External Consultations

Proceedings - Roundtable on Access to Information Review, Ottawa - March 26, 2001

Conducted by the Access to Information Review Task Force

Facilitator: Paul Lepsoe

On March 26, 2001 the Access to Information Review Task Force held the first of a series of roundtables on the access to information framework.

The roundtables are for individuals who have an interest in access to information or related issues. They are part of the consultation process of the Task Force to solicit input and views from members of the public on access to information.

The participants from the first roundtable were primarily from the community of librarians, archivists, historians and genealogists. The members of the Task Force would like to thank the individuals who contributed to the success of Roundtable #1. Their participation and input were very much appreciated.

The following is a summary of the discussion from the roundtable of March 26, 2001.

CONSULTATION ON
ACCESS TO INFORMATION

Report on Roundtable Discussion -1
Ottawa - March 26, 2001

Facilitator: Paul Lepsoe, Barrister & Solicitor

Participants: Dr. Janis Apse, Barrister & Solicitor
Diane Baillargeon, Division des archives, Université de Montréal
Aileen Baird, Public History Inc.
Martin Foss, University Librarian, Carleton University
Chad Gaffield, President, Canadian Historical Association
Denis Gélineau, Président, ARMA
Joan Holmes, President, Joan Holmes Associates
Richard Kurland, Lexbase
Michel Lalonde, Centre de Recherche en civilization
David MacKenzie, Ontario Genealogical Society
Michel Prévost, Archiviste en chef, Université d'Ottawa
Marilyn Rennick, Canadian Library Association
Donald Richan, University Archivist & Freedom of Information & Protection of Privacy Office, Queen's University
Laine Ruus, President, Canadian Association of Public Data Users
Gordon Watts, Contributor, Global Gazette
Paul Wiens, University Librarian, Queen's University
Lyndall Winters, Kanata

Observers: Mary Anne Stevens, Access to Information Review Task Force
Marta Khan, Access to Information Review Task Force
Valerie Lasher, Access to Information Review Task Force

Report on Discussions

This report provides a summary of the discussion at the first of a series of roundtables on issues related to the access to information framework. The roundtables are part of public consultations taking place under the mandate of the Access to Information Review Task Force. The Task Force is currently reviewing all components of the legislative and administrative process of access to information in the federal government and will report on its findings in the fall of 2001.

The following highlights the discussion that took place on March 26, 2001.

Access to Information Context

Participants were in general agreement that the Access to Information Act (Act) has had a positive effect on Canadians. Comments included the view that the Act has made Canadians more aware of their right to information, the Act is a strong tool to hold the government responsible and make the government more transparent, and the Act has changed government culture for the better by making it more open. One participant commented that there is nothing substantially wrong with Section 2(1) of the Act (the purpose clause), problems have occurred, however, in the implementation.

It was acknowledged that the government is moving towards making more information available through "1-800" numbers and with the internet, and that the move to Government On Line should have a positive impact on the informal release of information. These comments were qualified, however by noting that there is still room for improvement and that some departments are better than others in voluntarily making information available. During discussion it was suggested that roles of the National Archives and the National Library should be strengthened.

Suggestions for changes to the Act were part of this discussion and included the comment that timelines are important to informed public participation in public policy debates. Several participants also noted that since the Act has been in force, access to historic census records has been restricted.

Participants noted that information management is critical to the success of access to information and highlighted the need to improve and adequately resource records management. There was support for the suggestion that the government undertake a complete inventory of its records, provide an index and educate the public as to the information available. It was also suggested the government should indicate the form in which information is available, e.g. paper, CD-rom.

Concerns were raised regarding the destruction of records. It was generally agreed that not all records need to be kept by government but some participants stated that records, particularly electronic records, are being destroyed because the government does not have the procedures or policies in place to ensure information is maintained. It was noted that the government should be required to develop policies and mandated procedures for electronic information, both how to maintain and preserve the information for the future.

Another concern related to contracted and funded research. Data collected by an external agency under contract to the federal government or through a project funded by a federal government institution remains in the possession of the agency and not within the government. The agency can make commercial use of the data or destroy the data and the data is not available to the research community.

Participants noted that Info Source is not adequate and that the government should do a complete inventory of its records and organize the system for better presentation. It was also suggested that the government look at retention as a lot of information should be disposed of but departments have no resources for proper information management. Improved information management would make the access process easier, faster and more efficient.

There was a brief discussion on the costs associated with access to information, which included questions on why the cost is so high. There was a suggestion that costs are increased when requests are routed through unnecessary channels for review and approval. Another reason given for the high cost is the "culture of secrecy" within some departments that adds to the number of people and time required to process requests. A suggestion was made that the Depository Services Program (DSP) reinforces the purpose clause of the Act and an increase in the resources for DSP, with the assurance that reports are available with the DSP, could help to reduce the number and cost of access requests.

Scope of the Act

Participants again raised the issue of releasing historical census data and used this as an example of the challenge of balancing the right to privacy with the right to access information. There was debate but no agreement on the merits of integrating privacy and access legislation.

