Report 28 - Access to Information Review Task Force

THE INFORMATION COMMISSIONER INVESTIGATIVE POWERS AND PROCEDURES

IV - Discussion of the Issues

As indicated at the outset, in addition to the comparative analysis in the preceding sections, this report has undertaken to examine the oversight function of the Commissioner in the context of six (6) issues or questions connected to the Information Commissioner's powers of investigation and decision making. In this section we will address these questions through an examination of the issue, how it has arisen as a matter for consideration by the Task Force, the views of the Office of the Information Commissioner and others with respect to that issue and the differing approaches which other jurisdictions have adopted in addressing the issue.

Before doing so, however, there are a number of aspects of the Commissioner's role as the oversight body charged with the first line independent review of decisions regarding the release of government information which will not be examined in this report:

1. The Commissioner as an agent of Parliament, appointed for a fixed term, after approval by the Senate and the House, and reporting directly to Parliament.

2. The Section 65 provision that the Commissioner is not a competent or compellable witness, except in the limited circumstances already noted.

3. The Section 66 protection from criminal or civil liability and the privileged status of proceedings before the Commissioner.

4. The Section 36(3) protection of witnesses (subject to one extension discussed below).

5. The offence, as set out in Section 67, to obstruct any investigation by the Commissioner.

All of these provisions speak directly to the Commissioner's impartiality and independence and are common features of the legislation which we have reviewed. Whether the Commissioner is an Ombudsman or whether he acts in an adjudicative capacity, these provisions are essential elements of the impartial and independent status that this oversight role requires. As we have seen in the discussion above, all of the oversight bodies which we have looked at, whether commissioners or ombudsman, have similar attributes of impartiality and independence.

As well, there is no doubt that the Information Commissioner, whether as a quasi-judicial body with order powers or as an Ombudsman, needs investigative powers to fulfil his mandate.

If he has the mandate to investigate, he must have the necessary tools to conduct the investigation. It is the writer's view that the legislative structure of the Office of the Information Commissioner, its jurisdiction, investigative powers and responsibilities, are fundamentally sound and that the Commissioner has all of the powers necessary to carry out his responsibilities as an Ombudsman.

However, the developments at the federal level toward more formalized investigations illustrate the growing antagonism between the Office of the Information Commissioner and some government institutions, and raise questions about the Commissioner's exercise of his powers, as well as the appropriateness of some of the procedures that he is following. There are also issues about how the Commissioner should approach an investigation which involves allegations of misconduct, or even criminal conduct, on the part of individuals, and questions as to whether the current legislative structure allows the Commissioner to develop the necessary procedures to afford individuals whose conduct is under investigation adequate procedural fairness.

1. The Investigation Context

a) The Investigative Process

Before looking at the issues surrounding the more formal investigations, there is a need to look at the vast majority of investigations, those that are conducted at the working level of the investigator from the Office of the Information Commissioner, the ATIP office of the government institution and the relevant program area. Typically these investigations do not involve subpoenas, confidentiality orders or testimony under oath.

In his speech to the External Advisory Committee of the Task Force, the Information Commissioner said:

When a complaint is received, it is assigned to an investigator. It is the investigator's task to try to resolve the complaint and, if that is not possible, to bring the matter to senior management so that further efforts can be made to that end.

In the course of an investigation, the investigator first familiarizes him or herself with the complaint and, by contacting the complainant, learns any background to the complaint. Next, the investigator contacts the department involved, obtains copies of the records in question, if it is an exemption complaint, and assesses the adequacy of the search. In other cases, the investigator discusses the fees, extension of time or other issues involved in the complaint.

If it is an exemption complaint, the investigator must read all of the records, consider the exemptions claimed in those records, obtain explanations from the official who invoked the exemptions, hear the complainant's views, review the statutory provisions involved and formulate some preliminary thoughts on the validity of the exemptions claimed.

It is at this point, where the fact-gathering process is mostly completed, regardless of whether it is an exemption, fee estimate, no records or time extension complaint, that the investigator begins the discussion/persuasion phase of the process. During this process, departmental officials may be asked to reconsider and remedy any perceived defect. The investigator acts as an advocate for the Act, not for the complainant. As I noted earlier, we are successful 99.9% of the time in securing a resolution which I consider to be in accordance with the Act.

