Report 25 - Access to Information Review Task Force

MANAGING RESPONSE TIMES UNDER CANADIAN ACCESS TO INFORMATION LEGISLATION

2. Analysis of the Issues in Managing Timelines

2.1 The Number of Specific Days in Timelines: The Range and Rationale for the Choices

• Compliance with statutory guidelines for processing access requests is at the heart of a successful ATI system. In fact, actual levels of compliance are a handy measure of the health of any ATI system. This is the premise of what follows. ⁽¹⁾
  
  
• Readers of the statutory material and commentary in appendix 1 will be aware that the standard choice for timelines is either 30 calendar days or 20 working days, which is supposed to produce approximately the same result in terms of obtaining a response to a request for records.
  
  
• The Standing Committee on Justice and Solicitor General concluded its review of the implementation of the Act in March, 1987 as follows:
  
  
  • Since several years have now passed since the Access to Information Act was proclaimed, the Committee believes that government institutions generally should be able to respond to requests on a more expeditious basis. Therefore, the Committee recommends that the initial time period in which the government institution must respond to a request be reduced to twenty days ⁽²⁾.
    
    
• Countries and provinces seem largely to have copied the statutory time lines from one another on the basis that what has 'worked' for other jurisdictions should work for them.
  
  
• The timelines are in many ways a set of "pious expectations" that government departments are expected to comply with, and do comply with, under normal circumstances through the good offices of ATI staff.
  
  
• It is common for those making access requests to want timelines shortened, whereas those responding to requests sometimes have trouble meeting them.
  
  
• Given the inevitable, competing priorities within government departments, the expectation of compliance within thirty calendar days appears to be a practical choice, especially when the records requested are in the hands of program managers and have to be located, retrieved, copied, reviewed, and consulted upon. These are not minor activities in most instances.
  
  
• In its June, 1977 Green Paper, the Liberal government included this statement on administrative deadlines: "An optimal set of administrative deadline would combine sufficient pressure to meet the reasonable needs of applicants with the realistic possibility of consistent compliance without an undue increase in administrative staff and cost." ⁽³⁾ (emphasis added)
  
  
• The existing ATI timelines meet the various objectives set out in 1977 and should not be changed.

2.2 The Expectations and Roles of the Parties to an ATI Request with respect to Meeting Timelines and Dealing with Delays

This is a crucial issue for understanding the problem of meeting timelines, because it reveals the widely differing expectations and roles of the "parties" in the access to information process. While there may nothing unusual about varying perspectives in such a setting, understanding them is an important part of fashioning a realistic and functioning administrative system for processing access requests successfully, which is the ultimate goal of the ATI exercise.

2.2.1 Pressure from Applicants:

2.2.1.1 Individuals

• If public bodies delay responses to individuals or any applicants, "the effect of the delay often is the same as if the public body refused to provide the requested records." ⁽⁴⁾ This is the general problem to be overcome by effective administrative measures.
  
  
• Individuals tend to seek general information under ATI only if they have a problem of some sort or are activists on an issue; at that point, they are highly motivated applicants who want prompt action on their request (and full disclosure of the records).
  
  
• Individuals have little appreciation of the process involved or the impact it has on the regular operations of the institution; they want to see everything that exists in available records and to receive them immediately; that is the pressure on the system.
  
  
• Do not understand the legitimate application of statutory exceptions from disclosure; most individual applicants do not appreciate all of the "legal" reasons why they cannot obtain all or part of records. They lack ATI experience, and the governing legislation is in fact arcane and complex.
  
  
• Fail to appreciate that there are likely other applicants in the cue ahead of them, some with very large requests; ⁽⁵⁾
  
  
• Regard politicians and bureaucrats as trying to hide records to cover up their activities;
  
  
• The "education" of applicants is a very time-consuming and ongoing process for everyone involved in the administration of an ATI system, but it needs to occur on an ongoing basis. ⁽⁶⁾ Placing explanations for common practices and results on web sites would be a step in the right direction. ⁽⁷⁾

2.2.1.2 Hostile, vexatious, frivolous, and/or irrational applicants

• These applicants risk bringing the ATI system into disrepute in the minds of the public service by consuming enormous resources of money and personnel; overall, they have a negative impact on the health of the system, even if their numbers are small.
  
  
• The summary of discussions held with coordinators by the Access to Information Review Task Force included the following point: "The low fee for accessing information was noted by some as encouraging 'frivolous' requests. It was felt that time taken to deal with this type of request was detrimental to timely compliance with requests perceived to be more in keeping with the intent of the Act."
  
  
• It is fortunate for the cause of ATI that elected politicians, Cabinet members, and the general public rarely become aware of the amount of wastage of time and resources caused by this type of frivolous and vexatious applicant.
  
  
• The Access to Information Review Task Force, at the request of its External Advisory Committee, has sought from ATI offices examples of these kinds of troublesome requests. ATI coordinators involved in this exercise offered as a definition of a frivolous and vexatious request one in which the requester displays no interest in the records that result from the request.
  
