ATI Review – Interim What We Heard Report

Background

The Access to Information Act provides Canadian citizens, permanent residents, and individuals and organizations located in Canada with the right of access to government information.

What we heard

Public workshop participants, alongside several written submissions, noted Canada should expand the right of access under the Act to a universal system, as this is an international best practice. This would permit any person in the world to submit a request. However, participants did acknowledge such an expansion could increase the workload of ATI offices through an increase in requests, and more resources may be necessary. The Canadian Association of Research Librarians recommended adopting a universal right of access only if “sufficient funding is provided to government departments to be able to support increased demand.” Participants noted a universal system would, however, allow for some efficiencies as program officers would not have to first determine if the request came from outside of Canada.

Participants rejected increasing fees for requesters, and they also favoured eliminating the five-dollar fee charged under the current rules. One participant stated the financial cost of submitting a request is already ‘unreasonable’ while others mentioned it as a barrier to access the program.

Participants discussed the benefits and challenges of prioritizing of certain access requests. Criteria discussed included whether the information would serve the public interest, whether Canadians and permanent residents should take priority over foreign nationals, and whether large requests should be treated first, allowing for smaller requests to be treated when time permits. There was no consensus in these views among participants. On the one hand, some suggested media requests should be prioritized because they are in the public interest. Others questioned why requests from one type of requester, like the media, should be prioritized over other requesters, such as unions and CSOs. There was also some concern over how prioritization would be operationalized, with some noting that it would require clear systems and guidelines to function effectively.

Participants suggested that the Act should not differentiate between requests from different types of requesters, like businesses or media organizations. Similar to comments made during the discussion on prioritization of requests, it was identified that prioritizing requests for certain organizations could be perceived as unfair or unjust.

Background

The scope of the Act refers to the federal institutions that must comply with the two distinct parts of the Act.

Part 1 of the Act covers the institutions that are subject to requests under the Act. It covers roughly 265 institutions including departments, agencies, port authorities, boards, tribunals, and other types of federal institutions.

Part 2 of the Act relates to proactive publication, which identifies information that must be published by institutions without the need for a request, using defined schedules. Part 2 includes all institutions covered by Part 1 of the Act, but it also includes the Prime Minister’s office, ministers’ and senators’ offices, Members of Parliament, and administrative bodies that support Parliament and the federal courts.

What we heard

Some participants favoured expanding Part 1 of the Act to include all institutions that perform a public function or receive substantial public funding (e.g., research institutions or not-for-profits). However, participants noted that this would require clear criteria for a ‘public function,’ the threshold for receiving ‘substantial funding,’ and what exact information would be subject to the Act. For example, if an organization received a funding grant from the government, should all of that organisation’s records be subject to the Act, or just the ones related to the operations funded by the grant? According to the Centre for Free Expression (CFE) at Ryerson University, visa application centres performing public services as private entities should be subject to the Act: “Records individuals could previously access under the Act become inaccessible when a program is outsourced – because they are no longer under the control of a government department.”

There was broad support among participants that federal bodies subject to Parts 1 and 2 of the Act should be more consistent in their implementation and application of their legislated obligations under the Act. Participants who felt this way noted that this could help improve transparency and the way people feel about the ATI program.

Many participants also wanted to expand the scope of Part 1 of the Act to include the Prime Minister’s Office and Ministers’ Offices.

Background

Although the Act guarantees a broad right of access to government information, there are exceptions. These exist to protect the private information of individuals, commercial interests of organizations, or the state and its residents’ national interests. Based on current language in the Act, those exceptions must be limited and specific. There are two exceptions to the right of access described in the Act: exemptions and exclusions.

Exemptions are circumstances when certain types of information can be withheld from public disclosure. Exemptions are either mandatory or discretionary, and they are also either injury- or class-based.

If an exemption is mandatory, it means the information cannot be disclosed. Discretionary exemptions, on the other hand, require that institutions weigh all the relevant considerations for and against the release of the information before deciding if the information should be disclosed.

