80760 World Bank Institute GOVERNANCE WORKING PAPER SERIES Access to Information Program Advancing Access to Information Principles through Performance Management Mechanisms: The Case of Canada Paul G. Thomas Canadian International Agence canadienne The World Bank Development Agency developpment international WORKING PAPER Advancing Access to Information Principles through Performance Management Mechanisms: The Case of Canada Paul G. Thomas* * Paul G.Thomas is the Duff Roblin Professor of Government at the University of Manitoba, where he has taught for more than 40 years. He holds baccalaureate (honors) and master’s degrees from the University of Manitoba and a PhD from the University of Toronto, Ontario.Thomas has chaired or served on numerous committees appointed by the fed- eral, provincial, and city governments in a wide range of public policy fields. In the access field, he was a member of the External Advisory Committee to the Task Force on Access to Information, which reported to the government of Cana- da in June 2002. In the privacy field, he has served as a member of the External Advisory Committee to the Office of the Privacy Commissioner of Canada since 2004. He is the author of approximately 100 articles and chapters in books. His article “Debating a Whistleblower Protection Act for Employees of the Government of Canada” (Canadian Public Administration 42 [2]) received the J. E. Hodgetts Award for the best English-language article in the journal in 2005. © 2010 The International Bank for Reconstruction and Development / The World Bank 1818 H Street NW Washington DC 20433 Telephone: 202-473-1000 Internet: www.worldbank.org E-mail: feedback@worldbank.org All rights reserved The findings, interpretations, and conclusions expressed in this volume do not necessarily re- flect the views of the Canadian International Development Agency (CIDA), the government of Canada, executive directors of the World Bank, or the governments those directors repre- sent. The World Bank does not guarantee the accuracy of the data included in this work. This report has been commissioned by the Access to Information (ATI) Program at the World Bank Institute (WBI) and supported financially by the CIDA-WBI Governance Program. The WBI Access to Information Program seeks to connect key ATI stakeholders to jointly identify, prioritize, and implement actions for effective ATI adoption and implemen- tation. The program aims to improve in-country capacity for the formulation, implementa- tion, use, and enforcement of ATI legislation through regional knowledge exchange and net- working, and by fostering the capacity of multistakeholder coalitions to undertake effective ATI reforms. Contents Acknowledgments.......................................................................................v Acronyms and Abbreviations......................................................................vii Executive Summary ....................................................................................1 1. Introduction ..........................................................................................3 2. Research Methods ..................................................................................7 3. Theoretical Orientation and Key Concepts ...............................................9 3.1 Institutionalism....................................................................................................9 3.2 Organizational Culture......................................................................................10 3.3 Public Service Motivation .................................................................................11 3.4 Leadership.........................................................................................................11 3.5 Trust .................................................................................................................12 3.6 Accountability...................................................................................................13 3.7 Performance Management.................................................................................13 3.8 Implementation of Access Legislation ................................................................15 3.9 Compliance and Enforcement ...........................................................................16 3.10 “Carrots and Sticks” ..........................................................................................16 iii iv Contents 4. Overview of the Canadian Access System................................................19 4.1 The Legislation .................................................................................................19 4.2 The Rights of Citizens under the ATIA.............................................................20 4.3 Responsibility for the ATIA ..............................................................................20 4.4 The Role of the TBS.........................................................................................21 4.5 The Information, Privacy and Security Policy Division......................................22 4.6 The Role of ATIP Coordinators........................................................................22 4.7 The Role of Parliament and the Information Commissioner .............................24 4.8 The Office of the Information Commissioner ...................................................25 4.9 An Evaluation of Canada’s Access System ..........................................................26 4.10 A History of Defensive Adversarialism?..............................................................27 4.11 Recent Developments .......................................................................................29 4.12 One Access Culture, or Many?...........................................................................31 5. Divergent Interests, Perspectives, and Incentives Relating to Access Issues ........................................................................................33 5.1 Access Requesters .............................................................................................34 5.2 Public Servants Responsible for Providing Access ..............................................36 5.3 The Information Commissioner as Champion? .................................................30 5.4 Conclusions ......................................................................................................41 6. Origins, Elements, and Evolution of the MAF .........................................43 6.1 Origins of the MAF ..........................................................................................43 6.2 Components of the MAF ..................................................................................44 6.3 The Impacts of the MAF...................................................................................46 7. Intersection of the MAF and the ATIA ...................................................51 8. Conclusions .........................................................................................57 Bibliography .............................................................................................61 Acknowledgments This study could not have been completed fessional support, but also insightful advice. I without the cooperation of the 20 present thank her sincerely and wish her every suc- and former public officials associated with cess in a very promising professional career. the access to information and the manage- I also want to thank Ross Hodgins, Su- ment accountability framework processes zanne Piotrowski, Alasdair Roberts, Josée Vil- within the government of Canada. Their leneuve, and Ben Worthy for their insightful agreement to share their knowledge in off- comments at various stages of this study; also, the-record interviews was crucial to captur- Luis Esquivel,Aránzazu Guillán-Montero, and ing the more informal, hidden dimensions of Marcos Mendiburu, at the World Bank Insti- those processes. I thank them sincerely and tute’s Access to Information Program, for hope that I have used their valuable insights their valuable substantive advice and logistical appropriately. support for the study. Excellent research assistance in gathering Errors, omissions, and interpretations are material and conducting some of the inter- the responsibility of the author.The views ex- views was provided by Rebecca Jansen. This pressed in the study do not necessarily reflect is one of a number of my research projects the position of the World Bank Institute. on which she has contributed not only pro- v Acronyms and Abbreviations AIPC access to information and privacy coordinator ATIA Access to Information Act ATIP access to information and privacy ETHI Standing Committee on Access to Information, Privacy and Ethics FedAA Federal Accountability Act IPSPD Information, Privacy and Security Policy Division MAF Management Accountability Framework OIC Office of the Information Commissioner of Canada TBS Treasury Board Secretariat vii Executive Summary On the basis of a detailed case study of the esses that shape how the ATIA and MAF government of Canada, this report examines processes work in practice. how management accountability processes Assessing the impact of the inclusion of operating within public services may con- an access component in the MAF is difficult tribute to the promotion and enforcement of because of the presence of developments access laws. (both inside and outside of government) that Canada’s Access to Information Act (ATIA) may affect how Canada’s access system oper- came into force in 1983. In 2003, the central ates. Also, the newness of the MAF process, management department in the public serv- the almost complete absence of independent ice, the Treasury Board Secretariat, adopted evaluations of the process, and the sensitive the Management Accountability Framework nature of the process all meant that the not- (MAF) to provide a consolidated basis for an for-attribution interviews with current and annual appraisal of the management of de- former public servants were crucial to the partments and agencies and of the senior completion of the study. public servants who manage them. In 2005, The study notes that access matters were some limited dimensions of the access per- given limited recognition in the design of formance of departments and agencies were the MAF and have received limited attention added to the MAF. in the actual processes of appraising the per- The report examines the intersection of formance of departments/agencies and sen- the ATIA and the MAF to determine wheth- ior public servants who lead and manage er adding an access component to the inter- them. On a positive note, the study uncov- nal management accountability processes has ered evidence of situations in which the improved commitment to and compliance MAF process brought attention to deficien- with Canada’s access law. Moving beyond cies in the access performance of depart- legislation, government application of the ments/agencies and prompted improve- law, and court interpretations, the case study ments. However, the main conclusion uses elite interviews, official documents, on- reached by the study is that including access line sources, and the available secondary lit- in Canada’s MAF could not completely erature to identify the multiple institutions counter internal and external developments and actors, their divergent interests and per- and pressures pushing toward stricter control spectives, and the formal and informal proc- over information flows. Leadership support 1 2 Advancing Access to Information Principles through Performance Management Mechanisms by cabinet ministers and senior public ser- frameworks is one additional potential tool vants for access principles as central to the to be used to promote and support access practice of good government and as a funda- laws. Whether and how the concept is ap- mental value in the public service culture plied should depend on the history and tra- was identified as more important to the ditions of individual countries, the character- achievement of open government than was istics of their political systems, and the adding access performance to a managerial professionalism and capacity of their public accountability framework. services. Integrating access principles and per- formance into managerial accountability 1 Introduction In their book Transparency in Global Change: the political system characteristics, particular- The Vanguard of the Open Society, Burkart ly the dynamics of party competition; (3) the Holzner and Leslie Holzner (2006) argue extent of the political executive’s control that there has been a worldwide culture shift over the legislature and its committees; (4) toward transparency, the more open flow of the professionalism and autonomy of the information, proactive disclosure, and an in- public service; (5) the type of information sistence on strengthened accountability for held by a government; (6) the technology all institutions—especially governments. Ac- used to generate, store, and distribute infor- cess to information legislation, where it ex- mation; (7) the strength of outside advocacy ists, is seen to have played a role in support- groups demanding access to information; and ing the shift to transparency and disclosure. (8) the independence and aggressiveness of Such legislation recognizes the public’s right the media in pushing for openness. In short, to know and the government’s duty to dis- numerous components of both the environ- close; and it provides mechanisms to enforce ment outside of a government and its inter- these principles.The process of transforming nal operating environments can exert signif- governmental systems, including public bu- icant influence over how open or closed a reaucracies, toward greater openness and ac- particular governmental system will be. countability has proved to be difficult and Comparing the relative efficacy of access slow because of both political and bureau- laws in different countries is very difficult cratic resistance and the use of defensive because such comparisons must take account strategies to minimize what are seen by gov- of the broader context in which such laws ernments as the negative consequences of operate. access laws. With a few exceptions, studies of access How access laws operate in different systems in different countries have focused countries is affected by many factors beyond on the passage of legislation, its provisions, the laws themselves and the enforcement and its implementation, including challenges mechanisms provided therein. Factors having to its interpretation and application in partic- direct and indirect impact on access systems ular cases (Neuman 2009). However, the ac- in particular countries include (1) the consti- cess to information process involves a com- tutional and institutional arrangements; (2) plex system of interdependent components 3 4 Advancing Access to Information Principles through Performance Management Mechanisms and processes, some of which are less tangible the government of Canada and its public and more submerged than the architecture service. The ATIA was adopted by the parlia- and the official interpretation of the legisla- ment of Canada in 1982 and came into force tion. Leadership commitment and organiza- on July 1, 1983. Over the 25-plus years of the tional cultures within government that sup- law’s operation, there have been recurring port access are crucial and more hidden criticisms that it has not worked effectively factors that may greatly affect the effective- to uphold the principle of open government. ness of an access system. This means that the Amendments to the act have been passed on study of access processes must draw on a a number of occasions over the years, most number of different disciplinary perspectives recently in 2006 when changes were made and must apply different theoretical frame- through an omnibus piece of legislation called works to diagnose problems and prescribe the Federal Accountability Act (FedAA). remedies. Although the history of the ATIA and the This study focuses on an approach to the current structures and procedures that sup- implementation and enforcement of access port it will be examined here, the main focus principles based on their integration into the of the analysis will be on how the access management accountability frameworks and process has been affected by the government related processes within governments. The of Canada’s introduction of the Management theorizing and research for the study are Accountability Framework (MAF) into the necessarily exploratory and limited, based on public service. A full analysis of the MAF the time and resources available. Uncovering comes later in this study; for now, it can be how managerial accountability requirements described simply as an integrated framework operate in practice—including the incentives for setting forth expectations and appraising they create for certain types of behavior—is the performance of senior public servants difficult because of the hidden, subjective, in- and their organizations. Commentators often formal, and variable nature of such processes link the MAF to passage of the FedAA, but it inside the wide range of organizations that predated that legislation. After consultation make up the modern public sector. Also, as inside and outside of government, the frame- suggested above, the effectiveness of access work was introduced in the summer of 2003 regimes is affected by factors both outside by the Treasury Board Secretariat (TBS), a and inside of governments. This means that central agency that serves the Treasury Board internal mechanisms intended to promote committee of cabinet (as described later in and enforce the principle of the public’s this study).The MAF is intended to generate right to know may be reinforced or under- information to support expenditure and mined by external developments and process- management decision making and to hold es. Separating the contribution of managerial deputy heads (permanent public servants) ac- processes to the success of access systems countable for the performance of the depart- from other factors operating in the wider en- ments and agencies they manage on a daily vironment is difficult and can only be de- basis. When introduced in 2003, the MAF scribed impressionistically. sought to bring together in an explicit, co- This report explores these issues on the herent, and integrated manner more than 60 basis of a case study of the operation of the management reform initiatives created by the Access to Information Act (ATIA) within TBS for deputy heads to follow. From the Introduction 5 outset, the MAF was an accountability and case study, the aim is to draw some tentative improvement process designed by the public lessons about the role that internal manage- service; there was almost no involvement by rial rules might play in supporting access cabinet ministers. laws. As suggested above, lessons must be As is described below, the MAF process drawn cautiously because public services in has evolved over the past seven years, with different countries operate within different the number of institutions covered initially constitutional and political systems—each rising to more than 50 and then being re- with its own history and traditions, contem- duced to the recent level of 25–30 annually. porary issues, and changing political and ad- This is a small percentage of the hundreds of ministrative cultures. Simply installing so- institutions that make up Canada’s public called state-of-the-art access to information sector at the national level. The broad areas legislation, institutions, and processes that ap- of management and the more specific activ- pear to work well in one country may not ities of department/agencies covered by the work well in other countries where the his- MAF have increased over the seven rounds torical, cultural, political, and institutional of data collection and assessment that have context is quite different. taken place since 2003. Beginning with the The analysis will proceed as follows: fourth round (2006–07), all MAF documents submitted by institutions and the assessment • Chapter 2 describes the research methods reports prepared by the TBS have been post- and types of sources used to conduct the ed on government Web sites. study. Since the 2004–05 round of MAF data • Chapter 3 introduces the general theoret- collection, the departments/agencies selected ical orientation of the study, including by the TBS to be part of the MAF coverage clarification of the key concepts that will in a particular year have been required to re- guide investigation of the intersection of port on their access to information arrange- the legal and managerial elements of ac- ments and results—but as this study makes cess regimes. That chapter will provide clear, they have had to report in a relatively some tentative thoughts on how manage- narrow way. The 25–30 departments and rial approaches and compliance systems agencies reviewed annually in recent years within public services operate in con- represent approximately 20 percent of the 255 junction with leadership and cultural institutions that are now covered by the ATIA components to give expression to institu- as a result of the 2006 passage of the FedAA. tional values, such as those represented by The main focus of the study, therefore, is access to information systems. on how the new requirements for perform- • Chapter 4 provides a brief history of ance reporting and assessment under the MAF Canada’s ATIA, which came into force might affect the behavior of managers in on July 1, 1983. On several occasions over terms of support for and compliance with the past 25 years, the operation of the act ATIA principles. Also of concern is how the has undergone intensive review by bodies MAF intersects with other formal and infor- outside and inside of government. More mal, internal and external processes to strength- than 20 amendments to the ATIA have en or to undermine Canada’s complicated resulted from such reviews, but critics in- access system. Although Canada is used as a sist that the act and its operation are still 6 Advancing Access to Information Principles through Performance Management Mechanisms deficient in providing protection for the ters might affect the dynamics of the public’s right to know (Tromp 2008). ATIA process in a positive or negative They point to the adoption of defensive fashion. Given the relative newness of the strategies by ministers and the public MAF and the ATIA component of the service to restrict the flow of information process, how the two processes intersect and thereby to avoid the potential danger to shape managerial behavior will neces- of negative publicity (Roberts 2002a; sarily be explored in a somewhat tentative Graham and Roberts 2004). The fear is and speculative manner. The chapter also that ministers’ desire for error-free gov- examines how internal and external ac- ernment will put pressure on public ser- countability processes related to access vants to withhold information to which might be understood to reinforce or de- the public is entitled under the ATIA. tract from one another. • Chapter 5 provides an overview of the • Chapter 8 draws together the findings of interests, values, perspectives, and incen- the study regarding the potential contri- tives that affect the behaviors of institu- bution of managerial reforms to the proc- tions and individuals within the access to ess of ATIA reform. information process. It is recognized that these summary interpretations of the mo- To enable readers to assess the thorough- tivations and behaviors are generalizations ness and balance of the analysis that follows, that do not fully represent the range of the main findings are reported here: The challenges to and responses by the various conclusion reached is that including an ac- organizations and actors who must deal cess component in the MAF since 2005–06 with access matters under varied circum- has made a marginal difference in terms of stances and with potentially quite differ- obliging deputy heads and their organiza- ent consequences. tions to pay more attention to the reporting • Chapter 6 describes the origins, rationale, requirements of the ATIA and related ad- elements, and evolution of the MAF ministrative policies. Such a framework process, including the roles of the main within the public service, however, cannot actors involved with that relatively recent completely offset external developments and innovation within the public service.The pressures inside of government that represent MAF is intended to hold senior public obstacles to and constraints on the promo- servants accountable in a more compre- tion and enforcement of the ATIA. The sup- hensive and integrated manner for their port of cabinet ministers and senior public performance in leading and managing servants is more important than management their organizations and in improving their process in making access principles central to organizational capabilities over time. the practice of good government and to the • Chapter 7 discusses how the integration promotion of a public service culture that fa- of reporting requirements for access mat- vors openness over secrecy. 