Report on the TBS Study of Best Practices for Access to Information Requests Subject to Particular Processing

Background

In September 2005, the Canadian Newspaper Association filed a complaint with the Office of the Information Commissioner alleging the existence of secret rules, systematic discrimination and unfair and unjustifiable delays in the processing of requests for information made by the media under the Access to Information Act.

Following an investigation of 21 institutions, the Office of the Information Commissioner was unable to conclude "that there exists "secret rules" or a government wide systematic practice directed against each media request, or the media in general". However, the Office of the Information Commissioner did conclude that in many institutions, the categorization of certain requests as "sensitive", "of interest", "amber light" or with another label that indicates "special handling" led to unwarranted delays in their processing.

In his letter of findings dated August 19, 2008, the Information Commissioner made the following recommendation:

That the President of the Treasury Board undertake a study of how the institutions which categorize or label access requests for special handling, with no detriment to the timely processing of access requests, organize the process, with a view to issuing Best Practices to all government institutions.

The President accepted this recommendation. The Information and Privacy Policy Division of TBS undertook the study and produced this report.

Methodology

For the purpose of this study, a "request subject to special processing" was defined as an access to information request that is seen or approved by departmental officials outside the Access to Information Office prior to the response being issued. This definition includes, but is not limited to, categories used by institutions such as alert, amber light, interesting, sensitive, highly sensitive, briefing flag, high visibility, and complex file. For ease of reference, the expression "particular request" is used hereafter.

The Information and Privacy Policy Division selected the following ten institutions to participate in this study of TBS:

• Canada Border Services Agency
• Canada Revenue Agency
• Citizenship and Immigration Canada
• Department of Foreign Affairs and International Trade
• Department of Justice
• Department of National Defence
• Public Works and Government Services
• Royal Canadian Mounted Police
• Transport Canada
• Treasury Board Secretariat

These ten institutions include seven of the ten institutions that received the most requests in 2006-2007 (61.4% of all requests). All ten institutions have a process in place for the particular processing of certain access to information requests. In addition, all ten were part of the investigation by the Office of the Information Commissioner into the complaint of the Canadian Newspaper Association.

The Information and Privacy Policy Division met with each institution to discuss the procedures and practices used in the identification of particular requests and their processing and what effect, if any, these procedures and practices have on response times. The discussions then focused on how any procedures and practices might be improved and on suggested best practices to share with other institutions with the goal of improving the response time for particular requests. 

Findings

General Observations

In the course of this study, the Information and Privacy Policy Division noted that institutions that achieved the best results for the timely response to particular requests share the following attributes:

• The Access to Information Coordinator has full authority delegated by the head of the institution for the administration of the Act.
• The Coordinator is at most two positions removed from the deputy head in the organizational structure.
• Institutions that have sound practices for the handling of particular requests also have adopted best practices for the processing of all access to information requests.
• There are written procedures for the handling of particular requests.
• The process is in place to notify officials of the imminent disclosure of records rather than for approval.
• Sufficient resources are allocated to the access to information program.
• A collaborative approach exists between the Access to Information Office, the offices of the head and deputy head of the institution, Communications, Parliamentary Affairs and program officials.

To achieve the best results, institutions should review these attributes and consider them in conjunction with the best practices recommended for the processing of particular requests.

Best Practices for the Processing of Particular Requests

The Treasury Board Secretariat works with the Access to Information and Privacy (ATIP) community to share best practices to improve response times and ensure the effective administration of the Access to Information Act. In particular, the Secretariat issued Information Notice 2003-08, which listed 52 best practices in processing requests. To avoid duplication, and in keeping with the purpose of the study, this report lists 18 best practices that facilitate the handling of particular requests.

The Treasury Board Secretariat recommends that institutions follow these best practices listed in Annex A in the development of specific procedures and practices for the handling of particular requests.

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Annex A

Accountability and delegation of authority

1. The Access to Information Coordinator has full authority delegated by the head of the institution for the administration of the Act.
2. The head of the institution delegates functions as far down within the Access to Information Office as possible. For example, extension and third party notices can be delegated to Access to Information Officers as well as to the Coordinator.
3. Access to information commitments and performance measures are included in the performance management agreements of senior officials to increase their engagement and accountability.
4. Regular performance reports are provided to senior management on the processing of requests.

Process and procedures for particular access to information requests

5. A process for particular requests is established that is conducive to timely responses and will not cause undue delays. The process is designed to notify officials of the imminent disclosure of records rather than for approval. This process is simple, with clearly defined responsibilities and timelines for each step of the process. 
6. Clear procedures are established and made available to all employees.
7. A restricted number of requests are subject to particular treatment. The identification of these requests is based on the content of the records, and not on the identity or source (media, academia, business, organization, public) of the requester. 
8. Requirements for communication products (such as Qs and As or QP Cards) are identified as early as possible in order that they may be developed at the same time as the records are being processed.
9. Communication requirements are kept separate and distinct from access to information requirements. The Access to Information Office is not responsible for the coordination or the preparation of communication products for specific subject matter.
10. Regular follow ups with officials are made using the most expeditious means (telephone, e-mail, fax, electronic documentation, meetings, etc.) to ensure timeliness. 
11. Where approval is not being sought (i.e. delegated authority was given to the ATIP Coordinator), only the release package is forwarded to senior officials for information to streamline the process. 
12. Where approval is not being sought (i.e. delegated authority was given to the ATIP Coordinator), the response to the requester is sent by the date set in accordance with the established process for particular requests or by the statutory deadline, whichever is sooner.
13. The Access to Information Office regularly meets the key players, including officials from the offices of the head and deputy head, Communications and Parliamentary Affairs, to discuss complex issues and explain the provisions of the Access to Information Act.
14. The performance of officials is monitored and the process is assessed as required to ensure its efficiency and that it fully meets the requirements of the Act.

Education and training

15. Training and briefing sessions are provided to employees, senior officials and staff of the offices of the head and deputy head on their roles and responsibilities relating to the Act. 
16. Different approaches are used to heighten access to information awareness, including written procedures, information sessions, and reference material posted on the institution's Intranet and Internet sites.

Resources

17. Periodic assessments of resource requirements (human, financial, technological) are conducted, and business cases are developed as necessary, to support the effective administration of the access to information program.
18. Various strategies (such as internal development programs, mentoring, coaching and collective staffing) are employed to recruit and retain access to information employees.