Health Canada Access to Information Act Annual Report 2016-2017

Table of Contents

• Introduction
  • I. Access to Information Act
  • II. About Health Canada
• Access to Information Infrastructure
  • I. The Access to Information and Privacy Operations Division
  • II. Reading Room
• Delegation of Authority
• Requests under the Access to Information Act - Statistical Figures, Interpretation and Explanation
  • I. Statistical Report
  • II. Number of Access Requests and Case Load
  • III. Disposition of Requests Completed
  • IV. Exemptions Invoked
  • V. Exclusions Cited
  • VI. Completion Time
  • VII. Extensions
  • VIII. Translations
  • IX. Format of Information Released
  • X. Fees
  • XI. Costs
• Training and Awareness
• Complaints and Court Applications for Reviews
  • I. Complaints to the Information Commissioner
  • II. Types of Complaints and their Disposition Completed in 2016-2017
  • III. Applications/Appeals Submitted to the Federal Court / Federal Court of Appeal
  • IV. Responses to Recommendations raised by other Agents of Parliament
• Policies, Guidelines, Procedures and Initiatives
• Summary of Key Issues and Actions Taken on Complaints or Audits
• Monitoring Compliance
• Appendix A: Access to Information Act and Privacy Act - Delegation Order
• Appendix B: Statistical Report on the Access to Information Act

Introduction

I. Access to Information Act

The Access to Information Act (the Act) gives the Canadian public a right to access information contained in federal government records, subject to certain specific and limited exceptions.

The Act requires the head of every federal government institution to submit an annual report to Parliament on the administration of the Act following the close of each fiscal year.  This annual report is prepared and is being tabled before each House of Parliament in accordance with section 72 of the Act.  This report summarizes how Health Canada has fulfilled its access to information responsibilities during the fiscal year 2016-2017.

II. About Health Canada

Health Canada (HC) is the federal department responsible for helping the people of Canada maintain and improve their health.

HC is committed to improving the lives of all of Canada's people and to making this country's population among the healthiest in the world as measured by longevity, lifestyle and effective use of the public health care system.

By working with others in a manner that fosters the trust of Canadians, HC strives to:

• Prevent and reduce risks to individual health and the overall environment;
• Promote healthier lifestyles;
• Ensure high quality health services that are efficient and accessible;
• Integrate renewal of the health care system with longer term plans in the areas of prevention, health promotion and protection;
• Reduce health inequalities in Canadian society; and
• Provide health information to help Canadians make informed decisions.

HC has regional offices in British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec, and the Atlantic and Northern Regions.

For more information about HC, please visit our website at: http://www.hc-sc.gc.ca/index-eng.php

Access to Information Infrastructure

I. The Access to Information and Privacy Operations Division

The Access to Information and Privacy (ATIP) Operations Division is housed in the Planning, Integration and Management Services Directorate of the Corporate Services Branch at Health Canada (HC).

The ATIP Coordinator is accountable for the development, coordination and implementation of effective policies, guidelines, systems and procedures in order to enable efficient processing of requests under the Act. The Coordinator is also responsible for the implementation of relevant government-wide policies, systems and procedures. The Division is responsible for all Access to Information (ATI) legislative requirements pursuant to the Act such as:

• Responding to access to information requests within the statutory time frame as well as meeting the duty to assist requesters;
• Providing advice and guidance to departmental employees on the application of the Act and Treasury Board of Canada policies and directives;
• Developing corporate-wide access to information protocols and practices to guide the ATI process;
• Promoting awareness and providing training on the Act;
• Preparing annual reports to Parliament; and
• Liaising with the Office of the Information Commissioner (OIC), Treasury Board of Canada Secretariat (TBS), other federal departments and agencies, provincial ministries of health and other key stakeholders.

In 2016-2017, the Act was administered by 42.94 full-time equivalent (FTE) employees with the support of consultant services (9.75 FTE) and some part-time and casual employees (0.60 FTE) for a total complement of 53.29 FTEs.

II. Reading Room

HC has a reading room available where members of the public may make arrangements to review materials, as required in section 71 of the Act. The public reading room is available at:

Access to Information and Privacy Division
1600 Scott Street, Holland Cross,
Tower B, 7th Floor, Suite 700
Ottawa, Ontario K1A 0K9

Delegation of Authority

The most recent delegation order for the Access to Information Act was signed by the Minister of Health on November 25, 2015.  In keeping with Treasury Board Secretariat recommendations on best practice, the delegation order extends authorities to multiple positions including the Coordinator, the Corporate Services Branch’s Assistant Deputy Minister and Director General of Planning Integration and Management Services Directorate.  As appropriate, certain administrative authorities are delegated to various senior levels within the ATIP Division to support the effective and efficient administration of the Act.

The Delegation Order is attached as Appendix A.

Requests under the Access to Information Act - Statistical Figures, Interpretation and Explanation

I. Statistical Report

This section of the report includes an interpretation and explanation of the data contained in HC’s statistical report which summarizes ATI-related activity for the period between April 1, 2016 and March 31, 2017 (Appendix B).

II. Number of Access Requests and Case Load

Number of Access Requests

In 2016-2017 HC received 1,959 requests, representing an increase of approximately 60% compared to the 1,222 requests received in 2015-2016. The rise in requests can be attributed to HC’s role in implementing several government priorities, which have drawn increased interest from many stakeholders.

Health Canada took important steps to manage the increasing levels of total cases by allocating additional resources to the ATIP Division. In addition, improvements in productivity were realised as a result of a targeted ATI strategy as well as strong department-wide management and oversight of ATI requests. These activities have resulted in HC closing more files (1,388) in 2016-2017 than it had received (1,222) in the previous fiscal year.

This strong senior management support and ongoing efforts are expected to support continued performance improvements in the future.

Source of Requests: Trends

As with past years, the primary source of requests received by HC are from businesses that cover various subjects.  Notable topics include pharmaceuticals, medical devices and natural health products, and tobacco.  The number of new requests from the business sector increased 75% to 1,029, representing 53% of all new requests.

A significant number of the requests processed by HC require complex third party consultations to identify confidential business information requiring protection.  These records often involved large volumes of technical and scientific information, which can take lengthy amounts of time to review.

The table below shows the proportion of requests from various sources, noting the percentage changes from 2015-2016.  

Proportion of Requests by Source

Informal Requests

Requests can be made for records previously released under the Act; these are referred to as ‘Access Informal’. In 2016-2017, HC processed 611 informal requests, compared to 391 requests in 2015-2016. This represents a 56% increase and continues the upward trend from 2014-2015 where there were 314 informal requests. As part of the Government’s commitments to Openness and Transparency, the Treasury Board Secretariat released the Interim Directive on the Administration of the Access to Information Act in May 2016 prescribing a consistent approach for departments to post summaries of requests completed on a monthly basis. This initiative enables requesters to review requests that have been released and request information already disclosed, helping to offset the number of new requests that would be received by the Department. This also supports greater efficiency of operations by avoiding the need to re-process the same records and more timely access of the records for requesters.  Note that the summaries would not include release packages containing personal or proprietary information.

Case Load

Active requests included 1,959 new requests and 1,047 requests carried over from previous years. During the 2016-2017 fiscal year, HC completed the processing of 1,388 of 3,006 active requests. Although this represents only 46% of all active files, it represents an increase of 35 % over last year when only 1,026 files were completed. Further, the number of files closed this fiscal year exceeded the number of files opened last fiscal year, demonstrating an improved ability to keep pace with incoming volume levels. Of the 1,959 requests received in 2016-2017, HC closed 996 (51%) within the fiscal year.

Access to Information Requests Received/Completed

During 2016-2017, HC responded to an overall increase of 60% in the number of new requests received.  High profile initiatives such as tobacco / plain packaging; First Nations and Inuit issues; and marijuana legalization lead to significant increases within specific branches of HC, in some cases upwards of 100%.

Health Canada made improvements in the number of files completed (35%), as well as a significant increase in the number of pages reviewed (780%).  The significant increase in the number of pages reviewed was driven in large part by four similar requests collectively representing approximately 1.4 million pages. Following processing of 2,438 pages in 2015-2016, HC continued processing the remaining 1.4 million pages, undertaking detailed file triage and review. In the midst of this process, the requestor abandoned the remaining files.  Were the 1.4 million pages removed from consideration, however, HC’s volume of reviewed pages would still increase to approximately 491,795, representing an increase of 129%.

Improvements in productivity were realised as a result of a targeted ATI strategy, including a firm departmental commitment to increase the resources dedicated to the ATIP function, as well as strong department-wide management and oversight of ATI requests. This strong senior management support and ongoing efforts are expected to support continued performance improvements in the future.

Consultations Completed from Other Institutions

In 2016-2017, HC completed 222 consultations (8,933 pages) from other federal institutions, and 28 consultations from other jurisdictions (515 pages). This is comparable to 2015‑2016 where HC completed 180 consultations (8,907 pages) from other federal institutions and 25 from other jurisdictions (1,450 pages).

III. Disposition of Requests Completed

Completed requests were classified as follows:

Disposition of Completed Requests

Approximately 58% of the requests completed in 2016-2017 were either disclosed in part (42%) or all disclosed (16%). Additionally, 20% of requests were closed as abandoned. At HC, requests are often abandoned for a variety of reasons:

• Due to the passage of time the requested information is no longer required,
• $5 application fee is not provided,
• request cannot be reasonably clarified to enable search and retrieval,
• where a requester would be better served by obtaining the records through a different avenue (such as receiving copies of previously released records), or
• Where requests are mistakenly directed to HC rather than a provincial authority, requiring the file to be abandoned as the request is pursued at other levels of government.   