2 Research Methods To investigate the issues described in chapter views were held both with senior managers 1, the study draws on a range of sources: a re- and with access to information and privacy view of the secondary literature, the analysis coordinators who are in charge of the intake of government documents, Internet searches and disposition of access requests.To encour- of government Web sites, and a select number age full and candid responses on a subject of interviews with key informants. Because of that is sensitive at times, the interviews were the exploratory nature of the study, a qualita- conducted on a not-for-attribution basis. To tive, elite interviewing approach has been protect the identity of respondents when used as a first attempt to uncover how the ac- quotations are used in this report, the posi- cess legislation, related administrative rules tion of the respondent will be identified in and guidelines, and informal norms of behav- generic terms—for example, “an access co- ior shape commitment to and compliance ordinator in a large department.” with the ATIA (Dexter 1970; PS: Political Sci- In addition to those sources, the study ence and Politics 2002). draws on the author’s background as a for- Interviews were conducted with 18 indi- mer member of the external advisory com- viduals distributed across two central agen- mittee to the federal task force that reviewed cies of government (the Privy Council Of- the ATIA in 2001–02. It draws also on his fice and the TBS), five departments, and the academic scholarship on such topics as ac- Office of the Information Commissioner of countability; communications at the center Canada (OIC); and with 2 retired senior of government; officers of parliament; trust, public servants who worked on access and leadership, and change in the public service; MAF matters. With respect to access, inter- and whistle-blower protection. 7 3 Theoretical Orientation and Key Concepts The following discussion of the study’s gen- ganizations, such as the political system or eral theoretical orientation will clarify the the bureaucratic system. Public sector insti- key concepts that guided this investigation of tutions are created on the basis of laws, have how the legal and managerial elements of ac- formal organizational structures, involve the cess regimes intersect. Also included in this delegation of authority and resources subject chapter are some thoughts on the operation to certain parameters to guide decision mak- of managerial approaches and compliance ing, and provide for the flow of accountabil- systems within public services when com- ity back to the top of the organization. bined with leadership and cultural compo- Second, institutions are seen to involve an nents to express institutional values. informal, less visible life consisting of con- ventions or well-accepted practices, unwrit- ten rules, procedures, routines, values, and 3.1 Institutionalism norms of behavior that are deeply embedded in the organizational structures and collective This study uses a neo-institutional approach processes of the political and administrative to interpret Canada’s experience with its ac- systems. History, the evolutionary path of in- cess to information system. Arising out of the stitutions, the philosophies of their leaders, disciplines of history, law, political science, and and the defining moments when values and sociology, there are several variants of the norms are tested all shape the collective con- neo-institutional approach; and there is con- sciousness of the institution to some degree siderable controversy among proponents of that is not easily measured. Submerged un- different approaches. What has been called derstandings and taken-for-granted assump- historical institutionalism is adopted here. At the tions create a filter through which develop- risk of great oversimplification, this approach ments are interpreted, and they help define involves a number of key features (Steinmo, what is deemed appropriate behavior. Thelen, and Longstreith 1992; Lecours 2005). Third, without denying that power and The first feature involves seeing institu- self-interested calculations are involved, the tions as more than stand-alone organizations historical-cultural approach to understanding with narrow mandates and clear bottom-line institutional life sees shared purposes, beliefs, calculations of success. Instead, institutions values, and behavioral norms acting as both are seen as broader systems of interacting or- enablers of and constraints on the behavior 9 10 Advancing Access to Information Principles through Performance Management Mechanisms of individuals. As historical, collective con- and the impact of the political process. These structions, with memories and traditions de- conditions in the public service mean that veloped over time, institutions cannot easily cultures may be less stable as leaders and issues be transformed through specific actions of change regularly. any one individual. Organizational cultures often are described as weak or strong, thin or thick. In the man- agement literature, it generally is accepted 3.2 Organizational that a strong shared culture can be valuable in Culture terms of performance—but with the proviso that such a culture must be appropriate in Conceptually related to historical institu- terms of the organization’s tasks and envi- tionalism, but narrower in focus, is the pop- ronments (Kotter and Heskett 1992). Also, ular and elusive notion of organizational cul- corporate cultures must be flexible in their ture (O’Donnell and Boyle 2008). It has openness to modification in response to been likened to the personality or identity of changing circumstances; otherwise, there is an organization. More precisely, the term is the risk of “groupthink” and a blindness to used to refer to the relatively hidden mean- outside developments that will affect the per- ings, values, beliefs, and norms of behavior formance of the organization. that often are summed up in the phrase In this and other ways, culture can be “how we do things around here.” Edgar H. seen as facilitating or inhibiting institutional Schein (2004), the leading scholar on the transformation. An organization with an in- topic, emphasizes that there are visible and ternal, rule-bound culture, for example, may invisible levels of organizational culture. be resistant to reforms designed to foster in- Symbols and ceremonies would be examples novation. There are competing views in the of visible features, whereas unspoken funda- literature about the degree to which it is pos- mental assumptions and beliefs would be in- sible to manage culture in a planned and de- visible cultural dimensions. liberate manner (O’Donnell and Boyle 2008). Different organizations are recognized to Some writers argue that cultures can be di- have distinctive cultures.This means that in a rected and controlled through a number of large and diverse public sector, there may be mechanisms—such as new structures, the se- some systemwide values; but there are also lection of personnel, the issues that are ac- important cultural differences among the de- cepted on the decision-making agenda, the partments and agencies that the sector com- way in which issues are defined and dealt prises. It is also recognized that large, special- with, the patterns of communication, and the ized, more differentiated public organizations rewards and recognition that operate within may contain within themselves distinctive organizations. Other commentators take the subcultures—for example, in accounting or view that organizational culture is an elusive human resource management. phenomenon that is more organic in nature Organizational cultures are variously ex- than it is planned.Transforming the cultures posed to outside influences, with public sector of public organizations in a planned, deliber- organizations being greatly influenced by their ate manner generally is considered an uncer- relative openness in comparison with private tain and slow process because of the many firms, the greater scrutiny of their activities, complications introduced by the distinctive Theoretical Orientation and Key Concepts 11 context—most notably, the political process sector. Intrinsic motivation in the form of that leads to outside pressures having a more less-tangible rewards is more important than immediate impact on the cultures of public extrinsic rewards that count for more in pri- organizations. vate firms.This raises questions about whether As is discussed below, leadership at the top material rewards such as performance pay and of public organizations is shared between pol- promotions will be as strongly motivating in iticians and public servants, so cultural change public sector organizations as they often are does not always have unified direction. Staffing assumed to be in private, for-profit firms. and compensation in the public service are con- Public servants with strong public service tained in systemwide policies and rules, and motivation exhibit such qualities as high lev- they may be the subjects of public controversy. els of organizational loyalty and commitment, The public sector consists of an agglomeration believe their jobs are important, are more of diverse departments and nondepartmental likely to work hard, are more likely to believe bodies—and that makes developing a strong in the public’s right to know, and are more shared culture very difficult. Access and willing to disclose wrongdoing. Moynihan whistle-blower protection laws reflect a pro- and Pandey (2007) have taken Perry’s empir- disclosure environment in which internal prob- ical research farther and have concluded that lems may be revealed, magnified, and distorted the institutional context and management by the adversarial parliamentary process and re- systems put in place can be used to foster lated media coverage. In these and many other public service motivation.Their research also ways, the distinctive context of the public sector suggests the importance of communicating to makes the promotion of cultural change more public servants the centrality of their role in complicated and uncertain than in individual upholding the public interest. These findings private firms that provide the basis for much of have obvious relevance to this study, which the literature on organizational culture. examines the impact of management struc- tures and processes on the performance of Canada’s access system. 3.3 Public Service Motivation 3.4 Leadership Serving the public good or the public inter- est has long been seen as the essence of the Those commentators who believe that cul- public service role. Recently, James Perry tural change can be controlled and directed and his colleagues (Perry 2000; Perry, Mesch place a great deal of faith in the creativity and and Paarlberg 2006) have argued that the in- influence of leaders.Visionary, eloquent, and stitutional context and culture of the public skillful leaders can shape cultures, especially service create a distinctive underlying moti- when an organization is being founded. It vation for public servants. “Public service must also be recognized, however, that cul- motivation” provides a theory of motivation tures shape the philosophies and behaviors of that links administrative behavior to the pur- leaders. suit of the public interest. People with a high Leadership has been described as “one of sense of public interest are more attracted to the most observed and least understood phe- careers in government than in the private nomena on earth” (Burns 1978, p. 2). There 12 Advancing Access to Information Principles through Performance Management Mechanisms is nothing close to agreement on a definition 3.5 Trust of leadership or its essence. However, the meaning and practice of leadership appear to Trust is currently a very fashionable concept, be highly contingent on the context in and much has been written about it by schol- which it is occurring (Rainey 2003, ch. 11). ars in a variety of disciplines and in govern- For purposes of this study, leadership is un- ment reports (Thomas 2008b). Again at the derstood as a process rather than a set of per- risk of oversimplifying, a series of brief state- sonal attributes exhibited by all leaders in all ments about trust will be made here.Trust in- situations. Fairholm (1994) defines leadership volves positive assumptions and expectations as “a process of building a trust environment about the motivations, intentions, capabilities, within which leader and follower feel free to and actions of institutions and individuals in participate toward the accomplishment of situations entailing risk and vulnerability.There mutually valued goals using agreed-upon are different sources and types of trust. It takes processes” (p. 3). time for trust to develop, but it can be lost Leadership in government is shared be- quickly. Within organizations, trust reduces the tween politicians and public servants (Thomas need for rules and procedures and improves 2008b). Each group brings to the governing communication about sensitive matters. process a different set of preoccupations, ideas, As is discussed below, weak or strong cli- and skills.There is a need for balance between mates of trust between citizens and their gov- elected political leadership to ensure respon- ernments, and among different actors within sive decision making and democratic account- government, affect how access systems will ability to citizens, and public service leader- operate in practice. Over the past several ship to ensure the appropriate use of expertise decades in many democratic political sys- in formulating policy and professionalism in tems, public trust and confidence in govern- program administration. ment institutions—particularly in the elected To be reelected, politicians must be con- political leaders of those institutions—have cerned about the public perceptions of and declined. The same is true to a lesser extent support for the actions of government. For for the appointed public servants who lead them, gaining favorable publicity and avoid- and manage public organizations on a daily ing blame for mistakes or abuses are seen as basis. The two concepts of trust and confi- occupational requirements. In contrast, pub- dence often are combined in opinion surveys lic servants are meant to maintain relative trying to measure changing public attitudes anonymity and neutrality in the performance toward governments. Although related, the of their professional duties. Although mindful two concepts probably should be kept dis- of the need to worry about how things look tinct; confidence refers more to the capacities to the outside world, they are not as preoc- and competencies of institutions and individ- cupied with negative publicity as are politi- uals, whereas trust relates more to their mo- cians. For constructive and effective working tives and intentions (Thomas 2008b). relationships to develop between politicians External public trust in governments has and public servants, there must be trust based received far more attention than the positive on their mutual understanding of and respect trust relationships that need to exist on sev- for their respective roles. eral levels inside of government if the policy- Theoretical Orientation and Key Concepts 13 making and managerial processes are to work • the provision of authority, resources, and a effectively. The most important of such trust reasonably supportive environment to al- relationships is that between elected minis- low for the fulfillment of responsibilities; ters and senior public servants who must col- • the obligation to answer for the perform- laborate to identify and manage issues almost ance of responsibilities, ideally based on on a daily basis. Other levels of trust involve valid information; the center of government—in the Canadian • the duty of the authorizing party to mon- case, the prime minister and cabinet and the itor performance and to take corrective central agencies that support them—and the action when problems arise; and various departments and agencies to which • the bestowal of rewards or penalties based authority and resources are delegated.Within on performance (Thomas 2008a). departments and agencies, a strong climate of trust is needed between senior management Accountability should not be confused and employees on all levels. A strong shared with transparency.The provision of informa- culture of trust, loyalty, commitment, and tion is an important means to achieve ac- pride within an organization can be disrupt- countability, but does not itself constitute full ed and weakened by short-lived events, such accountability (which also must involve the as political or administrative scandals. potential for consequences to flow from ac- tions or inaction). 3.6 Accountability 3.7 Performance The aims of access laws are to increase citizen Management knowledge and involvement with govern- ment; to enable better-informed decision Under the influence of the “reinventing gov- making; to increase transparency; to strength- ernment” and new public management move- en accountability; and, ultimately, to improve ments over the past two decades, many gov- levels of trust and confidence in holders of ernments sought to promote a shift away from public office. With leadership come responsi- accountability based on compliance with bility and accountability. Responsibility can rules and prescribed procedures and toward have many meanings, but here the term is accountability based on performance report- used to describe the internalized, subjective ing on the results achieved, with a commit- sense of obligation to do the right thing (Har- ment to make use of such evidence to im- mon 1995). Accountability also is a broad and prove the policies, programs, and services elusive concept, surrounded by ambiguity and delivered to citizens. To promote use of per- controversy. In this study, accountability will be formance evidence, efforts were made to link used in a narrower, more precise manner to performance reports to such central manage- refer to a formal relationship of authority that ment processes as strategic planning, budget- is supported by a number of processes: ing, policy and program evaluation, and ap- praisal of employees (especially senior man- • the delegation or negotiation of responsi- agers). In the longer term, the aim was to bilities, ideally based on expectations and create within public organizations a culture standards; of performance that supported reliance on 14 Advancing Access to Information Principles through Performance Management Mechanisms evidence for purposes not only of control ture to embark on performance management and accountability, but also of learning and reforms. Finally, because the measurement improvement. It was recognized that achiev- and interpretation of measures respecting ing such a culture required creating incen- program goals are inherently subjective and tives (and removing disincentives) to report- controversial, “politics” is involved.The pol- ing in a timely, relevant, comprehensive, and itics of performance management takes place balanced manner and to using evidence to on a number of levels within government; guide decision making (Halachmi and Bouck- and it relates to questions such as these: How aert 1996; McDavid and Hawthorn 2006; will the vague and often multiple goals of Radin 2006). programs be defined and measured? Over During the 1980s and 1990s, many gov- what period of time will measurement and ernments around the world got on the per- reporting take place? Who will decide the formance management bandwagon. By the validity and significance of the findings? And, turn of the 21st century, however, jurisdic- based on the data available, who will decide tions once thought to be leaders in the field what actions will be taken to achieve greater (such as New Zealand, the United Kingdom, success? As will be evident in the later discus- and many U.S. states) began to scale back sion of Canada’s access system, there have their activities, based on a recognition that been analytical, financial, institutional, and— the investment of money and staff in per- most important—political issues related to its formance management was having limited performance, with a range of divergent inter- impact on decision making and the quality ests and perspectives on how well it is work- of programs. Lack of use seemed to be the ing and what constitutes success. Achilles’ heel of the performance move- Despite much talk about a performance ment. The obstacles to greater use of per- approach to accountability that concerns formance evidence fell into four broad cate- learning and improvement, the focus in prac- gories: analytical, financial, institutional, and tice is mainly on preventing abuses and mis- political.1 The analytical challenges relate to takes and on providing assurances to the the difficulty of demonstrating a causal link public that governments are operating effi- between program activity and outputs and ciently, effectively, and ethically. Frequently, actual outcomes within the organization and/ there is a negative, blaming quality to ac- or within the wider environment. In terms countability debates. Accordingly, govern- of financial considerations, generating infor- ments want error-free performance with no mation on how well programs are operating surprises, and this often means that compli- is not a cost-free activity; and governments ance with access to information laws is re- were hard-pressed to find the money and garded as risky. staff to pay for sustained performance report- Accountability and trust exist in a rela- ing and analysis. In terms of institutional fac- tionship of tension. Over the past several tors, not all public organizations had the in- decades, the multiplication of accountability frastructure and technical capacity, the staff mechanisms in many governmental systems knowledge and skills, and a supportive cul- reflected and reinforced an external climate of low public trust in government, and weak 1 Only a brief explanation of these categories is possible in confidence among political leaders in the ca- the space available here. For elaboration, see Thomas (2008d). pacity and willingness of the public service Theoretical Orientation and Key Concepts 15 to design and deliver efficient and effective problems of communication and coordina- policies and programs. New regulations con- tion, the need for