Submission to the Treasury Board of Canada Secretariat
Regarding the Review of the Access to Information Process

The Access to Information Act (the Act) is in need of a major overhaul and requires significant modifications in order to make the process of obtaining government information both effective and efficient.  Furthermore, additional measures need to be put in place to ensure that ministerial mandates and government policies are acted upon by the relevant departments.

The current government nominally has an open-data policy  which states the benefits of the programme as: support for innovation, leveraging public sector information to develop consumer and commercial products, support for research, supporting informed decisions for consumers, 
proactive disclosure to reduce the amount of access to information requests, and increasing government accountability.

All of these desired outcomes should be exemplified in the use of motor-vehicle crash test data that are obtained by Transport Canada for the express purposes of ensuring compliance with the motor vehicle safety standards and as in-house research, both of which are intended to promote public safety.  It is particularly clear that such data can additionally be utilized by non-governmental researchers and organizations to conduct supplementary research, identify opportunities for enhancements to motor vehicle safety systems, develop consumer awareness programmes, and validate the results obtained from the crash tests performed.

It is also clear that data obtained from such crash tests, that are based on vehicles purchased by the department, instrumented and tested at a facility owned by the government, using personnel specifically contracted to the department, in programmes defined and managed by departmental personnel, all of which are undertaken wholly at public expense, should be freely and fully available in any meaningful open-data system.  This is the case in many countries, notably the United States which essentially shares a common vehicle fleet with Canada and, therefore, this ought to be the situation in this country.

Furthermore, Transport Canada, in common with a number of other departments has a scientific integrity policy  that, if applied as intended, would require departmental personnel to: "...make sure that Transport Canada's research and scientific information is made available to the public in a timely way, in keeping with the Government of Canada's Directive on Open Government."

Notwithstanding the above-noted, highly-laudable principles, actual experience in attempting to obtain motor vehicle crash test data has ranged from the provision of immediately-available downloadable data files in voluntary disclosures, through to either partial release of data, or complete denial of all requested information subject to ATIP requests.

In particular, up until calendar year 2006, complete motor vehicle crash test data, including full reports, digital photographs, digital videos, and tabular numerical data from the laboratory instrumentation, were shared with the US Department of Transportation and are posted as downloadable, electronic files on a website maintained by the National Highway Traffic Safety Administration. 

In contrast, the following case studies exemplify mixed experiences in attempts to obtain data for crash tests conducted by the department post-2006, ranging from the full release of data, to the withholding of certain data elements, through to complete refusal to release any relevant information.

Case Study No. 1  

A request to Transport Canada for post-2006 crash tests conducted on a specific make and model of vehicle was fulfilled through a voluntary disclosure of the complete set of relevant data that were made available as electronic files.

It should be noted that, in this instance, test reports, digital photographs, digital videos, and tabular numerical data were all provided with regard to the requested crash tests. 

Case Study No. 2

A subsequent request for crash tests involving a specific piece of instrumentation that had been recently acquired was referred to ATIP for reasons that are not apparent.  The initial response to the associated request was that the relevant crash tests could not be identified without extraordinary efforts.  The rationale provided was that individual files had to be opened, reviewed page by page for relevancy, data extracted, and then copied to supplementary files.  

Clearly this was nonsensical since the programme manager would have been well aware of which tests had been conducted with the specified, unique instrumentation.  Furthermore, the files are electronic and electronic search techniques could readily be applied to identify the relevant subset of crash tests.  And, FTP transfer had been used previously to provide access to all of the relevant files for a similar crash test series without any secondary processing.

In order to at least obtain some data, the initial request was modified to the provision of all of the electronic files relating to a single crash test.  An attempt was then made by the department to subvert even this simple request by suggesting that data for a crash test that did not meet the original criteria should be provided.  Eventually, some of the information requested (reports, digital photographs, and digital videos) were provided on a single CD-ROM.  However, on reviewing the data provided, it was evident that the tabular numerical data, arguably the most important portion of the information requested, had been withheld.

A subsequent complaint to the Office of the Information Commissioner (OIC) eventually resulted in the provision of additional data, comprising some crash test reports in PDF format, and some tabular numerical data in the form of Excel spreadsheets.  However, on close review of these data, it was evident that there were mismatches between the PDF and XLS files in that the reports and the numerical data related to different crash tests.

