|
|
|
|
|||||
|
||||||||
|
|
Submissions | |
|
||||
|
Report 28 - Access to Information Review Task Force
THE INFORMATION COMMISSIONER INVESTIGATIVE POWERS AND PROCEDURES
III - Comparison with Other Jurisdictions
Introduction
For the purposes of this report, I have reviewed the role and powers of the Access to Information and Privacy Commissioners in the Provinces of British Columbia (20), Alberta (21), Manitoba (22) Ontario (23) and Québec (24).
In all cases, except that of Manitoba, the Commissioner (Commission in Québec) is not an Ombudsman in that he or she has the power to order the release of records, or parts of records. The role is really an adjudicative one.
In the case of Manitoba, review of decisions of government institutions is undertaken by the Ombudsman in accordance with procedures set out in the Freedom of Information and Protection of Privacy Act. Because of this difference in approach, I also thought that it would be useful to look at Ombudsman legislation in British Columbia (25), Alberta (26), Ontario (27) and Québec (28). In addition, there are useful comparisons which can be made with foreign jurisdictions. Accordingly, I have also examined the role of the Commissioner or Ombudsman who plays the oversight role in respect of comparable access to information legislation in Australia, (29) New Zealand, (30) Ireland (31) and the United Kingdom (32).
Clearly there are two models which predominated. In the first, which is represented most clearly by the provincial models, other than Manitoba, the Commissioner is a quasi-judicial tribunal and adjudicates on the issue of whether or not information ought to be released. His or her decision is final, subject to judicial review by the court, and there are no exceptions to his or her jurisdiction other than records which are not subject to the provisions of the access legislation. A modification of this model is found in Australia, New Zealand, the United Kingdom and Ireland where there are certain circumstances in which a minister of the Crown can overrule the Ombudsman or Access Commissioner.
The second model is the more traditional Ombudsman model where the commissioner only makes a recommendation which the government institution may choose to ignore. This is the Manitoba and Canadian federal model. Anyone who is dissatisfied with a response to a recommendation must ultimately seek recourse through the courts.
Comparisons With Provincial Freedom of Information and Protection of Privacy Legislation
(a) British Columbia
In British Columbia the Commissioner is an Information and Privacy Commissioner who has combined oversight for both those parts of the Statute which deal with access to information and those parts which deal with the access to, and protection of, personal information (33). In the context of a complaint in respect of a refusal to provide access to a record Section 52(1) defines the jurisdiction of the Commissioner as follows:
"A person who makes a request to the head of a public body…for access to a record…may ask the commissioner to review any decision, act, or failure to act of the head that relates to that request, including any matter that could be the subject of a complaint under section 42(2)"
Section 42(2) is quite broad in that it gives the Commissioner the power to investigate and attempt to resolve complaints that:
(a) A duty imposed by the Act or Regulations has not been performed;
(b) An extension of time for responding to a request is not in accordance with the requirements of the Legislation;
(c) A required fee under the Act is inappropriate;
(d) A request for the correction of personal information has been refused without justification; and
(e) Personal information has been collected, used or disclosed by a public body in contravention of the requirements of the Legislation.
Accordingly, the Commissioner's authority with respect to the investigation of complaints is not limited to simply investigating instances where a public body has refused to disclose a record. The power extends to all aspects of the administration and enforcement of the legislation. Section 58 sets out the orders which the Commissioner may make and orders involve not only requiring that the head of public body give an applicant access to all or part of a record, but the Commissioner can also require that a duty imposed by the Act or Regulations be performed, confirm or reduce an extension of a time limit, confirm, excuse or reduce a fee or order a refund. Under section 43 (34) the Commissioner may also authorize a body to disregard requests that would unreasonably interface with its operations because of their repetitious and systematic nature or that are frivolous and vexatious. Any order may specify terms or conditions. Section 59 provides that the head of a public body must comply with any order of the Commissioner not later than thirty (30) days after being provided with a copy of it, unless an application for judicial review is made. That application must be made within the thirty (30) day period.
(b) Alberta
The Alberta Commissioner, like his British Columbia counterpart, deals with matters relating to both access to information and privacy. The Commissioner has both specific powers with respect to the investigation and review of decisions not to provide access to information and matters related to the collection, use or disclosure of personal information as well as more general powers. The general powers are set out in Section 53. In particular, Section 53(2) provides that the Commissioner may investigate and attempt to resolve complaints with respect to the following issues:
(a) That a duty imposed by Section 6 of the Legislation has not been performed. These duties include the duty to assist applicants in making requests for records and the duty to create records for applicants in certain circumstance;
(b) Complaints with respect to extensions of time for responding to requests which are not in accordance with the Legislation;
(c) Complaints with respect to inappropriate fees;
(d) Complaints with respect to refusals to correct personal information; and
(e) Complaints with respect to the alleged collection, use or disclosure of personal information in a manner that is contrary to the Legislation.
