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Message from the 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, 2010.

Over the past year, developments at home and worldwide have quickly and profoundly reshaped the means, expectations, practices and purposes of access to public sector information. This has reinforced the momentum and sense of urgency for this Office to deliver timely service to complainants and ensure that federal institutions comply with the public’s right of access. The reporting year proved to be rich in challenges, achievements and lessons learned on our path to becoming more strategic and proactive in both our outlook and our day-to-day operations.

Before I was appointed as Interim Commissioner on June 30, 2009, my predecessor Robert Marleau initiated a major renewal exercise intended to enable this organization to effectively deliver on its mandate and maintain its relevance. This led to the introduction of a new business model for the OIC. Upon taking office, I made the firm commitment to further improve the effectiveness and timeliness of our core investigative function in accordance with current needs and expectations of Canadians.

Within a few months, I developed a comprehensive action plan to optimize our operations. As a result, we increased our capacity, thoroughly analyzed our inventory of complaints, and enhanced case management while monitoring performance on an ongoing basis. Corrective action was taken to meet our targets for completing both current and longstanding cases. Our success is evident in the decreasing size of our caseload and a more timely service to Canadians.

To address system-wide problems, notably the delays that plague the system, my staff conducted the most extensive report card process to date. The report benefited from the efficiencies of an integrated approach to performance reviews and systemic investigations. The exercise provided statistical data and information for a sound, fact-based assessment of delays. It also served to reinforce within the Office a solution-oriented culture that relies on evidence-based analysis in the search for the most effective remedies.

A well-functioning access regime requires discipline within all institutions in complying with their legislated obligations. To this end, I made full use of the powers and tools at my disposal. We published clear practice directions and collaborated with institutions in resolving outstanding issues. I took strong action when required, subpoenaing records, issuing recommendations directly to heads of institutions to resolve complaints, and even referring a matter to the Attorney General of Canada for review and possible prosecution. We pursued or undertook several legal proceedings to enforce or clarify fundamental points of law and to defend our jurisdiction and powers.

As an Officer of Parliament, I continued to assist Parliamentarians in their efforts to modernize the Access to Information Act and the way it is administered. In all aspects of our work, I ensured that our resources are managed in accordance with sound stewardship, particularly given the environment of fiscal restraint.

We drew important lessons from our first full year’s experience implementing the new business model, supported by our renewal strategies for human resources and information management. The increasing number of complex and time-consuming refusal complaints, including files remaining from our oldest inventory, calls for new or refined investigative strategies and greater analysis. We must enhance the legal support that investigators require for more complex cases while mitigating the inherent risk of greater litigation. Finally, given demographic trends and our compressed hierarchical structure, we must develop our ability to retain corporate memory and momentum in the event of management turnover.

I am proud of the success achieved by this Office during 2009-2010. We will build on these achievements and the lessons learned as we stand ready to address even more challenging cases and issues mid-way into our five-year renewal program. The dedication of my staff, their discipline and their capacity to innovate will generate further benefits for Canadians in terms of greater government transparency and accountability.

Section I: Overview

Raison d’être

Responsibilities

The Office is an independent public body which was established in 1983 under the Access to Information Act — Canada’s freedom of information legislation — to assist the Information Commissioner of Canada in her role as Ombudsperson and Officer of Parliament.

The Office is primarily responsible for carrying out fair, efficient and confidential investigations of complaints and issues of concern on how federal institutions handle access to information requests from the public. In carrying out this responsibility, it gives complainants, heads of federal institutions and all third parties affected by complaints a reasonable opportunity to make representations.

In addition, the Office supports the Information Commissioner in her advisory role to Parliament and parliamentary committees on all access to information matters. Where required, it assists the Commissioner in bringing issues of interpretation and enforcement of the law before the Federal Court. In delivering its mandate, the Office promotes Canadians' right to access information held by federal institutions and advances a pro-disclosure culture around public sector information.

The organizational structure of the Office of the Information Commissioner is shown in the diagram below.

