External Consultations

Proceedings - Roundtable on Access to Information Review, Ottawa - May 23, 2001

Conducted by the Public Policy Forum

Facilitator: Paul Lepsoe

Opening Remarks

Dr. David Zussman welcomed participants to the Consultation on the Access to Information Act and its Administration. With the Access to Information Act (ATIA) now 17 years old, and the advent of the information age in which information is available with speed and simplicity, there may be a changed public perception of what information should be available, he stated. The Public Policy Forum is leading the roundtable consultation process on behalf of the Access to Information Task Force Review. The Forum is an independent, non-profit organization whose aim is to improve the quality of public policy and public sector management through multi-stakeholder dialogue.

Paul Lepsoe, who facilitated the meeting, clarified that he is not a member of the Task Force, the federal government or the PPF; he is an independent facilitator. Mr. Lepsoe explained that the discussion would follow the four-part structure presented in the Access to Information Review Task Force Consultation Paper : Context, Scope, Implementation and Redress. The first topic addresses the general context in which the Act is administered, including the evolution of the environment of government, citizens’ expectations and the management of government-held information. Scope pertains to details such as which institutions are covered, exemptions and the sub-issue of right of access. Implementation or process deals with the practical ways in which the Information Act works. The issue of redress includes the powers of the Information Commissioner (IC), recourse to the federal court, how the redress process works, and how valid it is.

Mr. Lepsoe told participants that a non-attributed outcomes report would be prepared on each session and posted on both the PPF and the Task Force web sites. A draft would be circulated to roundtable participants for their comments.

Participants then introduced themselves and stated their reasons for attending the roundtable discussion.

Issues Identification

Nancy Averill presented a summary of the comments and inputs that had been received from access to information stakeholders.

• Context
  • the key question is whether the Act still serves its intended purpose
  • with the growth of electronic information and media, is government information more accessible?
  • are there new methods for accessing government-held information?
  • how does the Act accommodate globalization?
  • how does the Act complement the redefinition of the citizen/government relationship, and strike an appropriate balance?
    
    
• Scope
  • what institutions are / should be covered under the Act?
  • the main issue with regard to exemptions is whether the release system should be proactive
  • does the Act apply to the new public / private partnership?
  • clarification is required as to what is covered by the Privacy Act and Access to Information Act
    
    
• Implementation
  • inconsistency is a key issue
  • how are fees calculated? should fees be charged at all? The question here is deciding whether fees should be charged with the objective of cost recovery, or if this service should be available at no cost to the public.
  • high fees were seen as a barrier, however, the fee was also described as an incentive for good information management systems [how is the fee an incentive for good information management systems?]
  • since delays are a deterrent, increased efficiency is an important consideration.
    
    
• Redress
  • delays in rendering a decision are an issue
  • the role and powers of the Information Commissioner should be discussed
  • merging the roles of the Information and Privacy Commissioners should be considered
    
    
• Special Issues
  • there is no government-wide standard for interpretation of the Act
  • the practice of the Act is in the hands of consultants
  • how could the Act foster trust between citizens and government?

General Discussion

Context

A participant suggested that it would be a good idea for the review of the ATIA to include a review of the antiquated Official Secrets Act. In principle, the people who pay for government— the taxpayers—have a right to see what government generates. This should be accessible without formal filing of a request.

The ATIA should be turned to by information seekers only as a last resort, a participant said. One is commonly told, at the outset of seeking a piece of information, to file a request under the Act. This slows research. One of the biggest reforms could be accomplished without amendment to the legislation. The guidelines regarding the classification of information could be revised to reflect a spirit of openness. For example, the number of people allowed to classify could be limited. Some people simply classify documents routinely. They should be made to justify their classification decision at the time of classification, for example, by reference to the disclosure exemptions of the Act, or by stale date, rather than wait until someone makes a request. That change would be revolutionary.