What we heard

Some participants noted that exemptions conflict with the nature of the Act, which is to provide a means to access otherwise unavailable government records. Many participants expressed a sense of frustration with exemptions, noting that in many cases their requests were severely delayed or returned with relevant information redacted. Participants generally agreed the government should conduct a full review of all exemptions in the Act to streamline and simplify them: “Current time extensions are unreasonable barriers to access. Exemptions under the Act such as 21(1) and 26 are an unnecessary hindrance to disclosure and do not serve the public interest.”

One participant suggested the government re-write exemptions “from the ground up” with clear explanations of their applications so that requesters better understand their application. It was also noted that identical requests from different departments could result in varying redactions, suggesting wide variation in how the law is interpreted. Feedback from federal institutions echoed this sentiment, stating greater clarity and guidance is required for several exemptions to ensure more consistent applications.

Most public submissions said exemptions require a full review by the government. Several submissions noted similar areas of concern, for example, the Canadian Labour Congress (CLC) highlighted section 20 (third-party information) as an overused exemption. According to the CLC, section 20 needs to be revised to “limit and restrict its use in withholding vital information from the public”. Section 21 was the most common area of concern for exemptions, with various submissions providing examples of information withheld as a result. The Office of the Information Commissioner stated these exemptions were often applied unnecessarily: “A large portion of the information contained in the records covered by section 21 can be made public without jeopardizing the policy development or decision-making processes of ministers and institutions.”

There was consensus among participants that the 20-year timeline for protecting some types of information, such as advice and recommendations to Ministers and select types of law enforcement and investigation information, should be shortened. Sunset clauses, which would allow information to be released after a certain period, were suggested to allow information to be disclosed in a timely manner. While many submissions stated the timeline for protecting information should be reduced, others recommended specific timeframes for certain sections. For example, the Office of the Information Commissioner recommended “The 20-year period provided for in subsection 21(1) of the Act should be reduced to 10 years.”

Background

Unlike exemptions, exclusions cover categories of information that are not subject to the Act. Information covered under exclusions cannot be disclosed and is generally not subject to the review mechanisms provided for in the Act. Exclusion provisions are most applied to confidences of the Queen’s Privy Council for Canada, or Cabinet confidences, including discussion papers, draft legislation and more.

What we heard

Participants generally did not understand the purpose of exclusions in the Act. In fact, six submissions suggested that exclusions should either be reduced or eliminated from the Act. It was generally felt by these participants that the same protections could be achieved through exemptions, but with enhanced accountability provided to the public.

The Cabinet confidences exclusion, section 69 of the Act, attracted the most attention from participants. Several said that section 69 should be converted from an exclusion to an exemption. Participants also wanted to see increased oversight from the Information Commissioner of Canada (OIC) on decisions to exclude records, including Cabinet confidences. The opinion was echoed by the OIC in its submission, stating that independent review is required to verify that the records excluded under section 69 do contain Cabinet confidences.

Many participants noted they felt as though the use of the Cabinet confidence exclusion has increased, placing more and more information outside of the Act’s scope. Participants, including some federal institutions and public servants, called for a better definition of what constitutes a Cabinet confidence. Participants suggested that not all Cabinet discussion-related files need to be excluded, for example memos or communications that don’t feature sensitive information: “An ATIA for the 21st Century needs to put the public interest first, and this means bringing the highest offices of the land under the scope of the Act.”

Participants also agreed a 20-year time limit to protect these records was too long, proposing an alternative of 10 years for sensitive documents, while other records should be released within one or two years. Stanley Tromp, citing former Information Commissioner John Grace, proposed a 15-year time limit for Cabinet documents in their written submission.

Some workshop participants noted that historical information about the CBC’s broadcast policy should be made available over time, rather than being completely excluded. Participants, such as University of Ottawa professor Patrick McCurdy, shared experiences of being regularly denied when trying to access historical CBC productions. McCurdy elaborates that the CBC holds “decades-old historically significant material,” but “scholars, researchers and the Canadian public cannot access them.” A sunset clause was proposed by some participants to facilitate the release of information.

