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Message from the Interim Information Commissioner of Canada

I am pleased to submit to Parliament the Departmental Performance Report of the Office of the Information Commissioner of Canada for the fiscal year ending March 31, 2009.

Canadians expect—indeed require—that public institutions be efficient in carrying out their mandate and timely in responding to citizens’ requests for information. As the agency responsible for ensuring that requestors’ rights under the Access to Information Act are respected, the Office is expected to demonstrate fairness, timeliness and transparency in the way we conduct our business. To be successful over time, we must also have the flexibility to embrace and anticipate change, and use change to improve service delivery to Canadians.

In recent years, our external environment has undergone massive changes, driven mostly by technological developments. The impact on access to information has been both profound and multi-faceted. Therefore, under the leadership of former Commissioner Robert Marleau, we redefined our vision for the Office two years ago, and moved in a bold new direction. We proceeded with a major realignment of operations and resources to improve our core investigative function, to deal with a historical backlog of complaints—which was compounded by a major surge in complaints in 2007–2008—and to address other deficiencies noted by the Office of the Auditor General in its 2006–2007 audit report. We actively pursued reform of the Access to Information Act, guided by Mr. Marleau’s fervent call to modernize the legislation in the name of democracy.

Our 2008–2009 Report on Plans and Priorities set ambitious goals to align our operations with current needs and realities. We made considerable progress towards achieving these goals. For example, our revamped report cards exercise provided a better picture of how institutions process access to information requests. We carried out a thorough review of our resource levels, which confirmed the need to increase our resource base so that we can fully deliver our mandate. We established an internal audit function to obtain independent feedback on the effectiveness of our operations and governance processes. We tabled a series of legislative recommendations before Parliament to address the most pressing needs to modernize the Act.

More significantly, we introduced a new business model, tailored to our unique challenges, for the purpose of improving service delivery to information requestors. This new way of doing business is supported by a comprehensive and well-integrated strategy to upgrade over the next five years our technology infrastructure and organizational capacity. As a result, we have already increased substantially the efficiency and timeliness of our investigations. By the end of 2008–2009, we had closed more complaints than in any previous year and reduced the historical backlog of long-standing complaints (pre-April 1, 2008) by half, which bodes well for eliminating it by March 2010.

In addition, our new business model allows us to be more strategic and proactive in identifying and addressing issues that hinder access to information. To echo Gilles Paquet’s¹ exhortation in a recent paper on the role of ombudsman in governance, we must confront today’s multiplicity of diffuse, complex and interwoven forces at play, and tackle systemic issues head on in order to unearth and expose the source of the problem. Our new business model also provides for the strategic and concerted use of various activities and tools at our disposal to exert maximum influence on how institutions handle access requests.

In 2009–2010, my first priority as Interim Commissioner will be to finalize the implementation of our business model, so that we can further increase the timeliness of our investigations, eliminate our historical backlog and prevent its recurrence. We will follow up on recommendations from the independent audit of our new Intake and Early Resolution Unit to ensure that our investigative process is the most efficient and transparent it can be. We will thoroughly investigate systemic issues in order to prevent non-compliance situations or offer effective solutions at an earlier stage. And until legislators strengthen the compliance model inherent in the Act, we will use all means at our disposal to maximize compliance with the law.

¹Gilles Paquet is a Professor Emeritus at the School of Management and Senior Research Fellow at the Centre on Governance of the University of Ottawa.

Section I: Overview

Summary Information

Raison d’être

The Office of the Information Commissioner of Canada ensures that the rights conferred by the Access to Information Act are respected, thereby enhancing transparency and accountability across the federal government.

The Office of the Information Commissioner carries out thorough, fair and timely investigations of complaints made against federal institutions under the Act. As such, the Office gives complainants, heads of federal institutions and all third parties affected by complaints a reasonable opportunity to make representations.

Responsibilities

The Information Commissioner is an officer of Parliament and ombudsman appointed by Parliament under the Access to Information Act, Canada’s freedom of information legislation. The Commissioner is supported by the Office of the Information Commissioner, an independent public body set up in 1983 under the Access to Information Act to respond to complaints from the public about access to government information.

The Office has four branches:

• The Complaints Resolution and Compliance Branch carries out investigations and dispute resolution activities to resolve complaints.
• The Policy, Communications and Operations Branch assesses federal institutions’ performance under the Act, conducts systemic investigations and analysis, provides strategic policy direction for the Office, leads the Office’s external relations with the public, the government and Parliament, and provides strategic and corporate leadership in the areas of financial management, internal audit and information management.
• The Legal Services Branch represents the Commissioner in court cases and provides legal advice on investigations, and legislative and administrative matters.
• The Human Resources Branch oversees all aspects of human resources management and provides advice to managers and employees on human resources issues.

