Annual Report to Parliament on the Administration of the Access to Information Act - 2009-2010

Introduction

This Annual Report to Parliament is for the 2009-2010 fiscal year, as required under subsections 72(1) and 72(2) of the Access to Information Act (ATIA).

Purpose of the Access to Information Act

The Access to Information Act gives Canadian citizens and permanent residents as well as individuals and corporations present in Canada the right to seek access to federally controlled information and records.

Departmental Mandate

On behalf of the Government of Canada, the Department of Foreign Affairs and International Trade is Canada's face and voice to the world, working to advance Canada's political and economic interests in the international community as well as to apply Canadian experience to help address global issues.

The Department's legal mandate, as set out in the Department of Foreign Affairs and International Trade Act, RSC 1985, c. E-22, is to:

  • conduct all diplomatic and consular relations on behalf of Canada;
  • conduct all official communication between the Government of Canada and the government of any other country and between the Government of Canada and any international organization;
  • conduct and manage international negotiations as they relate to Canada;
  • coordinate Canada's economic relations;
  • foster the expansion of Canada's international trade;
  • coordinate the direction given by the Government of Canada to the heads of Canada's diplomatic and consular missions and to manage these missions;
  • administer the foreign service of Canada;
  • foster the development of international law and its application in Canada's external relations.

In addition, Passport Canada which is a Special Operating Agency of Foreign Affairs and International Trade Canada is responsible for issuing, refusing, revoking and withholding Canadian passports, in addition to administering their use and recovery. Passport Canada supervises all matters relating to Canadian travel documents and provides guidance to Canadian government offices abroad, enabling them to issue passports. Besides serving the public directly, Passport Canada also works with national and international police authorities, security agents, border officials and any federal, provincial and territorial authorities that provide identification documents.

The Minister of Foreign Affairs is also responsible for the Export and Import Permits Act, RSC 1985, c. E-19, which authorizes the government to control and monitor the transborder flow of specified goods, and for the Special Economic Measures Act, 40-41 Elizabeth II, c. 17, which authorizes the government to apply economic sanctions in response to a serious threat to international peace and security.

The Department also provides administrative support to other government departments with personnel abroad.

In 2009-2010, the Department had 13,623 Full-time Equivalents and its workforce is made up of three groups. First, Canada-based rotational staff, mainly Foreign Service officers, administrative support employees and information technology specialists, relocate regularly between headquarters and Canada's missions abroad. Second, non-rotational staff work primarily at headquarters. Third, locally engaged staff work at missions abroad.

The Department's key priorities in 2009-2010

Greater economic opportunity for Canada, with a focus on growing/emerging markets

Contribute to economic recovery and opportunity by implementing Global Commerce Strategy to boost Canadian commercial engagement in the world with focus on China, India and Brazil; showcasing Canada's advantage as an investment site; expanding global Research & Development partnerships with a view to commercializing innovation; highlighting Canada as a place of study; promoting Canada's gateway and corridor infrastructure. Advance trade and investment liberalization and market access interests, bilaterally and in the Doha Round. Develop Canada-European Union economic partnership. Conclude and implement free trade agreements with new strategic partners. Focus on air service arrangements; foreign investment promotion and protection negotiations.

United States and the Americas

Build on comprehensive strategy for relations with US, including competitiveness, global economy, trade relations, peace and security, Afghanistan, border management/ facilitation, energy and climate change, Arctic. Address decisively Buy American impacts on Canadian exporters. Advance relations with Mexico. Use North American Leaders Summit to advance Canada's economic, security, and environmental objectives. Implement Americas Strategy, with specific initiatives to promote greater economic prosperity, security and democratic governance, with Canada's leadership reinforced by bilateral and multilateral engagement on issues such as Haiti and Honduras.

Afghanistan, including in the context of neighbouring countries

Integrated approach to Afghanistan policy priorities for which the department is responsible: Afghanistan-Pakistan border management; Afghan National Police, justice and corrections in Kandahar province, and supporting Afghan-led reconciliation. Implement all diplomatic aspects of the Afghanistan mission. Finalize development of integrated strategy for the transition of Canada's mission in Afghanistan until 2011.

