Annual Report: 2002-2003

Report card on compliance with response deadlines under the Access to Information Act

For several years, the Office of the Information Commissioner has received complaints from requesters about requests in a deemed-refusal situation. It is likely that, across government, the number of complaints on requests in a deemed-refusal situation represents only a portion of the actual number of requests processed outside of the time requirements of the Access to Information Act. The unacceptable high level of requests in a deemed-refusal situation has been illustrated in previous Report Cards issued since 1999 by the Commissioner’s Office.

As part of the proactive mandate of the Commissioner’s Office, each year a department (or departments) is selected for review. The review is conducted to determine the extent to which the department is meeting its responsibilities for complying with the statutory timeframes for processing access requests established by the Access to Information Act.

Public Works and Government Services Canada (PWGSC) was one of two departments selected for review this year. The department has been one of a number of institutions subject to review because of evidence of chronic difficulty in meeting response deadlines. When the Commissioner’s Office receives a high number of deemed-refusal complaints about a department, it may be symptomatic of a greater response-deadline problem within the department.

This Report Card contains the results of the Information Commissioner’s review of PWGSC’s performance statistics from April 1to November 30, 2002.

Since Canadians have a right to timely access to information (i.e. 30 days or within extended times under specified conditions), a delayed response is equivalent to a denied response. Parliament articulated this "timeliness" requirement in subsection 10(3) of the Act, which states:

10.(3) Where the head of a government institution fails to give access to a record requested under this Act or a part thereof within the time limits set out in this Act, the head of the institution shall, for the purposes of this Act, be deemed to have refused to give access.

As a result, the Information Commissioner has adopted the following standard as being the best measure of a department’s compliance with response deadlines: percentage of requests received which end as deemed refusals. PWGSC is assessed in this Report Card against the following grading standard:

On this grading scale, PWGSC rates F¹ . Its performance is unacceptable. [This fiscal year to November 30, 2002, the new request to deemed-refusal ratio is 684:180=26.3%.]

• an analysis of the statistical data;

• an explanation of the reasons for the performance record;

• a description of the steps being taken by management to improve performance;

• Attached to the report are the various questionnaires and responses that formed the basis for the grading, observations and recommendations in this Report Card.

The charts above present a graphic representation of PWGSC’s request backlog.

At the outset of the 2001-2002 fiscal year, PWGSC’s Access to Information and Privacy (ATIP) Directorate had 201 outstanding requests, of which 75 (37.3%) were already in a deemed-refusal situation. The 2002-2003 fiscal year shows a continuing backlog at the start of the year with 159 outstanding requests, of which 45 (28.3%) were in a deemed-refusal situation.

With 760 new requests received in the 2001-2002 fiscal period and 684 new requests received to November 30th in 2002-2003, a trend of a continuing backlog of requests in a deemed-refusal situation at the start of the year represents a burden to the ATIP Directorate. Non-compliance considerations aside, this backlog must be eliminated.

The time taken to complete new requests also shows problems in meeting the time requirements of the Act.

• In 2001-2002, processing times for 55 requests completed beyond the 30-day statutory limit without an extension were:

  • 47 (85.5%) took an additional 1-30 days to complete

  • 7 (12.7%) took between 31 to 60 additional days

  • 1 ( 1.8%) took between 61 to 90 additional days.

• From April 1 to November 30, 2002, additional processing times for 42 non-extended new requests were:

  • 20 (47.6%) took an additional 1-30 days

  • 9 (21.4%) took between 31 to 60 additional days

  • 6 (14.3%) took between 31 to 90 additional days

  • 7 (16.7%) were completed in over 90 additional days.
    

• For extensions taken and not met, the following time delays occurred:

In 2001-2002, of the 324 time extensions, 67 (20.7%) exceeded the extension of time as follows:

• 20 (29.8%) took an additional 1-30 days

• 10 (13.4%) took between 31-60 additional days

• 16 (25.4%) took between 61-90 additional days

• 21 (31.4%) were completed in over 90 additional days.