  
• Frequently riding a hobbyhorse or trying to change what has already happened to them: The Information Commission for Western Australia categorized "vexatious or serial applications" as follows:

  "Serial applications are repeated requests, often lodged within a short space of time, for the same or similar documents, including documents previously supplied. They may involve requests for documents that have been the subject of a decision by me. Vexatious applications can take many forms, but are most often made by applicants with a fixation on a particular matter or a particular agency that they are unwilling or unable to put aside. In either case, there is a limit to the resources that agencies and my office can reasonably devote to dealing with such applications." ⁽⁸⁾ (emphasis added) This is a real problem in ATI practice.

• Their very difficult behaviour demoralizes even well-motivated access to information coordinators and Information Commissioner's staff;
  
  
• The Mulroney government in 1987 on "trivial or frivolous and disruptive requests:" "The government does not believe that requests which are trivial or frivolous should be condoned. … Frivolous or vexatious requests abuse the right of access provided by the Access to Information Act. Nor does the government believe that the processing of requests should be permitted to result in an unreasonable diversion of resources from an institution's other operations or to interfere unreasonably with the ability of Ministers to perform their functions. The government will therefore be considering amendments to the Access to Information Act to address these matters." ⁽⁹⁾ (emphasis added) [Nothing happened.]
  
  
• Some believe that the "number" of frivolous and vexatious cases has not been adequately documented. While empirical data on this issue may be useful, even small numbers have a powerful demoralizing impact on the many people who try to make an ATI system work.
  
  
• Commissioner Reid, October 15, 2000: "… the [Treasury] Board has been overly preoccupied with documenting and quantifying the perceived irritants in the access system (for example: bulk users, frivolous and vexatious requests, high costs of compliance and difficult-to-meet response deadlines)." ⁽¹⁰⁾
  
  
• The BC Freedom of Information and Protection of Privacy Act authorizes the Information and Privacy Commissioner, at the request of a public body, to "authorize the public body to disregard requests … that, because of their repetitious or systematic nature, would unreasonably interfere with the operations of the public body." ⁽¹¹⁾
  
  
• The federal Personal Information Protection and Electronic Documents Act provides that the Privacy Commissioner of Canada does not have to prepare a report on a complaint, if "the complaint is trivial, frivolous or vexatious or is made in bad faith." ⁽¹²⁾
  
  
• Section 53 of the Alberta Freedom of Information and Protection of Privacy Act wisely provides that "[i]f the head of a public body asks, the Commissioner may authorize the public body to disregard one or more requests under section 7(1) or 35(1), if (a) because of their repetitious or systematic nature, the requests would unreasonably interfere with the operations of the public body or amount to an abuse of the right to make those requests, or (b) one or more of the requests are frivolous or vexatious."
  
  
• ATI laws need some effective mechanism for coping with these kinds of applicants.
  
  

2.2.1.3 Experienced, professional applicants

• As the Chair of the Access to Information Task Force said in a speech in London, UK on March 5, 2001, "What we know is that a limited number of requesters generate the majority of the requests; 35% of requesters make more than one request per year; 11% make more than seven; some admit to thousands over several years." ⁽¹³⁾
  
  
• Know what they are after based on experience and persistence;
  
  
• Can be politically dangerous because of the sensitive records they tend to ask for and uncover;
  
  
• Their pointed and targeted requests can create a great deal of work (but charges can be imposed and extensions taken to search for and sever records);
  
  
• The summary of discussions with 'report card' departments ⁽¹⁴⁾identified "voluminous, 'bulk,' 'serial,' and 'commercial' requests as a major reason for missed deadlines, including these points
  
  
  • Some extremely large requests can throw off the best plans, placing pressure on the staff of the ATIP Office to strive to provide equitable service for all the other requests at hand;
    
    
  • Voluminous, complex requests require more time for identification and retrieval of documents, review and severance than do requests involving less extensive documentation;
    
    
  • A relatively small number of repeat requesters sometimes generate a disproportionate number of complaints; ⁽¹⁵⁾
    
    
• May receive compensation for successful requests that lead to good media stories, which makes them unpopular with politicians and the public service;
  
  
• Companies try to use such requests to "spy" on one another. According to the summary of discussions for the consultation with 'report card' departments, "[b]usinesses are frequent users of the Act, often requesting information about competing companies…. Some businesses are at times perceived as using the access law as a 'cheap research service.'" ⁽¹⁶⁾
  
  
• Experienced, and even professional, applicants are exercising their legitimate rights.

2.2.1.4 Media Requesters

• The ATI specialists in the media are experienced, professional applicants;
  
  
• Inexperienced journalists expect instant responses and do not know "how to play the game;"
  
  
• Disclosure of records to the media is almost always politically sensitive, so the communications specialists in government departments will often be involved with preparing media lines and answers but also at times may try to manage release by various stratagems (disclose the records to everyone with a press release; disclose the records at a time when it will be hard to use them effectively; delay responding to reduce the utility of the records).
  
  
• Non-compliance with timelines has led some media requesters to abandon the ATI process as useless for their purposes.
  
  
• I strongly believe that media requesters are important surrogates for the public in making ATI requests, even though existing timelines are not conducive to the immediate needs of daily media work. There are no obvious solutions to the latter problem under an ATI regime.

