3.1 The duty to document

In her Report, the Information Commissioner recommended the following:

Recommendation 2.1

The Information Commissioner recommends establishing a comprehensive legal duty to document, with appropriate sanctions for non-compliance.[60]

As explained by Jennifer Dawson, Deputy Chief Information Officer with the Treasury Board Secretariat, the duty to document is a government policy that “requires public servants to document decisions and decision-making as well as activities.”[61]

In her testimony, the Commissioner said, “there is documented evidence of serious breaches by the public service of its obligation to create and preserve information of business value.”[62] Consequently, she recommended that priority be given to a comprehensive legal duty to document with appropriate sanctions for non-compliance.[63]

The access to information and privacy commissioners from Quebec, Ontario, Alberta, and Newfoundland and Labrador all agreed with the need for a legal duty to document.[64]^{,[65],[66],[67]} Mr. Marleau said that the duty to document is overdue.[68] Other witnesses who supported the establishment of a legal duty to document included Mr. Holman,[69] Mr. Wudrick,[70] Mr. Rubin,[71] Mr. Gogolek[72] and Mr. Conacher.[73]

During his appearance before the Committee, Minister Brison said, “this is something that could be addressed as part of the legislative changes.”[74]

The Committee is strongly in favour of there being a legal requirement to document the decision-making process and believes that this requirement should be instituted as quickly as possible. It therefore recommends:

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RECOMMENDATION 10

That in the first phase of the reform of the Access to Information Act, the Act be amended to establish a comprehensive legal duty to document, with appropriate sanctions for non-compliance.

3.2 Extending access

Under the Act, only Canadian citizens, permanent residents, and individuals and corporations present in Canada have the right of access to government records.[75] In her report the Information Commissioner said that this complicates the process and limits the free flow of information. She made the following recommendation:

Recommendation 2.3

The Information Commissioner recommends extending the right of access to all persons.[76]

This recommendation was supported by Mr. Mendel, who pointed out that it would increase efficiency since officials would not have to determine whether the requester is a Canadian citizen or resident.[77] Mr. Holman,[78] Mr. Weiler[79] and Mr. Marleau[80] also supported extending access to all.

On the other hand, Minister Brison said that his instinct is “that our priority will be citizens of Canada.”[81] Mr. Drapeau[82] and Mr. Wudrick[83] also said that priority should be given to Canadians.

The Committee heard testimony from some government officials that extending the right of access to all could lead to an increase in the number of requests. In particular, Stefanie Beck, Assistant Deputy Minister for Corporate Services with the Department of Immigration, Refugees and Citizenship, said the Department processes millions of citizenship applications every year. Most of the access to information requests the Department receives relate to the status of those applications. She said: “If all of those people abroad had the right to access that information, we wouldn't be looking at 40,000 [access to information] requests a year, we would be looking at many more than that.”[84] She also said that if people abroad no longer had to go through a Canadian representative, it could lead to a large influx of requests, which “could impact our ability to meet legislated compliance deadlines.”[85]

Larry Surtees, Corporate Secretary with the Department of National Defence, noted that releasing documents that contain sensitive information to foreigners could put peoples’ lives at risk and that the department makes sure that it does “the job properly to prevent that.”[86]

Robert Mundie, Director General of the Corporate Secretariat with the Canada Border Services Agency, said it would be difficult to estimate the number of access to information requests that would result from extending access.[87] Monique McCulloch, Director of Access to Information and Privacy for Shared Services Canada, said she did not think that extending access to all would have a direct impact.[88]

Given the witnesses’ lack of consensus on the issue, the Committee recommends:

RECOMMENDATION 11

That extending the right of access to all persons be considered in the second phase of the reform of the Access to Information Act.

3.3 Frivolous and vexatious requests

In her report, the Information Commissioner addressed the issue of frivolous and vexatious requests, which, while rare, “can place a strain on public resources, delay delivery of other services and have a negative impact on the rights of other requesters.”[89] She made the following recommendations:

Recommendation 2.4

The Information Commissioner recommends that institutions be allowed to refuse to process requests that are frivolous, vexatious or an abuse of the right of access.[90]

Recommendation 2.5

The Information Commissioner recommends that institutions’ decision to refuse to process an access request be subject to appeal to the Information Commissioner.[91]

In her testimony to the Committee, the Information Commissioner also pointed out that she recommends that institutions be granted extensions to deal with multiple requests within a short period of time.[92]

