Annual Report on the Access to Information Act 2010-2011

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 for the fiscal year 2010-2011.

Background

The Public Prosecution Service of Canada (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:

initiate and conduct federal prosecutions;
intervene in proceedings that raise a question of public interest that may affect the conduct of prosecutions or related investigations;
issue guidelines to federal prosecutors;
advise law enforcement agencies or investigative bodies on general matters relating to prosecutions and on particular investigations that may lead to prosecutions;
communicate with the media and the public on all matters that involve the initiation and conduct of prosecutions;
exercise the authority of the Attorney General of Canada in respect of private prosecutions; and
exercise any other power or carry out any other duty or function assigned by the Attorney General of Canada that is compatible with the office of the Director.

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

initiate and conduct prosecutions under the Canada Elections Act; and
act, when requested by the Attorney General of Canada, in matters under the Extradition Act and the Mutual Legal Assistance in Criminal Matters Act.

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 and 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 by:

processing requests for information submitted under the Access to Information Act in accordance with legislation, regulations and Treasury Board of Canada Secretariat policies and guidelines;
responding to consultations submitted by other federal institutions on PPSC records being considered for release;
responding to requests received from other federal institutions for the review of solicitor-client privilege in records related to criminal proceedings in which the PPSC is involved;
developing and providing guidance to PPSC managers and staff regarding the interpretation and application of the Access to Information Act and other related Treasury Board Secretariat policies and guidelines;
reviewing departmental policies, procedures and agreements to ensure that they are in compliance with the provisions of the Act and making recommendations for amendments;
monitoring and advising on the organization’s compliance with the Act, regulations, procedures and policies;
acting as the spokesperson for the PPSC in dealings with the Treasury Board Secretariat, the Office of the Information Commissioner of Canada, and other government departments and agencies;
reviewing the organization’s documents prior to proactive disclosure on the PPSC’s website, such as audits and evaluations, and contracts over $25,000, in order to ensure that such disclosures do not compromise legal proceedings and/or personal information;
coordinating the preparation of the PPSC chapter of the federal government’s Info Source publication;
preparing the annual report to the Treasury Board Secretariat and Parliament on the Access to Information Act; and
participating in ATIP forums, such as the Treasury Board Secretariat’s ATIP Community meetings and working groups.

During the reporting period of April 1, 2010 to March 31, 2011, the ATIP Office continued to face challenges in recruiting and retaining experienced and qualified personnel. The PPSC’s ATIP Office had a staff turnover rate of 75%.

PPSC’S ATIP Organizational Structure

PPSC's ATIP Organizational Structure

The PPSC’s ATIP Office is comprised of a Manager, two Advisors and one Junior Analyst. The Executive Director and Senior Counsel, Ministerial and External Relations Secretariat, serves as the organization’s ATIP Coordinator.

A counsel reporting to the Coordinator provides legal advice to the ATIP Office on the application and interpretation of the Access to Information Act, its regulations, as well as relevant case law.

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

Privacy Act and Regulations: Full authority
Access to Information Act and Regulations: Full authority

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

Privacy Act and Regulations: Full authority
Access to Information Act and Regulations: Full authority

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

Brian Saunders
Director of Public Prosecutions

Statistical Report – Interpretation and Explanation

The following provides explanations and interpretations of the summarized statistical information contained in Appendix A of this annual report.

I. Requests under the Access to Information Act

The PPSC received thirty-three (33) formal access to information requests during 2010-2011. This represents an increase of 83% over the previous reporting period. One (1) request was carried over from the previous reporting period.

Percentage of requests Received by Source

Percentage of requests Received by Source

The source of requests for access to information to the PPSC changed significantly from the 2009-2010 reporting year. While the overall number of requests increased, the number of requests from the public remained the same at nine (9). However, requests from the public represented only 27% of overall requests to the PPSC during this reporting period compared to 50% in 2009-2010 reporting period. Requests from organizations remained steady at four (4). Businesses accounted for the greatest increase in requests going from one (1) request to twelve (12), representing a 31% proportional increase. Media requests saw a slight increase with an additional two (2) requests for a total of six (6). The 2010-2011 reporting year also saw two (2) requests from academia, which accounted for 6% of requests to the PPSC.

