NOTES FOR AN ADDRESS BY ANDRÉE DELAGRAVE CHAIR OF THE ACCESS TO INFORMATION REVIEW TASK FORCE GOVERNMENT OF CANADA
- March 05, 2001

AT THE FREEDOM OF INFORMATION CONFERENCE
CANADA HOUSE
LONDON

Good morning. I am very pleased to be here this morning to share with you Canada's experience with access to information.

I was appointed by the Minister of Justice and the President of the Treasury Board last Fall to conduct a one year review of the legislative and administrative aspects of what we call in Canada "access to information". It is a very broad and challenging mandate. The Task Force is scheduled to make recommendations to the federal government in the autumn of 2001 on how to improve access to government information for all Canadians.

What I will do this morning is attempt to give you a sense of the reality of access in Canada at a very practical level and share with you some of the questions the Task Force is looking into that may be relevant to the implementation of your own Act.

Being the Chair of the Task Force on access to information has given me a new lens through which I see the world. The first thing I do now every morning is to go over the news clippings for accessed information. And it is a very rare morning I do not find one or more headlines resulting from an access request. Headlines such as these:

• 14 probes focus on Atlantic job agency: RCMP cases involve millions of dollars, new minister told
  
  
• Gun-licensing program "a flop"
  
  
• Liberal friend got government contracts worth $1.5 million: A friend of the public works minister defends a lack of competition for the job
  
  
• Hospital planning document finally made public - but only after hospital committee learns it 's been ordered released by FOI officer
  
  
• Feds loath to bail out churches for native abuse
  
  
• Saskatchewan civil servants spend hours on Internet sex sites
  
  
• Airliners encroach on military airspace
  
  
• Parole officials harassed; Inmates resort to threats
  
  
• Financial scams rock embassies: Insiders on the take for $1.2M in recent years
  
  
• Cabinet memo urges long-term native solution: 'Failure to approve strategy would significantly increase risk of conflicts'
  Minister aware of audit conclusions since January 5, memo reveals
  
  
• Les fonctionnaires fédéraux étaient prêts pour une victoire de l'Alliance
  
  
• Immigrant may face HIV test: Health Canada draft policy
  
  
• Province keeping secrets: Opposition outraged that senior P.E.I. Bureaucrats refuse to release documents between federal, provincial ministers

The regularity of these headlines, and the breadth and significance of the information released by the government reassures me to some extent. It tells me that the system for accessing information held by government is, on the whole, healthy and working.

Is it perfect? Of course not.
Does it need improvement? Absolutely.

But I would agree with the Information Commissioner when he said at a recent meeting in Ottawa that - the "Access to Information Act is a pretty sturdy piece of legislation". It may need clarifying and modernizing here and there but my sense is that the far bigger challenge is to make it work better in order to provide more effective access for Canadians.

I will surprise no one here by stating that freedom of information is needed in order to keep governments accountable. This was after all the first objective of all FOI laws and it is still the purpose for which it is most frequently used in Canada. Access to Information in Canada has shown itself to be a very effective tool to keep government accountable. I suspect it will be the same in the United Kingdom.

A second purpose of freedom of information is to provide the information citizens need to participate meaningfully in the public policy debate. For all the talk, in recent years, about civil society, informed citizenry, and citizens' involvement in policy making, my sense is that Canadians still have a way to go in learning to use access to information laws for this purpose. It is largely an untapped potential.

In Canada, over the last few years, there has been considerable focus on enhancing the quality of service to Canadians. This thinking does not seem to have yet made many inroads in the area of access where it would have important implications for the way access is provided. Better service would mean faster, simpler, easier process to access information including electronic access.

Finally, a somewhat more recent concept that is being discussed in a number of jurisdictions is the idea of government information as a "national resource". In short, this suggests that a major role for the government, the largest holder of data in any country, would be to put as much as possible of this information into the public domain, as fast as possible, for it to generate knowledge and wealth.

This concept would take access way beyond responding to individual requests to the systematic proactive release of information on an ongoing basis.

In our problematique, we define our task as making recommendations to modernize access to federal government information in a way that promotes open and effective government and an informed citizenry in a knowledge society, while respecting the principles of privacy, ministerial responsibility, Canada's commitments to other states and the need for full discussion of issues in the public service and frank advice to Ministers. We use this problématique as a basis for discussion and consultations. It will evolve as we reflect on new insights and learning.

Before I go further, and to provide a proper context for the rest of my remarks, I would like to point out quickly a few key features of the Canadian legislation.

