Information Commissioner's Notes for Speech
to the ADM Advisory Committee, Ottawa, Ontario - February 23, 2001

It was very thoughtful of the ADM Advisory Committee and the Task Force to invite me to speak about the process of reforming the federal access to information régime. I use the term "régime", because the reform mandate goes beyond amendments to the Access to Information Act. It is intended, as I understand it, that the Task Force report will make recommendations to improve the entire system, including its administration in departments, funding issues, status and role of coordinators, leadership and culture, information management, proactive information disclosure and so forth.

In preparation for today, I realized that there is so much to say. My office and my predecessors have made a great many suggestions for change over the years. I will not repeat them--they are a matter of public record and the Task Force has them. I don't propose to give you my recipe for change, rather, what I have chosen to do is speak about how the work of the Task Force will be measured by the "user" communities. By that I mean, journalists, members of Parliament, academics, members of the bar, business users, bulk requesters, students and the myriad of individuals who may have only rare resort to the Act. To put it simply: "How will your work as government insiders be judged by those on the outside--for whose benefit this law was intended?"

I hope that the Task Force will not, after today, consider that there is no further need to consult with my office. My hope is that, when the Task Force has formed some preliminary views as to the preferred directions for reform, it will share them with me and seek my views thereon. At that time, I would appreciate being invited back to this group so that we might have a fruitful dialogue and consultation. As well, I expect to be given an opportunity to share my views with the external advisory committee when it is constituted.

I want to start my remarks about how this review will be judged by reminding you of the context in which this reform exercise is proceeding. Since the ATIA came into force in 1983 most of the provinces have passed laws, reviewed their laws, and expanded their laws. With minor exceptions, the federal Act has not changed in 18 years.

Why has reform of the federal Access to Information Act been such an elusive goal? The unanimous recommendations for reform, put forward in 1986 by the Standing Committee on Justice and Solicitor-General, were ignored. So, too, have been the recommendations for reform put forward since 1986 by three Information Commissioners. A dozen or more private members' bills proposing amendments to the access law have died without the government's support. The most recent, and notorious, being the government's decision to kill the comprehensive set of amendments put forward by John Bryden. (I will speak later about one private member's bill which did pass into law). A number of proposals for reform have been developed within government only to be rejected by cabinet or blocked upon arrival at the Privy Council Office. Conservative governments and Liberal governments alike have recoiled from the task of nurturing the proud principle of openness which both parties originally championed in bringing forward the Access to Information Act.

Only last Fall, the Ministers of Justice and Treasury Board announced yet another review of the federal Access to Information régime. That is why we are here today. Will it be more likely to succeed than its predecessor efforts? And, if it is successful, what kind of fruit is this tree likely to bear?

The reasons for past failure provide clues to the pitfalls which the current review faces. Secrecy in government is deeply entrenched--primarily at the senior levels of the bureaucracy. Secrecy cloaks public servants in relative anonymity as the handmaiden of the notion of "ministerial accountability". Secrecy, too, gives governments more control over the management of information flows to the public. The access law--with a positive right of access by anyone present in Canada to most records held by government, coupled with a deadline for response--constitutes a frontal attack on both of these perceived virtues of secrecy. Consequently, there is every incentive for officials to resist, if not impede, the operation of the law.

May I open a parenthesis here concerning the notion of ministerial accountability. This notion, although it is often articulated as a cherished foundation of our system, became a legal relic with the passage of the Access to Information Act. The Supreme Court of Canada, in a 1997 judgement, considered the purpose and effect of the Access law. Mr. Justice LaForest, speaking for the court on this point, said the following:

"The overarching purpose of access to information legislation--is to facilitate democracy. It does so in two related ways. It helps to ensure first, that citizens have the information required to participate meaningfully in the democratic process, and secondly, that politicians and bureaucrats remain accountable to the citizenry."

I draw your attention to the words "ensure--that politicians and bureaucrats remain accountable". Too often I hear bureaucrats moaning about how exposed they have become since the access law came into force--as if that exposure needs to be corrected. To the contrary, that accountability of bureaucrats through transparency is the very cornerstone and intended purpose of the access law. The persistent confusion on that point has enormous potential for misdirecting or derailing a serious reform effort.

A legitimate fear, then, is that a reform proposal, cobbled together by government insiders without the benefit of a full, public, parliamentary review, will address the concerns of the bureaucracy at the expense of the concerns of the public.

The Access to Information Act made a significant shift in the balance of power as between the state and the citizen. It did so in three main ways. First, it gave the citizen the positive legal right of access to government-held records except in 16 specifically defined circumstances.

Second, the Act shifted power to the citizen by giving the citizen the positive legal right to be given the records--or told why the request is refused--within 30 days. While this deadline may be extended, there are objective criteria which must be met before extensions may be claimed. Third, the Act gave citizens, who feel aggrieved by the government's handling of access requests, a right to seek a two-step independent review of the government's decisions--being the Information Commissioner at the first stage and the Federal Court of Canada at the second.