For completed requests received this fiscal year, 80 (23.4%) exceeded the extension of time as follows:

• 38 (47.4%) took an additional 1-30 days

• 29 (36.6%) took between 31-60 additional days

• 10 (12.4%) took between 61-90 additional days

• 3 ( 3.6%) were completed in over 90 additional days.

As of November 30, 2002, 58 unfinished new requests were in a deemed-refusal situation. The duration of time that the requests have been in a deemed-refusal situation was not part of the response requested by the Commissioner’s Office.

In 2001-2002, the Office of the Information Commissioner received 17 deemed-refusal complaints against PWGSC, of which 14 (82.4%) were upheld (resolved).

From April 1 to November 30, 2002, the Information Commissioner’s Office received 24 deemed-refusal complaints. Of the 13 completed complaints, 13 (100%) were upheld (resolved).ed-Refusal ComplaintsAp. 1 to Nov. 30, 2002

3. ATI Office—Staff

The processing of access requests is the responsibility of the ATIP Directorate under the direction of the ATIP Director. The Directorate is also responsible for processing requests under the Privacy Act. The staff of the ATIP Directorate allocated to ATI activities is comprised of 26 employees — 5 Team Leaders, 13 officer-level, 5 support staff, 1 student plus 2 employees who are on secondment. In addition, 3 consultants are also working in the ATIP Directorate on ATI. The ATI Director is of the view that the number of staff is not sufficient to meet the ATI processing needs of the department (in particular, because 5 staff were recently moved from ATI request processing to privacy request processing).

4. ATI Office—Budget

The ATI salary budget for 2002-2003 for the access to information program is $886,000 for 17 person years. On November 29, 2002, an additional $311,800 was allocated for 9 staff on a temporary basis to deal with the workload associated with access requests related to the sponsorship program. The ATI salary budget for 2001-2002 was $1,270,222 for a utilization of 23.5 person years. The 2000-2001 budget was $921,700 for 20 person years.

The ATI operating budget for 2002-2003 is $187,000. On November 29, 2002, an additional $251,200 was allocated to ATI. The ATI operating budget for 2001-2002 was $285,793. For previous years, the 2000-2001 budget was $373,874 and the budget for 1999-2000 was $138,884.

The portion of the budget allocated for training in 2002-2003 is $11,600. For 2001-2002, the amount was $21,010, for 2000-2001 $10,855 and for 1999-2000 $8,612.

5. Allotted Times for Request Processing

The 30-day statutory time limit allows 20 working days for processing an access request without an extension under section 9 of the Act. PWGSC’s current planned turnaround times are listed below. The PWGSC processing table allows 30 calendar days to respond to a request (without an extension).

There appear to be a number of reasons for the delay problem at PWGSC. The result of the delays is that access requests are processed beyond the statutory time requirements of the Access to Information Act.

There are varied reasons why delays occur in responding to access requests within the timeframes established by the Access to Information Act. Senior management must be aware when the numbers of requests in a deemed-refusal situation start to increase and accumulate to an unacceptable backlog of delayed responses to requesters. Senior management also needs to be informed of the remedial measures that can be taken to reduce the number of requests in a deemed-refusal situation. The remedial plan can only be organized after the department analyzes the causes of the delays.

To maintain effective oversight of the access process, senior management should receive routine reports on the status of requests, including adherence to the statutory timelines. The PWGSC ATIP Directorate does have extensive information in the form of various reports that keep track of the due dates for various stages in the access process. Reminders are also sent to the Minister’s and Deputy Minister’s Offices when the time allocation to review release packages for interesting requests are coming due.

The department could benefit from more focused and proactive reporting for access requests either in or to be in a deemed-refusal situation. The deemed-refusal situation is a problem that should be recognized and dealt with through the support of senior management. To be part of the solution, senior management requires summary information on actual versus allocated time performance for all parts of the organization involved in the access process.

Routine reporting allows senior management to gauge how the overall department is performing against planned performance measures. This type of reporting will also provide senior management with the information necessary to monitor actions taken to reduce the number of requests in a deemed-refusal situation.

