Observations reçues par le Groupe d'étude

Soumission complète

(Soumis en anglais seulement.)

Auteur : Ken Huband
Envoyé : Le 30 mai 2001

This is my submission to the Access to Information Review Task Force which is currently reviewing the federal Access to Information Act together with associated policies and practices. My comments will take the form of responses in bold to the questions posed in the Consultation Paper combined with an additional concluding remark. Feel free to make my comments and identity publicly available. By way of personal background, I was the ATIP Coordinator for Consumer and Corporate Affairs Canada for a number of years until its eventual merger with Industry Canada in 1995. My comments are based on my experiences from that period. If some things have improved since then, so much the better. I am now a private consultant specializing in access and privacy policy issues and have worked extensively on the Personal Information Protection and Electronic Documents Act.

By way of a summary of my submission, I start from the proposition that the public policy goal of the legislation is just as important now as it was in 1983 but that the existing legislation is woefully out of date and no longer serves the public, the government or those directly responsible for its administration well. I suggest that the Act could be changed to resolve all of its problems and that, with the changes and greater coordination efforts by the responsible central agencies, the result would be a simpler and more effective process for individuals to exercise their right to government information and for the government to deliver this service.

1. Access to Information Context

1.1

Most jurisdictions acknowledge that their access to information legislation has resulted in more transparency in government business and greater communication of government information to the public, both informally and formally under their Act. Would you say the 1983 Access to Information Act has had the same kind of impact in Canada? Has it changed the way Canadians perceive government and governmental information? I would say most definitely. I have personally spoken with many requesters during my years as a coordinator, including many members of the general public, and I found them to be genuinely appreciative that they were able to obtain government information by virtue of the legislation. The increasing use of the Act as well as its attribution by the media as a source of information for news stories has contributed greatly to the public's belief that the legislation has value for them.

1.2

In your opinion, have citizens' needs and expectations of their right of access to information held by the government changed over the last 17 years? If so, in what way? As indicated above, I believe that the expectation of and appreciation for having a right of access to government information is now well established and supported among users of the Act, the media, and among Canadians generally.

How do you see the needs and expectations of Canadians evolving in the next 15 years or so? I think Canadians will expect more openness and transparency from the government, and will expect to be able to ask for and receive information electronically, e.g., via the internet, both informally and through the formal access to information request process.

1.4

What types of information do you think should be routinely available from the government without a request under the Access to Information Act? Polling and public opinion research paid for by the government, reports and studies by outside consultants, internal policy background, research and discussion papers, government inspection reports, summaries and analysis (e.g., aircraft, food, water, etc.), environmental assessment reports, internal audits and evaluations. In general, informal access is the preferred route for the dissemination of government information with the formal process best reserved for information that has a sensitivity that requires a balancing of disclosure and protection interests.

1.5

A request under the Access to Information Act can be for one page of records or over a million pages. The access to information legislation in many countries provides for practical limits on a citizen's right of access, such as excessive costs to the taxpayers of providing the information, the undue disruption of governmental operations or repetitive requests. Do you think that there should be some limits set in the Canadian legislation? Criteria are necessary but must be crafted with great care so as not to thwart the right of access.

If so which ones? In your view what should be the criteria? A reasonable and sensible fee schedule could deal with most of the concerns over excessive costs. To deal with extreme cases, institutions could be given the ability to refuse a request on the basis that it is trivial, frivolous, vexatious or made in bad faith or because responding would cause an undue disruption of governmental operations. See also my suggestion for modifying the right of access to "information" not "information in records" which could help as well. This change in definition could be combined with a requirement that a request must be as specific as possible and that, if it is too general or vague, it could be rejected on that basis.

1.6

The 1983 legislation states that:

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.

Do you think that this purpose clause is still adequate? For the most part the clause remains appropriate. However, I believe that the right of access should be to "information" under the control of the government, not to "information in records". See also my general comment at the conclusion of the submission.

1.7

In your view, what changes need to be made in the federal government / the federal public service to further the purpose of the Act and facilitate effective access by Canadians to information? This is one of the most important questions. During my tenure as coordinator, ATIP suffered from a lack of resources and an ambiguous and variable commitment to meeting the spirit of the Act among senior officials and Ministers. The resource issue may have been addressed since then but I do not know whether a general commitment to openness now exists among senior officials and Ministers. If it does not, ATI will remain problematic for both users and administrators.

Training for all staff and support by central agencies are other vital parts of the puzzle. Since leaving the public service I have worked as a reviewer of ATI requests in a number of different departments and have marvelled at how variable the processing and decision-making was from one to another. I often found that questions of interpretation which had been resolved by the Federal Court years before continued to be applied incorrectly by ATI staff due to ignorance of the court decisions. The variety of management and approval structures used by different departments (some of which were virtually guaranteed to make it impossible to satisfy the deadlines of the Act) also amazed me. As a coordinator, I had and exercised delegated authority for all ATI decisions and, in my opinion, some such arrangement is essential for the timely delivery of the ATI service.

