ANALYSIS: 3 pages, 520 days of delay, and Canada’s busted access-to-information system

It ought to have been a simple request.

Filed electronically, the access-to-information request asked the department of Global Affairs Canada (GAC) for a memo, identified not only by title but also by the departmental tracking number GAC uses, that described a program to provide foreign diplomats hosted tours of Canada’s Arctic territories.

The memo should have been easy to find, easy to process, and easy to release.

But GAC’s system for responding to access-to-information is so broken that this request, which produced a three-page memo in which not a single word was blacked out by government censors, took 520 days or nearly 18 months to process.

The pandemic has made things worse but GAC was failing its legal obligations to provide requested records within 30 days long before the pandemic. For example:

There are dozens more examples in which records that were requested from GAC by document number and title, which should be released in 30 days or less, routinely take 200 days or more to process.

On Monday, Global News emailed the office of the new Foreign Affairs Minister, Melanie Joly, to ask if she thought this standard of performance was acceptable. Her office acknowledged the request for comment but did not provide a response.

GAC may be one of the worst offenders but it is not the only one. Long delays in defiance of the timelines laid down in law in the Access to Information Act are routine for requests filed to the departments of National Defence, the RCMP, Statistics Canada, Crown-Indigenous Relations, and so on.

The Trudeau government came into office in 2015 promising to fix the access-to-information system, a process used each year not just by journalists but by tens of thousands of researchers, not-for-profit groups, businesses and everyday Canadians. It is a key tool for transparency and accountability. And yet, a system already notorious for delays at the end of the Harper era is worse now after six years of the Trudeau government.

Still, Mona Fortier, the new president of the Treasury Board, vows to fix it. In an email, a spokesperson for Fortier said reviews are underway to improve access-to-information performance across all government departments. The Treasury Board Secretariat is the government department that provides rules and manuals to all government departments when it comes to the interpretation and administration of the ATI Act.

Her first task may be to undo the damage caused by the pandemic.

When the pandemic first impacted government institutions in early 2020, none of the employees who work in government access-to-information shops were deemed essential workers and so, like all non-essential federal government workers, they were sent home. But the computer systems they need to process ATI requests are often on secure networks accessible only from within their workplace.

And so the ATI system ground to a halt. Again, that was early in 2020. And while many, if not most, government employees have been able to return to their offices for months,  departments continue to use the pandemic as an excuse to delay the release of records even though federal Information Commissioner Caroline Maynard, an independent officer of Parliament, ruled early on in that the pandemic cannot be used as an excuse to delay the production of requested records.

“The right of access, a quasi-constitutional right, cannot be suspended because of the pandemic,” Maynard told MPs on the House of Commons Standing Committee on Government Operations and Estimates last February. “Government transparency is the foundation of a strong democracy and has never been more important than during this crisis.”

Fortier, the Treasury Board president, agrees with Maynard.

“Responding to ATI and personal information requests is a legal obligation for all institutions. The Access to Information Act does not allow for institutions to delay responding to access to information requests because of a pandemic or other emergency,” Isabella Brisson, the press secretary to Fortier, said in an e-mail statement Tuesday.

And yet, the online portal where any Canadian can file a request for records continues to post a warning at the top of the site about “possible delays treating your request” because of “exceptional measures” taken to deal with COVID-19.

And when departments receive a request, a standard acknowledgement letter is issued within a few days and those acknowledgement letters have, for nearly 18 months, also contained routine warnings of delays due to COVID-19.

“Considering the importance of the right of access to information, which is a quasi-constitutional right, and the period that has elapsed since the beginning of the pandemic, one would expect that institutions would have had time to adjust their operations to the new reality and that such warnings should not still be used as a boilerplate excuse from institutions,” Laurence Crête, a spokesperson for Commissioner Maynard, said in an email this week.

Back at Global Affairs Canada, a departmental spokesman, John Babcock, acknowledged the significant backlog in ATI operations caused by the pandemic but said the department had implemented new electronic processes to allow employees working from home to access requested documents. He said there is an expectation the department will be able to improve its compliance rate.

Brisson, in Fortier’s office, said memos would be going out soon to all government departments directing each minister and deputy minister to “have a plan in place to address ATI and personal information request backlogs and to fully meet legal obligations going forward.”

David Akin is the chief political correspondent for Global News.

by Global News