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Access to Information Review Task Force





 

Report 28 - Access to Information Review Task Force

THE INFORMATION COMMISSIONER INVESTIGATIVE POWERS AND PROCEDURES

VIII - Conclusion

As I have stated on a number of occasions in this paper, I am of the view that the investigative regime established for the Commissioner in his role as an Ombudsman is fundamentally sound but there are changes which, in my view, would enhance his role and provide for a fairer and more effective exercise of the oversight role.

Notwithstanding the basic soundness of the regime, it is becoming apparent that there is a growing problem. The level of distrust and animosity between the Office of the Access to Information Commissioner and many government institutions is unacceptable. Why is this? In my view the fault lies both with the government and with the Commissioner.

No doubt there is some truth to the Commissioner's criticisms of the government at pages 16 and 17 of his 2000-2001 Annual Report:

The greatest shortcomings in the right of access are not shortcomings in the words of the Act but in the deeds of those who administer the Act, Reform must focus on where it is most needed.

The reasons for the past failure provide clues to the pitfalls which the current review faces. Secrecy in government deeply entrenched - primarily at all senior levels of the bureaucracy. Secrecy cloaks public servants in relative anonymity as the handmaiden of the notion of "ministerial accountability". Secrecy, too, gives governments more control over the management of information flows to the public. The access law – with a positive right of access by anyone present in Canada to most records held by government, coupled with a deadline for response – constitutes a frontal attack on both of these perceived virtues of secrecy. Consequently, there is every incentive for officials to resist, if not impede, the operation of the law.

While a certain amount of resistance to the release of some information is to be expected, I suspect that much of the problem is one of resources. How much money is the government willing, or able, to devote to records management and access to information issues? The answer to that question is beyond the scope of this paper, but it is clearly a question, the answer to which is important in a final determination of how the oversight of the legislation should be structured.

As well, genuine and principled differences on the interpretation of the Act will occur between complainants, the Information Commissioner and government institutions. Often the best way to deal with these differences effectively and properly is to bring them to Court for determination. Even Sweden, with over 250 years of experience with its access legislation and one of the most open administrative cultures of the world, has some access issues regularly before the courts. However the body charged with oversight also plays a significant role in making access to information legislation work. The oversight body can resolve some of these interpretation issues and, in my view, can best do that as an adjudicative body. In many cases the most important factor is that there be consistency and certainty. That should be the objective of the first level of oversight.

In my view the Office of the Information Commissioner has failed to develop - or at least communicate to the government institutions - a sufficiently coherent approach to its oversight role and investigative mandate. Conclusions as to the application of exemptions and the interpretation of exempting provisions are not routinely published. Investigators are perceived as not always having a focussed plan for an investigation. Time may be wasted because there are no published investigative procedures and government institutions which receive few requests, or which are seldom the subject of an investigation, have little idea what to expect. Most telling, even those institutions with a lot of experience with investigations report being surprised by the way the Commissioner's Office exercises its investigative powers. The Commissioner's Office does not appear to have completely thought out its role in investigating allegations of individual misconduct.

Subpoenas and aggressive examinations of senior officials, including Ministers, have certainly put access on the radar screen of departments but have also scarred the relationship, perhaps for the long term, and diminished considerably the potential for compromises, accommodation and settled solutions. This has led to confusion and uncertainty, a perception of unfairness and mistrust. To some extent, the Office of the Information Commissioner may have lost some of its ability to exert that "moral suasion" to which John Grace referred, and which is so essential for the exercise of an effective Ombudsman function.

In my view, both the government and the Office of the Information Commissioner must share in the responsibility for the current state of their relationship. Both will have to be responsible for repairing the relationship. Hopefully that can be accomplished through the process of working together to implement the recommendations of this Task Force.

ABOUT THE AUTHOR

Barbara McIsaac, Q.C.

Barbara McIsaac is the Managing Partner of the Ottawa office of McCarthy Tétrault, LLP. She graduated from Queen's Law School in 1973 and was called to the Ontario Bar in 1975. She was in private practice in Ottawa from 1974 until 1983 when she joined the Civil Litigation Section of the Department of Justice. In 1990 she was appointed Queen's Counsel. She returned to private practice in 1994, joining McCarthy Tétrault.

Mrs. McIsaac served as Senior Counsel to the Somalia Inquiry. She has been counsel in such varied cases as Pioneer Hi-Bred in which the Supreme Court of Canada decided that the Patent Act does not permit the patenting of life forms; Mossop v. The Attorney General of Canada in which the Supreme Court of Canada ruled on the interpretation of the term 'family status' in the Canadian Human Rights Act; Southam v. The Queen in which the Ontario Court of Appeal ruled that the provisions of the Young Offenders Act prohibiting the publication of the names of victims or offenders did not violate the Charter; and Haig v. The Queen in which the Court of Appeal ruled that the Canadian Human Rights Act violates the Charter by failing to include sexual orientation as a proscribed ground of discrimination.

In addition to a number of Charter and public law cases, Mrs. McIsaac has represented private clients and the federal government in cases involving contract disputes, environmental matters, product liability and tort claims and professional liability and employment matters.

Access to Information and Privacy Issues Experience

While with the Department of Justice, Mrs. McIsaac was the Co-ordinator of Litigation involving the Privacy and Access to Information Acts and was counsel in a number of court cases involving the interpretation and application of those statutes. She also provided advice to various government departments and agencies regarding the interpretation of the statutes and participated, with the Access to Information and Privacy Law section of the Department of Justice, in the Parliamentary review of the legislation. She was also involved in co-ordination with the Privacy and Access to Information Commissioners in respect of matters involving the application of the two statutes.

Since returning to private practice, Mrs. McIsaac has represented the Government and Government Agencies, Private Parties and the Privacy Commissioner of Canada in access to information and privacy matters. She recently appeared before the Supreme Court of Canada on behalf of the Commissioner of Official Languages in Lavigne v. The Commissioner of Official Languages in which the Court is examining the scope of section 22(1)(b) of the Privacy Act [section 16(1)(c) of the Access to Information Act] and the interface between the disclosure requirements of the Privacy Act and the confidentiality requirements of the Pravacy Act and the confidentiality requirements imposed on the Commissioner of Official Languages when conducting an investigation; and on behalf of CSIS in Ruby v. the Solicitor General in which the Court is considering whether the special provisions for in camera and ex parte hearing in the Privacy Act violate section 2(b) or 7 of the Charter. She is a co-author of The Law of Privacy in Canada (Carswell, 2000), and is a frequent speaker on access to information and privacy issues.

 

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Last Updated: 2002-05-31
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