Advancing Access to Information Principles through ...siteresources.worldbank.org/WBI/Resources/213798-1259011531325/... · Program Advancing Access to Information Principles through

Access to InformationProgram Advancing Access to Information

Principles through PerformanceManagement Mechanisms: The Case of Canada

Paul G. Thomas

Canadian InternationalDevelopment Agency

Agence canadiennedeveloppment internationalThe World Bank

World Bank Institute

GOVERNANCE WORKING PAPER SERIES

WORKING PAPER

Advancing Access toInformation Principlesthrough PerformanceManagement 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 formore than 40 years. He holds baccalaureate (honors) and master’s degrees from the University of Manitoba and a PhDfrom 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 theExternal 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 ofthe 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 PublicAdministration 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 Bank1818 H Street NWWashington DC 20433Telephone: 202-473-1000Internet: www.worldbank.orgE-mail: [email protected]

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 governmentof 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 WorldBank Institute (WBI) and supported financially by the CIDA-WBI Governance Program.

The WBI Access to Information Program seeks to connect key ATI stakeholders tojointly 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 effectiveATI reforms.

iii

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

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

Contentsiv

This study could not have been completedwithout the cooperation of the 20 presentand former public officials associated withthe access to information and the manage-ment accountability framework processeswithin the government of Canada. Theiragreement to share their knowledge in off-the-record interviews was crucial to captur-ing the more informal, hidden dimensions ofthose processes. I thank them sincerely andhope that I have used their valuable insightsappropriately.Excellent research assistance in gathering

material and conducting some of the inter-views was provided by Rebecca Jansen. Thisis one of a number of my research projectson which she has contributed not only pro-

fessional support, but also insightful advice. Ithank her sincerely and wish her every suc-cess in a very promising professional career.I also want to thank Ross Hodgins, Su -

zanne Piotrowski, Alasdair Roberts, Josée Vil-leneuve, and Ben Worthy for their insightfulcomments at various stages of this study; also,Luis Esquivel, Aránzazu Guillán-Montero, andMarcos Mendiburu, at the World Bank Insti-tute’s Access to Information Program, fortheir valuable substantive advice and logisticalsupport for the study.Errors, omissions, and interpretations are

the responsibility of the author. The views ex-pressed in the study do not necessarily reflectthe position of the World Bank Institute.

Acknowledgments

v

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

Acronymsand Abbreviations

vii

On the basis of a detailed case study of thegovernment of Canada, this report examineshow management accountability processesoperating within public services may con-tribute to the promotion and enforcement ofaccess laws. Canada’s Access to Information Act (ATIA)

came into force in 1983. In 2003, the centralmanagement department in the public serv-ice, the Treasury Board Secretariat, adoptedthe Management Accountability Framework(MAF) to provide a consolidated basis for anannual appraisal of the management of de-partments and agencies and of the seniorpublic servants who manage them. In 2005,some limited dimensions of the access per-formance of departments and agencies wereadded to the MAF.The report examines the intersection of

the ATIA and the MAF to determine wheth -er adding an access component to the inter-nal management accountability processes hasimproved commitment to and compliancewith Canada’s access law. Moving beyondlegislation, government application of thelaw, and court interpretations, the case studyuses elite interviews, official documents, on-line sources, and the available secondary lit-erature to identify the multiple institutionsand actors, their divergent interests and per-spectives, and the formal and informal proc -

esses that shape how the ATIA and MAFprocesses work in practice. Assessing the impact of the inclusion of

an access component in the MAF is difficultbecause of the presence of developments(both inside and outside of government) thatmay affect how Canada’s access system oper-ates. Also, the newness of the MAF process,the almost complete absence of independentevaluations of the process, and the sensitivenature of the process all meant that the not-for-attribution interviews with current andformer public servants were crucial to thecompletion of the study.The study notes that access matters were

given limited recognition in the design ofthe MAF and have received limited attentionin the actual processes of appraising the per-formance of departments/agencies and sen-ior public servants who lead and managethem. On a positive note, the study uncov-ered evidence of situations in which theMAF process brought attention to deficien-cies in the access performance of depart-ments/agencies and prompted improve-ments. However, the main conclusionreached by the study is that including accessin Canada’s MAF could not completelycounter internal and external developmentsand pressures pushing toward stricter controlover information flows. Leadership support

Executive Summary

1

by cabinet ministers and senior public ser-vants for access principles as central to thepractice of good government and as a funda-mental value in the public service culturewas identified as more important to theachievement of open government than wasadding access performance to a managerialaccountability framework.Integrating access principles and per-

formance into managerial accountability

frameworks is one additional potential toolto be used to promote and support accesslaws. Whether and how the concept is ap-plied should depend on the history and tra-ditions of individual countries, the character-istics of their political systems, and theprofessionalism and capacity of their publicservices.

Advancing Access to Information Principles through Performance Management Mechanisms2

In their book Transparency in Global Change:The Vanguard of the Open Society, BurkartHolzner and Leslie Holzner (2006) arguethat there has been a worldwide culture shifttoward transparency, the more open flow ofinformation, proactive disclosure, and an in-sistence on strengthened accountability forall institutions—especially governments. Ac-cess to information legislation, where it ex-ists, is seen to have played a role in support-ing the shift to transparency and disclosure.Such legislation recognizes the public’s rightto know and the government’s duty to dis-close; and it provides mechanisms to enforcethese principles. The process of transforminggovernmental systems, including public bu-reaucracies, toward greater openness and ac-countability has proved to be difficult andslow because of both political and bureau-cratic resistance and the use of defensivestrategies to minimize what are seen by gov-ernments as the negative consequences ofaccess laws.How access laws operate in different

countries is affected by many factors beyondthe laws themselves and the enforcementmechanisms provided therein. Factors havingdirect and indirect impact on access systemsin particular countries include (1) the consti-tutional and institutional arrangements; (2)

the political system characteristics, particular-ly the dynamics of party competition; (3) theextent of the political executive’s controlover the legislature and its committees; (4)the professionalism and autonomy of thepublic service; (5) the type of informationheld by a government; (6) the technologyused to generate, store, and distribute infor-mation; (7) the strength of outside advocacygroups demanding access to information; and(8) the independence and aggressiveness ofthe media in pushing for openness. In short,numerous components of both the environ-ment outside of a government and its inter-nal operating environments can exert signif-icant influence over how open or closed aparticular governmental system will be.Com paring the relative efficacy of accesslaws in different countries is very difficultbecause such comparisons must take accountof the broader context in which such lawsoperate.With a few exceptions, studies of access

systems in different countries have focusedon the passage of legislation, its provisions,and its implementation, including challengesto its interpretation and application in partic-ular cases (Neuman 2009). However, the ac-cess to information process involves a com-plex system of interdependent components

Introduction

1

3

and processes, some of which are less tangibleand more submerged than the architectureand the official interpretation of the legisla-tion. Leadership commitment and organiza-tional cultures within government that sup-port access are crucial and more hiddenfactors that may greatly affect the effective-ness of an access system. This means that thestudy of access processes must draw on anumber of different disciplinary perspectivesand must apply different theoretical frame-works to diagnose problems and prescriberemedies.This study focuses on an approach to the

implementation and enforcement of accessprinciples based on their integration into themanagement accountability frameworks andrelated processes within governments. Thetheorizing and research for the study arenecessarily exploratory and limited, based onthe time and resources available. Uncoveringhow managerial accountability requirementsoperate in practice—including the incentivesthey create for certain types of behavior—isdifficult because of the hidden, subjective, in-formal, and variable nature of such processesinside the wide range of organizations thatmake up the modern public sector. Also, assuggested above, the effectiveness of accessregimes is affected by factors both outsideand inside of governments. This means thatinternal mechanisms intended to promoteand enforce the principle of the public’sright to know may be reinforced or under-mined by external developments and process-es. Separating the contribution of managerialprocesses to the success of access systemsfrom other factors operating in the wider en-vironment is difficult and can only be de-scribed impressionistically.This report explores these issues on the

basis of a case study of the operation of theAccess to Information Act (ATIA) within

the government of Canada and its publicservice.The ATIA was adopted by the parlia-ment of Canada in 1982 and came into forceon July 1, 1983. Over the 25-plus years of thelaw’s operation, there have been recurringcriticisms that it has not worked effectivelyto uphold the principle of open government.Amendments to the act have been passed ona number of occasions over the years, mostrecently in 2006 when changes were madethrough an omnibus piece of legislation calledthe Federal Accountability Act (FedAA). Although the history of the ATIA and the

current structures and procedures that sup-port it will be examined here, the main focusof the analysis will be on how the accessprocess has been affected by the governmentof Canada’s introduction of the ManagementAccountability Framework (MAF) into thepublic service. A full analysis of the MAFcomes later in this study; for now, it can bedescribed simply as an integrated frameworkfor setting forth expectations and appraisingthe performance of senior public servantsand their organizations. Commentators oftenlink the MAF to passage of the FedAA, but itpredated that legislation. After consultationinside and outside of government, the frame-work was introduced in the summer of 2003by the Treasury Board Secretariat (TBS), acentral agency that serves the Treasury Boardcommittee of cabinet (as described later inthis study). The MAF is intended to generateinformation to support expenditure andmanagement decision making and to holddeputy heads (permanent public servants) ac-countable for the performance of the depart-ments and agencies they manage on a dailybasis. When introduced in 2003, the MAFsought to bring together in an explicit, co-herent, and integrated manner more than 60management reform initiatives created by theTBS for deputy heads to follow. From the


outset, the MAF was an accountability andimprovement process designed by the publicservice; there was almost no involvement bycabinet ministers. As is described below, the MAF process

has evolved over the past seven years, withthe number of institutions covered initiallyrising to more than 50 and then being re-duced to the recent level of 25–30 annually.This is a small percentage of the hundreds ofinstitutions that make up Canada’s publicsector at the national level. The broad areasof management and the more specific activ-ities of department/agencies covered by theMAF have increased over the seven roundsof data collection and assessment that havetaken place since 2003. Beginning with thefourth round (2006–07), all MAF documentssubmitted by institutions and the assessmentreports prepared by the TBS have been post-ed on government Web sites. Since the 2004–05 round of MAF data

collection, the departments/agencies selectedby the TBS to be part of the MAF coveragein a particular year have been required to re-port on their access to information arrange-ments and results—but as this study makesclear, they have had to report in a relativelynarrow way. The 25–30 departments andagencies reviewed annually in recent yearsrepresent approximately 20 percent of the 255institutions that are now covered by the ATIAas a result of the 2006 passage of the FedAA.The main focus of the study, therefore, is

on how the new requirements for perform-ance reporting and assessment under the MAFmight affect the behavior of managers interms of support for and compliance withATIA principles. Also of concern is how theMAF intersects with other formal and infor-mal, internal and external processes to strength-en or to undermine Canada’s complicatedaccess system. Although Canada is used as a

case study, the aim is to draw some tentativelessons about the role that internal manage-rial rules might play in supporting accesslaws. As suggested above, lessons must bedrawn cautiously because public services indifferent countries operate within differentconstitutional and political systems—eachwith its own history and traditions, contem-porary issues, and changing political and ad-ministrative cultures. Simply installing so-called state-of-the-art access to informationlegislation, institutions, and processes that ap-pear to work well in one country may notwork well in other countries where the his-torical, cultural, political, and institutionalcontext is quite different.The analysis will proceed as follows:

• Chapter 2 describes the research methodsand types of sources used to conduct thestudy.

• Chapter 3 introduces the general theoret-ical orientation of the study, includingclarification of the key concepts that willguide investigation of the intersection ofthe legal and managerial elements of ac-cess regimes. That chapter will providesome tentative thoughts on how manage-rial approaches and compliance systemswithin public services operate in con-junction with leadership and culturalcomponents to give expression to institu-tional values, such as those represented byaccess to information systems.

• Chapter 4 provides a brief history ofCanada’s ATIA, which came into forceon July 1, 1983. On several occasions overthe past 25 years, the operation of the acthas undergone intensive review by bodiesoutside and inside of government. Morethan 20 amendments to the ATIA haveresulted from such reviews, but critics in-sist that the act and its operation are still

5Introduction

deficient in providing protection for thepublic’s right to know (Tromp 2008).They point to the adoption of defensivestrategies by ministers and the publicservice to restrict the flow of informationand thereby to avoid the potential dangerof negative publicity (Roberts 2002a;Graham and Roberts 2004). The fear isthat ministers’ desire for error-free gov-ernment will put pressure on public ser-vants to withhold information to whichthe public is entitled under the ATIA.

• Chapter 5 provides an overview of theinterests, values, perspectives, and incen-tives that affect the behaviors of institu-tions and individuals within the access toinformation process. It is recognized thatthese summary interpretations of the mo-tivations and behaviors are generalizationsthat do not fully represent the range ofchallenges to and responses by the variousorganizations and actors who must dealwith access matters under varied circum-stances and with potentially quite differ-ent consequences.

• Chapter 6 describes the origins, rationale,elements, and evolution of the MAFprocess, including the roles of the mainactors involved with that relatively recentinnovation within the public service. TheMAF is intended to hold senior publicservants accountable in a more compre-hensive and integrated manner for theirperformance in leading and managingtheir organizations and in improving theirorganizational capabilities over time.

• Chapter 7 discusses how the integrationof reporting requirements for access mat-

ters might affect the dynamics of theATIA process in a positive or negativefashion. Given the relative newness of theMAF and the ATIA component of theprocess, how the two processes intersectto shape managerial behavior will neces-sarily be explored in a somewhat tentativeand speculative manner. The chapter alsoexamines how internal and external ac-countability processes related to accessmight be understood to reinforce or de-tract from one another.

• Chapter 8 draws together the findings ofthe study regarding the potential contri-bution of managerial reforms to the proc -ess of ATIA reform.

To enable readers to assess the thorough-ness and balance of the analysis that follows,the main findings are reported here: Theconclusion reached is that including an ac-cess component in the MAF since 2005–06has made a marginal difference in terms ofobliging deputy heads and their organiza-tions to pay more attention to the reportingrequirements of the ATIA and related ad-ministrative policies. Such a frameworkwithin the public service, however, cannotcompletely offset external developments andpressures inside of government that representobstacles to and constraints on the promo-tion and enforcement of the ATIA.The sup-port of cabinet ministers and senior publicservants is more important than managementprocess in making access principles central tothe practice of good government and to thepromotion of a public service culture that fa-vors openness over secrecy.


2

7

To investigate the issues described in chapter1, the study draws on a range of sources: a re-view of the secondary literature, the analysisof government documents, Internet searchesof government Web sites, and a select numberof interviews with key informants. Because ofthe exploratory nature of the study, a qualita-tive, elite interviewing approach has beenused as a first attempt to uncover how the ac-cess legislation, related administrative rulesand guidelines, and informal norms of behav-ior shape commitment to and compliancewith the ATIA (Dexter 1970; PS: Political Sci-ence and Politics 2002).Interviews were conducted with 18 indi-

viduals distributed across two central agen-cies of government (the Privy Council Of-fice and the TBS), five departments, and theOffice of the Information Commissioner ofCanada (OIC); and with 2 retired seniorpublic servants who worked on access andMAF matters. With respect to access, inter-

views were held both with senior managersand with access to information and privacycoordinators who are in charge of the intakeand disposition of access requests. To encour-age full and candid responses on a subjectthat is sensitive at times, the interviews wereconducted on a not-for-attribution basis. Toprotect the identity of respondents whenquotations are used in this report, the posi-tion of the respondent will be identified ingeneric terms—for example, “an access co-ordinator in a large department.”In addition to those sources, the study

draws on the author’s background as a for-mer member of the external advisory com-mittee to the federal task force that reviewedthe ATIA in 2001–02. It draws also on hisacademic scholarship on such topics as ac-countability; communications at the centerof government; officers of parliament; trust,leadership, and change in the public service;and whistle-blower protection.

Research Methods

9

The following discussion of the study’s gen-eral theoretical orientation will clarify thekey concepts that guided this investigation ofhow the legal and managerial elements of ac-cess regimes intersect. Also included in thischapter are some thoughts on the operationof managerial approaches and compliancesystems within public services when com-bined with leadership and cultural compo-nents to express institutional values.

3.1 Institutionalism

This study uses a neo-institutional approachto interpret Canada’s experience with its ac-cess to information system. Arising out of thedisciplines of history, law, political science, andsociology, there are several variants of theneo-institutional approach; and there is con-siderable controversy among proponents ofdifferent approaches. What has been calledhistorical institutionalism is adopted here. At therisk of great oversimplification, this approachinvolves a number of key features (Steinmo,Thelen, and Longstreith 1992; Lecours 2005).The first feature involves seeing institu-

tions as more than stand-alone organizationswith narrow mandates and clear bottom-linecalculations of success. Instead, institutionsare seen as broader systems of interacting or-

ganizations, such as the political system orthe bureaucratic system. Public sector insti-tutions are created on the basis of laws, haveformal organizational structures, involve thedelegation of authority and resources subjectto certain parameters to guide decision mak-ing, and provide for the flow of accountabil-ity back to the top of the organization. Second, institutions are seen to involve an

informal, less visible life consisting of con-ventions or well-accepted practices, unwrit-ten rules, procedures, routines, values, andnorms of behavior that are deeply embeddedin the organizational structures and collectiveprocesses of the political and administrativesystems. History, the evolutionary path of in-stitutions, the philosophies of their leaders,and the defining moments when values andnorms are tested all shape the collective con-sciousness of the institution to some degreethat is not easily measured. Submerged un-derstandings and taken-for-granted assump-tions create a filter through which develop-ments are interpreted, and they help definewhat is deemed appropriate behavior. Third, without denying that power and

self-interested calculations are involved, thehistorical-cultural approach to understandinginstitutional life sees shared purposes, beliefs,values, and behavioral norms acting as bothenablers of and constraints on the behavior

Theoretical Orientationand Key Concepts

3

of individuals. As historical, collective con-structions, with memories and traditions de-veloped over time, institutions cannot easilybe transformed through specific actions ofany one individual.

