Report 27 - Access to Information Review Task Force

MODELS FOR A COMPLAINT/REDRESS SYSTEM, BASED ON FEATURES FOUND IN OTHER ACCESS TO INFORMATION JURISDICTIONS

PART II- EXAMINATION OF STATUTES OF OTHER JURISDICTIONS

THE U.S. MODEL

PRELIMINARY COMMENTS:

The U.S. adopted its FOI legislation in 1966. It has since looked at the Information Commissioner approach but has not adopted it, preferring to let the parties self-determine the result through the Courts. Even if Canada retains the office of the Information Commissioner, it is nevertheless worth looking at the U.S. Model from the following perspectives:

1. Introduce an internal appeal process within the government institution concerned [CF section 552(a)(6)(A)]:

In the U.S., each agency has an appeal unit different from the unit that processed the request. The Requestor, following receipt of the decision by the Agency, has the right to appeal to the Head of the Agency. The appeal unit then has 20 days to process the appeal and is deemed to have refused to disclose whatever it does not release within that time. The requestor may then go to court, but not before.

• Cost - More people would be required in the Agency;
  
• Effectiveness - More information would be released during the internal appeal process. It should be noted that there are hundreds of cases filed each year in the U.S. Courts but that the vast majority are settled before a hearing is held. Note too that, if adopted, the U.S. approach would cut out review by the Commissioner.
  

Since the Commissioner is to remain part of the review process, a variation on the U.S. approach could be adopted by amending the Act so that;

• The requestor could use the complaint process that exists, or complain subject to an appeal to the Head of the institution;
  
• If the latter approach was taken, the complaint would be in limbo (suspended) while the internal appeal process (say 20 days) was extant. If the requestor was happy (and so notified the Commissioner) the complaint would be withdrawn nunc pro tunc, otherwise the complaint would continue;
  
• The internal appeal could be structured so that the decision would have to be taken by a more senior officer in the department. Thus, it would apply only where the first decision was not taken by the Head.
  
• Could be seen as a delay by those who use Act, but gives needed time to Department;
  
• Would be carrot for Departments especially if there was no record of complaint in those instances where the requestor was satisfied and there was no actual investigation by the Commissioner;
  
• Should see more information released/cases processed without actual investigations by the Commissioner;
  
• No added cost of an appeal unit.
  

2. ADOPT SOME U.S. PROCEDURES TO ENCOURAGE FAIRER PROCESSING OF ATIP REQUESTS BY:

Amend the Act to give to government institutions the right to aggregate (into one) multiple requests by the same Requestor, or multiple Requestors, when they really relate to a single matter. (552(a)(6)(B)(i))

• Would eliminate multiple requests which would give undue fee advantages to Requestor, cause many delays in institutions and increase costs;
  
• Would permit institution to avoid multiple delay complaints and would often extend the time for processing the merged single request;
  
• Would make process fairer and reduce workload/need to hire more staff - fairer to taxpayer. Some users of the Act would cry foul but with no real merit since this is only removing a loophole in the Act;

Amend the Act/Regulations to set out specific charges for fees in those instances where charges do not presently exist and define clearly the circumstances under which fee waivers will be allowed.

The Act could be amended to allow complaints on these matters to go to Court after review by the Information Commissioner (i.e. make them deemed refusals) or the Commissioner's Decision could be final and binding.

• Going to Court would be fairer even if the burden was on the institution;
  
• The Court could set some standards as to what were reasonable fees/fee waiver principles;
  
• Letting the Information Commissioner have final and binding Decisions could well lead to judicial review applications if the Commissioner was truly unfair in his/her Decision.
  

THE U.K. MODEL

As a general observation, it should be noted that Great Britain gives strong powers to the Information Commissioner and spells the powers out, but balances them off with the creation of an Information Tribunal to which to appeal.

Education and audit roles:

The U.K. Commissioner would appear to have a very central role in the administration of its legislation. Of key importance are the duties (see sections 47-48) to:

• educate government institutions;
  
• educate the public; and
  
• carry out audits of how an institution carries out its obligations.
  

