Report 28 - Access to Information Review Task Force

THE INFORMATION COMMISSIONER INVESTIGATIVE POWERS AND PROCEDURES

VII - Recommendatinos to Consider

a) Adjudicative Model

Overall, I believe that the move to an adjudicative model similar to that found in other Canadian jurisdictions would be a beneficial one for all parties involved because it provides more clarity and consistency.

But this is not to say that the ombudsman model cannot be effective. It has undeniable strengths, especially in bringing about negotiated solutions and behaviour change at low cost to the complainant, and Canadian taxpayers. It is, however, less effective in solving true divergences in the interpretation of the Act or when the climate is highly adversarial. In addition, one of the most persuasive reasons for being cautious in recommending a change from the Ombudsman model to the adjudicative model is the fact that, as noted the current Commissioner and his predecessor, John Grace, both favour the Ombudsman model and are not supportive of the adjudicative model.

Moreover, the Access to Information Commissioner is one of a number of special purpose Ombudsmen who have been established to provide oversight in the federal sphere. A change in the nature of the role of the Information Commissioner should not occur in isolation. It should be part of an integrated review by the federal government of all of these functions and a consideration of whether the adjudicative model or the Ombudsman model is most appropriate. This consideration may be most difficult in connection with the Privacy Commissioner who now oversees both public sector privacy under the Privacy Act and private sector privacy under the Personal Information Protection and Electronic Documents Act. The Access to Information Act and the Privacy Act are so closely related that any amendment to one must be seriously considered for the other.

b) Legislative Change

On balance, it is my view that the legislative framework which generally governs the investigative powers of the Commissioner is adequate.

The following changes should, however, be given consideration:

1. Provide the Commissioner with a positive legislative mandate and the necessary resources to:

• Conduct public education in respect of the Access to Information Act and access to government information generally;
• Engage in research regarding access to information issues;
• Comment on the implications for access to information of proposed legislation or proposed government policies regarding information handling practices;
• Work with the Treasury Board Secretariat in developing guidelines for the application of the provisions of the Act;
• Assess the information handling practices of government institutions in co-operation with Treasury Board Secretariat and government institutions and make recommendations to improve both the practices and procedures for handling and responding to access requests.

2. The Commissioner should continue to play an active role as a mediator and one of his goals in all complaint investigations should continue to be to foster a mutually agreeable settlement. The legislation could be amended to provide for a distinct mediation role or the Commissioner could, as he already does, simply undertake mediation within his existing mandate. Either way, the mediation phase of a review by the Commissioner should be a distinct phase and clearly separate from the investigation phase. In this context, legislation might be necessary if government institutions do not revise their attitude about participation in mediation. Any mediation regime will have to recognize that there will be situations in which mediation will not be a productive exercise, and the Commissioner should always have the discretion to proceed without any mediation.

3. Amend the legislation to provide more realistic time delays for the making of a complaint to the Commissioner. The time for making a complaint should be measured from the event complained of. The time within which a complaint on the denial of a record must be made should be in the range of forty-five days. The time within which a complaint in respect of a deemed refusal, a time extension or a fee issue must be made should be in the range of ten days. In both cases the Commissioner should have the power to extend the time. He should publish guidelines and develop a coherent body of jurisprudence explaining when extensions will be given.

4. The Commissioner should be obliged to complete an investigation and report on an issue of deemed refusal, time extension or fees within 30 days.

5. The Commissioner should be obliged to complete an investigation on a complaint relating to exemptions within 90 days with the option of taking an extension of up to 120 days. After 120 days, the requestor should be able to take the matter to court notwithstanding the fact that the Commissioner has not rendered a report.

6. The Commissioner should publish clear guidelines and procedures for investigating complaints and should use the mechanisms of written representations and reviews in most cases - at least as the initial part of his investigation.

7. While the Commissioner should continue to be an Ombudsman, he could have adjudicative and order making powers in respect of complaints relating to deemed refusals, delays and fees, language and other process issues.

