September 25, 2006
Access to Information: Managing Reform and Change Seminar
CHECK AGAINST DELIVERY
I appreciate the invitation. I will begin with a confession. Library and Archives Canada has received an "F" two years in a row in the Information Commissioner's report to Parliament. I believe it is rare that the teacher invites a consistent F student to be the class valedictorian. However, I think I should add that having reviewed and revamped our processes and our approach to access to information we have now moved from the back of the class to the front row. There are mitigating circumstances and I would like to talk of these today.
I have entitled my comments today: "Two Sides of the Same Coin: Access to Information and Preservation." These two aspects of the government record keeping system work hand in hand: one cannot make accessible what one does not have or what one cannot preserve … and, conversely, there is little point in preserving records which cannot be accessible eventually. I will touch upon these theme and other key ones that are, I believe, relevant to access to information and archives: accountability, the passage of time and its impact on sensitivity.
My perspective, my values and my challenge (and those of my archival colleagues across the country) are best summarized in the preamble to the legislation Parliament passed just two years ago creating the LAC:
"Whereas it is necessary that:
The link between archives and access to information was made most clearly by Chief Justice E. M. Culliton in his 1982 Report on Freedom of Information and Protection of Privacy legislation in Saskatchewan.
He was direct: "There is an essential link between freedom of information and the archival function of the preservation of information. Unless a government makes effective provision for the selection and preservation of official records, there is little point in talking of freedom of information for the information will not be there to be studied. Selection must be done by an official dedicated to the integrity of the historical record and free from partisan influences. (I hope [this] describes the archivist) The records selected must be conserved, described and inventoried if there is to be any substance to a freedom of information policy. There must be appropriate public access. There must be some provision for permitting legitimate research, with due care to privacy and confidentiality. Finally, there must be consideration of the passage of time principle."
Culliton reflects the Saskatchewan context, a province that had one of the earliest and best pieces of archival legislation. It was passed in March 1945 as one of the first acts of the CCF government (elected June 1944). I was curious about this so one day over lunch, I asked the Honourable T. C. Douglas why this was a priority for his new government. He explained that when he and his Cabinet moved into the government offices in June, 1944, there was not a scrap of paper to be found. The outgoing government had burned all its records in bonfires behind the legislative building in the week or two following the election. He wanted to be sure this could not happen again. When he left office, all his papers were transferred to the Saskatchewan Archives in Regina. In the early 1980s, I had to call him to let him know that the 20 year restricted period was about to expire and that the journalists would be visiting the archives. He commented that he had directed that all files and papers be kept, believing that the full record, warts and all, should be there for accountability. He told me that all governments make mistakes, they are human institutions. He hoped that in retrospect historians would judge that the good his government had done would be seen to outweigh the mistakes. No government, no institution can ask more of history. Of course, Tommy immediately added with a twinkle in his voice, that he had forgotten much of what might be in his files and asked that if anything particularly scandalous emerged, could I give him 24 hours to get out of the country.
I could add that in the course of Canadian history entire governments have come and gone, entire departments have come and gone without leaving a record. Mr. Douglas knew the centrality of the record to effective public administration and to democracy itself.
I use the term "record"; I could just as easily use the concept of evidence, as the record, whether a day old or a century old, is first and foremost evidence of action of decision or of transaction. And for those who may be thinking that I am being far too historical in my comments and are waiting to get to the really important current issues, allow me to insert a reminder that in Canada as in other countries, history lives; history is about the future. The records I maintain are central to current issues like:
As I have mentioned, the preamble to the Library and Archives of Canada Act assigns responsibility for LAC to serve as "the continuing memory of the government of Canada and its institutions." This is defined in sections 12 and 13 of the Act indicating that the approval of the Librarian and Archivist of Canada is required for dispose of all records (whatever format or media, and from official records in the offices of ministers and deputies throughout the Public Service). All records identified as historical or archival are normally transferred to LAC once their usefulness in the department has expired. A section in the Library and Archives of Canada Act also permits the Librarian and Archivist of Canada to require the transfer of archival records deemed to be at risk. And section 7 empowers the Librarian and Archivist to "facilitate the management of information by government institutions." These provisions apply to all departments and agencies under Schedule 1 of the Access to Information Act, meaning they will also apply to the 17 additional corporations and agencies to which ATI is being extended by the Federal Accountability Act. And, of course, all of the existing records of these bodies, back to their creation, will also come under both the Access to Information Act and the Library and Archives of Canada Act.
