Info watchdog sounds alarm over access to ministerial records

Canada's information watchdog is sounding the alarm over recently issued guidelines that appears to implicitly discourage departmental access to information officials from seeking documents from ministerial offices.

As The Canadian Press's Deen Beeby reports, during a closed-door chat with the bureaucrats charged with handling info requests, Information Commissioner Suzanne Legault highlighted a previously little-known Treasury Board dispatch that she believes "is potentially damaging to requesters' rights:

"I am seeing signs of a system in crisis, where departments are unable to fulfil even their most basic obligations under the act," Legault told the group.

As an example, she cited a directive in April this year from the Treasury Board warning bureaucrats to steer clear of ministers' offices when looking for documents to respond to an access-to-information request.

The Supreme Court of Canada issued a ruling in May 2011 largely protecting documents in a minister's office, but Legault says the new directive goes much further.

"This new component is not found in the Supreme Court of Canada's decision," she said. "In my view, it is potentially damaging to requesters' rights."

Although her speech is well worth reading in its entirety -- and, thanks to her office, you can now do so, as I've posted the text at the bottom of this post -- let's take a closer look at that commissioner-worrying TBS directive.

First, here's exactly what Legault had to say about Treasury Board Secretariat Implementation Report No. 115, which is available on the TBS website:

The report instructs you to delay requesting records relevant to a request from the ministerial office until after collecting all or most of the records from within your institution and only when you have reasonable grounds to believe that departmental records related to an ATI request may be located in a minister's office.

I am deeply concerned with this implementation report as it introduced a new part to an already complicated test.

This new component is not found in the Supreme Court of Canada's decision. In my view, it is potentially damaging to requesters' rights in the time of electronic data and I'm sure, will lead to complaints.

While I can't speak for the bureaucrats who have to follow the Treasury Board guidelines, a quick scan of the Treasury Board dispatch in question would suggest that Legault's fear that it may confound an already devilishly complicated process may be well-founded.

Before they can even "task a minister's office with a search," the departmental ATIP office must first consider whether there is "a serious possibility based on credible evidence" that there are, indeed, relevant records that would meet the two-step test proposed by the Supreme Court in its landmark ruling on then-Prime Minister Jean Chretien's agendas, namely:

1. Do the contents of the record relate to a departmental matter? 

2. If so, could a senior official of the government institution reasonably expect to obtain a copy of the record upon request?

According to the bulletin, only if "the first step of the control test" is met should the second question come into play.

"This second step," it notes, "is an objective one to be assessed on a review of all relevant factors including [...] the substantive content of the record, the circumstances in which it was created; and the legal relationship between the government institution and the record holder."

Helpfully, Treasury Board provides examples of scenarios where a search request would be reasonable: if a copy of a document was sent to the minister's office, but no longer appears in the departmental files, for instance, or if the ATIP relates to, say, ministerial travel expenses that were submitted to the department for reimbursement without "itemized bills."

Just to be clear, though, the ATIP officer must apply those two questions to records that he or she hasn't actually seen -- or, for that matter, even knows for sure are held by the minister's office.

If the theoretical records meet the actual burden set out in the two-step test the minister's office would be asked to perform a search -- which, Treasury Board stresses, doesn't actually have to be performed by the minister, but could be done by a member of his or her political staff.

That staffer, however, is not authorized to make the final determination on whether a particular record may be relevant -- that decision falls to the minister, or his delegate -- which, the bulletin notes, is usually the ATIP coordinator.

(This, by the way, is pretty much where my internal logic circuits crashed: If I'm reading this right, it would seem to be a fairly gaping hole in the access to information regime, since ministers, presumably, could make that call based entirely on advice from the staffer charged with conducting the search, leaving the poor ATIP official with no ability to double-check that determination. )

Only once the minister's office -- or, to be precise, the minister or his ATIP coordinator -- decides which, if any files meet the two-step threshold would they send that material to the ATIP office for possible -- but only possible -- release.

(Even if the records are deemed to be under the control of the institution -- and, as such, subject to the Act -- they could ultimately be withheld from the requester if covered by "any specific statutory exemption" in the Act.)

A challenge to graphically-inclined readers: See if you can come up with an easy-to-follow flow chart that accurately depicts the double-two-step dance that the above process requires, because as far as I can tell, it's perilously close to being more like a Mobius loop -- and one that seems handcrafted to err on the side of secrecy, not transparency.

In any case, as promised, the full text of the commissioner's previously secret, but now fully public remarks. 

If you missed it, you can also read the highlights of her live chat with CBC.ca right here.