Report 28 - Access to Information Review Task Force

THE INFORMATION COMMISSIONER INVESTIGATIVE POWERS AND PROCEDURES

II - The Information Commissioner, His Role and His Powers

The Information Commissioner is an Ombudsman

The Information Commissioner, like the Privacy Commissioner, the Commissioner of Official Languages and the Correctional Investigator, is what is commonly referred to as a "single purpose", "special mandate" or "speciality" Ombudsman, signifying that his jurisdiction is directed to a particular or specialized subject-matter rather than the general administrative and policy functions of government. ⁽¹³⁾ Although his jurisdiction is limited to a specific subject matter, the Information Commissioner has the attributes of the classic Ombudsman in that he provides non-binding arbitration between individuals and government. ⁽¹⁴⁾ The characteristics and purposes of the classic Ombudsman office are described by Marshall and Reif as follows:

1. to investigate grievances of any person or body of persons concerning any decision or recommendation made, or any act done or omitted, relating to a matter of administration, by any officer, employee or member or committee of members of any organization over which jurisdiction exists and

2. to investigate complaints against government or semi-government departments and agencies and

3. a responsibility to make recommendations resulting from investigations to organizations under jurisdiction and

4. to discharge the role and functions as an officer of the legislature or on behalf of the legislature in a role which is independent of the organizations over which jurisdiction is held and

5. to report to the legislature either directly or through a Minister on the results of its operations or on any specific matter resulting from an investigation. ⁽¹⁵⁾

Central to these characteristics and the functions of an Ombudsman are his responsibilities to investigate complaints, attempt to secure redress for the individual which does not require the intervention of the courts and to, more generally, monitor the activities of government in the area under his jurisdiction and promote better administrative systems and procedures so that the activity over which he exercises supervision operates more effectively. The effectiveness of an Ombudsman is traditionally rooted in two fundamental principles – impartiality and independence.

Impartiality and independence characterize the Ombudsman office. The Ombudsman is not the complainant's advocate. He looks at both sides of the case and "decides who is justified and who is not." It is essential that Ombudsmen are seen to have these characteristics or they will not be able to perform properly their function as investigators. The unimpeded flow of information is also essential to their role. As an investigator, the Ombudsman must be able to obtain information and make recommendations without her sources or herself fearing the consequences. ⁽¹⁶⁾

Marshall and Reif go on to deal with these two essential characteristics by emphasizing that the Ombudsman's proceedings need to be confidential and that he or she should have absolute control over the way in which proceedings are conducted.

The confidentiality of the Ombudsman's proceedings helps to ensure his independence as well as to facilitate co-operation throughout the investigation. The Ombudsman's investigation must be held in private and his reports and investigations may not be made the subject of an inquiry or review, apart from a review ordered by the Legislative Assembly, its committees or another body which the Legislative Assembly authorizes. Neither the Ombudsman nor his employees may be called to give evidence in court or to provide documents. They are immune from prosecution, including defamation, for anything they say or do in good faith when exercising their duties.

The Ombudsman has complete control over the conduct and procedure of the investigation, including the calling of any person or viewing of any information she sees fit. She has the right to require the information or document and may examine any relevant person on oath. Persons must divulge the information requested of them. They are protected against the use of their evidence in subsequent proceedings. Perjury is the only partial exception to this rule. The Ombudsman and her department must maintain secrecy with respect to all matters unless they ought to be disclosed in the final report. ⁽¹⁷⁾

An Ombudsman plays a role that is fundamentally different than that undertaken by an investigative body or by an adjudicative body. He or she is to mediate or facilitate disputes about the release of information as an independent third party whose role is to promote the legislation and its objectives. He or she must have a wide discretion in the way in which the task is approached and ample scope to work with the parties to fashion remedies which are acceptable to both of them. This report will be examining whether or not the Ombudsman model is suited to the review of decisions as to whether or not information should be exempted from disclosure or for review of the other issues that arise under access to information legislation.

However, with the wide powers that are typically assigned to an Ombudsman comes responsibility. Responsibility to use those powers wisely and judiciously and to act fairly and carefully. A truly effective Ombudsman must retain the respect of both the party initiating the complaint and the party being investigated.

The Information Commissioner's Jurisdiction

Section 30(1) establishes the Commissioner's jurisdiction. It is worth setting out in full.

