Report 28 - Access to Information Review Task Force

THE INFORMATION COMMISSIONER INVESTIGATIVE POWERS AND PROCEDURES

V - Discussion of the Issues - Other Powers

• 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?

a) Mediation powers

Should the Commissioner have a specific mandate to encourage and facilitate mediation of a complaint before undertaking a full scale investigation?

Information Commissioners in all jurisdictions mediate disputes whether or not mediation is explicitly provided for in their legislation. They are all of the view that it is the most effective and efficient way to resolve complaints. We are advised by the offices of the Information and Privacy Commissioners in British Columbia, Alberta and Ontario that some 75-90 percent of the complaints which are received are resolved by way of mediation and do not require the Commissioner to actually hold a hearing and issue a formal decision.

The Federal legislation does not provide specifically for mediation. However, in large measure the activities of the Information Commissioner's investigators can be characterized as mediating and negotiating. Investigators undergo extensive training to equip themselves for this role. In fact one could say that as an ombudsman the role of the Information Commissioner is essentially one of mediation and negotiation and the Information Commissioner Website sets out his role as "mediating between dissatisfied applicants and government institutions". In adjudicative models, the mediation function is held separate and apart from the inquiry, allowing for flexibility, candour and risk taking during the mediation stage. At the federal level the line between investigating and mediating is not as clear, and co-ordinators complain of not knowing whether at any point they are in a mediation/negotiation process or in a formal investigation. Institutions, thinking they have reached an understanding with the Office of the Information Commissioner, have reported subsequently receiving a subpoena or a recommendation letter totally at odds with the solution which had been negotiated with the investigator ⁽¹⁴³⁾. As a result, co-ordinators are uncertain as to the mandate of the investigators and may be loathe to negotiate a settlement if they cannot be certain that it will be accepted by the Office of the Commissioner.

A formalized mediation mandate would also assist the Commissioner in his efforts to have government institutions participate in mediation. During our meeting, the Commissioner's officials advised that there have been occasions when departments have declined to sit down with the requestor to try and work out a resolution to a complaint. The department refused, citing the provision of Section 35 (2) 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 person". In my view, such an attitude on the part of a government institution is not the least bit helpful. A formal mediation mandate may be required to bring reluctant departments to the mediation table.

In an adjudicative model, it would make sense to seriously consider including in the process a mediation step such as that which currently appears in the British Columbia ⁽¹⁴⁴⁾, Alberta ⁽¹⁴⁵⁾ and Ontario ⁽¹⁴⁶⁾ legislation. That process essentially operates as follows:

1) Upon receipt of a complaint the Commissioner's office first attempts to resolve the matter by conducting a mediation between the requestor and the government institution involved;

2) If the mediation process is unsuccessful, the Commissioner must conduct an inquiry and a notice is sent to the public body (for example in B.C. on day 68 of a 90 days process). In most cases this will be a paper hearing in which both the requestor and the government institution make written representations to the Commissioner as to why the information ought to be released or why the information is subject to one or more exemptions in the Act. Both the mediation and the hearing are held in accordance with procedural guidelines issued by the Commissioner's office.

Even if the decision is taken to leave the Commissioner's role as that of an Ombudsman, a specific mediation mandate such as that found in the Manitoba legislation should be considered. ⁽¹⁴⁷⁾ It would provide clarity and legitimacy for the key activity in the eyes of both complainants and institutions. Given the more formalized investigations of recent years, there should also be an attempt to structure more clearly and separate. The informal process of mediation from the formal investigation process. This would be reflected in the Information Commissioner's investigative procedure.

b) General powers: Public Education, Monitoring, Advisory

It is fairly common for Information Commissioners to be given general powers with respect to the administration of the legislation and, in particular, with respect to an advisory and public education role. The general powers of the British Columbia Commissioner are typical of the proactive approach expected of most of the provincial Commissioners. Section 42 of the British Columbia legislation provides as follows:

