Report 25 - Access to Information Review Task Force

MANAGING RESPONSE TIMES UNDER CANADIAN ACCESS TO INFORMATION LEGISLATION

2.3 The Practical Results of Statutory Timelines: What has happened?

• The cup is either half full or half empty, depending on one's perspective and position in the ATI system (as illustrated below);
  
  
• ATI systems are in place and are "working," with all of the consequences described above, in most advanced industrial societies, especially those with an Anglo-Saxon political heritage;
  
  
• In a remarkable display of progress, the state of Western Australia has seen the average time required to respond to an access request decline from 24 days in 1996 to 18 days in 1999-2000. ⁽⁵⁴⁾ The reasons appear to include vigorous oversight by the Information Commissioner and a dedicated team of access coordinators who are allowed to do their jobs.
  
  
• Robert Gellman, an informed U.S. observer, made the following comment about timelines in proposed revisions to the U.S. Freedom of Information Act: "Section 6 would also change the Act's basic time limit for responses from 10 to 20 days. For some agencies, the 10-day time limit is feasible for some requests. For other agencies, the 10-day time limit is an impossibility. By establishing a single deadline for all requests, regardless of size, the Congress made a mistake years ago. The proposed extension of time limits, however, will make some people worse off and no one better off. Agencies that now respond within 10 days will take longer. Agencies with large backlogs that take now months to respond to requests will not have any more resources. No matter whether the time limits are 10 or 20 days, these agencies will never be in compliance. In effect, the 1974 amendments painted everyone into a corner with unrealistic time limits. Unfortunately, there is no good way out of that corner." ⁽⁵⁵⁾
  
  
• Former Information Commissioner, John Grace, appearing on June 7, 2001 before the MPs Ad Hoc Committee on Access to Information: "The Act is working, not perfectly, far from perfectly. But the Act is responsible for information being provided to the public that otherwise would never have seen the light of day. It's a brave act. Not too many countries have such an act, and I don't want you to throw out the baby with the bath water. It's not a secrecy act. It does need renewal but it does not need reinvention; it does not need to be remade."
  
  
• One possible conclusion is that if this part of the system (response times) is not broken, then it does not need to be fixed. As Commissioner Reid said recently, "[t]he greatest shortcomings in the right of access are not shortcomings in the words of the Act but in the deeds of those who administer the Act." ⁽⁵⁶⁾
  
  
• As the Chair of the Access to Information Review Task Force said in a speech in London on March 5, 2001 about her daily reading of stories written on the basis of ATI disclosures: "The regularity of these headlines, and the breadth and significance of the information released by the government reassures me to some extent. It tells me that the system for accessing information held by government is, on the whole, healthy and working. Is it perfect? Of course not. Does it need improvement? Absolutely. But I would agree with the Information Commissioner when he said at a recent meeting in Ottawa that - the "Access to Information Act is a pretty sturdy piece of legislation". It may need clarifying and modernizing here and there but my sense is that the far bigger challenge is to make it work better in order to provide more effective access for Canadians."
  
  
• The Chair of the Access to Information Review Task Force also gave her own set of statistics about the functioning of the federal ATI system: "…the data provides some kind of performance indicator. We can see that more than 90% of requests do not result in a complaint; by that I do not mean that over 90% of requesters are perfectly happy, but they do not initiate a formal complaint. And of those requests, which resulted in a complaint last year, over 99% got resolved to the satisfaction of the Information Commissioner - in fact 3 complaints were not resolved. …
  
  
• On the basis of these statistics, one would conclude that the Canadian system is one of the best performing in the world - a statement the Information Commissioner would probably be reluctant to endorse, that many users would most likely challenge and one that would certainly startle a number of officials in Ottawa."
  
  
• The Chair of the Access to Information Review Task Force also gave her own set of statistics about meeting time-limits: "Another measure of the effectiveness of the system is the time taken to respond to requests. It should be noted that, in the last few years, Departments have increased their use of extensions and that forty-nine per cent of all complaints to the Information Commissioner are about delays.
  
