Annual Report: 2002-2003

For many of the access law's 20 years of life, the priority of the Office of the Information Commissioner has been to address a chronic problem in government of delay in answering access requests. At the beginning of this commissioner's term, in 1998, the "Report Card" initiative commenced under which selected departments were graded on the basis of the percentage of access requests received which were not answered within statutory deadlines. Those report cards (37 in all, covering 11 institutions) have been tabled in Parliament either as special reports or, as this year, included within the commissioner's annual reports.

Since the report card initiative commenced, in 1998, there has been a dramatic reduction in the number of complaints of delay received by the commissioner, from a high of 49.5 percent of all complaints to a low, this year, of 16.2 percent.

The Office of the Information Commissioner continued this year to focus attention on the performance of departments in meeting response deadlines. The same grading standard was used this year as in the past. It is based on the Act's provision which "deems" late answers to be "refusals". The grade depends on the percentage of all requests received which are not answered within statutory deadlines and, hence, are deemed refusals, as indicated in the tables below.

In previous years, three departments achieved ideal compliance, Privy Council Office and Health Canada received an A in early 2000, one year after the initial Report Card. Human Resources Development Canada received an A in early 2000.

This year, a Status Report was completed on all nine departments that were issued Report Cards in previous years. In addition, two departments, Public Works and Government Services Canada and Correctional Service Canada, were tested and graded for the first time.

The results achieved by the nine departments in processing access requests from April 1 to November 30, 2002, within the time requirements of the Access to Information Act are displayed in Table 1.

Overall, departments have made significant progress in implementing the Report Card recommendations and reducing the incidence of delay. Each department has taken a somewhat different approach to reducing the number of requests in a deemed-refusal situation. Because the Report Cards and the Status Reports are issued for a portion of the fiscal year (April-November), there is a tendency to end the year with a grade less than the grade for the first eight months of the fiscal year. Table 2 illustrates the situation among the departments that were issued a Status Report in January 2002.

As can be seen from Table 3, there has been an overall positive improvement in performance since the Report Card process commenced in 1998.

All of the six institutions originally receiving an "F" pulled up their socks in subsequent years. Four of the six attained "A"s and two achieved "B"s. Only one of the original six showed backsliding from its best grade. In its 1999-2000 Report Card, PCO moved from the failing category to an "A". This year it was retested and found to merit only a "D".

Transport Canada was not tested until 1999-2000 when it received an "F". Its grade had improved to a "C" by 2001-2002. Regrettably, there was backsliding this year to "D". Notable, too, is the fact that HRDC received an "A" in its first test in 1999-2000. In its retest this year, it joined PCO in dropping to a "D".

The two institutions tested for the first time this year--CSC and PWGSC--both received failing grades. (Full Report Card reports are found in Appendix B.)

It seems evident that the problem of delay is less serious but not yet solved. There are many factors in the access process that may lead to an unacceptably high number of access requests in a deemed-refusal situation. Of all of these factors, four stand out as potential causes of delay:

• Slow records retrieval: Records retrieval within the allocated timeframe is essential to avoid initial delays in the process;
• Inadequate resources: The access to information coordinator must have sufficient resources to handle the volume of requests received by the department along with the appropriate delegated authority;
• Top-heavy approval process: An approval process that requires a number of reviews is burdensome and causes substantial delays in departments that continue to operate in a "play it safe" mode; and
• Inadequate attention from the top: The entire access process needs the support of senior management. If their support is not visible and communicated to departmental staff, adherence to timelines tends to break down over time.

Time extensions for consultations under paragraph 9(b) of the Access to Information Act continue, at times, to be an impediment to reducing the number of access requests in a deemed-refusal situation. A lack of communication among departments can mean that the length of time selected for a time extension is determined without seeking the input of the department that will review the records. In addition, a department may forward more than one access request to another department at the same time for consultation without prior communication with that department.

Over time, Health Canada has demonstrated the highest level of consistency in meeting response deadlines under the Act. The Director, Access to Information and Privacy Division of Health Canada, identified a number of factors that, in his opinion, contributed to the maintenance of ideal compliance with the Access to Information Act's time requirements. Overall, the director identified constant perseverance to succeed in maintaining a grade of A and teamwork on the part of HCan staff as requisite ingredients to maintain ideal compliance. In addition, the following factors influenced the department's ability to process access requests on time:

OPI Communication

It is essential to regularly communicate the time requirements of the access process to offices of primary interest (OPIs) and their responsibility as part of the access to information (ATI) team to meet the time requirements. The OPI ATI contact person may change, or their priorities may change. Nonetheless, there is a statutory requirement to meet both legislated and HCan timelines for completing the OPI's part of the access process and this must be conveyed to OPIs on a regular basis.

Request Clarification

When an access request requires communication with the requester to clarify the request, the receipt date of the request must be changed to take into account the clarification.

ATIP Director's Assistance

At times, the ATIP director has to become involved in the access process for a request regardless of how much delegation occurs. The director makes himself available to ATIP staff when staff alert him to a potential delay problem. Focussing on a potential deemed-refusal situation and possible corrective measures a few days before a delay may occur is one method of avoiding a deemed-refusal request.

Fee Estimates

HCan always "stops the clock" when a fee estimate is sent to a requester. The actual days for processing the request do not include the time taken by a requester to respond to a request for a deposit or a fee as provided by the Access to Information Act Regulation concerning fees.

Continuous Improvement

It is always possible to make improvements to the access process. For example, previously, one OPI contact person would complete a report on the search for records. A report was completed even if records did not exist. The director general of the area signed the report. Through streamlining, the report has been eliminated and the OPI contact person sends an e-mail directly to the ATIP Division on the result of the search for records.

Contact of the Month Award

In order to recognize excellence, the ATIP Division of HCan has established an OPI Contact of the Month Award.

Senior Management Engagement

The ATIP director provides a weekly report to the deputy minister's office identifying late access requests and reasons that the requests are late.