So far as I can tell, another area of great concern is information management practices which appear to have deteriorated greatly since I left in 1996. There is less consistent organization and retention of paper records and a lack of coherent management for electronic records which now represent a very significant proportion of all the information used in government. I now wonder how any institution can be confident that it has even found all the relevant records for a request in the current information management environment.

2. Scope of the Access to Information Act - Institutions

2.1

In your view, is the current coverage of institutions under the Access to Information Act adequate? Portions of important public institution, such as the House of Commons and the judicial system, are conspicuously absent - there may be others. It would be appropriate to review them all for suitability of coverage. Another extremely important area where coverage is often lacking is that of the new organizations emerging from the government's privatization efforts, e.g., NavCan, the Canadian Institute for Health Information (CHI). Generally speaking, the transfer of certain government functions to hybrid public/private organizations should be carefully reviewed using the criteria suggested below in order to ensure that public accountability and transparency is not sacrificed in the process.

2.2

What criteria should be used to determine whether or not an institution would be subject to the Act? Any institution or organization which receives significant public monies for its operation or which functions as a monopoly or quasi-monopoly in the private sector by virtue of its legal status should be subject to the Act.

2.3

By what mechanism should institutions be added or removed from the list of those subject to the Act? (For example, legislation would require Parliamentary approval while regulations would require the approval of Cabinet.) Some means whereby any newly created institution would automatically be made subject to the ATI legislation would be the simplest way (perhaps via adding a clause in the existing Act). Any exceptions should be made via a Notice published in the Canada Gazette with the reasons for the exception and a period for public comment followed by publication in Part 2 if the exception is successful.

3. Scope of Access to Information Act - Right of access

3.1

Currently only Canadians and those present in Canada have a right of access under the Act. In a globalized world, does this restriction still make sense? I think so given that the Act is primarily intended as a tool to assist the citizens of Canada in exercising their democratic political rights. However, there may be value in giving institutions the discretion to accept requests from those outside of Canada. The question is somewhat moot inasmuch as anyone outside the country can obtain or retain an eligible person to make the request on their behalf if they so wish.

4. Scope of the Act - Information

4.1

Do you think that these exemptions / exclusions provide the appropriate balance between the right to information held by the government and the necessary exceptions to that right? Not entirely. The cabinet confidence exclusion should be eliminated and the disclosure status of this information made subject to the Act's exemption structure only. This was the approach contemplated when the original legislation was being debated and it is still the right way to go.

Do you think the balance between the mandatory and discretionary exemptions is the right one? No, there is no substantive case to be made for maintaining mandatory exemptions for information received in confidence from other governments, protected by other listed statutes (I assume you are referring to Schedule II here) or RCMP provincial or municipal policing - all this information should be subject to the exemption structure only. The latter two are relics of a time when most provinces had no ATI legislation of their own and are no longer necessary. As regards the discretionary class exemptions, these should all be converted to injury test exemptions, with the possible exception of solicitor-client privilege - a class of information in which the timelines for sensitivity are often so long that it is difficult to make an informed judgement about injury.

Do you think that any exemptions should be removed or added? I would remove the exemptions for information protected by other listed statutes or RCMP provincial or municipal policing. The information can be protected from disclosure using other available exemptions if necessary. As regards the advice exemption, s. 21(1)(a), I would restrict its application exclusively to information that was prepared for or used in a decision-making process but that was not followed by the decision-maker. If the advisory process has led to a decision, the advice and recommendations supporting the decision should no longer qualify for exemption as advice. However, advice and recommendations not followed by the decision-maker should still be subject to exemption but on discretionary, injury test basis. I can't think of any other type of sensitive information that cannot be protected from disclosure using the current set of exemptions.

4.2

The Act provides that certain types of third party information may be disclosed where the public interest as it relates to public health, public safety, or protection of the environment, outweighs the likely injury to the third party. Do you think the Act should provide a public interest override for any other exemption? There may be a case for an override for information received in confidence from other governments as it is conceivable that it would be in the public interest to disclose information from such a source (e.g., for public health or safety reasons) even if the originating government refused to consent. Most of the other exemptions deal with the government's own information and this information could, by eliminating the mandatory exemptions as suggested above, be released on a discretionary basis by an institution without reference to an override.

Should there be a general public interest override instead of specific ones? It may be worth considering as a residual power for unanticipated situations in which there is clearly a public interest in disclosure but which do not fit the existing criteria.