The key archival decision, in the federal government and at other levels, is the decision on what records have enduring value (about 2% of current records) and which can be disposed of once they are no longer required for administrative, legal, audit or other departmental purposes. This decision is reached after careful appraisal or analysis of the unit's record system, and the function of government which is documented by the record.
At LAC, the primary goal of appraisal is to offer Canadians sufficient documentary evidence of how government has formulated policy, made decisions, transacted its business and interacted with citizens, leaving researchers and other users the tasks of analyzing and interpreting the meaning of events reflected through archival records.
These appraisal decisions are documented in the form of Records Disposition Authorities (RDAs) which include Terms and Conditions (T&Cs) for government departments. T&Cs are based on input from government departments and provide the scope; obligations; selection of the archival record; specifications for transfer, as well as instructions to help institutions transfer the archival record. The RDAs identify the records of enduring value in whatever media which must be transferred to LAC, leaving it to the departments to identify how long these and all other records are required for their business and accountability needs. We estimate that approximately 60% of the current records of the government are covered by Records Disposition Authorities.
The archival decision on retention is a key one: it inevitably affects and limits the role of information commissioners, the public right of access and, perhaps, the type of historical inquiry which can be done in the future. The power of the decision is suggested by the terminology employed by our Australian colleagues . . . to them this is "sentencing records." In an effort to improve transparency and to provide both government clients and the public improved access to records, all RDAs, T&Cs, and archival appraisals have been automated in a database called RDACS. This system contains summary descriptions of RDAs granted by the Librarian and Archivist of Canada to federal institutions, as well as on-line copies of relevant documentation. RDACS also contains updated information on which federal institutions or agencies are responsible for applying authorities; documents covered by authorities; and accessions held by LAC across Canada.
RDACS currently includes descriptions of 2298 authorities. Moreover, it is linked to our descriptive records database, MIKAN. Researchers will be able to navigate from one system to the other, seeing all the accessions from across Canada that have been transferred to LAC; researchers will also be able to link from an accession record in MIKAN to RDACS for a copy of the archival appraisal that identified that accession of archival records for transfer to LAC. I believe we are the first major archives in the world to do this.
There are of course broader Information Management issues: it is the responsibility of government departments to properly document their activities. Since 2003, the requirement for documenting decisions has been codified in Treasury Board's Policy on the Management of Government Information. As many of you know, a portion of that document reads: "To ensure the effective and efficient management of information . . . throughout its life cycle, institutions must . . . document decisions and decision-making processes to account for government operations, reconstruct the evolution of policies and programs, support the continuity of government and its decision-making, and allow for independent audit and review."1 Even so, the Auditor General in her reports frequently notes issues where effective record keeping has failed or where public servants decided simply not to keep a record.
The firm of forensic auditors and litigation consultants retained by Mr. Justice Gomery to conduct the examination of government books and records, reported the following on July 18, 2005: "Kroll cannot provide assurance that the Government of Canada documents and files it has reviewed are complete and represent the files as they were in the original instance. Furthermore, the incompleteness of the communications agencies, and their principals books and underlying records and related files and documentation restrict our ability to report on the ultimate use of all sponsorship and advertising funds for those agencies and related contracts and events of interest." In other words, no records, no evidence.
As the archivist of the government I am concerned about the integrity of the historical record and, within the government I try to act as one of the major advocates for effective Information Management, in my role as IM champion.
Working in close collaboration with its other two lead agency partners, Treasury Board Secretariat and Public Works and Government Services Canada, LAC provides expertise in records life cycle management, tools and best practices and common services. LAC has provided government departments with an IM Capacity Check tool, which allows government departments to self-assess the status of their current IM . . . 27 departments and agencies have completed [this] . . . overall analysis is underway.
The widespread and increasing use of electronic information systems across government present yet another challenge for us and all archives in the country. As Jeff Rothenberg has commented in a modern office "electronic records last forever or for five years, whichever comes first." Maintaining e-records (i.e. not just data or information but a record with long-term value as evidence) in email systems and the great variety of document management systems (past, present and future) is the greatest challenge facing modern computing. The industry is hesitant about permanent e-records, preferring a business plan of continual obsolescence. Governments, courts and social scientists need records as evidence, now and a century from now. To date the Government of Canada does not have any central capability which meets the standards of a trusted digital repository. We are working towards it and are saving e-records and publications but the long-term remains uncertain.