  
• The Canadian legislation provides a response deadline of 30 days. A department can however extend the response period for good reasons. In 1999-2000, of requests completed[,] 63.2% or 11, 685 requests were completed within thirty days; 16.4% or 3,036 were completed in 31 to 60 days and 20.4% or 3,767 took more than 61 days." ⁽⁵⁷⁾
  
  
• A key point is that the Ontario Information and Privacy Commissioner has issued many Orders dealing with the management of delays in meeting timelines and the granting of extensions. Such active, ongoing oversight is typical of her provincial and territorial counterparts (and they have the authority to produce results).
  
  
• In his first annual reports as Information and Privacy Commissioner for British Columbia, David Loukidelis, has twice highlighted access delays in his commissioner's messages (which are quoted from below as appropriate): "The delays we are finding with some public bodies threaten to become a systemic barrier to the right of access." ⁽⁵⁸⁾
  
  
• Manitoba can boast that in 1999 "about 90% of the overall response times of both departments and governments agencies were within the thirty-day statutory requirement. This maintained a response standard rivalled by very few other Canadian jurisdictions as noted in an independent 1998 examination of the performance of governments with freedom of information laws." ⁽⁵⁹⁾ My argument is that the Manitoba Information and Privacy Commissioner/Ombudsman exercises active, positive oversight of the health of the FOI system.
  
  
• The Standing Committee on Justice and Solicitor General of the House of Commons reported, in March 1987, on the results of its review of the implementation of the Access to Information Act:
  
  
  • For some users, information delayed is information denied. The Committee has heard testimony concerning delays which are clearly unacceptable, even though it must be recognized that a certain start-up time was required for many government institutions to have prepared record-keeping systems to meet the demands of the Access to Information Act. By now, however, problems of inadequate record keeping and inexperienced personnel can no longer justify lengthy delays. Very often it appears that the difficulties arise not with Access Coordinators but with senior officials in particular government institutions. The extent of the delay problem is perhaps best captured by Treasury Board statistics: approximately one in five complaints to the Information Commissioner involved delay. ⁽⁶⁰⁾ (emphasis added)
    
    
• Readers will be aware that this situation has worsened since 1987, not improved. The government responded in 1987 that it would create an education program to develop "a more receptive attitude" towards the right of access in the public service. "This education, combined with additional support for coordinators, will stress the need for officials to be as prompt as possible in processing access requests under the two Acts." ⁽⁶¹⁾ (emphasis added)
  
  
• As Information Commissioner John Reid said to the Task Force's Assistant Deputy Ministers Advisory Committee on Feb. 23, 2001, "… many departments have been unable to respect, on a consistent basis, this generous response deadline regime. The [Access to Information Review] Task Force will be scrutinized carefully to see if it recommends measures, including penalties, to end the ignominious, 18-year record of disrespect for the requirement that responses to access requests be timely." (emphasis added)
  
  
• The federal experience from the perspective of the Information Commissioner: "During fiscal year 1999-2000, we received 1,359 complaints with 49% of all completed complaints that year being about delay by government institutions in replying to requests. We have, at the moment, 25 full-time investigators who each carry over fifty investigations…. [O]f these 1,359 complaints received, five institutions accounted for 66.5% of them. Health Canada was the subject of 307 complaints, National Defence 216, Indian and Northern Affairs 167, Citizenship and Immigration 135 and Canada Customs and Revenue Agency 78.These same five institutions also comprised the "top five" last year." ⁽⁶²⁾
  
  
• The provinces and territories have had less significant problems with delays in responding to access requests for general records; the reasons for this are not simple to identify.
  
