Annual Report on the Access to Information Act 2011-2012

Table of Contents

Introduction

The Access to Information Act was proclaimed into force on July 1, 1983. The Act grants Canadian citizens, permanent residents or any person or corporation present in Canada a general right of access to information that is held by federal government institutions, subject to specific and limited exceptions, and to an independent review of decisions on disclosure.

This Annual Report is prepared and is being tabled before each House of Parliament in accordance with section 72 of the Access to Information Act.

This Annual Report provides a summary of the management and administration of the Access to Information Act within the Public Prosecution Service of Canada (PPSC) for the reporting year 2011-2012.

Background

The PPSC became subject to the Access to Information Act when it was established as an independent organization on December 12, 2006. The PPSC was created with the coming into force of the Director of Public Prosecutions Act, Part 3 of the Federal Accountability Act. The PPSC replaced the former Federal Prosecution Service of the Department of Justice Canada.

Mandate of the Public Prosecution Service of Canada

The mandate of the PPSC is set out in the Director of Public Prosecutions Act. The Act empowers the Director of Public Prosecutions (DPP) to:

The Director of Public Prosecutions Act also empowers the DPP to:

With the exception of Canada Elections Act matters, the Attorney General of Canada can issue a directive to the DPP about a prosecution or even assume conduct of a prosecution, but must do so in writing and a notice must be published in the Canada Gazette. In turn, the DPP must inform the Attorney General of any prosecution or planned intervention that may raise important questions of general interest.

Roles & Responsibilities of the Public Prosecution Service of Canada

The PPSC provides prosecution-related advice to law enforcement agencies across Canada and prosecutes offences within federal jurisdiction. In total, over 250 federal statutes contain offences that fall under the PPSC’s jurisdiction to prosecute. However, charges are regularly laid under approximately 60 of those statutes.

The PPSC is not an investigative agency and conducts a prosecution when a charge of violating federal law has been laid by an investigative or law enforcement agency, following an investigation.

In all provinces and territories, except Quebec and New Brunswick, the PPSC is responsible for prosecuting all drug offences under the Controlled Drugs and Substances Act, regardless of which police agency investigates the alleged offences. In Quebec and New Brunswick, the PPSC prosecutes only those drug offences that were investigated by the Royal Canadian Mounted Police.

In all provinces and territories, the PPSC prosecutes violations of federal statutes such as the Income Tax Act, the Fisheries Act, the Excise Act, the Customs Act, the Canadian Environmental Protection Act, and the Competition Act, as well as conspiracies and attempts to violate these statutes.

In the three territories, the PPSC is responsible for prosecuting all Criminal Code offences. In the provinces, the PPSC has jurisdiction to prosecute a limited number of Criminal Code offences, including those related to terrorism, criminal organizations, money laundering, proceeds of crime and fraud. Under arrangements with the provinces, the PPSC may also prosecute Criminal Code offences that are otherwise within provincial jurisdiction when the accused also faces drug-related charges.

Access to Information and Privacy (ATIP) Office

The ATIP Office is the focal point for the application of access to information and privacy legislation at the PPSC. The mandate of the ATIP Office is to implement and administer the Access to Information Act and the Privacy Act. The ATIP Office deals directly with the public in relation to access to information and privacy requests and, in collaboration with the Offices of Primary Interest (OPIs), serves as the centre of ATIP expertise in enabling the PPSC to meet its statutory obligations under these Acts.

The ATIP Office undertakes the responsibility of the administration of the Access to Information Act (Act) by:

During the reporting period of April 1, 2011 to March 31, 2012, the ATIP Office continued to face challenges in retaining experienced and qualified personnel. The PPSC’s ATIP Office had a staff turnover rate of 50%.

ATIP Governance Structure

During the 2011-2012 reporting period, the PPSC formalized its ATIP Governance Structure, which outlines the roles and responsibilities of all employees and clarifies how the PPSC meets both its access to information and privacy obligations.

The chart above provides a diagram of ATIP roles, responsibilities and accountabilities within the PPSC.

The chart above provides a diagram of ATIP roles, responsibilities and accountabilities within the PPSC. It should be read in conjunction with the descriptions contained below.

ATIP Personnel

ATIP Coordinator: The Executive Director and Senior Counsel, Ministerial and External Relations Secretariat, is the PPSC’s ATIP Coordinator pursuant to a delegation made by the DPP under the Acts, and plays an oversight role in relation to the application of the Acts, the regulations, and related policies, directives, and guidelines.