2.2.1.5 Opposition Parties

• Their knowledge and research resources can produce very targeted and voluminous requests in politically-sensitive areas, especially by means of single and pointed cross-government requests intended to embarrass the government;
  
  
• The government naturally seeks to manage the process of disclosure so as to avoid being blind-sided by Opposition parties (and the media) using records against them; there is very little that an Information Commissioner or Treasury Board Secretariat can do about that practice in terms of the oversight function, it is a fact of life; information disclosure management is legitimate, predictable and acceptable as long as it is compliant with the Act.
  
  
• Can make voluminous and frequent requests on the grounds that they may have no other effective method of obtaining access to government records, as is the case in British Columbia; ⁽¹⁷⁾
  
  
• Opposition parties are legitimate users of access rights.

2.2.2 The Person Processing the Request: Access to Information Coordinators

• Demanding staff positions that are not always highly-valued, highly-ranked, or properly compensated;
  
  
• The summary of discussions with coordinators held by the Access to Information Review Task Force included this statement: "Many participants pointed to factors that affect access to information staff. On-the-job stress, induced by factors such as heavy workloads, inflexible staffing procedures, lack of office space, feeling undervalued in the organization, high staff turnover, and occasional verbal abuse from requestors dissatisfied with the level of service received, were all seen as detrimental to maintaining an effective and motivated group of professionals." ⁽¹⁸⁾
  
  
• Not positions that customarily lead to advancement and promotion; fortunately, these positions tend to attract committed individuals who recognise the importance to society of the work that they are doing. The consultation process with 'report card' departments emphasized the need for improved career paths and bridging programs leading out of the access field into broader areas.
  
  
• Positions are viewed as being out of the mainstream of departmental activities and, in some ways, hostile to departmental interests;
  
  
• Yet successful execution of these positions demands a great deal of cooperation from fellow public servants;
  
  
• The summary of discussions held by the Access to Information Review Task Force with access to information coordinators made the following summary points:
  
  
  • "Heavy workloads within program areas were highlighted as a barrier to timely compliance. Some participants also cited ministerial priorities, the immediacy of work on notes for Question Period and legislative imperatives, as often superseding work on access requests."
    
    
  • "Inadequate intra and inter-departmental communications and co-ordination were seen as placing severe limitations on providing requestors with timely responses."
    
    
  • "Some participants noted problems of delegation of authority both for access to information officers and program managers to approve release of documents. Communications issues were also seen as holding back the ATI process." ⁽¹⁹⁾
    
    
  • "Insufficient human and financial resources and inadequate training and support from central agencies were seen as seriously inhibiting the ability of access to information staff." ⁽²⁰⁾
    
    
• Commissioner Reid, October 15, 2000: Treasury Board "has not established itself as the champion of access coordinators - who are often caught between the demands of the law (to give access) and the demands of their superiors (to maintain secrecy)." ⁽²¹⁾ This is a strong point.
  
  
• Perceived as always bothering people for unpleasant reasons, i.e. another request for access to a public servant's records (which is almost always viewed as threatening behaviour, since an applicant does not have to explain the reasons for which he or she seeks access to information).
  
  
• The problem of motivating coordinators over time to act effectively, especially if their superiors organize the ATI process in a dysfunctional manner (i.e. inadequate delegation of authority and multiple layers of upward review); ⁽²²⁾
  
  
• The realities of internal pressures that ATI poses to the prevailing political and bureaucratic system versus the seeming absence of rewards for doing one's job well; the 'rewards' system for competent coordinators and their staff needs to be improved. ⁽²³⁾
  
  
• The never-ending flow of access requests; a completed request simply brings another one, and they tend not to become easier over time; ⁽²⁴⁾
  
  
• The summary of discussions with 'report card' departments held by the Access to Information Review Task Force included the statement that "Sustainability is a serious concern when the increase in volume [of access requests] has been staggering."
  
  
• The summary of discussions held with coordinators by the Access to Information Review Task Force included the following statement: "Some participants also questioned the propriety of using the Act for legal discovery purposes, or to have research done cheaply, perceiving this to be misuse of the Act." ⁽²⁵⁾
  
  
• The perception of coordinators that 1) the size and complexity of requests is increasing; 2) media and professional requesters are engaging in more and more "fishing expeditions;" 3) requesters are asking "for everything in someone's office;" 4) stacks of requests are received during the Christmas holidays; 5) records requested are located in foreign countries or are in foreign languages. These are not trivial issues for hard-pressed coordinators.
  