Exemptions Invoked

Sections 13 through 24 of the Act set out the exemptions intended to protect information pertaining to a particular public or private interest, and section 26 of the Act is a temporary exception relating to information to be published.

The vast majority of the 1,278 exemptions invoked by HC focussed on three sections of the Act – section 19 (personal information), section 20 (third party information), and section 21 (operations of government).  Together, these accounted for 985, or 77%, of the exemptions applied in 2016-2017.  It is worth noting that the invocation of section 20 on 284 occasions necessitated numerous consultations with third parties, many of which were large multi-national corporations.  Such consultations are often complex and resource-intensive, and each year, some lead to legal proceedings before the Federal Court.

V. Exclusions Cited

The Access to Information Act does not apply to published material, material available to the public for purchase, or for public reference (section 68), nor does it apply to confidences of the Queen's Privy Council (section 69).  Requests containing proposed exclusions under section 69 require consultation with the Department of Justice, and potentially the Privy Council Office. 

During 2016-2017, HC applied 15 exclusions pursuant to section 68 of the Act (a 67% increase), and 121 exclusions for section 69 of the Act (a 332% increase).

VI. Disposition and Completion Time

The number of completed requests within 30 days was 595 (43%) representing a 7% increase from the previous year.  The remaining requests, categorized into time segments of 31 to 60 days, 61 to 120 days, and 121 days or more, are depicted in the table below.  It is important to note that many of the files processed were large and required consultations, necessitating extensions to complete all required actions. The table below represents completion time, but does not factor in extensions appropriately taken under the Act.

Additional resources have helped in being able to increase the amount of files processed within 30 days or less.  Further, emphasis on processing older files has resulted in an increase in the percentage of files completed in more than 120 days. HC also receives a large number of large files that are often complex, requiring more time to process.

VII. Extensions

Legal extensions were most frequently invoked to provide time to complete third party consultations and notifications, and to process voluminous records.  Of the 1,388 files closed in 2016-2017, HC invoked 604 extensions under section 9(1) of the Act, an increase from the 522 invoked in 2015-2016.

VIII. Translations

No translation was required to respond to requests in 2016-2017.

IX. Format of Information Released

HC provided records in the format requested where possible. When a release package is for a small amount of pages, information is typically provided in paper format; when larger, access is generally provided in electronic formats burned on CD.

Of requests that were fully or partially disclosed, 576 were sent out in paper format. Comparatively, 222 requests were released electronically.

X. Fees

The Act authorizes fees for certain aspects of processing formal requests and the fee structure is prescribed in the ATI Regulations.  However, TBS in May 2016 issued the Interim Directive on the Administration of the Access to Information Act which imposed a requirement to waive all fees chargeable other than the $5 application fee, regardless of the size and scope of the request or burden on the Department to process.

Based on requests completed in 2016-2017, HC collected $5,720 in application fees and $728 in search fees for a total of $6,448 submitted to the Receiver General for Canada.  In addition, HC waived $3,787 in fees for 628 requests. 

XI. Costs

HC spent a total of $5,078,121 on ATI functions in 2016-2017.  Of this total, salaries accounted for $3,065,387 and administration for $1,933,927, most of which was used to retain temporary help to address the volume and complexity of requests.

Training and Awareness

Training, Orientation and Awareness for HC Employees

Training sessions regarding the Act and related processes are delivered to HC employees on a regular basis.  In fiscal year 2016-2017, the ATIP Division delivered 38 “ATI 101” training sessions to 557 participants.  In addition, 2 sessions targeting executives were offered to 27 participants in 2016-2017. The objectives of the sessions are to impart an understanding of the Act, roles and responsibilities, the handling of formal and informal requests, basic grounds to withhold information, and how to process an ATI request. Significant efforts have been put into updating training materials and tools. 

To enhance the effectiveness of the training sessions, a new process to identify and strategically assess training needs and to provide customized training to the target groups has been implemented.  In addition, the ATIP Division worked in collaboration with various program areas to promote awareness. As a result of this collaboration, 12 general awareness sessions were delivered to 145 participants.    

Complaints and Court Applications for Reviews

I. Complaints to the Information Commissioner

During 2016-2017, Health Canada was notified of 60 complaints under the Act that were filed with the Office of the Information Commissioner of Canada (OIC).

The Department reviews the outcomes of all OIC investigations, and where appropriate, incorporates lessons learned into business processes.

