RPP 2005-2006
Offices of the Information and Privacy Commissioners

SECTION I – OVERVIEW

Commissioner's Message
Summary Information
Departmental Plans and Priorities

SECTION II – ANALYSIS OF PROGRAM ACTIVITIES BY STRATEGIC OUTCOME

Analysis by Program Activity
Strategic Outcome

SECTION III – SUPPLEMENTARY INFORMATION

Management Representation Statement
Organizational Information
Table 1: Departmental Planned Spending and Full Time Equivalents
Table 2: Program by Activity
Table 3: Voted and Statutory Items listed in Main Estimates
Table 4: Net Cost of Department for the Estimates Year

SECTION IV – OTHER ITEMS OF INTEREST

Corporate Services 17
Crown Corporations Subject to the Act 17
Creation of a new Parliamentary Committee 18
Inadequate Resources 18

I am pleased to submit my Report on Plans and Priorities for the fiscal period April 1 ^st , 2005 to March 31 ^st , 2006.

_____________________________________

The Honourable John M. Reid, P.C.

Information Commissioner of Canada

As July 1 ^st, 2005 marks the end of my seven-year term as Information Commissioner of Canada, I cannot help but reflect back on my initial impressions and concerns.

For example, in 1998, as a new Commissioner, my first impressions included the following:

• parliamentarians were determined to have a fiercely independent Information Commissioner
• parliamentarians were deeply troubled by resistance to, and non-compliance with, the Access to Information Act .
• that it is something of a conflict of interest to have the Minister of Justice responsible in cabinet, and in Parliament, for the Access to Information Act. After all, the Minister of Justice is the Commissioner's adversary in all litigation initiated by the Commissioner, and it is the minister's role to advocate on behalf of secrecy;
• that, despite a sea of change in the information technology and government organization environments in which the law operates, the Access to Information Act had not been modernized and strengthened to keep pace;
• that the strategy of delay was in widespread use by the bureaucracy, to deny and control access to government-held information;
• that the government's records management infrastructure was inadequate to support information rights (access and privacy), good decision-making, thorough audit and preservation of the history of Canadian governance;
• that the workload of the Commissioner's office exceeded its resources to give timely, thorough and fair investigations;
• that the stubborn persistence of a culture of secrecy in the Government of Canada owed much to weak leadership, not just on the part of leaders of government and the public service, but also on the part of Parliament.

Seven years of experience has reinforced those initial impressions; indeed, those concerns remain at the forefront of the challenges for the coming seven years. That is not to say that there has been no progress; there have been improvements, accomplishments and positive developments on many fronts. Yet, the clear lesson of these seven years is that governments continue to distrust and resist the Access to Information Act and the oversight of the Information Commissioner. Vigilance, by users, the media, academics, the judiciary, Information Commissioners and Members of Parliament, must be maintained against the very real pressures in the system to shift back to government, the power to control what, and when, information will be disclosed to the public.

During the 2005-2006 fiscal year, the Information Commissioner expects to:

• ensure that the federal institutions subject to the Access to Information Act comply with the Act by investigating and mediating complaints and responding to enquiries;

• reduce the average time to complete a complaint investigation and thus provide a more efficient and effective service to complainants;

• work closely with both the main users of the Act – in particular business and media – and government departments in an effort to make the legislation better understood and more effective;

• encourage the opening of government records for public access as a matter of common administrative practice;

• reduce, through mediation, the number of applications to the Federal Court resulting from complaints of refusal to release records;

• analyze all applications for judicial review under Sections 41, 42, and 44, intervene where appropriate, and monitor all relevant cases;

• develop and establish a more positive culture for access to information.

1. Ensure that federal institutions subject to the Access to Information Act comply with it by investigating and mediating complaints and responding to enquiries

The primary products of this activity are completed complaint investigations, settlement negotiations, departmental reviews, and enquiries.

The 2005-2006 estimate of resources needed to further the Commissioner's objectives is largely derived from a forecast of the number and complexity of complaints, settlement negotiations and enquiries (based on previous years' experience) as well as the litigation before the courts. The volume of work is dependent almost entirely on public demand and this, in turn, is influenced by such factors outside the Commissioner's control as the varied level of performance by government institutions in responding to access requests and the awareness of the public that information is accessible under the Act.

Figure 1 shows the number of complaints the Information Commissioner received, investigated and rendered a decision on during the periods 2001-2002 through 2002-2003 and a forecast of workload expectations for 2004-2005 and 2005-2006. The total number of complaints the Office receives is roughly in the order of one complainant for every 10 ATIP requests filled.

