Report 22 - Access to Information Review Task Force

SURVEY OF ACCESS TO INFORMATION UNITS
IN GOVERNMENT INSTITUTIONS

ANNEX 6

• Large volume of the records being processed – Greater likelihood that requests will include numerous consultations. Greater difficulty in being consistent in the application of the Act.
• Large volume of records subject to consultations with third parties. In most cases, the ATI staff lack the specific knowledge to identify what records should and should not be sent for consultations and to whom they should be sent. They may not always know what is already in the public domain and what may or may not be released.
• International incidents – ATI staff must identify records that could harm international relations as well as records that are to be sent for consultation with other governments. Such consultations are conducted through DFAIT and this proves to be a very slow process.

• Potential for media or political interest (generic)
• Presence of third party commercial information in the material being reviewed
• Documents are subject to consultations (either for s. 69 exclusions or exemptions)
• Records contain information about a high-profile client of the department or an issue handled by the department that is already in the media
• Records contain details about contemplated actions or policy/program changes of the department that have not yet been subject to public discussion or consultations
• Records related to investigations about clients or employees of the Department

The following are the factors that affect the complexity of typical access request:

• Volume (consistency of review)
• Number and diversity of consultations involved
• types of exemptions applied (discretionary vs. mandatory exemptions)
  

• Level 1 - * file less than 50 pages * usually results in a total disclosure * minimal number of interests in the file * exemption application is consistent.
• Level 2 - * usually associated with a larger number of pages * usually results in a partial disclosure due to mandatory exemptions such as 19(1), 13 and 24(1) * easier to understand discretionary yet class test type exemptions could apply such as 16(1)(a) and 23 * infrequent reference to 16(1)(c) aspects.
• Level 3 - * a large number of records from more than one area of the institution * need for senior management involvement * requirement to consult with other institutions and other levels of government * variety of exemptions invoked with a mixture of mandatory and discretionary exemptions.
• Level 4 - * Involves a large number of records which is significant and the information contained is intertwined * A number of entities are involved and the right to disclosure is influenced by other legal authorities * Need to involve legal serviced for an opinion * criminal charges may have been considered, are still under consideration or may have been amended * Has all the elements of a Level 3 complexity file plus factors such as interventionism, media attention and/or high profile in a sensitive area such as the subject of a lobbying initiative.

• Subject matter
• Requester
• Fiduciary relationship with First Nations
• Volume (consistency of review)
• Diversity of consultations involved
• Types of exemptions applied (discretionary vs. mandatory exemptions)
  

• Nature of the records – are they strategic records with a need to exercise discretion as opposed to routine records that are regularly released to the public.
• where discretionary exemptions are involved, the OPIs tend to want to apply more exemptions such as section 21 and therefore additional discussion with the OPIs must take place.
• where Cabinet documents are concerned, the current process in place for approving the exclusion of records is cumbersome, and adds to the complexity of the requests.
• the consultation process with third parties adds to the complexity of requests especially when there is a need to send a notice pursuant to section 44 of the Act.
  

• In a policy development department, 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. There is also considerable consultations/liaison with other departments, other governments and non-government organizations in the development of policies, that adds to the complexity of the consultation process. Another complicating factor is the sensitivity of information, as the department deals with matters of policing, national security, and corrections and conditional release.

• Outside stakeholders
• Impact on Minister
• Affiliated agencies and third parties
• Security and safety of the public (accidents, transportation of dangerous goods)
• Changes in legislation
• Sale/transfer of major entities
  

• Subject matter – sensitivity, timing
• Multiple branch retrieval – duplication, consistency
• Number of pages – complexity, consistency
• Number of subjects requested in one request
• Time frame of request

• Type of information
• Requestor
• Public interest disclosure
  

• Nature of requests: Requests received by this institution often deal with issues related to litigation, prosecutions, amendments to statutes, and policy issues. Files frequently involve highly complex, sensitive and multi-faceted issues. Advisors need to assess the potential impact of waiver of the solicitor-client privilege for related document.
• Subject matter: Requests often concern issues particular to other departments.
• Scope of the request: A single request may cover a wide variety of subject matter. For example, a request for all reports of a particular type prepared in September 2001 would include any topics.
• Volume of records: A large volume of records makes it more challenging to apply exemptions in a consistent manner.
  

• Types of exemptions (discretionary vs. mandatory exemptions)
• Volume of records (larger volumes of records present special challenges with regards to consistency)
• Context of the requests (requests may be treated differently given recent events ie) September 11, 2001 attack.
• Issues involved with requests (controversial issues tend to be more complicated than routine requests)
• Negotiations with requester (negotiating with requester can sometimes present challenges)
• Files involving negotiations with OPI re: exemptions, etc…
  

• All are equally valid.
  

• Volume (consistency of review)
• Number and diversity of consultations involved
• Types of exemptions applied (discretionary. vs. mandatory exemptions)
  

• Subject matter
• Volume (consistency of review)
• Requester
• Diversity of consultations involved
• Types of exemptions applied (discretionary. vs. mandatory exemptions)

• Nature of the records – are they strategic records with a need to exercise discretion as opposed to routine records that are regularly released to the public.
• Where discretionary exemptions are involved, the OPIs tend to want to apply more exemptions such as section 21 and therefore additional discussion with the OPIs must take place.
• Where Cabinet documents are concerned, the current process in place for approving the exclusion of records is cumbersome, and adds to the complexity of the requests.
• The consultation process with third parties adds to the complexity of requests especially when there is a need to send a notice pursuant to section 44 of the Act.

