Annual Report: 2003-2004

Report card on compliance with response deadlines under the Access to Information Act

A. REPORT—January 2004

I. Glossary of Terms

Each institution is required, by Treasury Board policy, to designate an official known as the Access to Information Coordinator. The Access to Information Coordinator is responsible for receiving access requests. Coordinators may also be delegated authority, from the heads of institutions, to levy fees, claim extensions, give notices and invoke exemptions. The scope of a Coordinator’s authority varies from institution to institution.

• Well-founded—Complaints well-founded but not resolved, where the
  Commissioner sought consent from the requester to pursue the matters
  in Federal Court.
  
• Resolved—Well-founded complaints resolved by remedial action
  satisfactory to the Commissioner.
  
• Not Substantiated—Complaints considered not to be well-founded.
• Discontinued—Complaints discontinued, on request from the
  complainant, prior to a final resolution of the case.
  

10. (3)Where the head of a government institution fails to give access to a record requested under this Act or a part thereof within the time limits set out in this Act, the head of the institution shall, for the purposes of this Act, be deemed to have refused to give access.

9. (1)The head of a government institution may extend the time limit set out in section 7 or subsection 8(1) in respect of a request under this Act for a reasonable period of time, having regard to the circumstances, if

(a) the request is for a large number of records or necessitates a search through a large number of records and meeting the original time limit would unreasonably interfere with the operations of the government institution,

(b) consultations are necessary to comply with the request that cannot reasonably be completed within the original time limit, or

(c) notice of the request is given pursuant to subsection 27(1) by giving notice of the extension and, in the circumstances set out in paragraph (a) or (b), the length of the extension, to the person who made the request within thirty days after the request is received, which notice shall contain a statement that the person has a right to make a complaint to the Information Commissioner about the extension.

9. (2) Where the head of a government institution extends a time limit under subsection (1) for more than thirty days, the head of the institution shall give notice of the extension to the Information Commissioner at the same time as notice is given under subsection (1).

Office of primary interest or the location in the department responsible for the subject matter to which the access request relates.

Unfinished requests or complaints:

• Pending Previous—Requests or complaints that were unfinished at the close of the previous fiscal year, and thus carried forward into the reporting period (the fiscal period indicated on the pie chart).
• Pending at year-end—Requests or complaints that are unfinished at the end of the reporting period (the subject fiscal year), which will be carried into the next fiscal period.

The time taken to complete each stage in the access process, from the date the access request is received to the time a final response is given.

"Third party," in respect of a request for access to a record under this Act, means any person, group of persons or organization other than the person that made the request or a government institution.

"The Access to Information Act [the Act] is based on the premise that the head of each government institution is responsible for ensuring that their institution complies with the Act, and for making any required decisions. There is also provision for a designated Minister to undertake the government-wide coordination of the administration of the Act. The President of the Treasury Board fulfils this role."

"One of the statutory responsibilities of the designated Minister is to prepare and distribute to government institutions directives and guidelines concerning the operation of the Access to Information Act and Regulations. The policy contained in this volume constitutes the directives referred to in the Act, and along with the Act and the Regulations establishes the minimum requirements for subject institutions. The guidelines are intended to provide an interpretation of the requirements and guidance on the application of the Act, the Regulations and the Policy."

II. Background

For several years, the Office of the Information Commissioner has received complaints from requesters about requests in a deemed-refusal situation. It is likely that, across government, the number of complaints on requests in a deemed-refusal situation represents only a portion of the actual number of requests processed outside of the time requirements of the Access to Information Act. The unacceptable high level of requests in a deemed-refusal situation has been illustrated in previous Report Cards issued since 1999 by the Commissioner’s Office.

As part of the proactive mandate of the Commissioner’s Office, each year a department (or departments) is selected for review. The review is conducted to determine the extent to which the department is meeting its responsibilities for complying with the statutory timeframes for processing access requests established by the Access to Information Act.

Industry Canada was selected this year for review. The department has been one of a number of institutions subject to review because of evidence of chronic difficulty in meeting response deadlines. When the Commissioner’s Office receives a high number of deemed-refusal complaints about a department, it may be symptomatic of a greater response deadline problem within the department.