Some Differences

One difference of course between Canada and the United Kingdom is that Canada is a federation, and the federal act is restricted to federal institutions. There are freedom of information laws in all but one Canadian province that cover institutions in provincial jurisdictions. Health, education and the environment, for the most, are under provincial jurisdiction.

Even accounting for the differences in jurisdiction in our respective acts, the scope of our Act is narrower than yours - for example in Canada, courts, Parliament, the Canadian Broadcasting Corporation, some Crown agencies and, for that matter, the Office of the Information Commissioner are not covered under the Act. Scope is one of the issues the Review Task Force is looking at. The example set by the UK is worth studying.

Under the Canadian Act, only Canadian residents or those present in Canada can make a request. Here, anyone will be allowed to put in a request from anywhere in the world.

In Canada, there is a $5 request fee for which the requester is provided with 5 hours of search time, beyond which there can be a reasonable charge for search and reproduction costs - there is no maximum beyond which government does not have to provide the service if the requester is willing to pay. Here I understand a cap will be set by regulations.

In the Canadian system, Access Co-ordinators play a pivotal role. It is impossible for us to imagine the system working without them. They interact with requesters, monitor the handling of the requests, track progress, press programs about deadlines, provide expert advice on the application the Act, provide training, keep statistics and in many Departments, have delegated authority to make the decision on disclosure of the information. This is a model that puts the emphasis on efficiency and meeting timeframes.

From what I understand of your system, the decision to disclose is going to be made by the first line manager or senior officer receiving the request, wherever they are in the organisation. The role of FOI officers will be to provide expert advice and training. It seems to me that by contrast to ours, your model puts emphasis on public service accountability and ownership of FOI. I am fascinated by the principle and intrigued by how it will work. It sounds like a strong model for organizational learning and cultural change but I wonder at your meeting deadlines.

I will not go into an intricate comparison of exemptions - which would be too complex for the time we have - let's just note that your Cabinet Papers are a class exemption, while ours are an absolute exclusion. Under the Canadian Evidence Act, once the Clerk of the Privy Council certifies a document as a Cabinet Confidence, it cannot be seen by anyone.

On the other hand, the Canadian legislation has no provision for anything like a ministerial override to prevent disclosure, as is found in the Irish, Australian and U.K. legislation.

There are no administrative protection provisions in the Canadian Act such as provisions dealing with repetitive or frivolous requests.

We do not have an internal review mechanism.

And the Canadian Information Commissioner is an ombudsman with strong investigative powers but, unlike yours, no order making powers.

Access to Information Data
Now, let's look at some Canadian data. It is by no means perfect but it is the best available.

Among the many weaknesses of our data is that it does not distinguish between requests on the basis of the size or complexity. A request is counted as a request - whether for 1 page or one million. It should also be noted that a single request could result in several complaints (for delays, fees, exemptions) making the comparison between requests and complaints not as accurate as it could be. Moreover, the requests made one year would probably not result in a resolved complaint in the same year making the comparison between requests and the resolution of complaints, within a year, inaccurate.

Having said that, the data provides some kind of performance indicator. We can see that more than 90% of requests do not result in a complaint; by that I do not mean that over 90% of requesters are perfectly happy but they do not initiate a formal complaint. And of those requests, which resulted in a complaint last year, over 99% got resolved to the satisfaction of the Information Commissioner - in fact 3 complaints were not resolved. One could think that in your system these 3 complaints would probably have resulted in an enforcement order.

On the basis of these statistics, one would conclude that the Canadian system is one of the best performing in the world - a statement the Information Commissioner would probably be reluctant to endorse, that many users would most likely challenge and one that would certainly startle a number of officials in Ottawa.

Complaints Resolution

What do Canadians complain about? They complain more about delays than anything else.

In cases where the complaint is about the way the institution has applied exemptions, the Information Commissioner agrees with government in 60 to 80% of cases. Non-resolved complaints are almost always on substantive issues such as the application of exemptions. This is where legitimate disputes on legal interpretation are likely to arise and can be properly referred to Courts either by the requester, the Information Commissioner or by the government.

Until now, Canada has made a very parsimonious use of Courts to resolve access to information disputes. That is probably due to a number of things - including our legislation, the structure of the Information Commissioner's powers and possibly because litigation is not the "Canadian way to go" - It makes for a rather economical and, on the whole, non-litigious system.

Who uses the Act?

The identity of specific requesters is protected in Canada but data is collected on categories of users.

What we know is that a limited number of requesters generate the majority of the requests; 35% of requesters make more than one request per year; 11% make more than seven; some admit to thousands over several years.

The most frequent group of users is the "general public category" including organizations, interest groups, general public as well as professional requesters we often call "data brokers".

