What We Heard - Revitalizing Access to Information Online Consultations, May – June 2016

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Message from the President of the Treasury Board

The Government of Canada is committed to raising the bar on openness and transparency to strengthen trust in our democracy, and ensure the integrity of our public institutions. Open and transparent government makes for better government. If citizens understand why their government takes a particular course of action, if they are engaged from the beginning, and if they have access to the same facts the Government has, then they will have more confidence and trust in the outcomes.  

Revitalizing access to information is an important element of our ongoing commitment in this area. As President of the Treasury Board, it is my privilege to lead our government’s efforts to make that vision a reality, in collaboration with my colleagues the Minister of Justice and Minister of Democratic Institutions.  

My responsibilities are clearly outlined in my mandate letter, which directs me to “enhance the openness of government, including leading a review of the Access to Information Act to ensure that Canadians have easier access to their own personal information, that the Information Commissioner is empowered to order government information to be released and that the Act applies appropriately to the Prime Minister’s and Ministers’ Offices, as well as administrative institutions that support Parliament and the courts.”

Government information belongs to the people it serves and should be open by default. This principle resonated through the Speech from the Throne and Budget 2016 and continues to guide our actions as we shed more light on government.

We are fortunate to be living in a country where every citizen has the right to request access to government records, but we can never take this right for granted.

In 1983, Canada became one of the first countries to pass Access to Information legislation, but our world has changed since then, and it is no surprise that the Access to Information Act is now out of date. Today, information and data are produced, stored, and shared in ways we could have never imagined only 10 years ago. Email, social networks, and smart phones rule the day, and we need to modernize the legislation to reflect these realities.

On , I announced that the Government would pursue a two-phase approach to improving access to information. First, in legislation that will be tabled this winter, the Government will implement its commitments and consider other improvements identified through our consultations. Then, the first full and now-mandatory five-year review will begin no later than 2018.

To make early progress, we have already taken important steps: on , I issued an Interim Directive on the Administration of the Access to Information Act. It directs federal officials to take into account the purpose of the Act – strengthening the accountability of government to its citizens – when administering the Act; to waive all access to information fees apart from the $5 filing fee; and to release information in user-friendly formats (e.g. spreadsheets), whenever possible. The Interim Directive sends a strong message across federal institutions that government information belongs to the people it serves and should be open by default.

Our government values Canadians’ views on how best to move forward on our commitments, including improving access to information. As part of the first phase of our improvements, in and we consulted Canadians and stakeholders on how best to implement our initial proposals to revitalize access to information:

  • Making government data and information open by default, in formats that are modern and easy to use
  • Eliminating all fees, except for the initial $5 filing fee
  • When information cannot be released, providing requestors with a written explanation
  • Giving Government institutions and the Information Commissioner authority to decline to process requests or complaints that are frivolous or vexatious
  • Giving the Information Commissioner the power to order the release of government information
  • Ensuring that the Access to Information Act applies appropriately to the Prime Minister’s and Ministers’ Offices, as well as administrative institutions that support Parliament and the courts
  • Undertaking a legislative review of the Access to Information Act every five years
  • Strengthening performance reporting on the federal access to information program

This report summarizes the comments, ideas and suggestions on improving access to information submitted to the Government in the Revitalizing Access to Information consultations. I would like to thank all those who took the time to comment and submit ideas.

Our goal is to ensure that no future government allows the Access to Information Act to become as outdated and out of touch as it is today. Any changes must also respect important democratic values such as, the independence of the judiciary, the effectiveness and neutrality of the public service, national security, and the protection of personal information. We are committed to getting it done and getting it right.

I look forward to continuing to work with Canadians and stakeholders as we improve access to information.

Feedback received

Overview

In and , the Government of Canada held online consultations with Canadians on its proposals to revitalize access to information. Comments could be posted publicly online or submitted by email. The consultation website received over 11,000 visits; over 100 comments were posted to the site; and 21 organizations, academics, and individuals sent comments or detailed submissions by email. The comments posted online can still be viewed on the Revitalizing Access to Information consultations webpage. In addition, several submissions on revitalizing access to information were received as part of the parallel Third Biennial Plan to the Open Government Partnership 2016-18 online consultations. These submissions are also summarized in this report. All of the comments and submissions received are being considered in the Government’s work to develop a package for the first phase of reforms. They will also be considered in the range of changes examined during the second phase, that is, the full review beginning in 2018.

