1. Access to Information in Canada Andrea Neill, Assistant Information Commissioner Office of the Information Commissioner of Canada To “Democracy Study Tour” Participants Ottawa, February 3, 2011

2. Right of Access  Access to information is recognized as a quasi- constitutional right by the Supreme Court of Canada “The purpose of access to information legislation is to facilitate democracy by helping to ensure that citizens have the information required to participate meaningfully in the democratic process and that politicians and bureaucrats remain accountable to the citizenry.”  The Act supersedes all other Canadian legislation unless expressly stated otherwise  The right of access is limited to Canadians and people/corporations present in Canada 2

3. Access to Information in Canada 3

4. Presumption of Openness  The Access to Information Act (ATIA) is based on a presumption in favour of disclosing government-held information  It provides “a right of access to information in records under the control of a government institution”  It is “not intended to limit in any way access to the type of government information that is normally available to the general public” 4

5. Access to Information Act and Privacy Act  Personal information is an exemption under the Access to Information Act  For purposes of the ATIA, personal information is defined in the Privacy Act (PA)  Disclosure of personal information under the ATIA is authorized if it is in accordance with the PA 19.(1)Subject to subsection (2), the head of a government institution shall refuse to disclose any record requested under this Act that contains personal information as defined in section 3 of the Privacy Act. Where disclosure authorized (2) The head of a government institution may disclose any record requested under this Act that contains personal information if (a) the individual to whom it relates consents to the disclosure; (b) the information is publicly available; or (c) the disclosure is in accordance with section 8 of the Privacy Act. 5

6. Coverage of the Access to Information Act Applies to:  Departments and agencies  Crown corporations and Officers of Parliament recently added by the Federal Accountability Act Does not apply to:  Parliament  Ministers’ Offices  Courts 6

7. Exceptions to Access - Exemptions  “Necessary exceptions to the right of access should be limited and specific.”  Categories of exemptions  Mandatory  Discretionary  Tests  Injury  Class  Public interest overrides possible for personal information and third party information 7

8. Exceptions to Access - Exemptions 8

9. Exceptions to Access - Exclusions  Published material or material available for purchase, library and museum material, and material placed in National Archives  Information of the Canadian Broadcasting Corporation that relates to its journalistic, creative or programming activities (general administration information covered)  Information of Atomic Energy of Canada Limited (general administration information covered)  Cabinet confidences, e.g. memoranda, discussion papers, agenda, briefing materials and draft legislation 9

10. Time Limited Exemptions and Exclusions  Law enforcement- 20 years  Personal information (deceased- 20 years individuals)  Advice to government- 20 years  Intent to publish- 90 days  Cabinet documents- 20 years 10

11. Key Players Government institution  Head responsible  Delegates authority to Access to Information and Privacy Coordinator President of Treasury Board “Designated Minister”  Government-wide administration, e.g. policies and guidelines  Compiles Info Source  Reviews records management Minister of Justice  Responsible for legal aspects of legislation Privy Council Office  Certifies Cabinet confidences 11

12. Processing Requests  30 calendar days from receipt of request  “Reasonable” extension possible, e.g. volume and consultations  Must release any part of a record or information not exempt  Disclose document or cite exemptions - notify requester of right to complain 12

13. Fees  Application  Search and preparation (paper, emails, etc.)  Reproduction No fees  5 free hours search and preparation  Shipping  Records review  Waiver if less than $25  Waiver if public interest in disclosure 13

14. Oversight Models in Canadian Jurisdictions 14

15. Information Commissioner of Canada Officer of Parliament  Appointed by Parliament  Independent / arm’s length to government of the day  7 year mandate Ombudsman  Protects rights of requesters under the Act  Advocates benefits of open government  Encourages participation of citizens in democratic process  Fosters enhanced accountability and transparency 15

16. Office of the Information Commissioner Complaints Resolution and Compliance Branch  Carries out investigations and dispute resolution efforts to resolve complaints Policy, Communications and Operations Branch  Monitors federal institutions’ performance under the Act  Provides strategic advice and direction to address systemic and policy issues  Leads external relations with the public, the government and Parliament  Provides administrative management and ATIP functions Legal Services Branch  Represents the Commissioner in court cases  Provides legal advice on investigations and legislative and administrative matters. Human Resources Branch 16