3.2 OrganizationalCulture

Conceptually related to historical institu-tionalism, but narrower in focus, is the pop-ular and elusive notion of organizational cul-ture (O’Donnell and Boyle 2008). It hasbeen likened to the personality or identity ofan organization. More precisely, the term isused to refer to the relatively hidden mean-ings, values, beliefs, and norms of behaviorthat often are summed up in the phrase“how we do things around here.” Edgar H.Schein (2004), the leading scholar on thetopic, emphasizes that there are visible andinvisible levels of organizational culture.Symbols and ceremonies would be examplesof visible features, whereas unspoken funda-mental assumptions and beliefs would be in-visible cultural dimensions. Different organizations are recognized to

have distinctive cultures. This means that in alarge and diverse public sector, there may besome systemwide values; but there are alsoimportant cultural differences among the de-partments and agencies that the sector com-prises. It is also recognized that large, special-ized, more differentiated public organizationsmay contain within themselves distinctivesubcultures—for example, in accounting orhuman resource management. Organizational cultures are variously ex-

posed to outside influences, with public sectororganizations being greatly influenced by theirrelative openness in comparison with privatefirms, the greater scrutiny of their activities,

and the impact of the political process.Theseconditions in the public service mean thatcultures may be less stable as leaders and issueschange regularly.Organizational cultures often are described

as weak or strong, thin or thick. In the man-agement literature, it generally is acceptedthat a strong shared culture can be valuable interms of performance—but with the provisothat such a culture must be appropriate interms of the organization’s tasks and envi-ronments (Kotter and Heskett 1992). Also,corporate cultures must be flexible in theiropenness to modification in response tochanging circumstances; otherwise, there isthe risk of “groupthink” and a blindness tooutside developments that will affect the per-formance of the organization. In this and other ways, culture can be

seen as facilitating or inhibiting institutionaltransformation. An organization with an in-ternal, rule-bound culture, for example, maybe resistant to reforms designed to foster in-novation. There are competing views in theliterature about the degree to which it is pos-sible to manage culture in a planned and de-liberate manner (O’Donnell and Boyle 2008).Some writers argue that cultures can be di-rected and controlled through a number ofmechanisms—such as new structures, the se-lection of personnel, the issues that are ac-cepted on the decision-making agenda, theway in which issues are defined and dealtwith, the patterns of communication, and therewards and recognition that operate withinorganizations. Other commentators take theview that organizational culture is an elusivephenomenon that is more organic in naturethan it is planned.Transforming the culturesof public organizations in a planned, deliber-ate manner generally is considered an uncer-tain and slow process because of the manycomplications introduced by the distinctive


context—most notably, the political processthat leads to outside pressures having a moreimmediate impact on the cultures of publicorganizations. As is discussed below, leadership at the top

of public organizations is shared between pol -iticians and public servants, so cultural changedoes not always have unified direction. Staffingand compensation in the public service are con-tained in systemwide policies and rules, andthey may be the subjects of public controversy.The public sector consists of an agglomerationof diverse departments and nondepartmentalbodies—and that makes developing a strongshared culture very difficult. Access andwhistle-blower protection laws reflect a pro-disclosure environment in which internal prob-lems may be revealed, magnified, and distortedby the adversarial parliamentary process and re-lated media coverage. In these and many otherways, the distinctive context of the public sectormakes the promotion of cultural change morecomplicated and uncertain than in individualprivate firms that provide the basis for much ofthe literature on organizational culture.

3.3 Public ServiceMotivation

Serving the public good or the public inter-est has long been seen as the essence of thepublic service role. Recently, James Perryand his colleagues (Perry 2000; Perry, Meschand Paarlberg 2006) have argued that the in-stitutional context and culture of the publicservice create a distinctive underlying moti-vation for public servants. “Public servicemotivation” provides a theory of motivationthat links administrative behavior to the pur-suit of the public interest. People with a highsense of public interest are more attracted tocareers in government than in the private

sector. Intrinsic motivation in the form ofless-tangible rewards is more important thanextrinsic rewards that count for more in pri-vate firms. This raises questions about whethermaterial rewards such as performance pay andpromotions will be as strongly motivating inpublic sector organizations as they often areassumed to be in private, for-profit firms.Public servants with strong public service

motivation exhibit such qualities as high lev-els of organizational loyalty and commitment,believe their jobs are important, are morelikely to work hard, are more likely to believein the public’s right to know, and are morewilling to disclose wrongdoing. Moynihanand Pandey (2007) have taken Perry’s empir-ical research farther and have concluded thatthe institutional context and managementsystems put in place can be used to fosterpublic service motivation. Their research alsosuggests the importance of communicating topublic servants the centrality of their role inupholding the public interest. These findingshave obvious relevance to this study, whichexamines the impact of management struc-tures and processes on the performance ofCanada’s access system.

3.4 Leadership

Those commentators who believe that cul-tural change can be controlled and directedplace a great deal of faith in the creativity andinfluence of leaders. Visionary, eloquent, andskillful leaders can shape cultures, especiallywhen an organization is being founded. Itmust also be recognized, however, that cul-tures shape the philosophies and behaviors ofleaders. Leadership has been described as “one of

the most observed and least understood phe-nomena on earth” (Burns 1978, p. 2). There

11Theoretical Orientation and Key Concepts

is nothing close to agreement on a definitionof leadership or its essence. However, themeaning and practice of leadership appear tobe highly contingent on the context inwhich it is occurring (Rainey 2003, ch. 11).For purposes of this study, leadership is un-derstood as a process rather than a set of per-sonal attributes exhibited by all leaders in allsituations. Fairholm (1994) defines leadershipas “a process of building a trust environmentwithin which leader and follower feel free toparticipate toward the accomplishment ofmutually valued goals using agreed-uponprocesses” (p. 3).Leadership in government is shared be-

tween politicians and public servants (Thomas2008b). Each group brings to the governingprocess a different set of preoccupations, ideas,and skills.There is a need for balance betweenelected political leadership to ensure respon-sive decision making and democratic account-ability to citizens, and public service leader-ship to ensure the appropriate use of expertisein formulating policy and professionalism inprogram administration. To be reelected, politicians must be con-

cerned about the public perceptions of andsupport for the actions of government. Forthem, gaining favorable publicity and avoid-ing blame for mistakes or abuses are seen asoccupational requirements. In contrast, pub-lic servants are meant to maintain relativeanonymity and neutrality in the performanceof their professional duties. Although mindfulof the need to worry about how things lookto the outside world, they are not as preoc-cupied with negative publicity as are politi-cians. For constructive and effective workingrelationships to develop between politiciansand public servants, there must be trust basedon their mutual understanding of and respectfor their respective roles.

3.5 Trust

Trust is currently a very fashionable concept,and much has been written about it by schol-ars in a variety of disciplines and in govern-ment reports (Thomas 2008b). Again at therisk of oversimplifying, a series of brief state-ments about trust will be made here.Trust in-volves positive assumptions and expectationsabout the motivations, intentions, capabilities,and actions of institutions and individuals insituations entailing risk and vulnerability.Thereare different sources and types of trust. It takestime for trust to develop, but it can be lostquickly.Within organizations, trust reduces theneed for rules and procedures and improvescommunication about sensitive matters. As is discussed below, weak or strong cli-

mates of trust between citizens and their gov-ernments, and among different actors withingovernment, affect how access systems willoperate in practice. Over the past severaldecades in many democratic political sys-tems, public trust and confidence in govern-ment institutions—particularly in the electedpolitical leaders of those institutions—havedeclined.The same is true to a lesser extentfor the appointed public servants who leadand manage public organizations on a dailybasis. The two concepts of trust and confi-dence often are combined in opinion surveystrying to measure changing public attitudestoward governments. Although related, thetwo concepts probably should be kept dis-tinct; confidence refers more to the capacitiesand competencies of institutions and individ-uals, whereas trust relates more to their mo-tives and intentions (Thomas 2008b).External public trust in governments has

received far more attention than the positivetrust relationships that need to exist on sev-eral levels inside of government if the policy-


making and managerial processes are to workeffectively. The most important of such trustrelationships is that between elected minis-ters and senior public servants who must col-laborate to identify and manage issues almoston a daily basis. Other levels of trust involvethe center of government—in the Canadiancase, the prime minister and cabinet and thecentral agencies that support them—and thevarious departments and agencies to whichauthority and resources are delegated.Withindepartments and agencies, a strong climate oftrust is needed between senior managementand employees on all levels. A strong sharedculture of trust, loyalty, commitment, andpride within an organization can be disrupt-ed and weakened by short-lived events, suchas political or administrative scandals.

3.6 Accountability

The aims of access laws are to increase citizenknowledge and involvement with govern-ment; to enable better-informed decisionmaking; to increase transparency; to strength-en accountability; and, ultimately, to improvelevels of trust and confidence in holders ofpublic office.With leadership come responsi-bility and accountability. Responsibility canhave many meanings, but here the term isused to describe the internalized, subjectivesense of obligation to do the right thing (Har-mon 1995). Accountability also is a broad andelusive concept, surrounded by ambiguity andcontroversy. In this study, accountability will beused in a narrower, more precise manner torefer to a formal relationship of authority thatis supported by a number of processes:

• the delegation or negotiation of responsi-bilities, ideally based on expectations andstandards;

• the provision of authority, resources, and areasonably supportive environment to al-low for the fulfillment of responsibilities;

• the obligation to answer for the perform-ance of responsibilities, ideally based onvalid information;

• the duty of the authorizing party to mon-itor performance and to take correctiveaction when problems arise; and

• the bestowal of rewards or penalties basedon performance (Thomas 2008a).

Accountability should not be confusedwith transparency. The provision of informa-tion is an important means to achieve ac-countability, but does not itself constitute fullaccountability (which also must involve thepotential for consequences to flow from ac-tions or inaction).

3.7 PerformanceManagement

Under the influence of the “reinventing gov-ernment” and new public management move-ments over the past two decades, many gov-ernments sought to promote a shift away fromaccountability based on compliance withrules and prescribed procedures and towardaccountability based on performance report-ing on the results achieved, with a commit-ment to make use of such evidence to im-prove the policies, programs, and servicesdelivered to citizens.To promote use of per-formance evidence, efforts were made to linkperformance reports to such central manage-ment processes as strategic planning, budget-ing, policy and program evaluation, and ap-praisal of employees (especially senior managers). In the longer term, the aim was tocreate within public organizations a cultureof performance that supported reliance on


evidence for purposes not only of controland accountability, but also of learning andimprovement. It was recognized that achiev-ing such a culture required creating incen-tives (and removing disincentives) to report-ing in a timely, relevant, comprehensive, andbalanced manner and to using evidence toguide decision making (Halachmi and Bou ck -aert 1996; McDavid and Hawthorn 2006;Radin 2006).During the 1980s and 1990s, many gov-

ernments around the world got on the per-formance management bandwagon. By theturn of the 21st century, however, jurisdic-tions once thought to be leaders in the field(such as New Zealand, the United Kingdom,and many U.S. states) began to scale backtheir activities, based on a recognition thatthe investment of money and staff in per-formance management was having limitedimpact on decision making and the qualityof programs. Lack of use seemed to be theAchilles’ heel of the performance move-ment. The obstacles to greater use of per-formance evidence fell into four broad cate-gories: analytical, financial, institutional, andpolitical.1 The analytical challenges relate tothe difficulty of demonstrating a causal linkbetween program activity and outputs andactual outcomes within the organization and/or within the wider environment. In termsof financial considerations, generating infor-mation on how well programs are operatingis not a cost-free activity; and governmentswere hard-pressed to find the money andstaff to pay for sustained performance report-ing and analysis. In terms of institutional fac-tors, not all public organizations had the in-frastructure and technical capacity, the staffknowledge and skills, and a supportive cul-

ture to embark on performance managementreforms. Finally, because the measurementand interpretation of measures respectingprogram goals are inherently subjective andcontroversial, “politics” is involved. The pol-itics of performance management takes placeon a number of levels within government;and it relates to questions such as these: Howwill the vague and often multiple goals ofprograms be defined and measured? Overwhat period of time will measurement andreporting take place? Who will decide thevalidity and significance of the findings? And,based on the data available, who will decidewhat actions will be taken to achieve greatersuccess? As will be evident in the later discus-sion of Canada’s access system, there havebeen analytical, financial, institutional, and—most important—political issues related to itsperformance, with a range of divergent inter-ests and perspectives on how well it is work-ing and what constitutes success.Despite much talk about a performance

approach to accountability that concernslearning and improvement, the focus in prac-tice is mainly on preventing abuses and mis-takes and on providing assurances to thepublic that governments are operating effi-ciently, effectively, and ethically. Frequently,there is a negative, blaming quality to ac-countability debates. Accordingly, govern-ments want error-free performance with nosurprises, and this often means that compli-ance with access to information laws is re-garded as risky.Accountability and trust exist in a rela-

tionship of tension. Over the past severaldecades, the multiplication of accountabilitymechanisms in many governmental systemsreflected and reinforced an external climateof low public trust in government, and weakconfidence among political leaders in the ca-pacity and willingness of the public service


1 Only a brief explanation of these categories is possible inthe space available here. For elaboration, see Thomas (2008d).

to design and deliver efficient and effectivepolicies and programs. New regulations con-cerning the behavior of politicians and pub-lic servants, supported by oversight bodiesthat report publicly on wrongdoing or mis-takes, reflect this lack of confidence. Whenthe new oversight bodies release reports, theyoften become amplified and sensationalizedin the parliamentary and media processes. Inthis way, accountability processes may lead—at least in the short term—to the erosion oftrust. On the other hand, clarifying the rules,monitoring performance, and disclosing prob -lems may mean fewer temptations and op-portunities to misuse authority and publicmoney. Such processes also may create incen-tives to improve performance; and, over thelong run, this could increase both externaland internal trust.

3.8 Implementation ofAccess Legislation

The passage and strengthening of access lawshas been part of the wider accountabilitymovement taking place in many jurisdic-tions. Such laws tend to be passed with greatfanfare and rhetorical flourish on the part ofpoliticians. However, these laws do not im-plement themselves. Implementation theoryhas been used in the public policy and publicmanagement fields to explain the gap thatoften yawns between the goals and design ofprograms and what happens in practice (Hilland Hupe 2002; O’Toole 2004). There arenumerous theories, models, and controversiessurrounding implementation as a distinctive,under-researched stage in the policy process.The available explanations for implementa-tion breakdowns focus on a wide range offactors—such as lack of policy clarity, themultiplicity of interests and actors involved,

problems of communication and coordina-tion, the need for decentralization and au-tonomy for specialized personnel, inadequateresources and tools, and the problem of cre-ating the right incentives to encourage ac-tion in support of policy goals. In general, it is now widely recognized that

implementation is not a straightforward stepin the policy process by which the publicservice simply carries out the intentions of thelegislature and the political executive. Manystudies suggest that implementation involves“politics” in the sense that different interestsand perspectives contend with one anotherover how general policy enshrined in legisla-tion will be interpreted and applied (Thomas2006). This means that power relationshipsamong different institutions and actors are sig-nificant in shaping policy in practice and theoutcomes that are achieved. As part of thepolitics of the implementation process, bothactive and passive resistance (both inside andoutside of government) may block, limit, ordelay the achievement of policy goals.In applying these theoretical notions to

the performance of Canada’s access system,it is useful to adopt the iceberg analogy inwhich 20 percent of the system is visibleabove water and the other 80 percent is hid-den beneath the surface. The visible portionconsists of the legislation, public reports onhow the legislation is operating, parliamen-tary and media discussions, and court cases.Just above and below the surface are the ad-ministrative structures, procedures, informa-tion management systems, and internal re-porting and accountability requirementsneeded to implement an access law. Probablythe most important parts of the iceberg arefully submerged in the overlapping politicaland administrative cultures of government.In Canada, the ATIA now applies to morethan 255 organizations. With that number of


organizations and the varied tasks they per-form, there will never be one uniform accessculture in the federal government. Instead,access cultures will vary somewhat, accordingto the nature and sensitivity of a particularorganization’s tasks; its history and values; thephilosophies and leadership styles of minis-ters and deputy heads; the informal rules ofthe game that guide behavior; the pattern ofincentives and disincentives that these rulescreate; and the knowledge, skills, and toolspossessed by employees to manage the oftencomplex and sensitive access process.Creating organizational cultures that favor

the release of information is difficult, takestime, and may be undermined by short-termevents such as serious negative publicity. It isdesirable that political and public serviceleaders always send the right signals on open-ness, but this is particularly important inthose defining moments when the principlesand values of the access system are being test-ed by controversy. Ideally, leaders and the sys-tem in general will provide incentives, re-wards, recognition, and penalties to promoteand support a culture of openness. Whilerecognizing the different roles to be played,the system should be built on mutual under-standing, respect, and trust among the differ-ent organizations and individuals involved.The system should be more collaborativethan adversarial in character. Fairness, consis-tency, and predictability among all the partiesinvolved can contribute to the integrity ofthe access system by upholding both the let-ter and the spirit of the access law.

