Annual Report: 2003-2004

Status report on access requests in a deemed-refusal situation

l. BACKGROUND

For several years, a number of institutions were subject to review because of evidence of chronic difficult in meeting response deadlines. In his 1996-97 Annual Report to Parliament, the former information commissioner reported that delays in responding to access requests had reached crisis proportions.

As a result, the Information Commissioner has adopted the following standard as being the best measure of a department’s compliance with response deadlines: percentage of requests received which end as deemed refusals. Every department reviewed has been assessed against the following grading standard:

2. COMPLIANCE HISTORY

In early 1999, the Office of the Information Commissioner issued a Report Card on the Department of Foreign Affairs and International Trade’s (DFAIT) compliance with the statutory time requirements of the Access to Information Act. The Report Card contained a number of recommendations on measures that could be taken to reduce the number of requests in a deemed-refusal situation. In the 1999 Report Card, the department received a red alert grade of "F" with a 34.9% request to deemed-refusal ratio for access requests received from April 1 to November 30, 1998.

In December 1999, the review assessed the status of the recommendations made in the Report Card and made further recommendations for measures to reduce the number of requests in a deemed-refusal situation. At that time, the statistics showed that, from April 1 to November 30, 1999, the deemed-refusal ratio for access requests improved to 20.6%.

The progress in reducing the number of requests in a deemed-refusal situation regressed for the reporting period in 2000-2001; the deemed-refusal ratio moved back to 29.3%, or a red alert grade of "F" while the fiscal year to deemed-refusal ratio increased to 31.3%.

The January 2002 report noted that DFAIT had made substantial progress in meeting the time requirements of the Access to Information Act for the period from April 1 to November 30, 2001. The new request to deemed-refusal ratio improved to 17.7%, a grade of "D". Subsequently, the percentage of requests in a deemed-refusal situation increased to 22% for the 2001-2002 fiscal year that again constituted a grade of "F".

The January 2003 report indicated that DFAIT continued to make progress in reducing the number of requests that are answered beyond the time requirements of the Access to Information Act. DFAIT had achieved a grade of "B" with a new request to deemed-refusal ratio of 7.9% for the period from April 1 to November 30, 2002. This grade represented substantial progress by the department, although it degraded slightly for the full fiscal 2002-2003 to 10.1%, a grade of "C".

This report reviews the progress of DFAIT to come into substantial compliance with the time requirements of the Access to Information Act since the January 2003 Status Report. In addition, this report contains information on the status of the recommendations made that report.

3. CURRENT STATUS

For the period April 1 to November 30, 2003, DFAIT was unable to maintain the "B" grading of the past year, regressing with a new request to deemed-refusal ratio of 17%, for a grade of "D".

While this gives an accurate assessment of the deemed-refusal ratio to requests received within the above-noted reporting period, it does not take into consideration those requests carried over from the previous year, nor the number of requests already in a deemed-refusal status on April 1. To give a true indication of a department’s performance, these figures will be taken into consideration in future reports. However, for this report, the grading resulting from that inclusion is provided for information purposes only. In this instance, the results for April 1 to November 30, 2003, would be 15%, retaining the grade of "D".

The fact that DFAIT was able to achieve the level of compliance that it had in the past year was attributed to the amount of overtime that was utilized over a concentrated timeframe. This year, those resources were not available. Additionally, the year did not get off to a good start for the ATIP staff: in April, the Director accepted a position elsewhere in the department and, in May, the Assistant Director left for training and subsequently left the division. It was further pointed out that, not only were the two managerial positions vacant, which necessitated two of the senior analysts to step up to fill those positions thereby reducing their output, there were also staff losses at the analyst level. The staffing level of 11 positions (there are two frozen positions) is hard pressed to meet the demands based on the volume and complexity of requests received. A vacant analyst’s position was filled in August while the ATIP Director’s position was filled by the incumbent in early September.

Though the responsibility for the ATIP function of the Passport Office (a Special Operating Agency) has always come under the control of DFAIT, there has been a significant increase in the number of privacy requests and the internal requests for advice and guidance on privacy matters.

With the introduction of the TBS Privacy Impact Assessment Policy in May 2002, the ATIP office was required to become involved in some significant department-wide projects being undertaken during the reporting period. Most of these projects were at the Passport Office and required active involvement throughout the summer of 2003, including participation in meetings and planning groups, etc., without additional resources being provided. Some of these projects are still ongoing.

The projects have incorporated issues surrounding the passport security initiatives, including facial recognition and biometrics information collection being developed in support of the Passport Office as well as the verification of vital statistics and information-sharing with provinces. Additional PIA-related projects over the year include assisting records management in the development of the RDIMS project, as well as all other departmental project PIAs and their implementation along with associated departmental stakeholder meetings.

The ATIP office is also involved in providing advice on an ever-increasing basis to departmental representatives responding to matters such as human resources initiatives and to petitions from the Office of the Auditor General on environmental issues related to activities in which the department is involved in some manner.

The department had to deal with a number of extraordinary high profile cases over the past year that resulted in complex access requests necessitating detailed operational involvement. While the actual request numbers do not appear that high, over the same timeframe, the ATIP office was also involved in reviewing a large number of records in support of certain consular activities dealing with distressed Canadians abroad. Distressed Canadians include anyone who is arrested in a foreign country, lost their passport while abroad, was the victim of a criminal act or a myriad of circumstances that necessitated consular staff coming to their assistance and subsequently having to provide information to next of kin in Canada.

