Freedom of information requests shunted to sidelines during virus crisis

The federal government and all provinces and territories have laws that allow people to request access to records — from briefing notes to expense reports — held by ministries and other public bodies. (Shutterstock photo)

OTTAWA — As government agencies across Canada focus strained resources on protecting people from COVID-19, efforts to respond to freedom-of-information requests from the public are slowing or even stopping altogether.

The federal government and all provinces and territories have laws that allow people to request access to records — from briefing notes to expense reports — held by ministries and other public bodies.

Federal agencies are supposed to respond within 30 days, though they can take more time if the request is for a large number of documents or there is a need to confer with other departments.

At least three large federal departments recently issued notices advising requesters their applications for information would be placed on hold due to COVID-19, though one soon backpedalled on the move.

Many public servants are working from home, making it difficult to retrieve and process records. In addition, some requests involve classified documents that require special handling or consultations with other agencies.

A response from Global Affairs Canada cited such hurdles in delaying one recent application. “With this in mind, we are placing your request on hold for the time being,” read the department’s email message.

Kirsten Smith, a consultant who does access-related research for clients, said that given the COVID-19 crisis it wouldn’t make sense to pull Public Health Agency of Canada staff away to, say, look for drafts of a 2018 speech by the chief public health officer on tuberculosis.

However, many of the more than 200 federal agencies covered by Access to Information are not on the front lines of the virus fight and should not just assume legislated deadlines are no longer relevant to them, she said.

“I can definitely see some departments, who already take ridiculously long extensions or regularly miss deadlines, using this as an excuse to delay,” Smith said. “I think some departments, maybe even specific units in some departments, deserve some slack, but not a universal dismissal of ATI guidelines.”

The federal government has advised the public the COVID-19 pandemic might also lead to delays in the publication of information such as the hospitality and travel expenses of public officials, material that is routinely posted online in the name of transparency.

The federal ombudsman for requesters is asking institutions to take all reasonable measures to limit the effect of COVID-19 on individuals’ right of access to information, and to advise people of the reduced capacity to process requests.

Time extensions may be justified given the challenges, said Teresa Scassa, a University of Ottawa law professor who specializes in information issues. But she suggested it would be helpful to see more communication from the information commissioner.

“To the extent that it’s becoming a problem, I think there’s opportunity for some leadership there in terms of how to manage this and how to deal with it, given the constraints,” she said.

The office of Ontario’s information commissioner says the expectation to comply with the province’s access law remains in effect, but adds it understands that many organizations will be unable to meet the 30-day response requirement.

British Columbia’s information commissioner has granted public agencies the right to tack an additional 30 days onto the time ordinarily needed for processing of provincial requests received from March 1 through the end of April.

In Manitoba, the ombudsman for requesters says public bodies should make efforts to comply with the provincial law. However, it acknowledges the “exceptional circumstance” that might make meeting deadlines impossible.

“We will consider these circumstances when we receive requests from public bodies for approval of a longer extension of the 30-day time limit, as well as when we receive complaints about public bodies’ timeliness in responding to access applications.”

Smith wonders whether the thousands of federal records being created by public officials working at home, along with the possible use of personal email accounts and other workarounds, will affect how well “the primary documents of this pandemic are being preserved.”

As many public servants are teleworking, the federal information commissioner has reminded agencies they must continue to properly document decisions and the processes that led to them in accordance with the government policy on information management.