3.9 Compliance andEnforcement

No jurisdiction has legislated an access to in-formation system that is fast, efficient, effec-

tive, and totally satisfactory to all stakehold-ers. The success of such systems is greatly de-pendent on the commitment, attitudes, andbehaviors of all the individuals involved; andsuch elements cannot simply be legislatedinto existence. Commitment to and compliance with

access principles are not the same as regulat-ed enforcement of such principles (Parkerand Nielsen 2009). Commitment and com-pliance, of course, are related in practice.Binding orders from courts, administrativerules, and even strong recommendationsfrom information commissioners can helppromote and reinforce a cultural norm ofopenness within public bodies and can fosteran internalized sense of responsibility on thepart of public officeholders. External inter-pretation and enforcement can move the ac-cess agenda forward to some extent, but theinternal adoption of openness as an impor-tant value in the overlapping and intersectingpolitical and administrative cultures of gov-ernment probably is more important toachieving the aims of access laws.

3.10 “Carrots and Sticks”

Accountability systems established inside gov-ernment for access purposes may be dividedbroadly into two categories.The first categoryof system provides direction, authority, re-sources, and generalized support to enable ac-complishment of the aims of access laws. Thesecond category uses performance targets,pressures, and sanctions that make the ac-countability system more compelling. Cana-da’s access to information system comprisesboth motivational and regulatory features—that is, “carrots and sticks”—to promote com-pliance with and enforcement of the ATIA requirements. Ideally, commitment to and


17

compliance with both the letter and the spiritof access laws would be voluntary and strong;but experience tells us that this is not alwaysthe case.Sanctions are penalties for noncompli-

ance with rules or directions from officials inpositions of authority. They may impose lossof benefits, status, or reputation on individu-als or organizations; and may trigger atten-dant feelings of displeasure, shame, or fear(Posner and Rasmusen 1999).To be effective,sanctions must be properly targeted at the ac-tors responsible for the expected behaviors,must cause sufficient discomfort to be moti-vating, and must be enforceable. Sanctionsare likely to be ineffective when they areaimed at diffuse targets, are beset with visible

enforcement challenges, and require behav-iors for which there is not sufficient capacity.Voluntary compliance is more likely to workwhen the expected behaviors are seen as ef-fective and legitimate, when they correspondto the personal values of the actors, andwhen there is the capacity to meet expecta-tions. Sanctions that lack legitimacy andpracticality may induce defensiveness thatprevents individuals and organizations fromtrying out new approaches (Argyris 1990).Despite failing to serve all or some of theiraims, accountability systems related to accesslaws may be retained because of the symbolicpurpose they serve in assuring the public thatits right to know is being upheld.

Theoretical Orientation and Key Concepts

19

Canada was once seen as a leader amongcountries in terms of its legislation, commit-ment of resources to access processes, and de-velopment of administrative practices to pro-mote openness. This is probably less truetoday.There are problems with the Canadianaccess regime, as will become clear from thefollowing brief analysis of its history and cur-rent operations.The ATIA regulates Canada’s access sys-

tem.2 Whereas its legal aspects are the re-sponsibility of the minister of justice, the TBSis responsible for administering the act. TheInformation, Privacy and Security Policy Di-vision (IPSPD) of the TBS’s Chief Informa-tion Officer Branch is in charge of develop-ing governmentwide policy in this area.Though not explicitly mentioned in the act,access to information and privacy coordina-tors in each agency handle the day-to-dayimplementation of the law in practice.Theirperformance ultimately depends on a seriesof factors related to their institutional posi-tions and the organizational and political cul-tures surrounding their functions. This chap-ter reviews the history and components ofCanada’s access to information system.

4.1 The Legislation

Canada’s ATIA3 can be described as quasi-constitutional because it overrides provisionsin other federal statutes (except those listedin a schedule attached to the act). This fea-ture elevates the ATIA above ordinary stat -utes, and it is meant to reflect the importanceof openness as a fundamental principle in thepolitical and administrative cultures of thegovernment of Canada.When the legislationwas being debated in parliament in 1980, thenoble goals of the ATIA were declared to beinformed dialogue between citizens andpublic officeholders, improved decision mak-ing, and strengthened accountability amonggovernments and the public service.Whetherthe ATIA lives up to these noble purposes inpractice is the subject of controversy.The ATIA has been amended by parlia-

ment a number of times over the years. Animportant amendment, passed in the 1990s,made it a criminal offense to intentionallyobstruct access by destroying, altering, hiding,or falsifying a record; or by directing anyoneelse to do so. It is significant that this amend-ment was based on a private member’s bill—

Overview of theCanadian Access System

4

2 In Canada, regime is the preferred term to describe the legalframework, structures, and processes of the ATIA. To avoidconfusion for readers in other countries, however, the moreuniversal term system will be used here.

3The Access to Information Act (R.S., 1985, c. A-1) and re-lated legislation is available through the Canadian Depart-ment of Justice’s Web site, at http://laws.justice.gc.ca/en/A-1/index.html.

not a government bill—introduced in the af-termath of two national inquiries revealingthat crucial documents had been destroyed.This provision was used for the first time in2008–09, when a matter was referred to theattorney general for investigation.The most recent changes to the ATIA

were part of the Federal Accountability Actpassed by parliament in December 2006.Those amendments extended the coverage ofthe ATIA to parent Crown corporations andtheir subsidiaries, officers of parliament (suchas the information commissioner, the privacycommissioner, and the public sector integri -ty commissioner), and five public foundationscreated by the government of Canada. As aresult, 255 institutions are now covered bythe ATIA. Another significant change wasthe introduction of public servants’ duty toassist requesters—a change intended to en-sure more equal use of the access process.These changes, however, were seen by criticsas falling far short of the 40 reforms prom-ised by the Conservative Party of Canada be-fore it took office.

4.2 The Rights of Citizensunder the ATIA

The ATIA provides that every citizen andpermanent resident of Canada has a right toany document “under the control” of a gov-ernment institution, subject to a number ofexclusions and exemptions. The act is sup-posed to ensure that all requests for informa-tion will be handled similarly, without regardto the identity and occupation of the re-quester or the purpose for which informa-tion is being sought. In addition, it is a viola-tion of the Privacy Act (and the ATIA asamended in 2006) to disclose the identity ofrequesters in the processes of administering

the ATIA. As is discussed below, there is evi-dence indicating that both of these legalprinciples have been violated in practice.Institutions covered by the ATIA are re-

quired to publish a description of the organ-ization and its responsibilities, all classes ofrecords under its control, all manuals thatguide the behavior of its employees, and thecontact information for the frontline publicservant who is responsible for dealing withrequests under the act (a person usually re-ferred to as the access to information andprivacy coordinator [AIPC]). The act delin-eates the processes for filing a request, includ-ing the timelines for notifying third partieswhose information may be in the possessionof government. The act establishes the posi-tion of the information commissioner ofCanada, an independent officer of parlia-ment, who mediates disputes over the denialof requests and reports regularly to parlia-ment on the performance of the act.There is a two-step appeal process avail-

able to requesters who are denied informa-tion. Initially, they may complain to the in-formation commissioner. The commissionerthen can investigate and make recommenda-tions to the head of the institution, but can-not order the release of information. Re-questers have a further right to seek reviewof a denial of access in the Federal Court ofCanada. In addition, with the consent of thecomplainants, the commissioner may takecases to the court on their behalf.

4.3 Responsibility for the ATIA

Two ministers in the cabinet are responsible forthe overall performance of the ATIA. Theminister of justice is responsible for the legisla-tion, including the introduction of amend-


ments.With the enactment of the FedAA inDecember 2006, the scope of the ATIA waswidened so that it now covers 255 institutions,including officers of parliament (one of whomis the OIC) and all Crown corporations.A cabinet minister (with the title of pres-

ident of the Treasury Board) is responsible foroverseeing the administration of the act. Heor she chairs the Treasury Board, a cabinetcommittee that promotes sound manage-ment in general and deals with expendituremanagement issues in particular across allparts of government. The Treasury Board issupported by the TBS, which includes theIPSPD.

4.4 The Role of the TBS

To guide implementation of the legislation,the TBS has issued a policy statement, themost recent version of which took effect onApril 1, 2008. The policy objectives de-scribed there are to facilitate compliance andeffective operation of the ATIA and to en-sure consistency in the application of the actacross all government institutions listed in its appendix (TBS 2008b). The policy and itscompanion regulations were meant to pro-duce sound management processes and deci-sions on requests, accurate and timely re-sponses to requests, clear responsibility andaccountability for decision making and ad-ministration, and consistent public reporting.In terms of responsibility, the policy makes

the head of an institution accountable for en-suring the effective, coordinated managementof the ATIA within the institution—includ-ing compliance with the provisions of thepolicy and the reporting requirements relatedto its administration.The heads of institutionsmay delegate these responsibilities to otheremployees, but such delegation does not ex-

empt them from ultimate accountability. Theact explicitly excludes delegation of these re-sponsibilities to “exempt” (popularly calledpolitical staff ) employees who work in min-isters’ offices.The heads of institutions and their dele-

gates are responsible for the fair, reasonable,and impartial exercise of discretion; and theduty to assist applicants, receive complaints,provide accurate and timely responses, pro-tect the identity of applicants, and promoteawareness of the ATIA among employees ofthe institution. Heads of institutions or theirdelegates also are responsible for monitoringand reporting on the administration of theact. Statistics on the operation of the act mustbe gathered, an annual report must be pre-pared and tabled in parliament, and the insti-tution’s chapter in the compendium calledInfo Source must be updated regularly.The section of the policy titled “Conse-

quences” deals with noncompliance. Failureto comply with directives and standards leadsinitially to the requirement for an explana-tion and the development of compliancestrategies (which must be included in the in-stitution’s annual report to parliament). Forthose institutions subject to the MAF, exem-plary performance, satisfactory performance,and noncompliance with respect to the pol-icy will be considered in the annual assess-ment process for heads of those institutions.(The intersection of the ATIA with the MAFis discussed in depth in chapter 5.)In addition to the policy statement, the

TBS has issued “Access to InformationGuidelines” intended for use by public ser-vants responsible for administering the act.4

The introduction to the guidelines states thatthey are not to “be viewed as a handbook for

21Overview of the Canadian Access System

4The guidelines are available at http://www.tbs-sct.gc.ca/pol/doc-eng.aspx?id=13773&section=text.

finding ways to refuse access to records.” In-stead, they are meant to represent “a balancedapproach” to explain how the legislation per-mits both the release and the withholding ofinformation. The guidelines go on to statethat there is an onus on institutions to justifynondisclosure. On the grounds of informedpublic participation in policy making, inclu-siveness, and fairness in decision making andsupport for accountable government, theguidelines state, “There is a compelling publicinterest in openness.” It is also noted that re-liance on the ATIA was not meant to replaceexisting procedures for obtaining informa-tion, and that applicants should be informedwhen an access request is not required to ob-tain the information they are seeking.

4.5 The Information,Privacy and SecurityPolicy Division

The IPSPD is responsible for developing gov -ernmentwide policies related to the ATIA. Itadvises all institutions on updates to the pol-icy on access to information. It prescribes theform and content of the annual reports fromindividual institutions as well as their entriesinto Info Source, the annual index to the re-sponsibilities of all institutions and their in-formation holdings. Separate from and not tobe confused with the IPSPD is the Access toInformation and Privacy (ATIP) Office, partof the Ministerial Services and StrategicCommunications and Ministerial Affairs Di-vision. The ATIP Office is responsible forprocessing requests to the TBS (one of the255 institutions covered by the act). The dis-cussion to follow focuses on the IPSPD, noton the ATIP Office.In 2007–08, the IPSPD prepared addi-

tional guidance for all institutions regarding

their duties (under subsection 4[2.1] of theATIA) to assist requesters with their attemptsto gain information from the government. Asnoted earlier, the duty to assist was added tothe act as a result of the amendments madeby the FedAA. It will take time for this rela-tively recent change to be integrated into theaccess cultures of departments and agencies.In 2007–08, the IPSPD had eight employeesto oversee the administration of the act andto provide expert advice, guidance, and train-ing to institutions.The IPSPD is also responsible for provid-

ing education and training opportunities togovernment employees. Thirteen sessionsexploring both general and specific topics re-lated to the administration of the act wereprovided to approximately 150 participantsin the ATIP community during 2007–08.The office works with the Canada School ofPublic Service to integrate access contentinto the curriculum for executive develop-ment within government.In 2007–08, the IPSPD was preparing a

survey of the difficulties in recruiting and re-taining qualified personnel in the access field.Because serving as the access coordinator foran institution is often seen as an isolated,even unpopular role without a clear path forcareer progress, the survey also examinedpossible ways to maintain job satisfaction.One possibility that was tested in the surveywas certification or accreditation for all ATIPpractitioners. (These matters are discussed ingreater detail later in this report.)

4.6 The Role of ATIPCoordinators

Since the passage of the ATIA, initial respon-sibility for managing the intake, processing,and response to access (and privacy) requests


has resided with access to information andprivacy coordinators. Despite the fact thatAIPCs play a central and indispensable rolein translating the law into actual service, theirrole is not even mentioned in the ATIA.Theclosest that the act comes is a reference to therequirement that institutions publish a de-scription of their information holdings—now found in Info Source—and identify thetitle and contact information for the publicservant to whom access requests should bedirected. A complete list of AIPCs is nowpublished on the TBS Web site.Several studies have recognized that the

AIPCs have a stressful and demanding rolethat is not always highly valued within theirhome organizations. At times, they experi-ence uncomfortable conflicts between theirresponsibilities under the ATIA and relatedTBS policy/regulations, their loyalty to theirspecific institutions, and their personal careerprospects. They may be perceived as “nui-sances” because they have to pester col-leagues for records that could be damagingto the reputations of the minister, the institu-tion, and the senior public servants abovethem in the administrative hierarchy. A rareglimpse into the pressures placed on accesscoordinators not to release politically embar-rassing information was provided on the wit-ness stand before the judicial inquiry into theso-called sponsorship scandal in 2005. AnitaLloyd, the access coordinator for PublicWorks and Government Services Canada, de -scribed how she was pressured to withholdinformation on the budget of the sponsor-ship program from a journalist who had filedan access request. To withhold the informa-tion, she told the judge, “would be to mis-lead” the applicant and would be neither le-gal nor ethical (Shochat 2010). For some institutions, there is a continu-

ous flow of access requests; a completed re-

quest brings another one, and requests tendnot to get easier over time. The number ofopen-ended “fishing expeditions” for “in-criminating” documents being conducted byopposition parliamentarians, the media, andadvocacy groups in society seems to be in-creasing. In a related development, the size,complexity, and sensitivity of requests haveincreased over time. Heavy workloads lead toa lack of timely compliance with the dead-lines required by the ATIA and to criticismby the information commissioner.A summary of discussions held with ac-

cess coordinators by the Access to Informa-tion Review Task Force in 2001 included thefollowing summary statement: “On-the-jobstress, induced by factors such as heavy work-loads, inflexible staffing procedures, lack ofoffice space, feeling undervalued in the or-ganization, high staff turnover, and occasionalverbal abuse from requesters dissatisfied withthe level of service received, were all seen asdetrimental to maintaining an effective andmotivated group of professionals” (Govern-ment of Canada, Report of the Access to In-formation Review Task Force 2002, p. 124[henceforth, this document will be referredto as the Delagrave Report, in honor of thechair of the task force]). Perceived as beingout of the mainstream of institutional activi-ties, access coordinators lacked a clear careerpath of advancement and promotion. As farback as 1987, a parliamentary committee hadrecommended that AIPCs be made part ofthe senior management team and thereforepart of departmental executive commit-tees—a recommendation that has been en-dorsed by successive information commis-sioners over the years. In response to the2002 task force review of the ATIA, thecommissioner at that time recommendedthat the position of access coordinator berecognized in the act, that a duty of impar-


tiality be imposed on coordinators, and thatcoordinators be required to report promptlyto the deputy head of the institution any at-tempt to interfere with the operation of theaccess process (Information Commissionerof Canada 2002).Since the Delagrave report, the position

of AIPCs has become more professionalizedand recognized as an indispensable role inimplementing the act. With the extension ofthe ATIA to more institutions as a result ofthe passage of the FedAA, the ATIP commu-nity has become much larger. For depart-ments and agencies experiencing large in-creases in the volume of access requests, it hasbeen difficult to recruit experienced coordi-nators. For example, the Department of For-eign Affairs and International Trade has seenthe number of requests increase by an aver-age of 11.2 percent annually in the periodbetween 1995–96 and 2007–08, with a 13percent increase recorded in the final year ofthat period. Even with a complement of 42full-time equivalent employees in its ATIPOffice, the department has struggled to meetits legislative and TBS policy obligation toprocess requests in a timely manner. In its2007/08 annual report to parliament on itsadministration of the ATIA, the departmentnoted, “There is a limited pool of ATIP an-alysts across the ATIP community and thereare substantial time and cost implications forthe department to ‘grow its own’ ATIP ana-lysts” (Government of Canada, Departmentof Foreign Affairs and International Trade2008). Information management and infor-mation technology challenges compoundedthe department’s problem.A professional de-velopment program and a departmentalworking group on information managementand information technology were among thedepartment’s responses to meet these chal-lenges. Across government, competition for

experienced and talented access professionalshas led recently to higher classification andimproved compensation. (Further discussionof the relationships of AIPCs with other ac-tors in the access process is presented in laterchapters of this report.)

4.7 The Roles ofParliament and the InformationCommissioner

In addition to these internal mechanisms ofaccountability and support for the accessfunction, parliament is meant to play a cru-cial role in upholding the principles of theATIA and overseeing its implementation.Careful and continuous scrutiny of the accessprocess by parliament and its committeescould significantly help galvanize the normsof responsible and accountable behavior onthe part of ministers and senior public ser-vants who are charged with translating theact into practice. To perform its scrutinyfunction, parliament receives the annual re-port on the overall operation of the act fromthe TBS and the annual reports from the 255institutions covered by the act. The information commissioner of Cana-

da, an independent officer of parliament, re-ports annually on the operation of the act,including complaints about refusals of access,interpretations of exemptions, delays, issuesrelated to fees, court cases, and other matters(Thomas 2003). From time to time, past in-formation commissioners have issued specialreports dealing, for example, with the needto modernize the ATIA in light of changedcircumstances since its 1980 adoption. (Fur-ther discussion of the role of the informationcommissioner in terms of the interaction of


his or her office with parliament, ministers,and the public service is presented later inthis report.)Until 2004, there was no parliamentary

forum to which such reports might automat-ically be referred for review. As a result, par-liamentary neglect of the reports was the pre-vailing pattern. Since 2004, however, therehas been a Standing Committee on Access,Privacy and Ethics (commonly referred to asthe ETHI committee) in the elected Houseof Commons. The ETHI committee has pe-riodically taken up the study of access legisla-tion, the reports from the information com-missioner, and the spending estimates of thatoffice. Access matters are also occasionally thesubject of discussion in the appointed upperhouse, the Senate, particularly in the StandingCommittee on Legal and Constitutional Af-fairs. In positive terms, such parliamentary in-vestigations and debates can put politicalpressure on ministers and senior public ser-vants to respect the requirements of the ATIAto avoid public criticism. On the downside,however, when the parliamentary discussionsbecome highly negative and accusatory, theymay trigger a defensive, controlling approachto the release of information by the politicalexecutive and the public service. (The dy-namics of interaction between the externaland internal components of the access processare discussed more fully below.)

4.8 The Office of the InformationCommissioner

As an officer of parliament (also referred toas a parliamentary agency), the informationcommissioner is appointed by the cabinet onthe recommendation of the prime minister;and he or she is confirmed in the office by a

joint resolution of the House of Commonsand the Senate for a seven-year renewableterm. There is also a privacy commissioner ofCanada, who oversees the operation of twopieces of privacy legislation passed by parlia-ment. There has been discussion of combin-ing the access and privacy functions in a sin-gle parliamentary agency, as exists in anumber of Canadian provinces; but this op-tion now appears to have been abandonedbecause there is more than enough to do inboth fields on the national level to keep twocommissioners fully occupied.The existenceof two offices covering the closely relatedfields of access and privacy means there is aneed for coordination; however, at times, thecommissioners have taken different publicpositions on sensitive public policy and pub-lic management issues.The OIC investigates complaints from

citizens who believe that they have been de-nied their rights under the ATIA. Citizenswho have been denied information have theright to complain to the OIC within 60 daysof the denial. Unlike his or her counterpartsin some provinces, the information commis-sioner does not have the authority to issuebinding directives regarding the release of in-formation. The limitation on the powers ofthe OIC has been controversial, leading to adebate over the respective merits of an om-budsman model versus a quasi-judicial mod-el (La Forest 2005).The ombudsman modelis based on investigation and moral suasion,whereas the quasi-judicial model providesauthority for investigations and issuance oflegally binding orders. The debate and theevidence are too extensive to be exploredfully in the space available here, but theyclearly have relevance to the type of accessculture and the climate of interpersonal rela-tionships that exist within government andamong the several groups of actors involved.


As an ombudsman-type office, the OICrelies on investigation, mediation, publicity,and persuasion to promote the cause ofgreater transparency. To perform its duties,the OIC may compel the production of doc-uments (with the notable exception of so-called cabinet confidences), summon witness-es and compel them to testify under oath, andrefer evidence of serious violations under sec-tion 67 or section 67.1 of the ATIA to the at-torney general for possible prosecution. Oncompletion of an investigation, the commis-sioner will issue a report to the head of theinstitution involved and to the complainant.As noted, any recommendation regarding therelease or nonrelease of a document is notlegally binding. In the spring of 2009, RobertMarleau, then information commissioner ofCanada, advocated for order-making powerwith respect to administrative complaints under the ATIA, but not for general order-making pow er. All of the commissioners todate have regarded the ombudsman nature oftheir role to be positive because it enables theOIC to adopt an advocacy role on behalf ofthe ATIA and, at times, the complainant. Ithas been argued that such a role would be in-appropriate if the commissioner had judge-like powers to order the release of a docu-ment against the advice of responsible min istersand senior public servants. It also has beensuggested that employees of the institutionare more likely to cooperate with the infor-mation commissioner in identifying a com-promise that can meet the citizen’s needs be-cause the institution may still go to court toprotect its position.As mentioned, the commissioner may

also make the case for the release of certaintypes of information through his or her an-nual and special reports to parliament, in ap-pearances before parliamentary committees,and in public speeches and interviews that

usually garner media attention. The furtheropportunity for the commissioner and com-plainant to appeal to the courts may be an-other incentive for compliance with recom-mendations to release documents.

4.9 An Evaluation of Canada’s Access System

Although the government of Canada wasseen initially to be in the vanguard of juris-dictions in terms of its access legislation andits commitment to fulfilling its purposes,there have been problems and criticisms(Tromp 2008). Some of the criticisms haverelated to the policy contained in the legisla-tion. An example of this would be the exclu-sions and exemptions from the general prin-ciple of the public’s right to know. Theleading example of limits in the act is the ex-clusion of cabinet confidences. Anything inthe flow of advice to the cabinet is generallyoutside the scope of the act; not even the in-formation commissioner may inspect suchdocuments as part of the appeal process.There also have been ongoing debates overthe need to make existing exemptions moreprecise and to add a “public interest” over-ride clause that would allow the release ofinformation within exempt categories if thebenefits to the public interest outweighedthe potential harm resulting from release.Beyond the debates over the scope and

content of the ATIA, most of the criticismshave been related to how it has been interpret-ed and applied by governments and the publicservice and enforced by the OIC. As Roberts(2002a,b) has noted, there can be strong incen-tives for ministers and public servants to with-hold information. Some reasons for secrecy aredishonorable, such as the desire to avoid disclo-


sure of wrongdoing or gross mismanagement.More often, Roberts suggests, the reasons forwithholding information are plausible but in-complete and not balanced by considerations infavor of release.

4.10 A History ofDefensiveAdversarialism?

According to the critics, the evolution of theATIA in terms of its practical operationsshows deterioration after the initial supportfor its principles. Roberts (2002a,b; Grahamand Roberts 2004) has discerned in the ap-plication of the act a pattern that he labels“adversarialism.” The term refers to strate-gies and techniques developed by govern-ment officials and nongovernment actors “toexploit or blunt the opportunities created bythe Act” (Graham and Roberts 2004, p. 117).The trend began in the 1990s and appears tobe continuing. Examples of developmentsthat have undermined the operation of theact include the following:

• use of private or quasi-governmental or-ganizations to produce governmental serv-ices without extending the ATIA to theiroperations;

• inclusion of nondisclosure provisions innew statutes, effectively trumping the op-eration of the ATIA;

• as a part of governmentwide budgetaryrestraint, cuts to the expenditures of ATIAunits that have led to backlogs of requests;

• frequent resort to the courts by govern-ments challenging the authority and rul-ings of the information commissioner;

• centralizing of communications policiesand practices within government (partic-ularly around the Prime Minister’s Of-

fice) that has exacerbated the tensions be-tween the OIC and governments;

• use of an “amber light” process involvingadvanced consultations among access co-ordinators, senior officials in departmentsand agencies, and, at times, personnel incentral agencies (such as the Prime Min-ister’s Office and the Privy Council Of-fice) to determine the “political safety” ofreleasing sensitive information;

• pressures from ministers and/or their po-litical staff for access coordinators to pro-vide information about applicants, eithertheir identity or occupation—a violationof the Privacy Act;

• decisions to leave potentially embarrassinginformation unrecorded, to destroy records,or to manipulate them in other ways thatcontravene information and records man-agement policies inside of government; and

• as documented in letters and emails (ob-tained under the ATIA), the erosion oftrust and the deterioration of working re-lationships between the senior levels of thepublic service and the OIC so that theybecome very adversarial and legalistic.

Roberts’ findings are disturbing. He hasbeen exceedingly resourceful and imagina-tive in uncovering the hidden dimensions ofCanada’s access system. However, his exam-ples tend to involve the politically sensitivecases, not the more routine requests for in-formation that constitute the majority ofATIP cases. It is difficult to state with cer-tainty whether the small number of high-profile cases involving actual or potentialscandals is more representative of a pervasiveculture of secrecy than the majority of casesin which the principles of open governmentare upheld.As for the manipulation of records, the

Delagrave report in 2001 (Government of


Canada, Access to Information Review TaskForce 2002) found no “chilling effect” onrecords creation and recordkeeping. Basedon a review of files and interviews in sevendepartments, the researchers found that, innearly all cases, records were created andmaintained in accordance with applicablelegislation as well as departmental policiesand standards. Moreover, in locations wherethere were persistent recordkeeping prob-lems, they usually were caused by organiza-tional factors (such as incompatible informa-tion technology systems and poor recordsmanagement) rather than by deliberate ef-forts to prevent disclosure. It should be not-ed, however, that the study was conducted bystaff of Library and Archives Canada, and wasdone for an internal bureaucratic study team;critics argue this diminishes the credibility ofthe study.It is systemic problems—such as refusals of

access requests based on the most restrictiveinterpretations of the exemptions, long delaysin finalizing requests, and the fees charged forprocessing—that attract most of the criticismof Canada’s access process. This is true despitethe fact that more than 70 percent of initialrequests are granted in whole or in part (TBS2008a). When access issues are taken up bythe information commissioner and by theparliamentary committee, it can lead to resist-ance from ministers and the public service.Confronted with governments and bureau-cracies practicing defensive adversarialismduring the 1990s, the information commis-sioner claimed that it was necessary to relymore heavily on his investigative powers, totake the government to court more frequent-ly to clarify his authority, and to escalate therhetoric in his speeches and reports to gainparliamentary and media attention that wouldput pressure on governments to comply withthe letter and the spirit of the ATIA.

According to Roberts (2002a,b; 2006a,b),the downward spiral of mistrust and legalismthat came to characterize dealings between theOIC and the public service reflected more thana backlash against the control efforts of govern-ments. He argues that the enforcement strategyembedded in the ATIA was deficient in twomajor ways. The first deficiency was that theinformation commissioner can make only rec-ommendations on disclosure and must rely onpersuasion and publicity to obtain the release ofinformation.This ombudsman model of theinformation commissioner’s role is contrastedwith the statutory power given to commission-ers in five provinces (Alberta, British Columbia,Ontario, Prince Edward Island, and Quebec) toorder the release of information. In those juris-dictions, Rob erts notes, the commissionersmust be judi cious and careful in their com-ments on the conduct of institutions to avoidcharges of bias in the adjudication of disputesunder the law. Giving “order power” to com-missioners, he argues, does not necessarily meanthat the process of resolving complaints mustbecome legalistic and adversarial. Instead, heposits, “the informal processes for dispute reso-lution may be more effective precisely becausethe (provincial) Commissioner holds the powerto adjudicate disputes. Institutions may take thecommissioner’s office more seriously and bemore likely to comply with the procedural re-quirements issued by the commissioner” (Rob - erts 2002b, p. 667).Although Roberts sees the lack of an or-

der power as a serious weakness of the ATIAand as a contributing factor to the frayed re-lationships with the bureaucracy, successivefederal information commissioners have de-clined the suggestion from parliamentariansand advocacy groups that they be given suchgeneral authority. In defense of the ombuds-man approach, those commissioners arguethat it allows for informal mediation and has


proved successful in practice on individualcases. The TBS is responsible for compilingstatistics on the operation of the ATIA; and,in recent years, it has reported that approxi-mately 70 percent of access requests aregranted in whole or in part (TBS 2008a).However, in 2008–09, the information com-missioner recommended that the office haveorder power with respect to administrativematters, such as reasonable delays in respond-ing to requests and processing fees.The second, more fundamental deficiency

of the Canadian access system, according toRoberts, relates to its complaint-based naturein which enforcement of the act depends onthe joint efforts of citizens and the commis-sioner. When the ATIA was adopted in the1980s, the forecast was for 70,000 requests an-nually when it had become known to Canadi-ans (TBS 2008a). Depending on wider devel-opments within the political system, thevolume of requests can fluctuate quite dramat-ically. For example, earlier studies reported thatthe number of requests had leveled off in the20,000 range and had never exceeded 30,000in any year (Roberts 2006b, pp. 161–62; Dra-peau 2009). According to information suppliedby the OIC, the rate of increase year over yearhas been in the 6 percent range; and during2008–09, there were 34,041 access requests re-ceived by all institutions. In general, there are anumber of reasons—lack of knowledge, thecost, delays, pessimism about the outcome—why citizens have not made greater use of theact and have not appealed more frequently tothe commissioner when they are denied access.Roberts argues that an individual case-by-caseapproach cannot promote a culture of proactivedisclosure. To supplement and reinforce thecomplaints process, he recommends a new performance-based approach to measuring andpublicizing the compliance of departments andagencies with the requirements of the ATIA

(Roberts 2002b). A similar recommendationwas made in the Delagrave report (Gov ern -ment of Canada, Access to Information Re-view Task Force 2002). As noted earlier in the present report, the

information commissioner has been publish-ing annual report cards on the performanceof institutions covered by the act since 1999.Institutions complained, however, about theunfairness of the “letter grade” report cardsbecause they covered only one dimension ofperformance: the percentage of requests thatwere not completed within the statutory 30-day limit. This is not the place to debate themerits of that and other performance indica-tors of how well the ATIA is operating inpractice. It is enough to say that, for 2007–08,the information commissioner adopted anexpanded assessment framework intended toprovide a broader picture of institutional per-formance. Report cards now contain a quali-tative and quantitative description of contextualfactors—such as workload changes, organiza-tional capacity, process improvements, and lead-ership support—that might have affected theability of a particular institution to fulfill itsobligations under the act (Information Com-missioner of Canada 2009). As is discussed lat-er in this study, the new contextual, multidi-mensional, and mixed quantitative/qualitativeassessment approach by the OIC might bealigned with the internal assessments con-ducted by the TBS under the MAF. Since fis-cal 2005–06, the MAF has included access toinformation performance for now 65 (initial-ly 50) of the 255 institutions covered by theATIA.

4.11 Recent Developments

In April 2006, the Conservative Party of Can -ada government of Prime Minister Stephen


Harper introduced the omnibus FedAA,which included a number of reforms to theATIA. As passed by parliament in December2006, the FedAA extended the coverage ofthe ATIA to 70 new entities and introducedsome new exemptions to protect sensitiveinformation in the possession of those newentities. During the 2006 election campaign,the Conservative Party had promised morefundamental changes to the act (Tromp2008, chs. 3, 4). But, once in office, it releaseda discussion paper to elicit the views ofCanadians and parliamentarians on issuesthat it described as not having been the sub-ject of sufficient consultation and debateoutside and inside government. The discus-sion paper (Government of Canada 2006)provided the focal point for consultationswith some of the stakeholders in the accesscommunity.One such consultation took place at the

request of the information commissionerand was organized by the Public Policy Fo-rum, an independent, not-for-profit organi-zation dedicated to the improvement of gov-ernment performance. In June 2008, it helda one-day workshop, titled “Modernizingthe Federal Access to Information Regime.”The workshop brought together 40 expertsfrom government, the private sector, civil so-ciety, and the academy. Canada’s informationcommissioner made opening remarks to thegathering. Whereas the government’s discus-sion paper focused narrowly on possible leg-islative changes to the ATIA, the workshopdiscussions ranged far more widely to in-clude political, administrative, and culturalfactors that affected the operation of the act(Public Policy Forum 2008).At the risk of oversimplifying, it can be

said that three overarching themes emergedfrom the workshop. First, Canada’s accesssystem was characterized by slow response

times to initial requests and long delays incomplaint resolution. These problems werethe product of numerous factors; but, mostimportant, they reflect a public service cul-ture that resists transparency and treats accessin narrowly legalistic terms rather than ac-cepting openness as a fundamental principle.The ATIA units and operations within de-partments and agencies were seen to be iso-lated, under-resourced, and lacking in profes-sional identity.Second, participants agreed in general

terms that an ideal ATIA system should re-flect the principle that most information isroutinely made public. There should be aservice culture in which requests and com-plaints are processed efficiently and withcourtesy. Ideally, access coordinators wouldsee requests as an opportunity to serve citi-zens and to support democracy rather than asa threat that could get them in trouble withtheir administrative superiors and even theminister at the head of the department. In aperfect world, access coordinators wouldhave a sense of belonging to an identifiableprofessional group, and there would be a vi-able career path for them to pursue in the ac-cess field.Third, moving from the deficient existing

state of the ATIA system to more closely ap-proximate the ideal was seen to require anumber of components: top-level commit-ment and support from ministers, senior pub-lic servants (deputy ministers), parliamentari-ans, and civil society; improved technologyand a more reliable records management sys-tem across government; more education andtraining, including ongoing professionalizationof the access coordinators; adequate resourcesand a performance management frame workwith appropriate evaluation criteria and in-centives that support access as a fundamentalvalue of the public service.