We are now documenting the gc.ca web (March: 40 million digital objects). We have downloaded the websites for both the Gomery Commission and the Maher Arar Inquiry as well as the websites of all the political parties through the last federal election. When Prime Minister Chrétien left office his email system transferred to us, along with the document system and the web site. Of course, graduate theses come to us from universities across Canada in e-form (45,000 theses). Earlier this month, we published the new draft regulations for legal deposit of materials published in Canada under our new Act, including for the first time, electronic publications and maps. We are maintaining this material and can move it forward as hardware and software change, but I am not yet certain it is preserved for the long-term in a manner that assures its integrity and authenticity.
As archivists our second function focuses on public access, but with due diligence regarding privacy and confidentiality. Intertwined with this, there must be consideration of the principle that the passage of time reduces sensitivity. This was emphasized in the Culliton report, and was taken up by the recent (2002) Access to Information Review Task Force. The Task Force noted that not all records lose their sensitivity over time, but that a large number of them, in fact, do so.
In order to facilitate access to the historical record, the Task Force recommended that "Decisions on the release of (historical) records should be based on an understanding of both the larger historical context of events and 'educated' risk management." This was to take the form of a systematic block review. In terms of a date trigger, the Task Force recommended that Canada adopt a 30-year standard to keep it in line with the British model, or even adopt the 25-year model in use in the U.S. The Task Force also stated that LAC was "best placed to play a lead role across government in developing and adopting processes for the systematic bulk review and release of historical records."2 I assure you that we continue to work at developing such models, based on educated risk management. We hope to share the results of our work with other institutions soon.
In reviewing Culliton's report, I was struck by how some issues continue to cause concern. For example, it noted that government was becoming increasingly complex in many ways, and that there was doubt if the provincial legislation applied to all government institutions. He recommended that Freedom of Information be adopted and the archival legislation be changed so as to "cover crown corporations, boards and agencies explicitly."3
At this point, I wish to speak briefly of archivists and LAC and access to the record. There is a long and complicated history involving archivists and accessibility; an anecdote, involving one of my famous predecessors, will serve as an example. For over a century, LAC has had to constantly mediate the process of making government records accessible with various governments.4
In the early 1880s, Douglas Brymner, Canada's first Dominion archivist, made arrangements with the British government to copy Foreign Office, pre-Confederation records relating to Canada up to 1842. In 1884, the Foreign Office withheld a volume of Sir Jeffrey Amherst's papers from 1763 because of two letters that refered to a British plan to infect Indians with smallpox in 1763.
Brymner wrote to the Deputy Keeper of the Records, pointing out that a copy of the document was already available at the Archives in Ottawa.5 He said, " The hopelessness of trying to conceal any matters of this kind that are purely historical ought, it seems to me, to be sufficient to induce the state departments to remove from the rules the hindrances that exist to the fullest examination of all the documents that can be thrown open for investigation." "There are so many contemporary records," Brymner continued, "that nothing can be kept concealed and no good end can possibly be served by the attempt to do so."6 Brymner followed up this complaint a couple of days later in a letter to the Colonial Office's R. H. Meade. He asked, "What confidence can we have that any historical facts are not suppressed, which are absolutely necessary to be known, if history is to be more than a mere gathering of hearsays." Continuing, Brymner observed, " . . . the Dominion of Canada may fairly ask for the papers relating her own history complete and without the preening knife being applied . . . may say frankly, but simply from a personal point of view, that I regard expurgated copies of historical papers as of very little value."7
It would be wrong to suggest that over the next 100 years, Brymner and his successors did not continue to struggle with issues of preservation and accessibility, but it is true, I think, that everything changed with the promulgation of the Access to Information Act and Privacy Act in 1983.
The Acts resulted in the creation of new relationships between the then Public Archives of Canada (PAC) and their government clients-PAC, being responsible for all government records under its care and control, provided public access to its records. Prior to 1983, access to government records was generally governed by a 30-year rule.8 Under this regime, documents more than 30 years old were made available to researchers, while access to records that were less than 30 years old were made available only with departmental approval.
After the Acts passed, "…every time a file is requested it must be examined, if not previously released, for the presence of excluded or exempt material."9 The legislation was also applied retroactively to records in the pre-1983 collection that had not been previously opened for consultation.
Historian Craig Brown and later Jean-Pierre Wallot, my predecessor, commented that while the intent of the legislation was laudable, the resources needed to provide the service represented an enormous burden on the limited budget of a modest-sized cultural agency.10 The full implications of the legislation and its impact on the existing record were not studied or considered. Records created prior to 1983 and even after were not structured to respect ATIP . . . personal information is scattered everywhere, legal opinions, information from other governments, cabinet confidences in many formats and different types of documents are intermingled. This will undoubtedly be the same for the 17 new institutions soon to be covered by ATIP and the Library and Archives of Canada Act.
