Federal departments and agencies have admitted in recent months that access to information is “not a priority” for them when another government institution consults them before disclosing or not disclosing documents.
The statement appears in black and white in a memo obtained by The Canadian Press from the Treasury Board Secretariat (TBS) under the Access to Information Act.
The two-page document lists the main problems that have been reported to TBS by other federal organizations in their compliance with this law used by journalists, researchers and pressure groups to force the obtaining of internal reports and government communications, for example.
Specifically, the memo prepared at the end of April summarizes reasons for “limited capacity to process and respond to consultations”.
When a department that has received an access to information request plans to release a document that concerns other institutions, it is common for intergovernmental “consultations” to be initiated, which often leads to long processing times, according to observers.
“Institutions have given the following reasons for their limited ability to process and respond to consultations. They have been divided into three main headings”, can we read in the document, which also lists possible solutions for the Treasury Board, responsible for ensuring compliance with legislative obligations throughout the federal apparatus in terms of Access to Information and Privacy (ATIP).
“Competing interests”
Under one of the headings, “Priority vs. Mandate”, we find the mention that organizations have reported having “competing interests”, topped with a parenthesis where we can read that “ATIP is not a priority in their institution “.
Asked about this, the TBS media relations team denies, in a written statement sent by email, that institutions have had this response. “The analyst instead used the category ‘not a priority in their institution’ to categorize responses where the ATIP Office had limited or no access to the workplace or had restricted access to work tools,” argues -we.
The COVID-19 pandemic and working from home have had a crippling effect on the efficiency of many federal department ATIP offices, but Ottawa says things are improving, especially since “changes to public health measures “.
“The document is the result of an internal analysis that was never completed or communicated to senior management,” also add the persons in charge of relations with the media of the SCT.
Toby Mendel, executive director of the Center for Law and Democracy, sees a “red flag” in the mention of “not a priority” by consulting the document obtained by The Canadian Press.
“This answer amounts to saying ‘For us, it is not a priority to obey the law.’ It’s a shocking thing to say,” he said in an interview.
Very long delays
The head of the Nova Scotia-based organization holding a global right to information ranking noted that intergovernmental consultations are not required under Canadian law and can be time-consuming.
The Access to Information Act establishes that federal departments and agencies are required to respond within 30 days of receiving a request, but it also allows departments to grant themselves additional time by invoking certain sections of the legislation.
For Mr. Mendel, there is no doubt that the law must be tightened to mark out these deadlines. He pointed out that this exists elsewhere and prevents delays of 60, 90 or 120 days, as an example.
Wanting to expose a contrast, he affirmed that such slowness is not seen when a ministry receives the mandate to answer the question of the minister at its head. “No one is ever going to come back to the minister and say ‘We need 120 days to get back to you,'” he illustrated.
Federal Information Commissioner Caroline Maynard also addressed the issue of the lengthy consultations when she testified in May before a House of Commons committee. She mentioned that these, often involved in the delays in processing access requests, could be necessarily limited in time, especially since they are not legally required.
In Mr. Mendel’s eyes, intergovernmental consultations can also be an exercise in finding excuses to avoid providing documents or to redact — or black out — portions of them before handing them over to the requester.
“They can consult for ways to find a reason to refuse to disclose. This is the purpose of their consultations. »
In addition to issues related to “competing interests”, the document sets out two other challenges, namely human resources issues and technology issues.
Recall the order
In a separate written statement provided to The Canadian Press, TBS said it reiterated in September that a directive “requires institutions to treat consultation requests from other government institutions with the same priority as requests for access to information they receive directly”.
Additional directives were also given, it is reported. “The notice indicates that it is not an acceptable practice to ask another institution to review an entire ATIP file without providing additional guidance to reduce the scope of consultations or relevant context for speed up the consultation process. »
The office of Treasury Board President Mona Fortier did not provide independent comment from the TBS media relations team, although invited to do so.
Treasury Board has yet to conclude its review of the Access to Information Act which began in June 2020. According to a previously scheduled timeline, this was to be completed in early 2022.
For months, Minister Fortier’s office has been ensuring that the final report concluding this review will be tabled in Parliament by the end of the year.
The Trudeau government had set itself a requirement for review by modernizing the Access to Information Act, in 2019, through the adoption of Bill C-58. Commissioner Maynard called the overhaul a “good start,” but not enough, consistent with repeated criticism from many experts.