The PWGSC Delegation Order establishes the authority and process for making decisions on access requests. The Delegation Order delegates all decision responsibilities under the Access to Information Act to the Director, ATIP Directorate. Five ATIP Team Leaders sign, on behalf of the Director, time extension and section 27 notices. All ATIP officers sign, on behalf of the Director, all consultation notices sent to government departments. The signing authority on behalf of the Director is not vested in the Delegation Order.

Other departments have found that delegation of administrative decisions under the Act and decision-making on certain exemptions provides efficiencies in the access process. For example, decisions about fee estimates might be delegated within the ATIP Directorate.

The Delegation Order provides full delegation for decision-making under the Act to the ATIP Director.

For "interesting" access requests, there is a senior management review process. The review process entails providing the release package to a number of PWGSC officials. In 2001-2002, 18.5% of access requests were considered "interesting". In 2002-2003, to November 30, 15% of requests were considered "interesting"³.

Seven calendar days are allocated to the senior management review process if media lines are required, while three days are allocated when media lines are not required. A "release package" is provided for the senior management review. At the same time, a second release package is provided to the OPI program and to the Communications Branch.

The forms used for the review process indicate that a number of officials sign-off on the release package.

For "interesting" access requests with media lines, there is a maximum of three signatures at the Branch level and one by Communications Branch signifying the date the package was received for the purpose of a review.

In addition, and in parallel, a separate release package is sent to the Deputy Minister’s and Minister’s Offices with a "date received" and "by whom" for each office. The transmittal form indicates that the release package is sent for the purpose of a review.

Any "interesting" access requests without media lines follow the part of the procedure dealing with the Deputy Minister’s and Minister’s Offices described above.

Each participant in the access process is allocated a planned time to complete their part of the process. The senior management review process may or may not have been the cause of any given deemed-refusal situation. Table 1 illustrates senior management’s allocated versus actual time taken to complete their part of the review.

Out of a total of 95 access requests received by senior management, 24% were reviewed within the allocated time.

The Commissioner’s Office recognizes that it is helpful for any part of the organization that may be affected by the release of information through an access request to be informed of the released information. Having information on the release package as opposed to a multi-party review of the release package--record by record--creates a culture of "playing it safe". Multiple reviews also delay the access process and undoubtedly result in access requests in a deemed-refusal situation.

The access process should be reviewed to eliminate the need for multiple sign-offs.

An institution has 30 calendar days to respond to an access request unless a time extension is taken under section 9 of the Act. When an access request is received by PWGSC, "interesting" requests will be identified by the OPI and the ATIP Director will be notified.

The communications function will be notified if media lines are required. If media lines are required, the release package will be sent to Communications seven calendar days prior to release. At the same time, the senior management review process takes place (with another release package). Once the release package has been completed, there would appear to be minimal processing left.

The ATIP Directorate does not track the actual time taken by the Communications Branch. The Directorate states that, whether or not media lines are completed by the Communications Branch, the records will be released.

OPIs are required to search for and retrieve records in order to respond to access requests. The OPIs are required to provide records to the ATIP Directorate within ten calendar days of receipt of the request from the ATI Office.

The time taken to respond to the ATIP Directorate request to retrieve records is illustrated in Table 2. Table 2 includes requests for consultations that were received from other government departments.

Table 2 points to one reason why responses to access requests may be delayed and end up in a deemed-refusal situation. The reason is that, in many cases, OPIs are not meeting their responsibility to retrieve records subject to an access request within the time established by PWGSC.

One method of reinforcing responsibilities for access to information is to include the responsibilities in the job description of officers and managers and then to have performance contracts measure to what degree the responsibilities are met.

PWGSC has taken or plans to take measures to reduce the number of access requests in a deemed-refusal situation. A comparison of the statistics for the fiscal year 2001-2002 with the period from April 1 to November 30, 2002, indicates a probable increasing backlog of access requests in a deemed-refusal situation for a year-to-year comparison. In addition, the time taken beyond the statutory time requirement to process access requests continues to be problematic as illustrated in Tables 3 and 4.