Background

Public interest overrides are provisions found in ATI legislation which supersede exemptions if the release of the information in question is deemed to be in the public’s interest. There is currently no general public interest override in the Act. The Act only includes public interest override provisions for both personal information and third-party information, though these have very specific applications. In the case of discretionary exemptions, public interest may be a factor.

Around the world, some jurisdictions such as Ireland and the United Kingdom use a hybrid model, where public interest overrides apply to some, but not all exemptions. However, other jurisdictions, including India and Afghanistan, and some Canadian provinces (e.g., Alberta and British Columbia) have a public interest override that applies to all exemptions.

What We Heard

Almost a third of all written submissions identified public interest overrides as an area for improvement. The British Columbia Freedom of Information and Privacy Association (BCFIPA) recommended the Act “align with provincial acts and international peers by including a broad, mandatory public interest override.” A similar provision was recommended in the submission from the Centre for Free Expression at Ryerson University, requesting “a broad public interest override in the Act, requiring the disclosure of records if the public interest in their disclosure outweighs the reason for exempting their release.”

The OIC recommended a slightly narrower provision, noting six provincial ATI statutes contain public interest provisions and the Act should “include a provision requiring government institutions to disclose information about a risk of significant harm to public health, public safety or the protection of the environment.” Participants also agreed there could be a disconnect between what the government might deem is in the public’s interest, and what information the requester is seeking.

Background

The duty to document refers to the responsibility government institutions have in documenting their decision-making processes. While it is generally accepted as good corporate practice to document one’s decisions, it is also increasingly seen as a key accountability function in many jurisdictions around the world.

The Government of Canada (GC) does have a duty to document in its recently implemented Policy on Service and Digital. This is not a legislated responsibility, however, and the policy does not apply to many institutions.

What we heard

Various participants, from federal institutions to members of the public, supported a legislated duty to document for the GC. The Office of the Information Commissioner stated in their public submission: “The right of access cannot exist without records.” They add that such a legislated requirement would be well-aligned with the objective of the Act, which is to promote institutional accountability. Ten other written submissions echoed the need for a duty to document.

According to the Canadian Civil Liberties Association, the Office of the Information Commissioner should play a role in this accountability function, stating “The Information Commissioner’s jurisdiction should be expanded to include overseeing the record keeping practices of institutions subject to the Act, including auditing powers.”

Several written submissions also suggested that federal institutions should better catalogue their records. This would support better record-keeping practices, and by extension, would also improve the ability to make more targeted requests.

Background

Proactive Publication is the legal obligation under Part 2 of the Act that certain categories of government information be made openly available to the public. The information in these publications, however, may still be subject to the exceptions to disclosure listed under Part 1 of the Act. The requirement came into force as part of the amendments to the Act under Bill C-58 in 2019. Proactive publication is intended to make it easier to access government information, help people make more targeted requests for additional information, and reduce the need to submit an ATI request. Proactively published materials are not subject to oversight by the Information Commissioner. Since information in proactively published records may be exempt from disclosure, they may still be requested under Part 1 of the Act, which allows the requester to submit a complaint to the Information Commissioner.

The Act defines which documents must be proactively published, and timelines for when they must be made available. Proactively published material must meet accessibility standards and be available in both French and English.

What we heard

Participants generally agreed that the current proactive publication regime does not go far enough. Workshop participants, for instance, suggested that more government documents should be open by default. Several noted that proactive publication should go beyond administrative or financial data, noting that the breadth of scope of access to information legislation in other jurisdictions, like the United States’, go well beyond Canada’s. This sentiment was reflected in 11 written submissions, with the Canadian Labour Congress (CLC) recommending “that the government continue its efforts to expand the number and type of information published on the Open Government Portal.” Others felt that disclosure of government information should be required in all cases unless there are good reasons not to publish (e.g., personal or security reasons). However, one workshop participant questioned the value of proactively publishing everything, particularly if there is little or no demand for certain information.  Others recognized that information still needed to be reviewed for sensitivities, especially where sensitive commercial and personal information is concerned.