Asserting Canadian leadership in emerging global governance

In addition to heightening Canada's visibility at the UN Security Council, complete 2010 G8 & G20 Summit and Foreign Ministers' Meeting preparations and chairmanship to our advantage, demonstrating Canadian leadership in emerging global governance and galvanizing innovative international responses to global challenges in the areas of economic recovery, financial reform, peace and security, development, energy and climate change; and showcasing Canada as a dynamic business and innovation partner. Effectively leverage international events to present Canada as a global policy leader on security-related issues such as nuclear security, fragile states and counterterrorism. Position Canada as a leading Arctic nation working with other Arctic states and through the Arctic Council.

Transforming the department

Align with government priorities; strengthen our international platform; improve services to Canadians; focus on core business; strengthen accountability and financial management; renew our human resources. Deepen focus of transformation on missions and regional offices. Strengthen policy capacity. Simplify business practices. Enhance safety and security of missions abroad through new risk-based whole-of-government approaches. Renew business model with view to both economy and effectiveness.

Delegated Authorities

Under Section 73 the Act, the Minister's authority is delegated to enable the Department to meet its legislated requirements as well as exercise its powers. During the first six months of reporting period, responsibility for all sections of the Act was delegated to the Deputy Ministers, to the Corporate Secretary and to the Director of the Access to Information and Privacy Protection Division. Then, in October 2009, DFAIT updated its delegation instrument in order to reflect the current administration and to further delegate the authority to sign off on access to information and privacy (ATIP) requests at the Deputy Director level as well. (See Annex A)

In addition, Passport Canada as a special operating agency was at the time of drafting this report still working towards its own full ATIP delegation authority in order to administer all Access to Information Act and Privacy Act matters as they relate to its passport records.

Organizational Structure

The Access to Information and Privacy Protection Division ("ATIP Office") is responsible for the administration of the ATIA, including the processing of requests and consultations. The Director of the ATIP Office reports to the Corporate Secretary, who in turn reports to both the Deputy Minister of Foreign Affairs and the Deputy Minister of International Trade. In 2009-2010 the division included five teams of processing Analysts reporting to two Deputy Directors. The Deputy Directors and the Manager of Business Practices and Systems reported to the Director. (See Figure 1)

Figure 1: Organizational Structure

Organizational Structure

Recent changes to the ATIP Office's capacity will be reported in the next Annual Report to Parliament in 2010-2011.

Ongoing Challenges

Given its mandate and various responsibilities at the international level, DFAIT plays a key consultation role under the Access to Information Act and the Privacy Act on behalf of other government departments (OGDs). The graph in Figure 2 represents DFAIT's ever increasing number of requests of all types including consultations from other government departments under both Acts.

Figure 2: Number of ATIP Requests Received under both Acts per Fiscal Year

Number of ATIP Requests Received under both Acts per Fiscal Year

Other challenges include:

  • There is an ever increasing level of complexity and sensitivity of ATIP requests facing DFAIT as well as parallel litigation.
  • DFAIT has unique responsibilities under both Acts on behalf of other government departments (OGDs) and related TBS policies. DFAIT consults with foreign organizations for OGDs that are processing requests for records originating from abroad. In fact, last year DFAIT processed even more requests for ATI consultations from OGDs (812) than ATI requests for access to records under its control (638). This important role continues to put another heavy burden on the ATIP Division's limited resources.
  • There is a limited pool of experienced ATIP analysts across the federal ATIP community and there are substantial time and cost implications for the Department to "grow its own" ATIP analysts.
  • There are significant information management and information technology (IM/IT) challenges within DFAIT, those of which are currently being studied.

Key Considerations

Improving compliance with the Access to Information Act and the Privacy Act continued to be a departmental priority, especially in light of a growing backlog related to requests to the Department for information related to the Government's key international priorities such as Afghanistan. However, financial restraints facing DFAIT in 2009-2010 prevented the ATIP Office from building the additional capacity.

