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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

PART III - PROBLEM AREAS IN THE CURRENT ACCESS ACT

This paper is based upon the premise that the current version of the AIA may be considered as a valid model, provided any problems that impinge upon the redress/appeal process are identified. The perceived problems in the role of the Commissioner and the appeal process have been addressed earlier in this paper; however, the following are worth noting (again in some cases):

Section 9 - Notices of extension:

Pursuant to the Act, notices of extension of over 30 days are to be sent to the Commissioner. However, the Act is silent as to what action if any the Commissioner should/may take. Complaints concerning delays and time extensions are very common. Notice of extensions may indicate a systemic problem. Perhaps the Commissioner should be given a mandate concerning these notices.

Section 11 - Fee waivers:

The lack of fee waiver criteria in the Act or Regulations or in Guidelines and the process for determining same continues to cause problems for Heads of Departments and the Commissioner. This situation leads to complaints. It is suggested that this situation be corrected.

Section 23 - Solicitor client privilege:

Whether the Commissioner has/should have the right to see certain records, particularly legal opinions on the complaint being investigated has always been a problem area under the Act. Confrontations occur and the problem still persists. As noted above, the U.K. Act has solved this problem by making it clear that an authority is not required to provide these records to the Commissioner, such an amendment might be considered for the Access Act.

Section 30 - Investigations:

The Commissioners have/will only receive(d) complaints from Requestors. Complaints from third parties have always been refused. Should they be able to complain under the Act? As noted above, other jurisdictions permit such complaints. It is suggested that such an amendment should be considered.

Section 35 - Investigation process:

The issue of a witness' right to counsel during the investigation of a complaint is sometimes troublesome and causes unnecessary confrontation. It tends to increase formality and emphasizes the adversarial aspect of the investigations. Perhaps procedures for investigations should be established.

Section 35 - Investigations in private:

Arguments have been raised that you cannot make proper representations if you are not present when the other person is making their case. Section 35 as worded requires investigations to be conducted in private but confidentiality can be maintained. The Federal Court hearings are a good example.

Should the Commissioner have the right to permit the other parties to attend? It is permitted in some jurisdictions because it often leads to settlements. It would be helpful in mediations, though it is recognized that shuttle diplomacy is viable when the parties are at a distance.

Section 36 - Powers of investigation:

It has been argued that the Commissioner's powers are too broad and can lead to unfairness if not handled properly. E.g. - Should the Commissioner have the power to examine any official or just those clearly involved?

Should there be limits on the Commissioner's right to see ministerial records in order to determine if they are subject to the Act? This has been a troublesome area and is dealt with elsewhere in this report.

Should there be an express limit on the right of the Commissioner to see only records relevant to the matter? This has led to problems.

Section 37 - Commissioner's finding:

The Commissioner is an Ombudsman who can conduct investigations but make only recommendations! Should the mandate be broadened and give the Commissioner the power to make binding decisions on some or all of the matters that fall within his/her purview.

Section 65 - Commissioner's conduct:

Should the status of the Commissioner and his/her conduct during the performance of the duties under the Act be the subject of some scrutiny? Alberta and B.C. provide for this in their statutes by making the Office subject to the Act and the Commissioner's conduct subject to independent review.

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PART IV - COMPARATIVE MODELS

I The model approach

For the purposes of this Project, five models have been chosen, but in the absence of objective standards/criteria, there could have been fewer or more. One of those models is the status quo - i.e. no significant changes in the role of the Commissioner or the complaint process - under the current Act.

The remaining four models assume changes - changes to both other provisions of the Act, and to the role and process of the Commissioner. Depending upon the options chosen and the perspective of the reader, it could be said that some models would weaken and some would strengthen the office/role of the Commissioner.

It must be noted that the primary purpose of the models in this paper is to illustrate how features from other ATIA legislation may be used/grouped to effect the redress process and the role of the Commissioner. None necessarily reflect the views or preferences of the author.

II The relative merits

The features and models identified have relative merits. In some cases, where the merits are self-evident, no comments are made. Below is a list of those merits and the meanings ascribed to them.

