Annual Report to Parliament 2021-2022: Access to Information Act

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© Her Majesty the Queen in Right of Canada, represented by the Minister of Justice and Attorney General of Canada, 2022

ISSN 2369-2618
Cat. No. J1-15E-PDF

Table of Contents

• Introduction
  • Purpose of the Access to Information Act
  • Mandate of the Department of Justice
• Organizational Structure
• Delegation Order
• Performance and Statistics
  • The ATIP office during the COVID-19 pandemic
  • Number of requests
  • Compliance rate, completion times and extensions
  • Deemed refusal rate
  • Outstanding requests
  • Disposition of completed requests
  • Requests, exemptions and exclusions
  • Informal requests
  • Sources and types of requests
  • Format of information released
  • Consultations
  • Active complaints
  • Fees and costs
• Training and Awareness Activities
• Policies, Guidelines, Procedures and Initiatives
  • Advice
• Complaints, Investigations and Federal Court Cases
  • Complaints filed
  • Completed investigations
  • Review by the Federal Court of Canada
• Monitoring Compliance
• Annex A – Delegation Order
• Annex B – Annual Statistical Report

Introduction

We are pleased to table the Annual Report to Parliament on the administration of the Access to Information Act (the Act) for fiscal year 2021-2022, as required under section 94 of the Act.

This report is also prepared and tabled in accordance with section 20 of the Service Fees Act.

Purpose of the Access to Information Act

The Act was proclaimed into force on July 1, 1983.

The Act gives Canadian citizens, permanent residents and any person and corporation present in Canada the right to seek access to federally-controlled information and records, subject to specific and limited exceptions. The Act complements but does not replace existing procedures for obtaining government information. It is not intended to limit in any way the access to government information that is normally available to the public upon request. Section 94 of the Act requires that the head of every government institution prepare for submission to Parliament an annual report on the administration of the Act within the institution during each fiscal year.

This 39^th Annual Report on the administration of the Act is intended to describe how the Department of Justice (hereinafter referred to as “the Department”) administered its responsibilities during the 2021-22 fiscal year (hereinafter “during the reporting period”).

Mandate of the Department of Justice

The Department has a dual mandate stemming from the Minister’s dual role as the Minister of Justice and the Attorney General of Canada.

In support of the Minister of Justice, the Department is responsible for providing policy and program advice and direction through the development of the legal content of bills, regulations and guidelines. In support of the Attorney General of Canada, the Department is responsible for litigating civil cases by, or on behalf of the federal Crown and for providing legal advice to federal law enforcement agencies and other government departments.

Organizational Structure

The Access to Information and Privacy (ATIP) Office is responsible for the administration of the Act including the processing of access to information and privacy requests and complaints, and consultations with other government departments and third parties, and monitoring compliance to meet statutory obligations and timelines.

The Director of the ATIP Office reports to the Chief Information Officer of the Information Solutions Branch under the direction of the Assistant Deputy Minister and Chief Financial Officer of the Management Sector. The Director is accountable for the development, coordination and implementation of effective policies, guidelines, systems and procedures to efficiently process requests under the Act.

During the reporting period, the Department’s ATIP Office had a total of 27.85 full-time equivalent (FTE) positions working on access to information requests and privacy files. Of which 1.34 FTE is professional services.

The ATIP Office staffing structure consists of one director, one legal counsel, five managers, two team leaders, four senior advisors, eight analysts, three intake officers, one administrative assistant and one system administrator.

The ATIP Office is organized into three units:

• The Operational Unit works with the department to process incoming access to information and privacy requests.
• The Privacy, Policy and Programs Unit develops ATIP policies, provides advice on privacy related matters, updates annual reports and other statutory reports.
• The Complaints Unit processes complaints and works closely with the Office of the Information Commissioner (OIC) and the Office of the Privacy Commissioner (OPC).