There were several suggestions of the types of information that could be required to be proactively published, including the most frequently requested documents. In support of this idea, BC FIPA stated this kind of proactive disclosure “would prevent individuals from having to request the same type of information time and again and reduce the workload for access teams, who would no longer have to assess the same type of record every time it is requested.’’ Feedback from some federal institutions and public servants also supported the idea of publishing records that have been frequently requested or previously released under the Act. Other suggestions included government research, surveys or other information pertaining to health and safety. Several participants mentioned expanding proactive publication measures could help reduce the total number of ATI requests, while promoting greater transparency.

Several participants commented about the lack of accountability when it comes to proactive publication. They said it is important to make sure the right documents are being published in accordance with the legislated timelines but currently there is no oversight. There was general agreement that the OIC should have the authority to review proactively published material.

Background

Closely tied to the issue of proactive publication is the issue of declassification of formerly sensitive documents. Documents in Canada are assigned one of two broad security categories when they are created, depending on the sensitivity of the information: protected, or classified. There is no process to downgrade those classifications once they are applied, meaning the security designation remains in perpetuity.

What we heard

Though declassification was not a point of discussion among workshop participants, several written submissions raised the issue, as did some federal institutions. The OIC’s submission noted that without a systematic approach to downgrading the security classification assigned to documents, highly classified records are a barrier to access. In particular, they noted: “A proper declassification system based on regular reviews and consensus by experts would enable researchers and others to gain access to records that are no longer sensitive to national security, through mechanisms other than the Act.”

Several participants raised the issue of records classification as a barrier to access. The OIC’s submission noted that without a systematic approach to downgrading the security classification assigned to documents, highly classified records remain a barrier to access even when they are no longer sensitive. This is especially true of Canada’s historic national security, defence, and intelligence files. Considering this, the OIC called for the development of a declassification mechanism for older documents: “A proper declassification system based on regular reviews and consensus by experts would enable researchers and others to gain access to records that are no longer sensitive to national security, through mechanisms other than the Act.”

This view was shared by some federal institutions. Not only are highly classified records harder to retrieve and review because they are held in specialized storage environments, they are also more resource intensive to disclose.

On a related note, one workshop participant said it would be helpful if information that is transferred to Library Archives Canada (LAC) is deemed to be “open by default.” Currently, when documents are transferred from a department to LAC, they are “closed” by default, including their security classification, so any subsequent attempt to access them is subject to an ATI request. This leaves LAC to deal with ATI requests from more than 100 government departments and entities once LAC becomes the official record-holder.

Background

The retention period for most records related to the processing of ATI requests, including final response packages, is generally two years from the date of the last action related to the request (e.g., sending the records to a requester, or concluding a complaint investigation). Federal institutions’ retention and disposition policies are guided by LAC’s Generic Valuation Tool, which allows the Government of Canada to identify information resources of business value and set retention specifications which are two requirements of the TBS Directive on Service and Digital. Summaries of requests received by each institution are published on the Open Government Portal (the Portal), sorted by department and date, and they include a link to request a copy. The Portal is set up to remove summaries after the two-year period has elapsed since the package of released information may no longer be held by the responsible institution after that time.

What we heard

Participants generally agreed that all ATI summaries should remain online for as long as possible, if not permanently. As one person asked, “if the Act is for accountability and to improve Canadians’ knowledge, why shouldn’t information remain posted permanently?” One participant suggested that a docket system, like that of the United States would essentially create a permanent record and would be an improvement. There was considerable workshop discussion that a ten-year retention period seemed reasonable for ATI summaries remaining on the Portal.

The discussion about ATI summaries sparked a broader conversation about archiving and storing digital publications and other proactively available information. Participants recognized that retaining materials indefinitely or for a decade would require significant resources and data storage. It was felt that the Portal might not be the most appropriate tool to archive material. Participants suggested that after a set period, information on the Portal could be moved to LAC, leaving a note on the Portal stating where the information had been transferred and how to access it. Notably, the retention and disposition of all proactively published materials was an area on which federal institutions wanted clearer guidance.

