External Consultations

Proceedings - Roundtable on Access to Information Review, Ottawa - May 29, 2001

Conducted by the Public Policy Forum

Facilitator: Dr. David Zussman

Dr. Zussman introduced himself as the chair of the roundtable, and thanked the participants for coming. He said that the Access to Information Act (ATIA) was produced 17 years ago and there have been significant changes since that time. The electronic age has made it possible for information to be available with speed and simplicity, and has changed people’s expectations about availability. Government has evolved to include partnerships with the volunteer and private sectors. It is therefore time for a review of the Act to ascertain whether it is succeeding. This roundtable is an opportunity for stakeholders to voice their concerns and criticisms.

The Public Policy Forum, Dr. Zussman said, is an independent, non-profit organization whose aim is to facilitate development of public policy through open, frank dialogue with stakeholders. The comments made during the roundtable will be recorded on a not-for-attribution basis and made available to participants. Participants are also invited to make submissions directly to the Task Force. There has been some criticism that the roundtable process has not been open to the press. The decision was made not to invite the media so that the discussion could be more open and participants would not feel constrained in expressing their views and criticisms. The report will be available on the web site.

Dr. Zussman outlined the format of the meeting. People would introduce themselves and briefly present their concerns about the ATIA; Ms. Averill would give an overview of the concerns expressed in the written submissions and telephone interviews with stakeholders; and then discussion would proceed, framed around four areas: Context, Scope, Implementation and Redress.

Participants introduced themselves with the following brief comments regarding the Act:

• Companies are concerned about the visibility of their own records / profiles under the Act.
  
  
• There is limited information available to the general public on how to use ATI to obtain information.
  
  
• It will be interesting to see how growth in the amount of information affects access, as well as how government makes its electronic information available.
  
  
• The government is in a conflict of interest in trying to administer the Act at the same time as fighting it in the courts.
  
  
• Parties whose information is held by government are concerned about what might be released, and want to maintain certain exemptions.
  
  
• The system should be open and transparent; if people do not have access to information, they often become suspicious.
  
  
• Disclosure of information regarding private sector firms may have an impact on competitiveness.
  
  
• It will be interesting to see how the Act can accommodate the public’s increasing use of new information and communications technology.
  
  
• The role of privacy regulations and laws in the maintenance of commercial confidentiality is interesting.
  
  
• It is the job of government to make information readily available; the premise of free dissemination is and should be the government mind set; therefore, there should be concerns regarding fees for data.
  
  
• Denial of information to companies for commercial purposes will cause them to relocate to other countries where the same information is readily accessible.
  
  
• Delays in access to information have an impact on the tendering process for government contracts.
  
  
• The hype and anxiety of the ATI process is out of proportion, especially considering the innocuous type of information that is often being sought; there should be more trust.
  
  
• There are concerns about both cost and confidentiality when government requests information from private companies.
  
  
• There is a suspicion that competing companies can use ATI to obtain lists of staff and skill sets.
  
  
• Sometimes private companies feel they have to hire counsel to prevent disclosure of confidential information under ATI.
  
  
• There seems to be a resistance on the part of the government to disclose information.
  
  
• Occasionally the information provided under ATI by the government is wrong.
  
  
• The power of the Information Commissioner is cause for concern.
  
  
• With ATI, pre-clearance of advertising for compliance with regulatory regimes risks disclosure of market secrets.
  
  
• It is difficult to strike a balance between the need for information, concerns about clients, and the rights of the public.
  
  
• The filling of an ATI request can be a huge burden on a small organization.
  
  
• The ATI process occasionally errs, based on a bias toward release. That is its mandate, but there should not be any bias built into the mandate.

Nancy Averill gave an overview of the submissions and telephone input from stakeholders:

• Context
  • The growth of electronic formats has meant that more information is available and there are new methods of retrieval.
  • Globalization has ATI implications.- How can the revised ATI process complement the alternative service delivery, new public management and citizen-centred services? What is the appropriate balance?
    
    
• Scope
  • There is inconsistency with regard to ATI across government departments.
  • A proactive release system was advocated.
  • Exclusion from the Act of Crown corporations, First Nations and public / private partnerships is an issue.
  • There are gaps in privacy versus access.
  • Protection of personal information and trade secrets is an issue.
    
    
• Implementation
  • There is inconsistency in the application of the Act across government departments.
  • Fees are an issue - should there be any? Should the structure reflect the cost? Are they consistently calculated?
  • Delays are a deterrent.
    
    
• Overall concerns
  • The lack of an overall government standard for interpretation constitutes a barrier.
  • The complexity and variety of the system results in requests being put in the hands of consultants.
  • How can the Act be used to foster trust?

Dr. Zussman opened the discussion by reading the purpose of the Act.

One participant noted that ten to fifteen years ago, the information governed by the Act consisted of paper documents, but now also includes electronic data. For that reason, it was deemed important to use the word “records” rather than “documents” in an ATI request.

The test for confidentiality should not be tradition, argued another participant. It should be whether the decision to release information serves the public good. How the Act is applied is important. Over the last six to seven years, as a result of court decisions and due to the presence of the Information Commissioner, many departments have improved their handling of ATI matters. All departments must learn to use the Act. It was mentioned that the government itself has taken a long time in this regard. A participant inquired as to what efforts were being made to deal with inconsistencies in the application of the ATIA across departments. Currently, a persistent and well-funded requester can achieve the desired results by making many requests to different departments, all worded slightly differently. Inconsistency can lead to a huge amount of game-playing, a participant stated.

One of the issues that makes the ATIA difficult to use is the lack of knowledge regarding the actual existence of documents. Perhaps a complete list of government documents and their availability could be drawn up. If records had to be identified, it might reduce the gamesmanship. Also, why not make any request for information accessible to everyone, as well as the information gained from it? It would contribute to making a great deal of information available, which would be beneficial, especially for the media. Technology offers a good avenue for this, if openness is what is desired. Confidential documents should be identified as such right from their inception. Otherwise they should be presumed available.

One of the issues that makes the ATIA difficult to use is the lack of knowledge regarding the actual existence of documents. Perhaps a complete list of government documents and their availability could be drawn up. If records had to be identified, it might reduce the gamesmanship. Also, why not make any request for information accessible to everyone, as well as the information gained from it? It would contribute to making a great deal of information available, which would be beneficial, especially for the media. Technology offers a good avenue for this, if openness is what is desired. Confidential documents should be identified as such right from their inception. Otherwise they should be presumed available.

It was clarified that, in the 1993 Report of the Information Commissioner, “recorded information” was expanded to include e-mail, e-conferencing and computer-driven information.

A stakeholder mentioned that, even within government, it is extremely difficult to review ten years’ worth of records because of the variety of formats in which they are kept - microfiche, micom, 5 inch disks, and 3.5 inch disks. Such roadblocks within the government will have to be overcome sooner rather than later, the participant argued. Where will government electronic information reside for reading by the public and corporations?

A participant argued that private information becomes public property as soon as a project is approved and the money allocated. There may be tension as balance is sought in this declassification system. The government has not yet achieved this balance.

A participant suggested that the intended implementation of the Act requires a change of mindset on the part of those who apply it. A re-evaluation is needed to establish whether the Act is meeting its objective of serving citizens. The public good would be better served if the ATI process were examined from that end.

A participant observed that ‘our democratic system – Parliament, courts, social system, etc. – is based on an adversarial approach wherein advocates argue the issues from informed points of view.” The participant described access to information as “a keystone to this vital process”, and noted that to deny information is to deny knowledge. “An informed advocate, no matter his or her view point, can only strengthen our democratic process”, continued the participant.

“Perhaps we are looking too high up the tree for answers”, remarked a participant. The root of the problem goes beyond the Act. Everyone gives theoretical support to the idea of open information, but in practice, politics plays a large role, and governments do not always wish to acknowledge this fact. Politicians, senior bureaucrats, companies and public servants who create documents do not necessarily want all the information released. A participant argued that the private sector (including media) and government often have competing interests in terms of releasing information, and that the ATIA may not provide resolution. It is a good idea that all requests be posted on the Web, but some information can always be hidden, noted a participant, offering as an example lawyers who are not required to provide the names of their clients.

Another participant expressed concern that the discussion might be losing track of the Act’s raison d’être, the philosophy behind it. It is not about trade and profit, the participant said, but rather the democratic principle. Taxpayers have a right to know. The Act has evolved into something else, a treasure trove of information. This should be reflected upon before any changes are made.

There is a potential infinity of requests and many of them are looking for a lot of information. The role of information coordinator is not easy, acknowledged a participant.