The problem is not with the purpose clause, a participant stated. Rather it is the collision between the specific things indicated; for example, exemptions and non-exemptions.

A participant illustrated the need to make changes to the classification process with a personal account of finding published documents in classified storage. They had been classified because it was deemed sensitive to know what a minister was looking at.

Another participant stated that people joining the public service should be advised of their oath of office and asked to sign a document. That would make them recognize that they are bound by the Act. This is a simple administrative step that could be taken immediately.

It was noted that the Act seems to frighten public servants. It makes them think that only certain documents can be released. There must be something fundamentally wrong with the way the Act was drafted, to frighten intelligent and well-meaning public servants into presuming that information that has been accessed might be taken out of context, a participant said.

A participant remarked that people who give advice to a minister sometimes draw up “out-of-the-box” thinking. However, many do not put it down on paper because of the ATIA, lest it be reported in the press. It was called an insult to Canadians that it would be assumed that each bit of advice would be regarded suspiciously by the public. If there is such a perception problem with a particular journalist or with the Opposition, then it is better to open the whole file and deal with it openly. Besides, the information is often no longer relevant by the time journalists obtain it.

An observer noted that expectations have risen in the last 17 years as a result of technology and real-time news. As a result, people expect the use of a search engine to answer all their questions with regard to something they have just heard on the news. These expectations will continue to rise.

The statistics in the Annex of the Access to Information Review Task Force Consultation Paper seem to show that Canadians are not aware of or motivated by the kinds of concerns that lead to use of the Act, a participant stated. The number of requests in one year, 19,000, represents a small percentage of the Canadian population, especially when “serial requesters” are factored in. It would be interesting to know how many individuals that figure actually represents. Most members of the public are under the impression that they can get the information they need, commented another.

Participants agreed that there should be a description of the range of what qualifies as secret. The word “access” assumes an authority to release. The lack of variety of requests begs the question: How can so few people create so much anxiety in so many? The assumption is that one has to knock on a door, and 18% of people give up. Perhaps “access” is the wrong word, a participant said.A participant stated that when one uses ATI one assumes that the information is protected, prior to request. That is why the issue of exemptions is important. The IC has spoken about the reality of how there are some categories that should be made available, but others that are sensitive. A special process is required for these. The challenge is to define what categories different kinds of information fall under, the participant said.

Another participant expressed that ATI has established an anomalous situation in which civil servants regard themselves as owners rather than stewards of public information.

Buried in the 18.7% abandonment rate is the “simply can’t find it” factor, a participant said. Perhaps a cohort of librarians could categorize information and make it machine-readable. Sometimes documents are not in Central Records. The best records are the Privy Council records because they are records of decision.

Another participant stated that a simple phone call from the access officer to the requester to clarify exactly what it is that is requested could save a lot of bureaucracy. Access officers seem to be working in a vacuum, the participant added.

A participant noted that drafts are often not dated, so the sequence cannot be discerned. The electronic world could eliminate this.

Scope

A participant commented that although the CBC uses the Access to Information Act to obtain information on a daily basis, they themselves are exempt from the Act. The participant found this to be a “flagrant conflict,” but acknowledged this was their only experience in dealing with exempted institutions.

Participants discussed Atomic Energy Canada Limited (AECL), which, as a Crown corporation, is exempt from the Act. The participant allowed that AECL must be competitive both in business and technology, but stated that he had been told by the AECL that since the organization is responsible to a Minister, and the Minister to Parliament, the fact that the AECL is audited by the Auditor General is “all you need to know.” Participants discussed the AECL’s need for a means to protect business secrets and yet be transparent and open to the public regarding their public function.

Another participant clarified that the request of CBC for information was in relation to a documentary film, not their business practices, and said that the CBC had used its exemption to deny the release of information.