In addition, the ATIP office is currently working on modernizing its ATIP management system in order to achieve better performance and is building a team with information technology experts. The team will prepare and better assist the transition to the new platform.

Under section 96 of the Act institutions reporting to the same minister can partner to share request- processing services. The Department of Justice has not entered into any such service sharing agreements.

The Department’s ATIP Office is comprised of a dedicated workforce committed to access to information and the protection of privacy. This work includes:

• The timely processing of requests under the Act and assisting clients in accordance with the principles for assisting applicants;
• Processing consultation requests submitted by other federal institutions on Department of Justice documents located in their files and on records that may be subject to solicitor-client privilege;
• Providing advice and guidance to senior management and all employees of the Department on ATIP-related matters, as well as training and awareness sessions.
• Responding to complaints and negotiating with the Information Commissioner and Privacy Commissioner.
• Liaison on behalf of the Department with the Treasury Board Secretariat (TBS), the Information and Privacy Commissioners of Canada and other government departments and agencies regarding the application of the Act;
• Coordinating, reviewing, approving and publishing statutory reports such as the Annual Reports to Parliament;
• Developing, coordinating and implementing policies, procedures and guidelines for the orderly implementation of the Act by the Department;
• Modernizing ATIP processes and the ATIP Management Technologies by building a small team that evaluates new digital solutions that can reduce business processes, reduce time needed for requests, increase quality and helps all stakeholders more easily engage in the process.

The work of the ATIP Office is supported by 26 offices of primary interest (OPIs) within the Department. These offices are responsible for locating and providing the records responsive to requests and providing recommendations about the disclosure of records in compliance with the provisions of the Act.

Delegation Order

The ATIP Director has full authority delegated by the Minister for the administration of the Act. For the purpose of increased executive oversight, full authority is also conferred to the Deputy Minister, the Associate Deputy Minister, the Assistant Deputy Minister and Chief Financial Officer, Management Sector, and the Chief Information Officer. A copy of the Department’s Delegation Order can be found in Annex A of this report.

Performance and Statistics

The Department is committed to transparency and accountability under the Act and continues to work to improve its performance to deliver the highest standards of service for access to information requests. The Department’s performance for this reporting year should be understood within the context of the pandemic and its ongoing impact on ATIP operations. For additional statistics, a copy of the Department’s annual Statistical Report for fiscal year 2021-22 is included in Annex B of this report.

The ATIP office during the COVID-19 pandemic

• ATIP employees continue to work remotely assisting applicants and processing requests. The Department used a mechanism to facilitate the collection, consultation and processing of sensitive information electronically in order to maintain the COVID-19 health and safety measures.
• Despite the COVID-19 impact, the Department continued to meet its publication requirements. The Department continued publishing briefing material titles submitted to the Minister and Deputy Minister on a monthly basis as well as the summaries of the completed requests on the Open Government Portal, thereby continuing to improve communication with applicants and promoting transparency.
• The Department continued to use the tools of Microsoft Office 365, to communicate internally and engage with key stakeholders. The ATIP office also used these tools for the transfer of information with the OPIs to allow for business continuity during the pandemic.
• To better serve our clients, the Department continued to be part of the Access to Information and Privacy Online Request Service. Our clients can submit requests under the Act through this online channel administered by TBS. This channel also incorporates the Receiver General Buy Button service, enabling applicants to pay the requisite $5.00 application fee for access to information requests, which avoids the need to mail in a personal cheque with their request.
• The pandemic substantially reduced the paper consumption. During this reporting period, the office mostly received electronic requests and records, as well as provided release packages electronically to applicants in almost all cases as the office continued to use the delivery via Epost Connect, which was implemented in February 2020.

Number of requests

Overview of requests received and completed by the Department pursuant to the Act:

The Department received 440 requests during the reporting period, a decrease of 7.75% compared to the previous reporting period. In addition, 328 outstanding requests from previous years were carried over for a total of 768 active requests in 2021-2022.