Background

Delays in processing information requests is one of the major issues underscored by the Information Commissioner in various reports and recommendations, and was a challenge raised throughout the process. Section 7 of the Access to Information Act requires federal institutions to respond to access to information requests within 30 calendar days. Section 9 of the Act allows the head of an institution to grant extensions of a “reasonable period of time” under certain circumstances. The legislation does not set a time limit for these extensions. Extensions are permitted for various reasons, such as consultations, requests that have a high volume of records, and business procedures.  

What we heard

Timelines to process requests are perceived to vary drastically among institutions, due to a combination of request volume, resourcing, and other factors.

Some participants felt the federal government has a culture of secrecy and delay at the federal level. Specifically, some participants felt that the ATI system was being used to withhold information that could be deemed politically sensitive by delaying release. As the B.C. Freedom of Information and Privacy Association (BCFIPA) described it, “[the] culture of secrecy treats the release of records as a risk, rather than a right.” It was noted that some provincial jurisdictions have less time to respond to requests but also experience fewer delays. On this point, BCFIPA elaborated to say that these delays at the federal level risk making the information requested irrelevant by the time it is released.

Participants felt this culture of delay has become normalized due to a lack of enforcement or consequences for missing deadlines. Almost 70 % of respondents to the User Experience Survey indicated they had not received a response within 30 days after the institution received their request. Some participants recommended having legislated consequences for ATI offices that do not meet deadlines.

Many participants pointed to the use of lengthy extensions as the reason for delays. Some, including federal institutions, stated that more legislative guidance on extensions, and clearer requirements for applying extensions are needed. They also felt that more appropriate time limits were needed, especially for third-party consultations.

Participants from the public and government pointed to third-party consultations as a significant cause of delay. Those participants perceived that there was no accountability in terms of respecting legislated deadlines. Some workshop participants felt that third parties should be more accountable, including requirements to sign disclosure consent forms. They also suggested more active interventions by ATI officials when deadlines are not respected.

In addition to third-party consultations, other consultations within government were similarly viewed as a cause of delays in responding to requests – a sentiment echoed by several federal institutions. Some views on these issues supported creating a firm cap on the ability to consult, such as the one used by British Columbia: a maximum of 30 additional days.

Finally, some felt there was a lack of clear communications from ATI offices about the status of requests, particularly in the case of delays. This sentiment was supported by the user experience survey, in which only 57.8% of survey respondents indicated that ATI officers were helpful in resolving issues related to their requests: “Years long extensions are often taken without any communication. The system is fundamentally broken.” Provincial and territorial government officials also reported occasional communications problems with some federal institutions, particularly regarding consultations. Some participants also noted that while consultations are underway with other bodies, information that is not subject to consultation could still be processed and disclosed, however, this is often not the case.

Background

Innovative and efficient business processes and digital technologies can be instrumental in processing information requests within established timelines. They can reduce the need for extensions and help clear backlogs.

The Portal and ATIP Online Request Service (AORS) are both areas where the GC has streamlined the ATI process through digital innovation. The Portal centralises its open information sources, including proactively published materials under the Act. The AORS is the central service where requests to over 200 institutions can be submitted. Both platforms support French and English users, and are accessible.

What we heard

Outdated business processes and technologies continue to be used in many ATI offices, impacting requesters in various ways.

Many public participants acknowledged the value of digital technologies and agreed future investment in such technologies could also improve service delivery. The COVID-19 pandemic further highlighted the deficiencies of the current system, where paper-based records and classified documents could not be reviewed from home, causing delays in responding to requests. For instance, BCFIPA highlighted the labour-intensive processes outlined in the Access to Information Manual, such as the requirement for ATI officials to manually analyse individual records. Like many stakeholders, the organisation asserts that technology has the potential to improve efficiency for ATI offices and supports the investment in new technologies to improve processing times.