42(1) In addition to the commissioner's powers and duties under Part 5 with respect to reviews, the commissioner is generally responsible for monitoring how this Act is administered to ensure that its purposes are achieved, and may

(a) conduct investigations and audits to ensure compliance with any provision of this Act,

(b) make an order described in Section 58(3) whether or not a review is requested,

(c) inform the public about this Act,

(d) receive comments from the public about the administration of this Act,

(e) engage in or commission research into anything affecting the achievement of the purposes of this Act,

(f) comment on the implications for access to information or for protection of privacy of proposed legislative schemes or programs of public bodies,

(g) comment on the implications for access to information or for protection of privacy of automated systems for collection, storage, analysis or transfer of information,

(h) bring to the attention of the head of a public body any failure to meet the prescribed standards for fulfilling the duty to assist applicants.

In Ontario, the Commissioner's powers include engaging in or commissioning research into matters affecting the carrying out of the purposes of the Act, conducting public education programs and providing information concerning the Act and the Commissioner's role and activities and receiving representations from the public concerning the operation of the Act. ⁽¹⁴⁸⁾

In Alberta, Section 54 provides that a public body may ask the Commissioner to give advice and recommendations on any matter respecting any rights or duties under the Act.

The Commissioner under the United Kingdom legislation has even more powers. Section 47 provides that it is the duty of the Commissioner to "promote the following of good practice by public authorities" and to "promote the observance by public authorities of (a) the requirements of the Act, and (b) the provisions of codes of practice". The Commissioner is to arrange for the dissemination of information to the public about the operation of the Act, about good practices under the Act and about other matters within his jurisdiction. She may give advice to any person with respect to these matters. In particular, a public authority may ask the Commissioner or the Commissioner may, with the consent of the public authority, assess whether that authority is following good information handling practices. She is also to consult with the Keeper of Public Records on issues relating to the observance by public authorities of the Act and codes of practice. Section 48 specifically provides that she may issue practice recommendations to public authorities specifying steps which, in her opinion, ought to be taken to promote conformity with the requirements of the legislation.

In the same vein, Section 36 of the Irish legislation provides that the Commissioner is to keep the operation of the Act under review and that he may carry out investigations into the practices and procedures adopted by public bodies generally, or by a particular public body, in order to determine whether that public body is either complying with the provisions of the Act generally or any particular provision of the Act. Section 38 provides that the Commissioner is to encourage the publication of information by public bodies and Section 39 provides that the Commissioner may prepare and publish commentaries on the practical application and operation of the provisions of the Act. These commentaries may be based on the experience of the Commissioner arising from investigations which have been conducted in respect of complaints relating to refusals to produce information.

The New Zealand Ombudsman, on the other hand, has no specific mandate, but his office has published a number of Practice Guidelines ⁽¹⁴⁹⁾ to help the government decision makers to understand his interpretation of, and approach to, various of the exempting provisions and in fact takes a pro-active approach to public education and promoting the Official Information Act, 1982.

The Canadian Federal Information Commissioner does not have any equivalent mandated public education role. Nor does the statute contemplate that he will take a proactive role in publishing practice guidelines or even consulting with the Treasury Board Secretariat in the preparation of policies and procedures to be followed by access to information co-ordinators when administering the Act. His powers are essentially complaint driven as set out in Section 30. While Sections 38 and 39 provide for the preparation and transmission to Parliament of annual and special reports, these sections pretty much envisage that the Commissioner will confine himself to reporting on the activities of his office during the preceding financial year. Section 39(1), dealing with special reports, does seem to contemplate a slightly broader focus in that it refers to the Commissioner "referring to and commenting on any matter within the scope of the powers, duties and functions of the Commissioner…". However, as we have seen, the duties and the functions of the Commissioner, as set out in the Legislation, are essentially limited to receiving and investigating complaints.

While the Commissioner does routinely comment on matters relating to the administration of the Access to Information Act and has, in his most recent report, made his own recommendations with respect to reform of the Act, this lack of a positive education mandate has no doubt limited his ability to undertake a broader range of proactive activities relating to research, publication of practice guidelines or other activities.