decentralization and au- cerning the behavior of politicians and pub- tonomy for specialized personnel, inadequate lic servants, supported by oversight bodies resources and tools, and the problem of cre- that report publicly on wrongdoing or mis- ating the right incentives to encourage ac- takes, reflect this lack of confidence. When tion in support of policy goals. the new oversight bodies release reports, they In general, it is now widely recognized that often become amplified and sensationalized implementation is not a straightforward step in the parliamentary and media processes. In in the policy process by which the public this way, accountability processes may lead— service simply carries out the intentions of the at least in the short term—to the erosion of legislature and the political executive. Many trust. On the other hand, clarifying the rules, studies suggest that implementation involves monitoring performance, and disclosing prob- “politics” in the sense that different interests lems may mean fewer temptations and op- and perspectives contend with one another portunities to misuse authority and public over how general policy enshrined in legisla- money. Such processes also may create incen- tion will be interpreted and applied (Thomas tives to improve performance; and, over the 2006). This means that power relationships long run, this could increase both external among different institutions and actors are sig- and internal trust. nificant in shaping policy in practice and the outcomes that are achieved. As part of the politics of the implementation process, both 3.8 Implementation of active and passive resistance (both inside and Access Legislation outside of government) may block, limit, or delay the achievement of policy goals. The passage and strengthening of access laws In applying these theoretical notions to has been part of the wider accountability the performance of Canada’s access system, movement taking place in many jurisdic- it is useful to adopt the iceberg analogy in tions. Such laws tend to be passed with great which 20 percent of the system is visible fanfare and rhetorical flourish on the part of above water and the other 80 percent is hid- politicians. However, these laws do not im- den beneath the surface. The visible portion plement themselves. Implementation theory consists of the legislation, public reports on has been used in the public policy and public how the legislation is operating, parliamen- management fields to explain the gap that tary and media discussions, and court cases. often yawns between the goals and design of Just above and below the surface are the ad- programs and what happens in practice (Hill ministrative structures, procedures, informa- and Hupe 2002; O’Toole 2004). There are tion management systems, and internal re- numerous theories, models, and controversies porting and accountability requirements surrounding implementation as a distinctive, needed to implement an access law. Probably under-researched stage in the policy process. the most important parts of the iceberg are The available explanations for implementa- fully submerged in the overlapping political tion breakdowns focus on a wide range of and administrative cultures of government. factors—such as lack of policy clarity, the In Canada, the ATIA now applies to more multiplicity of interests and actors involved, than 255 organizations.With that number of 16 Advancing Access to Information Principles through Performance Management Mechanisms organizations and the varied tasks they per- tive, and totally satisfactory to all stakehold- form, there will never be one uniform access ers.The success of such systems is greatly de- culture in the federal government. Instead, pendent on the commitment, attitudes, and access cultures will vary somewhat, according behaviors of all the individuals involved; and to the nature and sensitivity of a particular such elements cannot simply be legislated organization’s tasks; its history and values; the into existence. philosophies and leadership styles of minis- Commitment to and compliance with ters and deputy heads; the informal rules of access principles are not the same as regulat- the game that guide behavior; the pattern of ed enforcement of such principles (Parker incentives and disincentives that these rules and Nielsen 2009). Commitment and com- create; and the knowledge, skills, and tools pliance, of course, are related in practice. possessed by employees to manage the often Binding orders from courts, administrative complex and sensitive access process. rules, and even strong recommendations Creating organizational cultures that favor from information commissioners can help the release of information is difficult, takes promote and reinforce a cultural norm of time, and may be undermined by short-term openness within public bodies and can foster events such as serious negative publicity. It is an internalized sense of responsibility on the desirable that political and public service part of public officeholders. External inter- leaders always send the right signals on open- pretation and enforcement can move the ac- ness, but this is particularly important in cess agenda forward to some extent, but the those defining moments when the principles internal adoption of openness as an impor- and values of the access system are being test- tant value in the overlapping and intersecting ed by controversy. Ideally, leaders and the sys- political and administrative cultures of gov- tem in general will provide incentives, re- ernment probably is more important to wards, recognition, and penalties to promote achieving the aims of access laws. and support a culture of openness. While recognizing the different roles to be played, the system should be built on mutual under- 3.10 “Carrots and Sticks” standing, respect, and trust among the differ- ent organizations and individuals involved. Accountability systems established inside gov- The system should be more collaborative ernment for access purposes may be divided than adversarial in character. Fairness, consis- broadly into two categories. The first category tency, and predictability among all the parties of system provides direction, authority, re- involved can contribute to the integrity of sources, and generalized support to enable ac- the access system by upholding both the let- complishment of the aims of access laws. The ter and the spirit of the access law. second category uses performance targets, pressures, and sanctions that make the ac- countability system more compelling. Cana- 3.9 Compliance and da’s access to information system comprises Enforcement both motivational and regulatory features— that is, “carrots and sticks”—to promote com- No jurisdiction has legislated an access to in- pliance with and enforcement of the ATIA formation system that is fast, efficient, effec- requirements. Ideally, commitment to and Theoretical Orientation and Key Concepts 17 compliance with both the letter and the spirit enforcement challenges, and require behav- of access laws would be voluntary and strong; iors for which there is not sufficient capacity. but experience tells us that this is not always Voluntary compliance is more likely to work the case. when the expected behaviors are seen as ef- Sanctions are penalties for noncompli- fective and legitimate, when they correspond ance with rules or directions from officials in to the personal values of the actors, and positions of authority. They may impose loss when there is the capacity to meet expecta- of benefits, status, or reputation on individu- tions. Sanctions that lack legitimacy and als or organizations; and may trigger atten- practicality may induce defensiveness that dant feelings of displeasure, shame, or fear prevents individuals and organizations from (Posner and Rasmusen 1999).To be effective, trying out new approaches (Argyris 1990). sanctions must be properly targeted at the ac- Despite failing to serve all or some of their tors responsible for the expected behaviors, aims, accountability systems related to access must cause sufficient discomfort to be moti- laws may be retained because of the symbolic vating, and must be enforceable. Sanctions purpose they serve in assuring the public that are likely to be ineffective when they are its right to know is being upheld. aimed at diffuse targets, are beset with visible 4 Overview of the Canadian Access System Canada was once seen as a leader among 4.1 The Legislation countries in terms of its legislation, commit- ment of resources to access processes, and de- Canada’s ATIA 3 can be described as quasi- velopment of administrative practices to pro- constitutional because it overrides provisions mote openness. This is probably less true in other federal statutes (except those listed today. There are problems with the Canadian in a schedule attached to the act). This fea- access regime, as will become clear from the ture elevates the ATIA above ordinary stat- following brief analysis of its history and cur- utes, and it is meant to reflect the importance rent operations. of openness as a fundamental principle in the The ATIA regulates Canada’s access sys- political and administrative cultures of the tem.2 Whereas its legal aspects are the re- government of Canada. When the legislation sponsibility of the minister of justice, the TBS was being debated in parliament in 1980, the is responsible for administering the act. The noble goals of the ATIA were declared to be Information, Privacy and Security Policy Di- informed dialogue between citizens and vision (IPSPD) of the TBS’s Chief Informa- public officeholders, improved decision mak- tion Officer Branch is in charge of develop- ing, and strengthened accountability among ing governmentwide policy in this area. governments and the public service.Whether Though not explicitly mentioned in the act, the ATIA lives up to these noble purposes in access to information and privacy coordina- practice is the subject of controversy. tors in each agency handle the day-to-day The ATIA has been amended by parlia- implementation of the law in practice. Their ment a number of times over the years. An performance ultimately depends on a series important amendment, passed in the 1990s, of factors related to their institutional posi- made it a criminal offense to intentionally tions and the organizational and political cul- obstruct access by destroying, altering, hiding, tures surrounding their functions.This chap- or falsifying a record; or by directing anyone ter reviews the history and components of else to do so. It is significant that this amend- Canada’s access to information system. ment was based on a private member’s bill— 2 3 In Canada, regime is the preferred term to describe the legal The Access to Information Act (R.S., 1985, c. A-1) and re- framework, structures, and processes of the ATIA. To avoid lated legislation is available through the Canadian Depart- confusion for readers in other countries, however, the more ment of Justice’s Web site, at http://laws.justice.gc.ca/en/A-1/ universal term system will be used here. index.html. 19 20 Advancing Access to Information Principles through Performance Management Mechanisms not a government bill—introduced in the af- the ATIA. As is discussed below, there is evi- termath of two national inquiries revealing dence indicating that both of these legal that crucial documents had been destroyed. principles have been violated in practice. This provision was used for the first time in Institutions covered by the ATIA are re- 2008–09, when a matter was referred to the quired to publish a description of the organ- attorney general for investigation. ization and its responsibilities, all classes of The most recent changes to the ATIA records under its control, all manuals that were part of the Federal Accountability Act guide the behavior of its employees, and the passed by parliament in December 2006. contact information for the frontline public Those amendments extended the coverage of servant who is responsible for dealing with the ATIA to parent Crown corporations and requests under the act (a person usually re- their subsidiaries, officers of parliament (such ferred to as the access to information and as the information commissioner, the privacy privacy coordinator [AIPC]). The act delin- commissioner, and the public sector integri- eates the processes for filing a request, includ- ty commissioner), and five public foundations ing the timelines for notifying third parties created by the government of Canada. As a whose information may be in the possession result, 255 institutions are now covered by of government. The act establishes the posi- the ATIA. Another significant change was tion of the information commissioner of the introduction of public servants’ duty to Canada, an independent officer of parlia- assist requesters—a change intended to en- ment, who mediates disputes over the denial sure more equal use of the access process. of requests and reports regularly to parlia- These changes, however, were seen by critics ment on the performance of the act. as falling far short of the 40 reforms prom- There is a two-step appeal process avail- ised by the Conservative Party of Canada be- able to requesters who are denied informa- fore it took office. tion. Initially, they may complain to the in- formation commissioner.The commissioner then can investigate and make recommenda- 4.2 The Rights of Citizens tions to the head of the institution, but can- under the ATIA not order the release of information. Re- questers have a further right to seek review The ATIA provides that every citizen and of a denial of access in the Federal Court of permanent resident of Canada has a right to Canada. In addition, with the consent of the any document “under the control” of a gov- complainants, the commissioner may take ernment institution, subject to a number of cases to the court on their behalf. exclusions and exemptions. The act is sup- posed to ensure that all requests for informa- tion will be handled similarly, without regard 4.3 Responsibility for to the identity and occupation of the re- the ATIA quester or the purpose for which informa- tion is being sought. In addition, it is a viola- Two ministers in the cabinet are responsible for tion of the Privacy Act (and the ATIA as the overall performance of the ATIA. The amended in 2006) to disclose the identity of minister of justice is responsible for the legisla- requesters in the processes of administering tion, including the introduction of amend- Overview of the Canadian Access System 21 ments. With the enactment of the FedAA in empt them from ultimate accountability.The December 2006, the scope of the ATIA was act explicitly excludes delegation of these re- widened so that it now covers 255 institutions, sponsibilities to “exempt” (popularly called including officers of parliament (one of whom political staff ) employees who work in min- is the OIC) and all Crown corporations. isters’ offices. A cabinet minister (with the title of pres- The heads of institutions and their dele- ident of the Treasury Board) is responsible for gates are responsible for the fair, reasonable, overseeing the administration of the act. He and impartial exercise of discretion; and the or she chairs the Treasury Board, a cabinet duty to assist applicants, receive complaints, committee that promotes sound manage- provide accurate and timely responses, pro- ment in general and deals with expenditure tect the identity of applicants, and promote management issues in particular across all awareness of the ATIA among employees of parts of government. The Treasury Board is the institution. Heads of institutions or their supported by the TBS, which includes the delegates also are responsible for monitoring IPSPD. and reporting on the administration of the act. Statistics on the operation of the act must be gathered, an annual report must be pre- 4.4 The Role of the TBS pared and tabled in parliament, and the insti- tution’s chapter in the compendium called To guide implementation of the legislation, Info Source must be updated regularly. the TBS has issued a policy statement, the The section of the policy titled “Conse- most recent version of which took effect on quences” deals with noncompliance. Failure April 1, 2008. The policy objectives de- to comply with directives and standards leads scribed there are to facilitate compliance and initially to the requirement for an explana- effective operation of the ATIA and to en- tion and the development of compliance sure consistency in the application of the act strategies (which must be included in the in- across all government institutions listed in stitution’s annual report to parliament). For its appendix (TBS 2008b).The policy and its those institutions subject to the MAF, exem- companion regulations were meant to pro- plary performance, satisfactory performance, duce sound management processes and deci- and noncompliance with respect to the pol- sions on requests, accurate and timely re- icy will be considered in the annual assess- sponses to requests, clear responsibility and ment process for heads of those institutions. accountability for decision making and ad- (The intersection of the ATIA with the MAF ministration, and consistent public reporting. is discussed in depth in chapter 5.) In terms of responsibility, the policy makes In addition to the policy statement, the the head of an institution accountable for en- TBS has issued “Access to Information suring the effective, coordinated management Guidelines” intended for use by public ser- of the ATIA within the institution—includ- vants responsible for administering the act.4 ing compliance with the provisions of the The introduction to the guidelines states that policy and the reporting requirements related they are not to “be viewed as a handbook for to its administration. The heads of institutions may delegate these responsibilities to other 4 The guidelines are available at http://www.tbs-sct.gc.ca/ employees, but such delegation does not ex- pol/doc-eng.aspx?id=13773§ion=text. 22 Advancing Access to Information Principles through Performance Management Mechanisms finding ways to refuse access to records.” In- their duties (under subsection 4[2.1] of the stead, they are meant to represent “a balanced ATIA) to assist requesters with their attempts approach” to explain how the legislation per- to gain information from the government. As mits both the release and the withholding of noted earlier, the duty to assist was added to information. The guidelines go on to state the act as a result of the amendments made that there is an onus on institutions to justify by the FedAA. It will take time for this rela- nondisclosure. On the grounds of informed tively recent change to be integrated into the public participation in policy making, inclu- access cultures of departments and agencies. siveness, and fairness in decision making and In 2007–08, the IPSPD had eight employees support for accountable government, the to oversee the administration of the act and guidelines state, “There is a compelling public to provide expert advice, guidance, and train- interest in openness.” It is also noted that re- ing to institutions. liance on the ATIA was not meant to replace The IPSPD is also responsible for provid- existing procedures for obtaining informa- ing education and training opportunities to tion, and that applicants should be informed government employees. Thirteen sessions when an access request is not required to ob- exploring both general and specific topics re- tain the information they are seeking. lated to the administration of the act were provided to approximately 150 participants in the ATIP community during 2007–08. 4.5 The Information, The office works with the Canada School of Privacy and Security Public Service to integrate access content Policy Division into the curriculum for executive develop- ment within government. The IPSPD is responsible for developing gov- In 2007–08, the IPSPD was preparing a ernmentwide policies related to the ATIA. It survey of the difficulties in recruiting and re- advises all institutions on updates to the pol- taining qualified personnel in the access field. icy on access to information. It prescribes the Because serving as the access coordinator for form and content of the annual reports from an institution is often seen as an isolated, individual institutions as well as their entries even unpopular role without a clear path for into Info Source, the annual index to the re- career progress, the survey also examined sponsibilities of all institutions and their in- possible ways to maintain job satisfaction. formation holdings. Separate from and not to One possibility that was tested in the survey be confused with the IPSPD is the Access to was certification or accreditation for all ATIP Information and Privacy (ATIP) Office, part practitioners. (These matters are discussed in of the Ministerial Services and Strategic greater detail later in this report.) Communications and Ministerial Affairs Di- vision. The ATIP Office is responsible for processing requests to the TBS (one of the 4.6 The Role of ATIP 255 institutions covered by the act).The dis- Coordinators cussion to follow focuses on the IPSPD, not on the ATIP Office. Since the passage of the ATIA, initial respon- In 2007–08, the IPSPD prepared addi- sibility for managing the intake, processing, tional guidance for all institutions regarding and response to access (and privacy) requests Overview of the Canadian Access System 23 has resided with access to information and quest brings another one, and requests tend privacy coordinators. Despite the fact that not to get easier over time. The number of AIPCs play a central and indispensable role open-ended “fishing expeditions” for “in- in translating the law into actual service, their criminating” documents being conducted by role is not even mentioned in the ATIA. The opposition parliamentarians, the media, and closest that the act comes is a reference to the advocacy groups in society seems to be in- requirement that institutions publish a de- creasing. In a related development, the size, scription of their information holdings— complexity, and sensitivity of requests have now found in Info Source—and identify the increased over time. Heavy workloads lead to title and contact information for the public a lack of timely compliance with the dead- servant to whom access requests should be lines required by the ATIA and to criticism directed. A complete list of AIPCs is now by the information commissioner. published on the TBS Web site. A summary of discussions held with ac- Several studies have recognized that the cess coordinators by the Access to Informa- AIPCs have a stressful and demanding role tion Review Task Force in 2001 included the that is not always highly valued within their following summary statement: “On-the-job home organizations. At times, they experi- stress, induced by factors such as heavy work- ence uncomfortable conflicts between their loads, inflexible staffing procedures, lack of responsibilities under the ATIA and related office space, feeling undervalued in the or- TBS policy/regulations, their loyalty to their ganization, high staff turnover, and occasional specific institutions, and their personal career verbal abuse from requesters dissatisfied with prospects. They may be perceived as “nui- the level of service received, were all seen as sances” because they have to pester col- detrimental to maintaining an effective and leagues for records that could be damaging motivated group of professionals” (Govern- to the reputations of the minister, the institu- ment of Canada, Report of the Access to In- tion, and the senior public servants above formation Review Task Force 2002, p. 124 them in the administrative hierarchy. A rare [henceforth, this document will be referred glimpse into the