ATIP Counsel: The Counsel, Ministerial and External Relations Secretariat, provides ATIP-related legal advice to the ATIP Coordinator, the ATIP Office, and PPSC managers.

Manager, Access to Information and Privacy (ATIP Manager): The ATIP Manager has direct, daily responsibility for the management of the ATIP Office by coordinating all activities relating to the operation of the Acts and the regulations, as well as meeting related TBS ATIP policies, directives and guidelines.

ATIP Advisors: The ATIP Advisors are responsible for processing ATIP requests. The Advisors act as a liaison between the requester and the Point(s) of Contact in PPSC Regional Offices and Headquarters.

ATIP Junior Analyst: The Junior ATIP Analyst carries out administrative duties and assists the ATIP Advisors and the ATIP Manager in the processing of ATIP requests. The Junior Analyst also processes low complexity ATIP requests and acts as a liaison between the requester and the Point(s) of Contact in Regional Offices and Headquarters.

Accountability & Shared ATIP Responsibilities

Director of Public Prosecutions: The DPP is the PPSC’s “Head of Institution” for the purposes of the Acts. The DPP has overall responsibility for ensuring that the organization complies with the Acts, the regulations, and related TBS policies, directives and guidelines.

A/Deputy Director of Public Prosecutions (A/DDP) - Regulatory & Economic Prosecutions and Management Branch: The A/DDP is responsible for assisting in fulfilling PPSC’s ATIP obligations to ensure compliance with the ATIP legislation, its Regulations, and related TBS and PPSC policies and directives.

Deputy Director of Public Prosecutions (DDP) - Drug, National Security & Northern Prosecution Branch: The DPP is responsible for assisting in the fulfillment of PPSC’s ATIP obligations to ensure compliance with the ATIP legislation, its Regulations, and related TBS and PPSC policies & directives.

Points of Contact - Headquarter Directors and Chief Federal Prosecutors: As the Points of Contact, Headquarter Directors and Chief Federal Prosecutors are responsible for fulfilling their Offices and Regions ATIP obligations, issuing ATIP-related instructions to their employees and/or agents, and serving as liaison with the PPSC ATIP Office to ensure compliance with the ATIP legislation, its Regulations, and related TBS and PPSC policies and directives.

Managers, Team Leaders, Supervisors, and Agent Supervisors: These individuals are responsible for assisting and issuing instructions to staff in fulfilling ATIP obligations to ensure compliance with the ATIP legislation, its Regulations, and related TBS and PPSC policies and directives. They are also required to examine and/or make inquiries into any issues brought to their attention concerning the ATIP legislation.

Employees and Agents: The employees and agents are responsible for fulfilling their duties to ensure compliance with the ATIP legislation, its Regulations, and related TBS and PPSC policies and directives. PPSC employees and agents are responsible for ensuring that any records they created are properly managed to facilitate access to that information.

Delegated Authorities

Under section 73 of the Access to Information Act, the head of a government institution may by order designate one or more officers or employees of that institution to exercise or perform any of the powers, duties or functions of the head of the institution under this Act. Full delegated authority is provided to the Executive Director and Senior Counsel, Ministerial and External Relations Secretariat, and also to the Manager of the Access to Information and Privacy Office.

Access to Information Act and Privacy Act Delegation Order

The Director of Public Prosecutions, pursuant to section 73 of the Access to Information Act and the Privacy Act, hereby designates the persons holding the positions set out in the schedule hereto, or the persons occupying on an acting basis those positions, to exercise the powers and functions of the Director as the head of a government institution.

Schedule

Position: Executive Director and Senior Counsel, Ministerial and External Relations Secretariat

Position: Manager, ATIP, Access to Information and Privacy Office

Dated, at the City of Ottawa, this 11 day of January, 2010

Signature of Brian Saunders
Brian Saunders
Director of Public Prosecutions

Interpretation of the Statistical Report

The following provides interpretations of the summarized statistical information contained in Appendix A of this Annual Report. This report will also compare data from 2011-2012 with data from the previous five reporting periods to identify and examine possible trends.

PART 1 – Requests under the Access to Information Act

Number of Requests and Source of Requests

The PPSC received twenty-four (24) formal access to information requests during 2011-2012. While this represents a decrease of 28% in the number of requests from the previous reporting period, the number of pages reviewed increased dramatically from 2,571 in 2010-2011 to 14,493 in 2011-2012, representing an increase of 564% in material reviewed. Five (5) requests were also carried over from the previous reporting period.