Federal institutions were among the most vocal supporters of digital solutions. They largely agreed that ATI processes around tasking, retrieval and review of records were chronically hampered by information management challenges. Many institutions still retain legacy file storage systems, making searching for requested information a challenge. This is made worse by a lack of integrated search functions across information storage locations. Overall, the lack of interoperable applications and storage locations are viewed as substantial barriers to providing timely access to information.

Institutions also raised concerns about a general lack of effective and consistent information management practices, both within and between institutions. The shift from paper to digital records has dramatically increased the number of saved drafts, emails, and other information types. Many of these duplicate or transitory records must be retrieved and reviewed, even if they do not form part of a request response package.

Several participants and federal institutions highlighted the benefits of online request portals, such as AORS, underscoring this as a way to improve efficiency and eliminate duplications. Centralised fee processing, for instance, was seen as a benefit. They also acknowledged the value of adopting digital delivery of information to requesters, either through e-post services or email, rather than using physical media (e.g., thumb drives or CDs). Timeliness was also raised as a benefit of the digital model, as one ATI User Experience Survey respondent commented, “My paper-based requests took almost two weeks just for a simple acknowledgment. The online model is far better.”

Many participants suggested that a centralised ATI system could resolve many problems and delays, as found in some other jurisdictions. Some proposed that a corporate management system, which could help ATI services house files in a centralised location and standardise tools across institutions, would be beneficial. This centralisation of service would lead to more streamlined information management and, in turn, a more efficient search and retrieval process: “Many departments refuse to communicate by email or use Canada e-post even though this is acceptable at other departments.”

Nonetheless, participants indicated that some digital service requirements could create delays. For example, the need to publish information in both official languages on the Portal was discussed by some participants who felt that translation could be provided upon request to strike a better balance of language and ATI rights. The opposite was also proposed, where it was suggested that government invest in both translation and accessibility for all records. Another participant suggested a mid-ground approach, in which short summaries of longer documents would be provided in French and English at the point of publication. Overall, there was no agreement on the issue of official language requirements, except a general acknowledgement that translation could cause delays without efficient practices in place.

In discussions on the requirement to create accessible records, one workshop participant suggested the government needed to take it a step further. In his submission, Justin Ling suggested that information released should be machine-readable and released in the format it was created.

Participants also discussed how they wanted to see improved functions on the Portal that would allow them to compare records from different institutions, as well as focus on a single institution.

Background

The head of each institution subject to the Act is responsible for administering the Act in their organisation. This includes appropriately resourcing its ATI operations and providing relevant training to staff.  Large institutions have entire offices dedicated to fulfilling ATI obligations. Smaller institutions, which receive few and sometimes no requests in any given year, may only have one ATI official on staff and they are likely to be performing those functions alongside other responsibilities.

Similarly, the level of training between institutions varies. While the Canada School of Public Service (CSPS) offers ATI training to institutions in the core public service, its learning services are not available to all institutions subject to the Act. As a result, many, often smaller, institutions that cannot access CSPS’s services must either create and deliver their own training curriculum, or else hire an outside service. Some organizations also deliver ATI-related training to employees outside of core ATI functions.

What we heard

Many participants agreed that, overall, ATI offices are largely under-staffed and under-resourced. There were similar calls for better resourcing of the OIC to provide effective oversight.

Federal institutions also highlighted the impact of changes to the Act. For instance, the addition of proactive publications to the Act has increased pressures on ATI operations for several institutions. Institutions also observed that ATI officials were increasingly doing work outside of core ATI functions, such as supporting judicial processes, reviewing other information and data disclosures, and responding to Parliamentary disclosure processes.

The level of ATI-related training for government officials was discussed by many participants. This was especially relevant for smaller institutions, where staff, training and tools may be in shorter supply, and a lack of resources hampers the ability for training.

Overall, there was a sentiment that ATI officers and public servants require better training in information management and technology. All types of participants agreed that digitization could streamline ATI processes, but not without enough investment in both the tools and training to use the tools most effectively.