Since 1998, DFAIT's performance under the Access to Information Act has been scrutinized closely by the Office of the Information Commissioner (OIC) due to poor departmental compliance of the Act's prescribed time limits. As well, improved compliance and commitment to these legislative responsibilities has been identified as a Government of Canada priority, reflected in the following instruments:

  • Federal Accountability Act - commitment to openness, transparency and accountability of its program activities as it relates to the obligations under the Access to Information Act and the Privacy Act.
  • Management Accountability Framework (MAF). Effectiveness of Information Management Indicator (number 12) is: "Governance and management of information and records in a manner that supports the outcome of programs and services, operational needs and accountabilities, and the administration of the Privacy and Access to Information Acts."
  • TBS policies on Access to Information and Privacy speak of the "quasi-constitutional" role played by ATIP and the importance of compliance to government accountability and the democratic process.
  • TBS Privacy Impact Assessment Policy was introduced in May 2002 and DFAIT must establish the required resources to ensure its compliance. In addition, as a result of TBS' 2005 Management of Information Technology Security (MITS) requirements, DFAIT must ensure the security of information and information technology (IT) assets which includes the requirement to prepare Privacy Impact Assessments for most of its systems.

Services for Canadians comprise one of three strategic outcomes under the Department's Program Activity Architecture (PAA). ATIP is one of the key services provided to the general public in Canada by the Department, and better service requires improved compliance with the relevant Acts. Furthermore, given the additional function of the departmental ATIP office of consulting foreign governments on the release of information originating with them, there is a major component of ATIP implementation that includes managing our international relationships and ensuring partners that their information is managed appropriately.

Administration of Requests

The following section explains in more detail the TBS statistical report as provided in Annex B.

Access to Information Requests

Between April 1, 2009 and March 31, 2010, the Department received six hundred and thirty-eight (638) requests for information under the Access to Information Act. Along with those new requests received, three hundred and eighty-seven (387) requests were carried over from the previous fiscal year, for a total of one thousand and twenty-five (1025) requests.

During the reporting period, six hundred and thirty-six (636) requests were completed and three hundred and eighty-nine (389) still active files were carried over to the next reporting period.

Requestor Sources

The Access to Information requests received during this reporting period break down as follows (see Figure 3):

Figure 3: Requestor Sources
Access to Information Requests# of Requests Received
Media320
Academia16
Business86
Organizations50
Public166
Total638
Received Requests

Disposition of Completed Requests

The distribution of completed requests is as follows (see Figure 4):

Figure 4: Disposition of Completed Requests

Disposition of Completed Requests

Exemptions and Exclusions

The exemptions most commonly used by the Department during the period were sub-sections 15(1) [International affairs and defence] and 19(1) [personal information] as well as paragraphs 21(1)(a) [advice] and 21(1)(b) [consultations and deliberations]. These were invoked for 269, 250, 164 and 134 requests, respectively. The Department has also applied exclusions under sub-section 69(1) [confidences of cabinet] in 100 instances.

Extensions

During the reporting period, the Department claimed extensions pursuant to paragraphs 9(1)(a), 9(1)(b) and 9(1)(c): 248, 188, and13 times, respectfully. (See Figure 5)

Figure 5: Number of Extensions Claimed

Number of Extensions Claimed pursuant to paragraphs 9(1)(a), 9(1)(b) and 9(1)(c)

Fees and Costs

For the reporting period, the Department collected $9,359.32 in fees, and waived $1,467.90 in fees.

Consultations received from Other Institutions

When a request contains records that are of a greater interest to another institution, the ATIP Office of that institution is consulted.

Given its mandate and various responsibilities at the international level, DFAIT plays a key role in its responsibilities under the ATIA on behalf of other government departments (OGDs). More specifically, DFAIT consults with foreign organizations abroad for other federal government institutions that are processing requests for records originating from abroad.

Between April 1, 2009 and March 31, 2010, the Department received eight hundred and twelve (812) ATI Act consultations from other government institutions. In fact, like last year DFAIT received even more requests for ATI consultations (812) than ATI requests for access to records under its control (638). Most of these originate from federal institutions subject to the Access to Information Act. However, a small percentage of consultations originate from provincial institutions and foreign government.

During the reporting period, nine hundred and twenty-two (922) consultations were completed representing 86,096 pages.

