ISC/CIRNAC’s Administration of Canada’s Access to Information Act

Introduction

In August 2017, the Prime Minister announced the dissolution of Indigenous and Northern Affairs Canada and the establishment of two new departments – Indigenous Services Canada (ISC) and Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC).

Access to information under the control of ISC/CIRNAC and their predecessors – Indigenous 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.

Site of Conscience

157 Charlene Belleau, “Importance of Data Sovereingty and Access to Records in the Search and Recovery of
Missing Children,” Voices of Survivors Panel, National Gathering on Unmarked Burials: Affirming Indigenous
Data Sovereignty and Community Control over Knowledge and Information, Vancouver, British Columbia, January
17, 2023.

https://osi-bis.ca/wp-content/uploads/2023/01/OSI-22-January-Agenda-Web.pdf

https://nac-cnn.ca/wp-content/uploads/2023/01/Tech-Doc-on-Data-Sovereignty-OCAP-for-Communities.pdf

OCAP – https://fnigc.ca/ocap-training/

Unmarked Burial Sites Associated with Indian Residential Schools

Vol 1

xxii

The second limitation was that I did not have the ability to compel the production of
information or documents from record holders. Although some may see this as a significant limitation, the ability to compel the production of documents would not have had the
desired outcome that Survivors wanted. Although it would have enabled me to review documents, federal privacy and access to information legislation would have limited my ability
to share these documents with communities. For this reason, I worked to facilitate broader,
more timely access to records for those leading search and recovery work so that the records
would be in their possession and control.

287

The TRC also noted that many of the justifications for pleading limitation defences were
not relevant to the federal government in the context of Indian Residential School litigation.
The Commission clarified that a common rationale for limitation defences—that a defendant may no longer have access to relevant evidence—does not necessarily apply to the federal
government as, “it … keeps records longer than most defendants because of their historical
significance.”116 In addition, it noted that the federal government is different from other litigants in that it has deep pockets and can pay damages using public funds.117 Indeed, successive
federal governments have spent a significant amount of public funds litigating against Indigenous people and communities in recent years.118 For example, between 2013 and 2020, the
federal government incurred court costs of $3.2 million litigating against the Survivors of the
St. Anne’s Indian Residential School.119

303

While Survivors did not want the TRC to be a judicial body with powers to determine guilt
and punish perpetrators, neither did they want to grant Canada and the churches a general or
conditional amnesty in exchange for their cooperation and participation. Rather, in the spirit
of reconciliation, the defendants were to hold themselves accountable through voluntary
participation in the TRC’s hearings and disclosure of documents. Under Schedule N, section
11, of the IRSSA, the federal government and the churches were, “required to compile all
relevant documents in an organized manner for review by the Commission and to provide
access to their archives for the Commission to carry out its mandate.” The lack of subpoena
powers meant that the TRC had to rely on the cooperation and transparency of the perpetrators to produce these records. This proved to be a contentious task. The TRC was forced,
“to seek court direction to resolve disputes with the parties about the handing over of documents. Once the Commission’s document collection processes began, it became increasingly
apparent that Canada would not produce numerous documents that appeared to be relevant
to the Commission’s work.”202 As noted earlier in this chapter, this included documents relating to criminal investigations and prosecutions of perpetrators.

384

42 Megan Metz, “Youth Perspective on the Importance of Indigenous Data Sovereignty and Access to Records in the
Search and Recovery of Missing Children,” Voices of Survivor Families Panel, National Gathering on Unmarked Burials: Affirming Indigenous Data Sovereignty and Community Control Over Knowledge and Information, Vancouver,
British Columbia, January 18, 2023.

387

90 Charlene Belleau, Voices of Survivors Panel, “The Importance of Data Sovereignty and Access to Records in the Search
and Recovery of Missing Children,” National Gathering on Unmarked Burials: Affirming Indigenous Data Sovereignty and Community Control over Knowledge and Information, Vancouver, British Columbia, January 17, 2023.

97 Megan Metz, Haisla Youth, “Youth Perspective on the Importance of Data Sovereignty and Access to Records in the
Search and Recovery of Missing Children,” Voices of Survivor Families Panel, National Gathering on Unmarked Burials: Affirming Indigenous Data Sovereignty and Community Control over Knowledge and Information, Vancouver,
British Columbia, January 18, 2023.

