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Report 25 - Access to Information Review Task Force
MANAGING RESPONSE TIMES UNDER CANADIAN ACCESS TO INFORMATION LEGISLATION
Published: August 2001
Table of Contents
Executive Summary/Conclusions
1. Producing an effective Access to Information (ATI) regime is a management issue for the variety of parties to the process. There are no simple 'smoking guns' that will act as a universal panacea for perceived ills in response to delays in meeting timelines.
2. Effective administration and implementation of the Access to Information Act (the Act) will require ongoing leadership from the government, the Treasury Board Secretariat, the Public Service of Canada, and the Information Commissioner of Canada. Achieving this goal, on an ongoing basis, will never be an easy task.
3. The Information Commissioner of Canada will have to play a lead role in actively monitoring compliance with response deadlines under the Act. For this purpose, the Treasury Board Secretariat will regularly have to collect and report relevant data and also do its own monitoring and trouble-shooting.
4. As the recurrent language of appendix 1 of this report indicates (from various provinces and countries), one basic need is for the application of reasonableness standard to all aspects of the implementation of the timelines in the Act. This may have to be built into it by amendments. Only the Information Commissioner and the Federal Court of Canada can, in the final analysis, monitor compliance with such a standard.
5. The Federal Court of Canada has found that the obligation of a department is to process access requests "as expeditiously as possible." This is a reasonable standard.
6. The idea of expediting urgent access requests in the public interest, or of multi-track processing of access requests, as primarily illustrated by the U.S. experience, should be given some consideration in Canada in order to meet the specialized needs of various requesters, especially the media.
7. Delays and deemed refusals are normally buried issues that do not make the front pages of the press, so politicians and the public service do not feel real pressure to comply with the statutory guidelines in all cases, to adequately resource the administration of access requests, and to delegate appropriate authority to responsible officials. Their risks of public exposure are generally small, unless the Information Commissioner seizes the initiative, as Commissioners John Reid, Ann Cavoukian (Ontario) and David Loukidelis (British Columbia) have done.
8. The need to improve information and records management appears to be an area of consensus among all parties in the ATI process.
9. Almost every applicant needs to clarify his or her request with the Access to Information Coordinator, whether because of the applicant's almost inevitable lack of knowledge of the records available, frequent lack of clarity as to just what the applicant wants to do with records, and the problem of affording costs of access. This process of clarification needs to be built into the access system by only starting the statutory timelines when a clear request exists.
10. The 'rewards' system for competent coordinators and their staff needs to be improved.
11. The decision of Ontario in 2000 to measure performance standards for ATI programs of Deputy Ministers, including response times in dealing with requests, is a "significant milestone" in the administration of any Canadian ATI law that should be emulated at the federal level.
12. Administrative reforms in the management of federal response times are necessary and desirable. Specifics are discussed throughout this report.
13. Reliance on the Access to Information Act should be at one end of the disclosure spectrum for government records, not the normal approach to obtaining government information. Making more such general government information available on "electronic reading rooms" on departmental web sites may also reduce the pressure on meeting timelines for formal requests.
14. Routine disclosure and active dissemination have to be a key part of any solution to the issue of meeting timelines and containing the costs of an ATI regime.
15. The root issue for successful implementation of any ATI regime, including meeting timelines, is political support for the process and, in Western liberal democracies, support from incumbent governments is almost inevitably going to be lukewarm, because making it easier for outsiders to attack the government is so counter-intuitive. Other proponents of open, accountable government, including the various Information Commissioners, have to hold government's feet to the fire in this regard to meet its statutory obligations.
16. The "approach" adopted by any Information Commissioner is a crucial variable in promoting an effective ATI regime and compliance with timelines. The model Information Commissioner has to be a cheerleader for those struggling to make the system work, as well as a taskmaster for those who fail to comply with the rules.
Preface
In 1993 I took a six-year term as the first Information and Privacy Commissioner for British Columbia. My experiences and that of my staff from 1993-99 are reflected in what follows. If I have a general bias, it is that the freedom of information regimes in the provinces and territories have proven to more effective than the federal model in producing results, in part because their Information and Privacy Commissioners have regulatory power and, in part, because the general commitment to compliance has been greater, especially in recent years.
During the past twenty-five years, I have also had an opportunity to observe the varying styles and approaches of the small number of persons who have served as federal Information Commissioners and Privacy Commissioners (which is why I think that style and approach are keys to effective implementation of an ATI regime). I have also become familiar with the role of Access to Information and Privacy Coordinators as well as the central role of the Treasury Board Secretariat. In the latter case, I am very pleased to acknowledge the mentorship of the late Peter Gillis, who had a finely developed sense of the important role that Treasury Board needed to play (and should continue to play). Finally, from 1984 to 1987, I served as a staff consultant to the Standing Committee on Justice and Solicitor General of the House of Commons in its statutory review of the Access to Information Act and the Privacy Act. These were formative experiences.
I admit to a strong belief that the introduction of freedom of information legislation is a fundamental innovation in advanced democratic societies and that, in cases of conflict, the need for openness usually trumps personal privacy. I also have a strong commitment to effective implementation of such legislation at a cost that society can afford. Goodwill on all sides is essential towards that end.
While what follows has an objective basis in the records of the past decade, especially in Canada, I have also taken advantage of what I think I learned from direct experience. I have documented matters dealing with timelines and delays from the public record. I have also interviewed some of the key players in the administration of ATI in this country, but I quote them from their public statements. This report is in effect a documentary history of the perspectives and problems of meeting response times under ATI legislation at the federal level in Canada.
Producing an effective ATI regime is a management issue for the variety of parties to the process. There are no simple 'smoking guns' that will act as a universal panacea for perceived ills in meeting timelines. What I have tried to document in the smorgasbord that follows, including a substantial collection of primary material in appendix 1, is the problems and the possible approaches for consideration by the Access to Information Review Task Force and policymakers.
For assistance in the preparation of this report, I especially wish to express my gratitude to Guy Herriges, Arthur Kroeger, David Loukidelis, Tom Mitchinson, Marilyn McNamara, John Reid, Alasdair Roberts, Robert Gellman, Andree Delagrave, and Mary
Anne Stevens. Of course, I am fully responsible for the actual contents of this report.
1. Introduction and Project Description
The Access to Information Review Task Force was established in August 2000 to review the Access to Information Act and its administration, with a view to improving access to government information for Canadians. There are numerous legal, policy and administrative issues associated with time limits for the processing of requests under the Act, including growing expectations for fast response, increased globalization and increased horizontality.
This report initially considers the time limits provided in similar provincial legislation and in a selection of other national jurisdictions, along with the different approaches to implementation taken in those jurisdictions. My research included reviewing the data that the Task Force gathered (much of which is presented in appendix 1), reviewing background information from various sources, and conducting interviews with several key stakeholders at the federal and provincial levels.
The objective of this report is to identify and analyse the benefits and challenges associated with various options regarding approaches, in law and practice, to time limits for the processing of requests under the federal Access to Information Act.
The goal of the report is to provide information on the pros and cons of various time limit schemes and a very pragmatic view of what needs to be considered in order to make the ATI system work. The last part of the report discusses the factors that should be considered in setting time limits for processing access requests and for applying extensions, as well as the question of applying a time limit to the resolution of complaints and the issue of possible consequences for missed time limits.
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