Speaking notes for Suzanne Legault Information Commissioner of Canada to the ATIP Practitioners Meeting

Ottawa, Ontario

September 26, 2013 Presentation to ATIP Practitioners meeting September 26, 2013 Acknowledgements Good morning everyone. It is a pleasure to meet with you again this year. I thank you all for being here today. If you have been following the news lately, you will know that I havent been so positive. I have deep concerns about the current state of performance. Some may have taken this as criticism about the work that you do. Please do not take it that way. Remember that I am one of the very few independent voices on the performance of the government. It is important that I speak out. So let me take this opportunity to recognize your hard work and dedication in trying to ensure that the Act is respected, despite the challenges you are facing every day. As you know, the Office of the Information Commissioner has been subject to the Act since 2007. I had to sit down with our coordinator and go through certain documents to see if I was going to exercise my discretion in favour of disclosure. Going through this exercise gave me an ever-growing appreciation for the work that you do every day to administer the Act in your respective institutions. The attention to details, the volume of pages, the concentration required and the tight deadlines are just some of your many challenges.

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30th anniversary As you know, we celebrated the 30th anniversary of our Access to Information Act on July 1st of this year. More than ever, Canadians want and expect more transparency in government, not less. They want access to accurate information on the issues that confronts them each day. They want to know the rationale behind policy and spending decisions. The Act is critical to the functioning of our democratic institutions. It allows citizens to be better informed and participate more effectively in the countrys democratic process.

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For these reasons we should always be proud to have been one of the first countries to have adopted such law. So lets look back at these 30 years in the context of access to information in Canada. First, I will reflect on some accomplishments that the enactment of the Act has brought to Canadians. Second, I will give you my take on the current state of access to information in Canada, including the major challenges we all face. I would finally like to share some of the main issues that were raised during our investigations of complaints and discuss what can be done to address these issues. Accomplishments Over the past 30 years, the Access to Information Act has basically changed how citizens and governments interact. Not only did the Act provide a legal and policy framework for confirming the right of citizens to access government information, it also established a presumption in favour of disclosure and imposed a duty on government to process requests in a timely, responsible and complete fashion. These rights were further entrenched in our democratic institutions by the Supreme Court of Canada when it confirmed the quasi-constitutional nature of the Act. With this legal underpinning, we have seen the development of an ATIP community including a large body of jurisprudence. We have also seen a growth in the number of access requests. Every day there is a news story based on an access request. More and more Canadians are making requests for information, with requests coming from a broader cross-section. However, we are still some ways from the 50,000 requests mark expected by the government in 1984. Current State While there have been accomplishments, we cannot ignore the fact that there have been a great deal of changes in the information environment during the past 30 years that have brought about its share of challenges. However, the law has essentially remained unchanged, while the world around it has continued to evolve. First, the nature of information has changed radically with the advent of new technologies.

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Back in 1983, most government information was paper-based, composed mostly of handwritten and typed files. Record-keeping was mechanically managed by file clerks who patrolled rows of metal filing cabinets- some locked, some not. The volume of information was manageable and in most cases the sources and recipients were identifiable. Today, virtually all government information is electronic or digital. With the advent of technologies, the volume of information has grown exponentially, as has the number of sources and recipients, many of them potentially anonymous. In this era of smartphone, emails, PIN to PIN communication and text-based messaging, it becomes a real challenge to keep record of all information exchanged within the government. Government management and administration has also changed. Government structures were relatively simple and stable in 1983 compared to today. A department was responsible for a specific public policy area, such as health, agriculture, or employment. But today, government is much more complex. Issues are no longer bound by jurisdiction or limited to a single government organization. Issues are spread across a number of policy areas and multiple governments may be involved. Rather than relying on the personal wisdom and experience of a small cadre of deputy ministers and senior public servants, policy development and decisionmaking is now centred in the ministers offices. Governments have also created quasi-commercial entities and special operating agencies expanding the type and number of government structures. Partnerships with the private sector are expanding. Governments are streamlining their operations to become more efficient and reduce spending, leading to centralization of operations. New technologies, new government structures, new processes these have all combined to create enormous pressures on records management systems, and raised issues such coverage of the Act and the preservation of records of business value and who has control over such records. Many records management systems still in place today were designed for an era of paper-based information.

