Report 22 - Access to Information Review Task Force

ACCESS TO INFORMATION REVIEW SURVEY OF ATI UNITS

3. The mechanisms in place to raise awareness of ATI and educate senior management and other employees about their roles and responsibilities in relation to the ATI Act – ANNEX 4

The information collected from the respondents identifies the mechanisms in place to inform and encourage employees to adhere to the terms and spirit of the Act. Information about the level of participation of program staff as well as the level and frequency of participation by senior management in the ATI process was assessed.

• Mechanisms in place to inform and encourage employees to adhere to the terms and spirit of the Act.

Most respondents identified that some form of training and awareness session is provided to their employees including senior managers, however the frequency and level of training and awareness session varies greatly.

Information sessions as opposed to formal training provided by the ATI section seems to be the method of choice to inform and encourage employees regarding the Access to Information Act. In most cases these awareness or information sessions are offered on a voluntary basis. Only three respondents advised that these information sessions were mandatory, and only one of these advised that they were mandatory for all staff (the other advised that they were mandatory for EX level [management] only). One respondent acknowledged that they had failed to provide any training over a period of a year and a half due to the lack of resources and the increasing number of requests received. This agency has however, recently hired an officer whom they hope will be able to provide some timely training sessions.

Mandatory participation in these training/information sessions on a regular basis (yearly) and by all employees of an institution would reinforce the importance of the principles of the Act. Adherence to the principles of the Act is the responsibility of all government employees. Interestingly enough only one of the responding institutions has noted that they were working towards including ATI related duties in the entire department’s job descriptions. As noted by one of the responding institutions, it is highly unlikely that employees would voluntarily take time away from their principle tasks to attend ATI training and information sessions. In the noted case, senior managers scheduled to receive ATI training failed to attend, sending their administrative assistants instead. Given this fact, it is also unlikely that an employee would voluntarily take time away from their principle tasks to read through a 35 page ATI User’s Guide.

It should be noted that one department has had a novel approach with regards to how it encourages its staff to participate in training and information sessions. Over the past three years this institution has set up a separate group within the ATI unit that deals solely with providing training and information sessions within the institution. In March of every year, the ADM responsible for ATI signs a memorandum to all senior managers identifying the available ATI training opportunities and encourages senior managers to encourage staff to participate. This memorandum is followed up approximately six months later with a report to all managers, of the training that has been and is to be offered and to whom. Although this institution does not make it mandatory to participate in ATI information and training sessions, the ATI Deputy Coordinator noted that peer pressure, rather than forced mandatory participation was coaxing senior managers and their staff to participate in ATI training and awareness sessions.

A number of respondents advised that they used ATI contacts/representatives at the operational level to inform and encourage employees to adhere to the terms and spirit of the Act. In most cases these ATI contacts are given three days of formal training in both the Access to Information Act and the Privacy Act. While this gives the Act a presence at the operational level, its effectiveness as a tool, depends greatly on the level of support and the level of importance given to the principles of the Act by middle and senior management.

• Level of participation of program staffs in the ATI process

A large majority of respondents responded that program staff (OPIs) were not asked to apply exemptions to requests. It is likely that since mandatory ATI training is not required in most of the institutions surveyed, program staff would not be knowledgeable enough about the Act to propose specific exemptions. Although they may not be asked to propose specific exemptions, program staff are normally asked to alert the ATI office of sensitive issues and to provide any other information needed to process an ATI request. Some respondents also noted that their program staff are involved in some capacity with the approval of release packages and or specific exemptions. Four respondents advised that program staff in their institutions are asked to apply specific exemptions. It is interesting to note that two of these institutions drew a direct link between the level of training provided with the quality of the application of the exemptions by the program staff.

• Level of participation by Senior Management in the ATI process

For the most part, senior management’s involvement with the Act seems more reactive then proactive. Senior management’s involvement usually deals with specific requests and is therefore issue driven. Issues and requests are only brought to the attention of senior management when it is deemed that senior management should be advised and briefed. In some institutions, it is senior managers that request to see release packages before they are released. They are sent new requests reports at regular intervals and pick and choose which files they have interest in. The level of senior management involvement often does not seem to extend beyond specific files and issues.

