Reducing Delays in the Processing of Access to Information Requests

Executive Summary

This Report, entitled Reducing Delays in the Processing of Access to Information Requests, is the culmination of the work of the Access to Information Study Group (Study Group). The Study Group was created by the Treasury Board of Canada Secretariat (TBS) in response to concerns about delays in the processing of requests under the Access to Information Act (ATIA). Such concerns were, for example, raised by the Office of the Information Commissioner (OIC) in its 2008-2009 Special Report to Parliament.¹ The Study Group’s mandate was to examine the reasons for delays and to make recommendations for corrective action to enhance timeliness.

The Study Group considered various factors in an effort to determine the greatest causes of delays in processing access requests. These factors, examined in detail in the following Report, range from human resources capacity, to internal approval and consultation processes, and finally, to the nature and complexity of the ATIA requests themselves. In order to address such delay factors, the Study Group made a number of recommendations including investing in and building human capacity, revising policy instruments and modernizing processing tools. A summary list of these recommendations can be found at Appendix A of this Report.

Since the OIC’s 2008-2009 Special Report and since the beginning of the work of the Study Group, TBS has undertaken a number of important initiatives designed to address delays. One such measure is the Directive on Recordkeeping which took effect on June 1, 2009, and is intended to improve information management practices in government departments². Another measure is a recent amendment to the Directive on the Administration of the Access to Information Act which limits certain inter-institutional consultations in an effort to reduce delays.³

TBS is committed to reducing delays and continues to work on the development of government-wide measures to ensure that Canadians have more timely access to information.

Introduction

The Access to Information Act (ATIA) has been an important method for obtaining access to information held by the government of Canada for nearly 30 years.

The ability of federal institutions to provide timely responses to ATIA requests has been the subject of criticism over the years. For example, the then Interim Information Commissioner, in submitting the OIC’s 2008-2009 Special Report to Parliament, stated that “delays continue to be the Achilles’ heel of the access to information system.”⁴  And while recently announced measures regarding Open Government are expected to strengthen openness and transparency, the ATIA will remain the statutory vehicle for obtaining information.

Context is critically important when attempting to understand delays in the administration of the ATIA. There is no denying that professionals working in Access to Information and Privacy (ATIP) offices are facing ever greater demands and there is tremendous pressure in the system. The number of ATIA requests is rising, the rate at which records are created and disseminated is outpacing traditional record-keeping practices and requests are becoming more increasingly complex.

In light of this context, an interdepartmental study, led by TBS, was conducted to examine the causes of delays in responding to ATIA requests and to recommend corrective action to improve the ATIP Program across government. The key findings of this study are set out in this Report, Reducing Delays in the Processing of Access to Information Requests (Report).

Scope and Participants

In May 2010, the Information and Privacy Policy Division (IPPD) of TBS created a Study Group to examine the potential factors contributing to delays across government in responding to access to information requests and to recommend corrective action to reduce those delays. The Study Group met with officials of 10 institutions⁵ that had been assessed as part of the OIC’s 2008-2009 report card initiative.

The Study Group also reviewed the following materials:

• the Information Commissioner’s 2010 Special Report to Parliament;
• responses of institutions to the Information Commissioner’s questionnaire that informed the 2008-2009 Special Report to Parliament;
• recommendations made by the 2002 Access to Information Review Task Force; and
• statistical data provided by all institutions subject to the ATIA.

In all, the Study Group identified and examined six factors. Some of these factors were found to have relatively little impact on delays, while others were found to have a significant impact. It was the latter that required attention.

Factors – Limited Impact on Delays

Of the six factors examined by the Study Group, the following two were found to be working relatively well.

Factors – Contributing to Delays

The factors that seem to contribute directly to processing delays are inter-related, as succinctly expressed by a Privy Council Office (PCO) official in responding to the OIC’s 2008-2009 institutional report card questionnaire:

“(…), volume increases, staff shortages, increasingly complex files and the need for consultations all directly affect a department’s ability to complete requests without a time extension.” ⁶

Of the six factors examined by the Study Group, four were found to contribute directly to delays in responding to access to information requests. In order of significance, they are: (1) Human capacity; (2) Use of time extensions; (3) Structural capacity; and (4) Fee structure under ATIA.

2. Use of time extensions

The use of extensions was also highlighted in the OIC’s Special Report as a significant cause of delays in the processing of ATIA requests. This Special Report stated that “the misuse of time extensions represents an important cause of delay within the system” and that “under-resourced institutions are increasingly using extensions as an administrative measure to cope with heavy workloads.”⁷

While this is the view as expressed in the OIC’s Special Report, it is very important to note that time extensions for the purpose of processing large volumes of records and consulting with third parties, including other government institutions, are a legitimate element of the ATIA process.⁸ Such time extensions are being used by institutions faced with processing a massive volume of documents in response to an even greater number of access requests.

Extensions can be categorized in three ways: (1) for search and volume; (2) for inter-institutional and 3^rd party consultations; and, (3) for Cabinet confidences.