The majority of input received supported the Government of Canada’s proposals. Some comments recommended the Government go further than its proposals in certain areas; in particular, on fees, several respondents suggested eliminating fees altogether or supported the recommendations of the House of Commons Standing Committee to abolish the $5 application fee but consider fees for voluminous requests. On other proposals, respondents noted cautions: for example, with respect to the proposal to give government institutions and the Information Commissioner authority to decline to process requests or complaints that are frivolous and vexatious, some respondents voiced reservations that without appropriate oversight, this authority could be abused.

In addition to commenting on the Government’s specific proposals, some respondents made suggestions or comments on improving access to information more broadly. Respondents mentioned the need to reduce delays in processing requests and suggested ways to accomplish this. Other general suggestions included adding a general public interest provision that would override exemptions where an important public interest is at stake, as well as improving procedures for making requests, including better online options and improved communications between requests and Access to Information offices across government by establishing an access to information online portal.

Overall, we heard that Canadians want more access to government information and that information should be released in a timely manner and in easy to use formats. Many respondents voiced frustration with the current situation and were supportive of the Government’s plan to make improvements. The feedback on each of the Government’s proposals is summarized below.

Government proposals

Make government data and information open by default, in formats that are modern and easy to use

Background
Open by default

"Open by default" is a broad principle that means publicly releasing government data and information that is of value to Canadians, with information being withheld only for necessary privacy, confidentiality and security reasons.

The Directive on Open Government supports this principle and directs government institutions to release many types of data and information in open and reusable formats.

The Access to Information Act is also based on "the open by default" principle. It enables Canadians to access government data and information that has not been publicly released, subject only to limited and specific exceptions, such as national security, privacy and solicitor-client privilege.

Modern and easy to use formats

Previously, government institutions have sometimes released information to requestors in searchable and reusable formats when requested and when there were no privacy, confidentiality or security concerns. Requestors sometimes ask for the information in these formats so that they can electronically search, process and analyze the information.

Most often, information in response to an access to information request is released in paper format or in readable PDF format. This reflects both technological limitations and security considerations.

On the technology aspect, the software programs currently used by government institutions to process access to information requests rely on records being scanned into the software. The software then blacks out content on the scanned images to protect any information that has been withheld under the Act. The records are then given to the requestor in either PDF image or paper format. These formats prevent the black-out from being reversed to prevent privacy, confidentiality or security breaches.

Another consideration is the cost of providing records in the format asked for by the requestor, which at times can be very high, for example when records need to be converted into a new format.

These processes and considerations are consistent with Section 4(2.1) and Section 25 of the Access to Information Act and Subsection 8.1(1) of the Access to Information Regulations.

To be able to release documents in easier-to-use formats in all cases while protecting private, confidential or secure information, new processing software would need to be developed and adopted across the Government of Canada.

With that in mind, on the Government issued the Interim Directive on the Administration of the Access to Information Act. It enshrines the principle of "open by default" and directs government institutions to provide requestors with information in the format of their choice, including modern and easy to use formats, wherever feasible.

What We Heard

“Open by default” resonated with respondents and received the most comments of all the Government’s proposals. The majority of those commenting on this idea agreed with the Government’s proposal. Most respondents also agreed with the proposal to release more information in searchable, reusable formats wherever possible.

Respondents suggested that institutions should pro-actively disclose information that could be expected to be of value and interest to the public, such as records relating to high-profile events that were in the news. It was argued this would reduce the burden on Access to Information offices in departments and agencies and give Canadians timely access to information in the public interest.

It was noted by respondents that access to meaningful information is more valuable than access to mundane information and given that providing access has costs, it would be better to focus on releasing meaningful information rather than routine information.

Several respondents recognized that there are valid reasons why not all information can be released publicly, such as for privacy or security reasons. However, it was suggested that these terms need to be clearly defined if they are used to withhold information.

