Access to Information: Making it Work for Canadians

Report of the Access to Information Review Task Force

Introduction

Our View

When it was introduced in Parliament in 1980, the lofty goals of the Access to Information Act were stated as: a more informed dialogue between political leaders and citizens, improved decision making, and greater accountability by the federal government and its institutions.

In introducing the legislation, the Honourable Francis Fox, Secretary of State, told the House of Commons that the Act and the supporting administrative regime “will constitute a significant development for our political institutions.”

Twenty years have now passed since the Act was enacted, and more than 15 years since its last comprehensive review by Parliament. It is a fitting time, therefore, to take stock of what has been achieved in giving Canadians access to federal government records, to identify where we’ve come up short and why, and to decide how we can do better.

Our mandate as a Task Force was to review all aspects of the federal government’s access to information (ATI) regime, and to make recommendations on how it might be improved. This required us to examine the broader social and governance context, both in Canada and abroad; to understand how the Act and its administration are perceived by those seeking information and by those responsible for implementing it; to assess the appropriateness and adequacy of the legislation, regulations and policies surrounding it; and to examine the way the Act is being interpreted and applied within the federal government.

Much has changed in the federal government, in Canada, and indeed in the world, since the Act became part of Canadian law.

A virtual revolution in information technology has changed the way government information is created, stored, communicated and managed.

The Canadian government has restructured to reduce costs and improve efficiency. A number of new public, semi-public and private not-for-profit organizations have been created for the provision of services that were previously delivered directly by departments and agencies.

Globalization has increased interdependence among the world’s nations so that information on any particular subject is now likely to be found in more than one country.

And the tragic events of September 11, 2001 have made us more aware of our vulnerability and of the need for a careful balancing of public interests when deciding on the release of government information. At the same time, the tragedy has also made us more aware than ever that democracy and openness are fundamental values of the society we all want to live in.

Despite these massive local, national and global changes, the Task Force has concluded that the Access to Information Act is still basically sound in concept, structure and balance.

After 18 months of research, consultations and reflections, we are convinced that the original goals and principles of the Act remain as relevant and attainable today, as when they were embraced 20 years ago.

However, we believe some of the Act’s provisions are in need of modernization and amendment – and we make specific recommendations for these needed legislative changes.

Equally importantly, we believe that some broader administrative practices and attitudes within government must be changed – from the way records are created and managed, to how public servants are trained and educated, to the way government information is made available to Canadians outside the Act.

These legislative and administrative measures, by themselves, will not be enough to ensure the objectives of the Act are achieved. They must be supported by a strong “access” culture within government.

To create and maintain this culture, the principles of access to information must be embedded in the organizational culture of the public service – providing information to Canadians must be recognized as a legitimate, and indeed, core aspect of every public servant’s day-to-day work. Access to information must be valued and recognized and become a matter of pride for the public service.

Fundamentally, we believe a recommitment to the original goals and principles of the Act is required by everyone involved in access to information: public servants who create and manage information; officials who administer the Act; Ministers who are accountable for the operations of government and who often feel the impact of the Act directly; and Canadians who make requests for information under it.

True and lasting renewal will require a commitment to all three elements of reform – legislative, administrative and cultural. It will also take time, leadership and resources. And it will require a vision of providing information to Canadians that looks beyond the narrow purview of the Access to Information Act.

We hope our report will provide a blueprint for renewal that can realistically be achieved and maintained.

Equally, we hope our extensive research and consultations will help Canadians who apply for information under the Access to Information Act, and public servants who administer it, to better understand the current process and what needs to be improved to nurture an informed and involved citizenry in Canada.

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Our Main Points

Findings

• Canadians are making a relatively modest,¹ but increasing, and more sophisticated, use of the Access to Information Act. In coming years, more and more Canadians will expect to have ready access to government information, and will be increasingly motivated to seek it out in a variety of ways.
  
  
• In a knowledge-based society, information is a public resource and essential for collective learning. If Canada is to thrive and compete, government information must be made available as widely and easily as possible, through a variety of channels. Technology provides powerful and cost-effective ways to disseminate a great deal of this information. The formal process under the Act cannot meet all the needs of Canadians for government information, nor was it ever intended to.
  
  
• After 20 years, the Act is still not well-understood by the public, requesters, third parties who supply information to government, or even the public service. There is a pressing need for more education about access to information.
  
  
• There is agreement that the principles set out in the purpose clause of the Act are the right ones.
  
  
• Many requesters feel that the essence of the Act is sound, but it continues to be applied inconsistently and in such a way as to contradict the principles of openness, transparency and accountability that underlie it. Delays, fees and inconsistency are major complaints.
  
  
• Public servants express concern about the time and resources required to respond to increasingly large and complex requests, about a lack of clarity in the rules, and about the way in which investigations into complaints are conducted.
  
  
• The Information Commissioner is critical of what he perceives to be a deeply entrenched culture of secrecy in government, and a lack of commitment to the principles of the Act.
  
  
• Journalistic use of Access to Information has evolved since 1983 when the Act was introduced. The number of requests has grown but so has their focus. Requests are now sharper and to the point. The way in which information is used has also grown in complexity. ³
  
  
• The performance of the federal access to information regime is largely similar to that in other jurisdictions in Canada and abroad. The challenges and issues are strikingly the same: timeliness of responses, information management, transparency of new service delivery public bodies, managing growth in demand, resourcing of the access program, effective oversight and resolution of disputes, and creating and maintaining support for access to information both at the political level and in the public service.
  