5. Access Process

5.1

Do you think the processes for making and responding to requests under the Act could be made easier and more effective? How? The process was often cumbersome and bureaucratic, both for applicants and for ATIP and departmental program staff. I operated with a rule of thumb that said most requesters had a particular reason for making their request and wanted to find out something specific. If I wasn't sure what they wanted, I contacted the requester and asked. There is usually a story behind a request and knowing the story makes the search and review for relevant information much simpler and more focused. It can often lead to the request being treated informally simply by providing an answer to the question the person wanted to ask. More generally, I think the client service model is a good one to use in the relationship between ATI staff and institutions and their requesters. I contrast this model with the adversarial one which I found present in some institutions. The latter model introduces unnecessary burdens and delays on requesters in order to satisfy internal bureaucratic procedures, creates barriers to communications, and can negatively influence decisions concerning the release of information. In following the service model, I made a practice of releasing as much information as possible while engaged in external consultations rather than waiting until all the consultations were completed before releasing any information.

As regards third party consultations, I personally felt that many institutions engaged in unnecessary formal consultations which created additional work, delayed the final response and gave third parties the ability to delay a response when they had no legal right to do so. I'm thinking of information which the institution can reasonably conclude meets the tests in section 20 - in my opinion no formal consultation is necessary to invoke the exemption in these circumstances. By the same token, if it is clear during the review that the third party information cannot possibly qualify for an exemption, I think it should be disclosed without giving a formal notice to the third party.

5.2

Are there ways to reduce the costs of processing access to information requests? Are there ways to make the process more efficient? Yes I think so. I never asked program staff to apply exemptions to information; I asked them to tell me what they were concerned about releasing and why. If we had questions about the request following the initial review, I, with a program officer, contacted the requester and we worked out what was of relevance. Too much time and effort is often spent looking for, reviewing and photocopying records containing information of no interest to the requester.

5.3

Currently all requests are treated the same, whether the results are for personal use, commercial use or a public interest use. Should different categories of requests or requesters be treated differently under the Act? (For example: general public / Members of Parliament /commercial users / media / non-profit associations / professional requesters who resell the information.) I don't think the exercise of distinguishing categories of a requester based on intent is a productive one. If there is concern about "subsidizing" commercial requesters for example, a revised and sensible fee structure can take care of the costs of many such requests.

5.4

Currently there are no limits on the number of requests that one person or organization can make to any institution at any time. Should the Act limit the number of requests from a single requester to be processed at one time? By one institution? Within a year? I don't think a statutory limit is the way to solve this problem. A better way would be to give the Coordinator some formal ability to manage multiple requests from the same person by being able to schedule them according to the requester's priority, taking into account the total request load at the time.

5.5

Currently there is a $5 application fee for every access request. Additional fees are calculated on the basis of $10 for every hour of search and preparation over five hours, and the cost of reproduction of the record. How should the fees for Access to Information requests be determined? Should the nature of the request, the purpose of the request, the volume of information sought, the speed with which it is required, the time-frame for processing the request or other factors affect the amount of fees charged? I think the existing fee structure reflects a desire on Parliament's part to facilitate the right of access. I continue to support that end. For that reason, factors such as the nature of the request, the purpose of the request, the speed with which it is required, the time frame for processing the request should not affect the fees in my opinion. The volume of information sought may result in higher reproduction fees which are currently subject to fees. I would add that the existing Act's method of assessing the costs associated with "machine readable records"is totally out of date and should be scrapped. At the moment with so much more information being exchanged electronically, it may be more sensible to drop any reference to fees related to computerized information since this information can, in most instances, be created at virtually no cost to the institution.

In general, I am somewhat sanguine about studies purporting to calculate the "costs" of processing ATI requests, having gone through a couple of such exercises during my tenure as a coordinator. The main problem then was the lack of consistency in methodology and calculation among the different institutions (read some of the Annual Reports for examples). Institutions with sloppy record keeping practices or an arcane approval process often reported higher costs but the question not asked was why these extra costs should be included in the calculation. The true cost of processing access requests should not be inflated by inefficient and ineffective systems and procedures. What was needed was to define a standard set of best practices for search, review, approval and preparation and to use them to evaluate costs across different institutions. Best practices would exclude such things as the time spent by senior management obsessing about the fallout from a sensitive disclosure! In general, I would say that the cost of responding to ATI requests remains trivial as a function of the total operating cost of the government and, from a public policy perspective, should be kept as low as possible so as not to deter individuals from exercising their rights.

5.6

Should the handling of access requests under the Act be an entirely open process itself? This could mean public availability of information on the content of information requests, the status and content of responses and the names of requesters. Everything but the identity of individual requesters should be an entirely open process.