Subject to this Act, the Information Commissioner shall receive and investigate complaints

(a) from persons who have been refused access to a record requested under this Act or a part thereof;

(b) from persons who have been required to pay an amount under section 11 that they consider unreasonable;

(c) from persons who have requested access to records in respect of which time limits have been extended pursuant to section 9 where they consider the extension to be unreasonable;

(d) from persons who have not been given access to a record or a part thereof in the official language requested by the person under subsection 12(2), or have not been given access in that language within a period of time that they consider appropriate;

(d.1) from persons who have not been given access to a record or a part thereof in an alternative format pursuant to a request made under subsection 12(3), or have not been given such access within a period of time that they consider appropriate;

(e) in respect of any publication or bulletin referred to in section 5; or

(f) in respect of any other matter relating to requesting or obtaining access to records under this Act.

Section 30(3) provides that the Commissioner can also initiate a complaint.

Clearly, the Commissioner has the jurisdiction to investigate any and all aspects of the process whereby access to government information is provided.

On the other hand, the legislation does not have a specific provision alleviating the Commissioner from investigating complaints in certain situations. For instance, the recently enacted Personal Information Protection and Electronic Documents Act ⁽¹⁸⁾ provides for the investigative responsibilities of the Privacy Commissioner, also an Ombudsman, by requiring him to investigate a complaint (Section 12) and issue a report within one year (Section 13), but specifically provides, in Section 13 (2) for situations in which he need not issue a report. Some of the provincial and other country legislation which will be examined later also includes specific provisions allowing the oversight body to forgo an investigation and/or report in certain circumstances.

The Information Commissioner's Investigative Powers and Responsibilities

The powers which have been given to the Information Commissioner pursuant to the Access to Information Act are very much those of a typical Ombudsman.

(i) Impartiality and Independence

Section 54 provides that the Commissioner is appointed by the Governor in Council after approval of the appointment by resolution of the Senate and the House of Commons. The term of office is seven years and the Commissioner holds office for that term, on good behaviour. He may only be removed by the Governor in Council on address of the Senate and House of Commons. The Commissioner holds the rank of deputy minister and may not hold any other office for reward or engage in any other employment for reward. [Section 55]

The Commissioner reports directly to Parliament by way of an annual report to be submitted to the Speakers of both Houses for tabling in each House. The Commissioner may also make a special report to Parliament referring to and commenting on any matter within the scope of his powers, duties and functions. A special report may be submitted where, in his opinion, the matter is of such importance or urgency that it should not wait for the next annual report. The annual, and any special report, are to be referred to Parliamentary Committee after tabling. [Sections 38, 39 and 40]

Section 65 provides that neither the Commissioner nor his staff or anyone acting under his direction is a competent or compellable witness in respect of any matter that comes to their knowledge as a result of performing any duties or functions under the Access to Information Act except in proceedings by way of a review under the Act, a prosecution for an offence under the Act or a prosecution for perjury in respect of a statement made under the Act.

Section 66 provides protection for the Commissioner and his or her staff from criminal or civil proceedings in respect of anything done, reported or said in good faith in the course of the exercise or performance or purported exercise or performance of any power, duty or function of the Commissioner under the Act. It also provides that, for the purposes of any law relating to libel or slander, anything said, any information supplied or any document or thing produced in good faith in the course of an investigation by the Commissioner is privileged and that any report made in good faith by the Commissioner under the Act and any fair and accurate account of the report, made in good faith, in a newspaper, other publication or broadcast is also privileged.

Witnesses and those who are subject to an investigation are also protected. Section 36(3) provides that, except in a review under the Act, a prosecution for perjury in respect of a statement made under the Act or in a prosecution for an offence under the Act, evidence given by a person in proceedings under the Act and evidence of the existence of the proceedings under the Act is inadmissible against that person in a court or in any other proceedings.

Section 67 makes it an offence, punishable on summary conviction by a fine not to exceed one thousand dollars, to obstruct the Commissioner or anyone acting on his behalf or under his direction in the performance of his duties and functions under the Act.

Section 34 provides that, subject to the Act, the Commissioner may determine the procedure to be followed in the performance of any of his duties or functions under the Act.

(ii) Confidentiality of Proceedings

Section 35(1) provides that every investigation of a complaint under the Access to Information Act by the Commissioner "shall be conducted in private." In French the text reads "Les enquêtes menées sur les plaintes par le Commissaire à l'information sont secrètes."