During the same reporting period 403 requests were completed, a small decrease compared to the previous reporting period and 365 requests were carried-forward to be completed in fiscal year 2022-23. Responding to formal access to information requests involved the review of 143,828 pages, of which 14,763 pages were partially disclosed.

Compliance rate, completion times and extensions

Of the 403 requests, 258 requests (64%) were completed within the legislated timelines under the Act. During the reporting period, the Department was able to close a total of 64 requests in 15 days or less (15%), 85 requests within 16 to 30 days (21%), 80 requests within 31-60 days (20%), 33 requests within 61-120 days (8%), 31 requests within 121-180 days (7.5%), 79 requests within 181- 365 days (20%), and 31 requests took over 365 days to complete (7.5%). The chart below represents the number of requests completed (with percentage) per completion time for all completed requests.

The Department found it necessary to seek extensions in 259 requests of which 113 extensions were taken under section 9(1)(a) for interference with operations, 144 extensions were invoked under section 9(1)(b) for required consultations, and two extensions were taken under section 9(1)(c) for third party consultations.

Deemed refusal rate

The Department’s deemed refusal rate in this reporting period (i.e. the percentage of Access to Information requests that received a response beyond the deadline required under the Act) was 36%, which means that 145 requests were closed past legislative timelines. The deemed refusal rate for the 2021-2022 reporting period decreased by 5.1% compared to the 2020-2021 reporting period.

Outstanding requests

This year the TBS is collecting statistical data from specific institutions (the Department is one of these) on the volume of their outstanding access to information requests and requests for personal information. The department carried-forward 365 requests, of which 42.7% were received during the reporting period.

Disposition of completed requests

Of the 403 requests completed this reporting period:

• 72 requests (17%) the Department did not have responsive records to provide; and
• 104 requests (26%) were abandoned by the applicant.

The remaining 227 requests were completed as follows:

• 46 requests (11.5%) were fully disclosed;
• 157 requests (39%) were partially disclosed;
• 5 requests (1%) were exempted in their entirety;
• 1 request (less than 1%) was excluded in its entirety; and
• 18 requests (4.5%) were transferred to other government departments.

Requests, exemptions and exclusions

Exemptions invoked

The Department invoked exemptions on 217 requests. The majority of exemptions invoked fell under three sections of the Act:

• Section 21, which exempts information relating to the internal decision-making processes of government was used in 140 files;
• Section 23, which exempts information relating to solicitor-client privilege, was used in 119 files;
• Section 19, which exempts personal information, was used in 97 files.

Of note, more than one section of the Act (exemption) can be applied to a specific access request. For further details regarding the exemptions invoked during the fiscal reporting year, please refer to the Statistical Report in Annex B of this report.

Exclusions cited

Exclusions were invoked in 11 requests pursuant to section 68 of the Act (published material or material available for purchase by the public) and in 54 requests pursuant to section 69 (confidences of the Queen’s Privy Council for Canada) of the Act.

Informal requests

The Department proactively publishes on the Open Government Portal summaries of completed access to information requests that do not contain personal or third party information. Members of the public can submit informal requests for a copy of the previously released information without having to pay the application fee.

During the 2021-2022 reporting period, the ATIP Office received 276 informal requests, 36 were outstanding from previous reporting periods for a total of 312 informal requests. The ATIP office completed 280 requests, which represents an increase of 16% from the 242 informal requests completed during the 2020-2021 reporting period. This number does not include emails or telephone calls from potential applicants whom the ATIP office responded to or redirected to other institutions.

Sources and types of requests

During the 2021-2022 reporting period, the Department received the majority (75%) of its 440 access to information requests from three sources: 131 requesters who declined to identify themselves (30%), 112 requests by the media (25%), and 89 requests by members of the public (20%).

Format of information released

Most applicants chose to receive information in an electronic format at no extra charge as the Department continued to use the delivery via Epost Connect, a service offered at no charge to the applicant and is now the office’s primary method of record delivery. It allows for secure delivery of records in an electronic format and avoids the issue of email size restrictions and the need for the recipient to have a compatible device to access the records.