31

Although there was a consensus withinthe workshop on the general themes, therewas less agreement on the details of how toachieve the desired improvements. Regardingthe focus of the present report, the link be-tween a rigorous performance managementframework for access matters and the promo-tion of a culture of transparency was seen ascrucial. A performance measurement, report-ing, and management system that recognizesand even compensates public servants for re-specting and enabling the principles of accessto information might send a strong messagethat transparency was a fundamental value ofdemocratic government. However, severalparticipants suggested that public servantsnever face consequences or sanctions for notreleasing information. “Unless there is an at-titudinal change so that public servants don’tfeel they are going to get into trouble everytime they release information,” one work-shop participant observed, “then it’s a hope-less situation” (p. 7). Participants agreed thatpolitical will and political leadership are keyto improving the ATIA system.

4.12 One Access Culture,or Many?

The claim by successive information com-missioners, by academic researchers, and by

Public Policy Forum workshop participantsthat there is a “culture of bureaucratic secre-cy” that undermines the ATIA in practicemay be too broad a judgment to make aboutan access system that covers 255 institutions.Some institutions occupy strategic locationsin the policy process and handle highly sen-sitive information. For example, the PrivyCouncil Office, which supports the primeminister and cabinet, is at the center of thegoverning process. It is one of the most pop-ular targets of access requests; but the sensi-tivity of the files it handles means that cau-tion, risk calculations, delays, and limits mustbe involved with the release of information.Lower-profile entities handling more in-nocuous information will be the target forfewer access requests, and there will be lessrisk attached to the release of information intheir possession. In summary, rather than asingle public service culture of access to in-formation, there are conceivably several cul-tures across the wide expanse of the Canadi-an public sector. This qualification must bekept in mind as the study moves to anoverview description of the divergent inter-ests, perspectives, and incentives that swirlaround the ATIA in practice.

Overview of the Canadian Access System

33

As noted in chapter 1, this study looks be-yond the adoption of formal access laws andinterpretations by the courts to examine therole that leadership, culture, incentives, andresources have played in the practical evolu-tion of Canada’s ATIA.With this focus it wasnecessary to go beyond the examination ofdocuments and online sources to identify themore hidden, informal dimensions of the ac-cess process, including the incentives andmotivations that guide the various institu-tions and actors involved. This chapter cau-tiously generalizes about the interactive dy-namics of the process. Given the limits of thestudy and the space available, the followinganalysis of the motivations and incentivesthat drive the behavior of ATIA actors isnecessarily impressionistic and incomplete;but it serves to reinforce the point that thereare both divergent and shared interests andperspectives that shape how Canada’s accesssystem works in practice.After more than 25 years of operation, the

ATIA has become institutionalized withinthe governance structure. The word institu-tion is used here to refer to a system of estab-lished procedures and patterns of interactionthat regulate or, less precisely, shape the be-haviors of organizations and individuals whoconstitute Canada’s complex access process.

Institutional arrangements and proceduresmay be both constraining and enabling forparticipants. Constraints may be formal(laws, regulations, administrative policies, re-porting requirements, and so forth) or infor-mal (behavioral norms and values embeddedin organizational cultures and pressures toconform). Sanctions and rewards work to af-fect the actions and decisions made by par-ticipants on a number of levels of the accesssystem’s governing structure. The underlying motivations and intentions

of the public officials—both elected politiciansand career public servants—may be singular ormixed along the following lines: appropriateness(what ought to be done according to the law,the circumstances, and the interests of the or-ganization), instrumentality (what will benefitme), and orthodoxy (how things are donearound here). Various incentives and disincen-tives affect how participants in the access sys-tem respond in particular cases to requests forthe release of information (Gill and Hughes2005). Although institutional arrangements,processes, and shared meanings lend a degreeof stability and predictability to interactions,leaders and their actions can transform values,attitudes, and behaviors. Cultural change,however, is typically a slow, incremental, anduncertain process.

Divergent Interests,Perspectives, andIncentives Relating toAccess Issues

5

The premise for the discussion to followis that public officeholders—both electedpoliticians and appointed public servants—probably act in most instances on the basis ofmixed motives rather than one-dimensionalself-interested calculations attributed to themby public choice theorists. A second, relatedpoint is that the following descriptions of at-titudes and behaviors of the actors within theaccess process constitute “tendency” state-ments rather than predictive models of howministers, senior public servants, access coor-dinators, information commissioners, parlia-mentarians, the media, and requesters willbehave in all instances.

5.1 Access Requesters

On the premise that access laws are primarilymeant to support democratic engagementand accountability, the discussion of differentroles will begin with access requesters. Theuser population for the ATIA is diverse, butcan be grouped into these categories of re-questers: frequent users (such as advocacygroups, businesses, and consultants), the me-dia, parliamentarians, and the general public.Over time, the relative percentage of requestsfrom each of these groups has changed some-what. For example, opposition parliamentari-ans and their staff have emerged over time asmajor users of the act. However, businesseshave remained major users throughout theact’s existence. Within the category of thegeneral public, there are both first-time,poorly informed users and frequent, knowl-edgeable users, including consultants whomay be hired to pursue access requests onbehalf of other individuals and organizations.The size and sophistication of the applicantpool affect the access proc esses inside particu-lar institutions and the professionalization of

the access cultures within them. Differentgroups of users bring different motivations,expectations, and capabilities to use the ac-cess system.

Citizen Requesters

Very few “ordinary” citizens make use of theATIA. When they do, it is usually because ofan issue personally related to them.Their re-quests often are general in nature, partly be-cause they are not well informed about whodoes what in government and where docu-ments might be located. The law and theTBS policy and guidelines require that accesscoordinators contact requesters to clarifywhat information they are seeking. Within the general public, there is a small

number of highly motivated, sometimeswell-informed applicants who want to seeevery record that exists and to see it prompt-ly. They often have little appreciation for theprocess involved in making larger, moreopen-ended requests; the impacts on the reg-ular operations of the institution; and the factthat there can be a backlog of requests, in-cluding some sizable, complicated, and time-consuming requests. Educating applicantsabout their rights, the exemptions, delays,fees, and so on can be time consuming, but itis vital to the success of the act in the realworld.

Experienced, Serial Users

Experienced, professional requesters—such asbusinesses and for-hire consultants—knowwhat they are seeking, are persistent in theirdemands, and often want access to informa-tion that is highly sensitive. Their incentivesare often material—gaining a competitive ad-vantage over other businesses or wielding in-fluence in the corridors of power inside gov-ernment. Serial requesters tend to be focusedin their use of the act.Their requests are often


complex and voluminous, requiring staff with -in an institution to invest significant work andtime completing the processing of the requests.Fees can be charged and time extensions canbe used in connection with the processing ofsuch large requests. Nonetheless, the “com-mercial” nature of some major requests leadsto at least ambivalence, if not outright resist-ance, within the public service, some mem-bers of which believe that government shouldnot subsidize the intelligence-gathering func-tion of companies, industry groups, and well-heeled consultants. Such applicants are, ofcourse, exercising their legitimate rights underthe ATIA, and the disclosures produced bytheir perseverance may serve the wider publicinterest.

Media Requesters

Among the experienced users of the ATIAare media requesters. Members of the mediasee it as part of their professional role to chal-lenge government elites who try to controlinformation and use “spin” to present it inthe best possible light. A number of Canadianjournalists rely heavily on the ATIA processto obtain material for printed and electroni-cally distributed stories. In doing so over theyears, they have published stories that forcedgovernments to explain and defend actionsand inaction that became controversial as aresult. In this way, the media using the ATIAbecomes a source of transparency and ac-countability within the political system. However, the problems of delays involved

with the release or nonrelease of informationand the fees charged for the reproduction ofdocuments have frustrated journalists work-ing toward deadlines and having to file mul-tiple stories for mainstream media, Web sites,and blogs. Although legally under the ATIAthe occupation and identity of the requesteris to remain confidential to ensure equal

treatment, there is some evidence of “sensi-tivity ratings” being applied to media requestsand of an “amber light” process for handlingthem. Referral of media requests to deputyministers, ministers’ offices, and even to cen-tral communications personnel in the PrimeMinister’s Office can be the source of signif-icant delays. It is legitimate for ministers andsenior public servants to manage the commu-nications process, but not if this “manage-ment” undermines the ATIA goals of open-ness, timeliness, and accountability.

Parliamentarians and Their Staff

A major role of parliament within the Cana-dian political system is to scrutinize both theperformance of the prime minister and cab-inet and the way money is spent and pro-grams operate within the public service. Thegoal is to promote accountability to the pub-lic. Parliamentarians who are part of the gov-erning party have less incentive to engage inthe critical review of government actions forseveral reasons: because embarrassing revela-tions could lead to a loss of support from theelectorate, because party loyalty and partydiscipline tend to be strong, and because theymay not want to reduce their chances of be-ing appointed to cabinet by the prime min-ister. This leaves performance of the scrutinyfunction to the efforts of opposition parlia-mentarians. Their efforts are partly motivatedby a desire to provide Canadians with bettergovernment by exposing policy mistakes andmismanagement. However, when parliamentincreasingly resembles a permanent electioncampaign, the frequent goals of the opposi-tion are to embarrass the government and togain ground in the polls.Opposition parties in parliament and their

political staff have made growing use of theATIA over time. Political staff in the offices ofleaders of the three opposition parties, in the

35Divergent Interests, Perspectives, and Incentives Relating to Access Issues

research bureaus that support the party cau-cuses,5 and in the offices of individual parlia-mentarians have become knowledgeable intheir use of the access process.With its de lays,the ATIA process does not fit with theevents-driven and immediate nature of theparliamentary process; but opposition partieshave learned to put multiple requests into thepipeline and wait patiently for the stream ofreturns eventually to flow. The governmentnaturally wishes to manage the process so asto avoid being blindsided by opposition par-ties using information against it.Whether members of parliament and

senators use the ATIA process in a construc-tive manner to enforce accountability andimprove performance or with a negative in-tent simply to attack the government andgain political support reflects the evolvingpolitical culture of the institution of parlia-ment and the issues on the agenda at a givenpoint in time. The use of open-ended andfrequent access requests from parliamentari-ans in recent years reveals the highly partisanatmosphere of parliament, the determinationof opposition parties to score points againstthe governing party, and the defensive effortsby governments to manage the disclosureprocess. It is not so much that parliamentar-ians lack information; in fact, they are over-loaded with the flow of information. How-ever, because the information consideredmost relevant for their short-term politicalpurposes is usually not available under ATIP,they often take out their frustration by blam-ing access coordinators, top-level public ser-vants, and their political opponents in officefor allegedly putting pressure on the publicservice to withhold material.

5.2 Public ServantsResponsible forProviding Access

Access to information and privacy coordina-tors face the complicated and delicate task ofimplementing the access system.They haveto deal with requesters, handle requests ontime, and manage the internal complexitiesof compiling the necessary information. Sen-ior managers, as well as ministers and theirpolitical staff, have an interest in controllingand administering the flow of public infor-mation and its impact on public opinion andthe political process. The actors included inthe oversight and processing of informationare subject to different sets of incentives andpressures that shape their behaviors. The co-ordination and disposition of these actors in-fluence the effective performance of the ac-cess system.

The Initial Contact: AccessCoordinators

The position of access coordinator has beendescribed as demanding and stressful. Overtime, the role has become more professional-ized, better recognized and compensated, andbetter supported within departments andagencies. But tensions are inherent as coordi-nators may be caught between the demandsof the law (to provide access) and the de-mands of their superiors (to maintain secre-cy). As noted earlier, employees in the variousinstitutions of the public service eventuallydevelop an understanding that certain behav-iors in relation to the access process are ap-propriate under the law, instrumental interms of their own career prospects, and or-thodox under the unwritten and informalrules of how things are done in their depart-ments. These are the cultural components of


5The term caucus refers to the private meetings and activitiesof all parliamentarians in each of the parties.

the access system that are difficult to docu-ment and to change in a planned way.Direct pressures on coordinators from

ministers, their political staff, and senior de-partment officials probably are rare. The vastmajority of requests are not referred to seniormanagement or the minister’s office for ap-proval. However, in bureaucratic cultures thattend to be risk averse, there is a recognitionof the risks and potential consequences ofdisclosing records that could cause harm tooutside parties, embarrass the minister, dam-age the reputation of the institution and itsmanagement team, and (far from least im-portant) have negative consequences for thecareer prospects of the coordinators them-selves. As is discussed later in this report, thereare tangible and intangible penalties for poorperformance by access coordinators (such aspoor report cards for delays), but there donot seem to be commensurate rewards fordoing the job well and meeting the goals ofthe ATIA.Previous surveys of access coordinators in-

dicate that they strongly support the princi-ples of the ATIA, but are frustrated by theway that it is used and by the complicationsand constraints associated with its operation.Opposition members of parliament, the me-dia, advocacy groups, and some individualsfile highly general, vague requests that seemto have the public service doing their researchfor them. General requests covering broadtopics mean that coordinators have to seekintra- and interdepartmental cooperation.For a number of reasons, the creators of

files and the units that control them may bereluctant to release them. For example, pro-gram managers and service delivery person-nel may view the search for and retrieval ofrecords as interfering with their primary du-ties, especially when units are understaffedand overworked. In most departments, there

are communications specialists who are ac-customed to crafting messages to avoid con-troversy and who are suspicious of disclosing“raw” data that are open to conflicting inter-pretations. In some instances, departmentlawyers become involved to ensure that dis-closures do not expose the department toembarrassment and legal liabilities. Finally,there are exempt political staff and seniorpublic servants close to the minister whowant to control the process to avoid potentialembarrassment for the minister and/or thedepartment.Coordinating the work of generating re-

sponses takes time, and the requirement formultiple levels of review can lead to misseddeadlines for the release of information. De-lays also may be caused by the volume of re-quests (especially at certain times of the year)and by problems with information technol-ogy and records management. Staffing limi-tations also contribute: the staff working withcoordinators occupy entry-level positions,there is significant turnover in such positions,experienced staff is in short supply, it takestime and training for institutions to developstaff capability, and there are not the samereadily identifiable career paths that exist formany other occupations in the public serv-ice. These staffing challenges lead to back-logs, delays, and mistakes.In general terms, coordinators have dele-

gated authority to make decisions on the dis-closure of information; however, delegationarrangements vary across departments andagencies. In strict legal terms, the deputy min-ister has no authority to overrule any access-granting or -denying decision made by thepublic servants to whom authority has beenexplicitly granted. In practice, however, ac-cess coordinators recognize that it is appro-priate and prudent to refer nonroutine, sen-sitive requests to the deputy head of the


institution and perhaps to the minister’s of-fice. It is the coordinators, though, who areon the front line and feel the initial brunt ofrequesters’ frustration and criticism—andsometimes those of the OIC staff acting onbehalf of requesters appealing request denials.As regulators sworn to uphold the ATIA,OIC staff have been known in an earlier pe-riod to be highly aggressive in their dealingswith coordinators.

Senior Managers

Program officials who control files and thesenior public service leadership within insti-tutions seldom welcome ATIA requests. Atbest, such requests are regarded as a nuisance;at worst, as a threat of potential embarrass-ment for the officials, the department, andthe minister. A summary of discussions be-tween the Delagrave task force and accesscoordinators in 2001 noted

Some participants deplored a perceived lackof accountability for compliance with theAct in some program areas and a perceivedlack of commitment to the spirit of the Actby some managers at all levels, includingsenior management (Government ofCanada, Access to Information Re-view Task Force 2002, p. 125).

The introduction of the MAF in 2003,with the provision that deputy heads be ac-countable for the administration of theATIA, was meant to be a counterweight tothe pressures and incentives favoring secrecy.(Whether MAF incentives are strong enoughto offset the informal pressures at the politi-cal level and in the bureaucracy for damagecontrol and keeping ministers out of troublewill be discussed below.)It must be recognized that senior public

servants are accountable to many different in-

dividuals and institutions for many differentdimensions of performance. Deputy heads areformally accountable to the prime ministerand the cabinet who appoint them, to theirindividual ministers, and to such central agen-cies as the TBS and the Privy Council Office.Informally, they have a sense of responsibilityto and are influenced by the numerous stake-holders of the institutions they lead, includingtheir peers at the deputy level across govern-ment, their employees, outside organizationsand groups, and the parliamentary committeesbefore which they appear on a regular basis.Included in the stakeholder category to whichthey must be responsive is the OIC, whichcan compel the production of documents andthe appearance of department staff, but cannotorder the release of documents. The desire toavoid a negative report card and adverse pub-licity from the OIC must be balanced withconsiderations of maintaining ongoing posi-tive and trusting relationships with formal andinformal stakeholders.