Uncoordinated efforts to reduce the number of requests in a deemed-refusal situation are likely not as effective as an integrated group of measures established as a result of an analysis of the situation. PWGSC should approach the time delay problem by establishing an overall plan to manage the tasks necessary to come into substantial then ideal compliance with the Act’s deadlines. The plan should identify the sources of the delays and include targets, tasks, deliverables, milestones and responsibilities to achieve ideal compliance. Senior management should regularly monitor the plan.

The ATIP Directorate maintains the ATIPflow System to manage the access request caseload. The system is capable of providing numerous reports to manage and report on the caseload. The ATIP Directorate is providing a number of routine reports to various parts of PWGSC on the status of their access requests and timelines. In addition, the ATIP Directorate has numerous reports within their office on the access process scheduled versus allocated timelines.

ATIP Directorate staff have ATIP Desk Procedures, a comprehensive administrative guide for processing access requests. The ATIP Desk Procedures were revised in November 2002 and are revised on an ongoing basis as required.

The ATIP Directorate currently employs three consultants to process access requests. Consultants (or contractors) are useful for peak periods in the workload. When the workload trend is increasing in the longer term, the long-term use of consultants does not represent value for money. Funding for a consultant will cost considerably more than funding for an employee. In addition, any knowledge about the organization’s records and access process will disappear with the end of the consultant’s contract.

The department does not have a documented fee policy for access request processing. The ATIP Directorate should develop a fee policy to support transparency in decision making for fee waivers.

For OPIs to complete their part of the access process, ATI training and documented procedures including timelines are required. During 2002-2003, the ATIP Directorate OPI and other training will consist of briefings held on an "as needed" basis.

OPIs expect strong support from the ATI Office in training in order to understand precisely what their responsibilities are under the Access to Information Act, particularly with respect to timelines and extensions. In addition, the OPIs need procedural and instructional information on how to carry out tasks assigned to them as part of the process for responding to access requests.

PWGSC has a draft of a recent update to the comprehensive Handbook for PWGSC ATIP Liaison Oficers and OPI Managers. The department also has the Departmental ATIP Policy available on the intranet. The policy includes procedures and describes roles and responsibilities of managers and employees. ATIP Liaison Officers in programs have briefings from and regular contact with the ATIP Directorate.

Training is an essential component of ATIP operations. A properly planned and delivered ATI training program will provide OPIs with the ability to fulfill their responsibilities in the access process. As well, a planned approach will maximize the training expenditure. There is a need for a Training Strategy for OPIs in PWGSC particularly since there have been many changes in OPI ATIP liaison personnel.

The ATIP Directorate should develop an ATI Training Strategy for 2002-2003. The strategy should include training priorities, staff identified as benefiting from new or additional training, number and location of sessions and ATI responsibilities for delivery of the training and implementation of the handbook. The ATIP Directorate is in the best position to identify training priorities. The office understands the level of knowledge of OPIs on the Access to Information Act through interaction on access requests. The Directorate is aware of complaints about problems in meeting the requirements of the Act and is aware of departmental issues that may impact on the Act.

Section 27 of the Access to Information Act provides a process for a department to follow when an access request may contain certain third-party information that is exempt under the Act. The process includes notifying the third party to determine if the third party has any views on the release or non-release of the information. The process has a timeline that includes providing the third party with 20 calendar days to provide representations to the department.

The ATIP Director states that a large proportion of access requests received by PWGSC involve third-party notices under section 27. These requests may involve multiple notices. The following issues all hinder that department’s ability to meet the Act’s time requirements when dealing with notices under section 27 of the Act:

• the number of consultations; the complexity of some issues;

• the need to educate and negotiate with third parties;

• the logistical issues in tracking multiple notices for the same request.

The ATIP Directorate has introduced a number of measures to reduce the number of access requests in a deemed-refusal situation. These measures are described in the Management Response section of this report.

The department conducts a high percentage of consultations under paragraph 9(b) of the Act.