134 Vanessa Prescott, “Youth Perspective on the Importance of Data Sovereignty and Access to Records in the Search
and Recovery of Missing Children,” Voices of Survivor Families, National Gathering on Unmarked Burials: Affirming Indigenous Data Sovereignty and Community Control over Knowledge and Information, Vancouver, British
Columbia, January 18, 2023; see also Lisa Monchalin, The Colonial Problem: An Indigenous Perspective on Crime and
Injustice in Canada (Toronto: University of Toronto Press, 2016), 57

224 Charlene Belleau, “Importance of Data Sovereignty and Access to Records in the Search and Recovery of Missing
Children,” Voices of Survivors Panel, National Gathering on Unmarked Burials: Affirming Indigenous Data Sovereignty and Community Control over Knowledge and Information, Vancouver, British Columbia, January 17,
2023; see also OSI, National Gathering on Unmarked Burials: Affirming Indigenous Data Sovereignty and Community Control over Knowledge and Information: Summary Report, January 2023, 33, https://osi-bis.ca/wp-content/
uploads/2023/08/OSI-SummaryReport_Vancouver2023_web_v3.pdf.

549

Although the RCMP’s 2011 report indicated that, “calls for service were a very rare occurrence from a school’s perspective,” documentary evidence establishes that the RCMP
provided various services to officials of the institutions.125 Precise details about the extent of
police involvement in enforcing the Indian Act provisions and compelling attendance at the
institutions remain elusive for numerous reasons, including inadequate records, the denial
of access to archival materials, and the purposeful destruction of records. Records that are
available, however, clearly reveal various police interventions in addition to locating truant
children. To what extent the RCMP and local police pooled resources and collaborated with
the religious orders and institutions in their jurisdictions varied by area, based on catchment
relationships and responsibilities and detachment/division needs.

612 In addition, the Residential Schools Death Investigation Team utilizes publicly
available information sources such as letters, books, yearbooks, and news articles to identify children who died at Indian Residential Schools. As of September
2023, leveraging these sources, they had identified approximately, “79 additional
deaths in Ontario residential schools of the 18 that were not listed by the NCTR.”482
Dr. Huyer told the Standing Senate Committee on Indigenous Peoples that, “of
the 433 [Indigenous children] who are listed by the NCTR, our team has found the
answers, through evaluation of publicly available records, for 136 [individuals].”483
The Team has shared information on these additional deaths with the Indigenous communities they collaborate with and with the NCTR. For these additional …..

658 Index

Standing Committee on Access to Information, 1284–1285
Privacy and Ethics (House of Commons) 658

.Volume 2 – begins with Decolonizing Archives

In response to a 2014 internal audit, AANDC planned to adopt several recommendations to streamline its processing of Access to Information (ATI) requests. On April 24, 2024, we asked CIRNAC for an update on the implementation and impact of this plan. On May 6, 2024, CIRNAC asked for an extension of 90 days beyond the statutory thirty day time limit due to the large volume of records involved and/or interference to government operations.

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.

To date the series of posts include:

ISC/CIRNAC’s Administration of Canada’s Access to Information Act
Framework for Evaluating ISC/CIRNAC’s Response to ATI Requests
COST of ISC/CIRNAC’s Access to Information Programs
EFFICIENCY of ISC/CIRNAC’s access to information programs
COMPLIANCE of ISC/CIRNAC with the Access to Information Act
ISC/CIRNAC’s lack of transparency in processing sensitive or high-profile ATI requests
Take-aways from an Evaluation of ISC/CIRNAC’s Access to Information Programs (pending)

We begin here with contextualizing ISC/CIRNAC’s processing of ATI requests, identifying relevant legislation and regulation, applicable policies and procedures, internal and external oversight mechanisms, various reporting obligations, and primary sources of statistical data.

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Legislation and regulation

Canada’s Access to Information Act (the Act)¹ and Access to Information Regulations (the Regulations)² provide for public access to records under the control of federal institutions, except for records subject to specific exemptions and exclusions.

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Policies and procedures

Since the establishment of ISC/CIRNAC, the ATIP Directorate has provided shared services for the departments through a Memorandum of Understanding (MOU).³

To help government institutions to administer the Act and Regulations and to meet the requirements of related policy instruments, the Treasury Board Secretariat maintains an Access to Information Manual⁴ that is intended as a reference tool.