Section 62 obliges the Commissioner and every person acting on his behalf or under his direction, when carrying out an investigation or making a report to Parliament, not to disclose any information that comes to their knowledge in the performance of their duties and functions under the Act. Similarly, Section 64 requires that the Commissioner and any person acting on his behalf or under his direction must take every reasonable precaution to avoid the disclosure of, and not to disclose:

(a) any information or other material on the basis of which the head of a government institution would be authorized to refuse to disclose a part of a record requested under the Act; or

(b) any information as to whether a record exists where the head of an institution, in refusing to give access to the record under the Act, does not indicate whether it exists.

Section 63(1)(a) does, however, give the Commissioner the discretion to disclose information that, in his opinion, is necessary to,

(i) carry out an investigation under the Act, or

(ii) establish the grounds for findings and recommendations contained in any report under the Act.

He may disclose information in the course of a review before the Court under the Act, including an appeal. He may also disclose information in the course of a prosecution for an offence under the Act or a prosecution for perjury in respect of a statement made under the Act. Finally, he may disclose to the Attorney General of Canada information relating to the commission of an offence against any law of Canada or a province on the part of any officer or employee of a government institution.

(iii) Investigative Powers

For the purpose of carrying out an investigation, the Commissioner has very wide powers which are set out in Section 36 (1). He may,

(a) summon and enforce the appearance of persons before him and compel them to give oral or written evidence on oath and to produce such documents and things as he deems requisite to the full investigation and consideration of the complaint. He has the same powers in this regard as a superior court of record;

(b) administer oaths;

(c) receive and accept evidence and other information, whether on oath or by affidavit or otherwise, as he sees fit, whether or not the evidence or information is or would be admissible in a court of law;

(d) enter any premises occupied by any government institution on satisfying any security requirements of the institution relating to the premises;

(e) converse in private with any person in any premises, as described above, and otherwise carry out therein such inquiries within his authority under the Act as he sees fit; and

(f) examine or obtain copies of, or extracts from, books or other records found in any premises occupied by any government institution containing any matter relevant to the investigation.

Section 36(2) provides that during an investigation of any complaint, the Commissioner can examine any record under the control of a government institution to which the Access to Information Act applies. No such record can be withheld from him on any grounds, including any statutory grounds or any privilege under the law of evidence. In particular, he may examine documents that are subject to privilege, including solicitor-client privilege.

(iv) Investigative Responsibilities

The legislation also imposes certain obligations on the Commissioner during an investigation. These are minimal, but are directed to establishing basic tenets of fairness for his investigations and ensuring that he fulfils his responsibilities to safeguard information which comes into his possession as a result of an investigation.

Section 32 requires that before commencing an investigation the Commissioner must give notice to the head of the government institution concerned of the intention to carry out the investigation and inform the head of the institution of the substance of the complaint.

A reasonable opportunity to make representations must be given by the Commissioner to both the person who made the complaint and the head of the government institution concerned. [Paragraphs 35(2)(a) and (b)]

Where the investigation includes a refusal to disclose a record based on an exemption in Section 20 (Third Party trade secrets or commercial information) the head of the institution must advise the Commissioner of any third party which has an interest in the information. If the Commissioner intends to recommend the release of any third party information he must give that third party a reasonable opportunity to make representations as well. [Paragraph 35(2)(c)]

However, Section 35(2) states that, "no one is entitled as of right to be present during, to have access to or to comment on representations made to the Commissioner by any other person."

Witnesses who are summoned to appear before the Commissioner are entitled, in his discretion, to receive fees and allowances on the Federal Court scale. [Section 36(4)]

If the Commissioner obtains a document from any person or government institution, he must return it within ten days after a request for its return. He cannot permanently seize documents. [Section 36 (5)]

Section 61 requires that the Commissioner satisfy any security requirements applicable to information before receiving it. He and his staff must also take any applicable oath of secrecy in the same way that any other person having access to the information would.

(v) Recommendations Only

The Information Commissioner has the attributes of a classic Ombudsman in that he does not have the power to order a government institution to release a record or to do anything else in fulfilment of its responsibilities under the Access to Information Act. Section 37 deals with his power to make recommendations. Upon completing an investigation, if he finds a complaint in respect of a record to have been well-founded, the Commissioner is to provide the head of the government institution that has control of the record with a report setting out his findings and any recommendations that he considers appropriate. He may also specify a time within which the head of the government institution must give him notice of any action taken, or proposed to be taken, to implement the recommendation. If the head of the government institution does not intend to implement the recommendation, he must give reasons why.