Why is it that we are so successful in what everyone agrees is a difficult task, one fraught with pitfalls, egos and vested interests on both sides? It is, in large part, due to the professionalism and training of our investigators. ⁽¹⁰⁸⁾

Indeed, the Office of the Information Commissioner has a detailed training program and extensive internal procedures manuals and resources for its investigators. ⁽¹⁰⁹⁾ The training program includes training on mediation and principles of negotiation, familiarization with the Access to Information Act, including exemptions, exclusions, fees, extensions, delays, no records responses and other matters relating to the requesting or obtaining of access to records under the Act and a series of modules which cover related areas of government organization and legal issues. These modules include: government organization; roles of investigators; security and handling of government records; representations by complainants and government institutions; natural justice issues; case management; computer training; internet use and research; and handling general inquiries.

The day to day investigative activities of investigators are supported by a series of internal resources which are organized into procedures manuals and which include: A consolidated and annotated copy of the Access to Information Act (prepared and circulated by the Department of Justice); an internal supplement to the Act which ensures that the schedules and regulations are up-to-date; an administrative procedures manual; a reference guide which identifies departmental contacts at the co-ordinator level, deputy minister and ministerial level and provincial counterparts; and a Grid for the analysis of the application of exemptions, exercise of discretion and delay issues.

The Administrative Procedures Manual includes chapters on the investigators Code of Professional Conduct, organization of the Office, investigative processes and procedures. These include detailed flow charts for the progress of a typical investigation, sample letters, the role and function of support staff, categorization of dispositions of complaints, security and handling of files, administrative matters, the Records, Document and Information Management System (RDIMS) used by the Office of the Commissioner to organize and track complaint files, the use of plain language in communications and the handling of inquiries to the Office.

The Grid is a particularly interesting, and, one assumes useful, document. For each of the exemptions this document presents a Matrix which outlines the nature of the exemption, the issues raised by the exemption, the conditions of the exemption, a series of questions to be asked to evaluate the application of the exemption and references to Court precedents, both at the Federal Court level and precedents from other jurisdictions which may be helpful (mainly Ontario and the United States). It also addresses the issues related to delay complaints and the matters to be considered when addressing the exercise of discretion. This Grid is supplemented by an internal data bank of all Federal Court decisions as well as a data bank of previous findings by the Commissioner organized by exemption and by topic. When a file is assigned to an investigator, he or she is also provided with a list of previous cases investigated by the Commissioner where recommendations were made in respect of the issues that appear to be raised by the complaint.

b) Investigations Relating to Fees, Delays, Language

These types of investigations ought to be relatively straightforward. They must be conducted expeditiously to be an effective course of redress for requestors. However, according to the Commissioner's latest Annual Report ⁽¹¹⁰⁾ these investigations currently take:

In fact, it appears that the length of time required to investigate some of these matters is increasing.

c) Investigations Relating to the Application of Exemptions

The latest statistics from the Office of the Commissioner with respect to investigations of complaints involving the application of exemptions are as follows: ⁽¹¹³⁾

Again, the number of complaints involving the application of exemptions has remained fairly constant over the last three years. There was, however, an increase of almost two months in the processing of these complaints in 2000 - 2001. This may be an anomaly for that year, or it may be a trend.

2. Publication of investigative procedures and guidelines

• 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?

Most investigations are not formal and the use of subpoenas and examination under oath are the exception. No matter how informal, investigations of complaints by their very nature are likely to generate some tension between the office of the commissioner investigating the matter and the institution whose decision is challenged. How constructively and fairly this tension is managed by both parties will largely determine whether a timely and appropriate result is reached for the complainant and whether learning and enhanced practices occur in the institution.

Government institutions and individuals who regularly interact with investigators generally may develop a fair understanding of the investigation process and of the work of investigators, but those who are only infrequently involved in investigations have expressed the concern that they have no idea what to expect. However, even experienced co-ordinators report being at times surprised at how investigations are carried out, being uncertain about the focus of the investigation, and in some cases startled when new aspects of a complaint surface quite late into the investigation. They are generally concerned about a perceived lack of consistency between investigators in resolving the same issues. As noted in the introduction to this report, the degree to which some Access to Information Co-ordinators feel that they are besieged when the Information Commissioner and his investigators conduct even routine investigations is quite remarkable. It would appear, that the normal tension between the investigator and the institution which is being investigated is, to some extent, exacerbated by a lack of transparency and understanding. Access Co-ordinators are not aware of the procedures that the investigators will be following or, if they are aware of the procedures, they do not seem to understand them. Accordingly, there is this perception that the investigators lose focus during an investigation or do not appear to be concentrating on the issue at hand. However, if investigators are following the policies and procedures outlined for them in the manuals and applying the Grid approach to the analysis of exemptions, exercise of discretion and delay issues, the investigation should be focussed. One cannot help but conclude that much of the problem is the result of a misunderstanding and a simple failure to communicate. This perceived confusion is certainly not desirable – not from the point of those being investigated – nor from the point of the Commissioner. Overwhelmingly, Access Co-ordinators ask for a clear and consistent process for investigations. Although that process seems to be in place, it may need to be communicated more clearly.

The requestors to whom we spoke also expressed the view that the Commissioner's procedures needed to be more transparent. Those who have had occasion to use Freedom of Information legislation in the provinces pointed particularly to the procedures of the British Columbia and Ontario Commissioners and the fact that they find those procedures to be far clearer and more inclusive of requestors.

In addition to the more routine investigations, there will be occasions when the Commissioner determines that it is necessary to issue subpoenas and/or hold hearings of a more formal nature. The policy and procedure manuals which I reviewed did not address these types of investigations and, indeed, they are not conducted at the investigator level alone, but usually involve the Deputy Information Commissioner, the Director General of Investigations or Legal Counsel. These types of investigations can be even more stressful for co-ordinators and others, and it is even more imperative that there be clear information communicated to government institutions as to how these types of investigations will proceed and what the rights and obligations of individuals are when they are involved in such an investigation.

Other Commissioners publish policies and procedures, both to advise members of the public and public bodies as to how the Commissioner's Office will be guided in interpreting sections of the legislation, as well as to set out the procedures that the Commissioner and his or her staff will follow when investigating a complaint. While there is no specific statutory mandate requiring the Federal Commissioner to publish guidelines or procedures, there is nothing in the legislation which would prevent him from doing so.

The policies and procedures which have been published by, for instance, the British Columbia and Ontario Commissioners are to be found on their websites. ⁽¹¹⁴⁾

The New Zealand Ombudsman also publishes guidelines with respect to the interpretation of the legislation even though he does not have a specific mandate to do so. ⁽¹¹⁵⁾

When I met with the Commissioner's staff, they were not adverse to publishing guidelines and procedures for investigations. The Commissioner has a pivotal role to play in promoting open government and access to information about government decision making. He should also promote openness and access to his own procedures and decision making process.

Indeed, the Commissioner has done a lot of very good work in developing resources for his investigators and that work should be shared more widely with the access community. I have recommended in another report which I have done for the Task Force ⁽¹¹⁶⁾ that the government develop better procedures for providing assistance to co-ordinators and program officers who must apply exemptions. To apply exemptions properly they must understand the legislation and the jurisprudence. I have recommended that the Commissioner and Treasury Board Secretariat collaborate in the development of an enhanced set of guidelines to assist in the evaluation of exemptions. The Grid document which has been prepared by the Commissioner's Office provides much of the sort of detailed guidance that I envisaged.

Transparency in the investigative process and more information as to how the Office of the Commissioner views, and will be assessing, the application of exempting provisions, including a collaborative effort between Treasury Board Secretariat and the Commissioner on developing resources to assist all involved in the application of the Act would, in my view, go a long way to alleviating some of the tension that currently exists between government institutions and the Commissioner's Office.

3. Time Limits

• Is the time within which a complaint to the Commissioner may be made appropriate? Currently a complaint relating to a request for access to a record must be made within one year from the time when the request for the record was received by the Government Institution. ⁽¹¹⁷⁾ Should the legislation provide that the Commissioner has a limited time within which to conduct his investigation and issue his final report?

The questions of whether or not the time limit for a complaint is appropriate and whether a time limitation should be placed on the Commissioner between the receipt of a complaint and the issuance of a final report requires consideration of a number of factors. Firstly, Section 31 of the legislation currently provides that a complainant has one year to lodge a complaint with the Commissioner from the time when the request for the record was made if the complaint relates to a request for access to a record. This includes complaints regarding exemptions, delays, time extensions, fees and language of response. There is no constraint on the time which the Commissioner may take to investigate the matter and issue a final recommendation. However, once the Commissioner has issued his final recommendation, a requestor who wishes to take the matter before the Federal Court must do so within 45 days although the Federal Court can extend the time. ⁽¹¹⁸⁾

Secondly, the Commissioner's Office reports that the current average turn around time for the completion of an investigation and issuance of a final recommendation is approximately 5.4 months for all categories of complaints. ⁽¹¹⁹⁾ However, the turn around time on those complaints just relating to a refusal to disclose is 7.83 months.

Thirdly, any imposition of time constraints must recognize that the Commissioner's office will require sufficient time to consult with third parties when exemptions are claimed pursuant to Section 20 of the Act.