It is closely followed by business, the second most frequent group of users. This is a big and ever growing trend in Canada and the USA.

Media is the third most frequent group of users.

Parliamentarians are also a fast growing group of users both from the opposition ranks and, surprisingly, the government ranks. More and more Parliamentarians are turning away from other means of getting information to make requests under the Act.

Litigation lawyers are a fast-increasing group of users. FOI is used as a complement to legal discovery. This is a very big trend in the USA. I think you need to be prepared for this one.

Costs

Last year, the Treasury Board Secretariat commissioned a comprehensive review of the costs of administering the Access to Information Act. The survey included all departments and agencies subject to the legislation, as well as the costs of the Commissioner's Office, central agencies, legal services units and the Federal Court.

Attempting to estimate the costs associated with access has ever been a contentious issue in Canada. Some users fear a nefarious plot by government to increase fees while most departments firmly believe that the figures, no matter what they are, grossly underestimated the real cost of access to the taxpayers.

The study indicated that for 1998-1999 the total overall cost for the Canadian access to information program was estimated at almost $29 M ($28,845,000); a significant amount but just a small fraction of the communications budget of the Canadian government, which is approximately $350 M.

There has been a steady increase in cost over the five-year period of the study, the number of requests growing by 41%. from 9,792 to 14,340 requests per annum.

During the same period, greater efficiency was achieved since the unit cost per request declined by 23% from $2,250 to $1,770. The time for searching for and locating documents decreased by an amazing 30%.

However, the time for review of documents and approval have increased and now constitute more than one third of the total cost.

Fees

In Canada, reasonable fees can be collected for processing the request but not for time spent on review and approval.

However, we collect less than 1.4% of process costs in fees. For 1999-2000, the average cost per request completed was $927 - this was for search, retrieval, and reproduction only. The average fee collected per request was $11.78 and the fee waived per request completed $8.95.

There are a number of disincentives for institutions to collect fees: it is complex to administer and adds to the workload; the collector of the fee does not benefit, quite the opposite, as it can lead to a separate complaint to the Information Commissioner. It is simpler for departments to waive the fees, and they waive a lot. Some admit to almost never collecting fees.

Time-limits

Another measure of the effectiveness of the system is the time taken to respond to requests. It should be noted that, in the last few years, Departments have increased their use of extensions and that forty-nine per cent of all complaints to the Information Commissioner are about delays.

The Canadian legislation provides a response deadline of 30 days. A department can however extend the response period for good reasons.
In 1999-2000, of requests completed 63.2% or 11, 685 requests were completed within thirty days; 16.4% or 3,036 were completed in 31 to 60 days and 20.4% or 3,767 too more than 61 days.

Which institutions get most requests?

Again, the data does not distinguish between requests on the basis of size or complexity. For example, the Department of Foreign and International Trade received less than 3% of the requests last year but one of the requests on softwood lumber trade involves more than 1.2 million documents. A parallel ATI Unit employing 12 to 15 people had to be created and a 2-year extension was taken.

Examples of Requests

• I thought I would give a flavour what Canadians requests. Here are some examples from some recent entries in the central registry of requests.
  
  
• All records assessing the viability of a bilateral free trade agreement with the European Union prepared in the last 12 months. Include draft records.
  
  
• A report on all Canadians involved in violent crimes or accidental deaths at hotels in every city in Mexico with the date, gender, and age of each person between January 1, 1985 and December 31, 1994.
  
  
• A list of all informatics professional services contract issued including supplier name, contract value, contract number, contract date, name of official who initiated each contract.
  
  
• A report from the departmental grants and contributions database which indicates all grants and contributions to business throughout Canada valued at $2,500 or more and the name of recipient, location of recipient: city, province (address if available) postal code, value of grant or contribution, award date and project title or project description During July-September 2000.
  
  
• Copies of records held by Corrections Canada related to the escape on November 8, 2000 of inmate ( ) from Pittsburgh Institution, and his capture a few days later. And copies of any letters, memos, electronic mail messages, correspondence, minutes of meetings, media lines and briefing notes related to the incident that are held by the department.
  
  
• Any records on concerns about passports misuse or falsification between January 1, 2000 and December 31, 2000.
  
  
• Memoranda to Cabinet, minutes of Cabinet discussions, Cabinet correspondence between January 1970 and June 1972 regarding the introduction of tobacco legislation.
  
  
• TPP clinical and chemistry reviewer's notes for TRANSDERM-NITRO (nitrogylcerin) as sold by Novartis Pharmaceuticals.
  