  
• "For example, the Department of Foreign and International Trade received less than 3% of the requests last year [1999] but one of the requests on softwood lumber trade involves more than 1.2 million documents. A parallel ATI Unit employing 12 to 15 people had to be created and a 2-year extension was taken." ⁽²⁶⁾
  
  
• The summary of discussions held with coordinators by the Access to Information Review Task Force made the following pertinent point: "Unreasonable timeframes for processing voluminous, complex requests and lack of clarity by requestors as to their actual needs ('fishing expeditions') were all identified as impediments to timely compliance with the Act." ⁽²⁷⁾
  
  
• The consultation with 'report card' departments found 'decentralization of organizational structure" and "the need for extended consultations" to be major reasons for missed deadlines. ⁽²⁸⁾
  
  
• Coordinators do not control the allocation of resources to meet their responsibilities, yet the system may hold them responsible for non-compliance (such as by giving them a bad report card); ⁽²⁹⁾
  
  
• The consultation process with 'report card' departments by the Access to Information Review Task Force at the end of 2000 identified inadequate resources as the first reason for missed deadlines, including specific problems, such as:
  
  
  • When a large number of requests are received within a short space of time, often on the same day, ATIP Offices are in a situation where they must react but with additional resources being outside their control.
    
    
  • The nature of the work is necessarily reactive with sudden spikes in workload being impossible to anticipate;
    
    
  • All participants successfully eliminated their backlogged requests following an influx of new (mostly temporary) resources ⁽³⁰⁾.
    
    
• Inadequate resourcing of the coordinating positions: BC Information and Privacy Commissioner, David Loukidelis: "It is clear that a major reason for delays is that the volume of requests surpasses staffing available to respond. In tight fiscal times, of course, all institutions must do more with less. The rights of access under the Act, however, reflect important public interest objectives, which is why the Act imposes legal obligations on public bodies to respond to access requests within certain times." ⁽³¹⁾ (emphasis added)
  
  
• Required experience and training to work efficiently versus the realities of turnover in the jobs and lack of time for training;
  
  
• Consultations with 'report card' departments identified various human resource problems in ATIP offices:
  
  
  • Staff working with coordinators often are entry-level positions with considerable turnover and a high burnout rate, because of the extremely tedious character of much of the work; this is a fact of ATI life.
    
    
  • Consultations with the 'report card' departments identified "burnout among ATIP officers and Coordinators as an issue."
    
    
  • The legitimate difficulties of applying the exemptions in the Act to a complex set of records, even once the records are located (which itself may be a tedious job of persuading busy people to search for them), copied and retrieved.
    
    
  • There is a serious risk of making costly mistakes in the process of severing records with negative consequences for the individual coordinator and his or her department. There are examples across the country of government agencies that have been seriously "burned" by mistakes in the contents of records disclosed.
    
    
  • Rational fears of the risks and consequences of making mistakes in disclosing records that will cause harm and affect one's career prospects in a public service that is traditionally and understandably risk averse;
    
    
  • Incurring delays in meeting timelines by inappropriate review and sign-off levels for senior officials, who have not established properly delegated authority; ⁽³²⁾
    
    
  • A recognition that in responding to non-routine access requests, real power and responsibility rests with the Minister and the Deputy Minister, not the coordinator (who may in fact have the delegated authority to make a decision on disclosure).
    
    
• Nevertheless, access to information coordinators are the key players in the overall success of the ATI system. As the Chair of the Access to Information Review Task Force said in London, UK on March 5, 2001, "In the Canadian system, Access Coordinators play a pivotal role. It is impossible for us to imagine the system working without them. They interact with requesters, monitor the handling of the requests, track progress, press programs about deadlines, provide expert advice on the application the Act, provide training, keep statistics and, in many Departments, have delegated authority to make the decision on disclosure of the information. This is a model that puts the emphasis on efficiency and meeting timeframes." ⁽³³⁾
  
  
• Coordinators and their staff have very demanding positions, which require all of the support that they can get from responsible parties.

2.2.3 The Originator/Manager of the Record

• An access request is a potential threat to the careers of public servants, because disclosure may show them or their predecessors in a bad light (good news is much less likely to be publicized). An access request may also be perceived as a threat to programs or policies that public servants believe in, or as a threat of endless work to deal with political fallout from a disclosure of records.
  
  
• Justice Muldoon (1990): "It cannot be doubted that one principal purpose of the Act is to force a change of public servants' habitual, ingrained reluctance to give out the government's information, even apart from the obvious, stated limitations on access." ⁽³⁴⁾
  
  
• The perceived risks of disclosing drafts of records and background information; some public servants have had the very sobering experience of being quoted totally out of context, or having only the negative points of a memo made public, without any reference to the more numerous positive ones.
  
  
• ATI requests are only bad news and potential sources of trouble for risk-averse public servants;
  
  
• In a pressure-driven system of competing activities, there are almost no rewards for program managers for giving priority to finding and then reviewing responsive records;
  
  
• Staff cutbacks sometimes make senior administrators responsible for such activities as searching for records responsive to a request;
  
  
• The perception that the requestor will not be able to understand the records and/or will use them inappropriately;

2.2.4 The Senior Public Servant and Senior Political Advisors

• The lack of good news for any government in responding to ATI requests;
  
  
• The significant risk of disclosures harming the interests of the government, Ministers, and senior officials (who are normally shielded from direct public scrutiny); ⁽³⁵⁾
  
  
• The prevailing politics of damage control and keeping the Minister out of trouble; ⁽³⁶⁾
  
  
• The struggle with competing priorities for the allocation of scarce resources; ⁽³⁷⁾
  
