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Introduction
In a series of posts, we aim to support efforts of the Special Interlocutor and others to understand and overcome barriers to access to information pertaining to the history and legacy of relations between First Nations and Canada.
First we describe the context of Crown-Indigenous Relations and Northern Affairs Canada’s (CIRNAC) response to Access to Information and Privacy (ATIP) requests, including relevant legislation, policies and procedures, oversight, and reporting obligations.
Second we extract and index the variables and values that CIRNAC has used to describe its receipt and response to ATIP requests its Annual Reports. Our goal is to make it easier to identify every table in these reports that references any variable or value of interest.
Ultimately, we want to apply statistical analyses to evaluate a common complaint about CIRNAC’s response to ATIP requests: “I shouldn’t have had to wait so long to receive so little information!”
Meanwhile, we want to identify how CIRNAC has approached “sensitive” or “high-profile” ATIP Requests inconsistently – and to explore what part, if any, the Treasury Board Secretariat of Canada has played in creating these inconsistencies.
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Complexity and sensitivity
Aboriginal Affairs and Northern Development Canada’s (AANDC) 2011-12 Annual Report adopted the government’s newly-enhanced “Statistical Report on the Administration of the Access to Information Act” and now counted ATIP requests by categories and sub-categories of “complexity” including:
- Relevant pages processed and dislosed
- Relevant pages processed and dislosed by size of request
- Other complexities
- Consultation required
- Assessment of fees
- Legal advice sought
- Other
The shift was undoubtedly supported by the Department’s implementation of a new ATIP case management system (AccessPro Case Management/AccessPro Redaction), described in its 2009-10 Annual Report.1p. 10.
The AANDC’s 2012-13 Annual Report first connected the “complexity” and “sensitivity” of ATIP requests:
“During the reporting period, AANDC faced several challenges that increased the complexity of its requests. Out of the 623 requests
completed, the subject matter of 275 requests (or 44.1% of all requests) was deemed to be of a sensitive nature. Such requests sought records pertaining to high-profile issues in politics and the media, budget and spending information related to First Nations, allegations and complaints. … Over the course of the reporting period, AANDC hired 2.12 FTEs of consultants or agency personnel to aid in administering the Act, particularly files of higher complexity and sensitivity.“22012-13 Annual Report, p. 7, 12.
The AANDC’s 2013-14 Annual Report continued to make the connection but no longer spoke of “politics” among the “high-profile issues” that were deemed sensitive:
“During the reporting period, AANDC faced several challenges that increased the complexity of its requests. Out of the 586 requests
completed, the subject matter of 252 requests (or 43.0% of all requests) was deemed to be of a sensitive nature. Such requests sought records pertaining to high-profile issues in the media, budget and spending information related to Aboriginal groups, allegations and complaints.“32013-14 Annual Report, p. 7.
In both of these Annual Reports, the number of requests that were deemed to be sensitive corresponded to the Total of the “Other” sub-category of complexity given in Table 2.5.3 Other complexities related to requests closed during the reporting period. Note that some ATIP requests are counted in more than one sub-category of complexity.
The five Annual Reports (2014-15 to 2018-19) that followed no longer disclosed the number of requests that pertained to “high profile issues”–reporting 0 requests in the “Other” sub-category of complexity – and no longer mentioned “sensitive” requests:
“During the reporting period, [the Department] faced several challenges that increased the complexity of its requests. Such requests sought records pertaining to high-profile issues in the media, budget and spending information related to Aboriginal groups, and allegations and complaints.“4Section 2.5.3 Other complexities.
The four final Annual Reports (2019-20 to 2022-23) no longer mentioned even “high-profile issues”5Section 2.5.3 in 2019-20 Annual Report; Section 3.5.3 in 2020-21 Annual Report; and Section 4.5.7 in 2021-22 and 2022-23 Annual Reports. – though the 2020-21 and 2022-23 Annual Reports report (without comment) 22 and 21 requests, respectively, in the “Other” sub-category of complexity.