II. Types of Complaints and their Disposition Completed in 2015-2016

III. Applications/Appeals Submitted to the Federal Court / Federal Court of Appeal

In July of 2016, a 2015-2016 Federal Court case pursuant to subsection 44(1) was finalized.  The applicant contested the disclosure of certain documents, as proposed by the ATIP Division on the basis of statutory exemptions contained in section 17, subsection 19(1) and paragraphs 20(1)(b) and (c) of the Act. The application was granted in part.

During 2016-2017, two new applications were made to the Federal Court pursuant to subsection 44(1) of the Access to Information Act for review of HC's decision to disclose information. One application was made in September 2016 relating to partially released records about the formulation and manufacturing of a specific drug.  The second application was made in February 2017 and is before the Federal Court. It concerns a complaint about Health's Canada’s failure to respond to an ATI by the commitment date provided to the Information Commissioner of Canada.  Both cases are still pending.

IV. Responses to Recommendations raised by other Agents of Parliament

There were no recommendations raised by other Agents of Parliament during fiscal year 2016-2017.

Policies, Guidelines, Procedures and Initiatives

During 2016-2017, HC continued its efforts to formalize and document its internal operating procedures. Several procedures internal to the ATIP Division were created or modified to help support efforts of ensuring accountability, clarity and consistency.

Notably, in 2016-2017 HC implemented an ATI Action Plan to bring sustainable improvements in satisfying requirements under the Access to Information Act. The Action Plan implements a variety of initiatives along three themes of accountability, demand management, and ATIP operations.

HC implemented a two-tiered process for request processing, establishing a formal assessment phase, distinct from the document retrieval phase. By requiring Offices of Primary Interest (OPIs) to quickly review and assess requests within 48 hours, HC is able to gather useful information about the size and scope of requests, as well as suggestions for clarification or refinement. Through this process, HC is better able to fulfill the Duty to Assist by exploring whether the request can be refined to help support more efficient and timely processing. This approach has been successful in reducing the size and scope of very large or broad requests, resulting in a more efficient use of resources and more timely access to information.

Successes stemming from the first year of the Action Plan implementation included the transition to a modernized case management and imaging software solution, enhanced performance reporting, implementation of a two-step tasking process, and implementing ATIP operations policies and procedures to improve operational consistency and efficiency. To support these initiatives, training and engagement were strengthened, both within the Department and ATIP Division. Working groups were created or re-introduced with participants from all branches within HC with a focus on identifying and leveraging best practices, and improving collaboration and information sharing.

Most significantly, the Action Plan secured additional ongoing funding for the ATIP Division to support hiring of several new employees. Recruitment efforts have proceeded well despite a shortage of specialized resources across the Government of Canada. In fiscal year 2016-2017, Health Canada increased the number of full-time equivalent employees administering the Act by 16. This supports Health Canada’s efforts to meet legislative requirements under the Act and respond to a large and growing volume of requests. In January 2017, the ATIP Professional Developmental Program was implemented to accelerate the development of specialized resources and aims to further increase operational capacity within the ATIP Division.

Summary of Key Issues and Actions Taken on Complaints or Audits

Health Canada was one of six original departments to participate in the OIC’s pilot project on the investigation of complaints concerning delays (deemed refusals) and extensions.  This pilot project streamlined administrative processes involved in the investigation of these complaints with the goal of quicker resolution for both the complainant and the institution. As results were positive, this process was rolled out across government. 

Monitoring Compliance

ATIP has undertaken the production of weekly, monthly and quarterly reporting to Senior Management in order to monitor performance by HC.

Appendix A: Access to Information Act and Privacy Act - Delegation Order

Delegation of Authority

Access to Information Act and Privacy Act

I, the Minister of Health, pursuant to section 73 of the Access to Information Act and section 73 of the Privacy Act, hereby designate the persons holding the positions set out in the Delegation of Authority Schedule attached hereto, or the persons occupying on an acting basis those positions, to exercise the powers, duties and functions of the Minister responsible for Health Canada, under the provisions of the Act and related regulations set out in the schedule opposite each position. This designation supersedes all previous delegation orders.

The Honourable Jane Philpott MP
Minister of Health
Nov 25, 2015

Appendix B: Statistical Report on the Access to Information Act

TBS/SCT 350-62
Name of institution: Health Canada
Reporting period: 2016-04-01 to 2017-03-31

Part 1 - Requests under the Access to Information Act

Note: All requests previously recorded as “treated informally” will now be accounted for in this section only.

Part 2: Requests Closed During the Reporting Period

2.5 Complexity

2.6 Deemed refusals

Part 3: Extensions

Part 4: Fees

Part 5: Consultations Received From Other Institutions and Organizations

Part 6: Completion Time of Consultations on Cabinet Confidences

Part 7: Complaints and Investigations

Part 8: Court Action

Part 9: Resources Related to the Access to Information Act