  
• Copies of all communications, reports and memos in the last 12 months between Foreign Affairs and the Canadian Embassy in Tel Aviv, Israel, regarding policy options towards Israel or the Palestinian Authority, contingent upon the outcome of the Middle East Peace process.
  
  
• …all Fisheries and Oceans records related to the preparation, issuance and transmittal of the Aboriginal Communal Fishing Licence for Crab, effective date April 7, 2000 to April 30, 2000, to the Semiahmoo First Nation ("SFN"), including facsimile transmission records, records of telephone conversations with SFN, drafts showing when it was prepared, etc. In addition, all copies of notes of conversations between Fisheries and Oceans personnel and federal Crown counsel related to the validity of the April 7 - 30, 2000 licence.
  
  
• Copies of all briefing material prepared to inform a new Government/Minister of Defence on the background, issues, processes, procurement strategy, etc. surrounding the Maritime Helicopter Project.
  
  
• Copies of all records found in Ms. ( ) office.
  
  
• Any documents involving UFO sightings and investigations in Prince Edward Island or surrounding waters between January 1988 and December 2000.
  
  
• Any memos, briefing notes, reports or internal correspondence (including e-mails) written since January 1, 1998 regarding the threat or occurrence of acquisition of Canadian military intelligence by organized crime.
  
  
• Copies of any letters, notes to file or records of meetings or telephone conversations between the Ethics Counsellor (or his staff) and any Minister/Secretary of State in the year 2000 regarding situations where they requested an opinion by the EC office as to whether accepting a gift (of any kind, including a trip) would constitute a conflict of interest.
  
  
• All documents related to Mohawks and banking or Internet gambling from August 15, 1999 to present.
  
  
• A list of all contracts awarded by the Minister's office in fiscal year 1997/98 and 1998/99 including: the name and address of each contractor, the amount of each contract, the date each contract was awarded, a narrative description of the purpose of each contract, whether or not the contract was awarded on a competitive basis, whether or not the terms of each contract were satisfactorily fulfilled and the money paid.
  
  
• All briefing materials to the Minister from January 31, 2000 to December 31, 2000 on revamping the proposed Young Offenders Act.
  
  
• Copies of any briefing notes for senior officials written since January 1, 1996 referring to the criminal involvement of Chinese companies or Mafia in Canada's immigration process.
  
  
• A complete list of official functions held at the Prime Minister's residence at 24 Sussex Drive, Ottawa, and Harrington Lake, Québec, including the names of guests itemized by each event, since January 1, 1997 to the present.

• Costs of travel to date for the Access to Information Task Force by individual members including expenses/financial statements.
  
  
• Summary of expenditures to date and proposed 2001-2002 budget of ATIP Task Force.
  
  
• Briefing notes from the ATIP Task Force to Treasury Board, to PCO and/or to Justice; Task Force correspondence exchanges with PCO on access issues; any reports, minutes of meetings prepared by the ATI Review Task Force on interdepartmental, coordinating and/or steering groups; agenda of meetings held by the ATI Review Task Force with Access Coordinators along with a summary of the deliberations.

How are the requests treated?

Forty per cent of the time, all the information is released; 33% of the time, the information is partially released; and the information is totally exempted or excluded in 3.1 % of the cases.

Exemptions Applied

The largest number of exemptions are claimed on the grounds of protecting personal information and third party information. My guess is that it will be the same here.

I note that the operation of government exemption, which is invoked 17% of the time, covers internal deliberations of the institution and advice to ministers.

Issues We Are Looking At

The Task Force still has a lot of work to do before it can come to conclusions. But here are some of the issues we are looking into because we think they have the potential for making a significant difference in the effectiveness of access to information for Canadians:

• Integrating access with other measures of transparency and accountability;
• Strengthening leadership and accountability;
• Technology applications to facilitate the access process;
• Competent, stable, resourced ATI units;
• Routine proactive disclosure;
• New approaches to policy making that are compatible with early disclosure;
• Training, education. awareness;
• Modernizing records management;
• Enhanced dialogue with requesters;
• Better consultations on horizontal files; and
• Creating a culture of access.

Before I close I have a small favour to ask. Yesterday, as I was riding on the subway, I was sitting next to a man reading a paper. I could not help but notice the headline on the page. It read: OUTBREAK IN HONESTY HAS MPs IN A SPIN. Unfortunately before I had time to learn more about this fascinating subject he got up and left.

Now, as you may imagine, this is of high interest to me. I certainly would like to learn how to provoke outbreaks in honesty, epidemics of information release and contagious support for access to information.

If you have any information on how to go about this, please contact the Task Force at our web site: www.atirtf-geai.gc.ca.

Thank you again for your hospitality and for your attention.

Speeches