pressures placed on access to as the Delagrave Report, in honor of the coordinators not to release politically embar- chair of the task force]). Perceived as being rassing information was provided on the wit- out of the mainstream of institutional activi- ness stand before the judicial inquiry into the ties, access coordinators lacked a clear career so-called sponsorship scandal in 2005. Anita path of advancement and promotion. As far Lloyd, the access coordinator for Public back as 1987, a parliamentary committee had Works and Government Services Canada, de- recommended that AIPCs be made part of scribed how she was pressured to withhold the senior management team and therefore information on the budget of the sponsor- part of departmental executive commit- ship program from a journalist who had filed tees—a recommendation that has been en- an access request. To withhold the informa- dorsed by successive information commis- tion, she told the judge, “would be to mis- sioners over the years. In response to the lead” the applicant and would be neither le- 2002 task force review of the ATIA, the gal nor ethical (Shochat 2010). commissioner at that time recommended For some institutions, there is a continu- that the position of access coordinator be ous flow of access requests; a completed re- recognized in the act, that a duty of impar- 24 Advancing Access to Information Principles through Performance Management Mechanisms tiality be imposed on coordinators, and that experienced and talented access professionals coordinators be required to report promptly has led recently to higher classification and to the deputy head of the institution any at- improved compensation. (Further discussion tempt to interfere with the operation of the of the relationships of AIPCs with other ac- access process (Information Commissioner tors in the access process is presented in later of Canada 2002). chapters of this report.) Since the Delagrave report, the position of AIPCs has become more professionalized and recognized as an indispensable role in 4.7 The Roles of implementing the act.With the extension of the ATIA to more institutions as a result of Parliament and the passage of the FedAA, the ATIP commu- the Information nity has become much larger. For depart- Commissioner ments and agencies experiencing large in- creases in the volume of access requests, it has In addition to these internal mechanisms of been difficult to recruit experienced coordi- accountability and support for the access nators. For example, the Department of For- function, parliament is meant to play a cru- eign Affairs and International Trade has seen cial role in upholding the principles of the the number of requests increase by an aver- ATIA and overseeing its implementation. age of 11.2 percent annually in the period Careful and continuous scrutiny of the access between 1995–96 and 2007–08, with a 13 process by parliament and its committees percent increase recorded in the final year of could significantly help galvanize the norms that period. Even with a complement of 42 of responsible and accountable behavior on full-time equivalent employees in its ATIP the part of ministers and senior public ser- Office, the department has struggled to meet vants who are charged with translating the its legislative and TBS policy obligation to act into practice. To perform its scrutiny process requests in a timely manner. In its function, parliament receives the annual re- 2007/08 annual report to parliament on its port on the overall operation of the act from administration of the ATIA, the department the TBS and the annual reports from the 255 noted, “There is a limited pool of ATIP an- institutions covered by the act. alysts across the ATIP community and there The information commissioner of Cana- are substantial time and cost implications for da, an independent officer of parliament, re- the department to ‘grow its own’ ATIP ana- ports annually on the operation of the act, lysts” (Government of Canada, Department including complaints about refusals of access, of Foreign Affairs and International Trade interpretations of exemptions, delays, issues 2008). Information management and infor- related to fees, court cases, and other matters mation technology challenges compounded (Thomas 2003). From time to time, past in- the department’s problem. A professional de- formation commissioners have issued special velopment program and a departmental reports dealing, for example, with the need working group on information management to modernize the ATIA in light of changed and information technology were among the circumstances since its 1980 adoption. (Fur- department’s responses to meet these chal- ther discussion of the role of the information lenges. Across government, competition for commissioner in terms of the interaction of Overview of the Canadian Access System 25 his or her office with parliament, ministers, joint resolution of the House of Commons and the public service is presented later in and the Senate for a seven-year renewable this report.) term.There is also a privacy commissioner of Until 2004, there was no parliamentary Canada, who oversees the operation of two forum to which such reports might automat- pieces of privacy legislation passed by parlia- ically be referred for review. As a result, par- ment. There has been discussion of combin- liamentary neglect of the reports was the pre- ing the access and privacy functions in a sin- vailing pattern. Since 2004, however, there gle parliamentary agency, as exists in a has been a Standing Committee on Access, number of Canadian provinces; but this op- Privacy and Ethics (commonly referred to as tion now appears to have been abandoned the ETHI committee) in the elected House because there is more than enough to do in of Commons. The ETHI committee has pe- both fields on the national level to keep two riodically taken up the study of access legisla- commissioners fully occupied. The existence tion, the reports from the information com- of two offices covering the closely related missioner, and the spending estimates of that fields of access and privacy means there is a office. Access matters are also occasionally the need for coordination; however, at times, the subject of discussion in the appointed upper commissioners have taken different public house, the Senate, particularly in the Standing positions on sensitive public policy and pub- Committee on Legal and Constitutional Af- lic management issues. fairs. In positive terms, such parliamentary in- The OIC investigates complaints from vestigations and debates can put political citizens who believe that they have been de- pressure on ministers and senior public ser- nied their rights under the ATIA. Citizens vants to respect the requirements of the ATIA who have been denied information have the to avoid public criticism. On the downside, right to complain to the OIC within 60 days however, when the parliamentary discussions of the denial. Unlike his or her counterparts become highly negative and accusatory, they in some provinces, the information commis- may trigger a defensive, controlling approach sioner does not have the authority to issue to the release of information by the political binding directives regarding the release of in- executive and the public service. (The dy- formation. The limitation on the powers of namics of interaction between the external the OIC has been controversial, leading to a and internal components of the access process debate over the respective merits of an om- are discussed more fully below.) budsman model versus a quasi-judicial mod- el (La Forest 2005). The ombudsman model is based on investigation and moral suasion, 4.8 The Office of whereas the quasi-judicial model provides the Information authority for investigations and issuance of Commissioner legally binding orders. The debate and the evidence are too extensive to be explored As an officer of parliament (also referred to fully in the space available here, but they as a parliamentary agency), the information clearly have relevance to the type of access commissioner is appointed by the cabinet on culture and the climate of interpersonal rela- the recommendation of the prime minister; tionships that exist within government and and he or she is confirmed in the office by a among the several groups of actors involved. 26 Advancing Access to Information Principles through Performance Management Mechanisms As an ombudsman-type office, the OIC usually garner media attention. The further relies on investigation, mediation, publicity, opportunity for the commissioner and com- and persuasion to promote the cause of plainant to appeal to the courts may be an- greater transparency. To perform its duties, other incentive for compliance with recom- the OIC may compel the production of doc- mendations to release documents. uments (with the notable exception of so- called cabinet confidences), summon witness- es and compel them to testify under oath, and 4.9 An Evaluation refer evidence of serious violations under sec- of Canada’s tion 67 or section 67.1 of the ATIA to the at- Access System torney general for possible prosecution. On completion of an investigation, the commis- Although the government of Canada was sioner will issue a report to the head of the seen initially to be in the vanguard of juris- institution involved and to the complainant. dictions in terms of its access legislation and As noted, any recommendation regarding the its commitment to fulfilling its purposes, release or nonrelease of a document is not there have been problems and criticisms legally binding. In the spring of 2009, Robert (Tromp 2008). Some of the criticisms have Marleau, then information commissioner of related to the policy contained in the legisla- Canada, advocated for order-making power tion. An example of this would be the exclu- with respect to administrative complaints sions and exemptions from the general prin- under the ATIA, but not for general order- ciple of the public’s right to know. The making power. All of the commissioners to leading example of limits in the act is the ex- date have regarded the ombudsman nature of clusion of cabinet confidences. Anything in their role to be positive because it enables the the flow of advice to the cabinet is generally OIC to adopt an advocacy role on behalf of outside the scope of the act; not even the in- the ATIA and, at times, the complainant. It formation commissioner may inspect such has been argued that such a role would be in- documents as part of the appeal process. appropriate if the commissioner had judge- There also have been ongoing debates over like powers to order the release of a docu- the need to make existing exemptions more ment against the advice of responsible ministers precise and to add a “public interest” over- and senior public servants. It also has been ride clause that would allow the release of suggested that employees of the institution information within exempt categories if the are more likely to cooperate with the infor- benefits to the public interest outweighed mation commissioner in identifying a com- the potential harm resulting from release. promise that can meet the citizen’s needs be- Beyond the debates over the scope and cause the institution may still go to court to content of the ATIA, most of the criticisms protect its position. have been related to how it has been interpret- As mentioned, the commissioner may ed and applied by governments and the public also make the case for the release of certain service and enforced by the OIC. As Roberts types of information through his or her an- (2002a,b) has noted, there can be strong incen- nual and special reports to parliament, in ap- tives for ministers and public servants to with- pearances before parliamentary committees, hold information. Some reasons for secrecy are and in public speeches and interviews that dishonorable, such as the desire to avoid disclo- Overview of the Canadian Access System 27 sure of wrongdoing or gross mismanagement. fice) that has exacerbated the tensions be- More often, Roberts suggests, the reasons for tween the OIC and governments; withholding information are plausible but in- • use of an “amber light” process involving complete and not balanced by considerations in advanced consultations among access co- favor of release. ordinators, senior officials in departments and agencies, and, at times, personnel in central agencies (such as the Prime Min- 4.10 A History of ister’s Office and the Privy Council Of- Defensive fice) to determine the “political safety” of Adversarialism? releasing sensitive information; • pressures from ministers and/or their po- According to the critics, the evolution of the litical staff for access coordinators to pro- ATIA in terms of its practical operations vide information about applicants, either shows deterioration after the initial support their identity or occupation—a violation for its principles. Roberts (2002a,b; Graham of the Privacy Act; and Roberts 2004) has discerned in the ap- • decisions to leave potentially embarrassing plication of the act a pattern that he labels information unrecorded, to destroy records, “adversarialism.” The term refers to strate- or to manipulate them in other ways that gies and techniques developed by govern- contravene information and records man- ment officials and nongovernment actors “to agement policies inside of government; and exploit or blunt the opportunities created by • as documented in letters and emails (ob- the Act” (Graham and Roberts 2004, p. 117). tained under the ATIA), the erosion of The trend began in the 1990s and appears to trust and the deterioration of working re- be continuing. Examples of developments lationships between the senior levels of the that have undermined the operation of the public service and the OIC so that they act include the following: become very adversarial and legalistic. • use of private or quasi-governmental or- Roberts’ findings are disturbing. He has ganizations to produce governmental serv- been exceedingly resourceful and imagina- ices without extending the ATIA to their tive in uncovering the hidden dimensions of operations; Canada’s access system. However, his exam- • inclusion of nondisclosure provisions in ples tend to involve the politically sensitive new statutes, effectively trumping the op- cases, not the more routine requests for in- eration of the ATIA; formation that constitute the majority of • as a part of governmentwide budgetary ATIP cases. It is difficult to state with cer- restraint, cuts to the expenditures of ATIA tainty whether the small number of high- units that have led to backlogs of requests; profile cases involving actual or potential • frequent resort to the courts by govern- scandals is more representative of a pervasive ments challenging the authority and rul- culture of secrecy than the majority of cases ings of the information commissioner; in which the principles of open government • centralizing of communications policies are upheld. and practices within government (partic- As for the manipulation of records, the ularly around the Prime Minister’s Of- Delagrave report in 2001 (Government of 28 Advancing Access to Information Principles through Performance Management Mechanisms Canada, Access to Information Review Task According to Roberts (2002a,b; 2006a,b), Force 2002) found no “chilling effect” on the downward spiral of mistrust and legalism records creation and recordkeeping. Based that came to characterize dealings between the on a review of files and interviews in seven OIC and the public service reflected more than departments, the researchers found that, in a backlash against the control efforts of govern- nearly all cases, records were created and ments. He argues that the enforcement strategy maintained in accordance with applicable embedded in the ATIA was deficient in two legislation as well as departmental policies major ways. The first deficiency was that the and standards. Moreover, in locations where information commissioner can make only rec- there were persistent recordkeeping prob- ommendations on disclosure and must rely on lems, they usually were caused by organiza- persuasion and publicity to obtain the release of tional factors (such as incompatible informa- information. This ombudsman model of the tion technology systems and poor records information commissioner’s role is contrasted management) rather than by deliberate ef- with the statutory power given to commission- forts to prevent disclosure. It should be not- ers in five provinces (Alberta, British Columbia, ed, however, that the study was conducted by Ontario, Prince Edward Island, and Quebec) to staff of Library and Archives Canada, and was order the release of information. In those juris- done for an internal bureaucratic study team; dictions, Roberts notes, the commissioners critics argue this diminishes the credibility of must be judicious and careful in their com- the study. ments on the conduct of institutions to avoid It is systemic problems—such as refusals of charges of bias in the adjudication of disputes access requests based on the most restrictive under the law. Giving “order power” to com- interpretations of the exemptions, long delays missioners, he argues, does not necessarily mean in finalizing requests, and the fees charged for that the process of resolving complaints must processing—that attract most of the criticism become legalistic and adversarial. Instead, he of Canada’s access process.This is true despite posits, “the informal processes for dispute reso- the fact that more than 70 percent of initial lution may be more effective precisely because requests are granted in whole or in part (TBS the (provincial) Commissioner holds the power 2008a). When access issues are taken up by to adjudicate disputes. Institutions may take the the information commissioner and by the commissioner’s office more seriously and be parliamentary committee, it can lead to resist- more likely to comply with the procedural re- ance from ministers and the public service. quirements issued by the commissioner” (Rob- Confronted with governments and bureau- erts 2002b, p. 667). cracies practicing defensive adversarialism Although Roberts sees the lack of an or- during the 1990s, the information commis- der power as a serious weakness of the ATIA sioner claimed that it was necessary to rely and as a contributing factor to the frayed re- more heavily on his investigative powers, to lationships with the bureaucracy, successive take the government to court more frequent- federal information commissioners have de- ly to clarify his authority, and to escalate the clined the suggestion from parliamentarians rhetoric in his speeches and reports to gain and advocacy groups that they be given such parliamentary and media attention that would general authority. In defense of the ombuds- put pressure on governments to comply with man approach, those commissioners argue the letter and the spirit of the ATIA. that it allows for informal mediation and has Overview of the Canadian Access System 29 proved successful in practice on individual (Roberts 2002b). A similar recommendation cases. The TBS is responsible for compiling was made in the Delagrave report (Govern- statistics on the operation of the ATIA; and, ment of Canada, Access to Information Re- in recent years, it has reported that approxi- view Task Force 2002). mately 70 percent of access requests are As noted earlier in the present report, the granted in whole or in part (TBS 2008a). information commissioner has been publish- However, in 2008–09, the information com- ing annual report cards on the performance missioner recommended that the office have of institutions covered by the act since 1999. order power with respect to administrative Institutions complained, however, about the matters, such as reasonable delays in respond- unfairness of the “letter grade” report cards ing to requests and processing fees. because they covered only one dimension of The second, more fundamental deficiency performance: the percentage of requests that of the Canadian access system, according to were not completed within the statutory 30- Roberts, relates to its complaint-based nature day limit. This is not the place to debate the in which enforcement of the act depends on merits of that and other performance indica- the joint efforts of citizens and the commis- tors of how well the ATIA is operating in sioner. When the ATIA was adopted in the practice. It is enough to say that, for 2007–08, 1980s, the forecast was for 70,000 requests an- the information commissioner adopted an nually when it had become known to Canadi- expanded assessment framework intended to ans (TBS 2008a). Depending on wider devel- provide a broader picture of institutional per- opments within the political system, the formance. Report cards now contain a quali- volume of requests can fluctuate quite dramat- tative and quantitative description of contextual ically. For example, earlier studies reported that factors—such as workload changes, organiza- the number of requests had leveled off in the tional capacity, process improvements, and lead- 20,000 range and had never exceeded 30,000 ership support—that might have affected the in any year (Roberts 2006b, pp. 161–62; Dra- ability of a particular institution to fulfill its peau 2009).According to information supplied obligations under the act (Information Com- by the OIC, the rate of increase year over year missioner of Canada 2009).As is discussed lat- has been in the 6 percent range; and during er in this study, the new contextual, multidi- 2008–09, there were 34,041 access requests re- mensional, and mixed quantitative/qualitative ceived by all institutions. In general, there are a assessment approach by the OIC might be number of reasons—lack of knowledge, the aligned with the internal assessments con- cost, delays, pessimism about the outcome— ducted by the TBS under the MAF. Since fis- why citizens have not made greater use of the cal 2005–06, the MAF has included access to act and have not appealed more frequently to information performance for now 65 (initial- the commissioner when they are denied access. ly 50) of the 255 institutions covered by the Roberts argues that an individual case-by-case ATIA. approach cannot promote a culture of proactive disclosure. To supplement and reinforce the complaints process, he recommends a new 4.11 Recent Developments performance-based approach to measuring and publicizing the compliance of departments and In April 2006, the Conservative Party of Can- agencies with the requirements of the ATIA ada government of Prime Minister Stephen 30 Advancing Access to Information Principles through Performance Management Mechanisms Harper introduced the omnibus FedAA, times to initial requests and long delays in which included a number of reforms to the complaint resolution. These problems were ATIA. As passed by parliament in December the product of numerous factors; but, most 2006, the FedAA extended the coverage of important, they reflect a public service cul- the ATIA to 70 new entities and introduced ture that resists transparency and treats access some new exemptions to protect sensitive in narrowly legalistic terms rather than ac- information in the possession of those new cepting openness as a fundamental principle. entities. During the 2006 election campaign, The ATIA units and operations within de- the Conservative Party had promised more partments and agencies were seen to be iso- fundamental changes to the act (Tromp lated, under-resourced, and lacking in profes- 2008, chs. 3, 4). But, once in office, it released sional identity. a discussion paper to elicit the views of Second, participants agreed in general Canadians and parliamentarians on issues terms that an ideal ATIA system should re- that it described as not having been the sub- flect the