Ministers and Political Staff

Ministers and their political staff have theclosest, most immediate working relationshipwith deputy heads and other senior public ser-vants who are designated as responsible for theadministration of the ATIA.The mere exis-tence of the act challenges the increasing em-phasis within government—no matter whichparty is in office—on the political manage-ment of the government agenda, includingthe avoidance of surprises and crises, tightcentralized message control, the use of spinto interpret events in the most favorablelight, getting out in front on negative storiesto frame the issues before they hit parliamentand the media, and the development of ac-tion plans to manage issues through the newscycle to limit the political damage to thegovernment and the minister. Political dam-


age control by political staff in ministers’ of-fices and by the Prime Minister’s Office atthe center of government is sometimesachieved at the expense of the anonymity andprofessional reputations of public servants whoare not allowed by law and constitutional con-ventions to defend themselves publicly.Ministers and senior department officials

want to manage communications aroundsensitive issues, including access to informa-tion requests. Because they are challengedconstantly by the opposition, the media, andadvocacy groups within society, ministersneed to anticipate criticism and be preparedto answer their critics. This involves morethan simply defending their records and rep-utations; it also involves building public un-derstanding of and support for what govern-ment has done or is promising to do. The problem arises, however, when the

political process of contentious issues man-agement undermines the access process indirect and indirect ways. Directly, it can leadto delays because sensitive requests are re-ferred up the line to the top of the institutionto be checked for their political safety.Thischecking involves exempt, political staffworking in the Prime Minister’s Office orfor individual ministers. Because managingtheir bosses’ time is part of their role, theymay act as filters for which matters arebrought to ministers’ attention. Most politi-cal staff see their primary duty as helpingtheir ministers look good—including keep-ing them out of trouble.There is the risk thatoverzealous, usually relatively young and in-experienced political staff will intervene inthe access process, claiming to be acting onbehalf of the minister. Although there is acode of public service values and ethics thatapplies to career public servants, no suchcode of conduct exists for the partisan indi-viduals who provide political support and

advice to the prime minister and other min-isters. Therefore, there is the danger that min-isters and their staff will put pressure on sen-ior public servants to delay the release ofinformation to accommodate the issues man-agement approach that tries to prevent criti-cism in parliament, in the media, and fromgroups within society.At the time of writing (June 2010), the is-

sue of political interference in the accessprocess is being reviewed by the House ofCommons’ ETHI committee. This reviewbegan after allegations that political staff hadsought to retrieve and/or prevent the releaseof information that should be made publicunder the ATIA.The minority Harper gov-ernment has blocked political staff from ap-pearing before the committee, which has anopposition majority and is chaired by an op-position member of parliament. The com-mittee has appealed to the Speaker of theHouse of Commons to determine whetherthe political staff’s refusal to honor a sum-mons and appear before the committee con-stitutes contempt of parliament, an offensethat carries potentially serious penalties. Atthe same time, the OIC is investigating therole of exempt political staff in the accessprocess.

5.3 The InformationCommissioner asChampion?

The small constituency of active support foraccess principles in society, the limitedknowledge of the principles and practices ofthe ATIA within parliament, the tight con-trol by the prime minister and the cabinetover the legislative process and parliamentaryscrutiny of the administration, and the am-bivalent stance of the senior public service


toward the act all combine to make the in-formation commissioner and his or her staffthe most visible, consistent champions of thepublic’s right to know. Compared with thebreadth of its mandate and the number of in-stitutions covered by the ATIA, the commis-sioner’s office has limited financial and hu-man resources. It does not have a formaleducational mandate; but through its reports,appearances before parliamentary commit-tees, and speeches by the commissioner andother staff, the OIC is able to generate par-liamentary, media, and public attention onaccess issues. In the absence of an extensivenetwork of outside advocacy groups pro-moting the cause of open government, thereis the danger that the commissioner will be-come identified in the media and in the pub-lic’s mind as a kind of “super hero” who cansingle-handedly advance the access causeagainst the ignorance, indifference, or resist-ance (passive or active) on the part of minis-ters and the public service. The background, personality, leadership

style, and credibility of the commissioner areimportant to how the office interprets its roleand how effectively it works with the otherinstitutions and individuals who constituteCanada’s access system. Commissioners areappointed by the cabinet on the recommen-dation of the prime minister. Following theHouse of Commons’ ETHI committee re-view and comment on the nominee, there isconfirmation of appointment for a seven-year term by a joint resolution of both hous-es of parliament.Over the past 25 years, four commission-

ers have been appointed.6 They have cometo the office with varied backgrounds—aformer penitentiary ombudsman, a formerjournalist, a former member of parliament

and cabinet minister, and a former clerk ofthe House of Commons. Past commissionersnot having been appointed from within theoffice and lacking direct background in theaccess field may have meant that senior staffin the OIC have been more influential thanotherwise would be the case in shaping theapproach of the office to securing compli-ance with the ATIA.The “model” commissioner has to bal-

ance the roles of educator and champion ofthe actors (particularly public servants) whoare expected to make the access system workwith the roles of monitor and inquisitor forthose actors (especially ministers and theirpolitical staff ) who might wish to bend orbreak the access rules. In broad terms, com-missioners may choose between a relativelysoft, diplomatic approach and a hard, con-frontational approach.The stance of a partic-ular commissioner will be shaped by the is-sues on the access agenda at the time, by theresponses of governments to those issues, andby his or her own personality and leadershipstyle. Three of the four commissioners todate have been described as following a firm,but nonconfrontational approach; one com-missioner (the former member of parliamentand cabinet minister) was seen to be moreaggressive and legalistic in his approach. Eventhe commissioner who, over time, acquired areputation for being combative spoke earlyin his term as follows: “I prefer to conductmy investigations by consent and coopera-tion. Our normal modus operandi is to meetwith government officials, to receive recordswhich are voluntarily produced. Officials areseldom put on oath and recorded duringtheir evidence.”7As an ombudsman-type of-fice, the success of the OIC depends in large


6The fifth commissioner, Suzanne Legault, was appointedon June 30, 2010.

7 Remarks by Commissioner John Reid to the External Ad-visory Committee of the Access to Information Task Force,June 20, 2001.

measure on the thoroughness of the investi-gations, the mediation and persuasion skillsof the staff and the commissioner, the repu-tation of the office for allegiance to the lawrather than advocacy for the complainant,and its fairness in dealing with departmentstaff.Like other officers of parliament, the in-

formation commissioner is in the trust busi-ness in several senses of that phrase (Thomas2008d). First, the OIC was created by parlia-ment to contribute over time to greater pub-lic trust in government. Second, parliamentmust trust (up to a point) that the OIC willfulfill its mandate, and individual parliamen-tarians must avoid interfering in the resolu-tion of individual complaints about the non-release of records.Third, individual Canadiansmust put their trust in the information com-missioner as a neutral, impartial, and objec-tive professional, committed to upholdingthe principles of the ATIA. Fourth, althoughsome tension is inevitable, there must besome degree of trust between the OIC andthe departments and agencies covered by theATIA. Such trust takes time to develop andcan be lost in a single event—a minister’s of-fice or a public manager trying to cover up aproblem, or the OIC publishing an ill-informed and unfair report about the actionsof an institution. The information commis-sioner cannot pull his or her punches to stayon friendly terms with a particular institu-tion and its leaders. It is a matter of finding abalance between working with departmentsand agencies as an educator and consultantand using criticism and publicity to enforceaccountability. A certain amount of mutualwariness necessarily characterizes the rela-tionship. Ideally, tensions will be reducedthrough the development of a culture ofshared understandings, mutual respect, andconditional trust.

5.4 Conclusions

The many and complicated relationshipsamong the various institutions and individu-als involved in the access world are dynamicand shifting in content and tone. Whereascontroversial, high-profile cases garner par-liamentary and media attention, the vast ma-jority of access requests are processed in aroutine manner that does not lead to com-plaints to the OIC. The ATIA process cer-tainly could be improved. It qualifies as a gi-gantic understatement to say that much haschanged in the broader external environ-ment and the internal workings of govern-ment since the ATIA was brought into forcemore than 25 years ago.The act needs to bemodernized to reflect changed realities. At least as important as modernizing the

legislation, however, is the need for strongerpolitical and bureaucratic commitment tothe principles of the act. Governments havetended to see the ATIA as just another ad-ministrative process, rather than as a statutoryprogram that deserves adequate funding andstaffing to be effectively implemented. Thisgeneral attitude by governments carries overinto central agencies such as the TBS, whichoften—but not always—expects institutionsto absorb access costs into their ongoing op-erations. Because the administrative heads ofthose institutions (usually deputy ministers)face multiple pressures and conflicting incen-tives, they are not likely to put the needs ofaccess units ahead of other departmental pri-orities. This makes such units vulnerablewhen budgets are tight. As indicated by the analysis in this study,

the nature and severity of the act’s deficien-cies and its implementation are naturallyviewed differently by the various stakehold-ers in the access to information community,both inside and outside of government.The



diverse interests, incentives, and motivationsof the numerous institutions and individualsinvolved lead to complex interactions, ten-sions, and ongoing negotiations that make itdifficult to reach agreement on changes tolegislation, administrative policies, and thelevel of financial and human resources re-quired for the access system.This must be re-membered when assessing the potential andthe limits of reforms that might be undertak-en within the structures and managementprocesses of the public service alone.

* * *

The next chapter examines the MAF,which was introduced in 2003–04 to providea basis for annual appraisals of senior publicmanagers in select institutions within thegovernment of Canada. An understanding ofthe MAF and its operations is necessary back-ground knowledge to determine whether theinclusion of access matters in the frameworkwill promote greater voluntary compliancewith the ATIA and perhaps counterbalancesome of the pressures and incentives that pushtoward secrecy.

43

6.1 Origins of the MAF

In the mid-1990s, a consensus emergedwithin the Canadian federal public servicethat—although always well intended andusually based on solid foundations—previousefforts at measuring performance, settingstandards and benchmarks, and promotingimprovement were not coherent, coordinat-ed, or consistently effective. This consensusled to a meeting involving senior public ser-vants from all levels of government and aca-demics. The meeting resulted in an admissionthat much of the public service had very lit-tle idea of how satisfied Canadians were withthe services they provided; the recognitionthat this satisfaction was the most importantmetric of how well the public service func-tions; and a resolution to create and imple-ment an outside-in, reasonably standardizedtool for measuring service delivery in thefederal public service (Heintzman 2009).In 1997, the TBS was identified as the

management board for the government ofCanada—a step toward creating a more uni-fied approach to measuring service delivery,and performance more generally. In March2000, the TBS released a report titled “Resultsfor Canadians: A Management Framework forthe Government of Canada.” The report was

organized around four commitments. The firstcommitment was to a citizen focus built onthe understanding that the federal govern-ment exists to serve Canadians and that all itsactivities should be carried out and assessed inthat light. The second commitment was tovalues, particularly the identification of thevalues that must be central to the public serv-ice. The third commitment was to results, anemphasis on harmony with contemporarypublic and private sector thinking about ac-countability in which outcomes are of greaterimportance than proc esses.The final commit-ment was to value for money and cost effec-tiveness (TBS 2000). “Results for Canadians”led to many initiatives within departments andagencies to identify areas for improvementand to measure performance and service de-livery (TBS 2009). While “Results for Canadians” was being

developed and implemented, the ModernComptrollership Initiative was looking forways “to reform public sector managementand to fundamentally transform federal admin-istration and governance” (Dupuis 2006, p.18).The initiative was built on the understand-ing that the expectations of Canadians andprovincial governments about their relation-ships with the federal government and publicservice were changing as a result of evolution

Origins, Elements, andEvolution of the MAF

6


in technology, federalism, and the political cli-mate. More revolutionary was its assertion that,in the 21st century, comptrollership—long un-derstood to have significance only with regardto an organization’s budgets, revenues, and ex-penditures—must embrace stewardship of re-sources, decision making, leadership, humanresources and staffing, as well as the financialside of government.In 2003, the TBS released the MAF. In

practice, the framework synthesizes the com-mitments enumerated in “Results for Cana-dians” with the methodology developed bythe Modern Comptrollership Initiative.Theresult was a tool intended to be used annuallyby the great majority of federal departmentsand agencies to measure performance, im-provement, and management in general; toprovide information to the TBS about depart-ments and agencies and their leadership; andto stimulate discussion between the TBS andsenior management. Although specific indica-tors and methodology have evolved througheach iteration of the MAF, the major elementsand goals within it have remained stable, espe-cially in more recent years (TBS 2009).

6.2 Components of the MAF

The framework comprises 10 components or-ganized as six specific management arenasframed by four measurable elements.8 In agraphic depiction of the framework, publicservice values and learning, innovation, andchange management run parallel to each otherabove and below the central six arenas. Gover-nance and strategic direction and results and

performance run parallel to one another leftand right of the arenas. Within the frame arethe six arenas: policy and programs, people, citizen-focused service, risk management, stew -ardship, and accountability (Kelly Sears 2009).

Public Service Values

Although the specific values and ethics es-poused by departments and agencies willvary according to their own mandates andchallenges, the MAF assesses how well theappropriate values and ethics are integratedinto the leadership, day-to-day operations,and organizational culture of the body inquestion. Included in this expectation is anindicator of whether appropriate avenues ex-ist for staff and others to report perceivedbreaches of values and ethics.

Learning, Innovation, and ChangeManagement

Organizations must commit to continuousimprovement and learning. Individual andorganization learning should be not only en-couraged but also incorporated in processes.

Governance and Strategic Direction

All departments and agencies must supporttheir ministers and senior officials, whiletranslating policy into practice. The MAFmeasures the degree to which this occurs inpractice. Departments and agencies shouldhave clearly measurable objectives, and theirprogram architecture and strategic directionshould be congruent with their mandates.This expectation also includes the extent towhich the accountability of officials andstructures is aligned with the larger strategicpurpose of the department or agency.

Results and Performance

This expectation is centered on transparent andappropriate reporting of government functions;

8The TBS Web page has a section devoted to explaining andpresenting the MAF, including detailed information aboutassessment rounds I–VII (http://www.tbs-sct.gc.ca/maf-crg/index-eng.asp).

45

collection, analysis, and release of results; andchanging practices and processes based on thefeedback provided by results. Both quality andneutrality of evaluation are assessed, as is the de-gree to which evaluation is consistently incor-porated into plans for the future.

Policy and Programs

This indicator examines the in-house ability ofeach department or agency to conduct rigorouspolicy analysis and to develop and implementprograms that best meet the needs that the or-ganization exists to fulfill.The MAF requiresdepartments and agencies to consult both withstakeholders outside of government and withrelevant central agencies and other offices.

People

Staff retention and job satisfaction are crucialelements of this indicator; but it also includescontinuous education and human resourcedevelopment, recruiting, and ensuring thatthe public service workforce is representativeof Canadians themselves. Each workplaceshould promote collaboration and bothphysical and psychological wellness.

Citizen-Focused Service

This indicator examines the degree to whichappropriate services are made available to allCanadians, with an emphasis on the availabil-ity of services in both official languages.Services should be provided as part of awhole-of-government approach, whereverpossible, to make a citizen’s experience asseamless as possible. The needs of citizensshould be central to the development andimplementation of all new programs and tothe administration of existing programs.

Risk Management

Departments and agencies are to carry outcontingency planning, to identify and assess

relevant risks to their operations, and toadapt their processes and practices as indicat-ed to minimize risk.The MAF examines thedegree to which decisions are informed byrisk management, and the extent to whichrisk management awareness is factored intoday-to-day operations at every level.

Stewardship

Organizations must make efficient and ap-propriate use of the resources they are pro-vided and ensure that they are spent in amanner consistent with the policies, priori-ties, and values of the Canadian governmentand people. Information management is anelement of this dimension of accountabilitythat requires effective use of informationtechnology and compliance with laws con-cerning privacy and access to information.This element also includes project manage-ment and procurement.

Accountability

The MAF identifies accountability not only asappropriate use of and reporting on resources;but also as the creation of processes to ensureadequate reporting, assigning responsibilitiesaccording to capability, and establishing clearlines of responsibility. Deputies should dele-gate appropriately, officials should understandthe authority that has been delegated to them,and the evaluation of all staff at all levelsshould be in harmony with the broader man-date of the organization.

* * *

Not each of the 10 elements is of equalrelevance to all departments and agencies;furthermore, the specific measures used toassign values for performance in each ele-ment vary, both among organizations andover time. Carrying out the MAF evaluations

Origins, Elements, and Evolution of the MAF

has changed since 2003, although it has beenmore stable in the more recent past.The creators of the MAF declared that it

would not become an elaborate and expensiveprocess. There are both direct and indirectcosts involved, both in the TBS and at the de-partment/agency level. The MAF unit insidethe TBS has involved only about 10 employ-ees.This small number is possible because theactual analyses of the MAF submissions fromdepartments and agencies are prepared by pol-icy and program specialists in other divisionsof the TBS. This would mean, for example,that the ATIP Office in the TBS would reviewdepartment/agency submissions on accessmatters. It was estimated by one official inter-viewed for this study that 300–400 TBS per-sonnel may be involved with the MAFprocess in a given year. A significant numberof staff and a sizable amount of their time areinvolved with the MAF in the 60–65 depart-ments and agencies reviewed each year. (In re-cent years, the number of departments andagencies has been reduced.) The workload in-volved with the MAF was reduced by the in-troduction of a TBS/MAF Web portal thatenables organizations to upload files electron-ically. Reduced coverage by the MAF, as de-scribed below, also has made the process moreefficient in generating information and in thestaff commitment required.