The telephone continues to be the most direct and most used means of communication with the public: this year, 1 450 calls consuming 685 hours were received on the office's "800" number.

* The 2002-03 numbers have been adjusted to exclude 208 cases that were cancelled.

The budget estimates for the legal services necessary to further the objectives of the Office of the Information Commissioner are based on the complexity of the legal problems encountered in the administration of the Act in the course of investigations, litigation, legislative and parliamentary activities or other matters of internal or governmental administration. In each case, it is necessary to obtain the assistance of legal staff to interpret federal statutes, to formulate legal opinions, to explain or elaborate on policies on access to information, to conduct litigation, and to represent the Commissioner before the Federal Court, Federal Court of Appeal and the Supreme Court of Canada.

According to section 41 of the Act, persons who are denied access to information may, after receiving the results of the Commissioner's investigation, apply for review of the federal institution's decision. Section 42 provides that the Information Commissioner may initiate a review before the court provided he obtains the consent of the access requester.

Section 44 of the Act protects the commercial interests of third parties in that it allows them to apply for a judicial review of the federal institution's decision to disclose records which may contain their confidential business information. Under the Federal Courts Act , the Attorney General of Canada and other applicants may initiate legal proceedings against the Information Commissioner regarding the lawfulness of the Commissioner's investigative process. Decisions rendered by the Federal Court may be appealed before the Federal Court of Appeal and before the Supreme Court of Canada.

The Information Commissioner is mandated to monitor any issue relating to the interpretation and application of the Access to Information Act . The Commissioner has always supported the activities of the Federal Court with a view to ensuring that the public has fair and effective access to the legal process to determine the legality of government decisions on access. Following the Commissioner's suggestion to reduce delays and backlogs in access to information and privacy litigation, the Federal Court chose, in 1992, access to information and privacy litigation as a first area to implement a judicial case management project. The Office had some involvement, in 1997, in the complete overhaul of the Federal Court Rules. The Office made a significant contribution to the development of the case law in access to information and privacy matters before the Federal Court, the Federal Court of Appeal and the Supreme Court of Canada. The Office's participation was noticed and considered useful and valuable. Unfortunately, the lack of financial resources jeopardizes the role the Information Commissioner is called upon to play before the judiciary. For instance, the Commissioner is no longer able to monitor all legal proceedings undertaken under sections 41 and 44 of the Access to Information Act.

Between April 1, 2000 and March 31, 2005, the Information Commissioner was involved in 11 judicial reviews before the Federal Court initiated pursuant to s. 42. During the same period, the Attorney General of Canada initiated most of the 54 judicial review proceedings taken against the Information Commissioner by the Attorney General or others under s. 18 of the Federal Courts Act . These proceedings have had the effect of delaying the Commissioner's investigations in these related cases and forcing the Commissioner to devote some of his scarce resources to defending his position before the courts. During this same time period, access requesters undertook 47 judicial reviews under section 41, while third parties undertook 114 reviews of government institutions' decisions to disclose third-party information. The Office of the Information Commissioner also participated in 15 appeals before the Federal Court and 9 cases before the Supreme Court of Canada.

Early in this Commissioner's term, the persistent, widespread problem of delay in answering access requests became the Commissioner's top priority. Through special reports (report cards) to Parliament on the performance of individual departments and the use of order powers to compel ministers and deputy ministers to explain why mandatory, statutory response deadlines were being ignored, the Commissioner sought to bring the government's attention to bear on solving the delay problem.

Many departments took up the challenge, made timeliness a priority, devoted the resources necessary and instituted streamlined processes for answering access requests. In year one (1998), all six institutions reviewed, received a grade of "F". In those six institutions, from 35 percent to 86 percent of answers to access requests were late. Last year, in those same institutions, the percentage of responses, which were late, ranged from a high of 17 percent in Foreign Affairs and International Trade to 3.8 percent in the Privacy Council Office.

This dramatic improvement in the delay situation is also reflected in the profile of complaints to the Information Commissioner. In 1998-99, 49.5 percent of the 1 351 complaints which were investigated, related to failure to meet response deadlines. Last year, delay complaints represented 23.5 percent of the office's workload. This year, that percentage continues to fall: it is currently at 19.0 percent.

Program Activity Name: Assess, investigate, review, pursue judicial enforcement, and provide advice.

Program Activity Description:

The Access to Information Act is the legislative authority for the activities of the Information Commissioner and his office. The objectives of the activity are:

• To ensure that the rights and obligations of complainants under the Access to Information Act are respected; complainants, heads of federal government institutions and all third parties affected by complaints are given a reasonable opportunity to make representations to the Information Commissioner and investigations are thorough and timely;
• To persuade federal government institutions to adopt information practices in keeping with the Access to Information Act ; and
• To bring appropriate issues of interpretation of the Access to Information Act before the Federal Court.