It should be noted that, for the purpose of assessing the relative merits of a feature or a model, it was assumed that the Commissioner will adopt a middle of the road attitude - i.e. not overly aggressive or adversarial. This assumption is, in some instances, based on the experience shown by similar features in other jurisdictions.

To assess the relative merits of either the models or the features of any model, the terms used and their meanings are as follows:

1. Cost:

Means an increased cost by virtue of staff needs/changes, physical, or other direct or indirect costs to the government, applicants, third parties and other persons involved. It includes also the sense that the system of access will operate less efficiently if the proposal is accepted.

Where the feature/model, if adopted, would lead to a cost saving, it is either assumed that was self evident or it is noted accordingly.

2. Governmental implications:

Means that Canada's relations with other governments could be effected adversely - e.g. the National interest would be effected.

3. Due process/fairness:

Means that, if implemented, there would be a real or potential problem re rules of natural justice, etc.

4.Public confidence in the system (public credibility):

Means that, if implemented, the general public's opinion of (and confidence in) the Access to Information Act and the system or the Office of the Commissioner could be effected.

5. Public awareness /knowledge:

Means that, if implemented, the general public's awareness of, knowledge about and/or use of the AIA will be effected.

6. Adversarial nature of proceeding:

Means that, if implemented, the adversarial relationship between the Commissioner and any other party to the proceedings will be effected.

7. Value to the system/effectiveness/speed:

Means that, if implemented, the system itself will become more (or less) effective - i.e. a net added (subtracted) value to the system as a whole. It could mean speeding up the system.

8. Accountability:

Means that, if the option is implemented, it would make the Commissioner more/less accountable.

9. Discretion:

Means that, if the option is implemented, it would give/take away the right of the person concerned to substitute his/her decision for that of the original decision maker.⁴

Options for change

The five models chosen are designed to show the range of available options in the role of Information Commissioner and in the redress process based on examples taken from the ATIA legislation in other jurisdictions.

The models start with the status quo - the current Act - and follow with four models of which two focus on an educational role while the other two focus on the powers of the Commissioner. It should be noted that in some instances where features have been commented on (and their relative merits identified) elsewhere, those remarks have not been repeated in the models.

To decide whether to change the role of the Commissioner or the Federal Court under the current Act, one must consider how the redress system works. The system is also described elsewhere in this paper and the provisions of the Act are set out in the status quo model which follows.

If a decision is made to amend the redress process (but retaining the Commissioner as a principal player), the key options are:

To have some/all of the process matters decided by the Commissioner - if yes, would there be an appeal to the Federal Court - on what basis - i.e. de novo or on a question of law only;
To expand section 41 and have some or all of the process matters appealed to the Federal Court as per the current procedure;
To vary the powers of the Court under current section 41;
To effectively make the Commissioner a Tribunal with the power to decide on both on all matters, leaving the role of the Court to hear appeals on questions of law only;
To establish a Tribunal to hear appeals from the Commissioner with appeals to Federal Court on matters of law only.

THE STATUS QUO MODEL

What follows are the basic elements under the AIA of the role of the Commissioner and in the Appeal Process in the Federal Court.

COMMISSIONER:

Section 9: Receives notices of extension over 30 days.

Section 30: Investigates Complaints (refusals, fees, time extensions, language access, alternative format access re section 5 documents, or other matter relating to requesting or obtaining access) by requestor or agent.
May self initiate if reasonable grounds.

Section 31: May decide to receive oral complaint.

Sections 32-36: Must conduct investigations - subject to what Act says may determine procedure(in practice tries to mediate a resolution).
Section 37: Must make a finding as to whether complaint well-founded may make appropriate recommendations and ask Head to report back saying what he did/will do in response to recommendation.

Section 38: Must report annually to Parliament on activities.

Section 39: May do special report to Parliament on any urgent matter within scope of power, duties and functions - if relates to a completed complaint.

Section 42: May go to Federal Court to have Head's refusal to disclose reviewed (de novo) if requestor consents; or
May act as lawyer for requestor in Court; or
May appear as a party (with Court's permission) in an application brought by requestor (above) or by a third party under section 44.