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The Complaints Resolution and Compliance (CRC) Branch carries out investigations and dispute resolution efforts 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, leads the Office's external relations with government and Parliament, and provides strategic and corporate leadership in the areas of financial management, internal audit and information management. This Branch is also responsible for the OIC's Access to Information and Privacy function.

The Legal Services Branch represents the Commissioner in court cases and provides legal advice on investigations, legislative issues and administrative matters.

The Human Resources Branch oversees all aspects of human resources management—from staffing and development to retention strategies—and provides advice to managers and employees on human resources issues.

Strategic Outcome and Program Activity Architecture

Strategic Outcome and Program Activity Architecture

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

Program Activities Compliance with access to information obligations Internal services 1

¹ Commencing in the 2009-2010 Estimates cycle, the resources for Program Activity: Internal Services are displayed separately from other program activities. They are no longer distributed among the remaining program activities, as was the case in previous Main Estimates. This has affected the comparability of spending and FTE information by program activity between fiscal years.

Summary of Performance

2009-10 Financial Resources ($ thousands)²

Planned Spending	Total Authorities	Actual Spending
8,505	11,645	11,463

² At the outset of the year, the Office’s planned spending was $8,505K. Through Main Estimates and Supplementary Estimates, the Office was allocated total authorities of $11,645K. Actual spending was $11,463K.

2009-10 Human Resources (FTEs)

Planned	Actual	Difference3
82	78	4

³ In order to eliminate the historical backlog of complaints, the Office contracted consultants and temporary help service throughout the year. These resources are not included in the figures above.

Summary of Performance against Targets

The following table contains concise information about the OIC’s progress in achieving its strategic outcome during the reporting period. This information is discussed in further detail in Section II, under Performance Analysis.

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

Performance Indicators	Targets	2009-2010 Performance
Quality and timeliness of the investigation process (including investigation, legal review, approval and report of findings)	90% of investigations adhere to quality assurance standards at first round of review.	In 2009-2010, capacity build-up and improvements to case management substantially increased the number and timeliness of completed investigations. The Office closed 2,125 complaints during the reporting period, representing a 20% increase from the previous year.  The older, pre-April 2008 inventory of complaints diminished from 1,105 to 387, a decrease of 65% over the year. The average completion time of new cases fell by almost a third. The Office has undertaken to improve its investigative processes for different types of investigations. It will also review and refine its performance standards and quality control mechanisms for future reporting.
Reach to, and feedback from, stakeholders (i.e., the public, information requesters, ATIP community, others) through public events, speaking engagements, access to web-based information and other tools	Stakeholders are reached through having ready access to the Office’s publications, tools and information namely via a website that is redesigned to be comprehensive, up-to-date and user-friendly. Stakeholders’ feedback is generally positive.	Efforts to maximize the OIC’s influence through partnerships and information included, among others: The launch of a new, user-friendly website, which was generally well received as indicated by immediate feedback from a wide range of users. Publication of practice directions (3) that clearly set out the procedures the OIC follows to accept, investigate and resolve complaints Online consultations on proposed changes to disposition categories for complaints.  Collaboration with provincial and territorial counterparts to make Right to Know Week 2009 a national event. Eleven speaking engagements and presentations before various domestic and international audiences.
Proportion of OIC recommendations that are adopted following investigations of complaints/report cards	95% of recommendations from investigations of complaints are adopted. 80% of report card recommendations are adopted.	Based on information obtained during follow-ups with institutions and complainants, 99% of recommendations from investigations of complaints were adopted. Follow-ups to the report card process for 2007-2008 indicated that about 70% of recommendations from that process were implemented in whole or in part within the following year. Among the ten institutions involved, three significantly improved their performance (CBSA, RCMP, PWGSC) while three others had worse performance levels (PCO, NRCAN, DFAIT).  It is worth noting that an increasing number of institutions report on their progress in implementing recommendations in their own corporate documents or websites.
Proportion of court cases where judgments supported OIC representation (either to sustain or clarify interpretation of related statutes) and/or where OIC evidence was considered as part of court deliberations	90% of court judgments either supported OIC representation and/or considered OIC evidence.	In 2009-2010, Office counsel participated in a number of court proceedings - including four major cases before the Supreme Court - effectively communicating the perspective of the Information Commissioner on various access-related matters. The Office is currently reviewing its performance indicators and targets for the legal function to better reflect the various contributions of Legal Services within the OIC as well as the complexity of legal proceedings in terms of issues and outcome.
Value of OIC information and advice provided to Parliamentarians and parliamentary committees	80% of relevant parliamentary committee reports refer to OIC advice. OIC received positive feedback from Parliamentarians, Committee Chairs and members.	In June 2009, the House of Commons Standing Committee on Access to Information, Privacy and Ethics (ETHI) tabled a report on the renewal of the Access to Information Act, in which it agreed with all but one of the recommendations made by the Information Commissioner. Representatives of the Office appeared five times before the same Committee in 2009-2010.  During the Commissioner’s appearance on March 30, 2010, the Committee commented favourably on the work performed by the OIC.