The ATIP Directorate should review the access requests that were subject to third-party intervention or consultation and ended in a deemed-refusal situation to determine if there were any systemic reasons for the delays. If so, measures can be identified and implemented as part of the ATI Improvement Plan to reduce the number of delays.

PWGSC has experienced a growing number of access requests for sponsorship information. The number and complexity of these requests has placed severe constraints on the ATIP Directorate’s ability to respond in a timely fashion.

Additional information on causes of delays is contained in Section B.II, Part C: Contributing Factors of the Report Card.

PWGSC has instituted a number of measures to deal with the deemed-refusal situation.

The ATIP Directorate has extensive reporting in place to track request timelines in the access process.

ATIPflow has an icon that alerts the ATIP Directorate and Team Leaders that a request deadline is approaching. Since ATIPflow is viewed on a daily basis, an Officer and/or Team Leader will note any cases coming due.

ATIP Officers use ATIPflow reports. Officers generate these reports to determine the status of their ongoing cases and identify those that are coming due or overdue. Officers also produce a Deadline List Report and a Situation Report.

ATIP Officers prepare action plans for various ATI requests that are in danger of becoming overdue or are overdue. The plans are intended to clearly outline the milestones and key dates for each access request and serve as a guide to the ATIP Officer when processing the request. The preparation of the action plans is also a coaching tool and serves as a basis for discussion between the Officers and Team Leaders about progress, training requirements and performance issues.

The support staff prepare weekly reports that they send electronically to all ATIP Directorate staff. The information is derived from ATIPflow and is intended to remind ATIP Officers of their cases coming due and cases that are overdue.

A Files Coming Due Report is prepared and sent to staff each Wednesday. It identifies the routine files that are coming due within the next 8 days as well as the "interesting" requests coming due in the next 15 days.

A Files in Senior Management Review Process Report is prepared on a weekly basis and is sent to all Team Leaders. It identifies the "interesting" request release packages that have been sent to the Deputy Minister’s and Minister’s Offices for senior management review. The report includes the text of the request, the date the request was sent and the expected review completion date. The report is intended to prompt Team Leaders to follow up when the expected completion date of the release package is near or has been exceeded.

2. ATIP Funding

Funding has been increased significantly year over year for the ATIP Directorate. Staffing has also increased. In 1999-2000, 11.89 person-years were allocated to the ATIP Directorate. This allocation increased to 23.5 person-years for the 2001-2002 fiscal year.

3. Review Process

There have been a number of measures taken to streamline the reviews in the access process. The ATIP Directorate is continuing discussions to streamline the process. For example, only two Branch Assistant Deputy Ministers are now involved in the senior management review process.

4. ATI Training and Awareness

The ATIP Directorate is planning to hold regular meetings with ATI liaison officers in the 2003-2004 fiscal year. The revised Handbook for PWGSC ATIP Liaison Oficers and OPI Managers will be distributed to departmental ATIP liaison staff in early 2003.

5. Third-Party Delays

The department has implemented a number of measures to reduce the number of access requests in a deemed-refusal situation. The letter which is included with the package sent to third parties under section 27 of the Act can be sent back to the ATIP Directorate of PWGSC by facsimile to authorize disclosure of the records subject to the third-party notice.

An ATIP Officer will contact the third party shortly after the notice is transmitted. The purpose of the communication is to confirm receipt of the notification and to explain the third-party notification process under the Act.

The department is to be commended on the quality of the substantial documentation provided to support information in the Review Questionnaire. This indicates that a solid foundation for improvement exists.

There are a number of departments that have found themselves in an F grade, red alert situation, with regard to the new access request to deemed-refusal ratio. Through deliberate commitment, well-planned and executed measures and in timeframes as short as two years, other departments have attained substantial and ideal compliance. With these possibilities in mind, this review recommends the following:

On January 7, 2003, PWGSC’s ATIP Director was interviewed for the purpose of this Report Card.

The Average PWGSC ATI Request:

On average, each request is associated with the retrieval of 315 pages of records and requires consultations with two government departments and two third parties. Each ATIP Officer handles roughly 15 access requests simultaneously.

A notable trend is the increase in the number of incoming ATI consultations from other government departments, commensurate with a near doubling of the volume of records to be reviewed. In FY 2000-2001, 169 consultations were received, associated with 6,722 pages of records; in FY 2001-2002, 186 consultations were received, associated with 13,751 pages; and between April 1 and November 30, 2002, 151 consultations were received, associated with 13,080 pages of records.

The ATIP Office must balance the need to respect the legislated timelines of other government departments who are consulting with PWGSC on an increasing number of records at the same time as it strives to respect the timelines associated with its own ATI requests.

Refer to section 15(b) of the Questionnaire.

As a common service agency, PWGSC processes a large volume of ATI requests associated with procurement and real estate activities managed on behalf of other government departments. These activities range in complexity from the simple procurement of office supplies to the procurement of crown projects, such as helicopters and jets.

In FY 2001-2002, the ATIP Office conducted 710 third-party consultations. In general, compliance with section 28 of the ATI Act is a logistically and legalistic process that causes delays in meeting timelines. Time is spent:

• Ensuring that each third party is consulted only once;

• Ensuring that only the appropriate documents are sent to each third party;

• Educating third parties on the process in order to avoid unnecessary litigation;

• Following up with third parties to ensure that their rights are respected and that the appropriate information is protected; and

• Keeping requesters informed when problems arise.

In FY 2001-2002, the ATIP Office conducted 417 consultations in relation to the information it held relating to the business of other government departments.

In general, 60-day time extensions are taken by the PWGSC ATIP Office for the purpose of consulting with other government departments, including consultations relating to cabinet confidences.

Although most consultations are completed with 30 days after the notice has been sent, consultations with the Privy Council Office frequently require additional time. This is complicated by the fact that PWGSC frequently consults PCO with respect to information held in portions of documents. Since not all cabinet confidences are readily identifiable, several consultations notices may be sent on the same request, and some notices have been be sent late in the process.

Siemens Canada Limited v. Canada (Minister of PWGSC) 2001, FCT 1202:

On November 5, 2001, the Federal Court Trial Division ordered that all third-party information obtained by virtue of section 16 of the Defence Production Act (DPA) is subject to a mandatory exemption under section 24 of the ATI Act (section 30 of the DPA).

In light of the judicial decision, discussions ensued between the PWGSC ATIP Office and Justice Canada concerning the procedural implications and the new content of third-party notices. As these discussions were conducted over several months, there were significant delays in processing more than 30 DPA-related requests during FY 2001-2002.

Since FY 1999-2000, the number of ATI requests associated with sponsorship requests has increased dramatically. Between April 1 and September 1, 2001, 18% of ATI requests received were sponsorship-related. Between April 1 and November 30, 2002, 31% of ATI requests received by PWGSC were sponsorship-related.

As a result, delays were incurred in processing all ATI requests due to the:

• Shear volume of sponsorship requests received in a short period of time;

• Need to establish effective linkages with other sectors within PWGSC and with Communication Canada to respond to the Minister’s and department’s communication needs and to ensure a consistent approach was taken in the processing of similar ATI requests;

• Need to reassign existing ATI staff and consultants to specialize in the handling of these requests; and the

• Need to hire and train new ATI staff.

These factors significantly impacted the compliance timelines of sponsorship-related requests and, for a short interval, the compliance timelines of all other ATI requests.

(available from the Office of the Information Commissioner)

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Notes:

¹ This grade solely reflects on the department’s performance in =response deadlines to November 30, 2002. It is not a measure of the department’s performance in the application of exemptions. In general, PWGSC applies the exemption provisions of the Act professionally and with restraint.
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² There is a form attached to a release package for "interesting" requests. All "interesting" requests are reviewed by the Deputy Minister’s and Minister’s Offices. [Back]

³ The percentages are based on the number of requests that were reviewed by senior management. A higher percentage of requests was initially designated as "interesting", but the designation was removed prior to senior management review for various reasons. [Back]