17. Complaints Types of complaints  In addition to complaints about institutions’ refusals to provide access to requested records, requesters can complain about fees, time extensions, language of records, format of records or any other matter regarding access to records. Complaints resolution  Strong investigative powers, including subpoenas and hearings  Can administer oaths  Can enter any premises of any government institution and search for and seize documents  No order-making powers – orders issued pursuant to Judicial Review  Resolves complaints through mediation and persuasion 17

18. Complaints – Caseload 18

19. Redress – Federal Court  Any person who has been refused access to a record or a part thereof may, once the Information Commissioner’s report of findings has been received, apply to the Court for review  The Commissioner can also apply for review or act on behalf of an access requester with the requester’s consent  The Federal Court reviews the institution’s decision, not the Commissioner’s recommendations  The burden of proof lies with the party opposing disclosure of the records (normally the head of an institution)  If the Court finds that the head of an institution was not authorized to refuse disclosure, it will order that the records, or parts thereof, be released 19

20. State of Access to Information in Canada  The Access to Information Act has not changed significantly over 28 years  Numerous calls for overhaul reform since its adoption  Several policy reviews conducted  To date, piecemeal reform generated by triggering events but no comprehensive amendments to the Act 20

21. Significant Amendments Sanctions for obstructing right of access  The provision calls for fines of up to $10,000 and jail terms of up to 2 years for anyone who interferes with the right of access to information by destroying, falsifying or concealing a record or directing any person to do so Duty to Assist  The provision imposes a duty on institutions to make every reasonable effort to:  assist persons in connection with their requests for access to records under the control of the institution  to respond to the request accurately and completely, and  subject to regulations, provide access to the record in the format requested 21

22. Public Awareness  Reports to Parliament  Annual Reports  Special Reports, e.g. Report Cards  Advises Parliament  Appearances before the Standing Committee on Access to Information, Privacy and Ethics  Supports freedom of information certificate program at the University of Alberta  Intervenes in judicial review of significant cases 22

23. Public Awareness 23

24. Assessing Performance Compliance  The Office of the Information Commissioner monitors performance of federal institutions Report cards to assess the performance of institutions in responding to requests  6 out of 10 performed below average  30 day timeline becoming the exception rather than the norm  Greater use of time extensions for longer periods of time 24

25. Systemic Issues Deficiencies in information management  Exacerbated by the rapid pace of technology resulting in more time required to retrieve records and missing records  Growth in the volume of pages reviewed and processed Increasing number of consultations between institutions Insufficient qualified personnel Lack of leadership 25

26. Performance: Longer Waits... Time to complete access requests 26 -12.9% 9.7% 0% 3.2%

27. … For Less Information Disclosed 27 *Information completely excluded or exempted, provided informally, or which could not be processed Source: Info Source Bulletins, Treasury Board Secretariat Disposition of requests over ten years 1999- 2000 2004- 2005 2005- 2006 2006- 2007 2007- 2008 2008- 2009 2009- 2010 Percentage Change Requests Completed 18,48924,70926,62129,47330,53033,28435,427 All Information Disclosed 41%27%28%23%18% 16%-24% Information Disclosed in Part 34%43%46%50%55%56%62%28% Other25%30%26%27% 26%22%3%

28. Improving Performance Leadership  Properly assess, resource and improve information management  Develop an integrated human resource plan to address gaps and support professionalism of access personnel through formal training and certification standards  Establish criteria to measure the performance of institutions in meeting their obligations under the Act Institutional level  Allocate adequate resources  Review processing methods to improve efficiency and timeliness  Improve tracking and reporting mechanisms 28

29. Looking to the Future - Challenges  Most significant change – information technology  Open government initiatives  Public-private sector partnerships  Global, knowledge-based service economy  Expectations of Canadians –Culture of service – most government information should be readily available and free –New generation of users born in electronic age 29

30. Legislative Modernization  Canada’s Access to Information Act must be strengthened to meet today’s imperatives  Work is urgently needed to modernize it from a legislative perspective and to align it with more progressive regimes both nationally and internationally  Order-making powers  Proactive disclosure schemes  Universal right of access  Public education mandate 30

31. Office of the Information Commissioner QUESTIONS??? 31