($ thousands)

Program Activity	2008-2009 Actual Spending	2009-20104
		Main Estimates	Planned Spending	Total Authorities	Actual Spending
Compliance with access to information obligations	9,834	6,230	6,230	7,966	7,894
Internal services	See footnote 1	2,275	2,275	3,679	3,569
Total	9,834	8,505	8,505	11,645	11,463

⁴ In 2009–2010, the Office had a variance of $3,140K between its planned spending and the total authorities it was granted over the year. This can be explained by the following:

• new funding received to modernize and improve the Office’s business processes;
• 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

The following table provides information on the linkages between the OIC’s operational and management priorities for 2009-2010 and its single strategic outcome. The Performance Analysis subsection in Section II further substantiates the performance status assigned here.

Operational Priorities	Type	Status5
Improve service delivery to complainants An access to information regime where complaints to the Information Commissioner are resolved fairly, confidentially and efficiently, is essential to ensuring transparency and openness of government.	Ongoing	Mostly met. In 2009-2010, we developed and started implementing a comprehensive action plan to maximize our efficiency gains and provide more timely and effective response to complaints. In addition to building our investigative capacity (see below), we audited and adjusted our intake and early resolution processes while closely monitoring our progress on files. We enhanced our case management by devising new approaches and strategies. The Information Commissioner also made full use of the tools and powers at her disposal, taking strong action when required. Our annual report for 2009-2010 provides examples of these strategies and powers in action. As a result, we increased the number of cases closed this year by 20%, and reduced the number of longstanding complaints (from before April 2008) by 65%. We also shortened the overall average time to complete our more recent complaints by 29%. Our goal is to substantially increase the number of administrative and other straightforward complaints resolved within 90 days. We also need to enhance our analytical capacity to effectively deal with an increasing number of complex, high-priority cases and close the remaining files from our oldest inventory.
Increase compliance among federal institutions through performance assessments and investigation of systemic issues By integrating annual performance reviews and systemic investigations, the Office can be more efficient in identifying and addressing compliance issues. The discussions, reports and recommendations that result from the process also encourage and facilitate greater self-compliance among all institutions for the benefit of information requesters.	New	Mostly met. The OIC fulfilled all its commitments to foster compliance across the system. However, as mentioned above, follow-ups to the report card process for 2007-2008 indicated that about 70% of recommendations from that process were implemented in whole or in part within the following year. In July 2009, the Office published its first Three-Year Plan on Report Cards and Systemic Issues. In accordance with this Plan, we conducted an unprecedented report card exercise in 2009-2010, which involved 24 federal institutions representing 88% of all access requests. Tabled before Parliament in April 2010, the Special Report entitled Out of Time provided a fact-based assessment of the extent and immediate causes of delay across the system. It also took stock of the progress achieved by institutions to address previously identified systemic issues. The subsequent follow-up will inform us on the extent to which institutions have improved compliance as a result of this year’s process. In addition, through investigations and legal proceedings, we reviewed the experience of institutions that became subject to the Act in 2006-2007, under the Federal Accountability Act. Given their lack of experience in the area, these institutions faced significant challenges in complying with their legal obligations. Working with them to overcome their obstacles provided invaluable insight into broad-based issues that may be affecting institutional performance across the system.A number of these institutions will be formally assessed in 2010-2011 as part of our report card process.