  
• John Reid on the meaning of reasonable extensions of time deadlines for responding to an access request: "In these circumstances, departments are entitled to extend the response deadline for as long as they choose, subject only to the requirement that the extended period of time be reasonable in the circumstances. My office takes the view that extensions must not exceed one year (the period after which there is no right of complaint), although that view is not shared by the government. If the deadline is set at more than 60 days from the date of receipt, my office must be notified of the extension.
  
  
• For your information, my office has given guidance concerning what constitutes 'large volume.' In our view 500 or fewer records will almost never be accepted as 'large volume,' while 1,000 or more records will often be accepted. The answer will vary from case to case, and much depends on the historical experience in the particular department." ⁽⁶³⁾
  
  
• However, Reid concluded in his latest annual report that "There appears to be no system-wide reason for increasing--or decreasing--the current 30-day response deadline." ⁽⁶⁴⁾ This is a reasonable position.
  
  
• Administrative reforms in the management of federal response times will likely be necessary and desirable. See section 2.5.4 below.

2.4 The Reasons for Non-Compliance with Timelines

2.4.1 The Traditional Low Visibility of Non-Compliance

• Commissioner Reid, October 15, 2000: "The government's palpable animosity towards the 'right' of access (it would prefer to dole out information by grace and favour in well-digested mouthfuls)…." ⁽⁶⁵⁾ The political costs of so acting are relatively low.
  
  
• Delays and deemed refusals are normally buried issues that do not make the front pages of the press, so the 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 Reid, Cavoukian, and Loukidelis have now done. Even in these circumstances, private remonstrance and negotiations are more effective than public declamations in promoting compliance with timelines and related requirements of an ATI regime.
  

  The lack of data collection by central government to monitor non-compliance. Of course, this necessary bureaucratic exercise has little appeal as an assigned task.

2.4.2 The Exercise of Political Interests

• The availability of implementation games with respect to handling requests from the media and the Opposition or for requests about "contentious issues;"
  
  
• The government's strong, understandable desire to control the political agenda, including the disclosure of records of government action or inaction:
  
  
  • For example, the practice of withholding records from Opposition parties while the Parliament or Legislature is still sitting (few downside risks).
    
    
• The need to handle requests for access to extant records while political decisions on a file are still under active consideration;
  
  
• The reality that many initiatives of the government and the public service do not lead to actions, decisions, and policies, but they do create records that may then be used to embarrass the government, especially by interest groups.
  
  
  • The consultation process with 'report card' departments identified the following factors as reasons for missed deadlines: "Communications assessments on sensitive and high-profile requests were sometimes found to be time-consuming; Some requests may be identified as being of interest to a Minister's Office, requiring such requests to be pushed through a number of steps and layers in the organization." ⁽⁶⁶⁾
    
    
• Political scrutiny of some ATI requests needs to be treated as a fact of life in democratic societies.

2.4.3 The Political Climate in Government

• The limited honeymoon phase for new ATI legislation and/or a newly-elected government that introduces open government legislation, such as David Peterson's Liberals in Ontario in the late 1980s; . ⁽⁶⁷⁾
  
  
• There was never a honeymoon at the federal level, since the Progressive Conservatives of Brian Mulroney succeeded the Liberals and became the first Canadian government to have to live with an ATI regime. Disclosure of their expense accounts did nothing to endear the process to this new political elite.
  
  
• The more common problem of routinization of the access to information regime in a situation where the requests for records never stop coming, just as governments never cease to create records, and certain applicants become more skilled and sophisticated in making requests;
  
  
• Political will, or the lack of political will, to promote openness and accountability with respect to access to government records is a continuing problem at all levels of government;
  
  
• If the senior political leadership is not perceived as committed to open, accessible, and accountable government, then the commitment to compliance on the part of the public service is likely to be weak;
  
  
• The NDP governments of Michael Harcourt in British Columbia (1992-96) and the current Conservative government of Ralph Klein in Alberta are examples of governments that made a serious commitment to freedom of information and followed through with political will, leadership, and adequate resourcing.
  