8. The confidentiality provisions in the legislation do not need to be changed, but the Commissioner does need to change the way he operates. Confidentiality is not a virtue in and of itself - especially not when dealing with access to information. To signal this change the legislation could provide for discretion in conducting investigations in private as it does in B.C. The Commissioner's published procedures need to deal with the issue of confidentiality, the use of subpoenas, the right to counsel, the right to make representations and the right to comment on findings before they are given to the person who made the complaint.

9. Consideration should be given to amending Section 35(1) to provide that an investigation "may be conducted in private" rather than "shall be conducted in private".

10. When a complaint relates to the conduct of individuals, the Commissioner must be extremely careful. It is not his job to ascertain if an offence has been committed under the Act. In fact, his role as an Ombudsman should focus on procedural issues relating to the receipt and processing of access requests, delays, time extensions, fees and the application of exemptions. His role in investigating individuals or allegations of misconduct against individuals should be extremely limited - and extremely rare. The minute he has any concern that a criminal offence or an offence under the Act may have been committed, he should back off and refer the matter to the Deputy Attorney General and the Royal Canadian Mounted Police.

11. The Office of the Information Commissioner should put in place policies and procedures which permit requesters to play a greater role in the investigative process if they wish. In particular, requesters ought to have some opportunity to comment on the representations of the government institution as to why information ought to be exempt from disclosure. It will need to be recognized that in many cases this opportunity will have to be limited in order to protect the integrity of the information. However, it is this writer's view that there are many instances in which the requester can be given general information about the rationale for the exemption of the information and that requesters are often in a position to provide useful insight into the issues and assist the investigation.

12. The legislation should be amended to provide that the Commissioner is obliged to give notice to any person whose conduct is referred to or is the subject matter of a complaint and to anyone who might be adversely affected by anything in a report. The legislation must also address the right of these individuals to make representations and to receive a copy of any report.

13. Section 36(3) should be revisited. It currently provides that evidence that individuals give to the Commissioner during the course of an investigation may not be used against them except in limited circumstances. One of the two exceptions is in respect of a prosecution for an offence under the Act. There are currently two offence provisions – Section 67 (obstruction) and Section 67.1 (records alteration or destruction). While use of such evidence against an individual in a prosecution for obstruction of the Commissioner during an investigation may be appropriate, use in a prosecution under Section 67.1 is more problematic. As discussed above, the Commissioner has expressed concern that the current wording of this provision has contributed to the excessive formalization of his investigations. I agree that the Task Force should review and consider the recommendation of the Commissioner in his 2000-2001 Annual Report that:

"…subsection 36(3) be amended to specify that evidence given to the Commissioner by a witness is inadmissible against the witness in a prosecution of an offence under subsection 67.1" ⁽¹⁶⁶⁾

14. The Commissioner's Office and the Attorney General had in the past developed a protocol to deal with the issue of when the Commissioner will exercise his right to view solicitor-client privileged records, other than records which are the subject of a request and have been exempted on the basis of the privilege. This protocol should be revived and included in the Commissioner's published procedures and guidelines. Alternatively, a legislative amendment such as is found in New Zealand or the Untied Kingdom legislation could be considered.

15. The issue also arises as to the extent of the waiver of solicitor-client privilege in Section 36(2). While that section can waive the privilege on behalf of the Crown and its agents, in my view it cannot waive a privilege which belongs to an individual public servant in his or her own right. The Commissioner should clarify his position on this issue. An amendment to clarify that the Crown has not purported to abrogate the right of individuals to maintain their solicitor-client privilege might be required.

16. Reasonable notice should be given to any person to be served with a subpoena or required otherwise to testify under oath or produce documents. This should be dealt with in the Commissioner's procedures and guidelines. Alternatively this could be provided for in Regulations.

17. The Legislation should be amended to provide for the right to counsel where a person is required to testify under oath.

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166. Annual Report, 2000-2001, supra note 4 at p. 78