Strengthening the Access to Information Act 

7. Role of the Information Commissioner

7.1 Investigation of complaints

The primary role of the Information Commissioner is to investigate complaints made by dissatisfied requesters under the Access to Information Act. At present, the Information Commissioner is an ombudsman: he makes recommendations to institutions concerning the resolution of complaints and can, with the agreement of the requester, go to court to challenge a denial of access. Furthermore, the Information Commissioner reports to Parliament on an annual basis on matters relating to complaints and their outcomes.

The Information Commissioner currently has very strong powers that support him in the conduct of his investigations. He can summon and enforce (by subpoena) the appearance of persons before him and compel them to give evidence or produce documents, administer oaths, enter any premises occupied by any government institution, and examine any record held by a government institution (excluding Cabinet Confidences).

The Information Commissioner can investigate complaints on behalf of a requester relating to denial of access, fees, extensions of time limits and delays, the official language or format of access, or any other access related matter. Where the Information Commissioner believes there are reasonable grounds to investigate a matter relating to requesting or obtaining access, he may choose to initiate his own complaint.

The Information Commissioner has proposed a number of amendments to the investigative process under the ATIA.

7.2 Proposals

The Information Commissioner has proposed deleting the words "reasonable grounds to investigate" with respect to self-initiated complaints, although the interpretation of "reasonable grounds" is currently left to the good judgement of the Information Commissioner. It is not clear why the Information Commissioner would want to commence an investigation that he himself does not consider to be reasonable. If, as he notes, this change is intended to allow his office to conduct audits or systemic investigations, then he may wish to propose that he be given a clear mandate to conduct such activities, and the relevant issues may then be fully discussed.

Section 64 of the ATIA currently requires that the Information Commissioner take every reasonable precaution to avoid the disclosure of information protected / withheld by a government institution. However, he recommends a number of amendments to the legislation that may weaken or erode this requirement.

The Information Commissioner proposes that the grounds under which he may disclose information be broadened. He adds a new section that would allow him to disclose information he feels would allow a party to make more meaningful representations to his office during the conduct of an investigation.

Representations before the Information Commissioner are intended to be conducted in confidence. This allows all parties, in their turn, to be forthcoming and candid - necessary prerequisites for effective investigations. The Information Commissioner proposes that he be authorized to admit any individual to witness representations being given before him. He proposes adding the bolded text to the following section of the ATIA:

unless authorized by the Information Commissioner, and subject to section 64, no one is entitled as a right to be present during, to have access to or to comment on representations made to the Commissioner by any other person [emphasis added].

An unintentional consequence of his proposals may be that the government could be reluctant to make full and complete representations to the Information Commissioner when it justifies its refusal to disclose records requested under the ATIA based on a fear that its representations - which themselves may contain confidential information - will be disclosed by the Commissioner to the complainant or any other third party. The result will be that the Commissioner's findings and recommendations will be based on incomplete information. Such a result is in no one's interest, and is more likely to lead to litigation, an outcome that could have been avoided if the government could trust that the Information Commissioner's treatment of sensitive or confidential information in representations would not be disclosed to the complainant.

7.3 New grounds for complaints

Improper requests

The Information Commissioner proposes a new provision be added to the ATIA to allow government institutions to refuse to process requests which are improper. The proposed change would allow the Information Commissioner to receive and investigate complaints from institutions that believe that an access request should be disregarded as being contrary to the purposes of the ATIA.

The proposed provision is intended to allow the government to refuse to process requests that are frivolous, vexatious or abusive. Many jurisdictions have such a provision in their legislation.

Under the proposal of the Information Commissioner an institution would be required to seek and obtain the approval of the Information Commissioner in order to refuse to process a request.

Coverage

The Information Commissioner proposes including a paragraph that creates a right of complaint to his office on the function of the Governor in Council to keep under review and add to Schedule I those institutions that should be covered by the ATIA. If the ATIA is amended to include criteria for determining the coverage of the ATIA, and if the ATIA is also amended to impose a duty on the Governor in Council to add qualifying institutions to the Schedule of the ATIA, it would be questionable, even in that circumstance, if it would be appropriate for an Agent of Parliament to investigate an action or decision of the Governor in Council.

Time limits for investigations

At present, there are no time limits for the conduct of investigations by the Office of the Information Commissioner.

The Information Commissioner proposes amending the ATIA to set a 120 day limit for the completion of investigations, subject to possible extensions, after which requesters would have the right to proceed to Court without a finding by the Information Commissioner.

Considerations:

Setting time limits for the completion of investigations would require an increase in the Information Commissioner's staff and would place an additional burden on the stretched resources of government institutions in order to meet the legislated deadlines. Increased costs would likely be in the range of $15 to $20 million over five years.

Although this provision would likely allow requesters to have redress to the Court more quickly, they would not have the benefit of the Information Commissioner's findings beforehand. The Committee may wish to consider whether this is an appropriate compromise.

7.4 Neutral Adjudicator vs. Advocate

The Information Commissioner proposes a new section of the ATIA which would provide a significantly broader mandate for his office. This section would give him responsibility for monitoring the administration of the Act and a number of other new responsibilities, such as public comment on proposed legislative schemes or government programs, public awareness and public sector training, receipt of comments from the public and research "into any matter that may affect the attainment of the purposes of the Act."

Considerations:

The Information Commissioner's approach here may be a consequence of the narrow focus of his current mandate. It is understandable that he would wish to share knowledge, experience and information with the public.

An important consideration in this regard, however, is the need to co-ordinate roles between the Information Commissioner and the President of the Treasury Board who is currently the Minister designated to have certain similar responsibilities under the Act. Perhaps it would be most beneficial if some of these responsibilities were shared between the Information Commissioner and the Minister, a step which may encourage useful interaction between these two senior parties and their officials.

The Government welcomes the Information Commissioner's proposal that he provide advice on legislation that has been introduced or government programs that have been announced. Some clarification might be needed concerning the monitoring role that could be played by the Information Commissioner and the monitoring role of the designated Minister. The Information Commissioner's recommendation that the designated Minister collect annual statistics on the administration of the ATIA has been included in the proposed Federal Accountability Act.

The Government also supports the Information Commissioner in his desire to conduct research into matters related to his duties or functions. The role of the Information Commissioner in increasing public awareness or educating the public service on their responsibilities is another area which would require careful co-ordination with the activities of the designated Minister. Perhaps this is another area where a co-operative effort could work best.

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