  
• The ability of Deputy Ministers to allocate resources to eliminate backlogs in access requests, and the need for them to do so; ⁽³⁸⁾
  
  
• The lack of commitment at senior levels to the purposes of 'freedom of information' laws, regarding them instead as a nuisance or worse;
  
  
  • The summary of discussions held with coordinators by the Access to Information Review Task Force included the following statement: "Some participants deplored a perceived lack of accountability for compliance with the Act in some program areas and perceived lack of commitment to the spirit of the Act by some managers at all levels, including senior management." ⁽³⁹⁾
    
    
• The limited appreciation of the role and generous scope of existing exemptions from disclosure has not reduced the fear element in ATI;
  
  
• Information Commissioner, John Reid, Feb. 23, 2001: "Secrecy in government is deeply entrenched--primarily at the senior levels of the bureaucracy. Secrecy cloaks public servants in relative anonymity as the handmaiden of the notion of 'ministerial accountability'. Secrecy, too, gives governments more control over the management of information flows to the public. The access law--with a positive right of access by anyone present in Canada to most records held by government, coupled with a deadline for response--constitutes a frontal attack on both of these perceived virtues of secrecy. Consequently, there is every incentive for officials to resist, if not impede, the operation of the law." ⁽⁴⁰⁾
  
  
• Commissioner Reid, October 15, 2000, on the "damage control exercise" of Treasury Board and the Privy Council Office in response to the HRDC 'audit scandal': "Communications strategies were carefully developed before the audits themselves were disclosed to the requesters. There is nothing inherently improper about the government's desire to develop a consistent, unified position on any matter. The problem arises, however, when the communications concerns of the government are allowed to take precedence over the public's right to timely access to information." ⁽⁴¹⁾
  
  
• Senior public servants and political advisors have a long list of accountabilities, each with the potential of having their failings publicly exposed by a watchdog of some kind, including the Information Commissioner of Canada.

2.2.5 The Politicians (Ministers) and their Staff

• ATI challenges any government's goal of imposing centralized control on the disclosure of information, the management of the political agenda, and the limiting of risks through avoiding surprises and crises. ⁽⁴²⁾ This factor is independent of the political leanings of the party in question.
  
  
• Commissioner Reid, October 15, 2000: HRDC's response to its 'audit scandal': "… in the face of this development, government couldn't help but let its reflexive need to 'control' the story take precedence over the legal rights of access requesters to obtain timely responses. Ministers wanted to be out front of any access request - making a clean breast of any bad news before it hit the street and, when it did, being armed with an action plan. Of course, the only way to accomplish this strategy was to buy time - to slow down or postpone the release of these requested audits on grants and contributions programs." ⁽⁴³⁾ This phenomenon is to be expected in a parliamentary system of government.
  
  
• The Ontario Information and Privacy Commissioner has recently attacked the process of "contentious issues management" managed by the Ontario Cabinet Office for requests by certain applicants or on certain issues, because it delays access: "It is not acceptable for disclosure of records to be delayed past the statutory response date in order to accommodate an issues management priority." Commissioner Cavoukian's request for assurances that the Cabinet Office will clearly state a commitment to the processing time requirements of the Act over contentious issues management is optimistic. ⁽⁴⁴⁾
  
  
• Timelines and delays are a very minor issue in the scale of competing governmental priorities, because it is so hard to draw public attention to them and there are few active lobby groups promoting access to information;
  
  
• Elected politicians (at all levels)
  
  
  • Relatively unaware of how the ATI system actually works and of the power and scope of existing exemptions from disclosure;
    
    
  • Relatively powerless themselves when in government and on the back benches in terms of getting access to needed information;
    
    
  • Opposition politicians as ardent users of access to information in the absence of formal alternatives to gaining information that they need;
    
    
  • Not yet acclimated to a culture of openness and public scrutiny as opposed to a culture of secrecy; ⁽⁴⁵⁾
    
    
• The contrary position is that there has indeed been a major cultural change in the amount of information disclosed by the federal government and that this "positive news" receives little attention in ATI commentaries and stories. This needs to be documented.
  
  
• It is unrealistic to expect senior public servants, politicians, and their staff to be enthusiastic proponents of an ATI regime, but such forms of accountability are facts of life in a democratic society that they can be taught to live with. ⁽⁴⁶⁾

2.2.6 Information Commissioners and their Staffs

• Choice of approaches: a soft versus hard approach to dealing with response delays and other compliance issues;
  
  
• The mediation function on meeting timelines for access requests with government departments and agencies is crucial to the success of openness and accountability; ⁽⁴⁷⁾
  
  
• Importance of the Selection Process for Information Commissioners: Patronage appointments versus open competitions in terms of the credibility of the incumbent and the background that they may bring to the position; ⁽⁴⁸⁾
  
  
• Lack of background in the field of most new Information Commissioners means that senior staff have considerable opportunities to influence the style and approaches of the office in administering the Access to Information Act;
  
  
• Centrality of Individual Personalities: the traditional dominance of the non-confrontational approach to promoting compliance (Inger Hansen and John Grace as Information Commissioners); ⁽⁴⁹⁾
  
  
• Political Considerations: Budgets and Renewal (the federal government establishes the budget of the Information Commissioner and he or she is eligible for renewal; the same is generally true for the provinces and territories). ⁽⁵⁰⁾
  
  
• Advisory versus Regulatory Power: Making Decisions on Timelines and Delays:
  
  
• The Information Commissioner of Canada has less power to make and publicize an actual decision on an access request than a number of his provincial or territorial counterparts, thus reducing the power of the Office in difficult situations; most of his provincial counterparts make actual regulatory decisions that are only reviewable in the courts on matters of law.
  