  
• FOI legislation in BC undermined the credibility of the government of Glen Clark by releasing budget records, for example, that told a different story than the "official" one. Clark opined "freedom of information was undermining democracy in British Columbia." It was, in fact, undermining Clark's control of the political process.
  
  
• Very limited political payoffs to government for an initial investment in ATI (e.g. the last Liberal government of Pierre Trudeau; and the NDP in BC [1992-2001]).

2.4.4 The Financial Climate in Government

• Government is about making difficult choices over the use of limited resources: clean water, child protection, access to information, policing, education, and health. ⁽⁶⁸⁾
  
  
• ATI is arguably a cheap activity of government on a comparative basis in terms of its ultimate contribution to the advancement of an open, accountable society, where the public has a right to know;
  
  
• ATI, in part because of its novelty and burdens, can be viewed as a bit of a frill, which contributes to chronic under-resourcing of the function; it can also be seen as a bottomless pit of resources, where more is never enough (almost like health care). Expenditures in support of a healthy ATI regime need to be made wisely, especially since ATI compliance is not the core mandate of any department or agency.
  
  
• At a time of fiscal and budgetary restraint, it is inevitable that the administration of ATI will suffer like other governmental activities. ⁽⁶⁹⁾ The Treasury Board Secretariat and the Information Commissioner of Canada have to lobby to ensure that ATI is treated fairly in such circumstances.

2.4.5 The Realities of Limited Commitment to Information and Records Management

• The burden and expense of actually finding and locating requested records; ⁽⁷⁰⁾
  
  
• The summary of discussions held with coordinators by the Access to Information Review Task Force included this statement: "Poor records management, including electronic documents - coupled with loss of corporate memory - was also frequently mentioned as a major obstacle to effective implementation of both the Access to Information Act and policies designed to provide ease of access to government information. Outdated systems, including the Co-ordination of Access to Information Requests System, were seen as significant barriers." ⁽⁷¹⁾
  
  
• The summary of discussions with report card departments identified "poor records management practices" as a major reason for missed deadlines, including these points:
  
  
  • Document retrieval can take much effort, if records management is not in an exemplary state;
    
    
  • ATIP Offices need to know what information the department has, where it is located regardless of its physical form, and what the approved retention and disposal schedules are for various types of information;
    
    
  • Offices in charge of records management need to be adequately resourced and appropriate staff hired and trained.
    
    
  • The discussions emphasized the need for improved records management.
    
    
• The realities of decentralized government in a large geographical expanse like Canada: records that need to be located, copied, and reviewed may be held hundreds or thousands of miles apart and even in foreign countries;
  
  
• The persistent lack of political or bureaucratic interest in promoting and funding good records management for either paper or electronic records. The situation is especially pathetic for the latter category.
  
  
• BC Information and Privacy Commissioner, David Loukidelis: "…[I]t is clear that modern records management legislation governing the life cycle of government records, from creation to disposal, is needed. The benefits in terms of reduced compliance costs under the [ATIPPA] Act are undeniable…. The Act's goals of accountability and openness are hardly served, if records cannot be found or are of suspect authenticity." ⁽⁷²⁾
  
  
• The Auditor General of Canada has drawn attention to the problem of records management. On February 27, 2001, Denis Desautels completed his 10-year term by tabling in Parliament a document entitled: Reflections on a Decade of Serving Parliament….
  
  
  • The problem of failing to disclose bad news is being compounded by the poor quality of records kept in departments. Part of this can be attributed to a certain paranoia over Access to Information rules and the traditional reluctance of senior public servants to keep records of direction from ministers or discussions of why decisions were made.
    
    

  Accountability is also made more difficult by damage to the audit trail. Efforts to reduce administrative overhead appear to have resulted in disproportionate cuts in records management. My colleague, the Information Commissioner, has called attention to the reduced numbers of information handlers, librarians, records clerks and filing secretaries, a situation that he believes has devastated the records management discipline. This hampers not only the public's ability to gain direct access to government records but also the institutional memory of the departments themselves. The ability to audit decisions suffers as well.