During their terms, Federal Commissioners Hansen and Grace both spoke of the need for education of government and the public. Commissioner Grace also saw the need for and instituted the practice of carrying out, on consent, informal audits of Departmental ATIA operations. His office would then issue reports which appear to have been well received and to have assisted Departments in their future operations.

Provided it could be done so as not to undermine the roles of either the Commissioner or the departments, consideration could be given to giving to the Commissioner a role similar to that in the U.K. This approach could:

• see an improvement in the level of knowledge of the Act throughout the government with a consequent improvement to the administration of the Act;
  
• see an increase in the use of the Act by the general public;
  
• cost money since little is spent on this now; but
  
• could see a loss of control by Treasury Board/Government since training would reflect the Commissioner's view of the Act. Treasury Board could still have its own training for Government but, in the meantime, the Government would know the Commissioner's philosophy and could then take it into consideration when applying the Act;
  
• Noting how the Auditor General's approach has evolved over the years and become less confrontational, such an audit process would help Departments but might also help the Commissioner to understand the problems faced by Departments and be more reasonable in his approach;
  
• this continuous interface might help to reduce the adversarial confrontational attitude too often displayed by the Commissioner's Office.
  

The investigatory process:

Consideration should be given to a re-examination of the powers and role of the Commissioner in the conduct of investigations. Too often there have been disputes over the right to see records. The U.K. legislation removes the problem concerning solicitor client privilege. In the U.K., there is no right (for the Commissioner) to see records subject to solicitor client privilege during the course of an investigation where those records relate to the U.K. Act or proceedings before the U.K. Commissioner. Consideration should be given to adopting this approach in Canada.

Right to see records:

Disputes arise from time to time over the Commissioner's right to see records for the purpose of an investigation. The three most common instances are:

• the records are not relevant to the request;
  
• the records are not under the control of the government institution; and/or
  
• the records are Cabinet confidences.
  

Given the wording of the Act re investigation powers, the Commissioner has taken the confrontational approach. Since the concept of "relevance" is not specified in the ATIA, the Commissioner is able to argue... show us the records and we will decide if they are relevant. An amendment narrowing the powers in this regard would be booed by the skeptics but might save many arguments.

The same could be said for the case where the Department claims the records are outside of the Act because they are not under its control - e.g. ministerial records. Confrontation has been the order of the day. An amendment narrowing the Commissioner's powers might be considered.

The U.K. legislation does not give to its Commissioner the wide ranging search powers that are in the ATIA. Consideration should be given to taking the U.K. approach - let the Commissioner go to Court to convince a judge that the records are really necessary. Some could argue that this would lead to a more adversarial relationship but that remains to be seen. Moreover, it would not have any major cost consequences.

Appeal tribunal:

Under the U.K. legislation (Part V Appeals), there is provision for an appeal of the matter to the Information Tribunal with appeals to the High Court only on points of law.

Given that "appeals" under the ATIA are to the Federal Court, which has a very large bench with judges who hear many matters, consideration has to be given to establishing an Information Tribunal or designating a limited number of judges in the Federal Court to hear appeals under the ATIA (and presumably the Privacy Act).

• Specialized judges can deal with cases faster and (with experience) better;
  
• If this approach were adopted, more appeals could be expected - would more judges be required?
  
• A specialized Tribunal may be more effective but there would be an added cost;
  
• If a specialized Tribunal is established, would the number of cases to it increase? Would it diminish role of Commissioner?
  
• a Tribunal would allow for special rules designed to expedite matters and minimize costs to the parties and to the taxpayer;
  
• Would such an approach be welcomed by the Federal Court?
  

THE IRISH ACT

The Irish Act has a number of features which should be considered when looking at the role of the Commissioner under AIA.

Mediation:

The Irish Act specifically contemplates that the Commissioner has a mediation role - CF s.34.7. When mediation is combined with the duty to conclude an investigation within a specific time frame (3 months under the Irish Act), one could expect benefits from this approach, but both features have merit.