Percentage of Requests Received by Source

Percentage of Requests Received by Source

* No requests were received from Academia during this reporting period.

There was a slight change in the source of requests received for access to information when compared to the 2010-2011 reporting year. While the overall number of requests decreased, the number of requests received from the public increased from nine (9) in 2010-2011 to thirteen (13) in 2011-2012. As a result, the percentage of requests from the public went from a low of 27% in 2010-2011 to a high of 52% in 2011-2012. This increase is consistent with past reporting period trends as illustrated in the next graph. The number of requests from businesses fell from twelve (12) in 2010-2011 to six (6) in 2011-2012. Media requests remained fairly consistent.

Percentage of Requests by Source over the last Five Reporting Periods

Percentage of Requests by Source over the last Five Reporting Periods

Over the last five years, the PPSC has received a total of 102 formal access to information requests. Overall, the number of formal access to information requests has increased since the creation of the PPSC. A comparison of the source of these requests over the last five reporting periods reveals that requests from the media and businesses have remained fairly constant over a five year period. Furthermore, with the exception of the 2010-2011 reporting period, the public represents the largest source of requests for access to information to the PPSC.

PART 2 – Requests closed during the reporting period

Disposition of requests completed

Twenty-seven (27) requests were completed during the reporting period. The completed requests are categorized as follows:

Percentage of the Disposition of Requests

Percentage of the Disposition of Requests
*No records were treated informally during this reporting period.

The cases where access could not be provided fell into the following categories:

No records exist

Six (6) requests could not be processed as no relevant records existed under the control of the PPSC. Where possible, the requesters were advised of government institutions that may have records and how to contact those institutions to submit a request.

Requests transferred

One (1) request was transferred to another government institution that had a greater interest in the subject matter of the request.

Requests abandoned

Two (2) requests were abandoned by the applicants. In one case, the reproduction fees were not provided. In the other case, the requester was asked in writing for clarification before material could be gathered and, as no clarification was provided, the request was deemed abandoned.

Treated Informally

With respect to the processing of informal requests, it should be noted that not all informal requests are recorded.

Percentage of Disposition of Requests over the last Five Reporting Periods

Percentage of Disposition of Requests over the last Five Reporting Periods

The PPSC is committed to being open and transparent. This is reflected in its processing of access to information requests (102) received over the last five reporting periods. In fifty-seven (57) of these requests information was released by the PPSC. Another thirty-eight (38) requests were either abandoned by the applicants or the PPSC was unable to process the request because no records existed, a complete request was not provided, or application fees were not paid.

Over the last five years there were only three (3) cases in which the PPSC did not disclose any information. In one case, the information was available to the public and the PPSC informed the requester where the information could be obtained.

Completion time

The time required to process the twenty-seven (27) completed access to information requests during the 2011-2012 reporting period is summarized below:

Percentage of requests by completion time

Percentage of requests by completion time
* No requests were completed beyond 181 days during this reporting period.

During the 2011-2012 reporting period, 70% of requests were processed within the 30-day statutory deadline period of which more than half were completed in 15 days or less. Three (3) requests were completed within 121 to 180 days as they each contained more than 3,000 pages and required consultations with other government institutions.

Over the last five reporting periods, the PPSC has completed 97% of the access to information requests received within the statutory timelines.

Exemptions

Section 2.2 of the Statistical Report illustrates the types of exemptions applied by the PPSC in accordance with the Act by in the processing of requests during 2011-2012.

Percentage of exemptions applied

Percentage of exemptions applied

*The exemptions applied in “Other” [paragraphs 13(1)(b) and 16(1)(a)(b)(c)] were only used in one instance.

The majority of the information exempted was subject to subsection 19(1) [Personal information] and section 23 [Solicitor-client privilege] of the Act due to the mandate of the PPSC.

Exemptions applied over the last Five Reporting Periods

A review of the major exemptions that were applied during the last five reporting periods revealed that subsection 19(1) is the provision that is most often cited. The number of section 23 exemptions that have been applied by the PPSC has increased over the period; however, such increase is commensurate with the increase in the number of requests received year over year.

Exclusions

The Access to Information Act does not apply to published material or material available for purchase by the public, library or museum material preserved solely for public record, material placed in Library and Archives Canada, as well as records considered to be confidences of the Queen's Privy Council, pursuant to sections 68 and 69 of the Act respectively.

