Report 28 - Access to Information Review Task Force

THE INFORMATION COMMISSIONER INVESTIGATIVE POWERS AND PROCEDURES

I - Introduction

The purpose of this report is to examine the role of the Information Commissioner as the first line oversight body under the Access to Information Act. In particular, this report will look at the Commissioner's role as an Ombudsman, his investigative powers and his investigative practices and procedures.

a) Some Background

It is this writer's view that the legislative structure of the Office of the Information Commissioner, its jurisdiction, its investigative powers and its responsibilities are fundamentally the same as those usually provided for in other Ombudsman legislation and that the Commissioner has all of the powers necessary to allow him to carry out his responsibilities as an Ombudsman. However, there have been three developments in the evolution of access to information regimes generally, and of the Access to Information Act in particular, which demonstrate that it is time to reconsider both the Commissioner's role as an Ombudsman and the way in which the oversight function is designed. It is also time to look at how the Office of the Information Commissioner carries out its functions.

Firstly, as more and more jurisdictions have developed and implemented access to information legislation, it has become apparent that the Ombudsman model is not the preferred model. Oversight by an adjudicative body is the preferred model, both in the provinces and in other national jurisdictions. These models appear to have worked reasonably well. Accordingly, the Task Force's review will be exploring the question of whether the oversight model in place at the federal level is still the best one and whether the Information Commissioner's mandate and powers should be expanded or clarified to allow him to fulfil his role more effectively. This report will also consider the relative merits of the Ombudsman model and the Adjudicative model.

Secondly, access to information has become very popular, and requires significant resources to administer. Government Institutions are faced with many access to information requests and some of those requests involve very large numbers of documents. When the documents are historical, they must be located and reviewed by people who are not familiar with them. When the documents relate to current program initiatives, they must be located and reviewed by people who are busy working on the program in question. When the documents contain Third Party information, consultations, sometimes extensive consultations, must be undertaken with one or more Third Parties. Departments tend to be "popular" depending on what program initiatives are being undertaken or what issues have been in the media. A department or agency can suddenly find its volume of access requests doubling or even tripling overnight, putting a strain on resources which were not expected to deal with such volume. Other departments and agencies are perennially popular and must make difficult choices regarding the allocation of resources. As important as access to information is to the democratic process, only so many resources can be devoted to it and there will always be debate among the various stakeholders – government institutions, access requestors and the Information Commissioner – as to what level of resources is appropriate. However, whatever the "correct" level of resources may be, it is increasingly clear that an effective access to information regime must be effectively resourced and that a government which is committed to the principles of access to government information will have to ensure that adequate resources are available, both to departments and agencies and to the Commissioner's Office.

The third development is more unique to the Canadian federal experience. In the last few years there has been a shift in the nature of investigations. While the vast majority of investigations continue to be conducted informally with dialogue between the departments and agencies involved and the investigators from the office of the Information Commissioner, over the last few years there has been an increase in more formal investigations. There has been an increase in hearings where a representative of the government institution has been asked to testify, sometimes under oath, in a formal setting and an increased use of the subpoena power. In a few cases, subpoenas have been issued to senior managers, not because they had any direct knowledge of the decision to invoke a particular exemption, but because the Commissioner was investigating the issues of delays, and whether or not the department in question had allocated sufficient resources to processing requests or was affording what the Commissioner believed sufficient support to the Access to Information Act and its principles. On occasion, the Commissioner has focussed on the conduct of individuals and their roles in the processing of requests. In this latter context in particular, there has been use of confidentiality orders, without any apparent connection to the need to safeguard the records and information which are the subject of the complaint. Individuals who have been the subject of a subpoena have reported that they felt like they were involved in an interrogation, not an investigation.

While formalized investigations involving the issuance of subpoenas are relatively few in number, it appears that they have had a disproportionate impact on relations between the Commissioner and his staff and government institutions. The Commissioner has no doubt felt it necessary to be more aggressive in his approach because, in his view, the government is simply not responding to the challenges of the access legislation with sufficient resources and commitment to the principles of the legislation. However, the consequence has been that relations between the Office of the Commissioner and the government have become increasingly strained.