Organizations using public money are included under other Public Policy Acts. A participant noted that provisions for arrangements regarding what the obligations of said organizations should be made available. The participant noted that when some Members of Parliament were serving on a standing committee, they had requested documents and information relating to the Al-Mashat family’s entry into Canada. There were ‘huge blanks’ in the documents received by MPs as a result, but the exclusions were so haphazard that a persistent analyst could ‘piece together the whole picture’. The roundtable participant, interested in the event, was able to look at an MP’s copy of the documents, and then worked with a professional access researcher to obtain the information which had been excised for MPs.

A participant emphasized that it is supremely important that the Act, if revised, be more intelligent in making a more precise exemption of release for Cabinet papers. The current Act is worded in such a way as to create argument about whether ‘privilege’ extends to certain documents belonging to Cabinet. The Auditor General, for instance, has gone to the Supreme Court to obtain political papers. The Cabinet, the participant continued, is not a Board of Directors running the country, but is both a coordinating device for government and a partisan group that operates as “a steering committee guiding the House of Commons.” Political parties are institutions of civil society, argued the participant, and therefore partisan deliberation and party business should not be thought of as public information unless criminal. While an agenda is not a Cabinet paper, the participant noted, people forget that Cabinet is a partisan formation. Participants discussed the exemptions from the Act. It was noted that the single largest text portion of the Act is the list of exemptions. A participant said that in reading through the list he realized how “sweeping” many of these exemptions are, citing sections 13 and 15 as examples. He added that the complaints procedure does not allow one to “get at the nature of the exemptions.” These exemptions, the participant concluded, may protect actions which are inconsistent with the rights and principles intended for Canadians.

A participant then commented that the injury exemption should be approached as a cost / benefit analysis of the release of information. Disclosure should be granted if the public benefit of disclosure outweighs the potential injury to the individual or organization, and such benefit can be proved. Solicitor / client privilege, for example, may preclude the release of information regarding nearly any actions of the Justice Department. A participant expressed that there should be a more practical excision: perhaps looking toward a more practical, not legislative, solution. A participant reported that documents received days earlier had many blank pages; the participant knew only that those pages had existed, not their content.

Under Westminster government, a participant noted, it is generally supposed that the governing party, representing the majority of voters, is responsible in a pragmatic way for working out what would further the ‘public interest’. For this reason, ‘public interest’ rationales do not have the same weight as they do in the United States when people seek information.

The facilitator asked participants if they were suggesting that the list be scrapped in favour of another distinction. A participant responded with two possible solutions: a complete re-draft of the legislation or the imposition of time limits on the duration of exemption for information; for example, information regarding the RCMP handling of the Winnipeg public strike of 1919. The same argument holds for more recent material from the 1940s and 1950s. The participant noted that these, and other documents several decades old are still “routinely kept from view” through the application of section 13.1, “ Information Shared with Other Governments” or section 15.1, ”National Affairs and Security.” The participant asserted that these documents are now too old to have any relevant impact on present-day security, and would not meet any test of “public reasonableness.”

A participant stated that the protection of police sources should end with the source’s death. Also noted was a “perversion” contained in the Act, which protects the privacy of an informant after they have compromised the privacy of a source.

The facilitator noted that the present scope restricts the submission of ATIP requests to Canadians or those present in Canada. A participant attempted to recall the original reason for the clause, and expressed that it was likely to restrict Canadian taxpayers from paying the cost of information requests by non-Canadian taxpayers. If this was the case, the participant added, then the issue might be addressed with a dual fee schedule, just as out-of-province students pay higher tuition fees. However, a fellow participant expressed dissatisfaction with a dual-fee schedule, feeling that there should not be two costs for the same piece of information. The facilitator noted that those who are ineligible to request information could easily hire an eligible individual in order to obtain the desired information. A participant said that the original aim of this clause of the Act was largely cost-related, and that in anticipation of a “landslide” of requests for information, it was intended to slow that “flood.” Another participant stated that there should be no obvious objection or reason to prevent the removal of the clause.

