Assistant Deputy Ministers Advisory Committee - Highlights of Meetings

June 8, 2001

• Introduction

The Chair indicated that the meeting was to focus on the redress structure for access to information.

One of the principles underlying the access regime is that decisions about the disclosure of government information should be subject to independent review. Sections 30 to 53 of the access to Information Act provide for a two tiered review process. The Information Commissioner, a neutral and independent Ombudsman is charged with investigating complaints and making recommendations to institutions regarding the disclosure of information and the administration of the Act.

The Information Commissioner is one of 5 officers reporting to Parliament, three of which are ombudsofficers with virtually the same powers: the Information Commissioner, the Privacy Commissioner, the Official Languages Commissioner.

If the complaint relates to the disclosure of information, the complainant and any third parties then have a right to seek a review in the Federal Court of Canada. The Information Commissioner, with the requestor, may also apply to the Federal Court for a review of the institution's decision to refuse access. Also, with the Court's permission, the Commissioner may appear as a party to any review requested by a requestor or third party. In each instance, it is review de novo of the decision of the Head of the institution to disclose (or not disclose) the records requested. It is not a review of the Commissioner's work or the Commissioner's findings.

In the reporting year 2000-2001 the Information Commissioner's Office investigated over 1,300 complaints of which 2 resulted in applications to the Federal Court.

The Information Commissioner addressed the Committee on February 23, 2001.

• Complaints/Redress/Appeal Process

Paul Tetro, a consultant hired by the Task Force made a presentation on the redress process under the Access to Information Act and compared it with appeal mechanisms in other jurisdictions. Mr. Tetro was General Counsel to the Information Commissioner of Canada from 1985 to 1997. He stated that aside from a rather brief discussion in the 1977 Green Paper of the review options, there had been no real debate of the relative merits of the two step review process chosen for the Act. In the 1986 Parliamentary Review, there was no real discussion of the merits of the review process, only a recommendation that the Information Commissioner be given a 90-day time limit within which to complete investigations. This recommendation has not been acted on by the Government.

The Information Commissioner is an Ombudsman whose role is to receive and investigate complaints, make findings and, where appropriate, to make recommendations. He is supposed to be an impartial arbiter between the government and the complainant. The Commissioner is given wide investigatory powers but is required to conduct those investigations under the confidentiality requirements of the Act.

The Commissioner interacts with many players, users of the Act, government institutions who receive and process requests, the third parties whose information is sometimes the subject matter of a request, the Treasury Board and the Department of Justice - the federal ministries responsible for the administrative and legal policy of the Act - and the Federal Court of Canada which performs judicial reviews under the Act. Invariably, the Information Commissioner is caught between opposing views and must find a way to balance them in an impartial manner to ensure that the integrity of the office will be protected and the trust and confidence of all parties maintained and, above all, that the principles of the Act will be met.

Experience shows that under the current Act, where the Commissioner's role is not spelled out in detail nor limits put on the performance of the task, the personality of the Commissioner or even the culture of his office have a very real bearing on how well the Commissioner is perceived as doing his/her job. In Mr. Tetro's view, the Act could spell out more the role of the Commissioner.

For example, the mandate of the Commissioner is silent on an education role. Mr. Tetro advocated the inclusion of an advisory and education role for the Commissioner and said that these additional responsibilities would encourage the Commissioner to be more accountable for his decisions and become part of the solution.

Resolution of complaints through conciliation or mediation was introduced early on by the Commissioners, notwithstanding the lack of a statutory mandate for this role. It would be a good idea however to specify this role in the Act. Perhaps the tendency to emphasize the investigatory aspect of the role would be moderated if there was a mediation role specified in the Act.

Consistency in the Commissioner's decisions has been problematic. Commissioners have traditionally taken the position that the duty to conduct investigations "in private" precludes making decisions public. As well, Commissioners have usually refrained from giving detailed reasons for their findings or publishing guidelines both of which would assist government agencies on their administration of the Act. Since the Courts have shown that hearings can be held and confidentiality still be protected and that decisions with reasons can be given, there would appear to be no reason why the Commissioner could not do likewise.

There is very little case law about access at the federal level. Reviews by the Federal Court have been useful as they have clarified statutory interpretation or the powers of the Commissioner but may have increased the adversarial relationship between the Commissioner and the government.