This activity represents 100 percent of program expenditures.

I submit for tabling in Parliament, the 2005-2006 Report on Plans and Priorities (RPP) for the Office of the Information Commissioner of Canada.

This document has been prepared based on the reporting principles contained in the Guide to the preparation of Part III of the Estimates: Reports on Plans and Priorities .

• It adheres to the specific reporting requirements outlined in the TBS guidance;
• It uses an approved program activity architecture (PAA) structure;
• It provides a basis of accountability for the results achieved with the resources and authorities entrusted to it; and
• It reports finances based on approved planned spending numbers from the Treasury Board Secretariat.

John M. Reid

Information Commissioner of Canada

The Information Commissioner is an ombudsman, appointed by Parliament, to investigate complaints that the government has denied rights under the Access to Information Act – Canada's freedom of information legislation.

The Access to Information Act came into force in 1983 and gave Canadians the broad legal right to information recorded in any form and controlled by most federal government institutions.

The Access to Information Act provides government institutions with 30 days to respond to access requests.

Extended time may be claimed if there are many records to examine, other government agencies to be consulted or third parties to be notified. The requester must be notified of these extensions within the time frame.

Access rights are not absolute. They are subject to specific and limited exemptions, balancing freedom of information against individual privacy, commercial confidentiality, national security and the frank communications needed for effective policy-making. These exemptions permit government agencies to withhold material, often prompting disputes between applicants, departments and agencies.

Dissatisfied applicants may turn to the Office of the Information Commissioner. The Office investigates complaints from applicants:

• who have been denied requested information;
• who have been asked to pay too much for copied information;
• where the department's extension of more than 30 days to provide information is unreasonable;
• where the material was not in the official language of choice or the time for translation was unreasonable;
• who have a problem with the Info Source guide or periodic bulletins, which are issued to help the public use the Access to Information Act ; or,
• who have encountered other problems when using the Access to Information Act .

The Commissioner has strong investigative powers, which are strong incentives for government institutions to adhere to the Access to Information Act and to respect applicant's rights.

Since he is an ombudsman, the Commissioner may not order a complaint to be resolved in a particular way. He relies upon persuasion to resolve disputes and asks for a Federal Court review only if the believes that an individual has been denied access improperly and that a negotiated solution is not possible. This dispute resolution process has been successful in all complaints but two of this type.

Complaints received by the Commissioner are handled as follows:

1. When a complaint is received, it is assigned to an investigator for investigation and resolution. The investigator first familiarizes him or herself with the complaint and contacts the complainant to obtain the relevant background. The investigator then contacts the department involved to obtain copies of the records in question if exemption from providing the requested information is being claimed, or to assess the adequacy of the search if the information cannot be found.
2. If an exemption from the Access to Information Act is claimed, the investigator:
1. Reads all of the records;
2. Considers the exemption claimed;
3. Obtains explanations from the official(s) who invoked the exemption;
4. Hears the complainant's views;
5. Reviews the statutory provisions involved; and,
6. Assesses the validity of the exemption claimed.
3. After the fact gathering process is complete, irrespective of the type of complaint, if the investigator, acting as an advocate for the Access to Information Act , believes that the complaint is justified he will ask departmental officials to reconsider their position.
4. If an investigator is prepared to recommend release of the records and the department disagrees, the Director General, Investigations and Reviews, may meet with senior departmental officials to seek a satisfactory solution. If this approach is not successful, the Deputy Information Commissioner may become involved to attempt to resolve the complaint informally. If that proves impossible, the investigator prepares the evidentiary record for the Commissioner's and if necessary the Court's consideration.
5. Prior to court proceedings, the head of the institution against which the complaint is made, is provided with an opportunity to make written or oral representations. This is the final, formal opportunity for the Office to bring preliminary views to the attention of the head of the institution and to give the head a final opportunity to address the Commissioner's concerns.

The Commissioner is not involved with the fact-gathering proves of investigations thus ensuring that he comes to the deliberation phase with an open mind. During the deliberation phase, he reviews the evidence and representations, and, if he considers the complaint to be well founded, recommends remedial action. His findings and recommendations are communicated to the complainant and the head of the institution. He also informs the complainant that, if access to the requested records has not, or will not be given, the complainant has the right to apply to the Federal Court for a review of the institution's decision to refuse access.