One respondent advocated for a system which would see certain types of government information released in predictable timeframes. The information could be released before the designated time, at the discretion of the Government. It was their view that no type of record should be closed in perpetuity, even information, such as advice from lawyers, which is covered by solicitor-client privilege. On the other hand, another respondent argued that given that the common law doctrine of solicitor-client privilege is a fundamental tenet of our judicial system, any change in the Act that would impose a time limit on this exemption would need to be carefully thought through.

Respondents were supportive of the Open Government portal, which provides access to posted government information at no cost, and allows requesters to search through summaries of completed Access to Information request and make a request for that package of records.

It was suggested by a number of respondents that when information is released to a requester, those records should be made available to the public online automatically and in an easily-searchable format. A respondent noted that this would reduce the burden on the system to reprocess requests and reduce environmental and financial costs of mailing documents to requesters.

Respondents recognized that the translation of the records into both Official Languages would be required under current legislation and suggested that when records are made available online as part of a proactive disclosure, the Official Languages Act should not apply. Documents could be provided in the language in which they were created and in both official languages only if they already existed. However, another respondent disagreed with this suggestion, emphasising the need to provide all documents in both official languages.

Several respondents noted the importance of ensuring that information is shared in an equitable manner across all socio-economic groups as well all with non-English speakers. Another respondent voiced concern about ensuring that information is made available in formats that are accessible to people with disabilities.

Several academic commentators noted the importance of accessing data in a timely manner and in an easy to use format for research purposes, explaining that timely access is important for researchers who rely on data for projects that need to be completed within a specific timelines. Receiving data in a format that allows for advanced analysis where possible means that the data can be used to its fullest potential. One respondent suggested that documents could be released in searchable PDF format, which would maintain the integrity of the document, but allow for the records to be searched for key words.

One respondent suggested that all releases should include a detailed table of contents of the records that are included in the release to make the release package clearer and ensure documents are not left out accidently.

“An effort could be made to create PDF-searchable documents…Through innovation and collaboration, creating an open by default culture and modern, easy to use formats is feasible. Let’s make Canada an example to other nations and lead the way in public information access.” – Jordan Tomblin

“Researchers and government, and the general public could save considerable time if data was immediately open access and formatted in more modern user friendly ways.” – Dalal Hanna

“Yes – open and easy! Let’s be leaders!” – Nicole

Eliminate all fees, except for the initial $5 filing fee

Background

The fees for making an access to information request to a federal institution have not been updated since the Access to Information Act was enacted in 1983. Under the Access to Information Act and the Access to Information Regulations, government institutions can charge requestors a $5 application fee to file a request.

As well, search and preparation and reproduction fees could be charged in certain circumstances:

Following a Federal Court of Canada decision, Canada (Information Commissioner) v. Canada (Attorney General), 2015, government institutions could no longer charge search and preparation fees for electronic records.

On , the Government issued the Interim Directive on the Administration of the Access to Information Act. It instructed all federal institutions to wave all access to information fees apart from the $5 filing fee.

In 2014-15, (under the previous rules), government institutions collected a total of $367,654 in fees from requestors:

  • $311,486 in application fees
  • $46,907 in search fees
  • $4,523 in reproduction fees
  • $1,875 in preparation fees
  • $1,666 in production fees for records kept in a machine readable format
  • $1,197 in programming fees for records kept in a machine readable format

The cost of processing the $5 application fee, if it is paid by cash or cheque, is between $51 and $55 per transaction. The cost to process a payment electronically on the Access to Information and Privacy Online Request pilot project is 50 cents.

The fees collected represent only a small fraction of the total costs of the federal access to information program. In 2014-15, federal institutions spent over $67 million in direct costs to administer the Access to Information Act. This is the cost of staff and business systems for processing access to information requests in Access to Information and Privacy Offices; it does not include costs associated with business areas searching for and reviewing documents.

What We Heard

There were many comments on the issue of fees. Many respondents recommended eliminating all fees on the basis that Canadians have a right to government information. It was noted that fees could be prohibitive for some individuals, creating an unequal access to government information.

There was some support for the recommendations of the House of Commons Standing Committee on Access to Information, Privacy and Ethics (ETHI). In its report, Review of the Access to Information Act, which was tabled on (near the end of the Revitalizing Access to Information consultations), ETHI recommended that the $5 fee be abolished and that consideration be given to reinstating fees for voluminous requests and requests that require lengthy research.