principle that most information is ject of sufficient consultation and debate routinely made public. There should be a outside and inside government. The discus- service culture in which requests and com- sion paper (Government of Canada 2006) plaints are processed efficiently and with provided the focal point for consultations courtesy. Ideally, access coordinators would with some of the stakeholders in the access see requests as an opportunity to serve citi- community. zens and to support democracy rather than as One such consultation took place at the a threat that could get them in trouble with request of the information commissioner their administrative superiors and even the and was organized by the Public Policy Fo- minister at the head of the department. In a rum, an independent, not-for-profit organi- perfect world, access coordinators would zation dedicated to the improvement of gov- have a sense of belonging to an identifiable ernment performance. In June 2008, it held professional group, and there would be a vi- a one-day workshop, titled “Modernizing able career path for them to pursue in the ac- the Federal Access to Information Regime.” cess field. The workshop brought together 40 experts Third, moving from the deficient existing from government, the private sector, civil so- state of the ATIA system to more closely ap- ciety, and the academy. Canada’s information proximate the ideal was seen to require a commissioner made opening remarks to the number of components: top-level commit- gathering.Whereas the government’s discus- ment and support from ministers, senior pub- sion paper focused narrowly on possible leg- lic servants (deputy ministers), parliamentari- islative changes to the ATIA, the workshop ans, and civil society; improved technology discussions ranged far more widely to in- and a more reliable records management sys- clude political, administrative, and cultural tem across government; more education and factors that affected the operation of the act training, including ongoing professionalization (Public Policy Forum 2008). of the access coordinators; adequate resources At the risk of oversimplifying, it can be and a performance management framework said that three overarching themes emerged with appropriate evaluation criteria and in- from the workshop. First, Canada’s access centives that support access as a fundamental system was characterized by slow response value of the public service. Overview of the Canadian Access System 31 Although there was a consensus within Public Policy Forum workshop participants the workshop on the general themes, there that there is a “culture of bureaucratic secre- was less agreement on the details of how to cy” that undermines the ATIA in practice achieve the desired improvements. Regarding may be too broad a judgment to make about the focus of the present report, the link be- an access system that covers 255 institutions. tween a rigorous performance management Some institutions occupy strategic locations framework for access matters and the promo- in the policy process and handle highly sen- tion of a culture of transparency was seen as sitive information. For example, the Privy crucial. A performance measurement, report- Council Office, which supports the prime ing, and management system that recognizes minister and cabinet, is at the center of the and even compensates public servants for re- governing process. It is one of the most pop- specting and enabling the principles of access ular targets of access requests; but the sensi- to information might send a strong message tivity of the files it handles means that cau- that transparency was a fundamental value of tion, risk calculations, delays, and limits must democratic government. However, several be involved with the release of information. participants suggested that public servants Lower-profile entities handling more in- never face consequences or sanctions for not nocuous information will be the target for releasing information. “Unless there is an at- fewer access requests, and there will be less titudinal change so that public servants don’t risk attached to the release of information in feel they are going to get into trouble every their possession. In summary, rather than a time they release information,” one work- single public service culture of access to in- shop participant observed, “then it’s a hope- formation, there are conceivably several cul- less situation” (p. 7). Participants agreed that tures across the wide expanse of the Canadi- political will and political leadership are key an public sector. This qualification must be to improving the ATIA system. kept in mind as the study moves to an overview description of the divergent inter- ests, perspectives, and incentives that swirl 4.12 One Access Culture, around the ATIA in practice. or Many? The claim by successive information com- missioners, by academic researchers, and by 5 Divergent Interests, Perspectives, and Incentives Relating to Access Issues As noted in chapter 1, this study looks be- Institutional arrangements and procedures yond the adoption of formal access laws and may be both constraining and enabling for interpretations by the courts to examine the participants. Constraints may be formal role that leadership, culture, incentives, and (laws, regulations, administrative policies, re- resources have played in the practical evolu- porting requirements, and so forth) or infor- tion of Canada’s ATIA. With this focus it was mal (behavioral norms and values embedded necessary to go beyond the examination of in organizational cultures and pressures to documents and online sources to identify the conform). Sanctions and rewards work to af- more hidden, informal dimensions of the ac- fect the actions and decisions made by par- cess process, including the incentives and ticipants on a number of levels of the access motivations that guide the various institu- system’s governing structure. tions and actors involved. This chapter cau- The underlying motivations and intentions tiously generalizes about the interactive dy- of the public officials—both elected politicians namics of the process. Given the limits of the and career public servants—may be singular or study and the space available, the following mixed along the following lines: appropriateness analysis of the motivations and incentives (what ought to be done according to the law, that drive the behavior of ATIA actors is the circumstances, and the interests of the or- necessarily impressionistic and incomplete; ganization), instrumentality (what will benefit but it serves to reinforce the point that there me), and orthodoxy (how things are done are both divergent and shared interests and around here).Various incentives and disincen- perspectives that shape how Canada’s access tives affect how participants in the access sys- system works in practice. tem respond in particular cases to requests for After more than 25 years of operation, the the release of information (Gill and Hughes ATIA has become institutionalized within 2005). Although institutional arrangements, the governance structure. The word institu- processes, and shared meanings lend a degree tion is used here to refer to a system of estab- of stability and predictability to interactions, lished procedures and patterns of interaction leaders and their actions can transform values, that regulate or, less precisely, shape the be- attitudes, and behaviors. Cultural change, haviors of organizations and individuals who however, is typically a slow, incremental, and constitute Canada’s complex access process. uncertain process. 33 34 Advancing Access to Information Principles through Performance Management Mechanisms The premise for the discussion to follow the access cultures within them. Different is that public officeholders—both elected groups of users bring different motivations, politicians and appointed public servants— expectations, and capabilities to use the ac- probably act in most instances on the basis of cess system. mixed motives rather than one-dimensional Citizen Requesters self-interested calculations attributed to them by public choice theorists. A second, related Very few “ordinary” citizens make use of the point is that the following descriptions of at- ATIA.When they do, it is usually because of titudes and behaviors of the actors within the an issue personally related to them. Their re- access process constitute “tendency” state- quests often are general in nature, partly be- ments rather than predictive models of how cause they are not well informed about who ministers, senior public servants, access coor- does what in government and where docu- dinators, information commissioners, parlia- ments might be located. The law and the mentarians, the media, and requesters will TBS policy and guidelines require that access behave in all instances. coordinators contact requesters to clarify what information they are seeking. Within the general public, there is a small 5.1 Access Requesters number of highly motivated, sometimes well-informed applicants who want to see On the premise that access laws are primarily every record that exists and to see it prompt- meant to support democratic engagement ly. They often have little appreciation for the and accountability, the discussion of different process involved in making larger, more roles will begin with access requesters. The open-ended requests; the impacts on the reg- user population for the ATIA is diverse, but ular operations of the institution; and the fact can be grouped into these categories of re- that there can be a backlog of requests, in- questers: frequent users (such as advocacy cluding some sizable, complicated, and time- groups, businesses, and consultants), the me- consuming requests. Educating applicants dia, parliamentarians, and the general public. about their rights, the exemptions, delays, Over time, the relative percentage of requests fees, and so on can be time consuming, but it from each of these groups has changed some- is vital to the success of the act in the real what. For example, opposition parliamentari- world. ans and their staff have emerged over time as Experienced, Serial Users major users of the act. However, businesses have remained major users throughout the Experienced, professional requesters—such as act’s existence. Within the category of the businesses and for-hire consultants—know general public, there are both first-time, what they are seeking, are persistent in their poorly informed users and frequent, knowl- demands, and often want access to informa- edgeable users, including consultants who tion that is highly sensitive. Their incentives may be hired to pursue access requests on are often material—gaining a competitive ad- behalf of other individuals and organizations. vantage over other businesses or wielding in- The size and sophistication of the applicant fluence in the corridors of power inside gov- pool affect the access processes inside particu- ernment. Serial requesters tend to be focused lar institutions and the professionalization of in their use of the act. Their requests are often Divergent Interests, Perspectives, and Incentives Relating to Access Issues 35 complex and voluminous, requiring staff with- treatment, there is some evidence of “sensi- in an institution to invest significant work and tivity ratings” being applied to media requests time completing the processing of the requests. and of an “amber light” process for handling Fees can be charged and time extensions can them. Referral of media requests to deputy be used in connection with the processing of ministers, ministers’ offices, and even to cen- such large requests. Nonetheless, the “com- tral communications personnel in the Prime mercial” nature of some major requests leads Minister’s Office can be the source of signif- to at least ambivalence, if not outright resist- icant delays. It is legitimate for ministers and ance, within the public service, some mem- senior public servants to manage the commu- bers of which believe that government should nications process, but not if this “manage- not subsidize the intelligence-gathering func- ment” undermines the ATIA goals of open- tion of companies, industry groups, and well- ness, timeliness, and accountability. heeled consultants. Such applicants are, of Parliamentarians and Their Staff course, exercising their legitimate rights under the ATIA, and the disclosures produced by A major role of parliament within the Cana- their perseverance may serve the wider public dian political system is to scrutinize both the interest. performance of the prime minister and cab- inet and the way money is spent and pro- Media Requesters grams operate within the public service. The Among the experienced users of the ATIA goal is to promote accountability to the pub- are media requesters. Members of the media lic. Parliamentarians who are part of the gov- see it as part of their professional role to chal- erning party have less incentive to engage in lenge government elites who try to control the critical review of government actions for information and use “spin” to present it in several reasons: because embarrassing revela- the best possible light. A number of Canadian tions could lead to a loss of support from the journalists rely heavily on the ATIA process electorate, because party loyalty and party to obtain material for printed and electroni- discipline tend to be strong, and because they cally distributed stories. In doing so over the may not want to reduce their chances of be- years, they have published stories that forced ing appointed to cabinet by the prime min- governments to explain and defend actions ister. This leaves performance of the scrutiny and inaction that became controversial as a function to the efforts of opposition parlia- result. In this way, the media using the ATIA mentarians. Their efforts are partly motivated becomes a source of transparency and ac- by a desire to provide Canadians with better countability within the political system. government by exposing policy mistakes and However, the problems of delays involved mismanagement. However, when parliament with the release or nonrelease of information increasingly resembles a permanent election and the fees charged for the reproduction of campaign, the frequent goals of the opposi- documents have frustrated journalists work- tion are to embarrass the government and to ing toward deadlines and having to file mul- gain ground in the polls. tiple stories for mainstream media, Web sites, Opposition parties in parliament and their and blogs. Although legally under the ATIA political staff have made growing use of the the occupation and identity of the requester ATIA over time. Political staff in the offices of is to remain confidential to ensure equal leaders of the three opposition parties, in the 36 Advancing Access to Information Principles through Performance Management Mechanisms research bureaus that support the party cau- 5.2 Public Servants cuses,5 and in the offices of individual parlia- mentarians have become knowledgeable in Responsible for their use of the access process.With its delays, Providing Access the ATIA process does not fit with the events-driven and immediate nature of the Access to information and privacy coordina- parliamentary process; but opposition parties tors face the complicated and delicate task of have learned to put multiple requests into the implementing the access system. They have pipeline and wait patiently for the stream of to deal with requesters, handle requests on returns eventually to flow. The government time, and manage the internal complexities naturally wishes to manage the process so as of compiling the necessary information. Sen- to avoid being blindsided by opposition par- ior managers, as well as ministers and their ties using information against it. political staff, have an interest in controlling Whether members of parliament and and administering the flow of public infor- senators use the ATIA process in a construc- mation and its impact on public opinion and tive manner to enforce accountability and the political process. The actors included in improve performance or with a negative in- the oversight and processing of information tent simply to attack the government and are subject to different sets of incentives and gain political support reflects the evolving pressures that shape their behaviors. The co- political culture of the institution of parlia- ordination and disposition of these actors in- ment and the issues on the agenda at a given fluence the effective performance of the ac- point in time. The use of open-ended and cess system. frequent access requests from parliamentari- The Initial Contact: Access ans in recent years reveals the highly partisan Coordinators atmosphere of parliament, the determination of opposition parties to score points against The position of access coordinator has been the governing party, and the defensive efforts described as demanding and stressful. Over by governments to manage the disclosure time, the role has become more professional- process. It is not so much that parliamentar- ized, better recognized and compensated, and ians lack information; in fact, they are over- better supported within departments and loaded with the flow of information. How- agencies. But tensions are inherent as coordi- ever, because the information considered nators may be caught between the demands most relevant for their short-term political of the law (to provide access) and the de- purposes is usually not available under ATIP, mands of their superiors (to maintain secre- they often take out their frustration by blam- cy). As noted earlier, employees in the various ing access coordinators, top-level public ser- institutions of the public service eventually vants, and their political opponents in office develop an understanding that certain behav- for allegedly putting pressure on the public iors in relation to the access process are ap- service to withhold material. propriate under the law, instrumental in terms of their own career prospects, and or- thodox under the unwritten and informal 5 The term caucus refers to the private meetings and activities rules of how things are done in their depart- of all parliamentarians in each of the parties. ments. These are the cultural components of Divergent Interests, Perspectives, and Incentives Relating to Access Issues 37 the access system that are difficult to docu- are communications specialists who are ac- ment and to change in a planned way. customed to crafting messages to avoid con- Direct pressures on coordinators from troversy and who are suspicious of disclosing ministers, their political staff, and senior de- “raw” data that are open to conflicting inter- partment officials probably are rare. The vast pretations. In some instances, department majority of requests are not referred to senior lawyers become involved to ensure that dis- management or the minister’s office for ap- closures do not expose the department to proval. However, in bureaucratic cultures that embarrassment and legal liabilities. Finally, tend to be risk averse, there is a recognition there are exempt political staff and senior of the risks and potential consequences of public servants close to the minister who disclosing records that could cause harm to want to control the process to avoid potential outside parties, embarrass the minister, dam- embarrassment for the minister and/or the age the reputation of the institution and its department. management team, and (far from least im- Coordinating the work of generating re- portant) have negative consequences for the sponses takes time, and the requirement for career prospects of the coordinators them- multiple levels of review can lead to missed selves. As is discussed later in this report, there deadlines for the release of information. De- are tangible and intangible penalties for poor lays also may be caused by the volume of re- performance by access coordinators (such as quests (especially at certain times of the year) poor report cards for delays), but there do and by problems with information technol- not seem to be commensurate rewards for ogy and records management. Staffing limi- doing the job well and meeting the goals of tations also contribute: the staff working with the ATIA. coordinators occupy entry-level positions, Previous surveys of access coordinators in- there is significant turnover in such positions, dicate that they strongly support the princi- experienced staff is in short supply, it takes ples of the ATIA, but are frustrated by the time and training for institutions to develop way that it is used and by the complications staff capability, and there are not the same and constraints associated with its operation. readily identifiable career paths that exist for Opposition members of parliament, the me- many other occupations in the public serv- dia, advocacy groups, and some individuals ice. These staffing challenges lead to back- file highly general, vague requests that seem logs, delays, and mistakes. to have the public service doing their research In general terms, coordinators have dele- for them. General requests covering broad gated authority to make decisions on the dis- topics mean that coordinators have to seek closure of information; however, delegation intra- and interdepartmental cooperation. arrangements vary across departments and For a number of reasons, the creators of agencies. In strict legal terms, the deputy min- files and the units that control them may be ister has no authority to overrule any access- reluctant to release them. For example, pro- granting or -denying decision made by the gram managers and service delivery person- public servants to whom authority has been nel may view the search for and retrieval of explicitly granted. In practice, however, ac- records as interfering with their primary du- cess coordinators recognize that it is appro- ties, especially when units are understaffed priate and prudent to refer nonroutine, sen- and overworked. In most departments, there sitive requests to the deputy head of the 38 Advancing Access to Information Principles through Performance Management Mechanisms institution and perhaps to the minister’s of- dividuals and institutions for many different fice. It is the coordinators, though, who are dimensions of performance. Deputy heads are on the front line and feel the initial brunt of formally accountable to the prime minister requesters’ frustration and criticism—and and the cabinet who appoint them, to their sometimes those of the OIC staff acting on individual ministers, and to such central agen- behalf of requesters appealing request denials. cies as the TBS and the Privy Council Office. As regulators sworn to uphold the ATIA, Informally, they have a sense of responsibility OIC staff have been known in an earlier pe- to and are influenced by the numerous stake- riod to be highly aggressive in their dealings holders of the institutions they lead, including with coordinators. their peers at the deputy level across govern- ment, their employees, outside organizations Senior Managers and groups, and the parliamentary committees Program officials who control files and the before which they appear on a regular basis. senior public service leadership within insti- Included in the stakeholder category to which tutions seldom welcome ATIA requests. At they must be responsive is the OIC, which best, such requests are regarded as a nuisance; can compel the production of documents and at worst, as a threat of potential embarrass- the appearance of department staff, but cannot ment for the officials, the department, and order the release of documents. The desire to the minister. A summary of discussions be- avoid a negative report card and adverse pub- tween the Delagrave task force and access licity from the OIC must be balanced