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Directives and instructions
The Treasury Board Secretariat (TBS) of Canada maintains an Access to Information Manual (accessed at https://www.canada.ca/en/treasury-board-secretariat/services/access-information-privacy/access-information/access-information-manual.html on May 27, 2024) as a reference tool to help government institutions interpret and administer the Act and to meet the requirements of related regulations and policy instruments. According to Section 16.1 – Annual Reports of the Manual, “Institutions must prepare separate and distinct annual reports for the Access to Information Act and for the Privacy Act in accordance with the instructions issued annually by the Access to Information Policy and Performance Division of the Treasury Board of Canada Secretariat (TBS) as per section 4.3.19 of the Policy on Access to Information (the policy).” According to Section 16.2 – Statistical Reports, “TBS establishes definitions and issues specific directions annually to institutions on how to compile the annual and statistical reports.”
To determine what, if any, part TBS played in shaping CIRNAC’s inconsisent handling of “sensitive” or “high-profile” ATIP Requests in its Annual Reports, we submitted an ATIP Request (#EA2024-0071290) to TBS on May 27, 2024 seeking the following information:
- Any instructions, definitions, or specific directions issued by TBS to Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC), Indigenous Services of Canada (ISC), Indian and Northern Affairs Canada (INAC), or Aboriginal Affairs and Northern Development Canada (AANDC) regarding their preparation of annual reports and annual statistical reports on their administration of the ATIA.
- Any additional correspondence to/from TBS and CIRNAC, ISC, INAC, or AANDC regarding the instructions, definitions, and specific directions in #1
- Any correspondence to/from TBS and CIRNAC, ISC, INAC, or AANDC regarding the reporting of “sensitive,” “high profile,” or similar issues in their annual reports or annual statistical reports.
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Conclusion
For an isolated two-year period one decade ago, the federal department responsible for administering Canada’s Access to Information Act with respect to requests for records pertaining to Aboriginal or Indigenous affairs disclosed the extent to which a request’s “sensitive nature” – including whether it involved “high-profile issues in politics” – entered into its being treated as “complex.” In both 2012-13 and 2013-14, over 40% of all closed requests were deemed to be sensitive. It’s unclear how many of these requests engaged other sub-categories of complexity – or the extent to which a request’s deemed sensitivity delayed the department’s response to the ATIP request and/or resulted in the department’s withholding records Table 1). It’s concerning, however, to observe that 10 to 20% of requests falling into the “Other” sub-category – presumably requests deemed to be “sensitive” – were eventually abandoned by the requester.
| 2012-13 | |||||
| Disposition | Consultation required | Assessment of fees | Legal advice sought | Other | Total |
| All records disclosed | 17 | 162 | 0 | 79 | 258 |
| Records disclosed in part | 122 | 240 | 1 | 160 | 523 |
| All records exempted | 4 | 9 | 0 | 8 | 21 |
| All records excluded | 2 | 4 | 0 | 1 | 7 |
| Request abandoned | 1 | 23 | 0 | 27 | 51 |
| Total | 146 | 428 | 1 | 275 | 860 |
| Percentage (N = 623) | 23.4% | 68.7% | 0.2% | 44.1% | |
| 2013-14 | |||||
| All records disclosed | 17 | 1 | 0 | 98 | 116 |
| Records disclosed in part | 159 | 8 | 0 | 89 | 256 |
| All records exempted | 11 | 0 | 0 | 10 | 21 |
| All records excluded | 2 | 0 | 0 | 2 | 4 |
| Request abandoned | 0 | 6 | 0 | 53 | 59 |
| Total | 189 | 15 | 0 | 252 | 456 |
| Percentage (N = 586) | 32.3% | 2.6% | 0.0% | 43.0% |
In the future, CIRNAC is bound to consider an ATIP request’s sensitivity – and to consult and/or seek legal advice, as appropriate, before responding. Increasing accountability and building trust in the efficiency and ultimate fairness of the department’s processing of ATIP requests will require at least the level of transparency that appeared in 2012-13 and 2013-14 and then disappeared from its Annual Reports to Parliament.
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Licence
We are publishing this survey of CIRNAC’s Annual Reports under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International licence. If you find use for our work, please credit Paul Allen (https://paulallen.ca).