6.3 The Impacts of the MAF

The MAF is based on the premise that for-mal leadership authority and control over re-sources should be matched by meaningfulaccountability for performance and results.In recent years, the MAF assessments pre-pared by TBS analysts have been used to pre-pare submissions to the cabinet committee

on priorities and planning (which providesdirection on government priorities and ex-penditure management) and to the TreasuryBoard (which is responsible for financial,personnel, and administrative management).In addition, MAF submissions from de-

partments and agencies, together with TBSanalysis of those documents, provide one ba-sis for deputy heads’ annual performance ap-praisals. A report from the Privy Council Of-fice (the department that supports the primeminister and cabinet) covers a deputy head’sperformance in broad policy and governancematters. A report from the secretary to theTreasury Board (the administrative head ofthe TBS) deals with all aspects of managerialperformance, but particularly with financialand human resource management issues. TheTBS report is based on the assessment of theperformance of the deputy minister and hisor her department under the MAF.The key point about linking the MAF to

these central processes is that potentially tan-gible and intangible consequences are at-tached to the quality of managerial perform-ance in departments and agencies. There canbe consequences both for individuals and forinstitutions. Strong or improved performancecan lead to rewards, such as better budgetaryoutcomes for institutions, earned autonomyfrom central administrative controls, and en-hanced reputations with the prime ministerand cabinet and the central agencies whoserve them. Individual deputy heads mayachieve increased compensation, make careerprogress, and build strong reputations basedon the MAF and the related appraisal proc ess.Poor MAF ratings, on the other hand, maylead to penalties in the form of budget re-striction, lessened autonomy, denial of per-formance pay, and diminished reputations.The combination of sticks and carrots in

the MAF process prompts deputy heads to


take it seriously. Despite its relative newness,the framework already has made a crucialdifference in modifying leadership and man-agement behavior at the senior levels in mostof the institutions it covers. According to aformer senior TBS official responsible for theMAF, it has become the single most impor-tant source of information for deputy headsand the TBS on the general state of manage-ment performance within institutions. Inlarge part, this is because the MAF has clari-fied and consolidated a wide array of mana-gerial components and initiatives into acomprehensive whole.The same official whopraised the MAF as providing a consolidatedand integrated framework for performancemanagement added that access matters werenot a major part of the framework in eithertheory or practice (a point that is discussedmore fully in chapter 7 of this report). The MAF was designed and is operated

mainly by the senior public service, with lit-tle interest or involvement from elected min-isters. In effect, the senior public service con-cluded that it had to improve managerialperformance, took responsibility and initia-tive for doing so, and agreed to a system ofinternal accountability to make it happen.The secretary to the Treasury Board (themost senior public servant in charge of theMAF) consulted deputy heads on the designof the framework and met with all of themafter the first round, thus reinforcing thesense of ownership of the process.Over the six rounds of MAF assessment

carried out through 2009, the TBS hasworked to find the appropriate balance be-tween a negative, penalizing approach and aconstructive, learning approach in its dealingswith departments and agencies. Through thefirst three rounds, there was some skepticismand suspicion among deputy heads that theMAF was like a report card in which a failing

grade would lead to negative consequences.Deputy heads were concerned that the MAFdocuments represented “dumb data” that didnot speak for themselves or said differentthings to different people. They welcomedthe introduction in Round III (2005–06) ofthe “context” section on the first page oftheir MAF submissions because it enabledthem to describe the challenges they facedand to tell their “performance story” in termsof how their organizations had improved overtime. In subsequent rounds, deputy headshave become more certain that it is safe totalk to TBS officials about management prob-lems without paying a price for their candor.Some departments have found that the MAFmay bring them help in the form of addition-al financial and human resources.Another consideration in balancing re-

wards and risks inside the MAF process in-volved the categories used to describe de-partments’ managerial performance levels. Inan interview for this study, a former seniorTBS official reported that long debates tookplace over several years concerning the lan-guage that would be both encouraging andsupportive and demanding and disciplined.The initial four performance levels were

as follows: major gap, below target, approach-ing target, and best in class. These labels wereseen to be too judgmental and negative be-cause all but one of the categories implieddeficiencies in performance. In 2009, thefour performance levels were attention re-quired, opportunity for improvement, ac-ceptable, and strong. According to the TBS, itgauges the maturity of the practice and thecapacity of the individual organization ineach area of management so that, in areaswhere new Treasury Board policies are beingintroduced (such as internal audit and evalu-ation), the focus is on progress toward fullimplementation.

47Origins, Elements, and Evolution of the MAF

Within the 10 management components,a number of quantitative and qualitative in-dicators and related measures (also referred toas lines of evidence) are used to assess per-formance. The number of indicators andmeasures increased over the first three MAFrounds, peaking at 41 indicators and 134measures. In part, this increase reflected re-quests by various professional groups withinthe public service to have their activities cov-ered by the framework as a way to upgradetheir status. Management of the access to in-formation process within departments andagencies was added in 2005–06, partly at therequest of the information commissioner.The numbers of indicators and measureswere subsequently reduced and now stand at21 and 70, respectively. Management of theaccess to information process falls under theindicator for information management, andit involves just two measures, meaning thataccess considerations do not have a promi-nent place in the overall frameworkAs was mentioned before, the MAF as-

sessments are one component of the annualappraisals of deputy heads. The appraisalprocess consists of a number of componentsand can only be described briefly in thespace available here. On an annual basis, thehead of the public service (who has the dualtitle of clerk of the privy council and secre-tary to the cabinet) convenes a committee ofsenior officials to provide advice on the per-formance of deputy heads—advice that mayaffect their performance pay and careerprogress. There are two main documents thatsupport the committee’s review process: a re-port from the Privy Council Office (the de-partment that supports the prime ministerand the cabinet) covers the deputy head’sperformance on broad policy and gover-nance matters; and a report from the secre-tary to the Treasury Board deals with all as-

pects of managerial performance, but partic-ularly with financial and human resourcemanagement issues. The TBS report is basedon the performance assessment of the deputyminister and his or her department under theMAF. It is not clear from the outside what rela-

tive weight is assigned to Privy Council Of-fice and TBS submissions. Nor is it clearwhat actual consequence flows from strongor weak performance ratings on any dimen-sion of the multifaceted roles of deputy min-isters, including their most recent MAFscores. It is clear from the interviews con-ducted for this study that deputy ministerstake their MAF ratings seriously and havebeen known to protest poor scores. MAF as-sessments are discussed by the executiveteams of departments and agencies, and thatdiscussion leads to some cascading effectsdownward through the various departmentand agency levels.There could be both a reactive and an an-

ticipatory response to the MAF requirementswithin departments and agencies. When theTBS applies ratings such as “attention re-quired” or “opportunity for improvement”to particular areas of management within de-partments and agencies, it puts those units onnotice that action will be expected. Howev-er, such requirements also mean that the TBSacquires ownership of the problems withindepartments, to some extent; and that theymust follow up to ensure that corrective ac-tion is taken. Presumably, departments andagencies also try to avoid negative ratings bydealing with deficiencies before they areidentified by the TBS.The fact that department and agency sub-

missions and TBS ratings are published on-line provides an additional incentive fordeputy heads to address MAF deficiencies.The current auditor general of Canada, an


49

officer of parliament who reports annuallyon management issues, has stated publiclythat she uses MAF assessments to identifyproblems and to promote managerial im-provements within departments and agen-cies.The deputy heads of those organizationsregularly appear before parliamentary com-mittees (particularly, the Public AccountsCommittee of the House of Commons) toanswer for the performance of their organi-zations; and there is, at least, the potential forMAF reports to be used as a basis for ques-tioning. In 2005 and 2006, the House ofCommons’ ETHI committee called seniorofficials from four departments to accountfor their performance under the ATIA, but itis difficult to gauge whether the parliamen-tary scrutiny led to improvements. In gener-al, avoiding bad publicity and damage to in-dividual and institutional reputations can bea strong motivation for senior public man-agers to take the MAF process seriously.An abiding question about the MAF is

whether it has become an elaborate, expen-sive, time-consuming, and ritualistic checklistprocess that delivers more symbolic than realaccountability. The most in-depth study todate—a consultants’ report commissioned by

the TBS in November 20089—concludedthat the MAF was successful and relevant.The consultants concluded that the MAFprocess was providing “a comprehensiveview to both deputy heads and the TBS onthe state of managerial performance.” Thereport suggested that the MAF was “becom-ing a catalyst for integrating best practicesinto departments and agencies.” Less posi-tively, the consultants found that the report-ing burden associated with the MAF couldbe reduced further, that the focus was toomuch on process rather than outcomes, thattoo many indicators were qualitative andsubjective, and that the costs of the MAFwere not being tracked so it was impossibleto judge the cost effectiveness of the process.It also was noted that all large departmentsare assessed every year against all 21 indica-tors. Although this facilitates comparison, itignores the unique aspects of particular or-ganizations. Significantly for the purposes ofthis study, the evaluation report does not in-dicate whether all areas of management re-ceive adequate attention within the MAFprocess. Nothing is said, for example, abouthow well or how poorly access to informa-tion matters are covered by the process.

Origins, Elements, and Evolution of the MAF

9This 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.

51

At the beginning of this discussion of the in-tersection of the MAF and the ATIA proc -esses, it is necessary to emphasize the impor-tant differences in terms of the origins,purposes, scope, and potential consequencesof the two processes. The MAF was devel-oped as an administrative process by seniorofficials within the public service for thepurpose of improving management and as aform of internal accountability for deputyministers. As the central budgetary and man-agement authority, the TBS controls theMAF process and can order departments toundertake management reforms. Favorableor unfavorable MAF report cards also havepotential consequences for deputy ministers’career progress and compensation. But accessto information is only a small component ofthe overall MAF assessment conducted bythe TBS. In addition to the MAF assessment, there

is an external assessment of institutions’ ATIAperformance conducted by the OIC. Since1999, as part of their statutory duty to informparliament and Canadians whether the ATIAis being implemented appropriately, informa-tion commissioners have conducted annualassessments of a select number of the 255 in-stitutions covered by the act and have issuedreport cards to parliament. In April 2010, for

example, the commissioner reported on theperformance of the 24 institutions that hadreceived 88 percent of all access to informa-tion requests during 2008–09.The evaluativeframework used by successive informationcommissioners has been refined over theyears to incorporate more dimensions of per-formance, to take greater account of the con-textual factors that affect performance, and toprovide evidence to support solutions whenthere are deficiencies in performance. Thecommissioner’s report cards are released at apress conference, are tabled in parliament, andusually become the subject of a hearing beforethe House of Commons’ ETHI committee.The commissioner cannot order correctiveactions to be taken within depart ments andagencies, so the report cards are used to createawareness and understanding of shortcom-ings. Through publicity and influence ratherthan actual authority, the report cards pro-mote compliance with the letter and the spir-it of the ATIA. As the following discussionwill make clear, the two assessment processesproduce public reports, but those reports arequite different in purpose, coverage, and po-tential consequences. On the basis of the available documenta-

tion and, even more important, the confi-dential interviews conducted for this study, it

Intersection of the MAFand the ATIA

7

is clear that the access field has not been amajor focus of the MAF process to date.Only about 20 percent of the 255 institu-tions covered by the ATIA also fell withinthe scope of the MAF in 2009. Only a selectnumber of the 65 institutions that fall underthe MAF actually are reviewed annually.However, the MAF reviews usually cover thelarger departments and agencies, which aretargets for a high percentage of the totalnumber of access requests filed annually. Inother words, the MAF review and reportcard process tends to cover many of the sameinstitutions that are the subject of reviewsand reports from the information commis-sioner. The focus of the two processes on themain parts of government means there ismore potential for a positive impact on theaccess process than might appear at firstglance.There is a second limitation to how access

to information intersects with the MAF—namely, ATIA reporting was not added to theMAF until the 2005–06 round. Based on theinterviews, this appears to have been done atthe urging of the then information commis-sioner. Senior managers in the TBS and de-partments/agencies did not see the access fieldas a management domain of equal rank withfinancial and human resource management.Access to information management con-

ceivably could fall under several of the 10management areas established by the MAF.For example, it could be part of public serv-ice values or citizen-focused service. Howev-er, when access was added to the MAF, it wasplaced within the broad management area ofstewardship (defined as “whether control ofassets, money, people, services, etc. is clear, in-tegrated and effective”) and under indicator12, the effectiveness of information manage-ment. The measures used to assess the man-agement of access are described as the “time-

liness and completeness of reporting in sup-port of access and privacy requirements” thatexist by statute or by administrative regula-tion.The data sources used to measure time-liness and completeness are described as theannual reports on ATIP from departmentsand agencies, their entries into the govern-mentwide compendium Info Source, the an-nual reports to parliament from the informa-tion and privacy commissioners, and other“ad hoc reporting.”The first comment that needs to be made

on the placement and content of the accesscomponent within the MAF is that it is lim-ited in scope, focusing mainly on the adequa-cy of the structures and processes establishedto satisfy the requirements of the ATIA andthe related policy and regulations adopted bythe TBS. Making deputy heads the target ofaccess to information assessments is consistentwith the ATIA, which also makes those indi-viduals responsible for ensuring implementa-tion of the act. Not focusing on reporting, theMAF process regarding access does not touchon such performance dimensions as the in-terpretation of exemptions, delays in process-ing requests, the duty to assist, and the overallculture of openness in various departments.As presented by representatives in interviewsfor this study, the official position of the TBSis that MAF requirements regarding accessmatters are complementary to other report-ing requirements, such as the annual reportsthat institutions present to parliament and thereport cards on select institutions released an-nually by the information commissioner. Itwas also noted by TBS officials that MAF as-sessments take into account “in a generalway” a wide range of external reports, in-cluding department performance reports andreports from the information commissioner.However, in terms of access issues, the mainfocus within the MAF is on compliance with


legal reporting requirements arising directlyfrom the ATIA.To strengthen accountability for compli-

ance with the letter and the spirit of the act,the MAF could be modified to consider theactions of institutions in responding to therecommendations from the commissioner’sannual report cards. This would indirectly andsignificantly expand the scope of MAF cover-age of the administration of the ATIA. Itwould not, however, add greatly to the report-ing burden on institutions. Expanding therange of access matters covered by the MAFin the proposed manner would entail someadditional follow-up work for analysts in theTBS and some greater risk of more tangiblepenalties, beyond bad publicity, for deputyheads whose compensation and career prog -ress could be adversely affected if their institu-tions had failed to respond appropriately tothe commissioner’s recommendations. As ofApril 2010, the TBS had not responded to thecommissioner’s recommendation to add theMAF coverage of access performance.It is difficult to find objective and com-

plete information on whether the inclusionof access in the MAF process is making a dif-ference. In interviews for the study, TBS of-ficials reported that MAF assessments relatedto the access process had proved valuable forengaging senior officials on the ATIP per-formance of those 30–40 departments andagencies that were part of the MAF annually.As part of this study, the MAF assessments forRound VI (2008–09), prepared by the TBSand published online, were reviewed.As not-ed above, access falls in the stewardship man-agement area and under the broad indicatorof information management. The actual rat-ings assigned by the TBS are for informationmanagement, although within the discussionsection there is always mention of access per-formance. In 2008–09, 52 departments and

agencies were assessed. None of the organi-zations received a “strong” rating on infor-mation management. Thirty departmentsand agencies fell into the “opportunity forimprovement” category under informationmanagement; and, in most of those cases, theweakness identified under access to informa-tion was a failure to fully complete the re-porting requirements for the Info Source com -pendium and/or a failure to address all themandatory reporting requirements in the an-nual ATIA reports to parliament. The secondmost common rating was “acceptable,” with29 departments and agencies placed in thatcategory. Only 1 small agency received thered-flag rating of “attention required.” Itmust be reiterated that these ratings were forthe entire information management area; and,in most cases, qualitative information on ac-cess performance was not available.There are examples, however, in which

departments have responded to criticisms oftheir ATIP management and made improve-ments. In 2004–05, Public Works and Gov-ernment Services Canada was the departmentat the center of a major scandal involving,among other matters, problems of informa-tion and accountability. Negative MAF rat-ings and other pressures pushed it to makeimprovements. In the 2008–09 MAF round,the deputy minister of the department sub-mitted an online response to that year’s as-sessment. In part, the management responseread as follows:

As a result of the three-year ATIP Improve-ment Plan’s aggressive strategies initiated inDecember 2007, PWGSC [Public Worksand Government Services Canada] success-fully achieved the overarching goal of 95%compliance in 2008–2009. . . .As of No-vember 2009, PWGSC responded to over98% of the ATIP requests on time, mainly

53Intersection of the MAF and the ATIA

due to increased human capacity and activeperformance monitoring, including a zerotolerance approach to delays in processing re-quests. In addition, a MAF action plan wasdeveloped in June 2009 to specifically ad-dress the gaps identified in the MAF RoundVI results relating to ATIP.