Concern was expressed that with downsizing, the government is placing more responsibility in the hands of private companies who are not covered by access to information legislation. There was a suggestion that some private companies, if they receive federal funding, should be covered by the Act. It was also suggested that while Cabinet should be able to add institutions to the coverage of the Act, Parliament should be involved when institutions are removed from the coverage of the legislation.

A discussion on electronic records included the concern that the IT community has neither the understanding nor training in rules for records management, particularly with reference to the disposal of records. It was also noted that there is no global vision on how to manage electronic files and e-mails, and that policies across government departments are inconsistent.

During the discussion it was suggested that provisions in the legislation regarding the application of a public interest override should be broadened.

There was a general discussion on the exemptions and exclusions included in the legislation. One participant voiced support for the fewest number of exemptions possible. Another noted that most exemptions currently listed in the Act are reasonable and the drafting is logical but there was general agreement that the interpretation of these exemptions can be problematic. Yet another participant suggested that discussion on these sections of the legislation was premature because there is so little jurisprudence or case law.

There was some discussion of other methods of release of government information outside the Access to Information Act, including the Depository Services Program.

Right of Access

There was a broad level of support for extending the right of access beyond Canadian residents and those present in Canada. It was noted that some lateral trade agreements include penalty clauses for withholding information. Others used examples of globalization and Canadians' right to access U.S. information under American legislation as reasons for extending the right of access. One participant suggested that Canada might consider providing information to other countries where a reciprocal agreement was in place.

Access Process

There was general support for the statement by one participant that it takes the government too long to respond to a request for information.

There was a good discussion on informal release of information. One participant suggested that government should increase informal release, while another participant suggested that it is sometimes easier for departments to process formal access requests rather than informally release. Another commented that an informal call to an ATIP co-ordinator in advance of a formal request can make the process more efficient by helping to focus requests and prepare departments for incoming requests.

Some participants noted that informal release will work for non-controversial information but that there would always be a need for an Access to Information Act to cover requests for the controversial information.

One participant noted that if government information is released through the formal access to information process, it is covered by Crown copyright and, therefore, limited reuse can be made of the data.

It was suggested that the federal government look at other jurisdictions for best practices, including an ATI registry with the names of requestors left blank. Another suggestion for a more efficient access process was a uniform method of handling requests or a standardization of processing by departments.

There was support for the suggestion that directives be developed for information that could be released immediately without going through a full approval process and that a distinction be made between the release of routine and more complex information.

When asked whether there should be a separate fee schedule for different categories of users, there was little support. Questions were raised on how a system with different categories could be administered and it was noted that different categories would add to the complexity of the process, increasing costs. There was also concern expressed that a system with different categories might favour one category over another.

It was generally accepted that provisions to limit high volume requestors would be difficult to administer and one participant suggested it would be morally wrong. It was felt that the fee schedule was one way of limiting voluminous requests or discouraging frivolous ones.

Fees were discussed and there was a broad level of support for maintaining the current fee schedule. While one participant felt the application fee prevented abuse, another was opposed to an application fee. One participant expressed the view that an increase in fees would impact low-income earners. It was suggested that commercial or for profit users might pay actual costs but it was acknowledged that there would be problems in differentiating between groups.

There was brief discussion on the costs of ATI as presented in the Task Force consultation paper. Questions were asked with reference to how the costs were calculated. It was pointed out that the costs seemed to be high when the cost of ATI was divided by the number of requests.

There was discussion on how to improve the response time to requests. It was suggested that there could be a breakdown of requests based on degree of difficulty in responding, i.e. easy responses should be provided within 30 days, while more difficult or complex replies might take longer but the requestor should be notified of the length of time anticipated to respond.

It was generally agreed that departments need to review their records and policies with processes put in place for declassifying information. The example used was releasing information after an event has taken place and the details no longer need to be confidential. A part of this discussion was the recognition that resources should be made available to support the government's information management infrastructure, to provide sufficient personnel to review and declassify government records, and to properly apply records retention and disposal schedules.

It was suggested that senior management should be accountable for providing adequate finances and human resources to support the access to information framework.

Redress

Some participants expressed the view that the Information Commissioner should have order making powers. As one participant said, "the Information Commissioner has strong gums but no teeth". However, others disagreed and expressed the view that the best role for the Information Commissioner is that of an ombudsman. It was pointed out that giving the Information Commissioner order powers could lead to a more litigious atmosphere and may impede access.

It was generally agreed that an ombudsman role would be more successful in an atmosphere of transparency and openness. It was suggested that to create an open atmosphere, change was required from the top of government down, and that the Prime Minister should send a signal to the government not to conceal documents and to release records as a matter of practice. The view was expressed that an increase in the practice of informal release would also improve the current atmosphere.

Another suggestion for improvement was the introduction of an "admission" form, where departments would have the opportunity to acknowledge a delay in response times and thereby avoid an investigation by the Information Commissioner. Another idea was a refund on processing fees for records not released on time or a penalty clause with a provision for refunds for every hour or day over the release deadline.

Consultation