Scope

The facilitator asked the participants whether the present Act, as written, captures the issues raised. Some participants felt that organizations such as NAV Can and Canada Post should not be exempted from the legislation. Whendoing business with the government, one participant stated, you should accept the loss of some confidentiality. No organization accepting public money should be exempt from the coverage of the Act, argued some participants.

To a participant's question of the priority of the Act relative to other disclosure policies, the facilitator noted that the Act takes precedence. Another participant suggested that a "blanket requirement to make all information available as a basis for doing business with the government would be impractical".

A participant commented on the depth of the information subject to access, from business issues to the personal "lives of employees" - which raised the question of a reasonable level of information that could be made available. One participant expressed his concern that by offering too little protection to confidentiality "we could stimulate the brain drain if we are not careful". Confidentiality, another stated, is protected by the Act. A comment that the office of the Information Commissioner is exempt prompted complaints that it "should not be".

A potential problem was noted for companies involved in varied activities governed by different acts, such as Telecommunications and Broadcasting, where each approaches the protection of commercial information quite differently, with the result that each Act is dealt with differently under the Access to Information Act. Some participants noted that legislation seems to be listed in the Schedule as an afterthought. Perhaps legislators should be more proactive and harmonize different pieces of legislation in tis regard so that they are dealt with consistently under the Act.

Implementation

A participant representing a small organization, not publicly funded, said that their "not unimportant work" could be side-tracked or killed outright by large ATIP fees. If not for their lawyers (working for free), he added, they often would not receive information at all. Regarding the issue of fees, another participant called the group's attention to the fact that many trade and other associations are 'not-for-profit' groups as well. This, he said, underlines the need for careful wording of any clause that might distinguish or waive fees for not-for-profit groups.

It was suggested that groups could share information, thereby dispersing the costs incurred for an ATIP request. If delays no longer meant increased fees (i.e. profit), another commented, then departments would need to come up with other reasons for not readily providing information. One participant reported hearing an estimate of $1 Million for an ATIP response, which was subsequently negotiated down, leading them to conclude that there is "some discretion at play here".

Talk then turned to the Treasury Board's (TBS) role in administering the Act. Costs could be reduced, one said, if the TBS worked as it should to coordinate responses across departments. Some departments were noted for posting their information responses on message boards or in a "reading room". Why, it was asked, cannot the TBS coordinate this for all departments? The government needs to become serious about coordination.

The "human element" was suggested as an element in ATIP delays. One asks a department for information, the participant explained, and is refused. One then submits a request through ATIP, which is forwarded to the same department, which must then provide the information they previously refused. This, he stated, brings in the element of human nature and delays. Obtaining documents, he said, need not take so long.

The disclosure of third party submissions in response to public consultations was described as another form of delay, inefficiency, and cost for all parties: for the government department in question, the requester and the third party involved. For instance, in a situation where a private company has made a submission in response to a public consultation, in any if not most instances, such a submission is carefully crafted with the expectation that it will be made public.

Furthermore, the company may have already passed it along to its stakeholders. However, if another party requests that same submission from the government through ATIP, the government delays release in order to consult with the company in question. This, it was stated, is an unnecessary delay since the company has no issue with the information's release, but the requester must still wade (and wait) through the ATIP process, and the company must devote time to responding to the request. Some information deemed as confidential by a private company, cautioned another speaker, might not be recognized as such by every public servant. Delays, stated a third, reflect directly on the credibility of the Act. Another participant echoed this "excellent point", saying the problem of delays had not improved much over the years. "Information delayed is information denied."

It was commented that, except for ATIP staff, no job descriptions within the public service include ATIP work, but that it falls under "other duties". Delays are not so much willful as a matter of priorities, he concluded. The question "Are there any penalties for delays?" was met with a recommendation that fees or even authority be lost if a response was unreasonably delayed. Some delays, another noted, are due to third party involvement, needing files from storage, or the need to consult with people on the issue. A participant countered the attributing of delays to "finding paper", saying instead that they think it is more often the people involved, obtaining the necessary decisions and reasons to release information, or not.

Bureaucrats, one participant stated, must be careful when divulging information about contentious policy decisions. Politicians do not want to say "I made the decision for political reasons", but not all decisions are business-based.