Clearly, the intense scrutiny that the de-partment faced as a result of the scandal pro-duced great pressure to bring up its MAFratings across the board. Even in the absenceof such extraordinary events, the MAF canencourage improvement. In 2007–08, theDepartment of Foreign Affairs and Interna-tional Trade received a rating of “needs im-provement” on information management,partly because it did not provide its annualsubmissions to Info Source and its annualATIP report to parliament was incomplete.The following year, its information manage-ment rating was upgraded to “acceptable,”with the TBS acknowledging that severalimprovements had been made—particularlyin staffing the ATIP function and ensuringmore complete reporting. These and otherexamples suggest that the TBS recognizes ef-fort by raising MAF scores if departmentsand agencies appear to be committed to im-provement and are making progress.Given the limited coverage of access mat-

ters, the MAF ratings on information man-agement cannot tell the whole story of thewider, indirect, and longer-term impacts onthe access system.The interviews conductedfor this study provide some additional, albeitselective and impressionistic, information onthis point. Opinions varied concerning theeffects of including access in the MAF. Thedifferences in perspective were explainedmainly by the position or role that the inter-viewee played in either the access or theMAF process. For example, one would ex-

pect that TBS officials responsible for theMAF would see it leading to improvements,whereas representatives of the OIC mightsee the current linking of the ATIA to theMAF as having little or no impact. To pro-vide a sense of the varied perspectives thatexist, a brief synopsis of interviewees in anumber of different roles will be presented.No claim can be made regarding how com-plete or representative are the opinions sum-marized below.The deputy heads of departments and

agencies are the ultimate responsible and ac-countable parties under both the ATIA andthe MAF. Two deputies of major depart-ments were interviewed. Both believed thatthe MAF was making a difference in termsof improved management in general. Theyalso agreed that access to information wasprobably an area of management that re-ceived less attention and was generally weak-er than higher-priority areas such as finances,human resources, and risk management. Oneof the deputies observed candidly, “Thescorecard that really matters on access to in-formation is whether the prime minister, thePrime Minister’s Office, and the minister be-lieve that you have failed to manage the in-formation flow on sensitive issues.” Becausethey owe their appointments to the primeminister and will be judged by the PrimeMinister’s Office and the Privy Council Of-fice on their contributions to policy devel-opment and corporate governance, it is ap-propriate and not surprising that serving theprime minister, the government, and theirown ministers is the deputy heads’ first pri-ority. Both deputies confirmed that uphold-ing the letter and the spirit of the ATIA canlead to tension between responsiveness to di-rection and control and good management.The TBS is the central agency responsible

for both the ATIA and the MAF. Interviews


were conducted with TBS officials in bothfields. An ATIA specialist argued that includ-ing access in the larger information manage-ment category compelled departments to seeaccess in conjunction with information andrecords management. “There are big plusses,”he observed, “that stem from the integrationof ATIP and privacy into the overarchingcompliance requirements for the manage-ment of information.” Improving access, heargued, involved both organizational capacityand organizational culture. The MAF was driv -ing improvements on both dimensions, andthe improvement of Info Source documentsfrom departments was evidence that this wasoccurring.The value in the MAF was not thescore, he maintained, but the dialogue thattook place between the TBS and departmentofficials over deficiencies, remedial actions,and tracking progress.Even though the ATIA and the MAF tar-

get deputy heads for accountability purposes,TBS officials reported observing a cascading-down effect within departments and agencies.They pointed to the existence of a committeeon information management, chaired by thechief information officer for the governmentof Canada and comprising assistant deputyministers from all departments. The samecommittee is also responsible for overseeingaccess and privacy matters across government.Within individual departments and agencies,deputies delegate the various management ar-eas to assistant deputy ministers and to peoplebelow them.A former TBS official comment-ed, “If a deputy head . . . has scored particularlylow within one area of management withMAF, chances are that the following year he isgoing to ensure that his ADMs [assistant dep -uty ministers] have specific accountabilities forimprovement activity.” He had observed thisprocess happening in the access area in a cou-ple of departments, although he acknowledged

that the improvements related only to report-ing on compliance.It would not be surprising to find that

access coordinators see the MAF processsomewhat differently from TBS officials orexecutives in their own departments.The co-ordinators are on the front lines in processingaccess requests; they must deal with the con-straints of limited financial and human re-sources; and they must face direct and indirectpressures to keep their home organizationsout of trouble by not releasing—especially,not prematurely—sensitive information thatcould lead to controversy.The four access coordinators interviewed

for this study were very aware of the MAF,which suggests that its impacts definitely havetrickled down to their level. They had mixedviews of what it meant for the access functionin their organizations. All four agreed that theMAF was measuring compliance with theATIA very narrowly. One coordinator of-fered the following opinion: “. . . a depart-ment could update its Info Source chapter, doits annual reports, meet all of the other re-porting requirements on an annual basis; butit doesn’t mean that they are meeting ATIPdeadlines and providing the required respons-es to Canadians in a timely fashion.” Potentially, the inclusion of access in the

MAF could increase the status and resourcesavailable to the activity within departments.All four coordinators felt squeezed betweenthe growing volume of requests and theavailable resources. Finding additional re-sources within departments or from the TBSwas considered highly unlikely, given thetight budgetary situation. Competition fortalent was another challenge. One coordina-tor observed, “.. . we bring in people at avery junior level . . . we’ll coach them andgive them experience and then they quicklyhave opportunities elsewhere.” The lack of

55Intersection of the MAF and the ATIA


identified competencies and training and thelimited professionalization of the access spe-cialty were seen as other challenges that theMAF system does not address.All the coordinators noted that the pre-

vailing emphasis on agenda management andmessage control throughout government wasaffecting the ATIA process. One coordinatormade the following observation: “When weshare with senior departmental officials, in-cluding the minister’s office, what is going tobe released to allow them the opportunity toprepare communications products, we knowfor a fact that they are under instruction toshare that with the PMO [Prime Minister’sOffice] and PCO [Privy Council Office] allthe time.” In this climate, ATIP units are al-ways forced to play a challenge role, tellingsenior public managers and ministers’ officesthat there would be missed deadlines and badreport cards from the information commis-sioner. It seems that using an internal man-agement instrument like the MAF to changethe political and administrative cultures ofgovernment in favor of greater openness is, atbest, a slow process and may not even bepossible.As external champions of the access proc -

ess, successive information commissionershave shown interest in the evolution of theMAF and have recommended the inclusion

of access performance in the framework. Inan interview for the study, a representative ofthe OIC argued that the MAF measurementfor access was too narrowly focused on re-porting requirements and not focused on ac-tual performance.The present approach wouldnot bring about change in terms of leader-ship support and a culture of openness in de-partments and agencies. Unless governmentmoves to an alignment between the accesscomponent of the MAF and the evaluativeframework for the parliamentary report cardsissued by the OIC, little progress should beexpected beyond stricter compliance withthe legal requirements of the ATIA. TheCanadian access system, this interviewee ar-gued, was frozen in the past, with reliance ona complaints-based approach to access to in-formation, when more progressive jurisdic-tions like Australia and the United States werediscussing and implementing the much broad-er concepts of “open-source governance”and “open government,” involving virtuallyunlimited access to government data and apresumption in favor of proactive disclosure.Such concepts, of course, go well beyond thescope of this study; but the rhetoric reflects therising public expectations about how muchgov ernment information will be instantane -ously available.

57

The aim of this study was to examine thepotential benefits of integrating access to in-formation principles into the performanceappraisals of senior public servants, as part ofa more general management accountabilityframework for departments and agencies ofgovernment.The examination of this alter-native approach was based on a case study ofthe government of Canada.The case studyinvolved an analysis of the intersection of therelatively mature ATIA process (which hasoperated since 1983) with the relatively newMAF (which has operated only since 2004).A premise for the study was that neither ofthe two processes could be understood inisolation from the wider political, constitu-tional, legal, institutional, financial, and cul-tural context, which itself has changed andwill change further over time.As noted earlier, the case study approach

has significant potential benefits, especiallywhen the intensive investigation of a phe-nomenon is used for the purpose of theorydevelopment or refinement. This study be-gan to explore the potential interactions be-tween mandatory reporting on the handlingof access to information requests as part of awide framework of managerial accountabil-ity. Given the sensitive and confidential na-ture of parts of the access process, and the

time and space available for this study, it wasnot possible to describe all the componentsof Canada’s access system and how they in-teract with other parts of the governing proc -ess. However, the study does provide somesense of the complicated, multidimensional,interdependent, and variable nature of Cana-da’s access system, including how it is sup-ported or weakened by other political andadministrative processes.In this concluding chapter, the purpose is

to draw together the main findings of thestudy and to offer some more speculativethoughts about the applicability and poten-tial benefits of a managerial approach tostrengthening access systems in other coun-tries. Best-practice research and benchmark-ing have become popular approaches to theintroduction of political and administrativereforms around the world. However, thereare at least three risks associated with suchapproaches:

• The first risk is that a country deemed tobe “the best” (however defined) at onepoint in time may not retain that statusover the longer term. For example, thegovernment of Canada was once seen as aleader in the access field, and undoubtedlyit remains among the top jurisdictions in

Conclusions

8

terms of the administrative structures andprocedures applied to the access process;but critics now claim that the ATIA is inneed of modernization and that ministersand public servants have weakened the actin practice by adopting defensive strategiesto limit its effectiveness in ensuring opengovernment. In short, Canada may nolonger be the benchmark country againstwhich other countries should comparetheir access systems.

• The second risk is that the best-practiceresearch approach presumes that we un-derstand fully why some managerial ap-proaches appear to work well and, there-fore, we know how to transfer them fromone jurisdiction to another. But ourknowl edge of the dynamics of successfulreforms is often partial, and it is dangerousto assume that institutional arrangementsand processes easily can be made to workin a similar fashion in other countries.

• The third risk is that access reformers willnot consider the political and administra-tive feasibility of their proposals. Not allpolitical cultures will support open gov-ernment, not all political and administra-tive systems are “ready” in capacity andcultural terms to implement a strong ac-cess system, and not all countries can af-ford to imitate “the best” examples of ac-cess systems elsewhere.

Rather than a best-practice philosophythat seems to minimize the crucial impor-tance of the wider context, countries shouldadopt a “smart-practice” approach that rec-ognizes the realities, constraints, and oppor-tunities for feasible improvements that willbring them closer to more citizen-centered,open, and accountable government.With these qualifications in mind, it is

possible to draw some potential lessons from

the Canadian case study. The first lesson isthat adopting both an “outside” and an “inside”perspective on how the access system functions isimportant.Thinking in analytical terms aboutthe combined impacts of external and inter-nal factors helps create a more complete un-derstanding of how and why a particular ac-cess system works in practice. Governmentswish to protect their reputations and main-tain their political support. In many coun-tries today, governing resembles a continuouselection campaign, as the party in powerseeks to defend against challenges from op-position parties. In addition, a competitive,aggressive, 24/7 media environment hascaused governments to adopt more sophisti-cated techniques of agenda management, in-formation and message control, and publicrelations spin to present their record in themost positive manner possible. Risk avoid-ance and risk management have become ma-jor preoccupations in the political cultures ofgovernment; and these preoccupations spillover into administrative cultures that increas-ingly emphasize no surprises, no errors, andno controversies. Centralized communica-tions policies and practices within govern-ments increase the difficulties facing accessofficials.Access to information laws are meant to

encourage and, ultimately, to compel politi-cians and public servants to provide informa-tion to the public in circumstances wherethere can be strong incentives for them to re-sist the requirements of the laws and relatedadministrative rules. The Canadian experi-ence suggests this second lesson: the politicalwill to accept the requirements of access laws is cru-cial to the achievement of more open government.Political support for the legal requirementsand the spirit of access laws requires the con-viction that such laws ultimately strengthendemocracy. In the short term, political lead-


ers in office may face criticism and pay a po-litical price for not respecting access laws. Inaddition, defensive strategies to counter ac-cess laws send a strong negative message topublic servants. Ideally, political leadersshould demonstrate in their words and theirdeeds tjeosupport for the principles of accesslaws as a positive step toward the creation ofa culture of openness.A third lesson is that administrative leadership

at the executive level of government also plays animportant role in shaping the access culture withingovernment. High-profile and forceful leader-ship from central administrative bodies servingcabinet and overseeing the access process(such as the TBS in the Canadian case) is im-portant to ensure that all institutions subject toaccess laws implement their responsibilitiesfully and properly. Central administrative lead-ership, including the provision of both tangi-ble and intangible forms of support, can havemeaningful influence on the behaviors andcultures related to the access process at the in-dividual department and agency level.Leadership at the top of individual institutions

makes a difference is the fourth lesson we cantake from this study. In the Canadian case, ac-cess coordinators working on the front linesreported that staff attitudes toward compli-ance shifted dramatically when the seniorleadership made it clear that nothing lessthan full compliance with the access lawwould be tolerated. Support from seniorleaders is particularly important in thosedefining moments when the access processfaces political pressures, competing priorities,and resource limitations. How such chal-lenges are handled sends a strong culturalmessage about the real commitment to ac-cess principles. Fifth, we learn that rapid turnover in the

leadership ranks at the institutional level (as hashappened in Canada) may mean a lack of

knowledge about the institution’s obligations underaccess laws and shared understandings and bondsof trust between top-level leaders and front-line ac-cess personnel may be weakened. A good per-formance record on access issues in the pastis no guarantee of future good performance,although supportive leadership and a sup-portive culture help a great deal.The Delagrave report (Government of

Canada, Access to Information Review TaskForce 2002) stressed the importance ofchanging the administrative culture of gov-ernment:

Instilling pride in federal public servants foropenness and making it a strong part oftheir identity might well be the single mostimportant improvement to the performanceof the access to information regime (p. 164).

Cultivating such professional pride in up-holding access principles would involve lead-ers sending all the right signals:

• providing adequate authority and re-sources to the access function;

• respecting the need for autonomy anddiscretion among the professionals incharge of access decision making;

• ensuring the availability of appropriatetraining and development opportunitiesfor access personnel;

• recognizing and rewarding their contri-butions to good government; and

• monitoring compliance and enforcingaccountability for performance—but do-ing so in a valid, comprehensive, and bal-anced manner that does not involve scape -goating individual public servants whencontroversies or problems arise.

Getting the incentives right and avoidingdisincentives to promote greater access is a

59Conclusions


tricky part of the design of a managementaccountability framework. The interests andreputations of both institutions and individ-uals are involved. Meaningful accountabilityrequires that consequences flow from poorperformance, but the challenge is to find theappropriate balance between learning andsupporting improvement and blaming andpaying a price for lack of achievement. Anaccountability system that is imposed andmainly negative in its emphasis will be seenas threatening, unfair, and illegitimate by theinstitutions and individuals responsible forthe actual implementation of access laws.Related to the creation of the right incen-

tives is the concern that some areas of man-agement will receive limited attention andweight in any accountability framework.Many public servants interviewed for thisstudy believed that access matters were givenlimited recognition in the design of theframework and in the related process of re-viewing performance. The concern was thataccess matters were crowded out by a mainfocus on “harder” management fields, such asfinances and human resource management.Within the MAF, as noted earlier, access is lo-cated under the information management in-dicator and is measured by only two lines ofevidence.To supporters of the ATIA, this lo-cation and the limited measurement involvedmean that access concerns inevitably will begiven little weight. It would be possible to de-sign a management accountability frameworkthat covered such additional dimensions ofthe performance of the access system as delaysand the use of time extensions in respondingto requests, the percentage of cases that areappealed to the information commissioner,

the number or percentage of cases leading todisputes over the interpretation of exemp-tions, and so on.Also, it would be possible toformally assign different weights to the vari-ous areas and indicators of management per-formance.The architects of the MAF withinthe TBS discussed this possibility, althoughnot with respect to the access component.They concluded that any such weighting for-mula would likely be rather artificial and con-troversial.The design of a management accounta-

bility framework is not a once-and-foreverinitiative. It necessarily must evolve to reflectchanging circumstances, shifts in governmentpriorities, and the lessons learned from prac-tical experience. In the case of the MAF, itwas always presumed by the designers thatthe 10 management areas would remain sta-ble, but that the indicators and measureswould change over time. Finding the balancebetween continuity and change is importantto avoid the extra work and confusion ofcontinuous experimentation and to maintainmotivation and commitment among the peo-ple who must work within the system.In summary, some limited progress in the

access field has been made through the MAF,but no management accountability frame-work can completely offset countervailingpressures pushing toward control over the re-lease of information. Drawing lessons abouthow a MAF-type approach might work inother countries should be done with cautionand humility. Attention needs to be paid tohow the legal/regulatory/administrative sup-ports, leadership, and cultural components ofan access system can be made to complementand reinforce one another.

61

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About the World Bank Institute’s Governance PracticeGovernance 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 andcapacity 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, todevelop 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, andaccess to information. A fourth program supports anti-corruption programs for Parliamentarians, the Judiciaryand the Private Sector. A Mobilizing Stakeholders for Reform group links stakeholder groups in support ofthese 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 potentialleaders to harness the energies of stakeholder groups and to and channel these efforts toward reform.

For further information:WBIThe World Bank1818 H Street, NWWashington, DC 20433Fax: 202-522-1492

Visit us on the web at: http://wbi.worldbank.org/wbi/topics/governance

Photo Credit: (Front Cover) iphotostock.com.

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Advancing Access to Information Principles through ...siteresources.worldbank.org/WBI/Resources/213798-1259011531325/... · Program Advancing Access to Information Principles through