Consultations

During the 2021-2022 reporting period, the Department received 205 consultations from other government institutions and 6 from organizations for a total of 211 consultations for records relating to the Department’s activities. There were 87 consultations outstanding from previous years, which were carried over for a total of 291 consultations from other government institutions and 7 from other organizations to process.

Of the 291 consultations, 202 were completed during the reporting period (4,988 pages) and the remaining 89 were carried forward to be completed in fiscal year 2022-23. The completion times for the 202 consultations were the following:

• 55 consultations were completed between 1 to 30 days;
• 84 were completed within 31-60 days;
• 40 were completed between 61 to 120 days; and
• the remaining 23 were completed past 121 days.

Active complaints

The chart below represents the number of active complaints with the OIC that are outstanding from previous reporting periods, broken down by fiscal year in which they were received. A total of 96 complaints remain active after the 2021-2022 reporting period. Most complaints that remain active were received in the last two reporting periods, 2020-2021 and 2019-2020.

Fees and costs

The Service Fees Act requires a responsible authority to report annually to Parliament on the fees collected by the department.

With respect to fees collected under the Access to Information Act, the information below is reported in accordance with the requirements of section 20 of the Service Fees Act.

Fees Collected

In accordance with the Interim Directive on the Administration of the Access to Information Act, issued on May 5, 2016 and the changes to the Act that came into force on June 21, 2019, the Department may only charge an application fee of $5.00, as set out in paragraph 7(1)(a) of the Regulations. During the 2021-2022 reporting period, the Department collected the application fee in 294 requests for a total revenue of $1,470.

Fees waived

Pursuant to section 11 of the Act, institutions can waive the application fee as deemed appropriate. In addition, the department waives all fees, other than the $5 application fee, that may have been applicable to requests received prior to June 21, 2019. This is in accordance with the Interim Directive on the Administration of the Access to Information Act that was in effect May 5, 2016, to July 12, 2022. During the 2021-2022 reporting period, fees were waived in 146 instances for an amount of $730.00.

Cost of operating the program

The total cost for administering the Act during the 2021-2022 reporting period was $2,368,852. This cost includes $2,045,000 in salaries and overtime, as well as operating costs totaling $323,852, which include $315,382 in professional service contracts.

These costs do not include resources expended by the Department’s other sectors to meet the requirements under the Act.

Training and Awareness Activities

The employees of the ATIP office regularly provide advice and informal training on the application of ATIP legislation to departmental employees who must review relevant records requested under the Act.

Formal awareness information sessions are offered to other sectors within the Department in order to address the specific business and operational needs of the individual groups. Particular emphasis is placed on those aspects of the Act that are directly related to the employees’ areas of responsibility. Five sessions were provided during the reporting period (a total of 113 participants).

• Ministers Office – 2 sessions – 8 participants
• ATIP Process overview – 3 sessions – 105 participants

The Centre for Information and Privacy Law (CIPL), in the Public Law and Legislative Sector of the Department, is responsible for providing legal advice to all departments on the interpretation and application of the Access to Information and Privacy Act. It also offered training to departmental employees, including through the Department’s Learning Program and to employees from other government departments:

• CIPL training day – 250 participants
• Fundamentals of Solicitor-Client Privilege in the Government Context – 2 sessions – 193 participants
• Introduction to Cabinet Confidentiality in the context of the Access to Information Act – 1 session – 15 participants
• Introduction to Exemptions and Exclusions in the Access to Information Act - 2 sessions –24 participants

ATIP training is part of the recommended courses under the values and ethics component of the Department’s Roadmap for new managers. An electronic orientation deck is posted on the Department’s Intranet site as a resource for employees.