Any reform proposal that emerges from the current Task Force will be measured against this overriding criteria: Is the balance of power between the state and the citizen affected and, if so, in what direction? It would appear, for example, that this ADM Advisory Committee has asked the Task Force to make recommendations for changes which could be implemented even before the final report is completed and made public. The authority of the government to make regulatory changes to the ATI régime is set out in section 77 of the Act and it is fairly extensive. It gives the Governor-in-council power to make regulations concerning eight matters, fees among them, and authorizes the Governor-in-council to add (but not delete) additional departments, ministries of state, bodies or officers of government to the schedule of government institutions covered by the Act.

I am troubled by the idea that significant changes to the system would be implemented before this Task Force has made its final recommendations public and there has been a full opportunity for public reaction. Precipitous action is entirely out of character with the deliberate, careful approach originally outlined by the Minister of Justice and President of the Treasury Board.

Nevertheless, should it be decided to move ahead with preemptive, administrative changes, it will be instructive to note whether they will involve changes to the application fee (now set at $5 and which the Act permits to be set by regulation at any amount up to $25) the photocopy fee (now set at .20 per page) and the fee for search and preparation (now set at $10 per hour per person).

Any increase in fees will be seen as an effort to impede the exercise of the right of access and there will be a burden on government to explain why this shift of power back to the state is justified.

May I pause to address this issue of fees. There is a belief, widespread in government, that the right of access is being abused by frivolous requesters and bulk or business requesters. That belief is demonstrably false.

The Access to Information Act came into force on July 1, 1983. There have been almost 18 years of experience with the Act and there have been some surprises. Most surprising is the modest use Canadians make of the Access to Information Act. Before the Act was passed, the government forecast that approximately 50,000 requests per year would be received by the totality of government institutions (some 150) covered by the Act. In fact, it took 10 years to reach the 50,000 request mark. The year just past - 1999-2000 - was the year in which the most access requests were received since the Act's passage -- there were some 19,000.

My point is simply this, the popular mythology that the volume of access requests is so great as to interfere with the effective administration of government, is without foundation. And may I open a second parenthesis here concerning the recent TBS-sponsored study on the costs of access. In my view the study is profoundly flawed, because there was no effort to determine fairly the "per request" costs in departments which manage well the access function and compare that cost with the "per request" cost in departments which manage the function poorly.

Where there are multi-layers of approval, where the minister's communications needs are factored in to the cost of answering an access request, and when a department's records management is in disarray, costs will appear high. That high cost is not the fault of the right of access, as the study implies. I support, indeed encouraged, the effort to quantify and make public the costs of administering the access law. What I had in mind, and still encourage, is a quantification of the costs of administering access well. There is no doubt that it is very expensive to administer the Act badly.

Whenever I speak to groups of public servants I inevitably hear complaints about the so-called "bulk" users, those who make many requests, often for the purpose of reselling the information (often with value added). "Surely", public servants say "the Act was not intended to be used to make a private profit!" On this point, too, the outrage is misplaced and undeserved.

From the beginning it was recognized that entrepreneurs would make use of the Act to obtain government information for commercial purposes. That has been the experience in all jurisdictions which operate in a freedom of information régime. It makes economic good sense to allow entrepreneurs to "mine" government holdings for saleable information: First, new information businesses pay taxes and the tax system is a more effective revenue collector than would be even the highest of access fee régimes.

Second, information requesters give government valuable clues as to where its informational "gold" is hidden--and, should it so desire, the government can undertake, itself, the economic exploitation of the information. An example of this occurred in the former Revenue Canada which decided to develop a "for sale" version of its advance tax rulings after an access requester had obtained the information and started a commercial report service containing the data.

Once Revenue Canada started its own service, all the related access requests ceased (but so, too, did the tax revenue stream from the private service--which went out of business).

So if you are presented with fee proposals designed to deter or penalize bulk, commercial users, I ask you to question any such proposal very closely. If the government is not ready, willing and able to exploit its own information resources, why not let an entrepreneur do so. If a government institution is not astute enough to exploit its own information resources, why not let others do so and be content with reaping the benefits through the tax system?

If modest use is the first surprise, the second is that, even after 18 years of trying, several of the major departments of government have been unable to deliver the access program effectively to the citizens. Why has there been an apparent failure of competent management in this area?

The persistent problems in the system fall into three groups:

1. Delays
2. Excessive secrecy
3. Improprieties such as:
- improper records handling practices
- using fees/extensions as a barrier to access
- inadequate searches
- political interference

DELAYS

First, I will address the problem of delay.

