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Report 27 - Access to Information Review Task Force
MODELS FOR A COMPLAINT/REDRESS SYSTEM, BASED ON FEATURES FOUND IN OTHER ACCESS
TO INFORMATION JURISDICTIONS
Published: July 2001
Table of Contents
Role of the Information Commissioner
Part2: Statutes of Other Jurisdictions (Analyses and Commentaries)
Part3: Problem Areas in the Current AIA Model
PART I - PRELIMINARY COMMENTS
Canada's Access to Information Act (ATIA or Act) is designed to foster open government by providing a (legal) right of access to records under the control of (Federal) government institutions. Of necessity, the right is limited in a number of ways - ways that are outside of the scope of this paper.
When the Act was in the planning stages, it was recognized that there should be a process designed to enable a review of decisions affecting this right of access to government records. In the 1977 Green Paper1 , it was acknowledged that such a "...review process should ideally have the attributes of public credibility, consistency with Ministerial responsibility, speed, efficiency and minimal cost".
Of the options considered, Parliament chose a two step process. The first step is an Information Commissioner who investigates complaints and has advisory powers. The second step is review by the Federal Court of Canada of decisions made by Federal institutions on the disclosure of information.
Parliament took great care to enshrine the fundamental principles of the Act in sub-section 2(1) which provides as follows:
2. (1)
The purpose of this Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government.2
Aside from a rather brief discussion in the 1977 Green
Paper of the review options, there was no real debate of the relative
merits of the two step review process chosen for the Act and there has
been no debate, discussion or review since the Act was promulgated, other
than the Parliamentary Review stipulated by sub-section 75(2) of the Act.
In that review, there was no real discussion of the merits of the review
process, only a recommendation that the Information Commissioner be given
a 90-day time limit within which to complete investigations. This recommendation
has not been acted on by the Government.
The purpose of this paper is twofold. Firstly, it examines the Access Act review process in the light of access to information legislation of the United States, the United Kingdom, Ireland, Australia and New Zealand as well as Ontario, Quebec, British Columbia, Manitoba and Alberta, to see what concepts might have potential value for Canada. This analysis is based upon the assumption that the Office of the Information Commissioner will remain an integral part of the Act. Secondly, this paper offers alternative models for the review process, which contain features from the other jurisdictions, and identifies the relative merits of those models. However, it makes no recommendations or overall judgements about the models.
Return to Table of Contents
The two step review process
Persons who have problems with respect to requesting or obtaining access to records under the Act are given the right to complain to the Information Commissioner. This is the first step.
The right to complain is very broad. The Commissioner may receive complaints concerning refusals, time delays, fees charged, official language problems, mode of access or generally any matter concerning the use of the Act. The Information Commissioner also has the right to self-initiate a complaint where there are reasonable grounds to do so.
The Commissioner then investigates the complaint, makes a finding (determination of its validity) and, where appropriate, recommends a course of action to be followed. The Head of the government institution may (but is not required) comply with the recommendation - the Commissioner's recommendations are not binding.
The second step of the review process is by the Federal Court of Canada. Unlike the first step which is very broad3, judicial review is restricted to the review of decisions of the Federal institutions on the disclosure of information in records requested under the Act.
Thus, if a person who was refused access to records is still unhappy, an appeal may be made to the Federal Court of Canada to have the decision of the Head of the institution that refused to disclose the records reviewed by the Court. It is a new proceeding - i.e. the review by the Information Commissioner, while a condition precedent, is not part of the Court review.
The review is primarily for the purpose of determining whether the Head of the institution acted properly. While the Court may order records to be disclosed or not to be disclosed, the Court does not have the power to substitute its opinion for that of the Head where the decision to disclose is discretionary
However, where the decision was the disclosure of third party (as opposed to government or personal) information, notwithstanding the objections of the third party, there is no requirement to have that decision (to disclose) reviewed by the Information Commissioner before the matter goes to Court.
It is to be noted that the Information Commissioner has the right to participate in the Federal Court proceedings under certain circumstances.
Role of the information Commissioner
Although the office is not described as such under the Act, it is generally accepted that the role given to the Information Commissioner is that of an Ombudsman. An Ombudsman is an officer appointed by the legislature whose role is to receive and investigate complaints, make findings and, where appropriate, to make recommendations. He is independent and is generally supposed to be an impartial arbiter between government and the complainant. Thus, an Ombudsman may make suggestions that things be changed but may not order them to be done.
As noted above, the Information Commissioner is charged with the responsibility of investigating complaints concerning matters relating to requesting or obtaining access to records under the Act, making findings with respect thereto and where appropriate making recommendations.
To accomplish this goal, the Commissioner is given wide investigatory powers but is required to conduct those investigations under the confidentiality requirements of the Act.
The role requires the Commissioner to interact with many players, namely:
- the government institutions who receive and process requests;
- the people who use the Act;
- the third parties whose information is sometimes the subject matter
of a request;
- the Treasury Board and the Department of Justice - the federal ministries
responsible for the administrative and legal policy of the Act; and
- the Federal Court of Canada which performs judicial reviews under
the Act.
