Annual Report: 2002-2003

The problem of delay in the access system will remain a priority for the Information Commissioner in the coming years. However, the focus of attention will shift and a new priority will be added.

The shift of focus with respect to delays will involve careful attention to the manner in which government institutions are interpreting and applying the time extension provisions in section 9 of the Access to Information Act. It is important to verify that the reduction in incidence of failure to meet response deadlines is not due to an overly liberal use of the Act's time-extension provisions. As well, attention will be paid to compliance with the subsection 9(2) requirement that institutions notify the Information Commissioner of any extensions of time longer than thirty days.

The new priority for attention will be the philosophy and approach to application of exemptions--particularly discretionary exemptions. The need for attention to this matter is well articulated in the June 2002 Report of the Access to Information Review Task Force, as follows:

"While we have concluded that the overall structure (of the Access Act) is sound, this does not mean that the outcomes that Parliament intended are always achieved. It is our view that this is not so much due to the general structure of the Act, or even the specific exemptions or exclusions. Rather, it is due to the way discretionary exemptions are understood and applied.

The exercise of discretion inherently implies a consideration of the factors relevant in each particular case, including any anticipated harm from disclosure. However, it is our impression that heads of government institutions (or their delegates) do not always consider all relevant factors in exercising their discretion, nor do they articulate clear reasons for withholding information. We found that this is a problem in all the jurisdictions we consulted.

The challenge is to find ways to bring the practice more in line with the intent of the Act. We believe that institutions should consider whether an identifiable harm could result from disclosure, regardless of whether a particular exemption includes a specific injury test. We also believe that, in exercising discretion, institutions should consider the fact that information usually becomes less sensitive over time. The most productive reform would be to find a way to ensure that discretion is exercised only after such consideration. An exemption would then be claimed only where good reasons can be articulated for withholding information.

The application of exemptions should not be a matter of intricate legal reasoning, but of basic questions asked consistently at all stages in the process: Are there good reasons for withholding the information in this case? How soon can it be made available without causing harm to one of the interests protected by the Act?" (pages 43-44)

This new priority will be reflected in next year's Report Cards and will involve analysis of a sample of responses to access requests which were not the subject of complaint to the Information Commissioner. Among the factors to be assessed in such reviews will be:

1) Are reasons for exemption recorded on the processing file?

2) Were an appropriate range of factors, pro and con, weighed before invoking exemptions?

3) Is there evidence indicating that discretion was exercised in favour of disclosing exemptible information?

4) Have the delegated authority and access professionals been given training with respect to the proper exercise of discretion?

5) Is there evidence on the file that the delegated authority plays a challenge role when operational managers recommend secrecy?

6) Does the department have written guidance concerning the proper exercise of discretion and establishing a philosophy that exemptions and exclusions are to be interpreted and applied to facilitate and promote, as much as possible, the disclosure of information?