with coordinators in 2001 noted considerations of maintaining ongoing posi- tive and trusting relationships with formal and Some participants deplored a perceived lack informal stakeholders. of accountability for compliance with the Ministers and Political Staff Act in some program areas and a perceived lack of commitment to the spirit of the Act Ministers and their political staff have the by some managers at all levels, including closest, most immediate working relationship senior management (Government of with deputy heads and other senior public ser- Canada, Access to Information Re- vants who are designated as responsible for the view Task Force 2002, p. 125). administration of the ATIA. The mere exis- tence of the act challenges the increasing em- The introduction of the MAF in 2003, phasis within government—no matter which with the provision that deputy heads be ac- party is in office—on the political manage- countable for the administration of the ment of the government agenda, including ATIA, was meant to be a counterweight to the avoidance of surprises and crises, tight the pressures and incentives favoring secrecy. centralized message control, the use of spin (Whether MAF incentives are strong enough to interpret events in the most favorable to offset the informal pressures at the politi- light, getting out in front on negative stories cal level and in the bureaucracy for damage to frame the issues before they hit parliament control and keeping ministers out of trouble and the media, and the development of ac- will be discussed below.) tion plans to manage issues through the news It must be recognized that senior public cycle to limit the political damage to the servants are accountable to many different in- government and the minister. Political dam- Divergent Interests, Perspectives, and Incentives Relating to Access Issues 39 age control by political staff in ministers’ of- advice to the prime minister and other min- fices and by the Prime Minister’s Office at isters.Therefore, there is the danger that min- the center of government is sometimes isters and their staff will put pressure on sen- achieved at the expense of the anonymity and ior public servants to delay the release of professional reputations of public servants who information to accommodate the issues man- are not allowed by law and constitutional con- agement approach that tries to prevent criti- ventions to defend themselves publicly. cism in parliament, in the media, and from Ministers and senior department officials groups within society. want to manage communications around At the time of writing (June 2010), the is- sensitive issues, including access to informa- sue of political interference in the access tion requests. Because they are challenged process is being reviewed by the House of constantly by the opposition, the media, and Commons’ ETHI committee. This review advocacy groups within society, ministers began after allegations that political staff had need to anticipate criticism and be prepared sought to retrieve and/or prevent the release to answer their critics. This involves more of information that should be made public than simply defending their records and rep- under the ATIA. The minority Harper gov- utations; it also involves building public un- ernment has blocked political staff from ap- derstanding of and support for what govern- pearing before the committee, which has an ment has done or is promising to do. opposition majority and is chaired by an op- The problem arises, however, when the position member of parliament. The com- political process of contentious issues man- mittee has appealed to the Speaker of the agement undermines the access process in House of Commons to determine whether direct and indirect ways. Directly, it can lead the political staff’s refusal to honor a sum- to delays because sensitive requests are re- mons and appear before the committee con- ferred up the line to the top of the institution stitutes contempt of parliament, an offense to be checked for their political safety. This that carries potentially serious penalties. At checking involves exempt, political staff the same time, the OIC is investigating the working in the Prime Minister’s Office or role of exempt political staff in the access for individual ministers. Because managing process. their bosses’ time is part of their role, they may act as filters for which matters are brought to ministers’ attention. Most politi- 5.3 The Information cal staff see their primary duty as helping Commissioner as their ministers look good—including keep- Champion? ing them out of trouble. There is the risk that overzealous, usually relatively young and in- The small constituency of active support for experienced political staff will intervene in access principles in society, the limited the access process, claiming to be acting on knowledge of the principles and practices of behalf of the minister. Although there is a the ATIA within parliament, the tight con- code of public service values and ethics that trol by the prime minister and the cabinet applies to career public servants, no such over the legislative process and parliamentary code of conduct exists for the partisan indi- scrutiny of the administration, and the am- viduals who provide political support and bivalent stance of the senior public service 40 Advancing Access to Information Principles through Performance Management Mechanisms toward the act all combine to make the in- and cabinet minister, and a former clerk of formation commissioner and his or her staff the House of Commons. Past commissioners the most visible, consistent champions of the not having been appointed from within the public’s right to know. Compared with the office and lacking direct background in the breadth of its mandate and the number of in- access field may have meant that senior staff stitutions covered by the ATIA, the commis- in the OIC have been more influential than sioner’s office has limited financial and hu- otherwise would be the case in shaping the man resources. It does not have a formal approach of the office to securing compli- educational mandate; but through its reports, ance with the ATIA. appearances before parliamentary commit- The “model” commissioner has to bal- tees, and speeches by the commissioner and ance the roles of educator and champion of other staff, the OIC is able to generate par- the actors (particularly public servants) who liamentary, media, and public attention on are expected to make the access system work access issues. In the absence of an extensive with the roles of monitor and inquisitor for network of outside advocacy groups pro- those actors (especially ministers and their moting the cause of open government, there political staff ) who might wish to bend or is the danger that the commissioner will be- break the access rules. In broad terms, com- come identified in the media and in the pub- missioners may choose between a relatively lic’s mind as a kind of “super hero” who can soft, diplomatic approach and a hard, con- single-handedly advance the access cause frontational approach. The stance of a partic- against the ignorance, indifference, or resist- ular commissioner will be shaped by the is- ance (passive or active) on the part of minis- sues on the access agenda at the time, by the ters and the public service. responses of governments to those issues, and The background, personality, leadership by his or her own personality and leadership style, and credibility of the commissioner are style. Three of the four commissioners to important to how the office interprets its role date have been described as following a firm, and how effectively it works with the other but nonconfrontational approach; one com- institutions and individuals who constitute missioner (the former member of parliament Canada’s access system. Commissioners are and cabinet minister) was seen to be more appointed by the cabinet on the recommen- aggressive and legalistic in his approach. Even dation of the prime minister. Following the the commissioner who, over time, acquired a House of Commons’ ETHI committee re- reputation for being combative spoke early view and comment on the nominee, there is in his term as follows: “I prefer to conduct confirmation of appointment for a seven- my investigations by consent and coopera- year term by a joint resolution of both hous- tion. Our normal modus operandi is to meet es of parliament. with government officials, to receive records Over the past 25 years, four commission- which are voluntarily produced. Officials are ers have been appointed.6 They have come seldom put on oath and recorded during to the office with varied backgrounds—a their evidence.” 7 As an ombudsman-type of- former penitentiary ombudsman, a former fice, the success of the OIC depends in large journalist, a former member of parliament 7 Remarks by Commissioner John Reid to the External Ad- 6 The fifth commissioner, Suzanne Legault, was appointed visory Committee of the Access to Information Task Force, on June 30, 2010. June 20, 2001. Divergent Interests, Perspectives, and Incentives Relating to Access Issues 41 measure on the thoroughness of the investi- 5.4 Conclusions gations, the mediation and persuasion skills of the staff and the commissioner, the repu- The many and complicated relationships tation of the office for allegiance to the law among the various institutions and individu- rather than advocacy for the complainant, als involved in the access world are dynamic and its fairness in dealing with department and shifting in content and tone. Whereas staff. controversial, high-profile cases garner par- Like other officers of parliament, the in- liamentary and media attention, the vast ma- formation commissioner is in the trust busi- jority of access requests are processed in a ness in several senses of that phrase (Thomas routine manner that does not lead to com- 2008d). First, the OIC was created by parlia- plaints to the OIC. The ATIA process cer- ment to contribute over time to greater pub- tainly could be improved. It qualifies as a gi- lic trust in government. Second, parliament gantic understatement to say that much has must trust (up to a point) that the OIC will changed in the broader external environ- fulfill its mandate, and individual parliamen- ment and the internal workings of govern- tarians must avoid interfering in the resolu- ment since the ATIA was brought into force tion of individual complaints about the non- more than 25 years ago. The act needs to be release of records.Third, individual Canadians modernized to reflect changed realities. must put their trust in the information com- At least as important as modernizing the missioner as a neutral, impartial, and objec- legislation, however, is the need for stronger tive professional, committed to upholding political and bureaucratic commitment to the principles of the ATIA. Fourth, although the principles of the act. Governments have some tension is inevitable, there must be tended to see the ATIA as just another ad- some degree of trust between the OIC and ministrative process, rather than as a statutory the departments and agencies covered by the program that deserves adequate funding and ATIA. Such trust takes time to develop and staffing to be effectively implemented. This can be lost in a single event—a minister’s of- general attitude by governments carries over fice or a public manager trying to cover up a into central agencies such as the TBS, which problem, or the OIC publishing an ill- often—but not always—expects institutions informed and unfair report about the actions to absorb access costs into their ongoing op- of an institution. The information commis- erations. Because the administrative heads of sioner cannot pull his or her punches to stay those institutions (usually deputy ministers) on friendly terms with a particular institu- face multiple pressures and conflicting incen- tion and its leaders. It is a matter of finding a tives, they are not likely to put the needs of balance between working with departments access units ahead of other departmental pri- and agencies as an educator and consultant orities. This makes such units vulnerable and using criticism and publicity to enforce when budgets are tight. accountability. A certain amount of mutual As indicated by the analysis in this study, wariness necessarily characterizes the rela- the nature and severity of the act’s deficien- tionship. Ideally, tensions will be reduced cies and its implementation are naturally through the development of a culture of viewed differently by the various stakehold- shared understandings, mutual respect, and ers in the access to information community, conditional trust. both inside and outside of government. The 42 Advancing Access to Information Principles through Performance Management Mechanisms diverse interests, incentives, and motivations The next chapter examines the MAF, of the numerous institutions and individuals which was introduced in 2003–04 to provide involved lead to complex interactions, ten- a basis for annual appraisals of senior public sions, and ongoing negotiations that make it managers in select institutions within the difficult to reach agreement on changes to government of Canada. An understanding of legislation, administrative policies, and the the MAF and its operations is necessary back- level of financial and human resources re- ground knowledge to determine whether the quired for the access system. This must be re- inclusion of access matters in the framework membered when assessing the potential and will promote greater voluntary compliance the limits of reforms that might be undertak- with the ATIA and perhaps counterbalance en within the structures and management some of the pressures and incentives that push processes of the public service alone. toward secrecy. *** 6 Origins, Elements, and Evolution of the MAF 6.1 Origins of the MAF organized around four commitments.The first commitment was to a citizen focus built on In the mid-1990s, a consensus emerged the understanding that the federal govern- within the Canadian federal public service ment exists to serve Canadians and that all its that—although always well intended and activities should be carried out and assessed in usually based on solid foundations—previous that light. The second commitment was to efforts at measuring performance, setting values, particularly the identification of the standards and benchmarks, and promoting values that must be central to the public serv- improvement were not coherent, coordinat- ice. The third commitment was to results, an ed, or consistently effective. This consensus emphasis on harmony with contemporary led to a meeting involving senior public ser- public and private sector thinking about ac- vants from all levels of government and aca- countability in which outcomes are of greater demics.The meeting resulted in an admission importance than processes. The final commit- that much of the public service had very lit- ment was to value for money and cost effec- tle idea of how satisfied Canadians were with tiveness (TBS 2000). “Results for Canadians” the services they provided; the recognition led to many initiatives within departments and that this satisfaction was the most important agencies to identify areas for improvement metric of how well the public service func- and to measure performance and service de- tions; and a resolution to create and imple- livery (TBS 2009). ment an outside-in, reasonably standardized While “Results for Canadians” was being tool for measuring service delivery in the developed and implemented, the Modern federal public service (Heintzman 2009). Comptrollership Initiative was looking for In 1997, the TBS was identified as the ways “to reform public sector management management board for the government of and to fundamentally transform federal admin- Canada—a step toward creating a more uni- istration and governance” (Dupuis 2006, p. fied approach to measuring service delivery, 18).The initiative was built on the understand- and performance more generally. In March ing that the expectations of Canadians and 2000, the TBS released a report titled “Results provincial governments about their relation- for Canadians:A Management Framework for ships with the federal government and public the Government of Canada.” The report was service were changing as a result of evolution 43 44 Advancing Access to Information Principles through Performance Management Mechanisms in technology, federalism, and the political cli- performance run parallel to one another left mate. More revolutionary was its assertion that, and right of the arenas. Within the frame are in the 21st century, comptrollership—long un- the six arenas: policy and programs, people, derstood to have significance only with regard citizen-focused service, risk management, stew- to an organization’s budgets, revenues, and ex- ardship, and accountability (Kelly Sears 2009). penditures—must embrace stewardship of re- Public Service Values sources, decision making, leadership, human resources and staffing, as well as the financial Although the specific values and ethics es- side of government. poused by departments and agencies will In 2003, the TBS released the MAF. In vary according to their own mandates and practice, the framework synthesizes the com- challenges, the MAF assesses how well the mitments enumerated in “Results for Cana- appropriate values and ethics are integrated dians” with the methodology developed by into the leadership, day-to-day operations, the Modern Comptrollership Initiative. The and organizational culture of the body in result was a tool intended to be used annually question. Included in this expectation is an by the great majority of federal departments indicator of whether appropriate avenues ex- and agencies to measure performance, im- ist for staff and others to report perceived provement, and management in general; to breaches of values and ethics. provide information to the TBS about depart- Learning, Innovation, and Change ments and agencies and their leadership; and Management to stimulate discussion between the TBS and senior management. Although specific indica- Organizations must commit to continuous tors and methodology have evolved through improvement and learning. Individual and each iteration of the MAF, the major elements organization learning should be not only en- and goals within it have remained stable, espe- couraged but also incorporated in processes. cially in more recent years (TBS 2009). Governance and Strategic Direction All departments and agencies must support 6.2 Components of their ministers and senior officials, while the MAF translating policy into practice. The MAF measures the degree to which this occurs in The framework comprises 10 components or- practice. Departments and agencies should ganized as six specific management arenas have clearly measurable objectives, and their framed by four measurable elements.8 In a program architecture and strategic direction graphic depiction of the framework, public should be congruent with their mandates. service values and learning, innovation, and This expectation also includes the extent to change management run parallel to each other which the accountability of officials and above and below the central six arenas. Gover- structures is aligned with the larger strategic nance and strategic direction and results and purpose of the department or agency. 8 The TBS Web page has a section devoted to explaining and Results and Performance presenting the MAF, including detailed information about assessment rounds I–VII (http://www.tbs-sct.gc.ca/maf- This expectation is centered on transparent and crg/index-eng.asp). appropriate reporting of government functions; Origins, Elements, and Evolution of the MAF 45 collection, analysis, and release of results; and relevant risks to their operations, and to changing practices and processes based on the adapt their processes and practices as indicat- feedback provided by results. Both quality and ed to minimize risk. The MAF examines the neutrality of evaluation are assessed, as is the de- degree to which decisions are informed by gree to which evaluation is consistently incor- risk management, and the extent to which porated into plans for the future. risk management awareness is factored into day-to-day operations at every level. Policy and Programs Stewardship This indicator examines the in-house ability of each department or agency to conduct rigorous Organizations must make efficient and ap- policy analysis and to develop and implement propriate use of the resources they are pro- programs that best meet the needs that the or- vided and ensure that they are spent in a ganization exists to fulfill. The MAF requires manner consistent with the policies, priori- departments and agencies to consult both with ties, and values of the Canadian government stakeholders outside of government and with and people. Information management is an relevant central agencies and other offices. element of this dimension of accountability that requires effective use of information People technology and compliance with laws con- Staff retention and job satisfaction are crucial cerning privacy and access to information. elements of this indicator; but it also includes This element also includes project manage- continuous education and human resource ment and procurement. development, recruiting, and ensuring that Accountability the public service workforce is representative of Canadians themselves. Each workplace The MAF identifies accountability not only as should promote collaboration and both appropriate use of and reporting on resources; physical and psychological wellness. but also as the creation of processes to ensure adequate reporting, assigning responsibilities Citizen-Focused Service according to capability, and establishing clear This indicator examines the degree to which lines of responsibility. Deputies should dele- appropriate services are made available to all gate appropriately, officials should understand Canadians, with an emphasis on the availabil- the authority that has been delegated to them, ity of services in both official languages. and the evaluation of all staff at all levels Services should be provided as part of a should be in harmony with the broader man- whole-of-government approach, wherever date of the organization. possible, to make a citizen’s experience as seamless as possible. The needs of citizens *** should be central to the development and implementation of all new programs and to Not each of the 10 elements is of equal the administration of existing programs. relevance to all departments and agencies; furthermore, the specific measures used to Risk Management assign values for performance in each ele- Departments and agencies are to carry out ment vary, both among organizations and contingency planning, to identify and assess over time. Carrying out the MAF evaluations 46 Advancing Access to Information Principles through Performance Management Mechanisms has changed since 2003, although it has been on priorities and planning (which provides more stable in the more recent past. direction on government priorities and ex- The creators of the MAF declared that it penditure management) and to the Treasury would not become an elaborate and expensive Board (which is responsible for financial, process. There are both direct and indirect personnel, and administrative management). costs involved, both in the TBS and at the de- In addition, MAF submissions from de- partment/agency level. The MAF unit inside partments and agencies, together with TBS the TBS has involved only about 10 employ- analysis of those documents, provide one ba- ees.This small number is possible because the sis for deputy heads’ annual performance ap- actual analyses of the MAF submissions from praisals. A report from the