The Commissioner has the authority, with the consent of the complainant, to ask the Federal Court to order disclosure of the government-held records. This authority is only exercised in the less than one percent of cases where the Commissioner is unable to resolve the matter during the investigative process.

* A procurement savings of $16,000 has been identified as part of the Expenditure Review Committee (ERC) but not included as it is disputed by the Office of the Information Commissioner of Canada (OIC).

The primary difference between the current and previous year is the one-time funding of $ 434K received to eliminate the projected backlog of overdue complaints.

Corporate Services provides administrative services (financial, human resources, information technology, and general administrative) to the Information Commissioner's office. Its objective is to support those who administer the program.

Since fiscal year 2002-2003, the Office of the Information Commissioner of Canada has had to provide its corporate services independently, after the former Privacy Commissioner's unilateral decision to terminate the shared service model based on service usage.

To compensate for the increased workload and reduced economies of scale, Corporate Services had no choice but to close its library and reallocate the resulting funds to greater priority areas.

In 2005-2006, the main goals for this directorate will be to fully implement the Management Accountability Framework as well as the Public Service Modernization Act.

The Access to Information Act is built on the principle that Canadians have a right of access to government information. Access to information provides Canadians with a mechanism to scrutinize the activities of government. Currently 28 out of 46 Crown corporations are subject to the Access to Information Act .

In line with the Task Force report entitled, Access to Information: Making it Work for Canadians released in June 2002, the government recommends that the Act not apply to information relating to critical interests of organizations such as journalistic sources and competitive commercial activities, where the current exemptions would not adequately protect this information. Two examples are the competitive commercial activities of the Canada Post Corporation relating to its courier business and program development at the Canadian Broadcasting Corporation.

The government will extend the Act to 10 of the 18 Crown corporations currently not covered by Order in Council. The other Crown corporations are of a commercial nature and will remain outside the legislation until legal instruments can be designed to protect their commercially sensitive information holdings. The government will develop these instruments in the context of overall review of the Act.

In his first Annual Report to Parliament (1998-1999) this Commissioner suggested that the responsibility for overseeing his office should be moved from the busy Standing Committee on Justice and the Solicitor General to a committee more able to concern itself with access to information matters. After the election of a minority Liberal government in 2004, a new committee was formed and named: the Standing Committee on Access to Information, Privacy and Ethics. Already, since that committee's creation, the Information Commissioner has appeared three times to give evidence with respect to his 2004-05 spending estimates, his 2003-04 Annual Report, and on this issue of new funding mechanisms for officers of Parliament. This increased level of parliamentary interest in, and scrutiny of, of the operations of the Access to Information Act , is a very positive development.

Year after year, Information Commissioners have asked Treasury Board ministers to provide adequate (not extravagant) funds to enable them to effectively discharge the duties Parliament gave them. The requests are routinely denied or pared down to bare bones.

Year after year, the workload of complaints increases and, without adequate resources, the backlog of incomplete investigations, also increases. Now it ranks at an all time high; it represents a full year of work for every one of the Commissioner's 23 investigators.

Again, this year, the Commissioner put forward a request for seven additional investigators for 3 years, to clear the backlog, and eight additional investigators for the long-term to ensure that the backlog did not redevelop. Treasury Board ministers agreed to give the Commissioner five additional investigators for fifteen months and none for the long-term. Resources for such a short-term would, for all practical purposes be wasted. In one year the Commissioner could not recruit for only one year, train, security clear and deploy five new investigators to accomplish any appreciable reduction of the backlog. Moreover, with no permanent increase to the number of investigators, the incoming workload will still outstrip the resources available, contributing to more backlogged investigations. The Commissioner told the President of Treasury Board that the Board's response to the Commissioner's request was a recipe for failure and a waste of taxpayer funds. The Minister's response: Try again next year.

And that, of course, is the deep flaw in the manner in which the Commissioner's office is funded – due to its control of the purse strings, the government has control over the effectiveness of Parliament's officer. So much for independence!

It is vital that Parliament take over the role of ensuring the Commissioner get adequate resources to do the job and, of course, holds him or her accountable for how resources are utilized. Parliament took such a step with one of its officers, the Ethics Commissioner. It is equally important that it do so for the Information Commissioner and the other officers of Parliament who are mandated to investigate government actions and decisions.

In February of 2005, the Standing Committee on Access to Information, Privacy and Ethics launched a study into this issue. The government, too, is considering proposals for a new funding mechanism for Officers of Parliament.

For other items of interest, please refer to the Information Commissioner's 2004-2005 Annual Report, which will be published, by mid-June 2005, at: www.infocom.gc.ca .