  
• Overall, the Act is basically sound in concept, structure and balance. However, there is a need to modernize some provisions – such as bringing Cabinet confidences under the Act – to clarify some others, and to address gaps.
  
  
• The scope of the Act is generally more restrictive than comparable legislation in other countries and Canadian provinces. There are no criteria for consistent and principled decisions on coverage of new institutions.
  
  
• Fees were not intended as a cost-recovery mechanism and should never be an obstacle to legitimate requests. They should act as an incentive for focussed requests and as a safeguard for the sustainability of the system. These objectives would be better met with a fee structure that differentiates between commercial requests and general requests, and provides a mechanism to manage the exceptional costs of very large requests.
  
  
• The Office of the Information Commissioner is an important Canadian institution that should be supported, and equipped with the powers and resources, to continue to fulfil its challenging role of oversight in the future.
  
  
• Resolution of individual complaints through negotiated solutions is highly successful. Good tools to deal with systemic issues, however, are missing.
  
  
• The great majority of complaint investigations are conducted informally. However, there has been, in recent years, a noticeable increase in the use of formal investigative powers, raising new procedural issues that need to be addressed.
  
  
• At every stage of the access process – from the receipt of requests to complaint investigations – there is an overwhelming need for more rigorous processes, clearer and more widely understood rules, and greater consistency in outcomes, both for requesters and for government institutions. Introduction ⁴
  
  
• There is a need to move from a reactive approach to a program delivery concept of access to information. Adequate resourcing of all the components of the system (ATI units, programs, central agencies providing support, and the Office of the Information Commissioner), is critical. Access to information needs to be resourced in the same way as any program delivered by the Government of Canada.
  
  
• Access Coordinators and their staffs are key to an effective access regime. The government is facing a looming crisis in the recruitment and retention of these skilled professionals. Officials administering the Act need more support, training, career development, and better technology and tools.
  
  
• Public servants do not have the training, tools and support they need. Access work has to be juggled with other operational priorities. It is often not perceived as “valued” work or part of their “real” job. The principles of access have not yet been successfully integrated into the core values of the public service and embedded in its routines.
  
  
• There cannot be better access to information without better information management. There is an urgent need for leadership and government-wide action in this area.
  
  
• There is no magic solution to the shortcomings of the system. A healthy access to information system needs all its parts functioning well in order to deliver the outcomes intended by Parliament: the right systems to process requests, skilled staff, supportive managers and Ministers, adequate resources, good information management, good understanding of the principles and the rules by all, including third parties, and effective approaches to oversight.
  
  
• The total costs of administering the Act are in the order of $30 million annually² or less than $1 per Canadian per year.³ This is a modest cost, in light of the significant public policy objectives pursued by the Act: accountability and transparency of government, ethical and careful behaviour on the part of public officials, participation of Canadians in public policy design, and a better informed and more competitive society.

Proposed Directions

In our report, we have made 139 recommendations for change. They can best be understood under several broad themes:

• enhancing the understanding of principles of access to information and expanding theright of access in an era of globalization (Chapter 1); ? modernizing the scope of the Act by adopting consistent and principled criteria for determining which institutions should be covered, and applying the criteria to expand coverage to a significantly wider range of federal institutions (Chapter 2);
  
  
• clarifying what records should be covered by the Act (Chapter 3);
  
  
• modernizing the exemption and exclusion provisions (e.g. by making Cabinet confidences subject to the Act), and ensuring the balance provided in the Act results in maximum responsible disclosure and the appropriate protection of sensitive information where it is in the public interest (Chapter 4);
  
  
• making the process of formal access to information requests work better for both requesters and for institutions, to ensure that Canadians get access to disclosable information in a simple, timely and effective way while safeguarding the sustainability of the access system (Chapter 5);
  
  
• enhancing the effectiveness, fairness and transparency of the complaints process, explicitly giving the Information Commissioner the tools needed to fulfil his mandate, and suggesting that consideration be given to replacing the current ombudsman model with full order-making powers (Chapter 6);
  
  
• ensuring that access to information staff have the necessary skills, training, tools, and resources, and that technology is applied to make access easier for Canadians (Chapter 7);
  
  
• putting in place a comprehensive strategy to provide information to Canadians through a variety of channels outside the Act, complemented by access under the Act as a last resort (Chapter 8);
  
  
• enhancing information management in government, especially through training and support for all public servants (Chapter 9);
  
  
• improving the performance measurement and reporting of the access activities of federal institutions in order to support operational improvements and allow for better monitoring by Parliament (Chapter 10);
  
  
• creating a culture of access to information in the public service (Chapter 11); and
  
  
• promoting sustained dialogue on access to information and enhancing parliamentary oversight (Chapter 12).

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¹ Based on the U.S. experience, the Canadian government was expecting 50,000 requests for 1984, the first year of the implementation of the Act. In fact, 2,229 requests were received. The 20,000 requests mark was exceeded for the first time in 2000-01. In 2000-01, the ratio of access to information and privacy requests at the federal level to the total Canadian population was about 0.004 or half the ratio in the U.S. (0.0079).

² Review of the Costs Associated with Administering Access to Information and Privacy (ATIP) Legislation, Research Report 11. The study conducted by Consulting and Audit Canada concluded, based on 1998-99 data, that total costs (direct and indirect) for access to information programs were $28.8 million. This amount is generally criticized by government institutions as too low and by stakeholders as inflated. However, it was largely validated by subsequent work of Consulting and Audit Canada in specific institutions.

³ The ratio is similar in the U.S. With a population of 281 million, the costs of all Freedom of Information activities for U.S. federal agencies were $253 million for year 2000.