Implementation

The facilitator then invited discussion on making the information request and response processes easier.The first suggestion was to have more “user friendly” Access Coordinators. The participant added that through e-business and e-government, the submission of ATIP requests could be made easier, with the fee automatically debited to a credit card. While some departments have online registration, access is “not there yet,” the participant added, and this may be a matter of time and administration.

Finally, it is important to clarify requests and the actual need for the information requested, which could be achieved through phone calls instead of spending thousands of dollars collecting pages to fulfill the request, but which are not relevant to the actual information sought. These phone calls could also redirect requests to more relevant source departments or individuals, the participant concluded.

The question was raised as to whether there is enough information available to guide those who are seeking information, yet are unsure as to their specific needs. One participant, a competent and experienced researcher using both library and Net resources, reported being unable to acquire much of use through the ATI process. “It is not worth my time, as an amateur, to go through the Act,” the participant said, adding that one would be better served by working to earn money to hire someone else to perform the ATIP request for them. Another participant recounted frustration in requesting information held at the National Archives regarding the RCMP, for which CSIS now has ATIP responsibility. The system seems designed to frustrate researchers with confusing file names, no indication of file sizes, and no database, the participant said. Another stated that using an “ask somebody” approach seems reasonable when faced with pages of minimal text with no context and no explanations.

The facilitator asked if there are ways to make the process more efficient. Participants responded that the ability to search databases by word or name would quicken the process. A participant proposed that once it is technologically possible, the public should be able to request and receive information directly from institutions via online access. It was again expressed that this would require revisions in order to train departments and staff in correctly classifying documents upon creation. A participant felt that this would result in more bureaucracy, as more advanced work in training in regards to records management would be required. The participant felt that partisan information should be protected, but also that good search engines should be standardized and implemented. The cost of implementing such search engines is unknown. Some universities, in the interest of saving costs, encourage students to obtain information online and print it out themselves. A participant noted that society is currently training a computer-literate generation who will not automatically depend on a coordinator, but who will want to do research themselves, and are well versed in search engines.

It was stated that online access to British governmental information is both faster and easier to navigate than the Canadian equivalent. A participant noted that they are currently in the seventeenth month of a request that was initially estimated to be completed in nine months. The participant expressed a preference for working “historical rather than geological time,” adding that the complaints process has taken five months thus far.

In relation to Section 5.4 of the Consultation Document, the facilitator asked whether a “serial requester” should be limited in the number or frequency of requests. A participant noted that ATIP officers are best able to address this issue, to determine if this is a problem and would also have statistics on repetitive requesters. The facilitator reminded participants that the Consultation Document was not a proposal, rather a document designed to stimulate discussion. He then asked if those who trade information for business purposes, and journalists, should be subject to cost-recovery fees or limits, in contrast to members of the general public. A participant suggested that the costs related to ATIP functions, compared to the total cost of government communications, is most likely “a drop in the bucket.” Another participant opposed the creating of a hierarchy of users based on their ability to pay fees, stating that such a hierarchy goes contrary to the nature of such an Act. A participant then noted that those “in the game” know to use a Member ofParliament as a means of acquiring information, asking for help rather than submitting an ATIP request per se.

Redress

A participant stated that the Information Commissioner should have powers akin to those of a court judge in regards to adjudicating, with the requester having the option to follow up at the Federal Court of Appeal. “Is there anything to prevent the Information Commission from holding public hearings now?” the participant asked. The facilitator responded that the release of documents during an investigation is currently prohibited, sinceit is stipulated that investigations must be held in private. The facilitator asked participants if the Privacy Commissioner also needs a role in these investigations. It was argued that if personal information is a defense against a request for information, then the Privacy Commissioner may need to be called in with the Information Commissioner. This process can always be followed to the Court of Appeals, the participant noted.