Privy Council Of- departments and agencies are prepared by pol- fice (the department that supports the prime icy and program specialists in other divisions minister and cabinet) covers a deputy head’s of the TBS. This would mean, for example, performance in broad policy and governance that the ATIP Office in the TBS would review matters. A report from the secretary to the department/agency submissions on access Treasury Board (the administrative head of matters. It was estimated by one official inter- the TBS) deals with all aspects of managerial viewed for this study that 300–400 TBS per- performance, but particularly with financial sonnel may be involved with the MAF and human resource management issues.The process in a given year. A significant number TBS report is based on the assessment of the of staff and a sizable amount of their time are performance of the deputy minister and his involved with the MAF in the 60–65 depart- or her department under the MAF. ments and agencies reviewed each year. (In re- The key point about linking the MAF to cent years, the number of departments and these central processes is that potentially tan- agencies has been reduced.) The workload in- gible and intangible consequences are at- volved with the MAF was reduced by the in- tached to the quality of managerial perform- troduction of a TBS/MAF Web portal that ance in departments and agencies. There can enables organizations to upload files electron- be consequences both for individuals and for ically. Reduced coverage by the MAF, as de- institutions. Strong or improved performance scribed below, also has made the process more can lead to rewards, such as better budgetary efficient in generating information and in the outcomes for institutions, earned autonomy staff commitment required. from central administrative controls, and en- hanced reputations with the prime minister and cabinet and the central agencies who 6.3 The Impacts of serve them. Individual deputy heads may the MAF achieve increased compensation, make career progress, and build strong reputations based The MAF is based on the premise that for- on the MAF and the related appraisal process. mal leadership authority and control over re- Poor MAF ratings, on the other hand, may sources should be matched by meaningful lead to penalties in the form of budget re- accountability for performance and results. striction, lessened autonomy, denial of per- In recent years, the MAF assessments pre- formance pay, and diminished reputations. pared by TBS analysts have been used to pre- The combination of sticks and carrots in pare submissions to the cabinet committee the MAF process prompts deputy heads to Origins, Elements, and Evolution of the MAF 47 take it seriously. Despite its relative newness, grade would lead to negative consequences. the framework already has made a crucial Deputy heads were concerned that the MAF difference in modifying leadership and man- documents represented “dumb data” that did agement behavior at the senior levels in most not speak for themselves or said different of the institutions it covers. According to a things to different people. They welcomed former senior TBS official responsible for the the introduction in Round III (2005–06) of MAF, it has become the single most impor- the “context” section on the first page of tant source of information for deputy heads their MAF submissions because it enabled and the TBS on the general state of manage- them to describe the challenges they faced ment performance within institutions. In and to tell their “performance story” in terms large part, this is because the MAF has clari- of how their organizations had improved over fied and consolidated a wide array of mana- time. In subsequent rounds, deputy heads gerial components and initiatives into a have become more certain that it is safe to comprehensive whole.The same official who talk to TBS officials about management prob- praised the MAF as providing a consolidated lems without paying a price for their candor. and integrated framework for performance Some departments have found that the MAF management added that access matters were may bring them help in the form of addition- not a major part of the framework in either al financial and human resources. theory or practice (a point that is discussed Another consideration in balancing re- more fully in chapter 7 of this report). wards and risks inside the MAF process in- The MAF was designed and is operated volved the categories used to describe de- mainly by the senior public service, with lit- partments’ managerial performance levels. In tle interest or involvement from elected min- an interview for this study, a former senior isters. In effect, the senior public service con- TBS official reported that long debates took cluded that it had to improve managerial place over several years concerning the lan- performance, took responsibility and initia- guage that would be both encouraging and tive for doing so, and agreed to a system of supportive and demanding and disciplined. internal accountability to make it happen. The initial four performance levels were The secretary to the Treasury Board (the as follows: major gap, below target, approach- most senior public servant in charge of the ing target, and best in class.These labels were MAF) consulted deputy heads on the design seen to be too judgmental and negative be- of the framework and met with all of them cause all but one of the categories implied after the first round, thus reinforcing the deficiencies in performance. In 2009, the sense of ownership of the process. four performance levels were attention re- Over the six rounds of MAF assessment quired, opportunity for improvement, ac- carried out through 2009, the TBS has ceptable, and strong. According to the TBS, it worked to find the appropriate balance be- gauges the maturity of the practice and the tween a negative, penalizing approach and a capacity of the individual organization in constructive, learning approach in its dealings each area of management so that, in areas with departments and agencies. Through the where new Treasury Board policies are being first three rounds, there was some skepticism introduced (such as internal audit and evalu- and suspicion among deputy heads that the ation), the focus is on progress toward full MAF was like a report card in which a failing implementation. 48 Advancing Access to Information Principles through Performance Management Mechanisms Within the 10 management components, pects of managerial performance, but partic- a number of quantitative and qualitative in- ularly with financial and human resource dicators and related measures (also referred to management issues. The TBS report is based as lines of evidence) are used to assess per- on the performance assessment of the deputy formance. The number of indicators and minister and his or her department under the measures increased over the first three MAF MAF. rounds, peaking at 41 indicators and 134 It is not clear from the outside what rela- measures. In part, this increase reflected re- tive weight is assigned to Privy Council Of- quests by various professional groups within fice and TBS submissions. Nor is it clear the public service to have their activities cov- what actual consequence flows from strong ered by the framework as a way to upgrade or weak performance ratings on any dimen- their status. Management of the access to in- sion of the multifaceted roles of deputy min- formation process within departments and isters, including their most recent MAF agencies was added in 2005–06, partly at the scores. It is clear from the interviews con- request of the information commissioner. ducted for this study that deputy ministers The numbers of indicators and measures take their MAF ratings seriously and have were subsequently reduced and now stand at been known to protest poor scores. MAF as- 21 and 70, respectively. Management of the sessments are discussed by the executive access to information process falls under the teams of departments and agencies, and that indicator for information management, and discussion leads to some cascading effects it involves just two measures, meaning that downward through the various department access considerations do not have a promi- and agency levels. nent place in the overall framework There could be both a reactive and an an- As was mentioned before, the MAF as- ticipatory response to the MAF requirements sessments are one component of the annual within departments and agencies. When the appraisals of deputy heads. The appraisal TBS applies ratings such as “attention re- process consists of a number of components quired” or “opportunity for improvement” and can only be described briefly in the to particular areas of management within de- space available here. On an annual basis, the partments and agencies, it puts those units on head of the public service (who has the dual notice that action will be expected. Howev- title of clerk of the privy council and secre- er, such requirements also mean that the TBS tary to the cabinet) convenes a committee of acquires ownership of the problems within senior officials to provide advice on the per- departments, to some extent; and that they formance of deputy heads—advice that may must follow up to ensure that corrective ac- affect their performance pay and career tion is taken. Presumably, departments and progress. There are two main documents that agencies also try to avoid negative ratings by support the committee’s review process: a re- dealing with deficiencies before they are port from the Privy Council Office (the de- identified by the TBS. partment that supports the prime minister The fact that department and agency sub- and the cabinet) covers the deputy head’s missions and TBS ratings are published on- performance on broad policy and gover- line provides an additional incentive for nance matters; and a report from the secre- deputy heads to address MAF deficiencies. tary to the Treasury Board deals with all as- The current auditor general of Canada, an Origins, Elements, and Evolution of the MAF 49 officer of parliament who reports annually the TBS in November 20089—concluded on management issues, has stated publicly that the MAF was successful and relevant. that she uses MAF assessments to identify The consultants concluded that the MAF problems and to promote managerial im- process was providing “a comprehensive provements within departments and agen- view to both deputy heads and the TBS on cies. The deputy heads of those organizations the state of managerial performance.” The regularly appear before parliamentary com- report suggested that the MAF was “becom- mittees (particularly, the Public Accounts ing a catalyst for integrating best practices Committee of the House of Commons) to into departments and agencies.” Less posi- answer for the performance of their organi- tively, the consultants found that the report- zations; and there is, at least, the potential for ing burden associated with the MAF could MAF reports to be used as a basis for ques- be reduced further, that the focus was too tioning. In 2005 and 2006, the House of much on process rather than outcomes, that Commons’ ETHI committee called senior too many indicators were qualitative and officials from four departments to account subjective, and that the costs of the MAF for their performance under the ATIA, but it were not being tracked so it was impossible is difficult to gauge whether the parliamen- to judge the cost effectiveness of the process. tary scrutiny led to improvements. In gener- It also was noted that all large departments al, avoiding bad publicity and damage to in- are assessed every year against all 21 indica- dividual and institutional reputations can be tors. Although this facilitates comparison, it a strong motivation for senior public man- ignores the unique aspects of particular or- agers to take the MAF process seriously. ganizations. Significantly for the purposes of An abiding question about the MAF is this study, the evaluation report does not in- whether it has become an elaborate, expen- dicate whether all areas of management re- sive, time-consuming, and ritualistic checklist ceive adequate attention within the MAF process that delivers more symbolic than real process. Nothing is said, for example, about accountability. The most in-depth study to how well or how poorly access to informa- date—a consultants’ report commissioned by tion matters are covered by the process. 9 This report can be found at http://www.tbs-sct.gc.ca/maf- crg. Only the highlights of the 61-page report can be pre- sented here. 7 Intersection of the MAF and the ATIA At the beginning of this discussion of the in- example, the commissioner reported on the tersection of the MAF and the ATIA proc- performance of the 24 institutions that had esses, it is necessary to emphasize the impor- received 88 percent of all access to informa- tant differences in terms of the origins, tion requests during 2008–09.The evaluative purposes, scope, and potential consequences framework used by successive information of the two processes. The MAF was devel- commissioners has been refined over the oped as an administrative process by senior years to incorporate more dimensions of per- officials within the public service for the formance, to take greater account of the con- purpose of improving management and as a textual factors that affect performance, and to form of internal accountability for deputy provide evidence to support solutions when ministers. As the central budgetary and man- there are deficiencies in performance. The agement authority, the TBS controls the commissioner’s report cards are released at a MAF process and can order departments to press conference, are tabled in parliament, and undertake management reforms. Favorable usually become the subject of a hearing before or unfavorable MAF report cards also have the House of Commons’ ETHI committee. potential consequences for deputy ministers’ The commissioner cannot order corrective career progress and compensation. But access actions to be taken within departments and to information is only a small component of agencies, so the report cards are used to create the overall MAF assessment conducted by awareness and understanding of shortcom- the TBS. ings. Through publicity and influence rather In addition to the MAF assessment, there than actual authority, the report cards pro- is an external assessment of institutions’ ATIA mote compliance with the letter and the spir- performance conducted by the OIC. Since it of the ATIA. As the following discussion 1999, as part of their statutory duty to inform will make clear, the two assessment processes parliament and Canadians whether the ATIA produce public reports, but those reports are is being implemented appropriately, informa- quite different in purpose, coverage, and po- tion commissioners have conducted annual tential consequences. assessments of a select number of the 255 in- On the basis of the available documenta- stitutions covered by the act and have issued tion and, even more important, the confi- report cards to parliament. In April 2010, for dential interviews conducted for this study, it 51 52 Advancing Access to Information Principles through Performance Management Mechanisms is clear that the access field has not been a liness and completeness of reporting in sup- major focus of the MAF process to date. port of access and privacy requirements” that Only about 20 percent of the 255 institu- exist by statute or by administrative regula- tions covered by the ATIA also fell within tion. The data sources used to measure time- the scope of the MAF in 2009. Only a select liness and completeness are described as the number of the 65 institutions that fall under annual reports on ATIP from departments the MAF actually are reviewed annually. and agencies, their entries into the govern- However, the MAF reviews usually cover the mentwide compendium Info Source, the an- larger departments and agencies, which are nual reports to parliament from the informa- targets for a high percentage of the total tion and privacy commissioners, and other number of access requests filed annually. In “ad hoc reporting.” other words, the MAF review and report The first comment that needs to be made card process tends to cover many of the same on the placement and content of the access institutions that are the subject of reviews component within the MAF is that it is lim- and reports from the information commis- ited in scope, focusing mainly on the adequa- sioner. The focus of the two processes on the cy of the structures and processes established main parts of government means there is to satisfy the requirements of the ATIA and more potential for a positive impact on the the related policy and regulations adopted by access process than might appear at first the TBS. Making deputy heads the target of glance. access to information assessments is consistent There is a second limitation to how access with the ATIA, which also makes those indi- to information intersects with the MAF— viduals responsible for ensuring implementa- namely, ATIA reporting was not added to the tion of the act. Not focusing on reporting, the MAF until the 2005–06 round. Based on the MAF process regarding access does not touch interviews, this appears to have been done at on such performance dimensions as the in- the urging of the then information commis- terpretation of exemptions, delays in process- sioner. Senior managers in the TBS and de- ing requests, the duty to assist, and the overall partments/agencies did not see the access field culture of openness in various departments. as a management domain of equal rank with As presented by representatives in interviews financial and human resource management. for this study, the official position of the TBS Access to information management con- is that MAF requirements regarding access ceivably could fall under several of the 10 matters are complementary to other report- management areas established by the MAF. ing requirements, such as the annual reports For example, it could be part of public serv- that institutions present to parliament and the ice values or citizen-focused service. Howev- report cards on select institutions released an- er, when access was added to the MAF, it was nually by the information commissioner. It placed within the broad management area of was also noted by TBS officials that MAF as- stewardship (defined as “whether control of sessments take into account “in a general assets, money, people, services, etc. is clear, in- way” a wide range of external reports, in- tegrated and effective”) and under indicator cluding department performance reports and 12, the effectiveness of information manage- reports from the information commissioner. ment. The measures used to assess the man- However, in terms of access issues, the main agement of access are described as the “time- focus within the MAF is on compliance with Intersection of the MAF and the ATIA 53 legal reporting requirements arising directly agencies were assessed. None of the organi- from the ATIA. zations received a “strong” rating on infor- To strengthen accountability for compli- mation management. Thirty departments ance with the letter and the spirit of the act, and agencies fell into the “opportunity for the MAF could be modified to consider the improvement” category under information actions of institutions in responding to the management; and, in most of those cases, the recommendations from the commissioner’s weakness identified under access to informa- annual report cards.This would indirectly and tion was a failure to fully complete the re- significantly expand the scope of MAF cover- porting requirements for the Info Source com- age of the administration of the ATIA. It pendium and/or a failure to address all the would not, however, add greatly to the report- mandatory reporting requirements in the an- ing burden on institutions. Expanding the nual ATIA reports to parliament. The second range of access matters covered by the MAF most common rating was “acceptable,” with in the proposed manner would entail some 29 departments and agencies placed in that additional follow-up work for analysts in the category. Only 1 small agency received the TBS and some greater risk of more tangible red-flag rating of “attention required.” It penalties, beyond bad publicity, for deputy must be reiterated that these ratings were for heads whose compensation and career prog- the entire information management area; and, ress could be adversely affected if their institu- in most cases, qualitative information on ac- tions had failed to respond appropriately to cess performance was not available. the commissioner’s recommendations. As of There are examples, however, in which April 2010, the TBS had not responded to the departments have responded to criticisms of commissioner’s recommendation to add the their ATIP management and made improve- MAF coverage of access performance. ments. In 2004–05, Public Works and Gov- It is difficult to find objective and com- ernment Services Canada was the department plete information on whether the inclusion at the center of a major scandal involving, of access in the MAF process is making a dif- among other matters, problems of informa- ference. In interviews for the study, TBS of- tion and accountability. Negative MAF rat- ficials reported that MAF assessments related ings and other pressures pushed it to make to the access process had proved valuable for improvements. In the 2008–09 MAF round, engaging senior officials on the ATIP per- the deputy minister of the department sub- formance of those 30–40 departments and mitted an online response to that year’s as- agencies that were part of the MAF annually. sessment. In part, the management response As part of this study, the MAF assessments for read as follows: Round VI (2008–09), prepared by the TBS and published online, were reviewed. As not- As a result of the three-year ATIP Improve- ed above, access falls in the stewardship man- ment Plan’s aggressive strategies initiated in agement area and under the broad indicator December 2007, PWGSC [Public Works of information management. The actual rat- and Government Services Canada] success- ings assigned by the TBS are for information fully achieved the overarching goal of 95% management, although within the discussion compliance in 2008–2009. . . . As of No- section there is always mention of access per- vember 2009, PWGSC responded to over formance. In 2008–09, 52 departments and 98% of the ATIP requests on time, mainly 54 Advancing Access to Information Principles through Performance Management Mechanisms due to increased human capacity and active pect that TBS officials responsible for the performance monitoring, including a zero MAF would see it leading to improvements, tolerance approach to delays in processing re- whereas representatives of the OIC might quests. In addition, a MAF action plan was see the current linking of the ATIA to the developed in June 2009 to specifically ad- MAF as having little or no impact. To pro- dress the gaps identified in the MAF Round vide a sense of the varied perspectives that VI results relating to ATIP . exist, a brief synopsis of interviewees in a number of different roles will be presented. Clearly, the intense scrutiny that the de- No claim can be made regarding how com- partment faced as a result of the scandal pro- plete or representative are the opinions sum- duced great pressure to bring up its MAF marized below. ratings across the board. Even in the absence The deputy heads of departments and of such extraordinary events, the MAF can agencies are the ultimate responsible and ac- encourage improvement. In 2007–08, the countable parties under both the ATIA and Department of Foreign Affairs and Interna- the MAF. Two deputies of major