Speaking Notes for Session on Investigative Process by Andrea Neill, Assistant Commissioner, Complaints Resolution and Compliance, Presented at the ATIP Community Meeting

OTTAWA

[2008-2-19]

[Check against delivery]

Being with you today brings back a lot of fond memories from the 1990s when I used to participate in these ATIP Community meetings with TBS while I was Director of Information Law and Privacy Section at Justice. I am pleased to be back among you in my new role as Assistant Information Commissioner.

I have with me Sharon Nadeau, A/DG Investigations and Reviews, and Julie Tremblay, A/Director of Operations who came to us in January from the Competition Bureau. They will be pleased to answer your questions.

When Information Commissioner Robert Marleau spoke at your last meeting on November 20^th, he talked about what our office has been up to, changes to our organizational structure and functions (2 Assistant Commissioners), and our priorities.

He said that we would take the 3Cs approach to complaints resolution: collaboration, cooperation and consultation.

• We will aim to be vigorous and responsible in ensuring that the Act is working effectively.
• We will favour alternative means of dispute resolution, such as mediation over formal hearings and the exercise of judicial powers during investigation.

The Commissioner said the reality is that there is too much delay in the system which comes in large part from how the ATIA is enforced (process, third party consultations) and the environment in which it is enforced (officials see access requests as often burdensome and invasive).

The Commissioner acknowledged that our office is also responsible for some of that delay. We have a serious backlog problem and long turnaround time. He mentioned measures we’re taking to address the problem, specifically a backlog strategy.

Before talking about the strategy, however, I thought I should first set the record straight about a rumour that has been circulating in the ATIP community. Given our 3Cs approach, there has been speculation about whether our office will stop requiring institutions to provide us with commitment dates. The answer is NO. In our 3Cs approach, we will work with you to negotiate dates that are reasonable and workable. We’re mindful of the constraints that some of you are facing and the fact that some actions are out of your control. In such cases, dates may need to be adjusted after they’re set. So we will continue to insist on commitment dates as they are an important tool for you to demonstrate to requestors and to our office that you are being diligent in completing requests.

I would now like to turn to our backlog strategy. When Robert Marleau became Information Commissioner a year ago, the OIC had been in a serious backlog situation for some time. This was no secret - our annual reports identified the problem. The Commissioner is on public record in saying that the situation is unacceptable. He made a commitment to improve the OIC’s overall performance and productivity to improve service delivery to Canadians, federal institutions and Parliament. His objective is to eliminate the backlog by the end of FY2009-10.

So what’s the problem?

While we are able to resolve almost all complaints without recourse to the courts, they have not been resolved in a timely way. Average turnaround time is 12 months. We have about 80 refusal cases that are between 2 to 5 years old and which are our priority to resolve.

You know that we have formal service standards in place - they are limited, rigid and unrealistic. They are speed standards that do not take into account such factors as fairness, due diligence, and actions that are outside of our control and that we impose on you. In this last respect, we can commiserate with some of your problems you face in giving us commitment dates. Our standards are: 30 days for administrative type complaints like fees and time extensions, and 120 days for denial of access complaints. Cases go into backlog status when they are not completed within our service standards.

Here are some fast facts. Last year, we carried over half of our inventory into this fiscal year (1030 complaints). And the number of new complaints received this year has doubled since last year so that we have an inventory of over 2000 assigned and unassigned complaints. So 85% of our cases are in backlog status according to our service standards. Another interesting fact: 60% of our business is taken up by 10 frequent users.

We’re not sure of the reasons for the increased number of complaints. We can speculate on a number of reasons: a renewed interest in the Act as a result of the high-profile issues such as Afghanistan, the Gomery Commission, the Federal Accountability Act (FedAA) and the fact that the community of institutions covered by the ATIA increased 37% this year (70 new institutions for a total of 250 institutions), changes to s. 31 reducing the period of time to complain to our office from one year to 60 days.

Attempts have been made in the past to reduce the backlog: 3 new Chief positions were created to supervise teams of investigators; priority was placed on backlog files and a few investigators dedicated full time to the oldest cases.

But the problem was too deep and we kept digging ourselves further and further into a hole that we couldn’t seem to get out of.

And that’s because there are inherent weaknesses with our complaints handling process that significantly limit our ability to:

• deliver effective and timely services to our stakeholders,
• address the backlog problem, and
• implement the changes brought about by the increased number of institutions now covered by the ATIA.

So we decided that we had to do something to dig ourselves out and not fall back in again. We saw a need to strengthen and streamline our processes. More importantly, we saw an opportunity to take a good hard look at the way we have traditionally done business to see if we could adopt other, better and more flexible approaches to resolving complaints that would complement and/or replace our traditional rigid and formal investigation approach.