Policy on Access to Information

Directive on Administration of the Access to Information Act

Effective July 13, 2022,⁹including Appendix B: Mandatory Procedures for Access to Information Training and Appendix D: Mandatory Procedures for Publishing Summaries of Completed Access to Information Requests.
Effective May 5, 2016 (Interim Directive)¹⁰
Effective May 5, 2014¹¹
Effective January 16, 2012¹²
Effective April 1, 2010¹³

Directive on Proactive Publication under the Access to Information Act,¹³Accessed at https://www.tbs-sct.canada.ca/pol/doc-eng.aspx?id=32756 on May 24, 2024. including Glossary, effective June 28, 2023.

Access to Information Implementation Notice 2022-01: Inter-institutional Consultations,¹⁴ effective September 27, 2022.

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Internal audit

In June 2014, the Audit and Evaluation Sector of AANDC conducted an Internal audit of Access to Information and Privacy (ATIP) Management.¹⁵

The audit noted “An Audit of Access to Information and Privacy (ATIP) Management was included in Aboriginal Affairs and Northern Development Canada’s (“AANDC’s” or the “Department’s”) 2014-2015 to 2016-2017 Risk-Based Audit Plan, approved by the Deputy Minister on February 6, 2014. This audit was identified as a priority as there has not been a recent audit of this area and because of the inherent complexity of ATIP management …” [p. 1]

The audit later acknowledged that “Prior to 2011-12, the Department had been cited by the Office of the Information Commissioner for having substantial deficiencies in its management of ATIP and had regularly failed to meet its statutory obligations. In 2011-12, AANDC focused efforts on improving the ATIP management process.” [p. 3]

The audit found that, through these efforts, the Department was largely complying with legislation and policy requirments, but noted that “there has been limited work on identifying and addressing opportunities to drive efficiencies within management of ATIP requests across the entire Department.” [p. 3]

The audit’s recommendations included that “The Corporate Secretary should clarify expectations, roles and responsibilities for driving efficiencies within ATIP Management, and establish related objectives and practices designed to improve process efficiency. Practices could include facilitating the sharing of best practices between Regions and Sectors; reporting on the ATIP Directorate’s performance against internal service standards; and, tracking the Department-wide level of effort required to process requests in order to monitor and identify improvements to efficiency.” [p. 19]

The Management Action Plan included specific actions to address this recommendation in 2014:

The Corporate Secretariat will develop a comprehensive regional/sectoral operations manual that will ensure uniform best practices for the processing and retrieval of ATIP records across the Department for ATIP Liaison Officers in the sectors and regions.
The Corporate Secretariat will add further details on compliance with additional internal ATIP service standards to its quarterly reports. Further, the Corporate Secretariat will continue to report on performance against internal service standards in the Corporate Secretariat’s quarterly reports, Treasury Board Secretariat statistical reports and Annual Reports to Parliament. …
The Corporate Secretariat will liaise with the Treasury Board Secretariat Information and Privacy Policy Division (IPPD) to determine the options for tracking the Department-wide level of effort required to process requests in order to monitor and identify improvements to efficiency. [pp. 21-22]

On April 24, 2024, we submitted an ATIP request to CIRNAC, asking for an update on the implementation and impact of these actions on the department’s efficiency.

UPDATE: On May 6, 2024, CIRNAC requested an extension of 90 days beyond the statutory thirty day time limit due to the large volume of records involved and/or interference to government operations.

Other relevant materials include:

INAC, Internal Audit Manual 1.0, April 25, 2008.¹⁶

ISC/CIRNAC, Assessment and Investigation Services Branch Charter, March 2019.¹⁷

For a discussion of the internal audit process within AANDC, see Abele, F., Is evaluation a tool for social justice? Reconciliation? Control? — Reflections on the Canadian experience in Indigenous affairs, 2013.¹⁸ Published in Better Indigenous Policies: The Role of Evaluation. Roundtable Proceedings. Canberra: Australian Government. Productivity Commission, 2013.

CIRNAC, 2023-24 Departmental plan: Main report, January 30, 2023.¹⁹

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External oversight

The Office of the Information Commissioner of Canada (OICC) publishe an annual Access to Information Act Annual Report, including 2013-14 to 2022-23 online).