Strategic Outcome and Program Activity

The Office of the Information Commissioner has one Strategic Outcome and one Program Activity.

Strategic Outcome Individuals’ rights under the Access to Information Act are safeguarded

Program Activity Compliance with access to information obligations

Summary of Performance

2008-2009 Financial Resources ($ million)

Planned Spending	Total Authorities	Actual Spending
9.638	10.227	9.834

The Office’s financial resources had a direct impact on its performance. The following sections highlight the work the Office carried out with the resources available in 2008–2009 to achieve its single Strategic Outcome and deliver on its single Program Activity.

At the outset of the year, the Office’s planned spending was $9.638 million. Through Main Estimates and Supplementary Estimates, the Office was allocated total authorities of $10.227 million. Actual spending was $9.834 million.

2008–2009 Human Resources (full-time equivalents)

Planned	Actual	Difference
90	59	31

The Office faced significant human resources challenges in 2008–2009. A number of investigators left the Office due to retirement or to pursue opportunities with access to information and privacy units in federal institutions. Recruiting replacements is an ongoing challenge for the Office, since skilled information professionals are currently in high demand.

In order to eliminate its historical backlog of complaints and manage the increased workload stemming from a surge in new complaints, the Office contracted consultant and temporary help services throughout the year. These resources—23 temporary help and consultants—are not included in the figures above.

Summary of Performance against Targets

Strategic Outcome 1: Compliance with access to information obligations

Performance Indicators	Targets	2008-09 Performance
Proportion of recommendations that are adopted (recommendations from investigations in response to complaints and Commissioner-initiated investigations)	95 percent of recommendations from investigation of complaints are adopted	As was the case in 2007–2008, the Office resolved 100 percent of the complaints it completed in 2008–2009 without resorting to legal proceedings. This is clear evidence that institutions are adopting the Commissioner’s recommendations. The 2008–2009 annual report reviews eight examples of successfully resolved complaints.
	80 percent of recommendations from Commissioner-initiated investigations are adopted	The Commissioner only initiated one investigation in 2008–2009, and the findings were pending at the end of the fiscal year. The Office will report on these findings in its 2009–2010 performance report.
Timeliness of the follow-up actions on recommendations	All recommendations are followed up within one year of final reports	As a result of its investigation into a complaint by the Canadian Newspaper Association that federal institutions were applying secret rules when handling access requests from the media, the Office made three recommendations in September 2008. The President of the Treasury Board and the heads of the 21 institutions investigated agreed to follow the Office’s recommendations. The Office followed up with the institutions in early 2009, which elicited various replies. Some institutions stated once again that they do not label requests for special handling. Others confirmed that although they do label requests, this does not delay the disclosure of information. Two institutions—Citizenship and Immigration Canada and Indian and Northern Affairs Canada—clearly demonstrated their commitment to avoid delays. By contrast, Health Canada implemented solutions that will only decrease or reduce delays. This means that the institution will continue to fail to meet legal deadlines for its “highly sensitive” files. The Office intends to follow up with Health Canada in 2009–2010. The Office’s performance assessment process (report cards) generated a number of recommendations, which the Office released in February 2009. The Office will be following up on the implementation of the recommendations during 2009–2010 and will report on the rate of adoption in that year’s performance report.

Summary of Achievements against Priorities

1. Improve service delivery to information requestors: The Office developed and began to implement a new business model to increase the efficiency of investigations, eliminate the historical backlog of complaints and prevent its recurrence, and address systemic issues. The business model will also allow the Office to effectively use the various tools at its disposal to maximize its influence on compliance. This new way of doing business is supported by a comprehensive and well-integrated strategy to update over the next five years the Office’s technology infrastructure and organizational capacity. More details about the new business model can be found in Section II, below, as well as in the Commissioner’s 2008–2009 annual report.

2. Renew the approach to the performance assessment of federal institutions: The Office revamped its performance assessment process (known as report cards) to increase its relevance and usefulness as well as to address systemic issues. The new report cards methodology sheds light on contextual factors affecting institutions’ performance, while keeping a strong focus on whether institutions are responding to requests within the statutory timelines. The Office issued a special report to Parliament in the winter of 2009 on institutions’ performance in 2007–2008. The report included the results for the 10 institutions assessed, recommendations for the Treasury Board Secretariat, the central agency responsible for the implementation of the Access to Information Act, as well as the institutions’ response.