The experience of the Act to date clearly indicates that attitude is a major element in the effective administration of the Act. The Commissioner's attitude towards enforcement leads to a reaction by Government, clearly demonstrating that confrontation does not work. Equally, departments officials tend to know little about the Act and not understand its principles. Departments, users and the general public all need a sound educational program. Only in this way will the principles of the Act be applied in a reasonable manner.

Mr. Tetro reviewed problems areas with the current redress model. The Commissioner is under no statutory time limits leading to long detailed investigations. Departments, on the other hand, are working under tight time limits and severe staff constraints when they search and review the records in the first instance making it very difficult to do a proper analysis and severance. It would even the playing field if the Commissioner was given time limits within which to complete an investigation.

Mr. Tetro said that the separation of the Office of the Information Commissioner and the Office of the Privacy Commissioner generates confrontation and confusion for departments. He advocated merging the two as they are in the provinces and suggested that, at the very least, these offices be mandated by law to consult with one another in certain circumstances. He also stated that the lack of any oversight function on the Office of the Information Commissioner, which is provided for in order jurisdictions like Alberta and British Columbia, should be addressed.

He also suggested that the Access to Information Review looks at a number of other problematic access in the context of investigations: legal opinions on the complaint; the confidentiality of investigations; the right to counsel; the relevancy of documents and witnessed examined.

He reviewed the features of redress models in other jurisdictions in Canada and abroad: administrative review mechanism; investigatory process; time limit for investigations; complaint fees; order-making powers; audit and monitoring role; education mandate; publishing decisions/practice notes.

He concluded by stating his view that the most effective model for the Information Commissioner would be that of a tribunal with the power to mediate complaints and to make orders if mediation fails. He suggest the Information Commissioner should also have an education, monitoring and audit role. Giving more powers to the Commissioner, would in his view reduce the adversarial nature of the relationship since the Commissioner would become obligated to be more rigorous and consistent with his decisions and it would generate more collaboration between the Commissioner's office and the departments.

• Discussion

The Committee members reviewed a few of the theorical models of redress outlined by Mr. Tetro's ranging from an Ombudsman with an educational orientation, the classic ombudsman with full investigative powers, a tribunal or a full commission. They discussed his view that providing more powers to the Information Commissioner would reduce friction and improve compliance. They inquired about the conflicting or complimentary elements of a model that included order-making powers, advisory, and public education roles. They discussed the change within the Auditor General's office over the last few years, and how the role has changed towards being more consultative and participatory in delivering advice on the management and delivery of government operations. It was agreed that the redress model had to be considered in the context of a complete access regime and not limited to the complaint procedure.

The Committee agreed with Mr. Tetro's suggestion of time limits for investigations but was quick to point out that it should not prevent effective and fair investigations. Streamlining investigations was, however, seen as desirable. The Committee had no position as to what would be a reasonable time limit and how it would be applied.

The Committee reviewed the pro's and con's of incorporating an administrative review mechanism in the complaint process. They discussed current practices and levels of delegation for decision making in institutions and were not satisfied that an administrative review mechanism would produce better outcomes, and they were concerned that it would be an additional burden on officials. In addition, they questioned whether or not setting up an alternate route of review within departments would satisfy requestors' interest for a redress mechanism.

• Discussion on desirable traits in a redress model

The Committee discussed desirable traits for a redress model. It was agreed that the review process needed to be independent, principled and should instil public confidence. Effectiveness in resolving complaints was the second most important trait for the Committee. In their view, effectiveness comprised ready and inexpensive access for requestors, effective and streamlined investigations and the capacity to solve the maximum of disputes through a robust mediation function. The third most often mentioned traits were clarity and consistency of the rules. The members emphasized that the review process should result in guidance to the public service and requestors. It should be a consistent and transparent process as well. Process fairness was repeatedly raised as an important trait. The Committee believed that natural justice standards should be adhered to, right to counsel provided and that the complaints should be resolved in a way that maintained trust between the Information Commissioner Office and institutions. Finally, the Committee was of the view that broadening the role of the Commissioner to encompass an education and a collaborative audit function would considerably improve the access system.

The Committee did not come to a position the most appropriate redress model between the four theoretical models presented in the previous discussion.

• Next Steps

The next committee meeting will be on June 22, 2001.

Assistant Deputy Ministers Advisory Committee - Highlights of Meetings