  The audit trail is also damaged by the way information technology is used. At one time, all correspondence and documents were on paper and were physically filed in a department's central registry. Today, internal memos have been replaced by e-mails, which are not filed centrally and which evaporate when the server where they are stored runs out of space. Most knowledge workers have their own hard disk and keep many important records there, invisible to the departmental records managers. I agree with the Information Commissioner in his opinion that these practices are eating away at the foundations of accountability in the federal government. I am concerned that without better use of technology, it will become more difficult to know how and why important decisions were made. ⁽⁷³⁾

• Commissioner Reid, October 15, 2000: on the inability to find requested records: ⁽⁷⁴⁾
  
  
  • "Information management in the federal government is in such a sorry state that the term has almost become an oxymoron. There is a record-keeping crisis and it threatens the viability of the right of access."
    
    
  • "The whole scheme of the Access to Information Act depends on records being created, properly indexed and filed, readily retrievable, appropriately archived and carefully assessed before destruction to ensure that valuable information is not lost."
    
    
  • Restraint and downsizing has devastated the records management discipline;
    
    
  • The great divide between Information Technology and Information Management professionals;
    
    
  • "an irrational fear of access leads many officials (often at the most senior levels) to avoid making records;"
    
    
  • "personal computing has reduced the ability of institutions to exercise central control over the filing, indexing and destruction of records;"
    
    
• "The good news is that TBS developed, in the late 1980s, a comprehensive policy governing the management of government information holdings…. The bad news is that Treasury Board has taken no steps since to ensure that the policy is being followed or updated to keep pace with the challenges of electronic governance."
  
  
• "The time is right, for an Information Management Act, designed to regulate the entire life cycle of government-held information." ⁽⁷⁵⁾
  
  
• When the Access to Information Review Task Force asked coordinators what would make a significant difference towards enhancing access, "[e]stablishing efficient records management systems, policies, and providing guidance were mentioned frequently as providing the most potential for improving the public's access to government held information." ⁽⁷⁶⁾
  
  
• The need to improve information and records management appears to be an area of consensus (especially with respect to the reality that members of the public service are constantly creating records on personal computers without training in records management). But reform in these two areas is a fundamental problem with no truly easy solutions.

2.5 The Types of Solutions Available for the Problem of Delays in Meeting Timelines

2.5.1 The Perspective of the Applicant on Solutions

• What reasonable expectations should applicants have of the speed of obtaining access to government records? They should expect timelines to be observed, on the basis of reasonable efforts and in the absence of compelling reasons to the contrary, which should be reviewable by an independent oversight authority.
  
  
• Applicants want records and have little interest in bureaucratic explanations for why records are not forthcoming promptly; however, they have to learn, or be taught, patience in order to work the system effectively. This is a never-ending activity for coordinators and their staff.

2.5.2 The Perspective of the Access to Information Coordinator on Solutions

• Coordinators need to work in a supportive, rewarding environment that values what they do for democracy in Canada, which is not often enough the case at present at the federal level.
  
  
• The Standing Committee on Justice and Solicitor General concluded in March, 1987 that "Access Coordinators and other officials in government institutions should be encouraged in concrete terms to make every effort to comply with access requests in a timely manner…. Positive incentives must be given to Access Coordinators and other officials who have endeavoured to comply with the spirit of the Access to Information Act. For example, the Performance Review and Appraisal Reports for public servants who administer the Access to Information Act should reflect their success in achieving timely compliance." ⁽⁷⁷⁾ This remains a desirable goal.
  