In 1987 the Standing Committee on Justice and Solicitor General on the review of the Access to Information Act and the Privacy Act, recommended that:

"…for purposes of clarification, the Access to Information Act and the Privacy Act mandate that the Treasury Board Secretariat, the Information Commissioner, and the Privacy Commissioner foster public understanding of the Access to Information Act and the Privacy Act and of the principles described in Section 2 of each Act. Such education should be directed towards both the general public and the personnel of government institutions. The appropriate provision in the Statutes should follow the model of Section 22 of the Canadian Human Rights Act." ⁽¹⁵⁰⁾

Section 22 of the Human Rights Act, referred to by the Committee is now Section 27. While there are elements of Section 27, as it now stands, which might be problematic with respect to the independence of the Commissioner if he is to be making binding rulings, there are aspects of the mandate of the Human Rights Commission which are of interest:

(a) the development and conducting of information programs to foster public understanding of the Human Rights Act and the role and activities of the Commissioner and to foster public recognition of the principles described in Section 2 of the Act with respect to non-discrimination;

(b) undertaking and sponsoring research programs related to its duties and functions;

(c) maintaining a close liaison with similar bodies or authorities in the provinces in order to foster common policies and practices and to avoid conflicts respecting the handling of complaints. In respect of overlapping jurisdiction (while there will not be jurisdictional issues as between the Federal Commissioner and his provincial counterparts, there is some merit in trying to foster similar approaches to the application of exemptions and similar approaches with respect to what kind of information can be released);

(d) receiving recommendations and suggestions with respect to its mandate and commissioning studies and reporting on the same in annual reports;

(e) reviewing regulations, rules, orders, by-laws and other instruments made pursuant to an act of Parliament and commenting on their consistency with the Act; and

(f) taking steps to discourage racism (in the case of the Commissioner taking positive steps to encourage the release of government information.)

The public education and proactive role which was considered by the Committee to be appropriate for the Commissioner is, as we see, very close to the role that is played by the provincial Commissioners and by the Commissioners in the other jurisdictions which we have examined.

The Commissioner's Office also pointed out that there is nothing in the legislation to prevent public education initiatives by the Commissioner and that, in fact, the Office does undertake a range of public education activities, primarily through speeches by the Commissioner and the Annual Report.

The Commissioner's Office also pointed out that there have been occasions when a public statement or speech by the Commissioner has resulted in an increase in access requests, either generally or to a department. The Commissioner has then been subject to some criticism that he should not be "promoting" or "encouraging" access requests. Other Information Commissioners have a public education role - it is seen as credible and legitimate.

In a previous section of this report, it was noted that formal investigations, the use of subpoena and testimony under oath may be an awkward and possibly self-defeating tool in dealing with systemic issues. Systemic issues are by definition issues deeply rooted in the processes and systems of an institution or across institutions. The resolution of systemic issues requires assessment of the issue, awareness in institutions of the role their process and systems play in the problem and appropriate remedial action plans put in place often requiring significant changes in institutional practices, systems and processes. One can infer that the more consensual the process is, the more likely it will lead to the right kind of changes. It requires a different process than the resolution of specific complaints.

At this point the only formal mechanism the Commissioner has is the self-initiated complaint under subsection 30(3), which states

(3) Where the Information Commissioner is satisfied that there are reasonable grounds to investigate a matter relating to requesting or obtaining access to records under this Act, the Commissioner may initiate a complaint in respect thereof.

The Commissioner's Office feels that, generally speaking, this is a sufficient mandate to undertake audits. This mandate, requiring as it does "reasonable grounds", focuses a review and audit on a specific problem which has been identified and proceeds by way of self-initiated complaint which is most likely perceived by institutions as an adversarial process. An alternative would be to give the Information Commissioner a formal audit role.