4. FUTURE CONSIDERATIONS AND FURTHER RECOMMENDATIONS

For the 2004-2005 fiscal year, planning is already in place for dedicated briefing sessions to departmental staff, a project that was begun in the fall of 2003 and credited by other divisions in the department as being informative and very useful. As well, training sessions for new ATIP staff have been developed, including on-the-job and interactive training as caseloads permit. Internal ATIP reorganization introducing a more comprehensive team approach has been introduced since October and is continually being reviewed.

A procedures manual has been developed, approved and implemented within the ATIP unit. This is an ongoing project, which is continuously being improved upon.

These initiatives should enhance the confidence level and consistency in processing to reflect an overall improvement in responding on time in the coming year. However, there are many other areas that remain to be improved.

This report makes the following recommendations to assist DFAIT in its efforts to maintain its progress in meeting the time requirements of the Access to Information Act.

4.1. Resources

The current staffing provides for 11 positions, which include three support staff, one Deputy Director and one Director. Of the remaining staff, 5 are dedicated to Access to Information and one of these is the senior ATIP officer. Two of the staff positions are rotational within the department. There are also three ATIP consultants, one of whom is dedicated to reviewing historical records. In light of the volume of work and increasing non-specific external tasks required of this unit, it would appear that the ATIP office is severely understaffed.

4.2. OPI Retrieval of Records

ATIPflow is still not being used to produce meaningful data on OPI actual versus allocated time for records retrieval. While the procedures manual notes that the OPI has seven days to provide either the documents or an estimate of number of hours to search for relevant documents, there does not appear to be any formal higher level involvement should this timeframe not be met. Although production meetings are held weekly, senior management must get involved where OPI responses are negatively impacting on the ability of the ATIP office to respond to requests in a timely manner. In that vein, the recommendations made last year remain.

4.3 Compliance Objective

Last year, the Commissioner’s Office recommended that DFAIT set an objective of maintaining a grade of "B" that constitutes substantial compliance with the time requirements of the Access to Information Act. The department, however, was not able to attain that goal. Nevertheless, it is further encouraged to attain at least substantial compliance with the time requirements of the Access to Information Act for the fiscal year 2004-2005.

5. STATUS OF 2003 RECOMMENDATIONS

In January 2003, recommendations were made to DFAIT on measures to further reduce the number of access requests in a deemed-refusal situation. The action taken on each recommendation is described below, following the text of the recommendation.

Action Taken: DFAIT failed to maintain the previous year’s grading of "B", resulting in this year’s recommendations being made with a view to assisting the department in achieved at least a grade of "B" for 2004-2005.

Action Taken: No new initiatives were introduced over the past year to enhance the responses from OPIs, apart from the development of the procedures manual and expanded training sessions.

Action Taken: Again, no specific initiatives have been put in place to date; however, with the introduction of the procedures manual, production meetings and expanded training sessions for departmental staff, it is anticipated that improvements will be reflected in next year’s performance.

6. QUESTIONNAIRE AND STATISTICAL REPORT

EXCERPT FROM DEPUTY MINISTER’S RESPONSE TO STATUS REPORT

"Since the commencement of your office’s annual review of our performance in 1998, steps have been taken to improve our capacity and to strengthen our compliance. This included some additional resources, streamlining of processes, training and renewed awareness of obligations. Although our performance gradually improved to achieve substantial compliance in 2002 (Grade of B), we have regressed in 2003 to a Grade of D, which is unacceptable.

Although the number of requests received over the past 3 years remains relatively stable, the complexity of the requests has increased as has the number of pages being processed. Furthermore, the annual volume of consultations from other departments has increased to the point that it is now equivalent to the number of access requests processed. These consultations require comparable resources to direct requests, directly jeopardizing our ability to respond expeditiously.

We are also making every effort to respond to an increase in the number of requests received under the Privacy Act. Indicative of the growing public interest in and attention to privacy issues, there is a growing number of issues upon which the Access to Information and Privacy Protection Division has been required to provide advice to departmental officials and senior management, including consular and Passport services policy issues and the requirements of the Privacy Impact Assessment Policy.

The Department also continues to support, with the National Archives of Canada, a screening program to ensure that the maximum number of archives departmental files are declassified and available to researches and academics. Under this program, a total of 200,000 pages of information was reviewed this year. Informal access is also given to a unique outreach program which gives post-graduate students, university professors and scholars the ability to review screened files dealing with Canada’s international relations. These efforts, while not recognized or captured under the aegis of formal access under the Act, represents a departmental commitment in support of the principles which underpin the Act.

Your Status Report on Access Requests confirms concerns that had already been identified internally. In order to deal more effectively with the processing of formal requests, we have undertaken a number of steps to ensure consistency in the quality of our responses while maximising the efficiency of operations. For example, last fall, we realigned our procedures to create a team structure to better share information within the unit and to ensure consistent quality control measures. In addition, we provided training to 265 departmental officials. Although we believe that these actions have improved the overall quality of our responses and have increased departmental awareness, they have not resulted in improved turnaround times.

Consequently, we have decided to undertake an independent review of the Access to Information, Privacy and historical/screening functions in order to properly assess the organizational, human and financial resources elements involved in the process, along with accommodations and technology requirements. This review will focus on key functions and will identify actions to be taken to bring these functions in line with the objectives of the division, the directorate, the Department and the Acts. We intend to provide you with a copy of the results of this review along with the action plan upon its completion.

The recommendations made in the 2003 Report Card have been reviewed and the department agrees with all of them. They, along with the action plan arising from the evaluation, will assist the Department in identifying ways to build a stronger, sustained function…

I would like to thank you for the opportunity to comment on this report and to provide your office with our response. The Department recognizes its legal obligations under the Access to Information Act and it is our intention to develop solutions to the persistent deemed refusal issues identified in your Report."