  
• The government responded in 1987 that it "recognizes that coordinators play a crucial role in the legislation's successful implementation. They serve as an important contact point for individuals making requests under the legislation. They are also responsible for the efficient and timely processing of access requests. To achieve this, coordinators must have direct access to senior management and be able to deal effectively with other officials…. The government will develop a training package for the coordinators and their staff, to provide the detailed and current knowledge they need to carry out these functions…. As well, the requirements and duties of the coordinator's position will be updated, and emphasis will be placed on the need for direct access to the deputy minister or other senior official to ensure that responsibilities under the legislation are fully discharged and that problems are solved as quickly as possible." ⁽⁷⁸⁾
  
  
• In acknowledging the very high initial success rate of access requests in Manitoba, Ombudsman Barry Tuckett stated: "The normally routine success of access to information and privacy activities in Manitoba is attributable largely to the commitment of access and privacy coordinators and officers in their daily work on the front lines, and to the support provided to them by the public bodies and trustees responsible for the administration of FIPPA and PHIA [the Public Health Information Act]." ⁽⁷⁹⁾
  
  
• Coordinators need to have delegated authority from the Deputy Minister to do their jobs in an appropriate manner;
  

The Information Commissioner proposed a (reasonable) delegation standard in the following suggestion to the Ministry of National Defence:

"It is expected that those holding the delegated authority to answer access requests will exercise the authority in compliance with statutory deadlines. Reasonable efforts to ensure that the Minister's communications needs are served prior to the issuance of responses are appropriate. However, late responses to access requests shall not be further delayed in order to serve the Minister's communications needs. Furthermore, late responses shall not be further delayed in the senior approval process within the department." ⁽⁸⁰⁾

• A sound ATI/FOI Operating System for processing access to information requests has to come to grips with what informed observers perceive to be certain important realities:
  
  
  • Most access requests are dealt with easily; Deputy Ministers and senior officials only learn about the problematic requests and requesters;
    
    
  • There have to be administrative limits on the scope and size of access requests, so as not to block more reasonable requests. It would likely be inappropriate for a department to expend all of its annual ATI resources on one request. ⁽⁸¹⁾
    
    
  • Resourcing of the access process in specialized program areas will be an ongoing problem, since there will be times when an already busy person is the only public servant who knows about a particular type of record, such as very specialized scientific information.
    
    
  • The process of consultation with third parties, including other departments, other governments, corporations, and large numbers of parties, is a substantial burden that places great pressure on statutory time frames. A notice on departmental web sites should explain what consultation with third parties means and why the process can take some time.
    
    
  • "Participants identified that up-front negotiation with requesters often works well in shortening response times- some requesters may agree to accept records at an 'as they are' stage;" ⁽⁸²⁾
    
    
• The summary of discussions held with access to information coordinators by the Access to Information Review Task Force made the following relevant point: "Establishing good rapport with requestors was mentioned as an important part of establishing and "negotiating" how to appropriately meet requestors' information needs."
  
  
• Another general overall statement from this summary of discussions touched on many of the issues addressed in this section: "Adequate training resources and support and provision of user friendly guidelines for ATIP offices as well as human resource planning to ensure appropriate staffing levels and classification, were also cited as important steps that would improve public access to information. More recognition by political and departmental officials of the work performed by Access to Information Coordinators was felt to be a necessary and important pre-cursor to promoting a public service environment more respectful both of their role and of the principles behind the Access to Information Act. Some participants felt that classifying ATIP coordinators at a higher level would give them increased credibility[,] which would allow them to champion ease of public access to information more effectively; others felt that more leadership at all levels, but particularly by senior management, would improve public access to information under the Act, and also general access to many kinds of government information." ⁽⁸³⁾
  
  
• The Information and Privacy Office of the Ontario Management Board Secretariat has just released a "Freedom of Information Guideline" intended to promote best management practices for the ATI function. ⁽⁸⁴⁾ (emphasis added throughout) It is quoted in full here, because it is such a coherent review of the various administrative issues that need to be addressed in managing timelines for ATI requests:

"Managers responsible for FOI offices should ensure that:

1. Policies and procedures are in place to ensure that requests are dealt with in an expeditious manner consistent with the requirements of the Act.