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The speed, methods of transmission and sheer volume of electronic data continue to challenge governments ability to collect, retain, manage and share information with the public. Thirty years is a long time - more than a generation. With a generational shift come new values and attitudes, including new ideas about information, privacy, and individual rights. Information is the new currency. There is a new generation of information consumers in Canada in 2013, with a different perspective on the value and importance of government information in the hands of the public. The nascent importance of open data reflects this shift. The recognition of access to information as a fundamental human right in many access laws internationally and the fact that there are more than 90 countries that currently have an access to information law also reflects the importance of this right. Here in Canada, the scandal over the spending habits of senators has exposed to the public that this right does not extend to one of our most important democratic institutions: the Parliament. Unfortunately, these changes and other issues within the government have had negative impact on performance results. It is true that in the last year alone, the government has responded to more access requests than ever before and that the number of requests goes up every year. But the resources have not followed this increase. What I am currently seeing unfold is that many institutions are struggling to meet the demand of requesters. Over the last decade, requesters have been faced with lengthy timelines for less disclosure. But just as troublesome is the constant erosion of the right of access. As you know, the Supreme Court of Canada ruled that the Prime Ministers Office and the ministers offices are not part of the government institutions for which they are responsible- and hence, are not subject to the Act. I was very disappointed with this decision. The Court did, however, note that some information in these offices might be deemed under the control of a government institution, and therefore subject to the Act. The Court proposed a test for making this determination.

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To add to the complexity, the Treasury Board Secretariat issued the Implementation Report No. 115 on Access to Records in a Ministers Office. The report instructs you to delay requesting records relevant to a request from the ministerial office until after collecting all or most of the records from within your institution and only when you have reasonable grounds to believe that departmental records related to an ATI request may be located in a ministers office. I am deeply concerned with this implementation report as it introduced a new part to an already complicated test. This new component is not found in the Supreme Court of Canadas decision. In my view, it is potentially damaging to requesters rights in the time of electronic data and Im sure, will lead to complaints. The Federal Accountability Act also introduced new exclusions or exemptions. The result has been much complexity of administration and in some cases, protracted litigation such as the famous CBC cases. But perhaps, the most egregious amendments are those that have gone mostly unnoticed, but have, in my view, slowly eroded our access rights. I am talking about the increasing number of provisions in Schedule II. The inclusion of statutory provisions in Schedule II has reduced government transparency unnecessarily by expanding the scope of information that is susceptible to being withheld and by making that information the subject of a mandatory, non-injury based and unlimited in time exemption. It also requires government institutions to consider more than one statute in their decision-making process and making it more difficult for requesters to understand and exercise their access rights. The number of provisions included in Schedule II has increased. When the Act was passed 30 years ago, 33 statutes were listed in Schedule II. Today, it contains 56 statutes. A year ago to this day, when I stood in front of this group, I was reassured to see some sign of improvements by the federal institutions in complying with the Act. Sadly, this mild optimism was short lived. The last year has shown clear signs of deterioration, which has resulted in an increased number of complaints to my office: we have received 42% more administrative complaints and a noticeable increase in the complaints related to national security. At present, our complaints are up by 35% by comparison to the same time last year. I am seeing signs of a system in crisis, where departments are unable to fulfil even their most basic obligations under the Act, let alone being proactive or meeting their duty to assist. We have noted that institutions are taking lengthy response and extensions times.

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Let me give you some recent examples that best illustrate this deterioration. As you know, I brought a case before the Federal Court where the Department of National Defence took a 1110 days extension thats more than 3 years! Interestingly, with a court date set for October, the information was just released in the last few weeks, about half a year before the date that the department had initially determined. This type of case is not rare. In other cases that we have investigated, institutions have failed to meet or simply refused to commit to deadlines that we have recommended. What we are hearing from institutions is that they simply do not have the resources to properly respond to the number of access to information requests they received. One institution (RCMP) was so understaffed that it was unable to even acknowledge receipt of access requests within 30 days. Other improper practices have also emerged from our investigations. For instance, some institutions simply do not retrieve records before claiming an exemption or an exclusion. Addressing Key Issues As you do every day, our office continues to work hard in ensuring that Canadians rights conferred by the Act are protected. We are presently working on a number of ways to facilitate the investigation process. For instance, we have issued an advisory notice on section 9(1)c). The use of this section has resulted, in some instances, in unreasonable lengthy extensions, which have brought more complaints to our office. We have also published an advisory notice on missing records. We are beginning to see a disturbing trend in our investigations. So far this fiscal year, there has been a 34 per cent increase in the number of refusal complaints where a department has responded no record exists, up from 19 per cent in fiscal year 2011-12. We also have ongoing communication with institutions to improve our investigative process. In January 2013 we launched our first meeting with coordinators of the institutions that received the most complaints. The next meeting is next month. Our 2012-13 Annual Report is now ready and will be tabled as soon as Parliament resumes its activities on October 16. Two other reports resulting from our investigations will be provided to Parliament this coming fall. One is related to text-based messaging, while the other concerns specifically the political interference at Public Work and Government Services Canada. Finally, we could not celebrate the 30th anniversary of the Act without remembering the need for reform. The law has grown tired and out-of-date and has been slowly