Other relevant materials include:

Letter to the Chair of the Standing Senate Committee on Indigenous Peoples, March 7, 2024.²⁰

Access at issue: The challenge of accessing our collective memory; Systemic Investigation of Library and Archives Canada, April 26, 2022.²¹

Letter to the President of the Treasury Board: Observations following meetings with various ministers (including CIRNAC and ISC), July 8, 2021.²²

Observations and Recommendations on the Government of Canada’s Review of the Access to Information Regime, January 2021.²³

Failing to Strike the Right Balance for Transparency, January 20, 2020.²⁴

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Monthly summaries and annual reports

Every institution subject to the ATIA is required:

to post monthly summaries of completed access to information requests
to table annual reports on its administration of the Act in Parliament.

We have identified three primary sources of related information:

First, Canada’s Open Government Portal exposes a dataset of “Completed Access to Information Request Summaries” from federal institutions (accessed at https://open.canada.ca/data/en/dataset/0797e893-751e-4695-8229-a5066e4fe43c/resource/19383ca2-b01a-487d-88f7-e1ffbc7d39c2 on March 19, 2024), including from CIRNAC for most of 2015 to 2023. We were unable to locate completed access to information request summaries from CIRNAC for December 2021 to March 2022 inclusive. We asked for, and on April 26, 2024, CIRNAC provided the missing data.

Second, Treasury Board Secretariat (TBS) has published annual department-level statistics, including for Indian and Northern Affairs Canada (2015-16 to 2016-17) and for Indigenous Services Canada and Crown-Indigenous Relations and Northern Affairs Canada (2017-18 to 2022-23), about the Government of Canada’s access to information and privacy programs.²⁵

ISC and CIRNAC have published Annual Reports to Parliament for 2018-19 to 2022-23 on-line as HTML pages (accessed at https://www.sac-isc.gc.ca/eng/1575132098314/1575132118001 and https://www.rcaanc-cirnac.gc.ca/eng/1575131323136/1575131374706, respectively, on March 18, 2024). INAC’s Annual Reports for 1997-98 to 2000-01 and for 2004-05 to 2017-18 have been published online as PDF documents (accessed at https://epe.lac-bac.gc.ca/100/201/301/weekly_acquisitions_list-ef/2017/17-26/publications.gc.ca/site/eng/9.505663/publication.html and https://www.rcaanc-cirnac.gc.ca/eng/1100100010931/1621273761636, respectively, on March 18, 2024). We were unable to locate INAC’s Annual Reports from 2001-02 to 2003-04 online and, on March 27, 2024, we asked CIRNAC to provide them.

Finally, TBS has published annual Statistics on the Access to Information and Privacy Acts that summarize statistical reports from all federal institutions subject to the Act, including 2014-15 to 2022-23 online. For its 2022-23 summary, TBS introduced a scheme to classify a subset of statistics as Key Performance Indicators or Key Data Points.

Closed requests – https://open.canada.ca/data/en/dataset/0797e893-751e-4695-8229-a5066e4fe43c/resource/19383ca2-b01a-487d-88f7-e1ffbc7d39c2

UPDATE: On April 26, 2024, CIRNAC replied: “I regret to inform you that a search of the records under the control of Crown-Indigenous Relations and Northern Affairs Canada has revealed none to be responsive to the subject of your request. Due to the passage of time, and working collaboratively with our records management office, we are unable to locate the reports you’re requesting. “However, copies may be available by contacting the Publishing and Depository Services Directorate at the following website https://publications.gc.ca/site/eng/contact/contactUs.html#emailform. An online search on their website revealed a hard copy, of the 2003, report is available for request through their office at the following link: https://publications.gc.ca/site/eng/9.664621/publication.html, and may have the other years in their library.” At the Directorate’s suggestion, we have asked Government of Canada Publications for their assistance. This proved to be a deadend. On June 5, 2024, we submitted an ATIP Request to the Treasury Board Secretariat, asking that they provide copies of these Annual Reports, given that INAC should have forwarded these documents to TBS at the time.

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Next we outline a framework for evaluating a prototypical complaint about ISC/CIRNAC’s response to ATI requests: “I shouldn’t have had to wait so long to receive so little information!”

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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).

ISC/CIRNAC’s Administration of Canada’s Access to Information Act

On this page

Introduction

.Volume 2 – begins with Decolonizing Archives

Legislation and regulation

Policies and procedures

Policy on Access to Information

Directive on Administration of the Access to Information Act

Internal audit

External oversight

Monthly summaries and annual reports

Next

Licence