Modernize access to information In order to fully achieve the purpose of the Access to Information Act, it is imperative to modernize both the legislation and the way it is administered to reflect the complex information environment of the 21st century.	Previously committed to	Mostly met. The OIC provided full support to Parliament in its efforts to influence the modernization of access to information. We continued our work on the development of legislative and administrative initiatives. In June 2009, the ETHI Committee agreed with all but one of the 12 recommendations made by the Information Commissioner on amendments to the Act. The government responded that any legislative amendments must be examined in the context of administrative alternatives, and advised the Committee that legislative reform would require extensive consultations with stakeholders. In a Special Report to Parliament, the Office made several recommendations to the Treasury Board Secretariat (TBS) on improvements to the administration of the Act. TBS has developed different instruments to address some of the OIC concerns (e.g. Proposed Directive on the Administration of the Access to Information Act and the Directive on Recordkeeping). However, it will take a few years before we see any tangible results.
Serve as an exemplary model for the access to information process Being subject to the Access to Information Act, the Office has the duty and opportunity to be a centre of expertise and a leader among federal institutions on how to effectively process access to information and privacy requests. This also allows the Office to make a significant contribution to the transparency and openness of government.	New	Met all. Through its ATIP function, the Office has shown exemplary performance in the processing of access requests. Although we received fewer requests in 2009-2010 than previously, these requests accounted for more than 56,000 pages to review, a 40% increase over 2008-2009. We had no deemed refusals in 2009-2010 and took a minimal amount of extensions (3). Where necessary, the ATIP unit prepared interim releases to ensure requesters get documents as quickly as possible.  The Office upheld the duty to assist requesters at each step of the process. There was only one complaint during the reporting period about how we handled an access request. The Information Commissioner ad hoc, who independently investigates such complaints, found it to be “unsubstantiated.” During the reporting period, we also spread the message about the importance of proactive disclosure through the wide range of corporate documents and disclosure logs available through our revamped website.

⁵ The performance status takes into account the percentage of planned activities and outputs that were successfully completed during the reporting year. Accordingly:

1. Met All means that 100% of the expected level of performance for the priority identified in the corresponding Report on Plans and Priorities was achieved during the fiscal year.
2. Mostly Met means that 80% to 99% of the expected level of performance for the priority identified in the corresponding Report on Plans and Priorities was achieved during the fiscal year.

¹³ During the reporting period, the Hon. W. Andrew MacKay, as Information Commissioner ad hoc, performed all of the powers, duties and functions set out in the Access to Information Act for the purpose of receiving and investigating independently any complaint about the way the Office of the Information Commissioner handles requests for information.

Management Priorities	Type	Status
Build organizational capacity   Our ability to effectively deliver on our mandate largely depends on having the right number of people with the right skills set.	Previously committed to	Mostly met. To improve the investigative function, the Office invested in recruiting, training and retaining its pool of skilled resources. Guided by our integrated business and human resources strategy, we staffed our investigative teams to near capacity, developed in-house training, and implemented an enhanced career development program. A full year’s experience with our new business model, as well as an in-depth knowledge of our complaints inventory, indicate the need to enhance our legal function and to integrate more analytical capabilities within our skills set to align our human resources with current business requirements.
Align IM/IT with business needs and values A modern IM/IT infrastructure is essential to provide investigators with effective tools to meet workload targets, to deliver on ATIP responsibilities and to provide high levels of service to Canadians.	New	Met all. The Office successfully completed year one of a five-year strategy to enhance its information management and information technology (IM/IT) capabilities. We implemented a comprehensive information management program and took innovative approaches in applying information technology to support investigations.  We aligned our IM/IT security policies with federal standards, invested in our IT infrastructure and contributed to a greener organization. At the end of the year, the Office was ahead of schedule and started three initiatives scheduled for 2010-2011.
Improve planning and reporting Sound governance starts with  comprehensive, reliable and integrated planning and reporting. There are also clear and direct linkages between these requirements and the achievement of strategic objectives.	New	Met all. We continued to improve our financial management practices and governance in 2009-2010. We received an unqualified audit opinion from the Office of the Auditor General on our March 31, 2010 financial statements. We also received an A grade – up from a D the year before – from the Office of the Receiver General for providing more accurate and timely reporting of financial information to Parliament and Canadians. Our integrated business/human resources plan has enabled us to proactively ensure the resources and skills needed to meet our ongoing and emerging workload and obligations.

Risk Analysis

The Office’s Report on Plans and Priorities for 2009-2010 identified a number of external and internal factors that were expected to influence the operating environment and, therefore, our progress in achieving our strategic objective.  

Workload Risks

To address workload risks, we started implementing a new business model in 2008-2009. We have undertaken to improve our standards of service and to set out clear investigative processes for different types of investigations. As a result of an internal audit of our intake and early resolution units, we adjusted our case management process to maximize efficiency gains and provide a more timely and effective response to complaints. Improvements include monitoring our progress on files, adopting a portfolio approach to investigations and dedicating a team to longstanding cases.

The year 2009-2010 was unprecedented in terms of investigations completed. However, a large volume of cases remain, including complex and time-consuming refusal complaints, which tend to require greater analysis and special analytical skills. In addition, unexpected fluctuations in the number of new complaints could further compromise the Office’s ability to conduct timely investigations and deliver on its mandate.  

Human Resource Risks

Recruiting and retaining an adequate number of knowledgeable and experienced resources were also identified as a risk. We developed an integrated business and human resources plan with key strategies to address this risk. During the reporting period, the Office staffed the investigative teams to near capacity. We also engaged experienced investigators on contract to work on the oldest and most complex cases, while we endeavour to build this area of expertise and analytical capability internally. The Office also enhanced its in-house training and its career development program for investigators.

Upcoming retirements and limited career progression within the Office’s executive cadre heighten the risk of corporate memory loss. Senior management positions at the OIC rely on unique skills and experience, and support the Commissioner in meeting her mandate. A comprehensive talent management strategy is needed to ensure appropriate succession plans. In the event of a turnover, it is also important that systems be in place to capture knowledge and enable it to be transferred.   

IM/IT Risks

Finally, potential challenges in implementing our five-year IM/IT strategy could jeopardize the Office’s renewal plans. Ineffective IM systems, processes, and practices could lead to significant losses of knowledge and corporate memory, while impeding our ability to effectively serve Canadians. Given its mandate, the Office is expected to be a leader in information management and access to information.

Expenditure Profile

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The figure above illustrates the Office’s spending trend from 2007-2008 to 2009-2010. From 2007-2008, core spending increased to meet ATIP and internal audit obligations introduced by the Federal Accountability Act. In 2009-2010, actual spending also increased primarily as a result of new funding obtained to modernize and improve business processes.  In 2009–2010, the Office lapsed $182K.

Voted and Statutory Items

($ thousands)

Vote 40 or Statutory Item (S)	Truncated Vote or Statutory Wording	2007-2008 Actual Spending	2008-2009 Actual Spending	2009-2010 Main Estimates	2009-2010 Actual Spending
40	Operating expenditures	7,012	8,990	7,540	10,326
(S)	Contributions to employee benefit plans	844	844	965	1,137
Total		7,856	9,834	8,505	11,463

In addition to new funding received to modernize the Office’s business processes, the following explains the difference between the Main Estimates and the actual spending in 2009-2010:

• 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.

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