The Act subjects government departments to a response-deadline regime. Access requests must be answered within 30 days of their receipt unless that period is extended for one or more of the following reasons:

1. the request involves a large volume of records (or search through a large volume) and meeting the 30 days would unreasonably interfere with the operations of the department, or

2. Additional time is required to conduct consultations with other departments, other governments or with private third parties.

In these circumstances, the department is entitled to extend the response deadline for as long as it chooses, subject only to the requirement that the extended period of time be reasonable in the circumstances and that it not exceed one year (the period after which there is no right of complaint). If the deadline is set at more than 60 days from the date of receipt, my office must be notified of the extension.

Yet many departments have been unable to respect, on a consistent basis, this generous response deadline regime. The Task Force will be scrutinized carefully to see if it recommends measures, including penalties, to end the ignominious, 18-year record of disrespect for the requirement that responses to access requests be timely.

Excessive Secrecy

The second problem area we see in the administration of the Act is the problem of excessive secrecy.

The Access law has quasi-constitutional status. The right of access operates "notwithstanding any other Act of Parliament". Parliament took the unusual step of stating the Act's purpose in clear language it is:

2. (1) "The purpose of this Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government.

(2) This Act in intended to complement and not replace existing procedures for access to government information and is not intended to limit in any way access to the type of government information that is normally available to the general public."

Despite the strong legislative exhortation to openness, and the narrowly worded exemptions from the right of access which I referred to previously, the Act is administered all too often as a secrecy statute. All too often the test used by officials is: "if in doubt, keep it secret" - a test which has been specifically rejected by the Federal Court.

As well, there are only halting efforts being made to put information into the public domain on a proactive basis without waiting for access requests. Even after 18 years, no department, of which I am aware, does an annual content analysis of the requests received and answered, with a view to identifying information which could be made available on a routine basis -- perhaps on a website.

Why complain of the burden of access requests until every effort within your control, as public officials, has been made to disclose information proactively, informally and routinely?

My story-of-the-week about excessive secrecy has to do with the government's failure to disclose to the public, after cabinet decisions are made, the background information, analysis of problems and policy options presented to cabinet for consideration in coming to the decision. Prime Minister Pierre Trudeau asked officials to disclose such information even before the Act came into force. The information was not disclosed. Prime Minister Joe Clarke reaffirmed that policy; the information was still not disclosed. Parliament enshrined that policy as a requirement of law in paragraph 69(2)(b) of the Access to Information Act, yet PCO continues to resist. The matter is now in the hands of a Federal Court judge to decide whether this continued secrecy is justifiable.

This, too, is an area where the Task Force will be carefully scrutinized: How will cabinet confidences be treated? All studies suggest that the cabinet confidence exclusion should be made a reviewable exemption and that the definition be substantially narrowed. As it stands, the exclusion is ripe for abuse.

And when it comes to excessive secrecy, the Task Force will be graded on whether or not it recommends a class exemption for national unity records and whether or not it ends "secrecy creep" by abolishing section 24 of the Act. All studies to date have indicated that, with the exception of s. 69 (which should be made an exemption) and s. 24 (which should be abolished) the Act has achieved a remarkably good balance between openness and secrecy. No study has recommended, and there has been no demonstrable justification for, a new class exemption relating to national unity records.

Improprieties

Finally, I turn to the third area of difficulty in administering the Act, being improprieties with respect to: handling records, conducting searches, estimating fees, applying extensions and interfering for political purposes.

I need not say much about the problem of records alteration and destruction. The problem was of sufficient concern (my office has investigated a half dozen cases) to prompt Parliament to unanimously adopt a private member's bill making it an offence to engage in certain records handling practices with the intent to deny a right of access. Any tampering by the Task Force with this new offence will be greeted with horror by members of Parliament of all parties and by the public whose outrage over destruction cases caused MPs to propose and support the amendment.

We are presently investigating complaints against one department for allegedly applying 3-year extensions of time to answer even simple requests involving small numbers of records. We regularly see cases where searches have been entirely inadequate and unprofessional and where inflated fee estimates (and demands for prohibitively large deposits) are presented to requesters perceived to be "troublesome". The Task Force will be expected to propose sanctions or disincentives for such behaviour.

Finally, with every change in Minister and every turnover in ministerial exempt staff, cases arise where the Minister's office disrupts the process -- slowing it down, dictating the timing of release, directing the application of exemptions over the objections of the professionals. The communications needs of Ministers are, too often, given precedence over the legal rights of access requesters. That is not just troubling it is illegal and Deputy Ministers have the obligation to ensure that their Ministers understand and respect their legal obligations.

Having been a minister of the crown, I know that ministers can be killed with kindness. There is the well-intentioned enthusiasm of exempt staff who see only the political dimension of issues and who don't understand that even Ministers have laws to obey. There is, too, the deference of Deputy Ministers who don't like to say "NO" to Ministers. As Information Commissioner, I see too often cases where officials refrain from "speaking truth to power" (as John Tait would say) in the hope that the Information Commissioner will be the bearer of bad news to the Minister.