The provision of these services continues to have a huge impact on LAC and its holdings. The LAC collection of government records is the fastest growing, largest, most complex body of records subject to ATIP in the government . . . the same can be said of the provinces' 125 kilometers of textual records. Government records also make up a portion of total holdings in other media: electronic records (3.54 million megabytes), photographs (24,600,000 images), films (72,700 hours), videos (116,100 hours), maps (1,800,000) and architectural drawings (1,140,000).11 The year before last, LAC acquired 30,000 linear feet of federal government textual records, stored in Ottawa and in Federal Record Centres in Vancouver, Winnipeg, Edmonton and Halifax.
The volume of archival records received is likely to increase, reflecting the fact that there are very large collections of unscheduled government records under the control of federal institutions; paper mountains, at Health Canada, at the Canadian Hydrographic Service; Second World War personnel records; the list goes on and on, and these are only beginning to be prepared for transfer to the care and control of LAC.
All government archival records transferred to LAC which were subject to ATIP remain subject to ATIP review. Even records that are not part of LAC's archival holdings are subject to review. For example, LAC is responsible for making Second World War military service files accessible, and is responsible for allocating the resources required to make this possible.
In some instances, consultations with creator agencies are required prior to the release of the record to the public. Personal information may appear anywhere in the file and access is regulated by date of death. Case or personnel files are more likely to have a date of birth, not of death. The legislation for any archives is heavily labour and resource intensive and it applies to most of the government records in our holdings.
Our records are in demand. We are always in the top five government departments in terms of the number of requests received. The requests made to LAC in 2005-2006 alone might give you some perspective: 745 formal ATI requests, 1,344 formal privacy requests. . . in that same year we answered 7,000 requests in total, and reviewed more than 3 million pages in detail. We also reworked our procedural manual and clarified our work processes.
To be proactive, we have now opened some 10 million pages of First World War personnel files to the public.12 Given the complexity of some of the requests, and in light of agreements we have with some institutions for mandatory consultation (for instance, CSIS), in 2005-2006, LAC consulted with government departments on 249 occasions. And I don't need to remind this audience how much we rely on other government departments to complete these consultations in a timely fashion.
As can be seen, we are one of the busiest institutions in the federal government in terms of ATIP requests. It needs to be emphasized, however, that LAC is unique. Responding to requests in other government institutions frequently involves applying similar review criteria to a fairly homogenous set of records. Relatively few different exemptions and exclusions are invoked. ATIP personnel in these institutions have the operational units with which to consult regarding the accessibility of the records under review.
For the archival records at LAC, however, there is no current operational units expertise on which to rely. Moreover, an LAC analyst can expect to encounter records from dozens of federal institutions in a given week, and they might involve using virtually any exemption and/or exclusion.
By way of illustration, LAC routinely receives requests for access to archival records of the Department of National Defense, Indian and Northern Affairs, Justice, Canadian Security Intelligence Service, RCMP, Health Canada, and Citizenship and Immigration Canada, to name but a few. The types of information to be reviewed vary greatly, and it demands a good knowledge not only of the legislation, but also about the nature of the federal government and its history and the sensitivity of current issues.
I wish to stress, however, that the release of personal information is not done cavalierly. A number of factors have to be weighed before a decision is made and, in many cases, it is impossible to generalize and then set up a "cookie cutter" solution.
Naturally, though, not all personal information is sensitive. Therefore, not all of it should be exempted from official records.
It is one thing to document all of the decisions taken by the 175 agencies that comprise LAC's holdings but, as archives, we must also carefully document our access decisions. For example, Grandview Training School, relating to my tenure as the Archivist of Ontario, is a case in point . . . our decision taken through full appeal process to point where requester sought to appeal to Supreme Court. There are practical concerns that have an impact on LAC's capacity to respond to ATIP requests. Returning once again to my preservation theme, it is not just the archival record that needs to be created and preserved, but also the information about the context of the record, its metadata and the tools needed to access it as well. For instance, records have been transferred in the past to LAC from departments with no finding aids. This means that our staff must spend additional time to locate the records, and then review them.
We are coping with other issues: one request to us can be massive, involving many boxes or hundreds of files from many different departments. We cannot control demand (for example, main employers of historians today are private research firms . . . on issues like residential schools, land claims, environmental history, human rights) . . . as we promote LAC and access, demand and expectation are rising faster than resources.