Minister Brison asked the committee to look into whether the $5 filing fee is the best way to filter vexatious and frivolous requests.[93] Mr. Wudrick was of the opinion that it “can prevent frivolous request-filing.”[94] Other witnesses questioned the deterrent effect of the fee. Cheryl Fisher, Corporate Secretary with the Corporate Secretariat of the Department of Employment and Social Development,[95] said that, given the increase in requests, she did not know how much of a deterrent the $5 fee was. Mr. Mundie said it “probably has little to no impact in terms of volume of requests.”[96] Antoine Aylwin of the law firm Fasken Martineau pointed out that the fee might have the opposite effect, with people making huge requests so that they only have to pay the fee once.[97] Mr. Marleau said he did not see the fee having a deterrent effect and said you can deal with frivolous and vexatious requests by amending the legislation.[98]

Witnesses from provincial information and privacy offices described their approaches. Diane Poitras, Vice-President of the Commission d'accès à l'information du Québec, pointed out that Quebec does not use fees to address the issue, but relies on specific legislative provisions. She gave the following example: “When a public body, which has just 20 days to respond, receives an access request for several thousand documents, it can ask the commission for permission to disregard the request.”[99] Newfoundland and Labrador[100] and Alberta[101] have similar provisions. In Ontario, instutions may refuse frivolous or vexatious requests, but they must give reasons and the requester may appeal to the Information and Privacy Commissioner.[102]

Mr. Weiler[103] and Mr. Gogolek[104] expressed concerns that there is a risk in allowing government institutions to refuse to respond to such requests. In a brief submitted to the Committee, the B.C. Freedom of Information and Privacy Association described the concept of frivolous and vexatious requests as requests that “are designed to impede the functioning of the public body rather than to elicit information.”[105] Mr. Gogolek said he thought it is “very important that this be dealt with by the Commissioner.”[106]

The Committee was of the opinion that measures are needed to deal with frivolous and vexatious requests, and recommends:

RECOMMENDATION 12

That the government allow institutions to refuse to process requests that are frivolous, vexatious or an abuse of the right of access and that the institutions’ decisions to refuse to process such requests be subject to appeal to the Information Commissioner.

3.4 Format of information

In Recommendation 2.7 of her report, the Information Commissioner recommended that, with certain limited exceptions, “institutions be required to provide information to requesters in an open, reusable, and accessible format by default.”[107] Mr. Wudrick identified this as a key recommendation.[108]

The Committee agrees and recommends:

RECOMMENDATION 13

That in the first phase of the reform of the Access to Information Act, institutions be required to provide information to requesters in an open, reusable and accessible format by default.

3.5 Fees

In her report, the Information Commissioner made the following recommendation:

Recommendation 2.8

The Information Commissioner recommends eliminating all fees related to access requests.[109]

As noted in Section 3.3 of our report, witnesses questioned whether the $5 filing fee has any deterrent effect on frivolous or vexatious requests. Other witnesses pointed to the costs involved in processing the fee. Ms. McCullough said that a few years ago it was estimated to cost $75 to process a $5 cheque.[110] Mr. Gogolek said: “Even with electronic processing, where the cost is considerably reduced, if even 10% of requests come in with cash or cheques, the government is losing money. We urge you to save the taxpayers money and get rid of the $5 fee.”[111]

Regarding provincial practices, Quebec does not charge a filing fee, but public bodies may charge for reproducing a document after the first 20 pages or so.[112] In Ontario, there is a nominal filing fee and institutions may charge a fee for responding to the request; at times it can be substantial.[113] In Alberta, there is a $25 fee for access to general records and a fee schedule sets out maximum processing charges.[114] In Newfoundland and Labrador, there is no filing fee and search fees are not charged “until either 10 hours of search time or 15 hours of search time, depending on the category of public body you are.”[115]

The Committee was of the opinion that, given the seeming lack of a deterrent effect and the administrative costs, the $5 filing fee should be abolished. On the other hand, it was also of the opinion that fees could be charged for voluminous requests or those that require extensive research, with the exception of requests for personal information. The Committee therefore recommends:

RECOMMENDATION 14

That in the first phase of the reform of the Access to Information Act, the $5 filing fee be abolished and that consideration be given to reinstating fees for voluminous requests and for requests that require lengthy research, with the exception of requests for personal information.

In his testimony, Doug Letto, who was a member of Newfoundland and Labrador’s Independent Statutory Review Committee, said that the duty to assist means that institutions should work with requesters to clarify their requests when necessary, such as with respect to voluminous requests. He added that all access coordinators had received customer service training.[116] The federal government’s Interim Directive on the Administration of the Access to Information Act also requires institutions to, among other things, “Assist the requester in reformulating the request where it would result in the person receiving more accurate, complete and timely access.”[117] The Committee recommends:

RECOMMENDATION 15

That consideration be given to strengthening the duty to assist through the implementation of client-service principles.

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