depart- tional Trade received a rating of “needs im- ments were interviewed. Both believed that provement” on information management, the MAF was making a difference in terms partly because it did not provide its annual of improved management in general. They submissions to Info Source and its annual also agreed that access to information was ATIP report to parliament was incomplete. probably an area of management that re- The following year, its information manage- ceived less attention and was generally weak- ment rating was upgraded to “acceptable,” er than higher-priority areas such as finances, with the TBS acknowledging that several human resources, and risk management. One improvements had been made—particularly of the deputies observed candidly, “The in staffing the ATIP function and ensuring scorecard that really matters on access to in- more complete reporting. These and other formation is whether the prime minister, the examples suggest that the TBS recognizes ef- Prime Minister’s Office, and the minister be- fort by raising MAF scores if departments lieve that you have failed to manage the in- and agencies appear to be committed to im- formation flow on sensitive issues.” Because provement and are making progress. they owe their appointments to the prime Given the limited coverage of access mat- minister and will be judged by the Prime ters, the MAF ratings on information man- Minister’s Office and the Privy Council Of- agement cannot tell the whole story of the fice on their contributions to policy devel- wider, indirect, and longer-term impacts on opment and corporate governance, it is ap- the access system. The interviews conducted propriate and not surprising that serving the for this study provide some additional, albeit prime minister, the government, and their selective and impressionistic, information on own ministers is the deputy heads’ first pri- this point. Opinions varied concerning the ority. Both deputies confirmed that uphold- effects of including access in the MAF. The ing the letter and the spirit of the ATIA can differences in perspective were explained lead to tension between responsiveness to di- mainly by the position or role that the inter- rection and control and good management. viewee played in either the access or the The TBS is the central agency responsible MAF process. For example, one would ex- for both the ATIA and the MAF. Interviews Intersection of the MAF and the ATIA 55 were conducted with TBS officials in both that the improvements related only to report- fields. An ATIA specialist argued that includ- ing on compliance. ing access in the larger information manage- It would not be surprising to find that ment category compelled departments to see access coordinators see the MAF process access in conjunction with information and somewhat differently from TBS officials or records management. “There are big plusses,” executives in their own departments. The co- he observed, “that stem from the integration ordinators are on the front lines in processing of ATIP and privacy into the overarching access requests; they must deal with the con- compliance requirements for the manage- straints of limited financial and human re- ment of information.” Improving access, he sources; and they must face direct and indirect argued, involved both organizational capacity pressures to keep their home organizations and organizational culture.The MAF was driv- out of trouble by not releasing—especially, ing improvements on both dimensions, and not prematurely—sensitive information that the improvement of Info Source documents could lead to controversy. from departments was evidence that this was The four access coordinators interviewed occurring. The value in the MAF was not the for this study were very aware of the MAF, score, he maintained, but the dialogue that which suggests that its impacts definitely have took place between the TBS and department trickled down to their level. They had mixed officials over deficiencies, remedial actions, views of what it meant for the access function and tracking progress. in their organizations. All four agreed that the Even though the ATIA and the MAF tar- MAF was measuring compliance with the get deputy heads for accountability purposes, ATIA very narrowly. One coordinator of- TBS officials reported observing a cascading- fered the following opinion: “. . . a depart- down effect within departments and agencies. ment could update its Info Source chapter, do They pointed to the existence of a committee its annual reports, meet all of the other re- on information management, chaired by the porting requirements on an annual basis; but chief information officer for the government it doesn’t mean that they are meeting ATIP of Canada and comprising assistant deputy deadlines and providing the required respons- ministers from all departments. The same es to Canadians in a timely fashion.” committee is also responsible for overseeing Potentially, the inclusion of access in the access and privacy matters across government. MAF could increase the status and resources Within individual departments and agencies, available to the activity within departments. deputies delegate the various management ar- All four coordinators felt squeezed between eas to assistant deputy ministers and to people the growing volume of requests and the below them.A former TBS official comment- available resources. Finding additional re- ed, “If a deputy head . . . has scored particularly sources within departments or from the TBS low within one area of management with was considered highly unlikely, given the MAF, chances are that the following year he is tight budgetary situation. Competition for going to ensure that his ADMs [assistant dep- talent was another challenge. One coordina- uty ministers] have specific accountabilities for tor observed, “.. . we bring in people at a improvement activity.” He had observed this very junior level . . . we’ll coach them and process happening in the access area in a cou- give them experience and then they quickly ple of departments, although he acknowledged have opportunities elsewhere.” The lack of 56 Advancing Access to Information Principles through Performance Management Mechanisms identified competencies and training and the of access performance in the framework. In limited professionalization of the access spe- an interview for the study, a representative of cialty were seen as other challenges that the the OIC argued that the MAF measurement MAF system does not address. for access was too narrowly focused on re- All the coordinators noted that the pre- porting requirements and not focused on ac- vailing emphasis on agenda management and tual performance. The present approach would message control throughout government was not bring about change in terms of leader- affecting the ATIA process. One coordinator ship support and a culture of openness in de- made the following observation: “When we partments and agencies. Unless government share with senior departmental officials, in- moves to an alignment between the access cluding the minister’s office, what is going to component of the MAF and the evaluative be released to allow them the opportunity to framework for the parliamentary report cards prepare communications products, we know issued by the OIC, little progress should be for a fact that they are under instruction to expected beyond stricter compliance with share that with the PMO [Prime Minister’s the legal requirements of the ATIA. The Office] and PCO [Privy Council Office] all Canadian access system, this interviewee ar- the time.” In this climate, ATIP units are al- gued, was frozen in the past, with reliance on ways forced to play a challenge role, telling a complaints-based approach to access to in- senior public managers and ministers’ offices formation, when more progressive jurisdic- that there would be missed deadlines and bad tions like Australia and the United States were report cards from the information commis- discussing and implementing the much broad- sioner. It seems that using an internal man- er concepts of “open-source governance” agement instrument like the MAF to change and “open government,” involving virtually the political and administrative cultures of unlimited access to government data and a government in favor of greater openness is, at presumption in favor of proactive disclosure. best, a slow process and may not even be Such concepts, of course, go well beyond the possible. scope of this study; but the rhetoric reflects the As external champions of the access proc- rising public expectations about how much ess, successive information commissioners government information will be instantane- have shown interest in the evolution of the ously available. MAF and have recommended the inclusion 8 Conclusions The aim of this study was to examine the time and space available for this study, it was potential benefits of integrating access to in- not possible to describe all the components formation principles into the performance of Canada’s access system and how they in- appraisals of senior public servants, as part of teract with other parts of the governing proc- a more general management accountability ess. However, the study does provide some framework for departments and agencies of sense of the complicated, multidimensional, government. The examination of this alter- interdependent, and variable nature of Cana- native approach was based on a case study of da’s access system, including how it is sup- the government of Canada. The case study ported or weakened by other political and involved an analysis of the intersection of the administrative processes. relatively mature ATIA process (which has In this concluding chapter, the purpose is operated since 1983) with the relatively new to draw together the main findings of the MAF (which has operated only since 2004). study and to offer some more speculative A premise for the study was that neither of thoughts about the applicability and poten- the two processes could be understood in tial benefits of a managerial approach to isolation from the wider political, constitu- strengthening access systems in other coun- tional, legal, institutional, financial, and cul- tries. Best-practice research and benchmark- tural context, which itself has changed and ing have become popular approaches to the will change further over time. introduction of political and administrative As noted earlier, the case study approach reforms around the world. However, there has significant potential benefits, especially are at least three risks associated with such when the intensive investigation of a phe- approaches: nomenon is used for the purpose of theory development or refinement. This study be- • The first risk is that a country deemed to gan to explore the potential interactions be- be “the best” (however defined) at one tween mandatory reporting on the handling point in time may not retain that status of access to information requests as part of a over the longer term. For example, the wide framework of managerial accountabil- government of Canada was once seen as a ity. Given the sensitive and confidential na- leader in the access field, and undoubtedly ture of parts of the access process, and the it remains among the top jurisdictions in 57 58 Advancing Access to Information Principles through Performance Management Mechanisms terms of the administrative structures and the Canadian case study. The first lesson is procedures applied to the access process; that adopting both an “outside” and an “inside” but critics now claim that the ATIA is in perspective on how the access system functions is need of modernization and that ministers important. Thinking in analytical terms about and public servants have weakened the act the combined impacts of external and inter- in practice by adopting defensive strategies nal factors helps create a more complete un- to limit its effectiveness in ensuring open derstanding of how and why a particular ac- government. In short, Canada may no cess system works in practice. Governments longer be the benchmark country against wish to protect their reputations and main- which other countries should compare tain their political support. In many coun- their access systems. tries today, governing resembles a continuous • The second risk is that the best-practice election campaign, as the party in power research approach presumes that we un- seeks to defend against challenges from op- derstand fully why some managerial ap- position parties. In addition, a competitive, proaches appear to work well and, there- aggressive, 24/7 media environment has fore, we know how to transfer them from caused governments to adopt more sophisti- one jurisdiction to another. But our cated techniques of agenda management, in- knowledge of the dynamics of successful formation and message control, and public reforms is often partial, and it is dangerous relations spin to present their record in the to assume that institutional arrangements most positive manner possible. Risk avoid- and processes easily can be made to work ance and risk management have become ma- in a similar fashion in other countries. jor preoccupations in the political cultures of • The third risk is that access reformers will government; and these preoccupations spill not consider the political and administra- over into administrative cultures that increas- tive feasibility of their proposals. Not all ingly emphasize no surprises, no errors, and political cultures will support open gov- no controversies. Centralized communica- ernment, not all political and administra- tions policies and practices within govern- tive systems are “ready” in capacity and ments increase the difficulties facing access cultural terms to implement a strong ac- officials. cess system, and not all countries can af- Access to information laws are meant to ford to imitate “the best” examples of ac- encourage and, ultimately, to compel politi- cess systems elsewhere. cians and public servants to provide informa- tion to the public in circumstances where Rather than a best-practice philosophy there can be strong incentives for them to re- that seems to minimize the crucial impor- sist the requirements of the laws and related tance of the wider context, countries should administrative rules. The Canadian experi- adopt a “smart-practice” approach that rec- ence suggests this second lesson: the political ognizes the realities, constraints, and oppor- will to accept the requirements of access laws is cru- tunities for feasible improvements that will cial to the achievement of more open government. bring them closer to more citizen-centered, Political support for the legal requirements open, and accountable government. and the spirit of access laws requires the con- With these qualifications in mind, it is viction that such laws ultimately strengthen possible to draw some potential lessons from democracy. In the short term, political lead- Conclusions 59 ers in office may face criticism and pay a po- knowledge about the institution’s obligations under litical price for not respecting access laws. In access laws and shared understandings and bonds addition, defensive strategies to counter ac- of trust between top-level leaders and front-line ac- cess laws send a strong negative message to cess personnel may be weakened. A good per- public servants. Ideally, political leaders formance record on access issues in the past should demonstrate in their words and their is no guarantee of future good performance, deeds tjeosupport for the principles of access although supportive leadership and a sup- laws as a positive step toward the creation of portive culture help a great deal. a culture of openness. The Delagrave report (Government of A third lesson is that administrative leadership Canada, Access to Information Review Task at the executive level of government also plays an Force 2002) stressed the importance of important role in shaping the access culture within changing the administrative culture of gov- government. High-profile and forceful leader- ernment: ship from central administrative bodies serving cabinet and overseeing the access process Instilling pride in federal public servants for (such as the TBS in the Canadian case) is im- openness and making it a strong part of portant to ensure that all institutions subject to their identity might well be the single most access laws implement their responsibilities important improvement to the performance fully and properly. Central administrative lead- of the access to information regime (p. 164). ership, including the provision of both tangi- ble and intangible forms of support, can have Cultivating such professional pride in up- meaningful influence on the behaviors and holding access principles would involve lead- cultures related to the access process at the in- ers sending all the right signals: dividual department and agency level. Leadership at the top of individual institutions • providing adequate authority and re- makes a difference is the fourth lesson we can sources to the access function; take from this study. In the Canadian case, ac- • respecting the need for autonomy and cess coordinators working on the front lines discretion among the professionals in reported that staff attitudes toward compli- charge of access decision making; ance shifted dramatically when the senior • ensuring the availability of appropriate leadership made it clear that nothing less training and development opportunities than full compliance with the access law for access personnel; would be tolerated. Support from senior • recognizing and rewarding their contri- leaders is particularly important in those butions to good government; and defining moments when the access process • monitoring compliance and enforcing faces political pressures, competing priorities, accountability for performance—but do- and resource limitations. How such chal- ing so in a valid, comprehensive, and bal- lenges are handled sends a strong cultural anced manner that does not involve scape- message about the real commitment to ac- goating individual public servants when cess principles. controversies or problems arise. Fifth, we learn that rapid turnover in the leadership ranks at the institutional level (as has Getting the incentives right and avoiding happened in Canada) may mean a lack of disincentives to promote greater access is a 60 Advancing Access to Information Principles through Performance Management Mechanisms tricky part of the design of a management the number or percentage of cases leading to accountability framework. The interests and disputes over the interpretation of exemp- reputations of both institutions and individ- tions, and so on. Also, it would be possible to uals are involved. Meaningful accountability formally assign different weights to the vari- requires that consequences flow from poor ous areas and indicators of management per- performance, but the challenge is to find the formance. The architects of the MAF within appropriate balance between learning and the TBS discussed this possibility, although supporting improvement and blaming and not with respect to the access component. paying a price for lack of achievement. An They concluded that any such weighting for- accountability system that is imposed and mula would likely be rather artificial and con- mainly negative in its emphasis will be seen troversial. as threatening, unfair, and illegitimate by the The design of a management accounta- institutions and individuals responsible for bility framework is not a once-and-forever the actual implementation of access laws. initiative. It necessarily must evolve to reflect Related to the creation of the right incen- changing circumstances, shifts in government tives is the concern that some areas of man- priorities, and the lessons learned from prac- agement will receive limited attention and tical experience. In the case of the MAF, it weight in any accountability framework. was always presumed by the designers that Many public servants interviewed for this the 10 management areas would remain sta- study believed that access matters were given ble, but that the indicators and measures limited recognition in the design of the would change over time. Finding the balance framework and in the related process of re- between continuity and change is important viewing performance. The concern was that to avoid the extra work and confusion of access matters were crowded out by a main continuous experimentation and to maintain focus on “harder” management fields, such as motivation and commitment among the peo- finances and human resource management. ple who must work within the system. Within the MAF, as noted earlier, access is lo- In summary, some limited progress in the cated under the information management in- access field has been made through the MAF, dicator and is measured by only two lines of but no management accountability frame- evidence. To supporters of the ATIA, this lo- work can completely offset countervailing cation and the limited measurement involved pressures pushing toward control over the re- mean that access concerns inevitably will be lease of information. Drawing lessons about given little weight. It would be possible to de- how a MAF-type approach might work in sign a management accountability framework other countries should be done with caution that covered such additional dimensions of and humility. Attention needs to be paid to the performance of the access system as delays how the legal/regulatory/administrative sup- and the use of time extensions in responding ports, leadership, and cultural components of to requests, the percentage of cases that are an access system can be made to complement appealed to the information commissioner, and reinforce one another. Bibliography Argyris, Chris. 1990. Overcoming Organiza- Gilbert, Jay. 2000. “Access Denied: The Ac- tional Defenses: Facilitating Organizational cess to Information Act and Its Effects on Learning. New York: Allyn Bacon. Public Records Creators.” Archivaria 49: Burns, James MacGregor. 1978. Leadership. 84–123. New York: Harper & Row. 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About the World Bank Institute’s Governance Practice Governance is one of seven priority themes in the World Bank Institute’s recently launched renewal strate- gy—a strategy that responds to client demand for peer-to-peer learning by grounding WBI’s work in the dis- tillation and dissemination of practitioner experiences. The Institute is committed to building knowledge and capacity on the “how to” of governance reforms, with emphasis on supporting and sustaining multistake- holder engagement in bringing about such reforms. WBI’s Governance Practice works with partners, including networks of country and regional institutions, to develop and replicate customized learning programs. Its programmatic approach aims at building multistake- holder coalitions and in creating collaborative platforms and peer networks for knowledge exchange. The Practice focuses on three thematic areas: governance of extractive industries, procurement reform, and access to information. A fourth program supports anti-corruption programs for Parliamentarians, the Judiciary and the Private Sector. A Mobilizing Stakeholders for Reform group links stakeholder groups in support of these priority areas, documents and codifies knowledge, and builds capacity in cross-cutting areas. And last- ly—but importantly—a Leadership Development Program focuses on strengthening the capacity of potential leaders to harness the energies of stakeholder groups and to and channel these efforts toward reform. For further information: WBI The World Bank 1818 H Street, NW Washington, DC 20433 Fax: 202-522-1492 Visit us on the web at: http://wbi.worldbank.org/wbi/topics/governance Photo Credit: (Front Cover) iphotostock.com.