Invariably, the Information Commissioner is caught between opposing views and must find a way to balance the opposing views in an impartial manner to ensure that the integrity of the office will be protected and the trust and confidence of all parties maintained and, above all, that the principles of the Act (cf section 2 supra) will be met.
How does one measure the performance of an Information Commissioner who is but one part of the process? It has been argued that the Commissioner who is successful will work his/her way out of a job. Thus, the volume of complaints may be an indicator of success. The amount of litigation in which the Commissioner is involved may also be an indicator, particularly if the matters at issue relate to the powers of the Commissioner's Office or the way the investigatory process is being carried out.
Another measure may be the extent to which the Commissioner's Office is able to obtain the cooperation of departments or agencies by working with them to help them find ways to improve their performance under the Act.
One thing seems clear, namely, that experience shows that under the current Act, where the Commissioner's role is not spelled out in detail nor limits put on the performance of the task, the personality of the Commissioner has a very real bearing on how well the Commissioner is perceived as doing his/her job. Thus, it seems evident that, if it is desired to have the Commissioner do or not do certain things, one should err on the side of caution and spell it out - i.e. structure the role of the Commissioner in detail.
It is evident that little has been done over the years to establish a sound education program. The mandate of the Commissioner is silent on that point.
The concept of the resolution of complaints through conciliation or mediation
was introduced early on by the Commissioners, notwithstanding the lack
of a statutory mandate for this role. Clearly, it is difficult to mediate
if you are often viewed as an adversary. Perhaps the tendency to emphasize
the investigatory aspect of the role would be moderated if there was a
mediation role specified in the Act.
In the Green Paper (referred to above), it was envisaged that the Commissioner's role would provide consistent recourse for applicants. Consistency in the Commissioner's decisions has been problematic - i.e. lacked consistency. Commissioners have traditionally taken the position that the duty to conduct investigations in private precludes making decisions public. As well, Commissioners have usually refrained from giving detailed reasons for their findings or publishing guidelines both of which would assist government agencies on their administration of the Act. Since the Courts have shown that hearings can be held and confidentiality still be protected and that decisions with reasons can be given, there would appear to be no reason why the Commissioner could not do likewise.
Judicial review
The Act makes provision for recourse to the Federal Court of Canada but only where the issue is the refusal to disclose information to requestors, or where it is a decision to disclose third party information over the objection of the third party. In each instance, it is a review de novo of the decision of the Head of the institution to disclose (or not disclose) the records requested. It is not a review of the Commissioner's work or the Commissioner's finding.
Such reviews have been useful as they have clarified statutory interpretation or the powers of the Commissioner. That being said, the litigation has often led to accusations that the litigation has not produced any change in the way officials applied the Act but has only increased the adversarial relationship between the Commissioner and the government.
For its part, it must be said that the Federal Court recognized that a backlog of cases was building up under the Act, and it broke that log jam by implementing rules which have expedited the disposition of the cases down to a more reasonable level.
Attitude
The experience of the Act to date clearly indicates that attitude is a major element in the effective administration of the Act. The Commissioner's attitude towards enforcement leads to a reaction by Government, clearly demonstrating that confrontation does not work. Equally, departments are still staffed in the main by people who know little or nothing about the Act, let alone understand and are prepared to live in accordance with its principles.
The difference in the attitude of the Department of Justice in the United States is a clear symbol to be admired. If the Canadian Department had that philosophy the Act would be far more effective.
Finally, attitude is affected by knowledge. Knowledge in turn is affected by a sound educational program. Departments, users and the general public all need and deserve a sound continuous educational program. Only in this way will the principles of the Act be adopted in a reasonable manner.
Time and people are key
It is submitted that there are two additional factors that are key to the successful administration of the Act, namely:
- the staff available to do the work; and
- the time available to do the work.
Generally, Departmental ATIP Offices have severe staff constraints and, due to tight time limits and volume of access requests (workload), there is often too little time available to do the work. In such circumstances, it is often impossible to do a proper analysis to determine whether information is exempt (able) and/or should be disclosed. The adage "when in doubt - exempt" became a common practice for co-ordinators. It was the safest course of action. Too often, requests were processed and the information exempted on a shot gun basis (claiming multiple exemptions) with no attempt to sever properly because there was too little time to process it.
Similar rationales applied when estimating the volume of records, the time it will take to process a request, etc. When in doubt, over-estimate - be on the safe side. Too often, fee estimates were higher than necessary and the time extension longer than needed.
When the complaint process starts, again time is the enemy since the Commissioner is under no statutory time limits. The goal there is to take the time to do the task properly. Often, if one looks long enough and hard enough, errors will be found. Thus, with more time and people, the Commissioner is able to find fault with what others have done.
It is unrealistic to think that sufficient departmental staff will be
made available to do the work. However, it would even the playing field
if the Commissioner was given time limits within which to complete an
investigation.