Section 44: Third party may apply to court to have Head's decision (to disclose third party information) reviewed.

Sections 49/50: In simple terms, depending on the situation, the judge can order one of the following:

The Head was wrong - say why - send the matter back to be re-done properly;
The Head was right, the information must be exempted and the judge confirms the Head's Decision;
The Head was wrong, the information is not exempt, it must be disclosed and issues an order accordingly.

MODEL A1

This Model uses the current role of the Commissioner/Court (the Status Quo Model) as the starting point, gives it more definition, adds features to speed up the process and recognizes that education is key to the Act.

This model starts with the status quo model as the base and it would be amended as follows:

Education:	Strong mandate to educate public.
Internal appeal	Incorporate the U.S./Australian internal appeal procedure (supra) whereby requestor may ask the decision to be looked at again by a different decision maker - requestor cannot complain to Commissioner until this process is done.
Time limit (section 30):	Require Commissioner to complete investigation in specific time - no extensions.
Powers of Commissione	Restrict right to see only relevant records, records under control of institution. If Head certifies not relevant or not under control, then Commissioner may not have access and Certificate provided by the Head not appealable;If Commissioner wants a subpoena, he must apply to Court; and Restrict right of entry to Government Institutions only.
Sestion 25:	Amend to permit Head to refuse to disclose not relevant information - i.e. sever it as N/A.
Fee:	Payable by person to file complaint (with possibility of fee waiver).
Personal information:	Require Commissioner to consult Privacy Commissioner to obtain guidance on interpretation of Privacy Act; and to determine whether a complaint/or part is more properly Privacy matter.
Federal court:	Commissioner may only appear as party with leave if Court satisfied there was a significant matter of statutory interpretation and it would be in the public interest.
Relative merits	Same generally as Model A2, but puts restrictions on the Commissioner. In the short run, less information might be disclosed under A1 than the status quo, but operation of the Act should become more efficient as education mandate takes effect.

MODEL A2

This model again uses the Status Quo Model as the starting point but is in between it and Model A1. It contains options which define the Commissioner's role and the redress process a bit more than at present and gives the Commissioner a minor education role.

This model is again based on the status quo model but should be compared with model A1 as follows:

Education:	Give Commissioner some role in education.
Internal appeal	Same as Model A1.
Time limit:	Same as Model A1, but enable Commissioner to have extensions where he considers reasonable, provided notice was given to requestor and department.
Powers of Commissioner	Clarify Act to make clear Commissioner has power to see all relevant records under control of institution (define "relevant" and "control").
Fee:	Same as Model A1.
Personal information:	Where Commissioner is satisfied there is a significant matter of statutory interpretation of Privacy Act, Commissioner may consult with Privacy Commissioner.
Federal court:	Same as Model A1 however, delete requirement for leave and require Commissioner to be satisfied that there is a significant matter of statutory interpretation and that participation would be in the public interest.
Relative merits	Public better informed; System more efficient in part - internal appeal process and less disputes (fees); Less information might be disclosed in short term; Less adversarial; Net cost saving probable; Public confidence in system down in short term; Diminished value in system; Perhaps a speedier system; Given that it is the duty of the Commissioner to uphold the principles of Act, the Commissioner will have to find ways through the education mandate to accomplish this goal.

MODEL B1

Model B1 expands the role of the Commissioner in two ways by giving an even broader mandate in education and some order making powers.

This model starts with the status quo model and then is amended as follows:

Education:	Mandate to educate public and to foster and encourage public's use of Act and to conduct research.
Publish:	Authorize Commissioner to publish such practice notes and commentaries (based on complaints processed) as will illustrate Commissioner's position under the Act.
Policy:	Mandate to review legislative developments in relation to potential effect on the Act and make appropriate representations.
Monitor:	Mandate to review operation of the Act, particularly the matters designated under section 5 (publications), section 70 (designated Head responsibilities) and section 71 (manuals/facilities); and mandate to monitor Schedules I and II and make such recommendations to the designated Head as may be appropriate.
Section 9:	Mandate to monitor extension notices and authorize such observations as appropriate.
Processing requests:	Commissioner may authorize Head to aggregate multiple or systemic requests into one. Commissioner may authorize Head to dismiss request which is unreasonable or inconsistent with Act; or which is frivolous or vexatious.
Complaints (section 30):	Third Parties to have right to complain. Re power to self initiate complaint - remove reasonable grounds limitation, and broaden to include right to audit anything related to Act including institutional practices or anything to do with compliance under the Act.
Conduct of investigation:	Power to receive representations from any person Commissioner believes would be interested in the matter under investigation; Power to refer questions of law to court during investigation.
Power to make orders on investigations:	Generally, the Commissioner would be able to make orders on all complaints (as opposed to right to make recommendations) re such things as fees, refunds/ waivers, time limits, delays, deemed refusals, language, format, etc., but would not include the power to order (directly or indirectly) the disclosure of any records or information that had been withheld. BUT NOTE: In case of discretionary exemptions - add power to order Head to reconsider decision to refuse to disclose but only where Commissioner agrees that Head has right to exempt. The above includes the power to order such things as: language/ alternative format disclosures only where Commissioner considers cost to be reasonable; to confirm or reduce the extension of a time limit; to determine appropriate fees and order refunds; to determine whether fees should be waived; to require that a duty imposed by the Act be performed.
Orders binding	In this model, it is assumed that such orders are final and binding on the facts but are subject to appeal on a question of law.
Federal court:	Role of Court would be amended to reflect the above, but otherwise would stay essentially the same as under the current Act for refusals.
Relative merits:	This model would appear to be a substantial vote of confidence in the role of the Commissioner, but would require more consideration before action; System should become more efficient/fairer; Discretion shifted to Commissioner as is accountability and pressure to perform; Hopefully, this would lead to a less adversarial relationship; Since the Commissioner would have more power, it might be open to abuse but experience in other jurisdictions shows otherwise; The public's confidence in the system could go up; The public awareness of the Act should improve as should the public service knowledge; Costs might not go up because of diminished complaints; The implications for the Government would be great - a major turn over in control in process matters; The implications for the Federal Court could be a bit more work.

MODEL B2

This Model would create a role for the Commissioner that is more expansive than B1. The Commissioner would still be an investigator but with all the powers of a Tribunal.

This model starts with the status quo model as amended by B1 but then is further amended as follows:

Education:	Same as B1 but add may receive comments from the public about the Act. Add the duty to collaborate with the designated Minister to foster and encourage practices consistent with the Act and encourage the release of more information to the public outside of the Act and to assist in training personnel.
Publish:	Same as B1 but mandate Commissioner to publish to encourage use and effective administration of Act; and mandate to produce commentaries on any aspect of the Act.
Policy:	Same as B1 but add that the Commissioner is to be consulted on matters which might effect the operation of the Act. Conduct research on matters relating to the Act and its improvement and engage experts in connection therewith.
Monitor:	Same as B1, but add general power to monitor all aspects of Act; to conduct audits; re sections 5 and 70, require the designated Head to consult Commissioner re changes; to consult re changes to Schedule I or II; and to make recommendations re I and II as considered appropriate.
Section 9:	Same as B1 but require Commissioner to publish statistics and duty to make recommendations as appropriate.
Processing problems	Same as B1 but add Commissioner may authorize time extensions; and Commissioner may determine whether disclosure in alternative format or disclosure in other language would be appropriate in the circumstances.
Complaints:	Same as B1 but add any other party interested in a matter relating to the requesting or obtaining of information under the Act has right to complain. Same as B1 re power to self initiate, but add power to report findings as appropriate to all institutions and power to publish report.
Conduct of investigation	Same as B1, but add power to hold hearings (provided duty to safeguard information, etc.)
Mediation:	Authorize Commissioner to mediate complaint but duty to investigate if not successful. Commissioner to have power to engage experts to provide assistance on any aspect of performance of duties, etc. under Act.
Power to make orders on investigations:	Same as powers of B1 but adds the following: On a self initiated complaint, Commissioner has power to require the Heads/Designated Head to carry out specific duties etc. under the Act. Re power to order process matters add power to penalize (e.g. ordering refund and/or service without charge) the Department for failure to comply with the Act; