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ARCHIVED - RPP 2006-2007
Offices of the Information and Privacy Commissioners


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The Honorable John M. Reid, P.C
Information Commissioner of Canada
The Honourable Vic Toews
Minister of Justice and Attorney General of Canada

SECTION I – OVERVIEW

SECTION II – ANALYSIS OF PROGRAM ACTIVITIES BY STRATEGIC OUTCOME

SECTION III – SUPPLEMENTARY INFORMATION

SECTION IV – OTHER ITEMS OF INTEREST

OFFICE OF THE INFORMATION COMMISSIONER

REPORT ON PLANS AND PRIORITIES

I am pleased to submit my Report on Plans and Priorities for the fiscal period April 1st, 2006 to March 31st, 2007

_____________________________________

The Honourable John M. Reid, P.C.
Information Commissioner of Canada

SECTION I – OVERVIEW

The Honourable John M. Reid, P.C., Information Commissioner of Canada

Commissioner's Message

During the seven years and a half years that I have served as Information Commissioner, there have been both positive and negative developments in the "life" of the Access to Information Act.

On the positive side, the courts have demonstrated strong support for the Act and the powers of the Information Commissioner; Parliament has created a new committee charged with reviewing the Commissioner's reports and championing access, privacy and ethics; a pilot project has been launched with the establishment of an Advisory Panel on the Funding of Officers of Parliament, for the period covered by this Report, as well as one out-year, to examine the funding of Officers of Parliament; the Conservative advocator comprehensive reform and strengthening government of the Access to Information Act; delays in the system are on the wane; there is much good work being done to improve the management of government records and academic-based training and education for access to information and privacy administration is more widely available.

On the negative side, however, a powerful culture of secrecy exists within the federal bureaucracy; access requesters and the Information Commissioner are not trusted by bureaucrats; more and more statutes were enacted with secrecy provisions, which met no injury test or had no sunset clause, and the Office of the Information Commissioner continues to be inadequately resourced to do the job given it by Parliament.

There seems to be a true public appetite now, in the wake of the sponsorship scandal, for Parliament to take the leap to reform the act – a move strongly recommended by Justice Gomery in his second report.

Management Representation Statement

I submit for tabling in Parliament, the 2006-2007 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 for the preparation of Part III of the 2006-2007 Estimates: Reports on Plans and Priorities.

  • It adheres to the specific reporting requirements outlined in the TBS guidelines;

  • It is based on the department's approved Program Activity Architecture structure as reflected in its PAA;

  • It presents consistent, comprehensive, balanced and reliable information;

  • 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.

The Honourable John M. Reid, P.C.
Information Commissioner of Canada

Summary Information


Reason d'être – To ensure that the rights conferred by the Access to Information Act are respected; that 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; to persuade federal government institutions to adopt information practices consistent with the objectives of the Access to Information Act; to bring appropriate issues of interpretation of the Access to Information Act before the Federal Court.


Financial Resources ($ thousands)


2006-2007

2007-2008

2008-2009

$8,181

$7,645

$7,645


Human Resources


2006-2007

2007-2008

2008-2009

78

78

78




Departmental Priorities by Strategic Outcome

Planned Spending

 

 

 

 

2006-2007

2007-2008

2008-2009

Strategic Outcome: Individuals' rights under the Access to Information Act are safeguarded.

Priority

Type

Program Activity – Expected Result

 

 

 

No. 1

Ongoing

Assess, investigate and review, pursue judicial enforcement, and provide advice.

6,707

6,447

6,447

No. 2

Ongoing

Corporate Services

1,474

1,198

1,198


Plans and Priorities

The department's priorities are set by statute and entail performing classical ombudsman functions (investigating, seeking resolutions, making recommendations, reporting results) with respect to complaints against government institutions about excessive secrecy, cost or delay in responding to access to information requests. The department's priorities relate to ensuring that its statutory priorities are completed efficiently, effectively and fairly.

In this latter regard, an ongoing concern is to reduce the time taken to complete investigations and reduce the number of investigations which are in a "backlog" status. As well, it is a sub-priority of the department to reduce the numbers of incoming complaints by engaging in audits and systemic investigations and by encouraging government to professionalize its access to information workers and educate its management personnel concerning access to information obligations. Finally, it is an important priority for the department to assist ministers, Parliamentary Committees, MP's and Senators in understanding and weighing the implications of proposed legislation for the rights contained in the Access to Information Act. Key, in this regard for fiscal year 2006-2007 will be the need to assist Parliament in considering and subsequently implementing the Accountability Act's access to information provisions.