Finally, the Commissioner's ability to meet any time constraints imposed on his office, no matter how realistic, will necessarily depend on the volume of complaints received over any given time period and the willingness of the government to ensure adequate and timely funding to allow the Commissioner to establish adequate resources and staff.

a) The Time to Launch a Complaint

The current limitation of one year from the date of a request for information during which a complainant can make up his or her mind whether or not to complain to the Information Commissioner seems excessively long. The time limitation also seems to be measured from the wrong event. Most of the provincial legislation which we have reviewed measures the time to complain from the date of the refusal or the date of the event giving rise to the complaint. Generally speaking the time frame within which an appeal may be brought in most situations ranges between thirty (30) and sixty (60) days from the date of the denial of the record. ⁽¹²⁰⁾

There is also a problem with measuring the time to complain from the date of the receipt of the request. If a government institution determines that it is necessary, because of the number of documents involved, search time required, consultations necessary or even the number of requests that the institution must deal with, to take an extension of more than one year to respond to the request, the requestor may effectively lose out on the ability to even launch a complaint.

While the Commissioner's officials were of the view that the current time for making complaints works well, they were not adverse to measuring the time for complaining from the date of the incident complained of rather than from the date of the request. They were however, adamant that the time frames should not be too short and that the Commissioner must always have the discretion to extend the time in appropriate cases. I agree.

Accordingly, it seems logical to measure the time within which a requestor must make a complaint to the Commissioner from the date of the event or incident that gives rise to the complaint. A reasonable period would, in my view, be thirty (30) to sixty (60) days for an actual refusal of a record or language of access and ten (10) to fifteen (15) days for a complaint involving fees. When a complaint is with respect to a time extension taken by a department or with respect to a failure to meet a time limit for responding to a request, it seems only reasonable to have a very short period within which the complaint must be made. If the Commissioner's intervention on a time extension or delay complaint is to be timely and useful, it seems logical that the requestor should be obliged to make the complaint within ten (10) days or so from the time he or she is advised of the extension.

The Commissioner should have the right to extend the time in circumstances in which he is of the view that it is just to do so. Government institutions should, of course, continue to be obliged to advise requestors of their right to complain and to provide information as to how to contact the Commissioner's Office.

b) Limits on Time Taken to Complete an Investigation

With respect to the time within which the Commissioner must complete his investigation and issue his recommendation, a number of jurisdictions place time limits on the investigation process. Indeed, time limits are placed on Commissioners who have decision-making power as well as with respect to Commissioners who only issue recommendations. In Manitoba, Section 65 requires the Ombudsman to complete an investigation and make a report within 90 days, although he can extend that period. British Columbia ⁽¹²¹⁾, and Alberta ⁽¹²²⁾ both have similar 90 day time limits within which the Commissioner must make a decision. Under the Irish legislation, the Commissioner also has 3 months in which to make a decision. ⁽¹²³⁾

At the federal level, both access requesters and institutions complain that investigations take too long. As noted above, the average amount of time now taken to complete investigation of all complaints is about 5½ months. Investigations of refusals take, on average, 7.83 months. In 1998-1999 it was 5.86 months and in 1999-2000 it was 5.99 months. The number of cases investigated was relatively stable. ⁽¹²⁴⁾ This is considerably longer than the 90 day provisions in other jurisdictions. Because "access delayed" is often "access denied" the legislation should encourage a speedy resolution of issues at all stages. From the perspective of the requesters, timely resolution of a complaint is often critical. From the perspective of the institution long investigations are equally problematic. They consume a lot of the limited resources of the ATI Unit. Moreover, the access staff who originally dealt with the request as well as the program staff involved may be gone, leaving no corporate memory.

It seems logical to seriously consider a recommendation that the Commissioner be placed under time constraints with respect to the completion of an investigation and the issuance of a report. There seems to be no reason, given the experience in British Columbia, Alberta and Manitoba and the approach taken in Ireland, why time constraints could not be imposed even if the Task Force makes a recommendation that the Commissioner's role be modified to provide that, at the end of an investigation, he will issue a binding ruling as to whether records must be disclosed. Whether the investigation results in a recommendation or whether it results in a final order does not, in my view, detract from the advantages which I believe would flow from the imposition of time limitations. If it is decided that the Information Commissioner will continue as an Ombudsman with the power to make recommendations only, an alternative approach would be to allow a complainant to take his or her complaint to the courts after the passage of a fixed amount of time, even if the Commissioner has not issued his final report and recommendation.

However, placing constraints on the time within which the Commissioner must complete an investigation and issue a report would affect both the way investigators approach their jobs and the way government institutions respond to investigations. Any recommendation to impose time limits on the Commissioner for the completion of an investigation should also take into account the fact that both the Commissioner and government institutions may have to modify the way in which they approach investigation.