The situation has changed in recent years, and the requirement for adequate electronic finding aids to accompany transfers is now embedded in T&Cs. This addresses the future, but the past is another matter, and we are striving to construct adequate finding aids for our collections that do not have them. Only portions of our government finding aids have been digitized and are therefore available to Canadians on our Internet site. Thousands of finding aids, many of which exist as hand-written lists, ledgers and index cards need to be digitized. We are doing so strategically, beginning with the most frequently consulted records and moving from that point.
In addition to all this, LAC remains susceptible to trends and other government activities that can significantly increase our ATIP workload. For example, the government's decision to examine its role in relation to Indian residential schools has resulted in an increase in privacy requests for our institution. As well, last year as the Year of the Veteran in Canada, we experienced an increase in the number of requests for military personnel records and records of National Defense.
From my perspective, solving ATIP problems is not simply a matter of providing more resources to solve a logistical problem. ATIP was treated as an add-on in the 1980s and various organizational models and solutions were tried . . . the current crisis shows us it must flow through and be integrated in all our processes, from T&Cs with departments through all reference and access functions. We are now actively working with government departments and agencies to pre-screen records, to the fullest extent possible, identifying those government records that can be made accessible to the public, building that information into the metadata that is transferred to LAC along with the record, without further intervention on the part of the institution. (What was access status in the departments . . . what are their precedents?) We are also working with the research community to help them use the ATIP process more effectively . . . how to focus or frame their requests and how to help us understand what really they are trying to learn . . . we can occasionally refer them to already open sources.
We and archivists across the country recognize that we have a part to play in ensuring preservation of the archival record in order to make it accessible. We are actively looking at how we work as an institution, how government departments and agencies create information, the way we connect to the world outside, and how we can preserve and re-purpose that information created by government departments for LAC description and accessibility. Inside the institution, we have reviewed and revamped our processes and approaches to ensure the ATIP backlog does not recur.
To conclude, and bringing us back to where we started, LAC is acutely aware of the role that it plays in enabling Canadians to know more about themselves, their past and their future. In the press of every day business, we sometimes forget the power of the record.
Recently I met with Archbishop Desmond Tutu. He provided a meeting of national archivists from around the world with a potent reminder of the effects of our work and the result of our collective efforts:
"The Truth and Reconciliation Commission helped to give substance to our suspicions that the apartheid government had systematically used the torture of activists and assassinations of so-called 'enemies of the State', meaning virtually anyone who had the temerity to oppose apartheid . . . Their subterfuge was testimony to the potency of records to deter the commission of violations . . . Their records are crucial to hold us accountable. They are indispensable as deterrents against a repetition of this ghastliness and they are powerful incentive for us to say, 'Never again.' They are a potent bulwark against human rights violations."
1. Treasury Board of Canada Secretariat, "Policy on the Management of Government Information," Section 2.2. Available on the Treasury Board website, www.tbs-sct.gc.ca/pubs_pol/ciopubs/tb_gih/siglist-eng.asp.
2.Government of Canada, Access to Information Review Task Force, Access to Information: Making it Work for Canadians (Ottawa: 2002), p. 139.
3.Report of the Honourable E. M. Culliton, Former Chief Justice of Saskatchewan, on the Matter of Freedom of Information and Protection of Privacy in the Province of Saskatchewan, p. 50.
4.This anecdote is also cited in Robert J. Haywood, "Federal Access and Privacy legislation and the Public Archives of Canada," Archivaria, No. 18, Summer 1984, p. 48.
5.Sir William Hardy (1807-1887) was Deputy Keeper of the PRO from 1878 until January 1886. He was consistently supportive of Brymner and his plans to copy documents relating to Canada. On Hardy, see Dictionary of National Biography, pp. 1245-1246.
6.RG 37, vol. 179, folios 154-155, Brymner to Hardy, April 5, 1884; quote from folio 155.
7.RG 37, vol. 179, pp. 159-160.
8.Daniel German, "Access and Privacy Legislation and the National Archives, 1983-1993: A Decade of ATIP," Archivaria, No. 39, Spring 1995, pp. 196-213.
9.Ibid, p. 198.
10.Daniel German, "Access and Privacy Legislation and the National Archives, 1983-1993: A Decade of ATIP," Archivaria, No. 39, Spring 1995, p. 196 and 198.
11.LAC, Part III - Report on Plans and Priorities, 2005-2006.
12.DPR, LAC 2003-2004.