The access requests made by journalists and opposition members of parliament get slower service, closer scrutiny, and more conservative treatment from a misguided sensitivity to the Minister's needs and when the accounting comes, who bears the blame and wears the shame? It is, of course, the Minister. In this area too, the Task Force will be expected to advance solutions and offer leadership.

Why Do These Problems Persist?

Why are these problems so intransigent? The causes will help us understand the kind of remedies needed. There is no mystery regarding the causes; the problems have been studied to death by my office, Treasury Board, Justice Canada, various DM and ADM committees and by a Parliamentary Committee. Here are the causes:

1. inadequate resources
2. absence of targeted educational programs
3. poor procedures and practices (here, I also include the matter of poor information management)
4. inadequate delegation to, and classification of, Access Coordinators
5. slowness of Ministers/Deputy Ministers and Senior Managers to change the culture of secrecy by force of leadership.

In some senses, that list is in reverse order of importance, with failure of leadership being a factor in all these problems. I say this because the resource crunch many ATIP offices found themselves in over the past eight years was directly attributed to the flawed assumption that ATIP could be treated like any other program for budget cutting purposes. I suggest it was a failure of leadership to assume that a department could ignore a mandatory, legal obligation (i.e. to give timely answers) because the government had imposed a restraint program. More finesse than that was required!

I propose to end by giving my recipe for the good administration of the Access to Information Act in any department. I offer these suggestions for use in any initiatives you may wish to take to improve the professionalism around the handling of access requests and to attack the persistent culture of secrecy. All of these can be accomplished without legislative amendments. Here is where your efforts are required and you will not be criticized by me for moving on those fronts before the Task Force report is made public.

Solving the Problems

First, assign your ATIP group and appropriate operational areas, sufficient resources to answer the anticipated workload of access requests based on historical trends. It is not necessary to resource for peaks, but it is necessary to have a contingency plan for peaks such as a roster of contractors, an arrangement with Treasury Board to borrow experts from elsewhere and/or a plan for obtaining quick approval for additional positions. Treasury Board has already notified all departments that it will consider favourably new resource requests to ensure response time obligations are met.

Second, educate all employees who play a role in processing access requests and do so on a mandatory, regular and targeted basis. In other words, the education program for ministerial staff will differ in some respects from that for senior managers or officials in operational areas -- but there must be ongoing educational programs in each department.

Third, establish a processing flow plan which minimizes decision/approval points, which sets times within which each action must be taken (i.e. search, review, approvals) and which tracks progress, provides follow-up and entails consequences for non-compliance.

I open a parenthesis here concerning the problem of records management in government. For the access program to work, officials need to know what information a department controls, where it is, how to retrieve it and how to objectively demonstrate that the search is comprehensive. Work on this solution is not required simply to improve the access program, it is required to maintain good governance in general. This is a subject for a speech in itself which would use the reported example of DFAIT's inability to find copies of diplomatic communications between Canada and Russia related to the recent drunk driving incident--copies which the Ottawa police were able to eventually provide to DFAIT! I will resist the temptation to go further here. But this is an area which cannot be ignored by the Task Force--it is critically important.

Fourth, it is vital that ATIP coordinators be trusted members of senior management having the full delegation to answer access requests without multi-layers of concurrence or approval. Too often, coordinators are underclassified, file preparers who must rely on more senior officials to make the real decisions. When it comes to the approval process, Deputy Ministers should follow this simple advice; get a coordinator you trust and get out of the way!

Finally, the senior management cadre must realize that the attitude its members express towards access rages like a grassfire through a department. If employees feel that compliance is not a priority for the leaders, you will see delays, inflated fees, antagonism towards requesters, inadequate searches, increasing numbers of complaints and more visits from my investigators. When the leaders decide not to keep minutes of meetings, and advise others not to write things down, when they perpetuate the myths about abusive requesters, when they tolerate giving the Minister's needs priority over legal rights, when they do not foster a culture of openness in general -- their employees get the message loud and clear.

So often I hear senior officials say: "I don't have to like this law; I only have to obey it!" -- and that grudging attitude is infectious in destructive ways at lower levels. No matter how well crafted an access law may be, it will only be a good law if public officials make it work. The courts, the public, members of Parliament, the media, almost every group in society believe strongly in the right of access, they support a strengthening of the Access Act, they are convinced that openness makes our governance better, our democracy stronger. I ask senior officials to listen to this message and show some enthusiasm in your departments for this program which is not going to go away. That could be your very best contribution to the work of this Task Force.

Thank you for your hospitality and your kind attention. I suggest we now shift from one-way to two-way communication. Are there any questions or general observations you would care to direct to me?

Speeches