Consultations with Other Institutions

In return, DFAIT consulted other government institutions the following number of times during the reporting period:

Figure 6: Consultations with Other Institutions
Government Institutions# of Times
Other Federal Governments603
Privy Council Office (Cabinet Confidences)127
Provincial Institutions or Municipalities13
Foreign Governments or Institutions of States47
Total790

Complaints and Investigations

Complaints received and completed

During the reporting period, one hundred and forty-two (142) complaints against the Department were filed with the Information Commissioner of Canada.

Figure 7: Complaints received and completed
Reason for Complaint# of Complaint
Delay5
Extension86
Fees11
Miscellaneous15
Refusal - Exemptions13
Refusal - General12

One hundred and fifteen (115) investigations were completed during the reporting period.

Figure 8: Investigations completed
Findings# of FindingsResults# of Results
Discontinued17No Action Required113
Not substantiated17Remedial Action Taken2
Resolved71  
Well-Founded1  
Not Well-Founded9  

Federal Court

No new Federal Court proceedings under the ATI Act were initiated during the reporting period.

Attaran v. Minister of Foreign Affairs

In 2007-2008, Professor Amir Attaran brought a case against DFAIT before the Federal Court (T-2257-07) relating to the exemptions invoked under the Access to Information Act to an internal report entitled "Afghanistan 2006: Good Governance, Democratic Development and Human Rights". The applicant was not satisfied with DFAIT's rationale for withholding portions of the report nor the Information Commissioner's findings in November 2007 which supported most of the severances invoked under sections 13, 15 and 17 of the ATIA.

At the end of 2008-2009 the court process had been finalized but the decision was issued at the start of this reporting year on April 2, 2009. DFAIT was largely successful in its justification for most of the exemptions invoked since the disclosure of information about different agencies and officials in the Afghan Government as well as Canada's allies in Afghanistan could be injurious to Canada's international relations and should not be disclosed. Specifically, the court in this case established that the exemptions were justified on the basis that:

…Canada has established relationships with political, security and police authorities in Afghanistan which are critical for Canada to be able to accomplish its mission in Afghanistan and that negative references or criticisms of Afghan political, security and police authorities would undermine those relationships and become a hurdle for the Canadian government representatives on the ground in Afghanistan ([38])

A few portions were ordered to be released, which consisted of a few lines that were similar to those already in the possession of the media and Parliament. Those portions were released.

A Notice of Appeal was filed in May 2009 by Prof. Attaran's counsel in relation to the judicial review of the ATIA release of Afghan HR reports - on which DFAIT was largely successful. The appeal process was still underway at the end of this reporting period.

On a related note, there has been an increase over the last couple of years in the number of parallel ATIP requests and litigation cases. This generates a significant additional burden on the ATIP Office as a result of the requirement to assess exemptions invoked under ATIP provisions in conjunction with redactions made under section 38 of the Canada Evidence Act.

Issues raised by Agents of Parliament

DFAIT was one of 24 institutions selected by the Information Commissioner of Canada for its Report Card of 2008-2009. In its report "Out of Time" issued in April 2010 the Commissioner once again voiced concern at DFAIT's inability to comply with the Access to Information Act as well as its negative impact across the federal government due to delays in responding to ATIP consultations on international relations matters (Section 15 of ATI Act).

In fact, the OIC Report Card for 2008-2009 states that DFAIT's "performance was so poor that the OIC could not rate it against its established criteria" and was issued an overall performance rating of "red alert". However, the Commissioner also reported that DFAIT faces unique challenges associated with internal and external consultations related to our national security and international relations interests. The Commissioner refers to the performance of DFAIT as being "severely hampered by its overwhelming workload". She also notes the growing complexity of the requests and related consultations as well as the challenge of a rotational workforce. The Commissioner recommended specific corrective measures, i.e. "immediately devote the necessary personnel and financial resources".

Positive outcomes have since taken place to address the recommendations. In June 2010 $2.7M of internal re-allocation funding for ATIP was approved and specific details regarding the improvements will be outlined in the next Annual Report to Parliament for 2010-2011.

DFAIT was not the subject of any audit or review by other agents of Parliament in relation to the administration of the ATIA during the reporting period.