Five respondents advised that senior management was very involved in the ATI process and was in some capacity involved with every file processed by their department or agency. Yet in most cases, senior management’s involvement seems to be limited to the processing of files and the issues raised by those files. When asked for criteria used to determine what ATI issues are to be brought to the attention of senior management, most respondents noted criteria dealing with specific files or file related issues. The same can be said of the reporting mechanisms in place to advise senior managers. Whether the reporting mechanisms take the form of weekly meetings with senior managers, reports of recently received sensitive requests, notifications and file specific briefings, to name only a few, they all deal with file related issues. Only three respondents noted some kind of performance report that measured compliance with the Act. In these institutions, senior management seemed not only interested in the management of file related issues but also with compliance and performance.

It is interesting to note that one respondent noted that senior management within his institution took great interest in ATI issues other than specific files. In this case the Deputy Minister took great interest in the performance of his department in providing a quality service to the public where ATI was concerned. Senior managers within this institution receive a weekly report on the performance (late/on time report) for the various branches and regions. Once a year the Deputy Minister also writes to the Information Commissioner advising him of this institution’s performance over the past year, of any new access initiatives having been launched and a business plan for the upcoming year. It should be noted that several years ago, this institution was the subject of one of the Information Commissioner’s report cards, which might explain to some extent the heightened level of interest on the part of the Deputy Minister and senior managers.

It is safe to say that the administration and adherence to the Access to Information Act does not have a high profile in comparison to other policy or operational files in most of the responding institutions. While information and training sessions are given, they are, for the most part offered on a voluntary basis.

4. To identify the steps involved in the processing of access requests – ANNEX 5

• Steps involved in processing of access requests

Most of the steps identified by the respondents in processing typical requests were universal, however differences did occur at the approval stage. The approval process identified by a number of respondents involved a distinct process for both non-
sensitive and sensitive requests. In all of these cases, the ATI office handled the approval process for non-sensitive requests. The approval process for sensitive requests involved approval from outside the ATI office at the Director level or higher. All remaining respondents made no distinction between non-sensitive and sensitive requests.

• Principle actors involved in the approval process for both non-sensitive and sensitive requests

It should be noted that not all respondents identified the same actors as involved in their approval process. Some of the respondents pointed out that approval of all files (non-sensitive and sensitive) was the responsibility of the ADM/DM or VP/President level. Only three respondents identified the ATI Coordinator as the sole agent involved in the approval of both non-sensitive and sensitive requests. This would seem to be consistent with the observations made in the previous section that senior management’s involvement is issue based. Given the reporting mechanisms in place within the responding institutions, and the difficulty that may arise for the ATI office and the OPI to understand each others’ concerns, it is not surprising that for sensitive issues and requests, their roles may be limited to making recommendations and giving advice at the approval stage.

It is interesting to note that one of the responding institutions had hired a communications advisor who worked in the ATI office and solely for the ATI office. This individual is involved with potentially sensitive issues throughout the ATI process and is able to look after the communications needs of the Minister and the Department accordingly, with briefings, QP notes and/or communications plans within the legislated deadlines. This ensures that the release of information proceeds smoothly through the approval stage. This institution receives a large volume of requests and it may not be feasible for institutions receiving smaller volumes of requests to hire an ATI communications advisor. It is none-the-less an interesting concept and, where feasible, could help to ensure that the Minister is prepared to respond to questions without interfering with the ATI timelines.

• Amount of time spent on the approval of both sensitive and non-sensitive requests

The amount of time spent on the approval of requests varies from institution to institution. In some institutions, additional time is required for the approval of sensitive requests, while in others, no distinction is made. The time spent on the approval in those institutions that did not make any distinction between sensitive and non-sensitive requests varies from ten minutes in one institution to an average of thirty-eight (38) days in another. The latter noted that program staff were given four (4) days to approve the proposed release and then the proposed release was sent for impact analysis which on average takes 34 days. Given the tight deadlines imposed by the Act, it is likely that this institution experiences difficulties in meeting its legislated deadlines. Only two institutions noted a distinction between the time spent on the approval of sensitive versus non-sensitive requests. The first institution noted two (2) days for the approval of non-sensitive requests and four (4) days for the approval of sensitive requests. The second noted one (1) day for the approval of non-sensitive requests and thirteen (13) days for the approval of sensitive requests.

• Tools or resources used to help manage and process requests

A majority of departments noted that they used ATIP Flow, a database created specifically to help manage and process ATI requests. ATIP Flow helps in the management of the ATI process, as well as creates numerous progress and performance reports used by ATI coordinators to ensure an efficient ATI process. Several of the responding departments and agencies also noted the Treasury Board guidelines as well as internal guidelines and procedures as an important tool.

