Canada’s Access to Information System ‘At Risk’: Commissioner

Legault demands Treasury board president Tony Clement address problems
October 17, 2013 Updated: October 17, 2013

PARLIAMENT HILL—Canada’s access to information system is facing systemic failure, warned Information Commissioner Suzanne Legault Thursday following the release of her 2012–2013 annual report.

Legault noted a host of challenges to the system and went as far as issuing a stark warning and calling on Treasury Board President Tony Clement to take action.

Legault could not say what was more responsible for the crisis—a rising number of access requests in the face of ongoing budget restraints, or government reluctance to provide information.

“I have no way to measure what the reasons behind this situation is,” she said.

“Some of it has to do with a lack of resources. Some of it really has to do with not respecting the ombudsman’s role in terms of accepting my recommendations.”

Legault said in one instance a minister agreed to her request for records to be released by a certain date, and then didn’t honour that commitment.

“That’s a lack of respect for the actual obligations under the act. It’s a lack of respect for the role of the commissioner in its recommendation role.”

In other instances, institutions try to dodge responsibility for responding to requests by directing requesters to other institutions. That ping-pong manoeuvre is due to a lack of capacity, Legault said.

And while proactive disclosure could head off many requests, Legault said that requesters often want something that would normally not be in the public domain or would not be disclosed proactively.

The result is an access to information system under serious strain.

“In 1983 Canada was a world leader, but in more recent years, we have fallen behind.”

Slight but perceptible improvements last year have disappeared, as has the optimism Legault had in her previous annual report. In its place, she sees “unmistakable signs of significant deterioration in the federal access to information system.”

Skyrocketing complaints, resources crunch

Complaints have skyrocketed, up 50 percent in the first quarter of this fiscal year. Administrative complaints are up as well, indicating basic failures on the part of institutions involved.

In her report, Legault said that the integrity of the system was at serious risk, and about half of her office’s resources are dedicated to dealing with complaints and investigations around delays rather than more important work like reviewing redactions.

“It’s a complete waste,” Legault said.

“If people were to respond on time, and in a timely manner, it would actually make the system a lot more efficient.”

In some cases, institutions like the RCMP have “fallen under” a mountain of requests, unable to process them quickly enough to avoid complaints and missed mandatory deadlines. Missing those deadlines require additional reporting, sometimes even investigations, using up additional resources.

Legault noted that the RCMP is now breaking access to information (ATI) laws by responding to requests saying its office does not know when it can fulfill the request.

The RCMP is working on a plan to increase staff dealing with requests, but it’s a situation emblematic of a broader lack of resources to deal with access requests.

“The resources crunch is exposing the fragility of the overall ATI system in the federal government,” Legault said.

Other departments are failing to provide the help they are required to give requesters, or are not even retrieving the records requested.

National Defence took three years to respond to one request, claiming the delay was due to consultations and other factors. In the end Legault had to take the department to court, but it released the requested information less than a month before the court date.

In another instance, Correctional Service Canada destroyed records related to an ongoing investigation.

The Canada Border Services Agency and Citizenship and Immigration Canada played ping pong with one request, both telling the requester they had to go to the other department for the records they sought, when the truth was that both departments had access to the information and a responsibility to provide it.

Some institutions have unique challenges dealing with requests, particularly the Canada Revenue Agency, which usually gets more than twice the number of complaints of any other institution.

“There are a lot of highly complex files dealing with complex tax schemes, generating twenty, forty thousand pages,” said Legault, explaining the challenge the CRA faces.

She said about a third of her office’s workload is dedicated to those complaints and the files are often linked to litigation.

Seeking prompt, effective system fix

But regardless of what problems institutions face, the overall result is a system facing failure and no indication the government is prepared to fix it.

“It is imperative that the access problems be fixed promptly and effectively,” Legault said.

Legault noted that the throne speech Prime Minister Stephen Harper gave on Wednesday outlining his government’s priorities included no mention of access to information.

“Canadians have a quasi-constitutional right to most government-held information, and they should have the prerogative to request what they want to see when and how, not when the government chooses to release the information.”

Legault is working on recommendations to improve the act, but said past recommendations by herself and others have been ignored. Most notable is the fact that Parliament itself is not covered by the Access to Information Act.

Not specifically naming the Senate expense scandal, Legault noted that events of the last few months have revealed the problems posed by Parliament’s exclusion.

Later this year, she will bring those recommendations forward. At Thursday’s press conference she mentioned that one solution was to have a swat team ready to bounce to any department facing a surge of requests around specific incidents like the listeriosis outbreak in 2008 or the Lac Megantic rail disaster in July.

She said it would also be pragmatic to focus on the 20 institutions (out of around 260) that receive the most complaints and push their deputy ministers to make improvements.

In a few weeks she will also publish an investigation on the use of text messages by government institutions.

“We live in an information age and Canadians are demanding more information. When the access to information system falters, the health of our Canadian democracy is at risk. The federal access to information is failing.”

‘Dramatic’ faltering of system

Clement is the minister responsible for addressing that. Earlier this week, Legault made the unusual move of warning Clement she would be calling him out, saying she told him she would name him publicly.

Also responsible are deputy ministers reporting to the Clerk of the Privy Council and heads of agencies that fail to meet the legal obligations of the act.

Legault wants to see senior public servants’ performance reviews to penalize those who fail to meet their obligations under the act.

As for Clement’s claims that the current government is the most transparent ever, Legault has reservations.

“The minister cannot say this is the most transparent government simply based on the fact that we have more access requests, if we are simply not responding to them, or not responding to them before a year has lapsed. That’s not transparency, that’s simply breaching the law, and I think that is what the minister has to respond to.”

In her seven years as assistant commissioner and commissioner, Legault has not seen the problems she is seeing now, nor has she spoken so bluntly.

“What I am seeing this year, and this past year, I have not seen before. The faltering in the system is actually quite dramatic, and it’s not getting better.”

‘Proud of our record’: Clement

Asked about the report later that day, Clement said the government would look for ways to improve but continued to tout his record to date.

“I am very proud of our record. We have an open and transparent record second to none,” he said.

Clement said last year alone the government’s replies to requests went up by 27 percent to 54,000 requests.

“The number of pages last year that that represents is six million pages, which is two million pages more than the year before.”

He said the government has also improved in its response time and said if there were staffing issues, the government could deal with those.

“Given exponential nature of inquisitiveness of both the media and ordinary citizens, we are doing more than pulling our weight.”