ATIP employees participated in collective awareness sessions with ATIP counsel to review recent jurisprudence and case law related to the Act. The ATIP counsel participated in monthly ATIP Practice Group meetings during which information was exchanged and viable solutions proposed. The Practice Group is open to all departmental counsel, including those from Legal Services Units, and its mandate is to discuss questions such as the right of access to information or privacy issues.

In addition to mentorship and partnership relationships, workshops and presentations were regularly provided within the ATIP Office on various topics concerning the application of the Act and related policy and procedures. This allowed ATIP employees to benefit from each other’s respective levels of experience and knowledge. In addition, internal training initiatives offered to the ATIP staff this year included proactive publication workshops offered by an experienced manager within the ATIP team.

Finally, ATIP employees participated in training sessions, conferences and seminars organized by the TBS or by various associations on matters relating to both access and privacy. These exchanges provided updates for employees in the development of ATIP and upcoming trends in this area.

Policies, Guidelines, Procedures and Initiatives

• The Department monitored guidelines and service standards for the federal government ATIP community that clarify the ATIP Office’s role in requests that have been received by other federal government institutions pursuant to the Act.
• The Department participated in inter-departmental working groups on ATIP related matters, mostly led by the TBS, to remain up to dated on changes to TBS policies, guidelines and directives.
• The Department continued to develop internal guidance documents, internal procedures and tools to ensure consistency within the office and document best practices and lessons learned. In addition, the Department continued to share best practices with other government institutions.
• The Department met its obligations under Part II – proactive publication.
• The Department promoted the rights to Access to Information during annual awareness events such as the Right to Know Week.

Advice

The ATIP Office acted as a resource on several occasions for departmental officials, as well as those from other government institutions, offering advice and guidance on the provisions of the legislation and related policies.

Complaints, Investigations and Federal Court Cases

Complaints filed

The ATIP Division created a dedicated team to manage complaints, this team serves as the primary liaison between the Department and the OIC. The team continues to work to strengthen relationships and improve the Department’s ATIP program performance.

During the 2021-2022 reporting period, the Department received 60 Notices of Intention to investigate from the OIC, which represents a 35% decrease to the 2020-2021 reporting period. The reasons for the complaints were as follows:

• 27 related to delay
• 1 related to the extension
• 10 reasonable search
• 1 was miscellaneous;^{Footnote 1}
• 21 concerned the exemption or exclusion of information.

Completed investigations

A total of 115 investigations were completed during the reporting period, some of which had been carried forward from previous years. This represents a significant increase (194%) compared to last reporting period where only 39 investigations were completed. Of the 115 investigations, nine complaints were well founded with recommendations, 23 were well founded without recommendation, 14 were not well founded, 63 were discontinued, and 6 were resolved. No key issues were raised as a result of these complaints.

Complaint findings are defined as follows:

• Well founded with recommendations: If the head of the institution accepted the OIC recommendations and remedial action was taken by the institution to the satisfaction of the OIC, the matter is considered resolved and no further action by the OIC is necessary;
• Well founded without recommendations: The institution took remedial action to the satisfaction of the OIC during the course of the investigation. The OIC did not need to provide a recommendation to the head of the institution.
• Well founded with order: The OIC has found the complaint well-founded, and has issued an order to the institution to take certain actions to address the complaint.
• Not well founded: As a result of the investigation, the OIC found that the institution applied the Access to Information Act correctly.
• Discontinued: The complaint was withdrawn or abandoned by the complainant before allegations were fully investigated. In some cases, the complainant did not respond to the OIC’s request for representations within a reasonable time, or cannot be located.
• Resolved: The complainant is satisfied with the resolution achieved through the OIC’s intervention, or the matter central to the complaint is no longer at issue before the complaint has been fully investigated.

Review by the Federal Court of Canada

One application was filed before the Federal Court pursuant to section 41 of the Act during the 2021- 2022 reporting period.

Monitoring Compliance

The ATIP office regularly monitors compliance with statutory requirements and timeliness associated with the processing of requests through ongoing communication with senior management and OPIs.