5. Factors that affect the complexity of access requests – ANNEX 6

A wide variety of answers were provided by the respondents regarding the factors that affect the complexity of access requests. It is interesting to note that only one of the responding institutions has formally instituted guidelines establishing four levels of complexity which are assigned to all requests. In describing what they considered to be high, medium, and low complexity requests, the respondents used factors such as volume of records to be processed (consistency of review), sensitivity of the issues, number of consultations with outside parties and types of exemptions applied to the records.

Large numbers of records were noted as affecting the complexity of requests by 5 of the 8 respondents. They noted that responding to requests that involve the review of large numbers of records presents a challenge in maintaining a degree of consistency with the review and application of exemptions and exclusions. Extra care and time must be taken to ensure that the review is consistent and maintained throughout the file. Most respondents attributed high complexity to requests relating to large volumes of records while smaller volumes of records were associated with less complex requests.

Although the source of a request should not affect the way in which exemptions are applied, additional attention is often given to requests that originate from the media, political parties or other high profile categories of requesters. A number of respondents have noted that the source of a request may affect the complexity of a request. The complexity of these requests are heightened as institutions attempt to prepare for any possible questions or potential for any public scrutiny which may arise as a result of the release of records. Program staff are asked to coordinate and prepare briefing notes, question period cards and communications plans in order to assure that the Minister and/or senior departmental officials are able to address issues arising from the disclosure of the information. ATI analysts may be asked to indicate the files that require such preparation and may be asked to participate in the preparation of the briefing material.

Consultations with third parties, other government institutions and other governments were noted as factors that affect the complexity of requests. Requests that involve consultations with the above noted parties demands additional legwork on the part of ATI analysts. They must first identify the information that may be subject to a consultation. It should be noted that it is not always apparent what information is subject to a consultation. Third parties, other government institutions and other governments are often unfamiliar with the Access to Information Act, and the analysts must often explain to them their rights and the rights of the requester. ATI analysts are not always familiar with the information contained in the records and must therefore gain an understanding of the information in order to recommend disclosure or non-disclosure of the subject records. Additional levels of complexity are added when third parties approach the Federal court for review of an institution’s decision to disclose third party records.

The nature of the records requested and the variety and types of exemptions or exclusions applied to the information contained in those records were noted by a number of respondents as affecting the complexity of requests. The application of discretionary exemptions depends on the nature of the records requested. ATI analysts must work closely with the program staffs, who have a greater knowledge and expertise of the issues, to understand and consider the rationale for exempting any information subject to discretionary exemptions. This exercise quite often involves extensive negotiations with program staff who tend to be overcautious in exempting more information then is necessary. One of the respondents has also noted that identifying Cabinet Confidences adds to the complexity of requests received by that institution. Many of the records reflect a continuum from initial policy development to draft legislation and Memoranda to Cabinet, and it is often difficult to sort out at what point records become Cabinet Confidences. Respondents noted that as the number of discretionary exemptions and exclusions that could be applied to the subject records increased so did the complexity of the requests.

It is quite surprising that none of the respondents noted complaints to the Information Commissioner as adding complexity to a request. The resolution of complaints received by the Information Commissioner tends to be time consuming, especially when the complaint deals with exemptions or exclusions. In these circumstances, the ATI analyst must defend the institution’s decision to exempt or exclude information. This process often involves negotiations between the investigator, program staff and the ATI analyst.

6. The ATI staff’s position within the given institution and career path in government – ANNEX 7

The position held by the ATI office within the responding institutions seems to be fairly low. For the most part the ATI Coordinators are at the first level of management and report to the Director General level. Very few responding coordinators have been delegated full authority for all ATI decisions. Most have delegated authority over administrative functions while others are given shared authority over administrative functions as well as authority for the application of some exemptions.

The job classifications of ATI Coordinators range from PM 6 to EX1. Senior ATI Analysts tend to fall in the PM 5, PM4 levels while the job classifications of ATI Analysts tend to fall in the PM 3, PM 4 levels. In order to address the increasing demand for qualified analysts, a number of institutions have created positions for junior ATI Analysts (PM 1, PM2).

ATI analysts’ professional origins or typical career paths tend to be from ATI offices in other departments. It would seem however, that in some responding institutions, an effort has been made to recruit individuals from outside the ATI field. An overwhelming number of those who leave responding institutions go on to work in ATI offices in other federal institutions or for either the Information Commissioner or the Privacy Commissioner. These tend to be career moves where individuals leave the ATI offices to work in another ATI office when the working level job classification is higher.

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