difficult to measure or determine as motivated by ATIA. (See Executive Summary above; for more information on the effects of these factors see Appendix 1.)

This specific study is significant because only archival records were examined. If evidence
exists in records which were not transferred to the National Archives, it could not be discovered. The study looked only at the results of record-keeping practices as found in the residue of certain archival records. Other access issues were not examined.

A starting point for the investigation into record-keeping was a review of the Information Commissioner's reports. Those reports provided evidence that the legislation had at least some adverse impact on record-keeping. Record-keeping issues identified in the Information Commissioner's Reports were:

• Unauthorized destruction of records
  
• Decision to stop creating certain records
  
• Electronic records issues (their transient nature; they are often not recognized as records subject to the Act due to their form)³
  
• Problems with physical access to records.

In order to determine whether or not these or other issues were reflected in Federal Government record-keeping practices, certain parameters were established for the investigation. Five criteria were developed to measure record-keeping in a limited, qualitative way:

• Quantity is measured as changes in the volume of records
  
• Scope includes the source and comprehensiveness of the documentation
  
• Content/Narrative refers to the sequence of events or procedures documented by records
  
• Sense of corporate control pertains to efforts by the institution to bring records under control.
  
• Other observations gives the opportunity to discuss any other relevant record-keeping characteristics.
  (For fuller definitions of these criteria see Appendix 2.)

Records chosen for this analysis had to have the following characteristics:

• The program remains relatively stable over time
  
• The mandate of the institution (or committee or program) has not changed substantially
  
• Legislation (other than ATIA) has not had an impact on the conduct of business
  
• Records are easily accessible
  
• Record-keeping technology had little impact.
  

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4. Records Examined

Minutes of Federal-Provincial Atlantic Fisheries Committee
The Committee, established in the late 1950s, consists of federal and provincial deputy ministers who meet to discuss Atlantic fisheries issues and develop common approaches to concerns. Minutes were chosen randomly to give an indication of their state before and after the legislation.
Records were too numerous to be examined in their entirety and a random choice ensured that the selection was unbiased.

How the minutes were recorded may have affected their uniformity. The meeting minutes were taken by Department of Fisheries and Oceans officials rather than a secretariat assigned to the Committee. The individual taking the minutes changed frequently.

Minutes of Canadian Environmental Advisory Council
Funded by Environment Canada, the Council was established in 1972 to advise the Minister of Environment on the state of the environment, establish Federal Government priorities for action, and measure the effectiveness of the Department of the Environment. Members are appointed by the Minister for a maximum term of three years.

Minutes were examined from before and after ATIA and were chosen randomly from within each time period. The Council established guidelines that minutes should be short without specific references to individuals by name unless those individuals speaking requested it and that duplication of minutes by members was discouraged.

Department of Foreign Affairs and International Trade: Prime Minister's Visits
DFAIT records from Prime Minister Trudeau's visit to Moscow in 1971 and Prime Minister Mulroney's visit to Moscow in 1993 were examined. The former took place before Access to Information legislation and the latter after passage of the Access to Information Act.

The Department of Foreign Affairs and International Trade has one large registry system for the records created at headquarters in Ottawa and throughout the world. Despatches from the posts are routinely sent to Ottawa to be placed on the appropriate central registry file. Despatches, diplomatic policy files for Russia, and briefing books were examined. The same types of files were compared for each visit.

Transport Canada: Aircraft Registration Files
Civil Aviation aircraft registration files document the life history of an aircraft registered in Canada. Two sets of records are kept for each aircraft: one at headquarters in Ottawa and one in the regional office. Case files for twenty-four aircraft were examined. These files were active before and after the introduction of ATIA.

Public Works: Public Works Projects
Public works projects consisting of construction and maintenance of public buildings, marine or river works were examined. Seven projects from different locations across Canada were analysed. These records were created by the Architectural and Engineering Branch of Public Works and were used to advise the Minister on the progress of projects. Public works files from across the country are collected in a central registry system in Ottawa.

Treasury Board and Other Central Agencies
Instead of looking at a series of records, this particular examination covers all of the operational registry files of four central agencies: Treasury Board Secretariat (principally), the Public Service Commission (PSC), the Office of the Commissioner of Official Languages (OCOL) and the Public Service Staff Relations Board (PSSRB).

Health Canada
In Health Canada two incidents led to the creation of files which were examined for this present study: Canadian Blood Committee Records (1989) and Narcotic Control Case Files (1980). Because they were high profile incidents dealing with record-keeping, they are of significance to this investigation.

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Footnotes:

1. A series is an item or documents arranged in accordance with a filing plan/system or maintained as a unit because they relate to a particular function or subject, result from the same activity, have a particular form, or because of some other relationship arising out of the circumstances of their creation or use.
   
   
2. Jay Gilbert's AAccess Denied; The Access to Information Act and Its Effect on Public Record Creators,@ Archivaria 49 ( Spring 2000), pp. 84 -123, also supports allegations made by the Information Commissioner and implied by Colleen Beaumier's Private Member's Bill.
   
   
3. It should be noted, however, that in 1983 the few electronic records acquisitions at the National Archives were predominantly consisting of survey data.