Several respondents expressed concern that eliminating all fees would lead to taxpayers having to pay for public servants to search for and review documents for requests that are too broad or too complex. Respondents were concerned about the potential impact on the volume of requests and the workload for institutions, which could lead to delays in processing other requests. Other respondents thought that providing institutions with the authority to decline to process requests that are frivolous or vexatious would be a sufficient remedy to the problem.

Several respondents expressed concern that eliminating fees may lead to a loss of resources for access to information functions within Government. Respondents noted the high cost of processing access requests and the need to ensure that government resources are being used efficiently. Some felt that the elimination of fees would be problematic if it meant an increase in large requests. Several respondents were concerned that the lack of revenue from fees could be used as a pretext for delays in responding to requests. It was noted that sufficient resources are needed at the departmental or agency level to ensure timely and complete processing of requests.

“I believe that the fees should be kept in place in order to minimize the amount of malicious requests that are submitted to departments.” – Gary Smith

“The application fee should be waived because access to information is recognized internationally as a human right. Canada will continue to be a place where people who can’t afford the fee are denied this right. Abolish the application fee like other countries have done.” – Mark Weiler

“[Eliminating all fees for processing information requests] was an important step forward, but we suggest that the $5 filing fee also be eliminated.” – Centre for Law and Democracy

When information cannot be released, provide requestors with a written explanation

Background

Currently, government institutions are required to inform requestors of the specific exemptions or exclusions applied under the Access to Information Act in responding to a request. They do not have to describe the exception applied when doing so could reveal the very information that must be protected.

At the moment, institutions are not required to provide a detailed explanation as to why a certain section of the Act was applied.

Over 30,000 exemptions and exclusions were applied in the more than 67,000 requests processed by government institutions in 2014-15. The most-often applied exemptions were:

Although providing more explanation may take additional time and effort, requestors may gain a better understanding of the Act’s careful balancing between access and the protection of privacy, confidentiality and security.

British Columbia, Alberta and Ontario specify the section of their legislation under which access was refused and explain why the section was applied.

Internationally, the governments of the United Kingdom, Australia and New Zealand also specify the section of their legislation under which access was refused and provide detailed explanations as to why the section was applied.

What We Heard

Relatively few comments were received on this proposal and there were few detailed suggestions. Of those who did comment, many respondents agreed with the Government’s proposal, however, others were skeptical that it would add value. One respondent, who agreed with this proposal, mentioned keeping written explanations concise and to the point, while another respondent questioned whether this would be a “token reform”. Similarly, one respondent noted that written explanations might not always be necessary as the meaning of most exceptions were generally self-evident, and argued that the operational costs are high and therefore reasons for withholding information should only be provided upon request.

“The Institute believes this is a step in the right direction” - Professional Institute of the Public Service of Canada

“If the request is rejected, then the reason for that rejection is known. Write it down and send it out.” – John O’Brien

“Detailed written explanations for each exemption applied is not always necessary. Some exemptions are very clear just by being applied” – Peter Meyler

Give Government institutions and the Information Commissioner authority to decline to process requests or complaints that are frivolous or vexatious

Background

Currently under the Access to Information Act, there are no limits on the number of requests that an individual can submit, nor on how broad a request can be.

There are examples of individuals making hundreds of requests in a year to the same operational area of a government institution, or requesting all emails of a certain employee for a number of years.

Open government efforts seem unlikely to reduce the impact of requests of this nature.

Multiple requests from the same requestor and very broad requests can (whether intentionally or not) interfere with an institution’s ability to do its other work. This can have a negative impact on an institution’s resources and its ability to respond to other requests.

In turn, over-demand can have a negative impact on the right of access of other requestors. It can also place a strain on public resources: in 2014-15, the Government of Canada received 68,193 access to information requests and spent over $67 million in direct costs to administer the Access to Information Act. This does not include project costs related to business units sending and retrieving documents in response to a request.

These types of requests (sometimes called frivolous and vexatious requests) may not be consistent with the Act’s purpose of strengthening the accountability of government to its citizens and furthering public debate in an open and democratic society.

