Annual Report: 2003-2004

7. Delays In The Minister’s Office

Background

A requester asked the Department of Foreign Affairs and International Trade (DFAIT) for access to records showing the expense reimbursement claims (relating to travel and hospitality) for four DFAIT officials. Before the legal response deadline, DFAIT asked the requester if he would accept an expense summary prepared by the department in lieu of the actual expense claim records. The requester agreed. Then the wait began--no response, not even the summary, was given. When the requester pestered the department for an explanation, he was told that the proposed release package had been in the minister’s office awaiting approval for over a month. He was told that there was nothing departmental employees could do but wait until the minister and his staff had given approval for disclosure. The requester complained to the Information Commissioner.

Legal Issue

Is a minister (and his office staff) entitled to insist that his or her approval be obtained before access requests are answered even if waiting for approval means that legal response deadlines are missed?

The investigation showed that this was not the only case held up, beyond response deadlines, awaiting the approval for release from the minister’s office. The departmental staff felt they could not answer requests until the minister’s approval had been obtained. The minister’s office felt that the departmental staff were wrong to wait for their approval if it meant response deadlines would be missed. It seemed a classic case of miscommunication--and access requesters were the losers caught in the middle.

The Information Commissioner determined that a previous minister had delegated his authority to answer access requests to the department’s deputy minister and Access to Information coordinator. That delegation of authority remains in force since it has not been countermanded by the current minister. In law, then, the minister’s staff have no lawful authority to approve access responses and departmental staff have the legal authority (and responsibility) to proceed to answer access requests without waiting for ministerial approval.

The commissioner advised the minister to clarify, in writing, his expectation that the right of individuals to receive timely answers to access requests be respected--even if that means that the minister may not always get an advance "heads up". While there is nothing unlawful about giving ministers advance warning and explanations about what will be released under the Access Act, the "heads up" process should be selective and must not result in missed response deadlines.

The commissioner also took the occasion to urge the minister to solve a longstanding record of poor performance by DFAIT in meeting access response deadlines. While delays in the minister’s office contributed to the overall problem, other causes have been identified by the commissioner’s report card (see the results for 2003-04, at pages 116 to 124). As a department which receives relatively few access requests, there is no excuse for further procrastination in coming into full compliance with the law’s response deadlines.

Lessons Learned

Meeting the access response deadlines on a consistent basis requires careful attention and leadership from the minister and deputy minister. The minister’s communication needs must not be allowed to take precedence over legal rights to timely responses. Only ministers can make this priority clear to ministerial staff and departmental officials, who are prone to put the minister’s interest above all else.