We want to change or complement our current approach with two goals in mind:

1. to resolve complaints at the earliest opportunity and make decisions in a fair and faster way; and
2.  to increase efficiency by which complaints are processed, thereby both decreasing the inventory of complaints and the average case processing time, while maintaining the quality and thoroughness of investigations.

The ATIA is silent as to when and how we decide to investigate a complaint. It does not expressly provide for mediation or other complaint resolution mechanism. It only says that we shall receive and we shall investigate complaints. So what prevents us from fast tracking or mediating a solution as soon as the complaint comes in rather than waiting for the complaint to be put in the queue and assigned to an investigator? The Act says that we are masters of our own procedures, so we have flexibility to use a method that is appropriate to the particular circumstances.

First, we talked amongst ourselves. I was so pleased to see that our investigators have become engaged in the issue. They have lived the problem, feeling somewhat overwhelmed by the caseload, and they want to be part of the solution. They are coming up with all sorts of good ideas in working groups and other discussions.

Second, we developed an 11 point backlog strategy. Some of the ones we started to work on immediately are:

• Preliminary restructuring of my branch to reduce bottlenecks in the management review and approval of files: there are 2 Directors, each having two teams of Chiefs and investigators;
• Delegating some of the approvals and sign-offs - more to come.
• Priority on oldest backlog files - identified a Chief as the champion/coordinator
• Started reviewing our complaints handling process - ad hoc working group of investigators
• Review our service standards
• Staffing vacant positions
• Consider dedicated intake/early resolution function

Third, we identified early on that a dedicated intake/early resolution unit could be part of our answer. Mind you, we already had an intake function - his name is Eric Murphy - but we wanted to see how other Information and Privacy Commissioners (IPC) did it. So I headed west in October and visited the Manitoba Ombudsman, and the Alberta and British Columbia IPCs to look at their models for intake and early resolution. I was so appreciative of the time that staff spent with me and truly impressed with what I saw in the different models that are tried and true. I was also struck by the pride and enthusiasm in these offices having come up with solutions and approaches to better serve their stakeholders.

What we see as the benefits of a dedicated intake/early resolution unit are:

1. enhanced client service focus - provides a service window to the organization and facilitates centralized management of all incoming complaints and inquiries. Also provides more regular point of contact between the OIC and institutions.
2. more productive use of investigative staff
3. improved staff morale - less overwhelmed as tasks are specialized, roles and expectations are understood
4. improved response time for more straightforward complaints.

Fourth, we got some outside help to examine our complaints handling process and identify opportunities for streamlining and improvement, assess the benefits of an intake and early resolution function and assess the appropriateness of our service standards. The consultants did focus group sessions within our office, the ATIP community, interviewed Donald Lemieux, Sue Lajoie and Thérèse St-Amant (TBS), interviewed staff in the Ontario IPC and federal Privacy Commissioner’s Office, and considered the Manitoba, Alberta and BC intake models.

I wish to thank Ross Hodgins (HC), Diane Leroux (Justice), Joan Mann (Canada Post, Norma McLelland (F&O) and Sylvie Séguin-Brant (Public Safety) for participating in the ATIP coordinators focus group as well as Donald Lemieux, Sue Lajoie and Thérèse St-Amant whom our consultants interviewed.

Coordinators and Treasury Board Secretariat officials offered several suggestions that we are now seriously considering:

Intake and Early Resolution

• Streamlined intake function with possibility of early resolution of certain complaints would be a welcome improvement.
• Fast track certain cases (e.g. when a complaint of delay has already been resolved by the institution).
• Contact complainants immediately to clarify the specifics of the complaint and verify if the individual still wants to pursue it.
• Find opportunities to use mediation before launching into the investigative process.

Portfolio Approach

• Implement a portfolio approach in assigning files to investigators so that each institution is dealing with a smaller number of staff who are more with the work and type of records held by each institution.

Communications

• Make use of email and telephone to help with communications (e.g. scheduling meetings, clarifying information needs). On this point, our investigators were recently connected to the Internet so we should see an improvement there.
• Some thought that the ‘heads-up’ concept is redundant and that sending a fax is not a good way of alerting the institution that a complaint has been received.
• Provide institutions with a current list of complaints on either a monthly or quarterly basis.
• If a complaint is caused by an office of primary interest (OPI), OIC should interview those officials. OIC should provide list of questions for OPI (e.g. to identify from the complete list of exemptions those with which they are concerned).
• Provide a checklist of what information is needed and a summary of questions to ask.
• Specify reasons for complaint in the Summary of Complaint.