III. Grading Standard

This Report Card contains the results of the Information Commissioner’s review of IC’s performance statistics from April 1 to November 30, 2003.

Since Canadians have a right to timely access to information (i.e. 30 days or within extended times under specified conditions), a delayed response is equivalent to a denied response. Parliament articulated this "timeliness" requirement in subsection 10(3) of the Act, which states:

10(3) Where the head of a government institution fails to give access to a record requested under this Act or a part thereof within the time limits set out in this Act, the head of the institution shall, for the purposes of this Act, be deemed to have refused to give access.

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. IC is assessed in this Report Card against the following grading standard:

Part A of the report consists of:

• An analysis of the statistical data
• An explanation of the reasons for the performance record
• A description of the steps being taken by management to improve performance
• A set of recommendations to assist the department.

Attached to the report (Part B) are the various questionnaires and responses, which formed the basis for the grading, observations and recommendations in this Report Card.

IV. Statistical Information

1. Requests

These charts present a graphic representation of IC’s request backlog.

At the outset of the 2002-2003 fiscal year, IC’s ATIP Office, known as Information and Privacy Rights Administration (IPRA), had 44 outstanding requests which were already in a deemed-refusal situation. The 2003-2004 fiscal year shows an increasing backlog at the start of the year with outstanding requests of which 119 are in a deemed-refusal situation.

With 466 new requests received in the 2002-2003 fiscal period and 324 new requests received in 2003-2004 to November 30, a trend of an increasing backlog of requests in a deemed-refusal situation at the start of the year represents a burden to IPRA. Non-compliance considerations aside, this backlog must be eliminated.

The time taken to complete new requests, however, does reflect some positive efforts to get the backlog under control. Nonetheless, the number of requests not processed within the time constraints is too high especially in relation to those completed within the legislated time limits.

• In 2002-2003, processing times for 57 requests completed beyond the 30-day statutory limit without an extension were:

• (52.6%) took an additional 1-30 days to complete
• (15.8%) took between 31 to 60 additional days
• ( 8.8%) took between 61 to 90 additional days
• (22.8%) were completed in over 90 additional days

• From April 1 to November 30, 2003, additional processing times for 23 non-extended new requests were:
  

• (73.9%) took an additional 1-30 days
• ( 8.7%) took between 31 to 60 additional days
• (13.0%) took between 31 to 90 additional days
• ( 4.3%) were completed in over 90 additional days

For extensions taken and not met, the following time delays occurred:

• In 2002-2003, of the 131 time extensions, 35 (26.7%) exceeded the extension of time as follows:

• (57.1%) took an additional 1-30 days
• (11.4%) took between 31-60 additional days
• ( 5.7%) took between 61-90 additional days
• (25.7%) were completed in over 90 additional days

• For completed requests, received from April 1 to November 30, 2003, of the 125 requests that were extended, 10 requests (8%) exceeded the extension of time as follows:

• (60%) took an additional 1-30 days
• (20%) took between 31-60 additional days
• (10%) took between 61-90 additional days
• (10%) were completed in over 90 additional days

As of November 30, 2003, 48 unfinished new requests were in a deemed-refusal situation. The duration of time beyond the time requirements of the Act for these outstanding requests is unknown.

In 2002-2003, the Office of the Information Commissioner received 21 deemed-refusal complaints against IC of which 20 (95%) of the completed complaints were upheld (resolved).

From April 1 to November 30, 2003, the Information Commissioner’s Office received 10 deemed-refusal complaints, 2 of which were discontinued plus 3 that were cancelled. Of the 3 completed complaints, all (100%) were upheld (resolved).

3. ATI Office—Staff

The processing of access requests is the responsibility of IPRA under the direction of the Director. The office is also responsible for processing requests under the Privacy Act. In addition, the IC ATIP Office provides general advice and basic administrative control of Access to Information requests received by the Ethics Counsellor, in the form of case tracking and correspondence.

