Paul Allen

COMPLIANCE of ISC/CIRNAC with the Access to Information Act

On this page

Introduction

Access to information under the control of Indigenous Services Canada (ISC) and Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) and its predecessors – Indian and Northern Affairs Canada (INAC) and Aboriginal Affairs and Northern Development Canada (AANDC) – has long been considered problematic and was recently identified as a concern by the Independent Special Interlocutor for Missing Children and Unmarked Graves and Burial Sites associated with Indian Residential Schools in her Progress Update Report (November 2022) and Interim Report (June 2023). The release of the Special Interlocutor’s final report had been scheduled for June 2024, but is now expected in the Fall.

Meanwhile, in a series of posts, we aim to support the efforts of the Special Interlocutor and others who are working to overcome barriers to access to information pertaining to the history and legacy of relations between First Nations and Canada.

Our plan for evaluating ISC/CIRNAC’s administration of the Access to Information Act (ATIA) focuses on four categories of performance that were highlighted in a 2014 internal audit of AANDC:1“With the ATIP Directorate’s recent focus on ensuring compliance with legislation and policy requirements, there has been limited focus identifying and addressing opportunities to drive efficiencies within management of ATIP requests across the entire Department. … As part of the analysis on the efficiency and continuous improvement, the audit first attempted to gain an understanding of the true cost of processing ATIP requests to the Department. While volumetric data related to ATIP requests was readily available (e.g. number of requests and number of pages) as were operating costs directly associated with the ATIP Directorate, the current data tracking and collection practices in the Department for ATIP requests was found to be insufficient to support the calculation of an accurate level of effort, or cost estimate, as not all inputs to the request process are currently tracked. As such, the audit team undertook an independent exercise to approximate this cost for the most recently completed fiscal year, 2013-2014.” Pp. 17-18. Emphasis mine.

  1. COST
  2. EFFORT
  3. COMPLIANCE
  4. EFFICIENCY

Our plan will ultimately incorporate the government’s latest set of Key Performance Indicators (KPIs) and Key Data Points (KDPs), plus other statistics from ISC/CIRNAC’s Annual Statistical Reports and Annual Reports to Parliament.

We have already analyzed ISC/CIRNAC’s COST of administering the ATIA between 2018-19 and 2022-23. Over this period, the annual direct costs of ISC/CIRNAC’s shared ATIP Directorate increased by $1,404,262 (or 88%). Annual direct costs for administering the Access to Information Act and Privacy Act  increased by $1,025,541 (or 80%) and $378,721 (or 119%), respectively. These increases were 2 – 3 times greater than an average 40% increase across all government institutions over the same period.

We have also compared ISC/CIRNAC’s EFFICIENCY in administering the ATIA with that of other government institutions between 2018-19 and 2022-23. We observed that the Average direct costs per closed request for ISC and CIRNAC increased by $985 (60.6%) and $2,548 (136.5%), respectively – or 3.4 and 7.6 times greater than the increase for Other government institutions. Over the same period, the Average direct costs per page processed for closed requests for ISC decreased slightly (by -$0.21 or -4.2%), while the same costs for CIRNAC increased by $11.16 (97.3%) – or 2.5 times greater than the increase for Other government institutions.

In this post, we use the government’s single measure of COMPLIANCE – the Percentage of requests closed within legislated time limits – among its KPIs and KDPs, alongside other statistics to compare ISC/CIRNAC’s COMPLIANCE with the ATIA to that of Other government institutions (Table 1).