  
• The federal Information Commissioner has tried to rely on the Federal Court of Canada to force action on the reasons for response delays: Justice Jerome stated on April 15, 1988 in response to a request from then Information Commissioner Inger Hansen:
  
  
  • "The Information Commissioner clearly desires a Court order forcing the Department [External Affairs] to particularize its reasons for taking the extensions. I am not prepared to make such an order. The Information Commissioner has no need of the Court's assistance in order to establish the reasons behind the decision to extend time limits in this case. That is her job, mandated by statute, and she has been given ample means to carry it out." ⁽⁵¹⁾
    
    
• The empirical approach of the Information Commissioner's office to delays was evident in a letter that Hansen wrote to the department:
  
  
  • "In order to evaluate the validity of the time extensions involved, details are required in regard to each case of the exact volume of records involved, what action was taken from the time that access request was received, when this action was taken, what further action remains to be taken, what consultations have been carried out, when they were carried out, what consultations are planned, and how providing these records sooner would unreasonably interfere with the operation of the department." ⁽⁵²⁾
    
    
• 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. He or she occupies what President Theodore Roosevelt called as a "bully pulpit." The inquisitorial, law enforcement approach to ATI compliance may have a place in selected situations, where other approaches have consistently and demonstrably failed. It is, however, not the preferred approach as a general regulatory stance. ⁽⁵³⁾

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¹ Alasdair Roberts and Rick Snell, academic commentators on the administration of ATI regimes, have wonderfully categorized these approaches (with a list of examples of each) as malicious non-compliance, adversarialism, administrative non compliance, administrative compliance, and administrative activism. See Rick Snell, "Administrative Compliance and Freedom of Information in Three Jurisdictions: Australia, Canada and New Zealand," table 1, http://www.ucc.ie/ucc/depts/law/ATI/conference/

² Open and Shut: Enhancing the Right to Know and the Right to Privacy, p. 67. The government did not accept this recommendation.

³ Canada, Legislation on Public Access to Government Documents (Ottawa, June, 1977), p. 21.

⁴ BC Information and Privacy Commissioner, David Loukidelis, in a special section of his first annual report on "Access Response Delays Cause for Concern." Annual Report 1999-2000, p. 13.

⁵ To the best of my knowledge, the Canadian practice, in responding to requests, is "first in, first out." Priorization of requests is not formally built into the system, although experienced access to information coordinators know where the dangers lurk in the process in terms of requests from the media and Opposition parties in particular. The concept of 'urgent requests' deserves some consideration in Canada, keeping in mind the critique by Robert Gellman of a similar proposal in the U.S.: "I estimate that at least half of all requesters would ask for expedited access once allowed by law. There is no extra cost for seeking faster access. Reporters, prisoners, and many other requesters would have nothing to lose by asking for quicker processing. The result would be an increase in administrative expense while requests for expedited access and appeals of denials are processed. Since there are no new resources available, response times for all requests would necessarily be delayed." R. Gellman, , "Shortcomings of the Proposed Electronic Freedom of Information Improvement Act (S.1090)," 14 Government Information Quarterly 1 (1997). Gellman now realizes that he exaggerated the number of such expedited requests (Interview, August 3, 2001).

⁶ The advent of government Web Sites is a great boon to this process, since novice applicants can be referred to a written source for the rules of the ATI game and how they work in practice. Those initiated into the ATI world sometimes fail to appreciate how arcane and mysterious it appears to outsiders.

⁷ For example, a response to the commonly-asked question: "What happens to my access request after it is received?"

⁸ Information Commissioner, Western Australia, Annual Report 1999-2000, http://www.ATI.wa.gov.au/ATIFrames.htm

⁹ Canada, Access and Privacy: The Steps Ahead, pp. 44-45.

¹⁰Annual Report, 1999-2000, p. 14. Commissioner Reid does not believe that there is a problem: "There is a belief, widespread in government, that the right of access is being abused by frivolous requesters and bulk or business requesters. That belief is demonstrably false….[Reid then discusses the relatively small number of access requests over time, which I have quoted elsewhere in this report.] My point is simply this, the popular mythology that the volume of access requests is so great as to interfere with the effective administration of government, is without foundation." Speech to the ADM Advisory Committee, Ottawa, Feb. 23, 2001. He later added this discussion of bulk users, which is relevant to the concerns of this report: "Whenever I speak to groups of public servants I inevitably hear complaints about the so-called 'bulk' users, those who make many requests, often for the purpose of reselling the information (often with value added). 'Surely', public servants say 'the Act was not intended to be used to make a private profit!' On this point, too, the outrage is misplaced and undeserved. From the beginning it was recognized that entrepreneurs would make use of the Act to obtain government information for commercial purposes. That has been the experience in all jurisdictions which operate in a freedom of information regime. It makes economic good sense to allow entrepreneurs to 'mine' government holdings for saleable information: First, new information businesses pay taxes and the tax system is a more effective revenue collector than would be even the highest of access fee regimes. Second, information requesters give government valuable clues as to where its informational 'gold' is hidden--and, should it so desire, the government can undertake, itself, the economic exploitation of the information…."