2.1 Extensions for search and volume

In 2003, 28% of extensions were related to searches and volume; by 2009, 42% of extensions were for this same purpose. Government-wide, extensions for reasons of search and volume were the most commonly invoked extensions in 2009.

The ability of institutions to successfully manage information is the key to a sustainable access regime. The velocity with which records are created and disseminated has outpaced traditional electronic record-keeping practices, which has had a direct impact on institutions’ ability to search for, and locate, records responding to ATIA requests.As a result, institutions are making increasing use of extensions in order to search for responsive records, and in an effort to manage the massive volumes of documents they are required to process in response to an even greater number of requests.

Study Group participants reported that electronic records, most notably emails, are particularly challenging to process, as they are unstructured data and they have also become an increasingly used method for communicating and retaining information. As such, emails have added significantly to the volume of records routinely processed without necessarily adding to the quality of responses. In spite of the fact that email and other electronic systems facilitate keyword searches, such searches often identify large numbers of records that then require a thorough examination in order to determine whether or not the record responds to a request. 

A study by the International Data Corporation (IDC) found that the amount of digital information that has been created, captured and replicated worldwide has grown tenfold between 2006 and 2011. The growth in unstructured data (i.e. continuously evolving, user-defined directories) is forecast to outpace the growth in structured data at a rate of two-to-one, according to the IDC’s “The Diverse and Exploding Digital Universe” report.⁹

Gartner Inc., a leading global information technology research and advisory firm, estimated in 2010 that about 80% of organizations’ data was unstructured and forecast that this category of data could grow 650% in the coming five-year period.¹⁰

Recommendations

It is recommended that TBS review and develop guidance surrounding information management including:

5. Provide policy guidance on the term ‘computerized record’ and differentiate between structured and unstructured data.
6. Continue to promote the Government of Canada’s (GC) Directive on Recordkeeping within the ATIP community as a means of improving information management across government while reminding them that all departments and agencies (as defined in Section 2 of the Financial Administration Act) must comply by 2014.

2.2 Extensions for the purpose of consultations

Extensions for the purpose of consultations can be subdivided into two main categories: i) those mandated by law and ii) those mandated by policy.  

Law

Sections 20 and 27 of the ATIA require that institutions consult third parties if they intend to disclose information that may contain confidential third-party information, and the ATIA contains a specific extension provision for this purpose. Of all extensions invoked in 2003, 22% were for the purpose of consulting with third parties, and in 2009 only 17% of extensions were for this same purpose.

Policy

Extensions for inter-institutional consultations are mandated by policy. Half of all extensions in 2003 were for the purpose of consulting other institutions, and in 2009 the percentage had lowered somewhat to 40%.

Of the 24 institutions that participated in the Information Commissioner’s 2008-2009 report card process, 13 indicated that consultations with other institutions and third parties led to delays in responses. Furthermore, many institutions indicated that consultation demands on their own institutions have increased significantly over recent years. The OIC’s Special Report itself states that “inter-institutional consultations are also a well-recognized source of delays.”¹¹

In an effort to reduce delays as a result of mandatory consultations dictated by policy, TBS amended the Directive on the Administration of the ATIA (Directive) as indicated on page 3 of this Report.  The former Directive required that institutions processing ATIA requests consult with appropriate government institutions in all instances involving the application of sections 15 and 16 of the ATIA. This requirement was viewed as an unnecessary contributor to delays in processing access requests and in making information available to Canadians in a timely manner.

Under the recent amendment, inter-institutional consultations on the application of sections 15 (International Affairs and Defence) and 16 (Law Enforcement and Investigations) are limited to two circumstances:

1. where the institution processing the ATIA request requires more information to exercise discretion to withhold;
2. where the processing institution intends to disclose sensitive information.

In short, the amendment to the Directive, which came into effect in January 2012, is intended to:

• provide heads of institutions, or their delegates, with greater flexibility to make determinations under sections 15 and 16 of the ATIA;
• ensure that institutions continue to consult in instances where they intend to disclose sensitive information; and finally
• help reduce delays in the processing of ATIA requests.

2.3 Cabinet confidences

In addition to extensions identified above, institutions also invoke extensions for the review of Cabinet confidences. In fact, statistical reports reveal that an estimated 8% of requests involve reviewing Cabinet confidences. The TBS policy requires that Cabinet confidences be reviewed and certified by PCO. This consultation is carried out by the institution’s Legal Services Unit with PCO Cabinet Confidences/Counsel.

Government-wide, the figure of 8% does not seem to be of great significance. Some institutions, however, are disproportionately represented in the number of requests that require consulting with Cabinet Confidences/Counsel, and their performance is therefore more reliant on PCO’s ability to respond to consultations in a timely manner. The Privy Council Office, the Treasury Board of Canada Secretariat, the Department of Finance, the Department of Justice, the Department of National Defence, and the Department of Foreign Affairs and International Trade have been identified as having the most Cabinet confidences in the records processed under ATIA and are therefore more directly impacted by the consultative process with Cabinet Confidences/Counsel.