2. FOI Coordinators and staff have the skills and training required to carry out their duties.

3. Delegated decision-makers are appropriately briefed to discharge their decision-making authority. [This is, in effect, a good triage system.]

4. Annual training plans are developed and implemented to ensure that all FOI staff have appropriate training and knowledge of FOI legislation and procedures.

5. Training opportunities are provided to FOI staff and program area contacts which emphasize principles of open government and the purposes of the Act.

6. Succession plans are implemented to identify and train potential candidates for the FOI Coordinator position for continuity and smooth succession when vacancies or absences occur….

FOI Coordinators

FOI Coordinators should:

1. Promote routine disclosure and active dissemination by taking an active role in identifying records and holdings which are not exempt and can be disclosed outside the FOI process.

2. Ensure that work on requests begins early as set out in this guideline.

3. Identify difficult or voluminous requests early and institute an appropriate processing plan for them.

4. Foster communication and rapport with requesters as set out in this guideline.

5. Negotiate with requesters whenever it is likely to increase client satisfaction and reduce the size or complexity of a request.

6. Prepare decision letters according to the criteria set out in this guideline.

7. Implement case management and monitoring processes to ensure that the time lines set out in the contentious request process are followed.

8. Implement the contentious request process according to this guideline.

9. Periodically review institution FOI performance and compliance.

10. Identify training for themselves, decision-makers, and FOI staff.

11. Consider contracting outside help to assist with FOI processing when an institution's FOI workload unexpectedly exceeds the capacity of FOI staff.

12. Ensure that appropriate procedures and timetables are in place for approvals and signoffs to avoid delays.

13. Clearly communicate to decision-makers what their time limits are for responding to the FOI office.

Program Area Managers

"Program area manager" means a manager responsible for a program area - in most cases, an Assistant Deputy Minister in charge of a division.

Program area managers should:

1. Ensure that the performance of FOI duties is given priority and is not subordinate to other program area functions.

2. Promote routine disclosure and active dissemination by examining record holdings to identify records or classes of records which are not exempt and can be disclosed outside the FOI process.

3. Specifically identify program area contacts responsible for FOI functions.

4. Establish, in consultation with the FOI Coordinator, the specific duties for all program area contacts.

5. Ensure that program area contacts give high priority to processing FOI requests so that records and recommendations on release are provided to the FOI office within time limits specified by the FOI office.

6. Where program area contacts locate records and make recommendations on release, ensure that program area staffing levels are sufficient to ensure that these tasks are completed within time limits set by the FOI office.

7. Ensure that other program area staff are available to replace program area contacts as needed.

8. Ensure all program area contacts are clearly advised of their FOI duties.

9. Ensure the ongoing availability of properly trained program area contacts who are able to find records responsive to FOI requests and who understand the Act.

10. Ensure an adequate level of funding to implement the measures described in these guidelines.

11. Ensure the integrity and organization of record holdings by ensuring compliance with Ministry and Government policies respecting recorded information including:

• The Archives Act.
• The Information and Information Technology Security Directive.
• The Management of Recorded Information Directive.

12. Ensure that any records kept in off-site storage are organized and maintained so as to enhance accurate, rapid retrieval."

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⁵⁴ Information Commissioner, Western Australia, Annual Report 1999-2000, www.ATI.wa.gov.au/ATIFrames.htm

⁵⁵ R. Gellman, "Shortcomings of the Proposed Electronic Freedom of Information Improvement Act (S.1090)," 14 Government Information Quarterly 1 (1997).

⁵⁶ Annual Report, 2000-2001, ch. 1, p. 5.

⁵⁷ www.atirtf-geai.gc.ca

⁵⁸ Office of the Information & Privacy Commissioner for British Columbia, Annual Report 2000 (Victoria, BC, 2001), p. 8. However, it should be noted that a good part of these delays are in granting individuals access to their own personal information (where the problem is the sheer volume of requests).