With respect to the specific review powers of the Commissioner, Section 65(1) provides as follows:
"A person who makes a request to the head of a public body for access to a record or for correction of personal information may ask the Commissioner to review any decision, act or failure to act of the head that relates to the request."
Upon completion of an inquiry, Section 72 provides not only that the Commissioner may issue an order requiring the head to give an applicant access to all or part of a record, but also that the Commissioner may more generally:
(a) Require that a duty imposed by the Legislation be performed;
(b) Confirm or reduce any extension of a time limit;
(c) Confirm or reduce a fee or order a refund;
(d) Confirm a decision not to correct personal information or specify that the information is to be corrected and how;
(e) Require that a public body stop collecting, using or disclosing personal information in a manner that violates the Legislation; and
(f) Require that the head of a public body destroy personal information which was collected in violation of the Legislation.
The Commissioner may also specify any terms or conditions in an order which he makes. The legislation provides, in Section 73, that an order made by the Commissioner is final. Section 74 provides that a public body must comply with any order given by the Commissioner not later than fifty (50) days after having been provided with a copy of the order. Section 74 also provides that any order of the Commissioner is automatically stayed if an application for judicial review is brought. An application for judicial review must be taken within forty-five (45) days after the person making the application is given a copy of the order.
(c) Manitoba
In Manitoba, the Ombudsman does not have the power to make orders. As with the Federal Commissioner, the Manitoba Ombudsman prepares a report on the completion of an investigation. The report is, however, not binding on the head of the government institution. (35)
Section 49 sets out the general powers and duties of the Ombudsman over and above his specific mandate to investigate complaints. The powers granted to him under Section 49 are as follows:
(a) To conduct investigations and audits and to make recommendations to monitor and ensure compliance both with the Legislation and Regulations and with requirements respecting the security and destruction of records by local public bodies;
(b) To inform the public about the Legislation;
(c) To receive comments from the public about the administration of the Legislation;
(d) To comment on the implications for access to information or for protection of privacy of proposed legislative schemes or programs of public bodies;
(e) To comment on the implications for protection of privacy in the context of using or disclosing personal information for record linkage or using information technology in the collection, storage, use or transfer of personal information;
(f) To bring to the attention of the head of a public body any failure to fulfil the duty to assist applicants;
(g) To recommend to public bodies, after having given the head of the public body an opportunity to make representations, that the public body cease or modify a specific practice of collecting, using or disclosing information that contravenes the Legislation or destroy a collection of personal information that was not collected in accordance with the Legislation;
(h) To make recommendations to the head of a public body or to the responsible Minister about the administration of the Legislation;
(i) To consult with any person with experience or expertise in any matter related to the purposes of the Legislation; and
(j) To engage in or commission research into anything affecting the achievement of the purposes of the Legislation.
Part 5 of the legislation deals specifically with the making of complaints. The Ombudsman receives complaints from individuals who have requested access to records, from third parties who have been notified that the head of a public body intends to give access to a record and complaints with respect to privacy issues. (36) Section 59(5) specifically provides that the Ombudsman may himself initiate a complaint with respect to any matter about which he is satisfied there are reasonable grounds to conduct an investigation under the legislation. Section 66(1) of the Manitoba legislation provides that the Ombudsman must prepare a report on the completion of an investigation. The report contains his findings about the complaint and any recommendations he considers appropriate respecting the complaint. The head of the institution, in accordance with Section 66(4), can accept the recommendation or, if he or she refuses to take action to implement the recommendation, he or she must give reasons why. Section 67 provides for an appeal to the Court by a person who has been refused access to a record or by a third party who wants to take steps to stop the release of information. An appeal by a person who has been refused access to a record may only be made after the Ombudsman has filed a report in accordance with Section 66.
(d) Ontario
The powers of the Information and Privacy Commissioner in Ontario are comparable to those of the Commissioners in British Columbia and Alberta insofar as an appeal of an institutional order may be taken to the Commissioner and a binding order made with respect to the release of records. However, the Commissioner's more general powers of investigation into other matters relating to the administration of the Act and performance of duties pursuant to the Act would appear to be somewhat more limited.
Section 50 provides that a person who has made a request for access to a record or a third party who has been given notice that a record is to be released may appeal any decision of a head to the Commissioner. If the Commissioner conducts an inquiry, Section 52 provides that the inquiry is "to review the head's decision". Section 54 addresses the Commissioner's orders and provides that:
"after all of the evidence for an inquiry has been received, the Commissioner shall make an order disposing of the issues raised by the appeal".
Section 54(3) provides that the Commissioner's orders may contain any terms or conditions considered appropriate.
While Section 59 sets out the general powers and duties of the Commissioner, these are limited to research into matters affecting the carrying out of the purposes of the legislation, conducting public education programs, receiving representations from the public concerning the operation of the legislation and, with particular reference to privacy concerns, commenting on the privacy protection implications of proposed legislative schemes or government programs and, after hearing representations from a head, ordering an institution to cease collection practices and destroy collections of personal information.