This tension is not just at the management level, but appears to have taken its toll on the relationship between the Commissioner's investigators and Access Co-ordinators. However, as discussed below, the concern about this tension seems to be more pronounced among Access Co-ordinators than among the Commissioner's investigators. Nevertheless, the degree to which some Access to Information Co-ordinators feel that they are besieged when the Office of the Information Commissioner conducts an investigation is quite remarkable. They have reported to the Task Force that they sometimes feel that the Office of the Information Commissioner staff are not being completely candid with them as to what the investigators are looking for, that they are caught up in a dispute that does not focus on the records in question, but on process issues on which the Commissioner and Departmental Management disagree, and that the Office of the Information Commissioner sometimes do not seem to approach an investigation with a view to resolving a genuine issue over the applicability of exemptions, but seem to be proceeding with a view that wrong doing or impropriety has taken place.

Conversely, the Task Force was advised by the provincial Commissioners with whom it spoke that the use of subpoenas in their investigations is almost unheard of. ⁽²⁾ The mediation portion of complaint resolution is normally conducted in a very informal manner and serves to resolve a high proportion of complaints, while practically all investigations are based on submissions made by the complainant and the government institution in writing and there are very seldom formal hearings. The Task Force is, as a result of its discussions with both the provincial commissioners and ombudsman and representatives of provincial government institutions, of the view that relations at that level are much more cordial and productive than they currently are at the federal level.

In his latest Annual Report, the Information Commissioner sees the problem from a different perspective. The problem, in his view, is one of failure by the government to accept its obligations under the Access to Information Act or to accept his role and authority to oversee the operation of the legislation as well as inquire into the use of particular exemptions. He makes the following statement,

Last year Parliament was alerted to a developing strategy by the government to muzzle the Commissioner by means of court challenges to his jurisdiction and powers. During this reporting year, the efforts heated up with the government filing 4 applications before the federal court challenging the Commissioner's investigative jurisdiction and powers. ⁽³⁾

This dispute between the government and the Office of the Information Commissioner as to the scope of his investigative powers and the nature of the investigations that he should be undertaking has continued and, as of the writing of this report, there are approximately 29 separate court proceedings in which at least 7 procedural issues are being litigated. ⁽⁴⁾ Much of this litigation has been commenced by the government, and revolves around requests for access to records which the government maintains are under the control of a minister's office, not a government institution. These requests and the subsequent complaints to the Commissioner raised issues as to whether documents relating to a Minister and kept in or by his or her office are under the control of his or her department and the extent of the right of the Commissioner to determine the limits of his investigative jurisdiction. This issue of "ministerial documents" has been of concern for a number of years, and it was probably inevitable that at some point it would have to be resolved by the courts. Another issue which has been before the court, relates to the question of deemed refusals, extensions of time to respond to requests and the limits of the Commissioner's jurisdiction to address these issues. ⁽⁵⁾ It is not so much the fact that these issues are being litigated that is problematic, rather, it is the vigour with which both parties have approached the litigation and the proliferation of litigation with respect to collateral issues.

Nevertheless, the Commissioner has been flexing his investigative and jurisdictional muscle, and the government has decided to push back. Consultation and negotiation has not been able to resolve these issues and the court has been asked to resolve them. No doubt, these court cases have contributed to the tension between the Commissioner's Office and the government. In a recent paper in which he looks at strategies for the enforcement of the Access to Information Act, Alasdair Roberts observes,

The last eight years have put great strain on the ATIA and revealed serious weaknesses in the enforcement strategy embodied in the ATIA. The volume of complaints received by the Office of the Information Commissioner (OIC) has increased substantially, and the time required to resolve complaints has lengthened. Relations with senior officials in central agencies and major federal institutions are badly frayed. The OIC now relies heavily on its formal investigative powers, and finds that a larger number of disputes are resolved through litigation in the Federal Court. ⁽⁶⁾

Mr. Roberts may have overstated the case somewhat, but it is significant that sophisticated and seasoned observers of the federal access regime, like Mr. Roberts, are expressing these concerns.

This antagonism is not a good development, and may signal a coming breakdown in the administration of the Access to Information Act and a weakening of the ability of the Commissioner to be a credible and effective advocate of the principles underlying the Access to Information Act.