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eroded by a variety of constraints, practices and amendments to the Act. As I can testify from my own experience, my Offices investigations increasingly demonstrate the deficiencies in the law. I will give some specific examples in a moment. We are working on a special report that will make recommendations to Parliament on amendments to the Act. This is scheduled to be tabled later this fall.

Best practices to turn things around Last winter, I was invited to meet with deputy ministers during the DM breakfast series to talk about access to information. Here are a few of the messages I gave them. I stressed the importance of their leadership in the administration of the access to information program. Leadership makes the most difference in matters of access. When departments do well, it reflects positively on the government. For the ten top departments, it actually reflects positively in the overall statistical performance of the government. It is important that clear direction be provided by the heads of institutions to their ATIP teams with regard to respecting the intent and spirit of the access legislation, because commitment to respecting this legislation has an enormous impact. By responding on time and by maximizing disclosure, your institution will incur a reduction in complaints; hence, a reduction in the oversight impact. They must therefore allocate sufficient resources to their ATIP unit. 39 per cent of the complaints received by my office last fiscal year were administrative complaints such as delays which could have been completely avoided if departments responded within the allotted time frames. Some departments have done so quite successfully (i.e. CSIS and CBC/RadioCanada). Successes at improving delays have led to a positive reaction from requesters who felt that their right to information has been respected, and a positive outlook on government transparency is achieved. I suggested to empower analysts to make certain judgement calls for example by letting them exercise discretion regarding the waiver of fees. These judgement calls may prevent numerous requesters from making an administrative complaint to my office. In terms of complaints resolution, progress may be achieved by designating someone at an ADM level within your institution to interact with my Assistant Commissioner about complaints that are not getting resolved at the coordinator level or to resolve a large number of complaints.

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It is our experience that an ADM level person often brings a different perspective in the review process. We now have regular meetings between my Assistant Commissioner and an ADM at CBC, CPC, PCO, CSC, CRA and RCMP. Collaboration with our office is the key to resolving complaints effectively and within a reasonable timeframe. In the last three years, I negotiated a resolution for 98% of over 7200 cases. This can only be done with the support of you and your team. Conclusions Information is the new source of wealth, power and influence. Those who have it want to protect it. Those who dont, want access to it. Never before has information especially government information- been so high on the publics radar. The more requests government gets from individuals or organizations, the more awareness and understanding there is of how government works. In these circumstances, the Act represents an even more powerful tool: as I noted earlier, it is a fundamental pillar of our democracy. The past 30 years has seen fundamental changes in government information. A year ago on Right to Know Day, I initiated an Open Dialogue process to solicit ideas on reforming the Act. Later this year, I will be bringing forth a number of recommendations. Here are a few potential recommendations. The Information Commissioner of Canada should have order-making power. Right now, I can only try to influence departments decisions on disclosure through discussion or by referring the matter to the Federal Court. There should be stronger incentives or penalties in the Act to ensure timeliness of disclosures. Current exemptions in the Act should be reviewed with a view to increased disclosure. The duty to record should be made more active especially in light of new technologies. The whole area of Cabinet confidences should be revisited. As discussed earlier, the Act should be extended to cover Parliament, ministers offices, and courts administration.

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And there should be mandatory, periodic reviews of the Act to promote public discussion. In this regard, the Office of the Information Commissioner should have an education mandate, especially for the public.

The right to know should not be confined to a special day or week. It is a right that must be observed and respected year-round. As I have conveyed now publicly and will continue to do: it is not enough for the government or government institutions to say that they are doing their best. Canadians have a quasi-constitutional right to access government information. The government has to ensure that it is abiding by its legal obligations under the Act and does what is required. In that context, modernizing the Act will address many issues but I will also continue to advocate for institutions to devote sufficient resources to meet their legal obligations under the Act. I have recommended this much as part of my letter to the government on their Open Government Partnership Action Plan and I will continue to emphasize it at every occasion. We all have our role to play. Your role is central to our good governance. Every single time that you respond within timelines and make a decision on disclosure in line with the intent and the spirit of the Act you make a difference. Have a great 30 years celebration today and happy Right to Know Week. Thank you.

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