At the onset of this reporting period, the staffing level of IPRA was comprised of 13 employees including the Director. This was increased in August 2003 to 15. The current complement includes 7 experienced ATIP advisors, 3 analysts in developmental or other non-clerical positions and 2 administrative support positions, all dedicated to ATI. There are currently five vacant positions. At no time over the past three years has the IPRA been fully staffed. Attempts have been ongoing to fill the vacant positions through secondments, assignments/deployments and the competitive process. Additionally, consultants have been utilized when financially possible.

4. ATI Office—Budget

IPRA salary budget for 2003-2004 is $700,000 or 15 full time employees (FTEs). The 2002-2003 budget was $511,482 for 11 person years and the 2001-2002 salary budget was $410,774 for 9 person years.

The IPRA operating budget for 2003-2004 is $206,327. For 2002-2003, the budget was $286,404 and for 2001-2002 it was $198,176.

Between $10,000 and $15,000 has been budgeted annually for ATIP staff training. The Director along with legal counsel have conducted training for departmental organizations and the costs have been incorporated in IPRA’s operating budget. The Director has also conducted tailored ATIP information sessions to departmental officials.

5. Allotted Times for Request Processing

The 30-day statutory time limit in the Access to Information Act allows 20 working days for processing access requests where an extension is not claimed. IC’s current planned turnaround times are listed below. The processing model conforms to the Act’s time requirements and allows 22 working days to respond to a request (without an extension).

V. Sources of Delay

The Report Card was initiated as a result of the number of complaints received leading up to this period and the number of requests in a deemed refusal identified by the department. The situation had gotten to the point that the Information Commissioner self-initiated a complaint to investigate 111 requests that were in a deemed-refusal situation at the end of FY 2002-2003. There appears to be a number of factors that contribute to the delay problem at IC.

This Report Card is based on the deemed-refusal situation, as it existed during the reporting period of April 1 to November 30, 2003. However, the issue of delays and deemed refusals has been a concern of Industry Canada and, in an effort to identify and improve the department’s performance, a departmental audit was conducted in September 2002. IC has addressed some of the observations and begun implementing a number of the recommendations contained in the audit in order to improve compliance with the time restraints of the Act. For example, additional funding for resources was approved and staffing is being finalized. ATIP electronic tools and equipment were also updated to assist IPRA employees in meeting their obligations. IC has already seen improvements on the processing of records as a result of governmental reorganization that occurred last fall. However, the comparison of statistical information on deemed refusals on the "Pre-Interview Self-Audit Questionnaire" (Section B II) indicates that there is still some work to do.

1. ATIP Office

The access process includes a number of steps in IPRA, which is staffed with dedicated employees. The program is supported by automated processes that enhance efficiency and provide the necessary tools for performance measurement and reports. However, while workload volume has increased considerably, ATIP resources have not. As noted in the audit review, a workload comparison found the IC ATIP workload to be almost double that of other departments reviewed for comparative purposes.

The processing of the vast number of requests involves considerable third-party consultations and, because of the nature of the department, there are usually numerous third parties involved. The large workload of each advisor puts considerable strain on the limited number of experienced advisors to adequately fulfill the consultative process within the legislative timeframe allowed. Even with the provision extensions, there is often such an overlap of files being processed that individual milestones are not met. Anticipated staffing should be completed by April 2004.

This burden of excessive workload was recognized by the audit, and the requirement for additional resources was one of the primary recommendations. Two additional positions were authorized in August 2003. Efforts to fill those positions, as well as the three positions that were already vacant, on a permanent basis, are ongoing as noted earlier in this report.

2. Ministerial Involvement

Routine files are processed and approved with IPRA. The departmental milestone chart above reflects that, once a file deemed of interest to the Minister’s Office has been processed, it is sent to the Senior General Counsel then to the MINO for information. The process chart indicates up to seven days may be necessary for this level of review. However, records show that, over the past four years, some records have remained in this review stage for as long as three months. It must be noted that, since the new Minister has arrived, the number of files so tagged has been reduced significantly, and the seven-day turnaround is being respected.

There is a need to reinforce at all levels of staffing that the timelines outlined in the departmental milestones must be adhered to in order for the department to improve its deemed-refusal performance.

