Vincent Gogolek

August 12, 2021 

Treasury Board Consultation on ATIA reform

BY EMAIL: reviewingatia.revisionlai@tbs-sct.gc.ca

Re:	Reform of the Access to Information Act 
I am writing to you in response to the public consultation closing Augst 15. 
I have a long and ongoing interest in information and privacy issues, and have taken part in a number of consultations and parliamentary hearings as then-Executive Director of the BC Freedom of Information and Privacy Association (FIPA).
Several of the recommendations FIPA made to the Access to Information, Ethics and Privacy committee (ETHI) in 2015 were reflected in its 2016 report on reforming the ATIA, but many of those recommendations have been left on the shelf by government. Sadly, this is not the first time the committee’s recommendations for improvements to information and privacy laws have been ignored or rejected by government.
A number of worthwhile and very detailed submissions have already been made in this process, so I will not duplicate their work, but amplify some of the points they have made.
A change in culture is also required. When estimated time to complete an ATIA request is measured in years, when records either disappear or are never created, and when officials seek to prevent requesters from exercising their rights on the flimsiest of pretexts, these are signs that the problem is not just with laws and regulations, but with policies and with the basic culture of the institutions subject to the Act.
That has to change.
Duty To Document in ATIA
The information commissioners of all the jurisdictions in this country have repeatedly urged the creation of a legal duty to document in the ATIA and equivalent provincial legislation. This duty would be reviewable by the commissioners, and there would be penalties for violation of this legal obligation to keep proper records. 
The push for a legislative solution came after a number of disturbing incidents across this country where records which should have been created or preserved were either destroyed or were never created.
As other submissions have pointed out, the duty to document has been implemented in other jurisdictions in the Commonwealth, and there is no reason it cannot be done here. 
Pushback from government against an enforceable duty to document appears to be based on a feeling that such an obligation would disrupt the way business is currently conducted. If that is in fact how business is being conducted, it is perhaps the strongest evidence in favour of a duty to document.

The waste of taxpayers’ money in charging $5 application fee
At present, the federal government continues to charge requesters an application fee of $5 to exercise of their right to access to information held by the government. This comes after the government eliminated the other fees associated with access requests.
When a requester pays this fee with a cheque, the cost of processing that cheque is more than $50. Former Commissioner Marleau pointed this out in his 2009 testimony to the ETHI committee, and that number apparently has remained the same to the present day. In contrast, it costs $0.50 to process these $5 fees when received electronically.
Despite the absurdity of spending $50 of government funds to collect $5 from information requesters, it appears that Treasury Board has no idea how much the total cost has been to cash all those $5 cheques. The stated reason for this is that although the government’s statistical report includes salaries, overtime, goods and services, contracts and other expenses specific to ATIP offices, it does not breakdown costs related to processing fees.
There is a solution to this ridiculous situation which would save taxpayers money and remove another barrier for requesters – waive the application fee.
A government-wide waiver of demanding or collecting these fees would save these wasteful processing costs. It requires twelve electronic payments to offset the cost of processing a single cheque, so if even ten percent of ATIA fees are received in cheque form the government would be losing money collecting these fees from requesters.
The Information Commissioner of Canada already waives the fees for ATIA requests to her office, and this policy would not require a legislative change (although that would be the preferred route).
The long-time excuse for keeping the $5 application fee was that it was supposed to prevent a flood of vexatious requests. However, with the addition of s.6.1, that even that rationale has now fallen by the wayside. 
Cabinet Confidences Exclusion
As has been noted by the current and former Information Commissioners, the use of this exclusion by government institutions has grown by leaps and bounds since 2013.
There has been no explanation for this increase from the government, however the absence of any review of these claims by either the Commissioner or the courts would obviously be a temptation to use this exclusion to prevent the release of information the government prefers to keep from the public.
According to the figures released by the Information Commissioner, these claims have gone up almost 50 percent (from 3,122 in 2014-15 to 4,660 in 2018-19) in the last five years.
In her 2014-15 annual report, former Information Commissioner Suzanne Legault found that “Institutions invoked section 69 more than 3,100 times in 2013–2014. This is a 49-percent increase from 2012–2013, which followed a 15-percent jump the previous year.”
As Commissioner Maynard points out, this results in two major problems for anyone seeking to exercise their right to access.
First, it “shields Cabinet confidences from the Commissioner’s independent review, depriving requesters of a level of review” and second, it “leads requesters to limit the records they wish to obtain—indeed, requesters frequently stipulate, either in their access request or after being asked to do so by the institution, that they are not seeking information that may be considered a Cabinet confidence.”
As a result, “it is impossible for me to determine objectively and independently if the records indeed contain Cabinet confidences.”
The review of claims by institutions that records are cabinet confidences should be done by the Office of the Information Commissioner. The workshop on exemptions and exclusions conducted by TBS as part of this review included questions suggesting that perhaps the Clerk of the Privy Council or the Federal Court should undertake this task. However, the summary of that workshop prepared by TBS shows that there was no support for anyone other than the Commissioner doing this work, which is as it should be.
Delays
There is a problem with how long it takes to receive information requested under ATIA.
Quite apart from the consistent ongoing failure to meet the basic 30 deadline set out in the law, there have been a number of cases where the amount of additional time being estimated by the institution runs into years.
The most outrageous recent example is the response to a request for a week’s worth of email and texts of a single bureaucrat. The requester was told to expect a response in five years, allegedly because their request involves a large number of records, the original time limit would unduly interfere with agency operations and another government institution must be consulted.
Responding to this request should be a matter of minutes or hours, but apparently the government would rather appear ridiculous than provide the requested information in anything resembling the time limits set out in law. Sadly, this is but one example of a culture that sees this as a normal and acceptable state of affairs.
Conclusion
I look forward to the release of the report you are required to produce under s.93 of the Act as a result of this review. 
Please feel free to contact me if you have any questions or require any additional information on anything in this submission.
Sincerely,

Vincent Gogolek