Not only do these developments at the federal level illustrate a growing antagonism between the Information Commissioner and some government institutions and concerns about the effectiveness of the current oversight regime, but they also raise serious issues about the commitment of the government to the principles of the Access to Information Act. They raise questions about the Commissioner's exercise of his powers, as well as the appropriateness of the procedures that he is following. They raise issues about how the Commissioner should approach an investigation which involves allegations of misconduct, or even criminal conduct, on the part of individuals.

These developments also raise the question of whether, in the context of this apparent resistance to some aspects of the current access regime by the government, the Ombudsman model is the best model for an effective oversight of access to information decisions. They also raise questions as to whether the current legislative structure allows the Commissioner sufficient latitude to develop the necessary procedures to afford individuals whose conduct is under investigation adequate procedural fairness.

The Task Force must consider how this tendency toward more formalized investigations and the growing antagonism between the Office of the Information Commissioner and the government can be addressed and whether there are legislative changes that can be adopted to help address this conflict. The Task Force should also consider whether there are procedural and policy changes that either the Commissioner or the government could adopt to minimize the conflict and enhance the effectiveness of the Information Commissioner.

b) Some Context

It is important to understand the context of the oversight of Access to Information. Requests to government institutions have been on the rise. In the 1995-96 fiscal year there were a total of 12,702 requests. In 1996-97 and in 1997-98 there were about the same number. However, in 1998-99 the number of requests increased to 14,339 and in 1999-2000 the number jumped to 18,489. In 2000-2001 there were 20,789 requests. ⁽⁷⁾ Some of these requests involved extremely large volumes of records. The Commissioner has seen an increase in the number of complaints as well. In 1999-2000, his office opened 1,359 new complaints. In 2000-2001, the Office of the Information Commissioner opened 1,688 new complaints and closed 1,337. Of the complaints closed in 2000-2001, 575 (43%) were on delay, 534 (40%) were on refusal to disclose, 151 (11%) were on the application of a time extension and 54 (4%) were on fees. The vast majority of the completed complaints (99.9%) were categorized by the Office of the Information Commissioner as resolved, not substantiated or discontinued, leaving 0.1% as unresolved ⁽⁸⁾.

While these data tell a very positive story in relation to complaint resolution, they do not tell us very much about how satisfied the complainants were with the results, the relationship between the Office of the Information Commissioner and the institutions being investigated, how efficient or effective the process is, or what proportion of the complaints were initiated by the Commissioner himself. It is the policy of the Information Commissioner to offer to go to court in every case where the head of an institution has refused to accept his recommendation that records be disclosed ⁽⁹⁾, and in 2000-2001 there were only two such cases, representing less than .2% of the complaints closed This is a good statistic, and shows that the Commissioner's investigators and access co-ordinators continue to be successful in the resolution of complaints and in negotiating outcomes.

It is not clear, however, what proportion of requestors who are dissatisfied with a response from the government institution actually complain to the Commissioner. There are no statistics available. There is, however, some anecdotal evidence that requestors think that the complaint process simply takes too long and is not, therefore, always an effective tool. ⁽¹⁰⁾ Indeed, in 2000-2001 it took, on average, 7.83 months for a complaint in respect of a refusal to disclose information to be resolved. ⁽¹¹⁾

c) Some Words on the Approach to Writing this Report

In undertaking the preparation of this report, I am mindful that the Information Commissioner and his staff and the various departments, departmental personnel and the lawyers at the Department of Justice and outside lawyers who advise them as well as requestors, have very different views about the current legislative provisions and the causes of the current proliferation of disputes about the nature and scope of the Commissioner's investigative powers. Accordingly, for the purposes of preparing this Report, I have sought the views of various individuals who have been involved, one way or another, in the investigative process, including officials with the Office of the Information Commissioner, lawyers with the Department of Justice and in the private sector, ATIP Co-ordinators ⁽¹²⁾, requestors and individuals who have been the subject of investigations as to their conduct and the role they may have played in the processing of access requests. I have also been in touch with representatives of the Offices of the Information and Privacy Commissioners of British Columbia and Ontario. I have been provided with information regarding investigative procedures and experiences which was provided to the Task Force by the Commissioners in British Columbia, Alberta and Ontario, by the Ombudsman in Manitoba and by the Commission in Québec. In addition, the Task Force has provided information that it has compiled after meetings in Ireland and in the United Kingdom.