3. Integrate, to the operations, the implications of the coming into force of the Federal Accountability Act: To adequately meet its Federal Accountability Act obligations, the Office requested funding from Treasury Board in 2007–2008 to set up an access to information and privacy office and to develop an internal audit function. The Office received and used this funding in 2008–2009. The Access to Information and Privacy Secretariat was fully operational in 2008–2009 and worked to enhance information management throughout the Office in order to facilitate responses to information requests. In addition, the Office met the April 1, 2009, deadline to implement the requirements of the Treasury Board audit policy suited to the work of an officer of Parliament.

4. Modernize access to information legislation: In March 2009, the Information Commissioner presented 12 recommendations related to the most pressing matters for reform of the Access to Information Act to the House of Commons Standing Committee on Access to Information, Privacy and Ethics. The Committee began hearings on reform of the Act later that month.

5. Build organizational capacity: In 2008–2009, the Office conducted a review of its resource levels (an A-base review), which clearly showed the need to augment its resource base to enable the organization to fulfill its mandate. The Office submitted a request to this effect to the Advisory Panel on the Funding and Oversight of Officers of Parliament. Although, the full complement of resources requested was recommended by the Advisory Panel, only part of the funding was granted.

The Office also developed an integrated business and human resources plan with key strategies to be more efficient and proactive in recruiting, retaining and training employees. It started implementing its five-year information management/information technology (IM/IT) strategic plan, which includes a number of renewal initiatives that are crucial to the success of the new business model. Finally, the Office integrated and streamlined its corporate planning and reporting activities to ensure their closer alignment and to improve performance measurement and management.

Summary of Spending

($ million)

Program Activity	2007-2008 Actual Spending	2008-2009
		Main Estimates	Planned Spending	Total Authorities	Actual Spending
Compliance with access to information obligations	7.856	7.665	9.638	10.227	9.834
Total	7.856	7.665	9.638	10.227	9.834

In 2008–2009, the Office had a variance of $589,000 between its planned spending and the total authorities it was granted over the year. This can be explained by four changes that took place during the fiscal year:

• the Office received compensation to meet requirements of recently signed collective agreements;
• there was an operating carry-forward;
• the Office was reimbursed for a pay list shortfall; and
• there was an adjustment to the Employee Benefit Plan contributions.

Contribution of Priorities to Strategic Outcome

All operational priorities contribute to the Office’s single Strategic Outcome: Individuals’ rights under the Access to Information Act are safeguarded.