Consultations for the determination of Cabinet confidences have long been viewed by ATIP practitioners as unusually onerous. They reported that consultations with Cabinet Confidences/Counsel required extensions of at least 90 days, and it is not uncommon for institutions to invoke extensions of 180 days or longer for the sole purpose of consulting PCO to confirm Cabinet confidences.  Participants also reported that Cabinet Confidences/Counsel frequently required more time beyond the extended period, resulting in deemed refusals for the institution, even though the decisions were beyond the institution’s control.

This scenario contributes to difficulties when institutions communicate with requesters to advise them that they will not meet the extended due date, because institutions are unable to confirm when a final response may be made available.  Moreover, various government institutions have indicated that there is a lack of clarity and guidance in terms of what constitutes a Cabinet confidence as per section 69 of the ATIA.

Recommendations

It is recommended that TBS continue its efforts to review and modernize the consultation processes within and among institutions, including:

7. Review, and where appropriate, revise TBS policy instruments to clarify when consultations should or must be conducted;
8. Develop, in collaboration with PCO Cabinet Confidences/Counsel, best practices and service standards to streamline the consultation process and reduce delays;
9. Establish and provide, in consultation with PCO Cabinet Confidences/Counsel and the Department of Justice, expert training on the understanding of what constitutes Cabinet confidences.

3. Structural capacity

Although institutions continually strive to streamline their processes to ensure timely responses, delays sometimes occur as a result of broader factors for which they have limited control.

3.1 Request processing systems and reporting requirements

Some institutions use software to review and redact records electronically, but others that receive few requests have not acquired specialized tools for this purpose and therefore process requests and compile statistical information manually. While computerized processing tools have helped to reduce processing time, they can be too costly for some institutions to purchase. 

For those institutions that do utilize specialized systems, many procedures are still manual (e.g., printing electronic records only to scan them into a new electronic format, printing records and mailing them to another institution, which will in turn convert the documents to an electronic format). 

Most institutions still lack the technology needed to accept requests and processing-related fees electronically.

Along with processing requests, ATIP offices must also produce a variety of reports, which may not be reflected in funding levels for some institutions. Reporting requirements include ATIA and Privacy Act annual reports to Parliament, statistical reports, MAF assessments, Info Source updates, in addition to regular reporting on the status of ATIP requests to senior officials. Furthermore, some institutions may be required to provide information requested by the Office of the Information Commissioner as part of the Commissioner’s special investigations and reports to Parliament. Completing these tasks reduces the availability of resources for the actual processing of ATIP requests.

Recommendations

It is recommended that TBS examine, within the context of its Information Technology rationalization and consolidation efforts, the feasibility of implementing standardized processes and systems in order to:

10. Streamline the administrative processes relating to the processing of requests by leveraging available technology;
11. Facilitate consistent reporting, including collection of raw data to measure performance for both ATIP requests and between government institutions and reduce the burden of ATIP office staff;
12. Facilitate the submission of requests and their payment electronically for requestors.

4. Fee structure under ATIA

4.1 Fees

Requests under the ATIA are sometimes vague and far reaching in scope, thus contributing to delays. While many ATIP offices communicate with applicants to clarify requests, this communication may be laborious and is not always successful. There are only two legislated instruments that an institution can use to help address this:  time extensions, which were discussed earlier in this Report, and fees.

Rules on the application of fees are set out in section 11 of the ATIA and these are further prescribed in the Access to Information Regulations (Regulations). The Regulations have not been updated since they came into force in 1983. Fees under the Canadian federal regime are low compared with other jurisdictions. For example, the province of British Columbia allows institutions to charge $30 per hour to search for records and prepare them for release, while federal institutions can only charge $10 per hour for the same activities. 

This fee structure is also considered by many as being outdated as it is based on a 1983 understanding of computers. For example, the term “machine readable records” has been outpaced by rapidly evolving technologies. Moreover, the fee structure does not adequately take into account the way government institutions create and manage information in today’s technological environment.

The fee schedule should be modernized to encourage efficiency in the framing and handling of ATIA requests and to contribute to the sustainability of the system of access to government information.   

Recommendation

It is recommended that TBS be responsive to the need for a modernized regulatory regime with a fee structure that supports efficiency in the framing and handling of ATIA requests which would involve:   

13. In consultation with the Department of Justice, examining options to modernize the Access to Information Regulations as they relate to fees.

Conclusion

Collectively, institutions have continuously demonstrated a commitment to comply with both the letter and spirit of the ATIA. They continue to invest in human resources, technology and training; they monitor performance and adjust internal processes when needed. In fact, the level of maturity of the ATIP program in some institutions is exemplary and commendable.

In spite of these efforts, however, delays continue to affect a certain percentage of requests. The recommendations contained in this Report present a strategic, comprehensive and coordinated whole of government approach and are intended to reduce delays on a sustainable basis.

Appendix A - Recommendations