I am particularly indebted to senior officials at the Office of the Information Commissioner. They met with me prior to the preparation of this report and reviewed a draft which I submitted to them. They had a number of comments on that draft and I have made changes where, as a result of their comments and additional information which they provided, I had made statements which were not accurate, or where I felt that I had been unfair in statements that I had made or in conclusions that I had drawn. Needless to say, there are a number of points on which we simply disagree.

As a result of these discussions and consultation with the Task Force, it was decided that this report would broadly examine the powers of the Information Commissioner, in particular as they relate to investigations, in the context of the following questions:

• Should the Commissioner consider publishing rules or guidelines outlining how he will conduct investigations, when he will hold hearings, how hearings will be conducted and generally what is expected of Access Co-ordinators and others when an investigation takes place?
• Are the current statutory provisions requiring that notice be given and that an opportunity to make representations be given adequate? In particular, should the statute specifically address the right of an individual to be given notice that his or her conduct is under investigation and the right of an individual to make representations to the Commissioner before findings which might impact him or her are made?
• Does the statute need to be amended to clarify the extent to which the mandate of the Commissioner allows him to investigate the conduct of individuals, especially when that conduct may involve activity which could potentially be the subject of a criminal investigation?
• Is the power of the Commissioner to access records which contain solicitor-client privileged information appropriate? Should that power be limited to the ability to review such records only when they are the subject of a request in order to ascertain whether the solicitor-client privilege exemption has been properly claimed?
• Are there any additional powers or extended mandate that the Commissioner should be given to allow him to fulfil his role more effectively? Are there other mandates relating to the issue of access to government information which should be given to him? In particular, should the Commissioner continue to be an Ombudsman or should he be a quasi-judicial authority with the power to make orders?

These questions were identified by the Task Force as being ones that either go to the fundamental nature of the Commissioner's oversight role – ombudsman or adjudicator – the adequacy of his legislative mandates and tools, or which appear to underlie many of the issues of disagreement between the Office of the Information Commissioner and the government.

Before examining these questions, however, this Report will look at the role and powers of the Commissioner, as currently set out in the Access to Information Act, and compare that role and those powers to the role and powers of five provincial Access to Information and Privacy oversight bodies and to those which are found in provincial Ombudsman legislation. It will also examine the role and powers of the Commissioner or Ombudsman who performs a similar oversight function regarding access to government information in Australia, New Zealand, the United Kingdom and Ireland.

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2. The Québec legislation contemplates a more formal hearing process and the Commission does issue subpoenas from time to time

3. Annual Report of the Information Commissioner of Canada, 2000 - 2001, at p. 107

4. see Attorney General of Canada and Bruce Hartley v. The Information Commissioner of Canada, T-582-01, McKeown, J, February 1, 2002

5. See Attorney General of Canada and Janice Cochrane v. Information Commissioner of Canada, T-2276-00 & T-2358-00, [2002] FCT 136, Kelen, J. February 6, 2002

6. Alasdair Roberts, The Commissioner as Regulator: Improving Strategies for Enforcement of the Access to Information Act, Working Paper, October, 2001, p. 2

7. B. McIsaac, The Nature And Structure Of Exempting Provisions And The Use Of The Concept Of A Public Interest Override

8. Annual Report of the Information Commissioner of Canada, 2000-2001, at p. 81

9. John Reid, Remarks to the ATI Review External Advisory Committee, June 26, 2001. Available online at www.atirtf-geai.gc.ca or at http://www.infocom.gc.ca/speeches/speeches_view_details-e.asp?intspeechId=58

10. Alasdair Roberts, The Commissioner as Regulator, supra. at p. 12

11. Annual Report, 2000-2001, supra. at p. 81

12. I benefited from the consultations held by the Task Force with Access to Information co-ordinators and attended a meeting with the Senior Advisory Committee of Co-ordinators. These consultations are summarized on the Task Force website at www.atirtf-geai.gc.ca