II. Disposition of requests completed

Twenty-nine (29) 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

The cases in which no information could be provided were mostly attributable to situations beyond the control of the PPSC. These requests are categorized as follows:

Unable to process

Seven (7) requests could not be processed as no relevant records existed under the control of the PPSC. Where possible, the requesters were advised of institutions that might have records and how to contact those institutions to submit a request.
Abandoned

Seven (7) requests were abandoned by the applicants. In two (2) cases, the application fees were not provided. In one instance, two (2) requests were merged as they dealt with duplicate information. In another case, the applicant abandoned the request and the fee was waived as there was no information. One (1) request was abandoned because the matter was provincial and not under the control of the PPSC. One (1) other request was abandoned because the requester used the wrong process for the information sought.

III. Exemptions invoked

Section III of the Statistical Report illustrates the types of exemptions invoked by the PPSC in the processing of requests in accordance with the Act. The majority of the material exempted was subject to section 23 [Solicitor-client privilege]. The use of this exemption relates to the work of the PPSC which is to initiate and conduct federal prosecutions and to provide legal advice to law enforcement agencies and investigative bodies in relation to federal prosecutions. The other exemption that is used frequently is subsection 19(1) [Personal information]. For further details on other exemptions used by the PPSC, please refer to Appendix A.

IV. Exclusions cited

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 2010-2011 reporting period, no exclusions pursuant to sections 68 and 69 of the Act were applied by the PPSC.

V. Completion time

The time required to process the twenty-nine (29) completed access to information requests is summarized below:

Completion time

Twenty-three (23), or 80% of, requests received during 2010-2011 fiscal year were completed within 30 days. Three (3) requests took between 31 and 60 days to complete and the final three (3) took between 61 and 120 days.

VI. Extensions

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 2010-2011 reporting period. The statutory deadlines for three (3) requests were extended as the requests were for a large number of records, or necessitated a search through a large number of records, and meeting the original time limit would have unreasonably interfered with the operations of the PPSC. The above noted three (3) requests were also extended for consultations with other government institutions. Four (4) other requests were extended to conduct consultations with other government institutions. In two (2) cases, extensions were needed to consult private companies in accordance with section 27 [Notice to third parties] of the Act.

VII. Translations

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

VIII. Method of access

Statistics compiled for this section of the Statistical Report 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 thirteen (13) requests. Copies of material were provided in all these cases.

IX. 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. While reproduction fees were calculated for one (1) file, the $61.80 fee was waived by the PPSC.

The PPSC collected $90.00 in application fees during 2010-2011; $75.00 in fees were waived during this reporting period.

X. Costs

The PPSC spent a total of $156,091.41 administering the Access to Information Act of which salaries accounted for $146,385.41 and operational costs accounted for $9,706.00.

Consultations by Other Institutions

Where documents originate from other institutions, or are of interest to another institution, the ATIP Office consults the concerned institution on those records.

The PPSC received significantly more consultation requests than access to information requests during 2010-2011. In total, the PPSC responded to fifty-six (56) access to information consultations from other organizations during this reporting period. This represented an increase of fifteen (15) consultations from the previous reporting period. In total, the ATIP office reviewed 9,811 pages in response to consultation requests.

During this reporting period, the PPSC received consultations from a greater number of institutions. Fisheries and Oceans Canada (DFO), Human Resources & Skills Development Canada (HRSDC) and Parks Canada forwarded four (4) consultations each. The Royal Canadian Mounted Police (RCMP) and Public Works and Government Services Canada (PWGSC) each sent seven (7) consultations; and the Department of Justice (DoJ) sent eight (8). Institutions which sent three (3) or fewer consultations are grouped together in the “Others” portion of the graph as illustrated below.