As discussed above, the Commissioner's investigators have an extensive set of guidelines and procedures which they are to follow in investigating a complaint. These procedures are proactive in that the investigators actively collect and review the records in issue, develop preliminary positions on the appropriateness of the exemptions and then go back to the government institution to obtain more information and discuss those exemptions where they are not satisfied that the exemption has been properly applied. Time limits for completing investigations might require the Commissioner's Office to revise its investigative procedures to place more emphasis on requiring the government institution to proactively gather together the records in issue and deliver them to the investigator with justifications for the application to exemptions. This is the approach that we understand is used in Ontario and British Columbia. The investigators would then be more reactive and the onus for justifying the application of an exemption would be placed more squarely on the government institution where, in my view, it belongs. In my view, this approach would also contribute to a more defined investigation and go some way to addressing the issue of "scope creep" (investigators looking at matters which do not seem to be directly related to the issues in the complaint) which was identified by a number of co-ordinators as an issue.

However, the imposition of time limitations on the Commissioner for the completion of an investigation would also have a significant effect on the operation of some access to information units within government institutions. Time limits on investigations and any change in the way that investigators operate would likely require a change in the procedures of some government institutions and require them to be more effective in recording the reasons for claiming a specific exemption and the specific rationale or evidence supporting the exemption. Many departments are just coping with the workload involved in responding to requests and attempting to do so in a timely fashion. Detailed records of why exemptions have been taken are not always kept, and co-ordinators may have to reconstruct the file when responding to a complaint. For these institutions, it makes sense to focus resources on processing the requests and dealing with investigations as needed. When there is a complaint, the investigator reviews the records and the exemptions first, identifies those which he or she has concerns about and goes back to the institution with those concerns. The institution then focuses its resources on explaining and justifying those exemptions.

The imposition of a time limit for the Commissioner to complete an investigation might well shift more of the burden to the institutions and require them to spend more time on detailing and then communicating to the Commissioner the justification for the application of exemptions. In turn, this might well contribute to some institutions having even more trouble dealing with requests in a timely manner.

The Commissioner's Office did not agree that investigations tend to be unfocused at times or that any time limits on the Commissioner's Office should be imposed. The Commissioner's officials did stress, however, that the ability of the office to complete investigations in a timely fashion is directly related to resources. Any time limits would have to be accompanied by adequate resources. It also has to be recognized that not all investigations are equal, some will be more complicated and will require more time. Perhaps the Commissioner, like Government Institutions, should be given the option of taking an extension of the time for completing an investigation.

While the Task Force should seriously consider recommending steps to impose time limits on the Commissioner for the completion of investigations, the time that is currently being taken for investigations is not something that can be viewed in isolation. It must be considered in the context of the overall allocation of resources to access to information, both at the institutional level and at the level of the Commissioner.

In my view, the Commissioner should develop a more streamlined approach to investigations. By requiring a government institution to respond in writing with copies of the records in issue and an explanation of the rationale for the exemptions which have been applied, the Commissioner's investigators would be able to focus their inquiries more quickly. This approach would also be more consistent with the adjudicative model where the government institution makes its case to the Commissioner for the application of exemptions and the Commissioner then makes a ruling. However, in response, government institutions will have to revise their procedures and devote more resources to the documenting of exemptions and the evidence and rationale for invoking them so that they are in a position to respond in a timely way to an investigation.

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108. John Reid, supra note 10.

109. The Commissioner's Office made these manuals available to me for review and provided additional background to help me understand its internal processes and procedures.

110. Annual Report, 2000-2001, supra note 4 at p.81

111. Ibid.

112. The practice of the Office of the Information Commissioner in cases of delay (deemed refusals) is to review the whole file for completeness of response and the application of exemptions. This may account for the length of some of these investigations.

113. Ibid.

114. British Columbia: http://www.oipcbc.org; Ontario: http://www.ipc.on.ca

115. Available online at www.ombudsmen.govt.nz/publicat.htm

116. Supra note 8

117. Section 31

118. Section 41

119. See Annual Report 2000-2001, supra note 4 at p. 81

120. Alberta, Section 66(2) - 60 days - 20 days for a Third Party; British Columbia, Section 53 - 30 days; Manitoba, Section 60(2) & (3) - 60 days from date of decision re access - 120 days from request if no decision received; Ontario, Section 50(2) - 30 days; Québec, Section 135 - 30 days

121. Section 56(6)

122. Section 69(6)

123. Section 34(3)

124. Annual Report 2000-2001, supra note 4 at p. 81