3. Approval Delegation

The IC Delegation Order establishes the authority and process for making recommendations and decisions on access requests. The Delegation Order is currently being revised due to the restructuring of the Office of the Ethics Counsellor with little effect expected on the ATIP Office directly. The current and new Delegation Order provides full delegation authority to the Director, IPRA.

4. Communications Function

The Director states that the consultation with the Communications Branch is done in parallel with the request processing, with a notice to the CMB very early in the process. This is done prior to the file being sent to the Minister’s Office. While that is the formal process, indications are that, over the past two years especially, there has been considerable involvement in the review/approval process by the Minister’s Office. Efforts to highlight delays in file processing apparently had little effect and was a substantial contributor to the overall record of deemed refusals for at least the earlier part of the current reporting period. Ministerial changes and the resulting adherence to the modified formal process have resulted in positive improvements and indications are that this will continue to improve over the next year.

5. Operational Areas (OPIs)

OPIs are required to search for and retrieve records to respond to access requests. The OPIs are required to provide records to IPRA within 5 to 8 working days. The Director, IPRA, believes that the delivery of records from the OPIs has impacted somewhat in the overall poor performance in meeting the time requirement of the Act. There is insufficient data to objectively measure this fact against the performance. The Access to Information Review Task Force in its report Access to Information: Making It Work recommended that responsibilities related to access to information and information management be included in the job descriptions of officers and managers.

6. Training

For OPIs to complete their part of the access process, ATI training and documented procedures including timelines are required on an ongoing basis. IPRA staff must keep current on developments in the interpretation of the Access to Information Act. ATIP staff are provided the opportunity to attend various training sessions and information sessions provided both commercially and by Treasury Board as well as the annual CAPA organized events. IPRA Office is structured into teams, whereby junior and inexperienced IPRA employees are paired with a senior advisor (team leader). The team leader becomes a coach and advisor assisting their team member in their development and training, be it the application of the legislation as well as the department. Although this is an ongoing exercise, on average a new employee takes about 12-18 months to acquire sound knowledge about Industry Canada. However, the high number of inexperienced analysts puts added pressure on the Director to ensure that IPRA employees have the appropriate level of guidance and the right tools to do their work and meet their obligations.

OPIs expect strong support from IPRA in training to understand precisely what their responsibilities are under the Access to Information Act, particularly with respect to timelines and extensions. In addition, the OPIs need procedural and instructional information on how to carry out tasks assigned to them as part of the process for responding to access requests. IPRA has produced a User Manual for OPIs for the Access to Information Act. IPRA has simplified and condensed its User Manual into practical guidelines, which are provided to OPIs with every request. These guidelines provide useful and practical tips on the responsibilities and how to respond to access requests.

IPRA is in the best position to identify training priorities and needs. IPRA understands the level of knowledge of OPIs on the Access to Information Act through interaction on access requests including reasons for deemed-refusal situations. The office is aware of complaints about problems in meeting the requirements of the Act and is aware of departmental issues that may impact on the Act. ATIP training is provided upon request and through general sessions. Once staffing is completed with IPRA, a national ATIP awareness and training plan will be developed and formalized for departmental officials.

IPRA should also develop a Training Plan for staff in the office. The plan could be based on an assessment of the work requirements of IPRA in dealing with access requests and complaint results from the Office of the Information Commissioner to identify skill gaps. Team Leaders within IPRA have more responsibility in the training of their team members. Overall, ATIP business approaches and structures are kept simple and shared with IPRA employees. Each employee is required to prepare their own training plan in conjunction with the Director and Team Leader.

7. Consultations

The nature of the function of Industry Canada and the resulting access requests necessitate numerous consultations with other government departments as well as third parties. Through the course of processing many of these requests, the Director has stated that an informal consultation mechanism is utilized where possible. Because of the high volume of requests and the large number of consultations required, she is of the opinion that this allows her office to fulfill her response obligations while better managing the workload.

The consultative process, especially as it relates to third parties, is clearly outlined in the Act and does not allow for variances. At present, the informal process appears to fall short when the third party either does not respond in a timely fashion or does not fully agree with the release of their information. In many cases, this necessitates the introduction of formal consultations following the provisions of the Act and, by this time, not only has the original due date been missed but so has any extension.

