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Paul Conlin of Ogilvy Renault. (Etienne Ranger, OBJ)

Delays in access to information requests hurting system's largest users

Increasingly lengthy delays in responding to federal Access to Information (ATI) requests are undercutting the system's usefulness to companies seeking more information about government procurement and regulations, observes a local lawyer.

Businesses are the biggest user of ATI in Canada, filing more than 44 per cent of the 29,000 requests received by the federal government in 2006-07. That's more than the amount filed by journalists, academics and other organizations combined, when excluding requests from the public.

Businesses generally use ATI to obtain information on government contracts and gain commercial intelligence to put them in a stronger position, or learn of new regulations under consideration.

But the relevance of this information decreases with time, notes Paul Conlin, an Ottawa-based lawyer at Ogilvy Renault specializing in government contracting and federal regulatory issues. "Information tends to be most valuable when it is timely," he says. "It creates a disincentive to file access requests if (a private company) doesn't think it is going to get any information for a period of six months or longer."

For a $5 fee, individuals and companies can request government records, including briefing notes, budgets, correspondence and audits. While the Access to Information Act sets a target of 30 days to respond to requests, Mr. Conlin says this goal is rarely met.

Indeed, two recent reports concluded federal delays have reached a "crisis" level as federal employees struggle with a growing number of increasingly complex requests.

Mr. Conlin says there has been growing use of ATI procedures by businesses, which generally fall into two categories – suppliers of goods and services, and those operating in heavily regulated environments.

On the regulatory side, companies often want a sneak peek at new federal policies to get a head start on adapting, says Mr. Conlin. If the government is considering further regulatory burdens on a certain substance, for example, companies may want to examine alternatives and potential changes to supply chains.

In the procurement realm, losing bidders often try for a copy of awarded contracts to gain information about their competitors or strengthen a future bid.

For example, Mr. Conlin says a request for proposals may say the government intends to purchase 10 basic widgets and require the bidder to provide a unit price. That bid would then be evaluated on the unit price multiplied by 10, he adds.

However, if a company learns through ATI that the government purchased 15 upgraded widgets, it could then adjust its pricing strategy in a future bid.

Businesses can also gain valuable information by requesting correspondence between various departments, says Dave Lowdon, a securities lawyer at Perley-Robertson, Hill & McDougall.

Mr. Lowdon says there's a general reluctance among businesses to use ATI too often out of fear they will offend government purchasers, a notion he tries to dispel.

"These are quite simply your rights and you should feel free to use them," says Mr. Lowdon. "The government is supposed to be open." He adds government response times have become increasingly longer.

Likewise, Ottawa-based public interest researcher Ken Rubin, who says he files hundreds of ATI requests annually, says new users of the system will likely find it frustrating in terms of the lengthy process and exemptions the government often employs to avoid releasing information.

He advises anyone filing a request to be persistent, but says the law needs an overhaul.

"It drastically needs a revamp and become a little more fast-moving," he says.

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ACCESS STATS

Time required to complete requests

0-30 days: 57.8% (17,028)

31-60 days: 16.9% (4,983)

61-120 days: 12.1% (3,557)

121 days or more: 13.2% (3,905)

Source of requests

Businesses: 44.1% (12,868)

Public: 32.4% (9,461)

Media: 12.4% (3,617)

Organizations: 10% (2,932)

Academics: 1% (304)

Institutions, ranked by number of requests received:

Citizenship and Immigration Canada: 35.9% (10,497)

National Defence: 6.2% (1,808)

Canada Revenue Agency: 5.5% (1,604)

Source: Statistical tables – 2006-07 – Access to information, Info Source Bulletin No. 30