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

Background

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

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:

• $2.50 per person per quarter hour for every hour after the first five hours that are spent in search and preparation for non-computerized records (section 11(2) of the Act, section 7(2) of the Regulations)
• between $0.20 and $25 for duplication, including photocopying, microfiche duplication, or magnetic tape-to-tape duplication (section 11(1)(b) of the Act, section 7(1)(b) of the Regulations)
• between $0.05 and $2.50 for producing records in alternative formats such as braille, large print, or audiocassette for assisting with sensory disabilities (section 11(1)(c) of the Act, section 7(1)(c) of the Regulations)
• $5 per person per quarter hour and $16.50 per minute of central processing can be charged for producing "machine-readable" records (section 11(3) of the Act, section 7(3) of the Regulations)

Following a March 2015 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 May 5, 2016, 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 June 16, 2016 (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

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:

• section 19(1) – personal information
• section 15(1) – international affairs and defence
• section 21(1) – advice and recommendations.

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

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 

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

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. 

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.

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

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