6. Redress Process

6.1

In your view, is this still the best redress model to support access to information? If not, which one do you suggest? If the current redress model is the right one, could any improvements be made or clarification brought to the current powers and responsibilities of the Information Commissioner? It is my belief that the ombudsman model has not been successful for several reasons. I don't think either Commissioner really follows the ombudsman model in practice. Rather, in investigating complaints, they tend to treat the complaint as an opportunity to conduct a general audit and evaluation of the handling of the request in all its facets. While a valid exercise in itself, this approach often leads the investigation into areas which are of no interest to complainants who usually want to know quickly why the information they asked for was not given to them. The audit approach expends unnecessary time for all the parties. Most requests and subsequent complaints have a time sensitivity (e.g., the requester's organization applied for but did not receive a grant and a similar organization did). Being told months or years later that the complaint was or was not justified is by then of little interest to the requester. The other problem with the model is that, while it can succeed in resolving a particular dispute, it has not achieved the same success in dealing with systemic problems since institutions can simply ignore the Commissioner whose only recourse is to report to Parliament. Many Annual Reports have contained the pleadings of Commissioners for Parliament to correct a systemic problem which apparently fell on deaf ears.

There are a couple of other areas where the Commissioner's office could assist the ATI community. Firstly, the office does not publish all its findings making it more difficult for coordinators and staff to understand the Commissioner's interpretations of the law. All final reports on complaint investigations should be published as they are by most provincial commissioners. The Commissioner should also consider publishing advance rulings and broad statements of interpretation on issues of uncertainty. Such rulings would not be binding but would serve to indicate the general thinking of the Commissioner on the issues. Secondly, I think the Commissioner should be given the same mandate and resources to publicize and promote the purposes of the Act as was given to the Privacy Commissioner by the Personal Information Protection and Electronic Documents Act. A better understanding by the public of the variety of ways to obtain government information and of how best to make use of the ATI Act would help everyone involved in the process.

As far as the choice of redress model, given what I take to be a failure of the ombudsman model, I believe it is time to move to a quasi-judicial Commissioner with order making powers. Doing so would simplify the process of seeking redress for requesters and would also enhance the stature of the Commissioner as a formal part of the legal process for exercising the right of access. The quasi-judicial model is used by most of the provinces and appears to work very well.

6.2

In many countries, institutions are required to provide a fast internal review mechanism. This mechanism is often successful in resolving issues before they result in a formal complaint to the Information Commissioner. Should Canada consider this? This could be very useful since many complaints revolve around a simple question as to why information was not released (a well written response letter from the Coordinator can often answer this question, in addition to simply citing exemptions, thereby avoiding a complaint). I'm not clear from reading your paper who is supposed to do the internal review but why couldn't the Commissioner have such a process in his own office (Commissioner Cavoukian has recently introduced a more flexible multi-track complaint process in Ontario). I also suggest you study the additional powers given to the Privacy Commissioner by the Personal Information Protection and Electronic Documents Act, in particular the ability to refer the complainant to other available fora (grievance or other procedures) or through a procedure (such as a human rights tribunal) more appropriate to the issue, to refuse complaints that are too old, to employ alternate dispute resolution mechanisms such as mediation and conciliation rather than undertaking a formal investigation. Granting the Commissioner similar powers would simplify and improve the disposition of complaints.

6.3

Currently the role of the Federal Court is limited to determining whether the government improperly applied the law in a decision to exempt records from disclosure. Should the Court have the authority to start over and decide whether records should be disclosed? Should the Court have the authority to make decisions about fees, time extensions, and other access issues? It can take a long time to get to the Federal Court. That being so, it may be very appropriate to have the court simply settle the matter then and there when it arrives. I can see no reason why all matters under the Act should not be ones on which the Court can rule. However, granting the Commissioner formal powers to issue binding orders would make this option unnecessary.

General Comment

I recommend that the general right of access granted by the legislation be changed from that of "access to a record" to that of "access to information" under the control of a government institution. This statement of the right of access is analogous to that found in the Privacy Act with respect to personal information. The change is not trivial. Instead of making the unit of compliance "a record", it would become "information" which is what requesters are interested in receiving. Information answers a question posed by the requester, whereas masses of records containing both relevant and irrelevant information are burdensome to all parties in the process. The current definition forces institutions to search through records which contain a great deal of irrelevant information instead of focusing the institutional response on the information most pertinent to the requester's interest. Under my proposed definition, records containing both relevant and irrelevant information could be released with the irrelevant information simply removed as non-relevant if it is sensitive to the institution and irrelevant to the interest of the requester. The change in wording would also focus the interest of the requester on the particular matter of interest to them, instead of encouraging requesters to ask for "all records" in the hope that a few of them may contain something of interest.

Observations reçues par le Groupe d'étude