After yet another complaint and a further lengthy waiting period another dataset was provided by Transport Canada; however it was found that approximately 99% of these data were exactly the same as the mismatched data series provided earlier!

This request for data, and the associated complaint process, have now been underway for several years and have yet to be resolved.

Case Study No. 3

A subsequent request for the complete electronic records relating to a single, specific crash test was initially subjected to a time extension, nominally for consultation with other departments.  The request was eventually denied in total on the basis of a section of the Act relating to third-party concerns that was not actually an exclusion.  

When this fallacious position was pointed out, a different sub-section of the Act involving third-party considerations was applied, despite such third-party considerations not being applicable to product testing.  The latter limitation is clearly the case for crash testing of production motor vehicles that are offered for sale to the Canadian public.  A complaint to OIC on this specific ATIP request has yet to be investigated and resolved.

Case Study No. 4

Thirty days (the statutory limit) after a request for data relating to a single crash test was made, Transport Canada imposed a further 195 day extension on the process.  A complaint to OIC that this time extension was not justifiable was eventually dismissed on the basis that a response was provided within the claimed time extension such that "...further investigation was 
unnecessary" and with the stated result that the "...complaint is resolved."

This action entirely missed the point of the complaint.  It was not that the department did or did not meet the requirements of a time extension; it was that the extension itself should not have been imposed.        

Discussion

The department in question does not comply with its minister's mandate to adopt the government's open-data policy, nor its own scientific integrity policy, with regard to making motor vehicle crash test data available by default.  Furthermore, arbitrary decisions are made in responding to requests for these data.  These range from full disclosure to total non-disclosure.  Clearly, these responses have been illogical, inconsistent, and unjustifiable, and the departmental conduct in failing to meet its own policies unacceptable.

Referring requests for motor vehicle crash test data to ATIP is an abuse of process.  The current policies of both the government and the department require the data to be available.  These data have been published in full in prior years, and have been released in full voluntarily.  There can be no justification for requiring similar data requests to go through the ATIP process.

Requiring time extensions to handle such ATIP requests, suggesting that relevant cases cannot be readily identified, and that extraordinary effort is required to compile and transfer the requested data, are completely unjustified.  The data are all electronic and so can be retrieved and copied without any undue delay.  Indeed, an ATIP request, separate from those noted above, identified a voluntary release of similar data that was completed for another party, using FTP, within 24 hours of the request being received by the Transport Canada!
          
Finally, exempting all or part of motor vehicle crash test records is completely unjustifiable given that similar records are currently available, other records have been made available in the past without any such restrictions, and the records impact directly on the safety of the Canadian public.

Conclusions

1.  The Act needs to include provisions requiring departments to comply with the policies relating to open data.  This provision alone would substantially reduce the workload of ATIP and OIC personnel as relevant data would be available through non-ATIP channels.

2.  The personnel in the Office of the Information Commissioner need to be augmented with investigators who are technical specialists, having the capability to review and adjudicate ATIP complaints relating to scientific and engineering data.

3.  In the same way that a time limit is imposed on a complainant to submit a complaint to OIC, an associated time limit should be imposed on OIC to provide a response.  In the event that an extension to the initial response deadline is required then the OIC investigator should be required to provide regular, detailed progress reports to the complainant.

4.  The Act should be clarified to state that any product testing conducted at public expense, whether it be for the purposes of either compliance or research, should be made available to the public.  It is only be such means that the scientific rigour of the test procedures can be verified and maintained; the testing protocols enhanced; and the data leveraged through supplementary research.  Furthermore, in the case of motor vehicle crash test data, this is an issue of public safety.  The data can be used by non-government institutions and researchers to monitor various aspects of motor vehicle safety and, in particular, to develop enhanced safety systems.  Clearly this will only be possible if the data are made readily available.

5.  OIC should not be allowed to dismiss complaints that time extensions are unjustified simply on the basis that responses, of whatever nature, were made within the extension period.   

Respectfully submitted,

Alan German, BSc PhD MInstP CPhys
Research Scientist
roadsafetyresearch.ca