The Canadian Newspaper Association (CNA) requested that the Office of the Information Commissioner investigate the existence of secret rules in the federal public service for processing media requests for information under the Access to Information Act which amount to systematic discrimination and result in unfair and unjustifiable delays in the processing of media requests. The complaint did not identify any specific access request, but raised the prospect of there being systemic issues with the handling of media requests which have a serious impact on the media’s right of access to information under the control of federal government institutions.

The CNA’s complaint of September 2005, related to access requests made by members of the media to all government institutions over an unspecified time period. After our preliminary assessment of the matter, and in consultation with the CNA, 21 government institutions were selected to become the subjects of this investigation regarding their processing of access requests over the time period between April 1, 2003 and March 31, 2005. (see Appendix A for the institutions involved).

We examined two issues in our investigation. First, whether the processing of access requests by the media was subject to secret rules or to some other form of systematic discriminatory treatment specifically directed at media requests. Second, whether the processing of access requests by the media was subject to unfair and unjustifiable delays. In our view, the first issue required a comparative review of the process for the handling of media requests in each government institution selected to be part of this investigation, while the second issue was best dealt with on the basis of statistical analysis.

In investigating the complaint, we took a broad view of what was being alleged and did not narrowly, or legalistically, interpret it. We did not restrict our focus to the words "secret" or "rules" and investigated in a broader sense the possible existence of "policies" or "practices", even if they did not amount to "rules." Likewise, we did not restrict ourselves to rules, policies or practices that were clandestine or secret, but also investigated any that were open or widely acknowledged.

In accordance with the Access to Information Act, we received a series of representations from the 21 federal institutions involved as well as the CNA. We used these in making our assessments as to what the evidence meant, which facts we should find and what conclusions we should draw.

While we were unable to conclude on the basis of our investigation that there exists "secret rules" or a government-wide systematic practice specifically directed against each media request, or the media in general, we did conclude that there was some merit to the second part of the CNA’s complaint about unfair and unjustifiable delays.

Our conclusions are that access requests that are labeled as "sensitive", "of interest", "amber light" or with some other label indicating a need for "special handling", whether they are made by the media or any other group, are subjected in most government institutions we investigated to unwarranted delays in processing. The media is not singled out but is a part of a wider problem affecting other groups as well, including Parliamentarians, organizations, academics and lawyers.

In order to resolve this complaint, we made the following recommendations to the President of the Treasury Board and to the heads of the other 20 government institutions involved:

1. that, subject to section 9 of the Act, any government institution which categorizes or labels access requests in any way, and which may lead to any form of special handling, shall undertake not to delay the processing of these requests;
2. that the President of the Treasury Board undertake a study of how the institutions which categorize or label access requests for special handling, with no detriment to the timely processing of access requests, organize the process, with a view to issuing Best Practices to all government institutions; and
3. that the Treasury Board Secretariat, as it identifies areas for which they will be collecting statistics starting in fiscal year 2009-2010, include statistics from all government institutions which would allow the monitoring of this system of categorization of access requests and how it affects response times to requests.

The President of Treasury Board and the heads of all 21 institutions agreed to follow our recommendations. We will follow up with the Treasury Board Secretariat and the other institutions on their progress in implementing our recommendations. We will report our findings and results to Parliament, the government institutions and the public in a subsequent report.