¹¹ Section 43. In my time as Information and Privacy Commissioner, I used this power very sparingly. My Office always required public bodies to make a substantial case for an order of this sort and often successfully mediated the problem. My use of section 43 was also subject to judicial review by the Supreme Court of British Columbia. Nevertheless, I know from unhappy experience that these kinds of obsessive applicants are a real problem

¹² Statutes of Canada, 2000, c. 5, s. 13(2)©.

¹³ www.atirtf-geai.gc.ca

¹⁴ Report cards' departments are the departments singled out by the Information Commissioner in his 1999-2000 and 2000-2001 annual reports for assessment of their performance on delays.

¹⁵ www.atirtf-geai.gc.ca

¹⁶ www.atirtf-geai.gc.ca

¹⁷ The BC Liberal Party made a significant contribution to response times in the province by withdrawing all of its corporate requests for access to information when the NDP called an election in April, 2001.

¹⁸ www.atirtf-geai.gc.ca

¹⁹ www.atirtf-geai.gc.ca

²⁰ www.atirtf-geai.gc.ca

²¹ Annual Report, 1999-2000, p. 14.

²² John Reid recommended in his Warsaw speech that "departments and agencies must establish a processing flow plan which minimizes decision/approval points, which sets times within which each action must be taken (i.e. search, review, approvals) and which tracks progress, provides follow-up and entails consequences for non-compliance." (Access to Information Conference, Warsaw, Poland, March 15, 2001; all of the texts of Mr. Reid's speeches quoted in this report are available on the web site of the Commissioner.)

²³ Commissioner Reid devoted a section of ch. 4 of his Annual Report 2000-2001 to the important theme of "Recognizing, Fostering and Protecting the Coordinators."

²⁴ The volume of requests continues to grow. Information Commissioner John Reid said in a recent speech in Poland that: "Most surprising is the modest use Canadians make of the Access to Information Act. Before the Act was passed, the government forecast that approximately 50,000 requests per year would be received by the totality of government institutions (some 150) covered by the Act. In fact, it took 10 years to reach the 50,000-request mark. The year just past - 1999-2000 - was the year in which the most access requests were received since the Act's passage -- there were some 19,000." In fact, that is a large number of requests to be processed and timelines to be met for the government.

²⁵ www.atirtf-geai.gc.ca

²⁶ Speech by the Chair of the Access to Information Review Task Force, London, UK, March 5, 2001; www.atirtf-geai.gc.ca. The informative speech also listed a number of other complex requests that, to my mind, reflected requests, in some instances, for someone to do research rather than to produce existing records. In my view, the obligation to respond to an access to information request does not extend beyond the duty to produce existing records; there is no obligation to create records. The BC Freedom of Information and Protection of Privacy Act does require the creation of a record for an applicant "from a machine readable record … using its normal computer hardware and software and technical expertise, and b) creating the record would not unreasonably interfere with the operations of the public body." (s. 6[2])

²⁷ www.atirtf-geai.gc.ca

²⁸ www.atirtf-geai.gc.ca

²⁹ John Reid's Warsaw speech on March 15, 2001 contained the following statement on resourcing as a solution to problems with the administration of the Access to Information Act: "…the government must give to the group responsible for receiving and processing requests, and appropriate operational areas, sufficient resources to answer the anticipated workload based on historical trends. It is not necessary to resource for peaks, but it is necessary to have a contingency plan for peaks such as a roster of contractors, an arrangement to borrow experts from elsewhere and/or a plan for obtaining quick approval for additional positions. Take seriously, in other words, the notion that access delayed is access denied." Reid added this statement in an earlier presentation: "Treasury Board has already notified all departments that it will consider favourably new resource requests to ensure response time obligations are met." (ADM Advisory Committee, Ottawa, Feb. 23, 2001) However, even where emergency resources are found, there are not enough ATI consultants on the market to be hired.

³⁰ www.atirtf-geai.gc.ca

³¹ Annual Report 1999-2000, p. 14.

³² I recognize that this approach requires senior officials to engage in an "act of faith" that delegated staff will act in a prudent manner.

³³ www.atirtf-geai.gc.ca

³⁴ Canada (Information Commissioner) v. Canada (Minister of External Affairs) (T.D.), [1990] 3 F.C. 514 (para. 21).

³⁵ Commissioner John Reid in his Warsaw speech on March 15, 2001: "In Canada, the federal access requests made by journalists and opposition members of parliament routinely get slower service, closer scrutiny, and more conservative treatment from a misguided sensitivity to the Minister's needs. Of course, when the accounting comes, who bears the blame and wears the shame? It is, of course, the Minister."