Percentage of Consultations Received from other Institutions

Percentage of Consultations Received from other Institutions

The number of consultations forwarded by any given institution is not an accurate reflection of the work entailed in dealing with consultations. A better way to evaluate the workload is to examine the number of pages received from each institution. The graph below indicates the number of pages received from those institutions.

Percentage of Pages Received from other Institutions

Percentage of Pages Received from other Institutions

Trends

As the PPSC has only been in existence since December 12, 2006, this is the first report where the organization is able to examine its access to information workload over the last five fiscal years. Data from the 2006-2007 reporting period, however, represents only the last quarter of that year. Overall, the number of formal access to information requests has grown steadily since the creation of the PPSC. The number of access to information consultations from other government institutions has fluctuated but has remained constantly higher than the number of formal requests received by the PPSC. The graph below illustrates the trend over the last five years.

Number of Requests and Consultations per Fiscal Year

Number of Requests and Consultations per Fiscal Year

While the above graph gives an indication of an increasing workload on access to information requests, it does not account for the complexity of files. 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.

Informal Processes

Whenever possible, the PPSC provides information informally to the public. In addition, the PPSC’s website (www.ppsc-sppc.gc.ca) contains 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 (September 24, 2009), and PPSC’s 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 Education and 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 Privacy Act was conducted by the ATIP Office for approximately 15 employees of the PPSC’s Atlantic Regional Office. Three more sessions were held in the National Capital Region (October 2010, December 2010 and February 2011) for another 47 employees. Among the staff that attended these sessions were management, Crown counsel, paralegals, and administrative personnel.

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

The PPSC recently began to revise and implement new access to information-related policies, guidelines and procedures. The ATIP Office is currently developing written formal internal procedures which are expected to be approved and finalized during the 2011-2012 fiscal year.

Review – Treasury Board Secretariat’s Management Accountability Framework

As part of the Management Accountability Framework (MAF) assessment, the Treasury Board Secretariat (TBS) gave the PPSC an acceptable rating for fiscal year 2010-2011 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.

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 2^nd 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.

Complaints and Investigations

To ensure that federal 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.

During this reporting period, one (1) complaint was filed with the Office of the Information Commissioner of Canada against the PPSC regarding extensions taken. The Information Commissioner issued its finding that the complaint was deemed not well founded. A further complaint was carried over from the previous reporting period. The Information Commissioner has not issued its finding with respect to that complaint as it is still under investigation.

Federal Court Review

During this reporting period, one (1) notice of application for judicial review was filed at the Federal Court pursuant to section 44 of the Act. This application for review relates to a complaint made in fiscal year 2009-2010 concerning the existence of records. The complaint was deemed well-founded by the Office of the Information Commissioner of Canada, however, the Office of the Information Commissioner determined that no further action was required by the PPSC. The requester disagreed with this assessment and applied to the Federal Court for a review of the matter.

Appendix A - Statistical Report on the Access to Information Act 2010-2011

Appendix B – Additional Reporting Requirements – Access to Information Act

In addition to the reporting requirements addressed in form TBS/SCT 350-62 “Report on the Access to Information Act”, institutions are required to report on the following using this form:

Part III – Exemptions invoked

Paragraph 13(1)(e)

Subsection 16.1(1)(a)

Subsection 16.1(1)(b)

Subsection 16.1(1)(c)

Subsection 16.1(1)(d)

Subsection 16.2(1)

Subsection 16.3

Subsection 16.4(1)(a)

Subsection 16.4(1)(b)

Subsection 16.5

Subsection 18.1(1)(a)

Subsection 18.1(1)(b)

Subsection 18.1(1)(c)

Subsection 18.1(1)(d)

Subsection 20(1)(b.1)

Subsection 20.1

Subsection 20.2

Subsection 20.4

Subsection 22.1(1)

Part IV – Exclusions cited

Subsection 68.1

Subsection 68.2(a)

Subsection 68.2(b)

Subsection 69.1(1)

Note: If your institution did not invoke any exemptions or cite any exclusions noted above during the reporting period, this must be stated explicitly.