Jurisdictions that grant institutions the right to decline to process "frivolous and vexatious" requests generally ensure careful oversight to ensure the authority is properly exercised.

The legislation of British Columbia, Alberta, New Brunswick, Prince Edward Island, and Newfoundland and Labrador allow government institutions to decline to process "frivolous and vexatious" requests, subject to the prior approval of their provincial Information Commissioner.

In Manitoba and Ontario, institutions can directly decline to process such requests, with a right of appeal to their Commissioners.

What We Heard

Many respondents commented on the Government’s proposal that government institutions and the Information Commissioner should have the authority to decline to process requests and complaints that are frivolous and vexatious. A majority agreed with it, but some disagreed, and some were neutral. Most comments focused on whether government institutions should have the power to decline to process frivolous and vexatious requests.

Many respondents saw the benefit to the access to information system as a whole of allowing for the Government to refuse to process “frivolous and vexatious” requests, noting that this would allow for timelier processing of legitimate requests. Several respondents noted that some requesters submit requests for information that are far too broad and refuse to work with departments to narrow down their requests to a manageable scope. This contributes to an increase in work for Access to Information offices, which are often already suffering from a lack of resources leading to delays in processing requests.

The major concern with this proposal cited by respondents was the potential for abuse by institutions. There was a suggestion that “frivolous and vexatious” would need to be clearly defined in order to avoid misapplication and prevent institutions from using this as a way of withholding information. One respondent was skeptical of the need for “yet more ways for the Government to withhold information.”

It was noted that requesters should be given the opportunity to amend their request before they were denied processing for being deemed frivolous or vexatious.

One respondent proposed that requests that are deemed frivolous and vexatious should be posted online so that the public would understand what is considered frivolous and vexatious and as a check on the abuse of the authority. Another respondent argued that the Government should have to obtain permission from the Information Commissioner before they could dismiss a request on these grounds.

“The ability to deny processing of frivolous requests is a very important part of the overall strategy. Without this ability, public agents will not be able to keep up with demand on the vast majority of requests.” – Robert Lytle

“We support this proposal, based on the legitimate need for public authorities to be able to avoid expending potentially significant resources on these sorts of requests, subject to the caveat that the zone of exclusion needs to be defined very precisely and narrowly, among other things so that it cannot be abused to refuse large requests, which is an entirely different matter.” – Centre for Law and Democracy 

Give the Information Commissioner the power to order the release of government information

Background

The Information Commissioner of Canada does not currently have the power to order the release of government information. Under the Access to Information Act, the Information Commissioner plays the role of an ombudsperson, with powers to investigate complaints and make recommendations to government institutions.

If an institution does not follow the Commissioner’s recommendation, the Commissioner can, with the consent of the requestor, apply to the Federal Court of Canada for review of the institution’s refusal to disclose requested information.

The Federal Court can order the information to be released.

Commissioners in British Columbia, Alberta, Ontario, Prince Edward Island and Quebec have the power to order the release of government information.

Internationally, some Westminster-style parliamentary democracies (such as Canada) use an ombudsperson model; others use an order-making model.

Some jurisdictions have combined order-making powers with the principle of ministerial responsibility. They do this by providing for a ministerial or Cabinet override of a Commissioner’s order to release government information. In other models, the Government can ask for review by a court if it disagrees with a Commissioner’s order to release government information.

What We Heard

Many respondents commented on this proposal and were in strong agreement that the Information Commissioner should have the power to order the release of information. Those who supported the proposal wanted the Commissioner to be able to fully enforce the Access to Information Act. It was suggested this would allow for a faster and more productive resolution of complaints and unburden the courts.

Some commenters who supported order-making power specifically opposed the idea of a ministerial override, arguing that review by the courts would be a more appropriate way for the government to proceed if it disagreed with an order made by the Commissioner. The court could decide whether to uphold the order or not. As a specific example, it was noted that a ministerial override could put ministers in a conflict with the Crown’s fiduciary obligation to act in the best interest of First Nations.

There were two respondents who raised concerns about the Government’s proposal to give the Information Commissioner order-making power. One respondent argued that to ensure that the privacy of personal information is not compromised, the role and authorities of the Privacy Commissioner should be considered at the same time as any changes are considered to the role and authorities of the Information Commissioner. Another respondent was against the proposal arguing that it would turn the position of Information Commissioner into a quasi-judicial role, thereby diminishing the role of Parliament in providing guidance and direction to the Information Commissioner. It was also noted that this could result in delays due to greater bureaucratization of the complaint process.

[Translation] “I agree completely with this recommendation. What is the purpose of the role if the position has no power?” – Annie

“Without order making powers, the Commissioner is unable to fully enforce the Access to Information Act.” – Kathleen Martin

“This would be a positive step, one which would ensure that Canada’s access to information regime is meeting rigorous standards of openness and fairness” - Assembly of First Nations

“This would lead to an even greater ‘judiciarisation’ and ‘bureaucratization’ of the OIC complaint mechanism potentially forcing ATI users to experience even longer delays than is currently the case.” – Michael Drapeau

Ensure that the Access to Information Act applies appropriately to the Prime Minister’s and Ministers’ Offices, as well as administrative institutions that support Parliament and the courts

Background

Currently, the Access to Information Act applies to about 240 institutions, including government departments and agencies and Crown Corporations and their wholly-owned subsidiaries.

The Prime Minister’s Office, Ministers’ Offices, and administrative bodies that support Parliament and the courts are not presently covered by the Act. 

The Prime Minister’s and Ministers’ Offices

In only certain instances can Canadians use the Act to access information in Ministers’ Offices. This was confirmed by the Supreme Court of Canada in Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011. It ruled that information in a Minister’s Office can be accessed if: (1) it relates to a departmental matter; and (2) a senior official in the department could obtain a copy of the information upon request. 

Open and Accountable Government, a guide to the roles and responsibilities of Ministers, explains that records kept in the offices of Ministers comprise four categories: Cabinet documents, institutional records, ministerial records, and personal and political records.

A right of access to information in the Prime Minister’s and Ministers’ offices would need to be accompanied by appropriate protections. This includes protections for Cabinet documents in line with Section 69 of the Access to Information Act as well as records not related to a Minister’s departmental responsibilities, including political matters, parliamentary activities or a Minister’s personal life.

Legislation in Alberta, Manitoba and New Brunswick explicitly covers information contained in Minister’s offices that relate to departmental matters. The same applies in Australia and New Zealand.

Administrative bodies that support Parliament

The Act does not currently cover administrative bodies that support Parliament (such as the Board of Internal Economy, the Library of Parliament, the Conflict of Interest and Ethics Commissioner, and the Senate Ethics Commissioner).

A right of access to information held by administrative bodies that support Parliament would need to protect parliamentary privilege, which is protected by the Constitution. Additional resources would also be required.

Administrative bodies that support the courts

The Access to Information Act also does not currently apply to administrative bodies that support the courts (such as the Office of the Registrar of the Supreme Court of Canada, the Courts Administration Service, the Office of the Federal Commissioner for Judicial Affairs, and the Canadian Judicial Council).

The constitutional principle of judicial independence must be paramount when considering how the Act might apply appropriately to those bodies. One aspect of judicial independence is that courts must control the administrative decisions that bear directly and immediately on the exercise of the judicial function.

What We Heard

All respondents who commented on this issue agreed with the Government’s proposal. However, a few concerns were raised with how the proposal would be implemented and several respondents wanted the Government to go further than proposed.

While most respondents were in favour of expanding the Act to Ministers’ Offices and the Prime Minister’s Office, it was noted that the Act should not apply to political matters or constituency offices. The Ontario model was offered as an example. One respondent noted that there would be a need for precise definitions for terms such as “confidential” information or “appropriate protections”.

Some respondents voiced concern over broader expansion to other branches of government. They noted that applying the Access to Information Act to administrative bodies that support Parliament and the courts could raise complex constitutional questions that would require careful consideration.

On the other hand, there were many respondents who wanted the Act to be expanded further than what the Government was proposing. Some respondents recommended extending the Act all institutions that receive a certain proportion or amount of funding from the Government or that perform a public function. Others expressed support for extending the Act to institutions such as the Senate, the House of Commons, and the Governor General.

“The Prime Minister and Minister’s office should be covered by the legislation. They are government offices, not political or constituency offices.” – Peter Meyler

“These changes… are overdue and should be implemented immediately” – Centre for Law and Democracy

“We support that all government institutions, and now also Ministerial records (that are not personal or political – and this may need better definition) will be subject to the Act.” – Canadian Association of Research Libraries.

Undertake a legislative review of the Access to Information Act every five years

Background

In 2009, the House of Commons Standing Committee on Access to Information, Privacy and Ethics (ETHI) recommended that Parliament review the Access to Information Act every five years.

Access to information legislation in Quebec and Newfoundland and Labrador provides for five-year reviews. British Columbia’s legislation provides for a six year review.

Different jurisdictions review their access to information legislation in different ways. Some have a Parliamentary Committee review the legislation while others use an independent committee. Committees may undertake a comprehensive review of the legislation or examine specific challenges that have arisen since the last review.

The Government has committed to beginning the first full five-year review in 2018.

What We Heard

This proposal was supported by all the respondents who commented on it. Respondents noted that scheduled reviews would provide an opportunity to assess how well recently amended or added measures were performing. A concern was raised that legislative reviews should not be used by future governments as a means to roll back the scope and intent of the Act.

“I strongly endorse a full, mandatory five-year review of the Act…These should be informed by international best practices and by the experiences of other jurisdictions within Canada.” – James McKinney

Strengthen performance reporting on the federal access to information program

Background

The Government of Canada is committed to rigorous public reporting on the performance of key government services, including the access to information program.

Since 1983, the President of the Treasury Board has collected data from government institutions annually and reported on key performance metrics in an annual bulletin on statistics on the Access to Information Act and Privacy Act. The requirement for the President to report is set out in section 70(1)(c.1) of the Access to Information Act.

The annual bulletin presents metrics such as:

  • Number of requests received and responded to
  • Time required to respond
  • Pages processed and disclosed
  • Reasons for time extensions
  • Fees collected and costs of operations

This data is also available on the Access to Information webpage.

The Government could focus on key statistics in measuring the performance of the program. These could be presented in a "dashboard" format that would allow Canadians to track how well the program is meeting its objective of providing timely access to government information.

What We Heard

There were relatively few comments on this proposal, but all those who commented agreed with it. Several respondents wanted to see performance metrics that would focus on timeliness and the number of requests processed. It was noted that good performance reporting helps shine a light on problem areas and reinforces internal accountability.

The use of metrics presented in a dashboard was supported. It was recommended that performance metrics should be broken down by institution. One respondent suggested setting specific performance targets to improve timeliness.

“The introduction of a statistical approach to measuring the performance of the program is an excellent idea” – Professional Institute of the Public Service of Canada

Other suggestions and comments

In addition to the comments on the eight Government proposals described above, we received feedback on other ways to improve access to information. These comments focused on a number of key areas.

  • Reducing delays in processing access to information requests,
  • Resource constraints for either the Office of the Information Commissioner or Access to Information offices,
  • Including a Public Interest Override,
  • Improving the Access to Information and Privacy Online Request pilot project online portal or creating a Government of Canada information management strategy to streamline for public use,
  • Changes to exemptions and exclusions, and
  • Implications for the Government’s relationship with Indigenous peoples.

Reducing delays in processing Access to Information requests

Delays in processing requests are clearly a concern for Canadians. Comments illustrated personal experiences with long delays in receiving responses to requests, with several suggestions on ways to reduce delays. These included introducing limits on the length of extensions institutions could take and imposing penalties for not meeting timelines. Respondents also saw capacity limitations as a cause for delays. It was noted that many Access to Information offices are already swamped with requests and that dealing with vexatious and frivolous requests would go a long way to improving wait times for legitimate requests.

Resource constraints

Resource constraints for the Office of the Information Commissioner and departmental Access to Information offices were mentioned several times by respondents as an area of concern. Respondents expressed concerns over availability of resources and the impact this has on the ability of departments and agencies to process requests in a timely manner. Some recommended increasing resources to boost capacity.

Public Interest Override

A public interest override clause was suggested by a number of respondents. Such a provision would allow information that would otherwise be subject to an exemption (consultations between officials, for example) to be released if it is deemed to be of compelling public interest, such as for environmental, health, or public safety reasons.

