The oversight function in access to information legislation generally takes two forms. In most of the provinces oversight is by a commissioner who has the power to make binding decisions ordering that information be released. This model, with variations, applies in New Zealand, Ireland and the United Kingdom. In these jurisdictions there is recourse to the court, but usually on a limited basis. In Australia review is by the Administrative Tribunal and in the United States, the Federal Court has the review function. At the federal level in Canada, the Information Commissioner is one of several "special purpose" ombudsmen who have been appointed to consider, and attempt to resolve, specific issues. The federal Information Commissioner investigates complaints relating to the refusal to disclose information under the Access to Information Act and other matters relating to the Act, but, as an ombudsman, the Commissioner can only recommend a solution. He has no binding order power. Final determinations as to whether exemptions have been properly claimed or not are made by the Federal Court.

This report examines the role of the Information Commissioner and the powers which the legislation gives to the Commissioner. It concludes that some of the current investigation practices differ from those followed in similar jurisdiction and that it may be time to reconsider whether the Ombudsman model is in fact the best model for the review of decisions regarding access to information.

Highlights of the Report's recommendations are:

The Ombusdman model may no longer be the best model for oversight of access to information issues and consideration should be given to providing the Commissioner with order making powers
Even if the Commissioner is not given the power to order the release of records, consideration should be given to providing the Commissioner with order making powers in respect of matters such as delays, fees and language of access
A specific mediation power and mandate should be specified in the legislation
The Office of the Information Commissioner should be given a broader public education mandate
The legislation should contain a mandate for Treasury Board Secretariat and the Office of the Information Commissioner to collaborate on the development of guidelines for the interpretation of the legislation and audits of Departmental practices and systems for responding to access requests
The Commissioner's Office should publish its policies and procedures for the conduct of investigations to provide transparency, predictability and guidance – particularly for investigations involving the use of formal investigative powers such as the issuing of subpoenas and investigations which may involve inquiring into the conduct of individuals, where procedural fairness is especially important
Steps should be taken to involve requestors more in the investigation process
Time limits for making complaints to the Commissioner should be shortened and time frames within which a complaint investigation must be completed should be considered
The Commissioner should regularly publish his findings and recommendations to provide guidance to both government institutions and requestors

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1. Mrs. McIsaac is the Managing Partner of the Ottawa Office of McCarthy Tétrault - See Appendix A

Last Updated: 2002-05-31

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