A participant discussed the need to address what must be private, citing as an example Conrad Black’s lawsuit against the Prime Minister for access to information on the basis of the Prime Minister’s decision. (The courts have since ruled that the Prime Minister can make decisions on any grounds he or she likes.) The participant expressed a desire that the Act not allow the release of the minutes of Cabinet, nor specific advice to Ministers where it could show a conflict with the Cabinet decision. If this information were made available, observers could infer that Cabinet had made an uninformed decision, said the participant. The participant noted that the Act is rather “long in the tooth” for the way people are now doing business.

The facilitator noted that a judge in a recent Federal Court decision about access to Cabinet documents had remarked an apparent correlation between the revamping of the Cabinet paper system in 1982 – 84 and the coming into force of the Act in 1983. The judge appeared to leave it to readers to draw their own conclusions. A participant stated that “a democracy is not governed by a bureaucracy.” The Cabinet, the participant added, may not follow the “practical” advice of the public service, indeed that advice may be ill founded.

A participant noted that the discussion seemed to be anticipating how information may be used, but that that should not impact whether a document is made public.

A participant defined the Westminster system as one in which Ministers are, under the Departmental Acts, responsible for administration and policy. The public service implements this administration and policy. Because the public service does not have a constitutional personality of its own, it is conceived as being part of the Minister’s personality. This is another angle on why ‘advice’ that is directly in support of Cabinet decisions should remain confidential. The facilitator noted that apparently not even the courts can legally review a decision about what is designated a Cabinet confidence. A participant noted a statistic in Annex A of the Consultation Document which shows 71% of complaints resolved. “Define ‘resolved,’” the participant challenged.

A participant expressed that many complainants likely assume the Information Commission will be more liberal in the interpretation of the Act, presuming agencies and departments will be more restrictive. Another added that the Ombudsman should not be able to make binding decisions on Access to Information without the participation of a board of advisors and specialists, since theCommissioner is a political appointee. It was proposed that the Commissioner should be an actual judge instead of a Parliamentary appointee.

A participant expressed the need to know the specific outcome of information requests, instead of merely knowing the percentage “resolved.” Specifically, the participant asked if there have been instances that were successful in improving access to information. Complainants are usually given “discouraging” statistics on the results of “resolved” cases and the success rate, the participant said, with officers indicating that the outcome is not likely to be in favour of the requester without actually offering specifics. The commissioner should publish these outcomes and decisions.

The facilitator invited final comments from the participants. A participant expressed three points. First, regarding best practices, the participant cited the example of the Department of National Defence and its practice of posting captions and précis of all access requests on its web site, in contrast to the “Cold War” mentality of the past. Secondly, in regards to e-business and e-government, the participant expressed frustration at past attempts to obtain e-mail addresses of Foreign Affairs diplomats. The participant was initially told that that was considered personal information. The participant then asked only for those whose e-mail addresses were printed on their business cards. This request took months, but the participant did eventually receive them. Finally, regarding document classification processes, the participant felt that the initial decision should require justification up front, and that documents should not be classified as “Protected” simply as a “routine typing procedure.”

Another participant recounted some very good experiences using ATIP. Referring to the previous comment about the “Cold War mentality,” the participant said their perception was that this mentality persists in relation to historical documents relating to the Cold War itself. These papers which are decades old are still defined as relating to current safety issues. In conclusion, the participant stated that privacy rights clash with access rights, noting that there has been little discussion on this issue, but that this conflict affects “historical memory.”

Finally, a participant expressed distaste for the concept of categorizing and classifying users, stating that while it may be useful to have specialized groups of adjudicators to expedite the process, the public should not be classified. The participant also noted that legislation should be “illuminated by very clear guiding principles, and perhaps more modestly tilted, so that it can be adhered to without hypocrisy. In conclusion, the participant stated that while it is all public information, if a minority is exposed to harm, they must have their interests protected “for a period of time.”

The facilitator thanked the participants for a great discussion on some complex areas.

Consultation