During the 2011-2012 reporting period, the PPSC invoked section 68 [Act does not apply to certain material] in one case. The PPSC informed the requester that the material was publicly available and where it could be obtained.

Format of information released

Statistics are based solely on those requests for which information was disclosed in its entirety or disclosed only in part. Access to the relevant documents was given, in whole or in part, for sixteen (16) requests. Paper copies were provided in all these cases.

Complexity

Due to the nature of the organization’s work, processing access to information requests at the PPSC is complex. The mandate of the PPSC is to prosecute offences under federal jurisdiction and to provide advice on prosecution-related matters to investigative agencies. Records often contain information relating to criminal or regulatory investigations or prosecutions and to the PPSC's work involving other organizations and departments at the federal, provincial or territorial level. The PPSC must consult with these other organizations and carefully consider the legal impact of the disclosure of information.

As this is a new reporting requirement, no statistics are available to track the complexity of files over time. The complexities cited above have always accounted for much of the ATIP Office’s workload at the PPSC.

Deemed Refusals

In one (1) case, despite the extensions taken for volume and consultations with other government institutions and third parties, the PPSC was unable to meet its statutory deadline and was considered in deemed refusal. In this case, the PPSC made a partial release to the requester 14 days past its extended timeline of 105 days.

Requests for translation

There were no requests for translation from one official language to the other.

PART 3 – Extensions

Reasons for Extension and Disposition of Requests

Section 9 of the Access to Information Act allows institutions to extend the legal deadline for processing a request if a search for responsive records cannot be completed within 30 days of receipt of the request, or if the institution must consult with other institutions or third parties.

Eight (8) extensions were taken during the 2011-2012 reporting period. It should be noted that four (4) of the eight requests were extended because it was necessary to search and review a large number of records as well as consult other government institutions and third parties. Meeting the original time limit would have unreasonably interfered with the operations of the PPSC.

PART 4 – Fees

The Access to Information Act authorizes fees for certain activities related to the processing of formal requests under the Act. In addition to the $5 application fee, other charges may apply for search, preparation and reproduction of the various records, as specified in the Access to Information Regulations.

The practice of the PPSC is to waive reproduction fees whenever less than 200 pages are disclosed. However, when more than 200 pages are disclosed, fees are calculated as specified in the Regulations on a case-by-case basis.

Reproduction fees were calculated for four (4) files, which in total amounted to $1,424.00. In one case the $524.00 fee was collected. One request was abandoned due to lack of payment of a $524.00 fee. Other fees amounting to $376.00 were waived by the PPSC.

The PPSC collected $135.00 in application fees during 2011-2012. No application fees were waived during this reporting period.

PART 5 – Consultations received from other institutions and organizations

In total, the PPSC received fifty-eight (58) access to information consultations from other government institutions during the 2011-2012 reporting period. This represents a slight increase in the number of consultations from the previous reporting period. There was, however, a 20% decrease in the total number of pages processed (from 9,811 pages in 2010-2011 to 7,890 pages in 2011-2012).

Percentage of consultations received from other government institutions

Percentage of consultations received from other government institutions

During this reporting period, the PPSC received consultations from a greater number of government institutions. The Royal Canadian Mounted Police (RCMP) represented the highest number of consultations with eleven (11), followed by Public Works and Government Services Canada (PWGSC) which sent nine (9). The Department of Justice (DoJ) and Environment Canada (EC) each sent eight (8) consultations. The Treasury Board Secretariat (TBS) sent five (5), and Public Safety sent four (4). Institutions which sent three (3) or less are grouped together in the “Others” portion of the graph.

Percentage of pages sent by other government institutions to the PPSC

Percentage of pages sent by other government institutions to the PPSC

The number of consultations forwarded by any given government institution is not an accurate reflection of the work required to process the consultations. While Health Canada represents only 5% of the consultations received, it also represents 64% of the pages reviewed, or 5,061. It is common for a few organizations to represent a disproportionate part of the PPSC’s consultation workload since these can form part of large prosecution cases.

Percentage of consultations received from other government institutions since April 1, 2008

Percentage of consultations received from other government institutions since April 1, 2008

Percentage of pages sent by other government institutions to the PPSC since April 1, 2008

Percentage of pages sent by other government institutions to the PPSC since April 1, 2008

Data from April 1, 2008 up to the 2011-2012 reporting period demonstrates that the DoJ and the RCMP are the organizations that most often forward consultations to the PPSC. These organizations are followed by Environment Canada and the PWGSC.