³⁶ In a series of delay cases involving National Defence, the Information Commissioner found that "much of the delay in responding to the access requests was due to the time taken to 'triage' such records for the Minister's office and prepare briefings and media lines for the Minister." Annual Report 1999-2000, pp. 63-64.

³⁷ David Loukidelis wrote that "There is no doubt that the culprit for the [access] delays is almost always an excess of demand over resources…." The delays in BC have largely been in responding to access requests for personal information held in the "people" Ministries. (Annual Report 2000, p. 8)

³⁸ Commissioner Loukidelis in BC specifically singled out two Deputies by name for their contributions in this regard; they recognized that responding to access requests is a core activity for their Ministries. (Annual Report 2000, p. 8)

³⁹ www.atirtf-geai.gc.ca

⁴⁰ Presentation to the ADM Advisory Committee, Ottawa, February 23, 2001.

^{41. 41} Annual Report, 1999-2000, p. 17.

⁴²The Supreme Court of Canada has stated: "The over-arching purpose of access to information legislation…..is to facilitate democracy. It does so in two related ways. It helps to ensure first, that citizens have the information required to participate meaningfully in the democratic process, and secondly, that politicians and bureaucrats remain accountable to the citizenry" [Dagg v. Minister of Finance [1997] 2S.C.R. 403 at 432] Such perceptions have not sunk deeply into the minds and hearts of those running Canadian governments.

⁴³ Annual Report, 1999-2000, p. 16.

⁴⁴ Information and Privacy Commissioner/Ontario, Annual Report 2000 (June, 2001), pp. 4-6.

⁴⁵ Information Commissioner, John Reid, speaking in Warsaw, Poland, about "improprieties" in the administration of the Access to Information Act: "Finally, with every change in Minister and every turnover in ministerial exempt staff, cases arise where the Minister's office disrupts the process -- slowing it down, dictating the timing of release, directing the application of exemptions over the objections of the professionals. The communications needs of Ministers are, too often, given precedence over the legal rights of access requesters. That is not just troubling, it is illegal. Too often I find myself reminding Deputy Ministers of their obligation to ensure that their Ministers understand and respect their legal obligations."

⁴⁶ I benefited greatly in British Columbia from the influence of an experienced Deputy Minister, who understood how FOI worked, and lectured his fellow Deputies about how they could learn to live with such a regime of openness (since so many records could be kept secret quite legitimately, because of the many exemptions from disclosure).

⁴⁷ Again, quoting John Reid from his Warsaw speech on March 15, 2001: "My office has a 99.8 per cent success rate in solving disputes between citizens and the government. The ombudsman model works well. Its success depends in large measure on the thoroughness of investigations, the success of negotiation/persuasion efforts and the reputation of the ombudsman for allegiance to the law rather than partisan advocacy for the complainant."

⁴⁸ Others can decide whether it is better to continue to appoint individuals through a patronage process at the federal level, controlled by the Prime Minister, versus the emerging provincial/territorial model of advertising the posts to all comers (with the choice being made by a committee of the Legislature in most cases). There is clearly a difference in how long it takes a newcomer to access to information to learn his or her job, as opposed to a person with some prior experience in the field. Ann Cavoukian and David Loukidelis are rare examples of Information and Privacy Commissioners with strong backgrounds in the field at the time of their appointment.

⁴⁹ See David H. Flaherty, Protecting Privacy in Surveillance Societies (University of North Carolina Press, Chapel Hill, 1989), p. 257.

⁵⁰ Commissioner Reid has described a "full counter-attack in progress against the office of the Information Commissioner. This counter-attack is imposing an onerous, unexpected burden on the office's legal and investigative resources. At the same time, Treasury Board has refused to give the Commissioner the resources which, even the Board's officials agree, he needs." Annual Report, 1999-2000, p. 10.
The Treasury Board Secretariat conducted an A-Base Review of the Offices of the Information and Privacy Commissioners in 1998-99. As a result of the review, incremental increases to the reference levels of both Commissioners were approved. For the Information Commissioner, the additional funding (exclusive of accommodation premium and EBP) amounted to $709K for 1999-2000, and $854K for 2000-2001 and ongoing years. An additional $289K was approved for 1999-2000, and $202K for 2000-2001 and ongoing for Corporate Services serving both Commissioners.

⁵¹ Canada (Information Commissioner) v. Canada (Minister of External Affairs) [1989] 1 F.C. 3 (para. 27). Justice Jerome was willing to review the time extension itself and the reasons given for it (para. 19)

⁵² Canada (Information Commissioner) v. Canada (Minister of External Affairs) [1989] 1 F.C. 3 (para. 10).

⁵³ Commissioner Reid made the same point in his "remarks to the ATI External Advisory Committee, Ottawa, June 20, 2001:" "I prefer to conduct my investigations by consent and cooperation. Our normal modus operandi is to meet with government officials informally, to receive records which are voluntarily produced. Officials are seldom put on oath and recorded during their evidence." (p. 7)