Information Commissioners call on governments to create a duty to document

January 25, 2016

Canada’s Information Commissioners have called on their respective governments to create a legislated duty requiring public entities to document matters related to their deliberations, actions and decisions.

In a joint resolution, information commissioners expressed concerns about the trend towards no records responses to access to information requests. This lack of records weakens Canadians’ right of access and the accountability framework that is the basis of Canada’s access to information laws. Without adequate records, public entities also compromise their ability to make evidence based decisions, fulfill legal obligations, and preserve the historical record.

Canada’s information commissioners have urged governments to create a positive duty for public servants and officials to create full and accurate records of their business activities. This duty must be accompanied by effective oversight and enforcement that ensures Canadians’ right of access to public records remains meaningful and effective.

The resolution is available on the websites of the Office of the Information Commissioner of Canada (www.oic-ci.gc.ca) and the Office of the Information and Privacy Commissioner for British Columbia (www.oipc.bc.ca).

Statement of the Information and Privacy Commissioners of Canada on the Duty to Document

Context

Every year, information commissioners across Canada investigate complaints about requests for records that should exist but do not. When public entities fail to document key decisions and activities, Canadians’ right of access, and the accountability inherent in such access, is denied.

The trend towards no records responses to access requests appears to result from new communications technologies that complicate the retention and management of records and an emerging oral culture of decision-making where the activities of public entities go undocumented.

The failure to create and retain records has renewed long-standing concerns about the lack of a legislated duty to document in Canada. Such a duty would require the creation of records relating to the key actions and decisions of public entities.

Other jurisdictions have imposed legal requirements to create records. These requirements include standards to ensure that records are full and accurate, and managed in a way that makes them accessible and reliable for future use.

Whereas

Access rights depend upon the creation of records that document the affairs of government.

The lack of a legislated duty to document continues to produce an accountability gap in Canada’s access to information and records management legislation. By not creating and retaining records, public entities can effectively avoid disclosure of documents and public scrutiny.

Defining the duty to document key actions and decisions of public entities in legislation would ensure that citizens have a meaningful and effective right of access. Such reforms would also support government workers in their efforts to be effective and accountable. Adequate documentation facilitates evidence-based decision making, satisfies legal obligations and preserves a comprehensive historical record.

A meaningful and enforceable duty to document depends on independent oversight. Any failure to perform essential duties should be prohibited and subject to sanction.

Therefore

Canada’s Information and Privacy Commissioners call on our respective governments to:

Create a legislated duty requiring all public entities to document matters related to their deliberations, actions and decisions. This duty must been accompanied by effective oversight and enforcement provisions to ensure that Canadians’ right of access to public records remains meaningful and effective.

Canada’s Information and Privacy Commissioners commit to:

Engage our respective governments on the implementation and oversight of a duty to document.

Promote effective records creation and management among public entities through education or enforcement, as appropriate.

Backgrounder on A Duty to Document

Why a duty to document?

Access to information rights depend on public agencies documenting their key activities and decisions. Every year, information commissioners across Canada investigate complaints where requested records do not exist because they were never created. An emerging culture of oral decision making undermines public accountability, the historical record, and citizens’ trust.

Records management in the 21st century is challenged by new communications technologies, the volume and variability of records, and developments such as bring-your-own-device arrangements. These developments make document retention and accessibility more complicated.

A duty to document addresses these concerns by establishing a positive duty for public servants and officials to create a full, accurate and complete record of important business activities. Records should be properly preserved so that they remain authentic, reliable, and easily retrievable when subject to access to information requests.

By creating records that explain the ‘what’ and ‘why’ of public agency decision making, a duty to document promotes accountability, transparency, good governance and public trust.

Canadians care about a duty to document

A 2014 national poll commissioned by Canadian Journalists for Free Expression found that 75% of respondents either agree or somewhat agree that “Federal employees should be required by law to create a permanent, retrievable record of their deliberations and decision-making at work, even when these take place using non-written forms of communication.”^{Footnote 1}

During the 2015 federal election, a coalition of 22 civil society groups issued a joint statement calling on Canada’s major federal parties to commit to reforming Canada’s access to information system. One of their main recommendations was the adoption of a requirement for “public officials to document and preserve all records of their decision-making.”^{Footnote 2}

What would a duty to document look like?

A duty to document should be a legislated requirement to create records, not just a policy. This legal requirement could be incorporated into existing information management laws or access to information and privacy statutes.

A duty to document does not need to be onerous. The focus is not on the creation of more records, but rather on the creation and retention of the right records. The documents to be created will depend on the business needs of public agencies and community expectations.

In order to be effective, the duty to document must be accompanied by strong records management practices and standards, and independent oversight with sanctions for non-compliance.

Canadians can turn to a number of tested, international models of duty to document legislation, including the United States, New Zealand and some Australian states.^{Footnote 3}

Are there examples of a duty to document in Canada?

Some Canadian laws include requirements to create records in specific circumstances. For example, Ontario’s Municipal Act requires municipalities, local boards and committees to record resolutions, decisions and other proceedings.^{Footnote 4} And the Treasury Board of Canada Secretariat has a policy directive requiring deputy heads to ensure, “that decisions and decision-making processes are documented to account for and support the continuity of departmental operations, permit the reconstruction of the evolution of policies and programs, and allow for independent evaluation, audit, and review”.^{Footnote 5}

However, there are no legal obligations to document in any federal, provincial or territorial access to information or information management laws. This is why Information Commissioners are recommending a comprehensive and codified duty to document that includes oversight and enforcement.

The role of Canada’s Information and Privacy Commissioners in promoting a duty to document

Federal information commissioners have recommended a legislated duty to document since the early 1990s in annual reports, reviews of the Access to Information Act, and presentations to the House of Commons Standing Committee on Access to Information, Privacy and Ethics.

Provincial and territorial commissioners have made similar recommendations. In 2013, Canada’s Information and Privacy Commissioners issued a joint resolution that urged governments to create a legislated duty requiring all public entities to document matters related to deliberations, actions and decisions.^{Footnote 6}

Calls for reform continue to come from experts across the country. In 2015, the committee reviewing Newfoundland and Labrador’s access and privacy legislation called on that government to impose a duty to document.^{Footnote 7}

In British Columbia, the Commissioner has urged government to adopt a duty to document in several reports and in her submission to the Special Committee reviewing the province’s access and privacy legislation in 2015.^{Footnote 8}

And in Quebec, la Commission d’accès à l’information has called for a duty to document as part of the modernization of that province’s public sector access to information law.

-30-