Strengthening the Access to Information Act
6. Duty to Document
Good information management is a prerequisite of good decision-making, good program and service delivery and of accountability. There is a consensus that information management in the government of Canada has declined alarmingly over the past three decades. There are numerous reasons for this decline, including the conversion from paper-based to electronic records, the reduction of resources and staff dedicated to documentation and information management, and a lack of training throughout the public service for individuals who are now expected to be their own information manager, and who are expected to understand and apply all of the related legislation and policies.
Currently, there are a number of statutory requirements for the public sector to create records in specific circumstances, such as:
- under the Financial Administration Act Treasury Board is empowered to prescribe obligations relating to departmental account keeping of public money and/or record keeping in relation to public property. That Act also imposes a duty on various persons to keep a variety of financial records and to prepare financial statements and an annual report on Public Accounts, providing a general duty to document the financial administration of the government so that it is accountable to the public.
- The federal government, as an employer, has a duty to keep employment records, as well as pension records, pursuant to the Employment Equity Act, the Employment Insurance Act and a number of other statutes and regulations.
In addition, the Treasury Board p olicy on the Management of Government Information requires that government institutions document decisions and decision-making processes to account for government operations, reconstruct the evolution of policies and programs, support the continuity of government and its decision-making, and allow for independent audit and review.
In his proposals, the Information Commissioner has addressed this issue through a requirement to create adequate records to allow a subsequent understanding of the decisions made and the actions taken. He has proposed adding to the Access to Information Act:
Every officer and employee of a government institution shall create
such records as are reasonably necessary to document their decisions,
actions, advice, recommendations and deliberations.
He has also proposed that a related sanction be added to section 67.1 of the ATIA:
67.1(1) No person shall, with intent to deny a right of access under this Act.
When considering the Information Commissioner's proposals there are several significant issues which require attention:
- the duty must be precise enough that public servants can have a clear understanding of what is expected of them. They must be able to distinguish circumstances which give rise to the duty and when they would be contravening the duty; and
- the duty must be narrow and specific if a sanction is to be applied.
The duty of public servants to adequately record their decisions and actions is generated by the need for the documentation of the business of government and the requirement for good information management. It is only indirectly related to providing the public with access to such records. In order to effectively serve the broader purpose, it may be appropriate to position the duty with other information management requirements. After examining how other jurisdictions have dealt with this issue, it appears that the duty could be best placed in the Library and Archives of Canada Act. In that way, the rules governing both the creation of records and their eventual disposal, which are presumably based on many of the same principles, would be brought together.
Another issue for consideration which flows from the previous discussion concerns the appropriate sanction which should be applied when public servants fail to create records when they should. There are several possibilities to address this issue, and each raises its own questions. Obviously, there must be a distinction between poor record keeping and intentional, bad (or even criminal) behaviour.
Penalties for public servants who fail to create a record could range from disciplinary measures through an administrative monetary penalty to a criminal offence. Whatever sanction is applied, it must be commensurate to the misbehaviour. It may be appropriate to make it a criminal offence to fail to create a record if that is done for the purpose of preventing anyone from finding out about a particular decision or action (whether that decision or action was itself improper or not), or to prevent anyone from obtaining access to a record of the decision or action through the Access to Information Act. Such a sanction would be in line with the current sanction provision in section 67.1 of the ATIA concerning the destruction, altering or concealing of a record for the purpose of denying access.
On the other hand, good information management practices must be learned, including rules or standards about when records should be created. Public servants who misunderstand the rules or who inadvertently fail to document an action or decision (perhaps they thought someone else at the meeting was taking the minutes, or they were distracted and never returned to document their action) are not engaging in criminal behaviour. Instead, they are failing to meet administrative standards, and should be dealt with accordingly, perhaps through disciplinary measures.
Before any sanction can be applied, there would need to be a wide-scale training effort to ensure that every public servant, at all levels, would be made aware of their responsibilities, and would have the opportunity to clarify the new requirements. Before any training can take place, the appropriate standards must be developed, and interested parties ranging from the Information Commissioner to the Chief Information Officer to the public sector unions must be consulted on them.
Whether a duty to document is enshrined in legislation or strengthened in policy, the need for a substantial training effort is clear. The culture of the public service must evolve in a way which makes the proper creation and management of information a routine part of everyone's day. While the cost of such a training effort would be substantial, it would be significantly less than the future cost to the government as a result of lost corporate memory.
Although codifying the duty to document may not be necessary, the principle behind the proposal appears to be sound. Translating this principle to practical application must be done carefully, however, and with a thorough consideration of the results, both intended and potentially unintended.
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