The facilitator then asked for the participant's views on how the Act could be better administered. The first comment reiterated the need for TBS, not the Commissioner, to take on a lead role. The participant said there is a need for certification and training programs for ATIP professionals. He noted that one college is looking into providing such a program, adding that his organization fully supports such a move. A participant argued that TBS had not fulfilled its mandate with respect to the ATI Act. In response to Dr. Zussman’s request for a single-word description of the performance of TBS in this regard, two participants called it ‘abysmal’. “Inconsistencies in the application of the ATI Act across government departments are the result of poor stewardship”, one continued. The participant argued that neither TBS nor the Department of Justice should continue in their role of ‘stewardship’ of the ATI Act. Nor should the Privy Council Office be charged with this responsibility. The Public Service Commission was proposed as a potential candidate for this role.

Redress

Redress, one participant began, should be to Parliament. The repercussion for causing delays or problems with an ATIP request would be a "damning report" in Parliament. The Information Commissioner also needs more authority and should be further strengthened. The government changing the Act while simultaneously fighting against it in court represents a conflict of interest. The Information Commissioner, they concluded, should be responsible only to Parliament.

A participant asked why the administration of the ATIP was moved to the TBS at all, questioning whether the Privacy Act is similarly "split". Another replied that responsibility for implementation of both the Privacy and Information Acts lies with TBS. The Information and Privacy Commissioners, they elaborated, are at conflict. It was suggested that one Commissioner be responsible for both acts, as is the case in most provinces. The Commissioners, it was noted, already share administrative staff.

It was commented that the commissioner having order-making powers might be too "adversarial", and the role should be that of an ombudsman, not a judge. It was noted that there is a need to "protect the government from crazy commissioners". Another speaker suggested the group give consideration to the option of a single office. The Information Commissioner, he stated, must always balance the two values of privacy and access, while the Privacy Commissioner is only concerned with "keeping it in". Concern was again noted about giving any increased order powers, or punitive powers, to the Information Commissioner.

A participant said that when he hears redress, he thinks instead of responsiveness. Without responsiveness, penalties, benchmarks, he asked, what have we? We have a roadmap, legislation, but "who is driving the car?" Another speaker raised a new issue, asking about "redress for whom?" The facilitator stated that the term was intended in the broadest sense possible, but, in the past, it was most often those requesters who felt the delays or costs were too much. What about, the participant elaborated, redress for those impacted upon, or damaged by the release of information through ATIP? The facilitator thanked the participant for offering this "new wrinkle" for consideration. Another participant suggested that the redress of delays or costs is more of an administrative issue, in contrast to the redress of damages.

The need to preserve the "quasi-judicial independence" of the commissioner's office was stated. The participant then added that about five government departments receive approximately 60% of all ATIP requests (with an estimated total of 5,000 requests per year), and concluded that this leaves many other departments without the sheer volume of requests as an "excuse" for delays. Again, the need for training was noted, with the comment that all information should be considered accessible and employees should be trained on how to obtain and provide it upon request.

"Using the Act to get the bureaucracy to move", another asserted, "is like herding cats". If information is obtainable and the Act is used as a last resort, he elaborated, then its use becomes more legalistic. Right now, he concluded, it is the first resort, not the last. Another participant stated that if attitudes do not change at the top, then the changes at the edges of the Act are pointless. He cited the Prime Minister's fight against the Information Commissioner's request to see a 'Cabinet Document' as an example of the need for a change in attitude. The Commissioner asked to see a document, but is being told to take the word of the Prime Minister’s Office that it is a Cabinet Document, sight unseen. The signals from the top are "all wrong" when the top echelons are fighting the Information Commissioner. The participant stated a need for a new openness, noting that the Americans have no ATI Commissioner but are more open with information.

Another participant reinforced the previous two speakers' comments, admonishing the ATI Review Task Force to take them seriously. No changes are effective, he stated, without the power of the Act. Another noted that, after months of review, the Commissioner makes a recommendation, not a decision. A third participant added that "people do not do the expected, they do the inspected". If they are watched, governed and their actions made public, their will is made stronger, he concluded.

Final comments included a concern that the Commissioner's role would be changed too much with the granting of increased powers. A suggestion was made that technicalities, such as leaving off a "the" or using imprecise terminology in making a request, are sometimes used to deny access. Finally, one participant noted that sometimes requests are inappropriate, such as a request for information on bids prior to the contract being awarded, or even before the bidding has closed.

Consultation