(e) Québec
In Québec, the Commission is specifically set up as follows:
Section 122
"The object of the Commission is to hear, to the exclusion of every other court, the requests for review made under this Act."
The Commission's investigative powers are fairly wide with respect to issues relating to personal information, but with respect to reviews in connection with a refusal to provide information or a review by a third party wishing to stop the release of personal information, Section 135 is somewhat more limited. It provides as follows:
"Every person whose request has been denied, in whole or in part, by the person in charge of access to documents or protection of personal information may apply to the Commission for a review of the decision."
When conducting an investigation the Commission members or any person conducting the investigation on its behalf have all powers and immunities of a Commissioner appointed under the Québec Commissions of Inquiry Act.
The Commission's order powers are set out in Section 141:
"The Commission has all the powers necessary for the exercise of its jurisdiction; it may make every order it considers appropriate to protect the rights of the parties, and decide on every matter of fact or law.
It may, in particular, order a public body to release a document or part of a document, refrain from doing so, correct, complete, clarify, update or delete any nominative information, or discontinue the use or the release of nominative information."
A Bill now before the Assemblée nationale, clarifies that the Commission can investigate any matter relevant to access to a record, either following a complaint or on its own initiative, and make any remedial recommendation or order to the public body.
(f) Conclusion
The broadest powers of investigation would appear to be those which are provided to the Commissioners in British Columbia and Alberta. They may investigate matters relating to pretty much any aspect of the administration of the legislation and may, at the end of the day, make orders requiring public bodies to comply with their duties and obligations under the legislation. These powers would presumably involve the ability, should it become necessary, to investigate the conduct of individuals and, in any final decision, comment on the conduct of those individuals. Presumably, however, their powers would have to be limited in the manner in which the Courts have limited the powers of public inquiries. While they might have the authority to comment on the conduct of individuals, any such comment would necessarily have to fall short of making findings of either civil or criminal liability. (37)
While the Manitoba Commissioner does not have the power to make any binding orders, he is not restricted in the manner in which he may undertake inquiries or with respect to the matters which might become the subject of an inquiry. Again, like a Commission of Inquiry, it would appear that he could, during the course of conducting an inquiry and making a final report, comment on the conduct of individuals.
The powers of the Commissioner in Ontario with respect to access to information, as well as of the Commission in Québec, would appear to be slightly more precise. The legislation is broad with respect to matters relating to the protection of personal information including the collection, use and disclosure of such information. However, with respect to that aspect of the mandate relating to access to information, the jurisdiction is more limited. It appears to be restricted to inquiries as to whether or not information has been properly exempted from disclosure, and in the case of a request for third party information, whether the head of the institution has made a proper determination that the third party information can be released. Because of this narrower function, it is probably less likely that either the Ontario Commissioner or the Québec
Commission would have occasion to comment on the conduct of an individual during the course of the processing of a request. However, there is nothing in the legislation which would prohibit such comment and, while it is not completely clear, it is probable that such comment would be considered appropriate and within the jurisdiction of the Commissioner or the Commission if such comment necessarily related to the findings with respect to the question of whether or not access to information had been properly refused.
In all cases, the Commissioner, Ombudsman or Commission would have to establish and follow minimum procedures with respect to any comments on individual conduct. While all Statutes are silent on this issue, the general common law requirements in the common law provinces and the requirements of the civil law in Québec would no doubt impose on all of these bodies a duty to treat an individual fairly and give him or her notice of any possible adverse findings and an opportunity to make representations with respect to such findings. This duty of fairness is explored more fully in the section of this report dealing with Issues.
Return to Table of Contents20. Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c.165, as amended
21. Freedom of Information and Protection of Privacy Act, S.A., c.F-18.5, as amended
22. Freedom of Information and Protection of Privacy Act, S.M. 1997, c.F175, as amended
23. Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c.F-31, as amended
24. An Act Respecting Access to Documents Held by Public Bodies and the Protection of Personal Information, R.S.Q. 1982, c.A-2.1, as amended
25. Ombudsman Act, R.S.B.C.1996, c.340
26. Ombudsman Act, R.S.A. 2000, c.O-8
27. Ombudsman Act, R.S.O. 1990, c.O-6, as amended
28. Public Protector Act, R.S.Q. 1968, c.P-32
29. Freedom of Information Act, 1982, Act no. 3 of 1982, as amended
30. Official Information Act, 1982
31. Freedom of Information Act, 1997, number 13 of 1997
32. Freedom of Information Act, 2000, chapter 36
33. In the Canadian provinces examined, the Information Commissioners, or their equivalent, have a dual mandate, also fulfilling the role of Privacy Commissioner. Only at the federal level are the responsibilities split between two Commissioners.
34. Amended April 12, 2002, Bill 7-2002
35. Section 66
36. Section 59
37. Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System) [1997] 3 S.C.R. 440