• Many of the records reflect a continuum from initial policy development to draft legislation and MCs, and it is often difficult to sort out at what point records become Cabinet confidences.
• Consultations/liaison with other departments, other governments and non-government organizations in the development of policies that adds to the complexity of the consultation process.
• The sensitivity of information.

• Outside stakeholders
• Security and safety of the public
• Changes in legislation
• Sale/transfer of major third parties
• Affiliated agencies and third parties
• Impact on Minister

• Type of information
• Requestor
• Public interest disclosure

• Nature of requests
• Scope of the request
• Volume of records

• Types of exemptions (discretionary vs. mandatory exemptions)
• Volume of records (larger volumes of records present special challenges with regards to consistency)
• Context of the requests (requests may be treated differently given recent events ie) September 11, 2001 attack.
• Issues involved with requests (controversial issues tend to be more complicated then routine requests)
• Negotiations with requester (negotiating with requester can sometimes present challenges)
• Files involving negotiations with OPI re: exemptions, etc…
  
  

This institution categorizes its requests as being either high visibility requests or low visibility requests. High visibility requests are those that originate from the media, political parties, special interest groups etc… Issues of the day are also considered to be high visibility requests. The complexity of these requests are increased due to the additional steps that the agency takes in dealing with high visibility requests such as third party consultations etc... Low visibility requests are considered to be routine requests where the type of records requested is routinely treated under the Act.

Low Complexity: few, if any exemptions, few pages, no consultations, not contentious material

Medium Complexity: Some exemptions or erratic need for exemptions, infrequent need for consultations, some sensitivities (requests made by bulk requesters for inbox/outbox of employees, training material, data from the Data Warehouse).

High Complexity: Many exemptions, many consultations, contentious (subject matter in the media or raised politically) – may be project files, investigation results, previously would have included audit files.

Medium complexity requests – Requests involving the review of between 200 and 700 pages involving little or no consultations one or two different third parties and no consultations involving foreign states. Little or no discretionary exemptions applied. -- 60%

High complexity requests – Requests involving review of over 700 pages and involving extensive consultations with many third parties and governments of foreign states. Both mandatory and discretionary exemptions applied. Notice 44s sent to third parties due to inadequate recommendations. – 30%

Within the ATI Division, complexity guidelines have been established. There are currently 4 levels of complexity. The following criteria may apply:

• Level 1 - * file less than 50 pages * usually results in a total disclosure * minimal number of interests in the file * exemption application is consistent.
• Level 2 - * usually associated with a larger number of pages * usually results in a partial disclosure due to mandatory exemptions such as 19(1), 13 and 24(1) * easier to understand discretionary yet class test type exemptions could apply such as 16(1)(a) and 23 * infrequent reference to 16(1)(c) aspects.
• Level 3 - * a large number of records from more than one area of the institution * need for senior management involvement * requirement to consult with other institutions and other levels of government * variety of exemptions invoked with a mixture of mandatory and discretionary exemptions.
• Level 4 - * Involves a large number of records which is significant and the information contained is intertwined * A number of entities are involved and the right to disclosure is influenced by other legal authorities * Need to involve legal serviced for an opinion * criminal charges may have been considered, are still under consideration or may have been amended * Has all the elements of a Level 3 complexity file plus factors such as interventionism, media attention and/or high profile in a sensitive area such as the subject of a lobbying initiative.

Medium complexity would involve some consultations (though they would be easy to identify). The application of discretionary exemptions, the identification of exclusions, a higher volume of records (requiring more effort to put in chronological order, catch duplicates, and ensure consistent application of exemptions), and would require a more difficult search to identify all records.

A high complexity request would be high volume (300+pages?),would likely involve records relating to policy development leading to draft legislation or an MC where identifying exclusions would be difficult, would require multiple consultations (and would contain records where it is not always readily apparent where information came from external sources), would require the application of discretionary exemptions where considerable judgement is called for, and would require a records search from multiple sources in the department.

High complexity – 37% Low complexity 63%

Low complexity – 20% Medium Complexity – 75% High Complexity – 5%

Medium – travel claims of ADMs, new incentives that have been made public - 20%

High – board of investigation (institutional, regional, national) and this involves offenders committing serious incident in the community, i.e. including murder, escapes, staff involved in illegal activity, public interest disclosure, etc – 70%

Medium complexity – the subject matter may be sensitive, a clarification concerning the precise nature of the request is required, medium to high volume of records. 25%

High complexity – the subject matter is sensitive, subject to media attention (e.g. matter is in litigation, under investigation, in pilot project stage, etc.), several clarifications concerning the precise nature of the request are required, high volume of records. 50%

The category of user that presents the most complex requests would be business because they request information about competitors and this represents large numbers of complex consultations with third parties.

While there is no particular category of user that presents the most complex requests, the complexity levels for the 589 requests received for fiscal year 1999 were:

• Level 1 = 359
• Level 2 = 178
• Level 3 = 51
• Level 4 = 1

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