Internal Operations

Training and Development

During 2009-2010, the ATIP Office continued to ensure that all ATIP Analysts regardless of their years of experience received the necessary training and tools to do their job effectively. In addition, each Analyst in the ATIP Office has a dedicated mentor/coach (a.k.a. Team Leader) whose primary responsibilities is to ensure that there is a continuous and positive learning environment for their proper development as ATIP specialists. Also, Individual Learning Plans were developed in consultation with each employee within the ATIP Office to ensure that all training and development needs have been addressed.

The ATIP Office also continued to benefit from its ATIP Professional Development Program which is allowing DFAIT to "grow its own" ATIP Analysts since the federal ATIP Community is starving for experienced ATIP Analysts. This program has been very successful in addressing recruitment, retention and succession planning issues.

While ATIP Awareness sessions have been given to departmental officials over the years, the ATIP Division continued to implement a more structured and departmental-wide ATIP awareness program to ensure that officials across the Department understand their roles and responsibilities vis-à-vis ATIP. The ATIP Office also developed a more in-depth hands-on training program for ATIP Liaison Officers across the Department.

In all, three hundred and seven (307) separate ATIP-related training sessions were delivered during the reporting period by the ATIP offices at both DFAIT and Passport Canada, comprising of almost 1500 hundred employees including:

  • its own ATIP Analysts;
  • new ATIP Liaison Officers and their back-ups;
  • subject-matter experts within Offices of Primary Interest (OPIs);
  • consular program officials and those preparing to work at missions abroad; as well as
  • various departmental program officials including at Passport Canada.

Departmental Process

Given the new streamlined processes introduced in 2008, no significant changes were made to internal ATIP processes in 2009-2010; however, much attention was placed to educate departmental officials on their ATIP roles and responsibilities to ensure compliance and efficiencies.

Internal Policies on the Application of the Act

During this reporting period, the ATIP Office completed new and improved ATIP Guidelines customized for processing ATIP requests at DFAIT. This consolidated all the DFAIT ATIP policies and procedures in the administration of the Access to Information Act and the Privacy Act as well as their related TBS policies.

Ongoing Improvements

The following are improvements that have been made over the last reporting year as well as ongoing initiatives to improve the overall ATIP function at DFAIT:

  • DFAIT's Intranet ATIP website was revamped and updated to provide further ATIP Awareness tools to departmental officials.
  • Continued to implement a structured and departmental-wide ATIP awareness program to ensure that officials across the Department understand their roles and responsibilities vis-à-vis ATIP.
  • At the end of the previous reporting period, the Corporate Secretariat had hired two consultants with expertise in ATIP and business processes, respectively, to examine the ATIP function at DFAIT in order to provide recommendations for additional improvements to the overall ATIP program activity. Briefly, the report issued in May 2009 concluded that DFAIT needs to pay more attention to its legislative ATIP obligations and provide more resources to the ATIP function. While improvements have and continue to be made with respect to ATIP business processes within DFAIT, improvement with overall ATIP legislative compliance can only come with additional resources being committed to this function.
  • The ATIP Office also developed another Business Case in the hope of securing additional funding to ensure that the required permanent resourcesare in place which would result in:
    • sustainable departmental ATIP capacity to support legislative and TBS policy obligations;
    • improved compliance of ATIP Acts and better performance (i.e., timely responses in terms of 80% or better);
    • significant reduction of the long-term use of expensive ATIP consultants;
    • stable and reliable source of ATIP expertise resulting in better informed departmental officials and a culture that understands and values the departmental commitment to openness and transparency;
    • effective succession planning by gaining and retaining in-house ATIP expertise;
    • more timely external ATIP consultations with other government institutions and with other jurisdictions;
    • better service to stakeholders and clients;
    • a less stressful and taxing working environment for the current under-resourced staff; and,
    • a more efficient and effective streamlined ATIP process within DFAIT.

The ATIP Office is pleased to report that in June 2010 DFAIT was able to re-allocate $2.7M of additional ATIP funding. This injection of new funding will, amongst other things, permit DFAIT to clear the backlog of ATIP files by summer 2011 as well as build additional permanent capacity to meet expected demands. The improvements will be outlined in the next Annual Report to Parliament for 2010-2011.

Annex A: Designation Order

Annex B: 2009-2010 Statistical Report