Operational Priorities	Type	Status
1. Improve service delivery to information requestors An access to information system, in which requestors can have their complaints resolved in an objective and fair manner and as efficiently as possible, is essential to ensuring transparency and openness of government. In addition, the Office of the Information Commissioner strives to be exemplary in the area of service to requestors.	New	Mostly met The Office developed and began its five-year implementation of a new business model for improving the efficiency of investigations. The year saw positive results from the new way of doing business: In 2008–2009, the Office closed more complaints (1,770) than in any previous year. The Office closed half of its long-standing complaints (those from before April 1, 2008), which puts it in a good position to eliminate its historical backlog by its publicly stated target date of March 31, 2010. Under the new business model, the Office established the Intake and Early Resolution Unit as a pilot project to see whether having a dedicated team to look after the administrative aspects of investigations as well as attempt early resolution for certain types of complaints would accelerate the process. Given the large number of complaints the Office closed this year, it seems that this approach is working. The Office audited the work of the new unit and will implement the recommendations contained in the audit report in 2009–2010. By improving the performance of this unit, the Office will significantly improve service delivery by being able to process and, therefore, close complaints more quickly than before. The Office completed a systemic investigation into a complaint from the Canadian Newspaper Association about whether institutions were delaying access requests from the media. The Office streamlined some of its administrative and investigative processes, including serving notices required under the Access to Information Act by email instead of delivering them by hand, delegating approval and sign-offs of cases, and revising the format and content of investigation reports. While pursuing legislative and administrative reform, the Office developed a continuum of interdependent tools it has at its disposal to maximize institutional compliance with the Access to Information Act. The Office is making strategic and well-coordinated use of these tools to improve service delivery and meet its objectives.
2. Renew the approach to the performance assessment of federal institutions This will help federal institutions reach the highest level of compliance and make the assessments more relevant and useful to Parliament.	New	Met all The Office revamped its performance assessment process (known as report cards) to increase its relevance and usefulness. The Office issued a special report to Parliament in the winter of 2009 on institutions’ performance in 2007–2008. The report included the results for the 10 institutions assessed, and set out concrete recommendations for improvements and the institutions’ responses. The Office will follow up on institutions’ progress in implementing its recommendations in 2009–2010. It will also fine-tune the report cards process in light of institutions’ feedback.
3. Integrate, to the operations, the implications of the coming into force of the Federal Accountability Act. Since it is now subject to the Access to Information Act, the Office has the opportunity to become a centre of excellence and a leader among federal institutions on how to effectively process access to information and privacy requests. This will also allow the Office to make a significant contribution to the transparency and openness of government.	New	Met all The Office’s Access to Information and Privacy Secretariat responded to 109 of 113 access requests it received during the year. The Information Commissioner ad hoc received 13 complaints, six of which he found to be not substantiated. One was resolved by the release of further information and six were carried over to 2009–2010. The position of Information Commissioner ad hoc was created in 2007 in response to the Office becoming subject to the Access to Information Act for the first time. The Information Commissioner ad hoc independently investigates complaints about the Office’s handling of access requests. The Office met the April 1, 2009, deadline for implementing the requirements of the Treasury Board audit policy suited to the work of an officer of Parliament. It hired a firm to provide internal audit services, recruited two external members for the audit committee (which met three times) and approved audit committee and internal audit charters as well as a risk-based audit plan. In addition, the audit firm carried out its first audit (of the Intake and Early Resolution Unit; see point 1, above).
4. Modernize Access to Information This will ensure that the Access to Information Act and the systems established to implement it reflect the complex information environment of the early 21st century.	New	Met Amending the Access to Information Act is the prerogative of Parliament. However, the Commissioner may advocate for legislative reform and make suggestions to Parliament on how it should be done. In March 2009, the Commissioner presented 12 recommendations related to the most pressing matters for reform of the Act to the House of Commons Standing Committee on Access to Information, Privacy and Ethics. The Committee began hearings on reform of the Act later that month.
5. Build organizational capacity By implementing its IM/IT strategy and its integrated human resources plan, the Office will be able to fully implement its new business model and deliver its mandate and improve its service to Canadians.	New	Mostly met The Office reviewed its resource levels (A-base review). The Office developed an integrated business and human resources plan, which it expects to bear fruit in the future in terms of recruitment, training and retention of staff. The Office developed a comprehensive five-year IM/IT plan containing renewal initiatives to help the Office enhance productivity, ensure data security and support crucial infrastructure. The improved IM/IT environment will facilitate investigations and the Office’s work to meet its access to information and privacy obligations. The Office placed increased emphasis on investigating systemic issues, particularly to get at the root causes of non-compliance with the Access to Information Act. The Office integrated and streamlined its corporate planning and reporting activities to ensure their closer alignment and improve performance measurement and management.

Risk Analysis

The Office’s 2008–2009 Report on Plans and Priorities identified a number of external and internal factors that it anticipated would influence its operating environment.

Externally, the coming into force of the Federal Accountability Act in 2007 had a major impact on the federal access to information system, which was already being dramatically reshaped by changing technology and the increasing complexity of government business. This law increased the number of institutions subject to the Access to Information Act (including the Office itself) and, consequently, the number of complaints addressed to the Office surged in 2007–2008.

Within the Office, 2008–2009 marked the second year of profound institutional change, as the organization worked to implement a new way of doing business. The new business model enables the Office to investigate complaints more efficiently, as confirmed by the early successes registered at year-end. The Office closed half of the complaints in the historical backlog (pre-April 1st, 2008) and expects to close the rest in 2009–2010. It also closed more complaints than it ever had before (40 percent more than in 2006–2007 and 28 percent more than in 2007–2008). Nonetheless, the Office still had 2,513 complaints pending at the end of March 2009. With the new business model in place, the Office expects to achieve a manageable number of complaints (200 to 500) carried over at year-end within the next five years.

The Office considers that a five-year timeframe is necessary to achieve its goals, given the number of challenges inherent in its multi-faceted renewal strategy, including recruiting and training its workforce, improving its IM/IT infrastructure and addressing system-wide issues that hinder access to information. Part of the risk associated with this new strategy stems for the need to secure sufficient resources to support it.

Expenditure Profile

The Office’s spending has been increasing in recent years. A number of factors account for this trend, as follows.

• Authorized funding increased by $2.2 million from 2007–2008, due mainly to the operating carry-forward, pay list requirements and new funding from Treasury Board mainly to meet the requirements of the Federal Accountability Act—to implement the Treasury Board internal audit policy and set up an access to information and privacy office.
• Actual spending and planned spending have been following the same trend in recent years as the authorized funding. In 2008–2009, the Office lapsed only $0.4 million and will be in a position to carry forward a portion of that amount into 2009–2010. In 2007–2008, planned spending was higher than actual spending because the former included the funding set aside by Treasury Board to fund the Office’s activities under the Federal Accountability Act. The Office did not receive that funding in 2007–2008 but only in 2008–2009.

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