Table 1. Measuring COMPLIANCE
Evaluation Component ID Statistic
COST KDP-1 Direct cost of ATI program operations
EFFORT KDP-3 Number of closed requests
COMPLIANCE
 		 KPI-1 Percentage of requests closed within legislated time limits
SUPPL-9 Number of requests closed within legislated time limits

[top]

COMPLIANCE

Background

Canada’s Access to Information Act (Act) assigns three responsibilities to a government institution when a person submits an Access to Information request:

  1. make every reasonable effort to assist the person in connection with the request
  2. respond to the request accurately and completely and,
  3. provide timely access to the record in the format requested (s. 2.1)

The Act establishes s a time limit of 30 days for a government institution to give written notice to a requester as to whether access to all, part, or none of the record is to be given – and, if access is to be given, to give the requester access to these records. (s. 7)

A government institution may extend the 30 day time limit for a reasonable period of time provided:

  • the request is for a large number of records, or the request necessitates a search through a large number of records, and meeting the 30 day time limit would unreasonably interfere with the operations of the government institution
  • consultations are necessary to comply with the request that cannot reasonably be completed within the 30 day time limit, or
  • written notice of the request to a third party is necessary to comply with the request that cannot reasonably be completed within the 30 day time limit (s. 9(1), s. 27(1))

Where a government institution fails to give access to a record within the 30 day time limit (or the extended time limit), it is deemed to have refused to give access to the record. (s. 10(1))

The government’s discussions of Compliance have focused almost exclusively on the third responsibiliity of its institutions under the Act – what we’ll call “Compliance-as-timeliness.”

The most commonly used measure of Compliance-as-timeliness has been the Percentage of requests closed within legislated time limits.

Previous criticisms

In the previous decade, the Office of the Information Commissioner of Canada (OIC) was highly critical of AANDC’s Compliance with the Act:

  1. Out of Time: Systemic issues affecting access to information in Canada, 2008-2009 Report Cards, April 2010, pp. 117-120.
  2. Measuring Up:Improvements and ongoing concerns in access to information, 2008-2009 to 2010-2011, May 2012, pp. 21-26.

Indeed, in 2012, the OIC observed, “Aboriginal Affairs and Northern Development Canada (AANDC) first took part in the report card process in 2008–2009, when it received a “C” grade. Since then, AANDC’s access to information performance has sharply declined, despite a reduced workload.” For instance, the Percentage of requests closed within legislated time limits  fell from 88.4% to 49.0% and the number of complaints to the OIC – most related to delays – more than tripled (pp. 21-22).

AANDC responded, “While AANDC understands the concern of the OIC with respect to departmental numbers for the period in question (2010–2011), it is important to note that the eight recommendations given are outdated … The department began remedial action as early as January 2010, culminating in the current compliance rating of 100%” (p. 25). Our review of AANDC’s Annual Reports to Parliament revealed that the department continued to close 100% of requests within the legislated time limits until 2014-15.

Notwithstanding its perfect Compliance with the Act in 2012-13, AANDC conducted an internal audit of its “governance, risk management, and control framework” (p. 10) over that same period. The internal auditor’s recommendations – operationalized as a Management Action Plan by AANDC – aimed “to move beyond the focus of compliance to one of maintaining compliance while driving efficiencies” (p. 17).

Let’s evaluate ISC/CIRNAC’s success in maintaining perfect COMPLIANCE with the ATIA.

Data sources

TBS’s Access to Information and Privacy Statistical Report for 2022-23 identified Percentage of requests closed within legislated time limits as a unique, department-level Key Performance Indicator. Most other government reports also identify Percentage of requests closed within legislated time limits as the measure of Compliance with the Act:

  1. For ISC and CIRNAC, their Annual Reports to Parliament included:
    1. Number of closed requests
    2. Percentage of requests closed within legislated time limits
    3. Number of requests closed within legislated time limits.2For example, see Table 1.1b Number of requests closed and carried over to next reporting period and Table 4.6.1 Requests closed within legislated timelines, Crown-Indigenous Relations and Northern Affairs Canada, Annual Report to Parliament 2022-2023: Access to Information Act.
  2. For All government institutions (*including* ISC and CIRNAC), TBS’s Access to Information and Privacy Statistical Reports included only:
    1. Number of closed requests
    2. Percentage of requests closed within legislated time limits.3For example, see Table 1: Key performance indicators of the ATI program, 2020–21 to 2022–23 and Table 3: Key data points of the ATI program, 2020–21 to 2022–23, Treasury Board Secretariat, Access to Information and Privacy Statistical Report for 2022–23.
    3. Number of requests closed within legislated time limits was omitted and must be approximated by multiplying the value in #2.1 by the value in #2.2.
  3. For Other government institutions (*excluding* ISC and CIRNAC), we subtract the values in #1 from their corresponding values in #2,  to derive:
    1. Number of closed requests
    2. Number of requests closed within legislated time limits (approximate)
    3. Percentage of requests closed within legislated time limits (approximate) is calculated by dividing the value in #3.1 by the value in #3.2.

Percentage of requests closed within legislated time limits

Table 2 and Figure 1 (interactive version) present the Percentage of requests closed within legislated time limits for ISC, CIRNAC, and Other government institutions between 2018-19 and 2022-23.

Table 2. Percentage of requests closed within legislated time limits by ISC/CIRNAC and Other government institutions, 2018-19 to 2022–23.
2018-19 2019-20 2020-21 2021-22 2022-23
OTHER ISC CIRNAC OTHER ISC CIRNAC OTHER ISC CIRNAC OTHER ISC CIRNAC OTHER ISC CIRNAC
Number of closed requests 40,426 395 344 37,431 302 244 30,411 342 236 40,100 484 305 47,607 435 266
Number of requests closed within legislated time limits 31,617 348 308 28,477 275 224 19,813 233 128 28,429 292 188 34,444 305 178
Percentage of requests closed within legislated time limits 78.2% 88.1% 89.5% 76.1% 91.1% 91.8% 65.2% 68.1% 54.2% 70.9% 60.3% 61.6% 72.4% 70.1% 66.9%
Figure 1. Percentage of requests closed within legislated time limits by ISC/CIRNAC and Other government institutions, 2018-19 to 2022-23.
 CSV
RStudio

Neither ISC nor CIRNAC currently meet the government’s performance target of closing 90% of requests within legislated time limits.4Key observations on volume of requests and performance: Access to Information program data, Access to Information and Privacy Statistical Report for 2022-23.

Between 2018-19 and 2022-23, the Percentage of requests closed within legislated time limits by ISC/CIRNAC and Other government institutions tended to decrease. In the first two years, ISC and CIRNAC closed an average of 89.6% and 90.7% of requests within legislated time limits, respectively, compared to 77.2% for Other government institutions; in the last two years, ISC and CIRNAC closed only an average of 65.2% and 64.3% of requests within legislated time limits, respectively, compared to 71.7% for Other government institutions. The decrease in Percentage of requests closed within legislated time limits for ISC/CIRNAC was 4.4 and 4.8 times greater than for Other government institutions.
[top]

Conclusion

The ATIA establishes s a time limit of 30 days for a government institution to give written notice to a requester as to whether access to all, part, or none of the record is to be given – and, if access is to be given, to give the requester access to these records. (s. 7) A government institution may extend the 30 day time limit for a reasonable period of time if certain conditions are met. The most commonly used measure of COMPLIANCE with the ATIA has been the Percentage of requests closed within legislated time limits – reflecting the government’s nearly exclusive focus on Compliance-as-timeliness.

Neither ISC nor CIRNAC currently meet the government’s performance target of closing 90% of requests within legislated time limits.

Compared to 2018-19/2019-20, the Percentage of requests closed within legislated time limits by ISC/CIRNAC in 2021-22/2022-23 decreased from about 90% to 65% – a performance decrease that was 4.4 and 4.8 times greater than for Other government institutions.

ISC/CIRNAC has failed to maintain AANDC’s perfect COMPLIANCE with the ATIA from around the time of a 2014 internal audit.

[top]

Licence

We are publishing this material 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).


[top]