Resource Shortage

• Give recognition to the shortage of skilled resources within the ATIP community in general. Complaints increase because institutions need time extensions, thereby increasing the workload for OIC as well.
• Need to be more reasonable with respect to things like action plans and recognize that ATIP Coordinators don’t necessarily control time elements.

Documents

• Institutions should prepare and send the documents to the OIC.
• Issue of Cabinet documents and the Privy Council Office is an area of concern as the OIC treats them as two complaints.

• Review our terminology (the term “resolved” means many different things).
• Have more consistency in approach between different investigators. A more collaborative approach would be welcomed.

• Coordinators were very pleased to see OIC consult the community and evidence of a strong willingness to support our office in communicating changes.
• Suggested that we make special presentations at ATIP conferences, incorporate information on procedural changes into information seminars and training materials.
• Suggestion for more opportunities for sharing on best practices (more use of templates, checklists).
• Report card system has created problems, particularly regarding complaints involving Cabinet documents. Suggest we place more emphasis on quality.

The consultants’ recommendations:

1. Establish a dedicated intake/early resolution unit with triage and prioritization of complaints.
2. Abandon our service standards and develop internal performance targets for communicating expected timelines to complainants depending on the nature and complexity of the complaint.
3. Redefine backlog as complaints which have been assessed by the Intake/Early Resolution Unit as legitimate complaints but which have not yet been assigned to an investigator.
4. Implement a portfolio approach.
5. Develop an action plan to guide implementation over time.

1. We will establish a.s.a.p. an Intake and Early Resolution Unit on a pilot basis. Julie Tremblay, one of my two Directors, will be leading this initiative along with Ernie Fraser, one of our Chiefs. The unit will have a combination of administrative and investigative staff.
2. One very interesting aspect of triage and prioritization that we are working on through an internal task group is developing objective criteria for triage and prioritization of complaints. We’re looking at such things as urgency (deadline, legal requirement), impact (public health or safety, loss of rights, parliamentary interest or wider public interest), nature of complaint (probability of resolution) and the category of complainant (media, parliament, legal, public). We’ll also be looking at different levels of complexity in identifying the level of effort that will be required in each case.
3. We have to develop policies and processes for those complaints that would be appropriate for early resolution, such as time extensions and fees.
4. We also have to look at internal performance targets for processing time that are qualitative and quantitative.
5. Drawing on some of the tools developed by other IPCs, we want to prepare various communication tools, such as checklists for complainants and institutions, practice notes (interpretation or information notices).

We have a lot of work to do but we’re at the point now where we just have to get on with it and “just do it”.

As I mentioned above, our two goals in changing some of our complaint handling processes and setting up an intake and early resolution unit are:

1. to resolve complaints at the earliest opportunity and make decisions in a fair and faster way;
2. to increase efficiency by which complaints are processed, thereby both decreasing our inventory and the average case processing time, while maintaining the quality and thoroughness of investigations.

So you may be asking yourselves how some of the changes that we’ll be making to the way we do business will impact upon your offices. While we are continuing to review our complaints handling process, there will be some immediate implications as we set up the pilot intake/early resolution unit, and for which we’ll need your cooperation and support:

1. Expect us to call sooner than we have done in the past, particularly if it’s a deemed refusal/delay complaint where we’ll want a commitment date for response. And it may not be an investigator calling you.
2. We’ll be wanting you to identify an initial point of contact for intake purposes.
3. We’ll be asking you to send the relevant records / processing file to our office in as yet to be determined number of business days.
4. We may want to discuss the issue with your office so that we can determine the best approach to resolve the complaint.
5. Those cases that are formally assigned to an investigator will be thoroughly investigated.

Some of you may have noticed that we recently made one administrative change to improve efficiency and transparency: we no longer send a separate letter to the institution when we send our report of findings to the complainant. We now copy the institution on the report of findings itself. This has already saved us time and paper and ensures that both the complainant and the institution receive the same information about our findings.

As we roll out the pilot unit, we will communicate to you details of changed and new processes so that everyone understands them and our expectations are clearly understood. We would also like to have a focus group session, perhaps drawing on the membership of the ATIP Coordinators working group and others, to get your feedback on the pilot.

I would like to say in closing that my wish is that we can work with you on a collaborative and cooperative basis as we implement our intake/early resolution unit as we move to improve our services to Canadians and our services to you.

We may need reminding that ultimately, we all have the same objective - providing a service to Canadians who want to use the ATIA to get access to federal government information. I know that you have your job to do in administering the Act and we have ours to do in ensuring compliance with the Act. There will be times where we will not agree. However, we believe that the 3Cs approach to complaint resolution can work and work well if we can support one another in ensuring that a requestor’s rights under the Act are respected.

Thank you.