As demonstrated in the previous graph, while the DoJ represents 24% of all consultations, it accounts for only 8% of the volume. The RCMP accounts for 18% of consultations but only 4% of the volume.

PART 6 – Completion time of consultations on Cabinet confidences

During the 2011-2012 reporting period, the PPSC had no requirement to conduct consultations on Cabinet confidences.

PART 7 – Resources related to the Access to Information Act

Costs

The PPSC spent a total of $126,777 administering the Access to Information Act of which salaries accounted for $123,118 and Goods and Services accounted for $3,659. There were no overtime expenditures or professional service contracts during this reporting period.

Access to Information Costs over the last Five Reporting Periods

Access to Information Costs over the last Five Reporting Periods

In examining the cost of the administration of the Access to Information Act over the last five reporting periods, a peak can be observed in 2009-2010 with a slight decline in subsequent reporting periods. A few factors contribute to this trend. Low costs during the 2007-2008 reporting period are likely attributable to the fact that the PPSC was a newly created organization and requesters were not fully aware of the PPSC and its roles and responsibilities.

Since 2010-2011, the PPSC has increased its capacity to develop its internal ATIP policies, guidelines, and procedures, which has resulted in overall savings in the administration of the Access to Information Act.

Informal Processes

Whenever possible, the PPSC provides information informally to the public. The PPSC’s website contains various information, such as: The Federal Prosecution Service (FPS) Deskbook; Terms and Conditions of Fixed-Term Agreements of Agents; Proposed Best Practices for Prosecuting Fraud Against Governments, and the PPSC’s Annual Report and its Report on Plans and Priorities. The PPSC’s website also contains portals for the Agent Affairs Program, Proactive Disclosure listings, and other items of interest.

Access to Information-Related Training Activities

During this reporting period, a training and awareness session regarding the PPSC’s ATIP processes and employee obligations under the Access to Information Act and the Privacy Act was conducted in Winnipeg by the PPSC’s ATIP Office. Fifty-two (52) paralegals from across the organization participated in this session. Similar training was delivered in the National Capital Region in October during the Corporate Services Forum. Approximately fifty (50) employees participated in the Forum.

In addition, informal access to information-related training was provided to PPSC employees throughout the year on an ad hoc basis.

Access to Information-Related Policies, Guidelines and Procedures

Last year, the PPSC began to revise and implement new access to information-related policies, guidelines and procedures. During the 2011-2012 reporting period, the PPSC formalized its ATIP Governance Structure. The PPSC also developed guidelines on its duty to assist requesters. This one-page document is sent to all requesters with an acknowledgment of their request. These policies, procedures and guidelines are publicly available on the PPSC internet site.

Review – Management Accountability Framework

As part of the Management Accountability Framework (MAF) assessment, the TBS gave the PPSC an acceptable rating for fiscal year 2011-2012 in access to information-related categories (MAF subsections 12.4 and 12.6), determining that the organization has effectively met the requirements of the Access to Information Act.

Complaints and Investigations

To ensure that government institutions comply with their access to information obligations and that all requesters are treated fairly and consistently, sections 41 to 53 of the Access to Information Act provide for a review of decisions made under the Act. The first level of review is a formal complaint to the Information Commissioner of Canada; the second is an application for judicial review to the Federal Court.

No new complaints were filed with the Office of the Information Commissioner of Canada (OIC) against the PPSC during the 2011-2012 reporting period. One complaint from the 2010-2011 reporting period was carried over. The OIC has not issued its finding with respect to that complaint as it is still under investigation.

Federal Court Review

During this reporting period, no application for judicial review was filed with the Federal Court pursuant to section 44 of the Act. One (1) notice of application for judicial review that was filed during the previous reporting period remains under review.

Reading Room

Section 8 of the Access to Information Regulations requires that institutions maintain a reading room where the public can review records. The PPSC’s main reading room is located on the 2nd floor of the East Memorial Building at 284 Wellington Street, Ottawa, Ontario. Individuals who wish to review records must schedule an appointment with the ATIP Office. Individuals located outside the National Capital Region can contact the ATIP Office which, in turn, will work with the relevant regional office of the PPSC to provide a place and time to review records.

Appendix A

Statistical Report on the Access to Information Act 2011-2012 - Page 1

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