A report is also to be given to any third party with an interest in the information and, of course, to the complainant. If third party information is to be released as a result of a recommendation by the Commissioner, the third party is to be given an opportunity to apply to the Federal Court to stop the release. The Commissioner may comment in his report to the complainant on the actions of the head of the government institution, particularly the refusal of the head to implement any recommendations made by the Commissioner as a result of his investigation. If the Commissioner has found that a complaint is not well-founded, he would so report to the person who made the complaint.

The person who requested the access to the record can apply to the Federal Court for a review "of the matter" ⁽¹⁹⁾ once he or she has received the Commissioner's report. The Commissioner can apply to the Court for a review of any refusal to disclose a record, with the consent of the person who requested access to the record. The Commissioner may appear on behalf of any person who has applied for a review or, with leave of the Court, appear as a party to any review. [Section 42]

The Court may ultimately order disclosure of a record.

(vi) Anti-Terrorism Act Amendment

On December 18, 2001, Bill C-36, the Anti-Terrorism Act, received Royal Assent. Section 87 of that legislation amended the Access to Information Act by adding Section 69.1. The new provisions provide that where a certificate is issued by the Attorney General under the new section 38.13 of the Canada Evidence Act, prohibiting the disclosure of information in connection with a proceeding for the purpose of protecting information on the basis that it was obtained in confidence from, or in relation to, a foreign entity or for the purpose of protecting national defence or national security, the certificate will override the access and review provisions of the Access to Information Act. When a certificate is issued before a complaint is filed, the Access to Information Act simply does not apply in respect of the information which is the subject of the certificate. If the certificate is issued after a complaint has been filed, all proceedings under the Access to Information Act in respect of the information covered by the certificate including an investigation by the Commissioner or an appeal or judicial review by the Federal Court are discontinued. The effect of this provision is that the issue of whether or not information which is subject to a certificate should be released is consolidated in the proceedings in which the Canada Evidence Act certificate was originally issued. Collateral proceedings by way of a request under the Access to Information Act or any investigation or court review of a refusal under that Act may not be proceeded with in tandem.

While this provision has the effect of suspending the operation of the Access to Information Act with respect to that particular information, there is still the possibility of an application being made to the Federal Court of Appeal in accordance with section 38.131 of the Canada Evidence Act, for an order by a single judge of that Court varying or cancelling the certificate.

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13. Mary A. Marshall and Linda C. Reif, The Ombudsman: Maladministration and Alternative Dispute Resolution, (1995) 34 Alta. L. Rev. (No. 1) 215, at p. 230 available online at http://ql.quicklaw.com

14. Ibid. at p. 216; See also S. Owen, "The Ombudsman: Essential Elements & Common Challenges" in L. Reif, M. Marshall & C. Ferris, eds., The Ombudsman: Diversity and Development (Edmonton: International Ombudsman Institute, 1993)

15. The Ombudsman: Maladministration and Alternative Dispute Resolution, supra. at p. 217

16. Ibid. at p.218

17. Ibid. at p.219-220

18. 48-49 Eliz.II, 2000 c.5

19. The Federal Court has not ruled definitively on the scope of its jurisdiction. In a case under the Privacy Act, R.S.C. 1985, c.P-21, the Court ruled that it does not have jurisdiction to review allegations of improper disclosure of personal information - Gauthier v. Canada (Minister of Consumer and Corporate Affairs) (1992), 58 F.T.R. 161 (F.C.T.D.). See also: Chandran v. Canada (Minister of Employment and Immigration) (1995), 91 F.T.R. 90 (F.C.T.D.). In Rubin v. Canada (Minister of Finance) (1987), 9 F.T.R. 317 (F.C.T.D.) the Applicant sought a review of the Department's decision to demand a deposit before further processing of his request. Former Associate Chief Justice Jerome held that the phrase "a review of the matter" was wide enough to permit the Court to deal with an application that asserted fees were being charged in such a way as to constitute a constructive refusal of access. However, in his reasons, the judge specifically said that he was assuming for the purposes of argument that the section was broad enough to allow such an application, but that he was not making a final determination. In any event, Sections 49 and 50 of the Act only contemplate a remedy directed to ordering the head of an institution to disclose a record or part thereof