The "report card" process instituted by the Information Commissioner is evidence of the need for tools to deal with the systemic issue of delays across the government. Whatever criticism one can make of the grading system of the report card process, it is a step in the right direction. A more effective tool to deal with systemic issues would be to identify systemic issues for audit purposes, to assess them across institutions and to put in place remedial action plans, all in co-operation with the Treasury Board Secretariat. For example, under the B.C. provisions previously cited, once the issue has been identified, the audit can be conducted by an external consultant. The remedial action plan, however, is negotiated between the institution and the Information Commissioner.

Finally, most Information Commissioners have an explicit advisory role to the government. The Commissioner should also participate with the Treasury Board Secretariat in the revision of the guidelines to assist in the application of exemptions under the legislation. Although the current Treasury Board Secretariat Guidelines prepared by the Secretariat to help access co-ordinators to administer the Act and apply exemptions were developed in consultation with the Office of the Commissioner several years ago, it is not at all clear if the current Commissioner continues to agree with those Guidelines. In my view it is unfortunate that these Guidelines have not been updated through a collaborative approach including the advice and views of the Information Commissioner. As a result, co-ordinators are left to deal with two sets of "rules" - the Guidelines and the guidance that can be inferred from the results of the Commissioner's investigations and his recommendations.

In another report which I have written for the Task Force on the nature and structure of exemptions, ⁽¹⁵¹⁾ I have expressed the view that departmental decision-makers need far more guidance in evaluating injury and determining whether discretionary exemptions ought to be applied. I have recommended that these types of guidelines, along with guidelines and procedures for the handling of government information, be developed on a collaborative basis with the Office of the Information Commissioner. A collaborative role such as this is perfectly consistent with the function of an Ombudsman. The Commissioner is better situated than most to appreciate the larger picture - other situations where the application of the exemption has been in issue, concerns expressed in other contexts and the types of records which may be involved.

In terms of an audit function or a specific mandate to work with departments to develop information handling practices, or with the Treasury Board Secretariat to develop guidelines for the application of exemptions, the Commissioner's Office has expressed some concern. That concern relates to the difficulty of the Commissioner finding himself in the position of reviewing his own advice, or a department's interpretation or application of guidelines he may have helped develop. I do not view this as a problem.

Accordingly, it is this writer's view that the Commissioner can be given a more comprehensive mandate in the areas of audit and public education and be directed to work more closely with Treasury Board Secretariat and individual departments to promote the aims of the Access to Information Act, including the development of guidelines for the application of exemptions. This expanded role and mandate would not, in my view, compromise his ability to investigate and report on complaints and operate as an effective Ombudsman. In other jurisdictions, Information Commissioners have similar proactive powers, and when they are structured and exercised appropriately they do not interfere with their adjudicative mandate.

If the Commissioner is to be given a more fulsome mandate with a positive role related to public education, fostering the objectives of the Access to Information Act, conducting studies and research and acting proactively, either on his own or collaboratively with Treasury Board Secretariat, to develop guidelines for the application of the Act, it will obviously be necessary to ensure that the Commissioner has adequate resources to fulfil this mandate. Presumably, the Commissioner can carry out some of these functions under his mandate as it is currently worded. However, without a specific proactive statutory mandate it may be difficult for him to martial the appropriate arguments necessary to ensure that he has adequate resources to undertake these activities. Accordingly, if the Commissioner is to undertake these additional activities it would be better if they were specifically spelled out in the Legislation.

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143. The Office of the Information Commissioner advises that its policy is that all proposed settlements are to be reviewed and approved by the Information Commissioner. The Office of the Information Commissioner also points out that many Co-ordinators do not have the authority to reach a final settlement.

144. Section 55

145. Section 68

146. Section 51

147. Section 62(2)

148. Section 59(d)-(f)

149. Available online at "http.www.ombudsmen.govt.nz." See also supra note 114.

150. Report of the Standing Committee on Justice and Solicitor General on the Review of the Access to Information Act and the Privacy Act "Open and Shut: Enhancing the Right to Know and the Right to Privacy", March 1987 at p.7

151. McIsaac, supra note 8