The workload was assessed, through the ATIP Case Management System, on a daily basis in order to ensure that workload was evenly distributed and effectively managed to meet statutory deadlines.

The reading rooms at the Department’s headquarters in Ottawa and those located in the regional offices across Canada make available to the public the most recent published version of Info Source, as well as departmental publications and manuals. Many of these publications can be found on the Department’s website and the Treasury Board Secretariat’s websites.

Annex A – Delegation Order

Annex A – Delegation Order – Text version

This image is of the Delegation Order for the Access to Information Act and Privacy Act. The Minister of Justice Canada, pursuant to subsections 95(1) of the Access to Information Act and 73(1) of the Privacy Act, hereby delegates any powers, duties, and functions under the Acts to the persons holding the positions set out in the schedule hereto, as well as to the persons occupying those positions on an acting basis. This delegation order replaces any previous delegation order.

Schedule

Position

1. The Deputy Minister and Associate Deputy Minister (full authority)
2. The Director, Access to Information and Privacy Office (full authority)
3. The Assistant Deputy Minister, Manager Sector and Chief Financial Officer (full authority)
4. The Chief Information Officer (full authority)
5. The Chief of Operations, Chief of Policy and Legal Counsel, Access to Information and Privacy Office (15 and the mandatory provisions of section 26 for all records)
6. The Senior Access to Information and Privacy Advisors (15 for all records)

Signed by the Honourable David Lametti, P.C., M.P.
Ottawa, October 16, 2020

Annex B – Annual Statistical Report

Statistical Report on the Access to Information Act

Name of institution: Department of Justice

Reporting period: 2021-04-01 to 2022-03-31

Section 1: Requests Under the Access to Information Act

1.1 Number of requests

1.2 Sources of requests

1.3 Channels of requests

Section 2: Informal Requests

2.1 Number of informal requests

2.2 Channels of informal requests

2.3 Completion time of informal requests

2.4 Pages released informally

2.5 Pages re-released informally

Section 3: Applications to the Information Commissioner on Declining to Act on Requests

Section 4: Requests Closed During the Reporting Period

4.1 Disposition and completion time

4.2 Exemptions

4.3 Exclusions

4.4 Format of information released

4.5 Complexity

4.5.1 Relevant pages processed and disclosed for paper and e-record formats

4.5.2 Relevant pages processed per request disposition for paper and e-record formats by size of requests

4.5.3 Relevant minutes processed and disclosed for audio formats

4.5.4 Relevant minutes processed per request disposition for audio formats by size of requests

4.5.5 Relevant minutes processed and disclosed for video formats

4.5.6 Relevant minutes processed per request disposition for video formats by size of requests

4.5.7 Other complexities

4.6 Closed requests

4.6.1 Requests closed within legislated timelines

4.7 Deemed refusals

4.7.1 Reasons for not meeting legislated timelines

4.7.2 Requests closed beyond legislated timelines (including any extension taken)

4.8 Requests for translation

Section 5: Extensions

5.1 Reasons for extensions and disposition of requests

5.2 Length of extensions

Section 6: Fees

Section 7: Consultations Received From Other Institutions and Organizations

7.1 Consultations received from other Government of Canada institutions and other organizations

7.2 Recommendations and completion time for consultations received from other Government of Canada institutions

7.3 Recommendations and completion time for consultations received from other organizations outside the Government of Canada

Section 8: Completion Time of Consultations on Cabinet Confidences

8.1 Requests with Legal Services

8.2 Requests with Privy Council Office

Section 9: Investigations and Reports of finding

9.1 Investigations

9.2 Investigations and Reports of finding

Section 10: Court Action

10.1 Court actions on complaints

10.2 Court actions on third party notifications under paragraph 28(1)(b)

Section 11: Resources Related to the Access to Information Act

11.1 Allocated Costs

11.2 Human Resources