SECTION II – ANALYSIS OF PROGRAM ACTIVITIES BY STRATEGIC OUTCOME

Analysis by Program Activity

Strategic Outcome

Individuals' rights under the Access to Information Act are safeguarded.

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


Program Activity Objectives:

Program Activity Performance Indicators:

Program Activity
Expected Results:

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

Number of complaints received

 

 


Turnaround time

Number of complaints received are greater than or equal to ten percent of the total number of access to information requests made

Service Standards (for a description of the service standards, please refer to page 21 of the Information Commissioner's 2003-2004 Annual Report, at www.infocom.gc.ca)

To persuade federal government institutions to adopt information practices in keeping with the Access to Information Act; and

Report cards

 

Institutions receive a grade of satisfactory or better

To bring appropriate issues of interpretations of the Access to Information Act before the Federal Court

Number of cases brought before the Courts

Number of cases brought before the Courts is less than one percent


Program Activity Description:

Assess, investigate, review, pursue judicial enforcement, and provide advice.

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.

Assess, investigate and review, pursue judicial enforcement, and provide advice

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

The 2006-2007 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 2003-2004 and a forecast of workload expectations for 2005-2006 and 2006-2007. The total number of complaints the Office receives is roughly in the order of one complainant for every 10 ATIP requests filled.

The telephone and the internet continues to be the most direct and most used means of communication with the public: this year, 3 000 calls consuming 800 hours were received on the office's "800" number.

Figure 1: Complaints

Figure 1:  Complaints

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

Pursue Judicial Enforcement

Another product of this activity involves the undertaking of Federal Court Litigation. 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, 2006, the Information Commissioner was involved in 16 judicial reviews before the Federal Court initiated pursuant to s. 42. During the same period, the Attorney General of Canada initiated most of the 55 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 50 judicial reviews under section 41, while third parties undertook 132 reviews of government institutions' decisions to disclose third-party information. The Office of the Information Commissioner also participated in 17 appeals before the Federal Court and 11 cases before the Supreme Court of Canada.

Provide Advice

The department assists Ministers, Parliamentary Committees, MP's and Senators in understanding and weighing the implications for the rights of access of proposed legislation. This has included advice regarding amendments to the Statistics Act with respect to Public access to historical census returns; so-called whistle-blowing legislation; anti-terrorism legislation and proposed amendments to the ATIA. At the request of the Standing Committee on Access to Information, Privacy and Ethics in June of 2005, the department drafted and tabled a draft Open Government Act to set the standard for future legislative reform in this area.

This activity represents 100 percent of program expenditures. The foregoing statement is based on the fact that the Program's other Activity's costs (Corporate Services') are combined with its major activity.

SECTION III – SUPPLEMENTARY INFORMATION

Organizational Information

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:

  • Reads all of the records;

  • Considers the exemption claimed;

  • Obtains explanations from the official(s) who invoked the exemption;

  • Hears the complainant's views;

  • Reviews the statutory provisions involved; and,

  • 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 phase 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.

Table 1: Departmental Planned Spending and Full Time Equivalents


($ thousands)

Forecast Spending 2005-2006

Planned Spending 2006-2007

Planned Spending 2007-2008

Planned Spending 2008-2009

Assess, investigate, review, pursue judicial enforcement,

5,556

8,181

7,645

7,645

and provide advise

 

Total Main Estimates

5,556

8,181

7,645

7,645

Adjustments:

 

Supplementary Estimates: (Governor General Special Warrants)

 

Collective bargaining agreements

202

-

-

-

Funding to modernize human resources management in the Federal Public Service (Public Service Modernization Act)

67

-

-

-

Operating Budget carry forward

61

-

-

-

Severance Pay

47

-

-

-

Procurement Savings

(5)

-

-

-

Total Adjustments

372

-

-

-

Total Planned Spending

5,928

8,181

7,645

7,645

Plus: Cost of services received without charge

822

1,137

1,149

1,172

Total Departmental Spending

6,750

9,318

8,794

8,817

Full Time Equivalents

61

78

78

78


The planned spending numbers for 2006-2007 through 2008-2009 do not include spending that will result from the implementation of the upcoming Federal Accountability Act (FedAA). The OIC is in the process of developing a business case and implementation plan with respect to aspects of the FedAA which will impact the OIC; namely, the creation of an ATIP office, and an increased number of investigators to handle new organizations who will now be subject to the Access to Information Act upon passage of the FedAA. The exact funding and resource requirements will not be known until the OIC has concluded its internal analysis based on the final wording of the legislation and the coming into force dates.