8. Extensions

Hand-in-hand with the consultative process is the invoking of extensions to enable departments to complete the necessary consultations with third parties and other government departments or organizations as necessary. When these extensions are taken, the timelines and due dates must be monitored to ensure they are adhered to. ATIPflow, the tracking system used by most departments as well as IC, provides a fairly comprehensive BF system, but it must be followed. While it is appreciated that the workload experienced over the past few years has impacted heavily on the experience levels of the ATIP staff, the Director must ensure that the analysts are not only trained on the systems at their disposal but that deadlines are met.

VI. Management Response to the Problem of Delay

The ATIP Director has been working over the past year to improve staffing and departmental understanding of the requirements of the Act. Staffing increases have been approved and actions are currently underway to fill the vacancies that have been created. The department is channelling more financial resources into staffing in IPRA.

There are other changes in development or planned that are expected to result in improved performance and a reduction in the number of access requests in a deemed-refusal situation. To date, IPRA has prepared ATI guidelines, which should improve consistency, ensure adherence to IC ATI policies, and speed the learning program for new staff and OPIs.

VII. Recommendations

There are a number of departments that have found themselves in an "F" grade, red alert situation, with regard to the new access request to deemed-refusal ratio. Through deliberate commitment, well-planned and executed measures and in timeframes as short as two years, other departments have attained substantial and ideal compliance. With these possibilities in mind, this review recommends the following:

1. The ATIP Director is directly responsible for ensuring compliance with the Access to Information Act and should take a strong leadership role in establishing a culture of compliance throughout IC. Such a role requires the unwavering support and endorsement of the Minister and the Deputy Minister. Senior management support for the development and monitoring of an ATI Improvement Plan is one method of making a commitment to comply with the time requirements of the Act.
2. Routine reporting on planned versus actual time taken to process access requests and the status of measures taken to reduce requests in a deemed-refusal situation should be instituted. The reports will provide senior management, OPIs and IPRA with information needed to gauge overall departmental compliance with the Act’s and department’s time requirements for processing access requests.
3. IPRA should develop an ATI Training Plan for 2004-2005 for OPIs and IPRA staff and incorporate the introduction of the User Manual into the training provided to OPIs.
4. The Minister should direct the ATIP Director, in writing, to exercise the delegation to answer requests within deadlines whether or not the approval process has been completed.
5. The approval process should be process mapped and reviewed to remove steps that do not add value to the process, particularly the allocation of time in the process to the Communications Branch and ministerial review. At the same time, the Delegation Order should be reviewed to determine if further delegation is appropriate within IPRA.
6. The specific reasons for the requests in a deemed-refusal situation from April 1 to November 30, 2003, should be identified and remedial measures developed for subsequent years for incorporation into the ATI Improvement Plan.
7. A firmer structure should be implemented whereby the timelines of extensions are adhered to and incorporate a hastener system when due dates are approaching when no replies have been received to consultations.
8. The manner in which consultations are conducted, especially involving third parties, must be readdressed to ensure that they follow the tenets of the Access to Information Act and that the legislated rights of third parties are not being circumvented.

B. BASIS OF REPORT

I. Interview with IC’s ATIP Director

On January 22 and 23, 2003, IC’s ATIP Director was interviewed for the purpose of this Report Card.

EXCERPT FROM THE DEPUTY MINISTER’S RESPONSE TO REPORT CARD

"The Minister and I fully support Industry Canada’s Access to Information program and our common goal is to ensure that Industry Canada improve its response time under the Access to Information Act.

Industry Canada recognizes and takes seriously its obligations under the legislation and as such, every effort is being made to improve the department’s response time in compliance with the Act. In fact, the department has already successfully implemented a number of measures which have resulted in a significant improvement in its compliance. Some of the actions taken include increasing the resource base for the ATIP Office, streamlining some of the processes, and delivering more awareness sessions to departmental officials.

Please rest assured that Industry Canada will review and give careful consideration to your recommendations. As noted above, many of these recommendations are being implemented. We look forward to providing you with a more detailed response concerning both the recommendations and action undertaken by the department."