Good information management

Several respondents noted that there is a link between information management and access to information and that good information management across government can help speed up processing of access requests. For example, it was suggested that better indexing of records would help with timely access to information, as would helping Canadians better understand what information the government holds.

Improved service delivery

An online portal to receive all Access to Information requests was suggested. Several respondents expressed support for the ability to submit requests online via a web platform as well as the desire for improved communication with Access to Information offices. One respondent who was aware of the existing Access to Information and Privacy Online Request pilot project suggested that it could be improved by adding a complaints feature. However, one submission laid out concerns that any move to centralize access to information processes could undermine the ability of First Nations to obtain timely and fulsome access to federal records and could dehumanize the process.

Exclusions and exemptions

There were many comments and suggested changes to specific exclusions and exemptions in the Act. Several suggestions were made that certain types of exclusions under the Act should be switched to exemptions, which would be subject to a harm test and a public interest override where necessary. Others were concerned with how broadly certain exemptions could be interpreted, such as s.21 (1) advice and recommendations.

Indigenous peoples

The Government received comments and suggestions on the connection between improving access to information and the Government’s relationship with Indigenous peoples. Generally, submissions related to this topic were supportive of improving the Act. It was noted that transparency and open access to information are important to the nation-to-nation relationship. It was suggested that enhancing access to information needs to be mindful of the Truth and Reconciliation Commission’s recommendations, the United Nations Declaration on the Rights of Indigenous Peoples, and Government of Canada’s fiduciary obligations to First Nations.

Specific suggestions were made to broaden the protections in the Access to Information Act for information provided by Indigenous groups, as well as specific protections for information related to claims, or of a social, political, cultural, spiritual, environmental, and traditional nature.

Other comments and suggestions

A range of other comments and suggestions were received, including:

  • Some respondents disagreed with the Government’s two phase approach to improving access to information, expressing that this approach would undermine the momentum to reform access to information.
  • Some respondents expressed concern over the consistent application of exemptions.
  • Some respondents commented on the need for greater public education about the Act and how to access government information. Some suggested that this be something the Government should do proactively, while others suggested that this should be a responsibility of the Information Commissioner.

Conclusion

The Government of Canada would like to thank the individuals and organizations who took the time to provide input on revitalizing access to information. Your feedback will help the Government better achieve its commitments and modernize this program.

In early 2017, the Government will table the first phase of legislative changes to the Access to Information Act. This will be followed by a full review to begin in 2018.

Annex 1: List of detailed submissions

A number of civil society partners, academics, and individuals took the time to submit detailed submissions. Submissions published on the consultation webpage are listed below with links.

ATI Revitalization Submission
Canadian Association of Research Libraries (CARL)

Submission on Revitalizing Access to Information
Privacy Commissioner of Canada

ATI reform brief.pdf
Directors of Claims Research Units from Across Canada

Submission to Revitalize the ATI Act.pdf
Yvon Gauthier

Evidence for Democracy – Response to access to information revitalization.pdf
Evidence for Democracy

CHA Memo.pdf
Canadian Historical Association

Anonymous Detailed Submission.pdf
Anonymous Individual

S. Tromp submission to TBS review of ATIA.pdf
Stanley Tromp

Canada.RTI.Jun16.pdf
Centre for Law and Democracy; endorsed by Lawyers’ Rights Watch Canada and the BC Freedom of Information and Privacy Association

ATI Consultation Submission.pdf
Canadian Journalists for Free Expression, Centre For Free Expression, Canadian Association of Journalists and Newspapers Canada

Ernst Detailed Proposal.pdf
Fred Joseph Ernst

“Freedom” of Information in Canada: Implications for Historical Research.pdf
Dominique Clément

Note: This submission was originally published as an article in the journal Labour/ Le Travail in 2015

Proposal_for_revitalizing_access_to_information_legislation.pdf
Michel Drapeau, Professor, University of Ottawa, Faculty of Common Law

Revitalize access to information – Metis Specific.pdf
John Delbert Hamilton
Citizen, Métis Nation of Ontario

Pipsc_submission_improvements_to_the_access_to_information_act_2016-eng.pdf
The Professional Institute of the Public Service of Canada

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