⁵⁹ Ombudsman Manitoba, Access and Privacy. 1999 Annual Report (December 2000), p.11.

⁶⁰ Open and Shut: Enhancing the Right to Know and the Right to Privacy, p. 66.

⁶¹ Canada, Access and Privacy: The Steps Ahead, pp. 31-32.

⁶² John Reid, speech, Ottawa, Oct. 17, 2000.

⁶³ Victoria, BC speech, February 1, 2001.

⁶⁴ Annual Report, 2000-2001, ch. 3.

⁶⁵ Annual Report, 1999-2000, p. 11.

⁶⁶ www.atirtf-geai.gc.ca

⁶⁷ One of the most interesting aspects of ATI regimes is that they have been introduced by every major political party across the country. The reality, however, is that incumbent governments tend to be less enamoured of such legislation.

⁶⁸ US commentator, Robert Gellman, comments on the administration of the Freedom of Information Act: "… the fundamental reality of the ATIA is that the processing of requests is limited mostly by the lack of resources. This is the principal constraint with the Act. With more resources, agencies could do a better job of processing requests. However, many ATIA offices, like other government offices, do not have the staff they need to do their job as well as they might like. This is not a surprise to anyone, and it is not likely to change any time soon. Every government function is affected by the budget deficit.

The issue of time limits offers a case in point. No matter what the law says about how long an agency may take to respond to requests, the real factor will be the number of requests received and the available staff. With a given level of resources, only so many requests can be processed. Raising or lowering the time limits in the law will not change this fundamental reality." R. Gellman, "Shortcomings of the Proposed

Electronic Freedom of Information Improvement Act (S.1090)," 14 Government Information Quarterly 1 (1997).

⁶⁹ As John Reid said in Warsaw on March 15, 2001, any ATI regime will encounter resistance and problems, "because bureaucracies seek refuge in secrecy--especially in tough times."

⁷⁰ As John Reid stated in his Warsaw speech on March 15, 2001, "For the access program to work, officials need to know what information a department controls, where it is, how to retrieve it and how to objectively demonstrate that the search is comprehensive. Work on this problem is not required simply to improve the access program, it is required to maintain good governance in general."

⁷¹ www.atirtf-geai.gc.ca

⁷² Annual Report 1999-2000, p. 15.

⁷³ Quoted in a speech by Information Commissioner, John Reid, in London, UK, on March 5, 2001.

⁷⁴ "In the cat-and-mouse game which persists between members of the public who want to see information and the officials who want them to see as little as possible, there are three hurdles which must be overcome by the information seekers: delay, excessive application of exemptions (blacking out/ censoring) and inability to find the requested records. The last is now the most worrisome hurdle." (emphasis added) Annual Report 1999-2000, p. 20.

⁷⁵ Annual Report 1999-2000, pp. 20-22. Chapter 2 of Reid's Annual Report, 2000-2001is entirely devoted to the issue of information management.

⁷⁶ www.atirtf-geai.gc.ca

⁷⁷ Open and Shut, p. 67.

⁷⁸ Canada, Access and Privacy: The Steps Ahead, pp. 32-33.

⁷⁹ Manitoba Ombudsman, Access and Privacy. 1999 Annual Report, p. 12.

⁸⁰ Annual Report 1999-2000, pp. 64-65; see also pp. 65-68.

⁸¹ The FBI maintains separate cues for large versus small requesters. It and other large U.S. agencies also negotiate with requesters to work out a schedule for disclosures of records over a period of time. (Interview, Robert Gellman, August 3, 2001)

⁸² Consultation with 'report card' departments by the Access to Information Review Task Force.

⁸³ www.atirtf-geao.gc.ca

⁸⁴ http://www.gov.on.ca/MBS/english/fip/pub/ATIguideline.html