• Mediation encourages real communication by the Commissioner with both parties - a role which (it is said) is sometimes ignored by the Commissioner;
  
• Mediation enables the parties to understand the issues - compromises will result - more complaints will be resolved;
  
• Cases tend to drag out in the Commissioner's Office, particularly if they are difficult or voluminous. Should the Commissioner not operate under time constraints just like Ministries? It should be noted that this was one of the recommendations of the Parliamentary Committee flowing from the 1986 review under sub-section 75(2) of the Act. However, if the complaint goes into a mediation mode, it is only reasonable that the time limit on the investigation be suspended since mediations are normally consensual;
  
• If the Commissioner must act quickly (within a time limit), hopefully the emphasis will be on principles and major issues versus nit-picking - the more time you have the more little details you find wrong - is this productive?
  
• Time limits should lead to more cases being accepted by the Commissioner as valid exemptions/more settlements. Moreover, if the Commissioner must operate under time limits, the Commissioner will be more sympathetic to the time limit problems of the departments;
  
• Should be cost effective;
  
• Good due process if the Complainant can be protected.
  

Commissioner to keep institutions under review

Pursuant to section 36 of the Irish Act, the Commissioner may carry out investigations into the practices and procedures (under the Act) of every institution - truly an audit role. The Commissioner may prepare a report of his findings etc. at the end of any investigation and send a copy to the Minister of Finance (cf equivalent to the President of Treasury Board under the Canadian Act) and send a copy to every public body. A copy of any such report would be appended to the Irish Commissioner's Annual Report to Parliament. This provision enables, indeed encourages, the Commissioner to bring important matters to all government bodies concerned and in a timely fashion. It is particularly useful where it is an audit of a systemic problem.

• It is easier to do this than to table a special report to Parliament under the ATIA - easier in the sense that the Commissioner would not in cell likely hood want to send Parliament a Special Report unless it was very important/urgent;
  
• Enables the Commissioner to "educate" the whole audience in a timely cost effective manner if it is published (see below);
  
• Keeps the channels of communication flowing between the Commissioner and the government institutions;
  
• No adverse cost and an effective way of proceeding;
  
• In considering this approach, consideration should be given as to whether any aspect of this should be consensual.

Publish report - section 40(2)

Similarly under the Irish Act, where the Commissioner considers it to be in the public interest, he may publish any such report. This has an immense educational value.

This amendment would enable the Commissioner to advise the general public and special user groups at the same time as the advice was being given to government institutions. This feature carries with it the advantages of the former and, like it, would appear to have no major downside risks, provided the Commissioner did not disclose any information that ought not be disclosed under the Act.

Consultation on guidelines:

In Ireland, the Minister must consult with the Commissioner in connection with the preparation of some, but not all, guidelines. The consultation process in Canada is voluntary and without formality. This should be reconsidered if only to improve relations. At the same time, there should be periodic reviews of such guidelines.

Question of law (s. 34)

The Irish Commissioner may refer a question of law to the High Court during an investigation (and the duty to complete the investigation is postponed pending an answer).

During the course of Access Act investigations, problems (questions of statutory interpretation, or procedure - e.g. the right to see particular records) arise with the Government which cannot be resolved. To date, the Commissioner's solution has been to complete the investigation and go to Court, or to agree (with Justice) to disagree without prejudice to the government's position, all in an adversarial fashion at a cost of time and delay to the investigation.

Proceeding on a point of law is usually a faster and less adversarial method of resolving an honest dispute. It would be more effective and should lead to better relations with the Government.

Publication of commentaries - section 39

The Irish Act encourages the Commissioner to publish commentaries on questions of practical application. This is over and above the right to publish referred to above. Clearly, it recognizes that the Irish Commissioner has a duty to provide guidance on the administration of their Act. It is clear recognition that this guidance is essential to the better administration of the Act.

• Better because Departments will know what the Commissioner has done before in similar circumstances and will remove guesswork for the Departments;
  
• More effective because it puts pressure on the Commissioner to be consistent in his/her position in subsequent cases;
• These publications have one downside - they take time/ people to prepare and keep them up to date. Is this the ounce of prevention that is worth the cure?
  
• These publications carry the risk that the Commissioner will/ will have erred. Surely this risk is always present regardless of whether one publishes?

If the Irish approach is acceptable, consideration could also be given to an advance ruling type of procedure. For example, if during the processing of a request a Department needs a ruling to know how to proceed, the Commissioner might help informally by way of non-binding phone calls. The concern has been that a ruling would pre-empt/pre-judge a potential complaint. The ability to obtain an advance ruling would provide clarity, guidance to the department concerned and, if published, to other departments and users of the Act.

AUSTRALIA

The Australian legislation makes use of three approaches which are worthwhile considering for the purposes of the ATIA.

Internal review

Once the Ministry has made a decision, the requestor has the right to request a review of the decision unless the decision was in fact made by the Head of the institution - as opposed to a delegate. As in the case of the U.S. internal appeal process, the decision must be made internally but by another decision maker.

The right to ask for a review applies only in the instances specified in s.54 of the Australian Act but they are comprehensive.

• As in the U.S. legislation, this allows a fresh look but does not require the establishment of a separate appeal unit;
  
• It is understood that this approach works if only because it enables the department to catch errors/problems made in haste or by inexperienced staff;
  
• More information will often be released;
  
• Fee problems may well get resolved;
  
• Essentially, it gives the opportunity - in a new time frame - to try to avoid a potential dispute;
  
• It has a minimal cost of time and people but the advantages appear worthwhile/good due process/consistent with the philosophy of the Act.
  

Administrative appeals tribunal

Most of the issues which cause problems under the Australian access legislation may be appealed directly to the Administrative Appeals Tribunal. It is not necessary to go through their ombudsman (read Commissioner) process.

As the name implies, the Tribunal has the power to make binding decisions/give directions on many matters but not to the extent of ordering disclosure of information that has been held to be exempt or certified as non-disclosable. These issues are reserved to the jurisdiction of the Court.

The Tribunal, therefore, serves as a mechanism for resolving many disputes in an independent, expert manner where, nominally, the parties could represent themselves. It has the advantage of providing a forum for resolving most matters that do arise in a manner which is final, non-adversarial and non-invasive since there will often have been no investigation. As noted above, it keeps the truly important matters/disputes reserved for the Courts - and has a reputation for efficiency.

There are some appeals (to the Courts) from Tribunal Decisions - on matters of law. It is understood that lawyers often appear before the Tribunal so that the cost of this process, if adopted, would not be nominal. It would be worthwhile considering in Canada by giving the same powers to the Commissioner.

Ombudsman

The Ombudsman for Australia plays a limited role under the Australian access legislation. Pursuant to s.57, anyone may complain to the Ombudsman with respect to actions taken under the Access Act. The Ombudsman may carry out investigations and make recommendations but only in a limited number of cases - i.e. not in those instances where the Administrative Appeal Tribunal or the Court would have jurisdiction.

Nevertheless, the Ombudsman serves a useful purpose. The office becomes involved when there is a systemic problem that should be investigated. The Information Commissioner could fulfill this role.

NEW ZEALAND

The New Zealand National Ombudsman is also its Information Commissioner. Three aspects of the New Zealand legislation could be considered.

Ombudsman fee

There is a fee charged to those who wish to use the services of the Ombudsman to investigate complaints under their access legislation.

Assuming that the charge is either nominal or at least reasonable, the fact of a charge would have the effect of making a user think twice - protection could be inserted to provide for a waiver of the fee in appropriate circumstances. The imposition of a fee would be considered as a negative feature. It is noted that Ontario charges fees now in similar circumstances and has seen fewer complaints, a saving in operating costs and less staff.

Ombudsman recommendation to reconsider

On completion of an investigation, the New Zealand Ombudsman may make recommendations and, if they are not obeyed, an application can be made to the Court to have an order made to enforce them. However, where the exemption is with respect to certain types of information (e.g. national security), the Ombudsman may only recommend that the matter be reconsidered. The fact that a decision must be reconsidered could well result in a positive result. Consideration could be given to amending the ATIA to give the Commissioner the power to make binding orders as in New Zealand. From the New Zealand experience, they have had no problems with their Commissioners abusing these powers. Giving power brings with it accountability and the need for careful consideration before using that power. The risks of this feature may well be overstated.