Table 2: Resources by Program Activity


2006-2007

Program Activity

Operating

Total Main Estimates

Adjustments (planned spending not in Main Estimates)

Total Planned Spending

Assess, investigate, review, pursue judicial Enforcement, and provide advice

8,181

8,181

-

8,181

Total

8,181

8,181

-

8,181


Table 3: Voted and Statutory Items


Vote or Statutory Item

Truncated Vote or Statutory Wording

2006-2007
Main Estimates

2005-2006
Main Estimates

40

(S)

Operating expenditures

Contributions to employee benefits plans

7,188

993

4,813

743

 

Total

8,181

5,556


The primary difference between the 2005-2006 and 2006-2007 Main Estimates is due a funding increase resulting from the OIC's 2005-2006 Treasury Board Submission and associated business case. The aforementioned documents support the need for significantly increased funding for investigations and reviews, backlog, outsourcing of legal services, communications, a senior full-time financial officer, training, information technology, translation, and other related services. An all-party House of Commons' panel, chaired by the Speaker, reviewed the Treasury Board Submission and recommended that Treasury Board ministers approve a new funding level for 2006-2007, which represents approximately 90% of the original amount requested.

Table 4: Services Received Without Charge


($ thousands)

2006-2007

Accommodation provided by Public Works and Government

Services Canada (PWGSC)

644

Contributions covering employers' share of employees' insurance

premiums and expenditures paid by TBS

418

Office of the Auditor General of Canada – audit services

75

Total 2006-2007 Services Received Without Charge

1,137


SECTION IV – OTHER ITEMS OF INTEREST

Other Items of Interest

Open Government Act

All parties in the House of Commons agree that ATI reform is required. The new Conservative government has endorsed the Open Government Act prepared by the Information Commissioner. The Second Report of the Gomery Commission also endorses the Commissioner's proposals for reform. The legislative process to pass these changes, and their subsequent implementation, will make significant demands on the department for fiscal year 2006-2007.

Inadequate Resources (Creation of a new Panel)

For several years, the Information Commissioner has asked Treasury Board Ministers to provide adequate funds to enable him to effectively discharge the duties given him by Parliament. The requests were routinely denied or greatly reduced.

Meanwhile, year after year the workload of complaints continued to increase and, without the infusion of additional resources, the backlog of incomplete investigations also increased. So serious has the problem become, that backlog now represents greater than one year's worth of work for every one of this Commissioner's investigators.

After the election of the minority liberal government in 2004, a new committee was formed and named: the Standing Committee on Access to Information, Privacy and Ethics.

The aforementioned committee proved invaluable in implementing a pilot project for a new funding and oversight mechanism for the 2006-2007 and 2007-2008 Estimates process for the Agents of Parliament. This new mechanism seeks to respect the role of Parliament, the independence and distinct mandates of its Agents, and also, to reflect the responsibility of the government for the sound stewardship of public resources.

The resulting Parliamentary Oversight Panel is comprised of the Speaker of the House of Commons and representation from each political party.

Before the most recent election was called, the Panel had made advisory recommendations to the Treasury Board on the funding of this Office of Parliament concerning a Treasury Board Submission dated 8 November 2005. The Treasury Board Secretariat had also made recommendations to the Treasury Board regarding the same Submission.

The Panel agreed that increased resources were needed for the processing of complaints, for the investigation of systemic issues and for addressing the complaints backlog and other related services. Indeed, the Panel recommended the revision upwards of certain amounts recommended by the Secretariat.

It therefore came as an unpleasant shock to learn that outgoing Liberal Treasury Board ministers had denied any funding for fiscal year 2005-2006, for those same items that the Panel had unanimously agreed ought to receive additional funding for fiscal years 2006-2007 and 2007-2008. The resulting "out" of some $ 400,000.00 of expected funding significantly impairs the offices ability to be both timely and effective in the discharge of its mandate.

Other Items of Interest

For other items of interest, please refer to the Information Commissioner's 2005-2006 Annual Report, which will be published, by mid-June 2006, at: www.infocom.gc.ca.