Consultations with the privacy Commissioner

The New Zealand legislation specifically calls upon the Ombudsman to consult with the Privacy Commissioner when the complaint deals with privacy matters. It would appear that the purpose of such consultation is to determine whether the complaint is in substance more in the domain of the Privacy Commissioner (than Access) and ought to be transferred to Privacy.

In Canada, it often arises during the investigation of ATIA complaints that Privacy Act matters must be considered. Indeed, it sometimes happens that both offices have the same records under consideration in separate investigations. In Canada, Privacy and Access are in fact separate offices, tension prevails and there is really no formal consultative process. Often, departments are caught in the middle of the dispute and invariably the investigations are delayed. On a number of occasions, there have been public disagreements over interpretation.

Privacy issues are important and should be seen to be dealt with in a consistent fashion. Unless the Information and Privacy functions are to be merged, consideration should be given to a provision which would require such consultations and permit the complaint to be transferred.

It must be recognized that there may well be instances where it is only a portion of a complaint that has Privacy Act concerns. It is, therefore, appropriate to consider partial transfers.

• Transfers or part transfers would be logical and ensure a consistent approach to the treatment of personal information all at no extra (or minimal) cost to the taxpayer;
  
• The downside would be a delay but one which should be minimal and understandable particularly if there was a corresponding duty to notify the Complainant and the Department of the consultation.
  

If it is determined that the (above) transfer process has no merit, then consideration might be given to enable/require Access to consult with Privacy where there is an issue concerning the interpretation of the Privacy Act. Certainly, this could be interpreted as Privacy being paramount but how else does one ensure consistent interpretation without the need for judicial interpretation.

MANITOBA

Under the Manitoba legislation, the role of the Commissioner is carried out by the Ombudsman of Manitoba. Their legislation should be considered for the way they handle three situations.

Third parties

While many of the Manitoba provisions are similar in scope to the ATIA, there is a difference in the treatment of third parties. In the event the Head of an institution decides to release third party information, the third party has the right to complain to the Ombudsman. Following such an investigation and report, if the Head still proposes to disclose, the third party may appeal to the Court. No appeal can be taken to Court by anyone unless the matter has been investigated and reported on by the Ombudsman.

This is clearly something to be considered. Third Parties have been (allegedly) subjected to unfair treatment under the Federal Act in that their problems have not been reviewed by the Commissioner. This process would cure it. The extra costs and delays would appear to be worthwhile. There appears to be no other downside risk.

The ombudsman in court

The appeal (Court) proceedings and the role of the Ombudsman are similar to the ATIA but (section 67) the Ombudsman should become involved in Court only if:

• it is a significant matter of statutory interpretation; or
  
• in the public interest.

Clearly, the Manitoba Legislature expects the Ombudsman to stay out of Court. This is consistent with the general philosophy of an Ombudsman.

It is a non-adversarial common sense amendment which would send a signal but the question would have to be asked whether it would be portrayed as undermining the office of the Commissioner. One would also have to ask if, as worded, such a condition would be enough since the Commissioner always takes the position that when he goes to Court, he is doing so in the public interest.

Role of the ombudsman - generally (s. 49)

It is clear that the Manitoba legislature intended its Ombudsman to take a lead role in promoting the Act and seeing that it works well. The role includes such aspects as:

• conducting audits;
  
• monitoring and ensuring compliance;
  
• informing (educating?) the public about the Act;
  
• receiving comments from the public about the Act;
  
• commenting about the effect on The Access Act of other proposed legislation;
  
• commenting/advising on information/record keeping or failure of departments to assist applicants;
  
• may retain/consult experts and/or do research re purposes of Act.

Clearly the Manitoba legislature recognizes that the mandate of the Ombudsman is much greater than that of an investigator/enforcer. There is a cost factor but everything else seems positive.

ALBERTA

Some aspects of the Alberta legislation are noteworthy because they have a bearing on the role of its Information and Privacy Commissioner and the statute's appeal process - the process is one in which the Commissioner has a sweeping role with broad general powers BUT both the conduct of and the orders of the Commissioner are themselves subject to review (see below). It should also be noted that the Commissioner is also the Ethics Commissioner for the Province.

Although the exemptions seem more discretionary and harms test related, the following should be noted:

1. Departments have the duty to assist Requestors;
   
2. Departments may ask the Commissioner to have a request declared frivolous (s.53);
   
3. Departments must ask the Commissioner for permission to extend processing time over 30 days. [This leads to the development of an efficient communication link between Departments and the Commissioner assists in the administration of the Act and necessarily results in fewer complaints about delays.];
   
4. Third parties may complain to the Commissioner;
   
5. Commissioner may refuse a complaint where it has been previously investigated;
   
6. The Commissioner is under time constraints - a 90 day limit subject to extension - and the duty to tell all parties when they can anticipate a Decision;
   
7. Department Heads may ask the Commissioner for advice on matters under the Act and this includes advance rulings (s.52);
   
8. The Commissioner has broad sweeping powers relating to the Act (s.51) over and above the power to mediate and/or to investigate complaints. The mandate is to be "...generally responsible for monitoring how the Act is administered to ensure its purposes are achieved." The provision then goes on to specify the pro-active ways in which this might be done including conducting investigations, informing the public, receiving comments from the public, comment on records management, etc.
   

As noted above, the Commissioner is authorized to try to solve complaints through mediation and, if not successful, must investigate and resolve by order - may decide on questions of fact and law - but while the Commissioner's orders are final, they may be reviewed (see below re types of Orders) and are enforceable in Court.

Both the conduct of the Commissioner and the Orders of the Commissioner may be reviewed by an adjudicator (retired judge). (Sections 71-76)

It is also to be noted that parties making representations have the right to counsel but that while investigations may be conducted in private, this is a discretion vested in the Commissioner.

Types of order (s.68)

The Commissioner must dispose of a complaint by making an order - i.e. the Commissioner may:

Re Refusal Decisions:

• order disclosure;
  
• confirm the Head's Decision, or order reconsideration (assuming the Commissioner agrees info is exempt);
  
• order a refusal.

On Other Matters Under the Act:

• require a duty to be performed;
  
• confirm/reduce time extension;
  
• confirm/reduce fees/order refund (including when time limit not met); and
  
• may specify any terms/conditions in such orders.
  

If it is decided to give the ATIA Commissioner order making powers, it should also be considered specifying what orders the Commissioner may issue. There would be fewer arguments over the Commissioner's powers AND it could also serve as a constraint on a Commissioner who might want to get too zealous.

The Commissioner, while powerful, is not free from scrutiny as evidenced by:

• s.69 - No appeals of an Order;
  
• s.70 - Orders subject to applications for judicial review;
  
• s.71 - Complaints about Commissioner (but not orders) may be adjudicated;
  
• s.72 - Right to ask for review of Decision or conduct of
  Commissioner.

Clearly, the Alberta legislation has created a powerful Commissioner who is expected to have a great influence on the administration of their legislation. Again, the results have shown that the confidence was well placed as the Commissioner has been most circumspect in exercising the powers in a responsible fashion.

ONTARIO

To appreciate the redress/appeal scheme under the Ontario Act, it is important to understand the framework in which its Commissioner functions.

Ontario has an Information and Privacy Commissioner (no public fights over personal information) in a statutory framework which sees:

• more discretionary exemptions than in the ATIA;
  
• a public interest override power which applies to numerous provisions;
  
• the Commissioner is not only able to see Cabinet documents but those records are subject to the Act and can be disclosed under prescribed circumstances.

The Ontario Commissioner has the power to dismiss a complaint which relates to the existence (records can't be found) of records. Where the notice of complaint does not present a reasonable basis to believe the records do exist, the Commissioner may dismiss the complaint.

The Commissioner is given two ways to investigate a complaint and may choose either or both. The Commissioner may:

• mediate to try to effect a settlement; and/or
  
• conduct an inquiry.

It is to be noted that Ontario charges a fee where a complaint is to be filed with the Commissioner. This process was initiated a few years after the Act came into force and the result was a drop in the volume of complaints and a reduction in the Commissioner's staff.

It is the duty of the Ontario Commissioner to dispose of all complaints and he has the authority to make orders. It is to be noted that in the early years there were a reasonable number of certiorari applications to the Ontario Court as a result of those orders and in some cases the Commissioner's orders were overturned on the grounds of excess of jurisdiction. The number of certiorari applications has diminished in recent years.

It is interesting as well to note that while - in Ontario - exempt information may be disclosed if there is a public interest override, disclosure in the public interest is a rarity - i.e. neither the Heads of Institutions nor the Commissioner appear to use this power to justify disclosure. Nominally, this appears to be a sensible tool to give the Commissioner but, as is evidenced by a similar, narrower power in 20(6) of the Federal Act, there is a reluctance to use it. Is it because Parliament needs to give some guidance as to meaning and when to use it?

The only right of appeal to the Courts in Ontario applies in the case of third parties who want to block the Decision by the Head of an Institution to disclose information relating to them.

Again, experience has shown that those to whom power is given exercise that power almost always in a careful and judicious manner. Certainly, there may be honest errors, but then that is being human.

BRITISH COLUMBIA

The British Columbia legislation followed on the heels of Alberta and seems to have mirrored its legislation in many respects. Nevertheless, it is worthwhile noting the following:

Third parties:

Third parties are accorded the same rights as requestors in that they are entitled to:

• complain re proposed disclosure (s.52);
  
• ask for a review (s.53); and
  
• ask for an adjudication (s.63).

Complaint process:

Complaints may be mediated but if not successful, must be investigated. As part of the review (investigation process), the Commissioner has the right to notify "any other person that the Commissioner considers appropriate". NOTE: The British Columbia Commissioner has used this provision to notify special groups who are interested in access where he felt they could make a contribution to the matters under investigation - i.e. because they bring expertise to the issue. He has also held Hearings - taking precautions to safeguard relevant information/records, thereby taking advantage of the discretion to hold hearings and to hold them in public. It can be very useful to a decision maker to have someone contribute to a matter because of the additional expertise they bring to the table!

General powers of the Commissioner - s.42 - are similar to the Alberta legislation, but may tell Heads to disregard unreasonable repetitious/systemic requests (s.43). This has merit if the Commissioner is to be given the power to make binding decisions of this nature.

The time limit to complete an investigation is 90 days.

Orders:

Types of orders specified as in Alberta. Final orders are subject to judicial review.

Because the office of the Commissioner is subject to the Act, the operations of the Commissioner and his office may be scrutinized by an adjudicator who can do essentially what the Commissioner could do.

Essentially, the redress/appeal process in British Columbia is similar to that of Alberta and the features have the same relative merits.

It is, however, to be noted that by making the Commissioner's Office subject to review, this introduces another strong element to encourage responsible conduct on the part of the Commissioner.

QUEBEC ACT

The Quebec legislation has created a Commission of five members - any one of whom may act on behalf of the Commission. The Commission is responsible for monitoring the performance and effectiveness of the Act, but its main access role is to hear (complaints) requests for review on a range of matters similar to the role in ATIA matters.

It holds hearings and makes decisions but mediation of its request for review is a substantive portion of its work. Its orders are final on questions of fact and enforceable as judgments of the Superior Court.

Any interested party may appeal the decision on a question of law but only with leave. If granted, the decision of that Court is final.

Government may postpone

The government, on taking the prescribed steps, may postpone the execution of any Commission order - the postponement is without limit and so long as the postponement order is in effect, that subject matter cannot be dealt with by anyone under the Act.

Commission a tribunal

The Commission is very much a Tribunal designed to hear and adjudicate on problems but would appear to play a limited role in the administration of the Act.

Its investigations are more objective and less confrontational than at the Federal level. It primarily receives representations from the parties, holds hearings and then makes decisions based on those representations - very little in the way of investigations. Because it attempts to mediate, it is understood many cases settle even on the doorstep of the hearing.

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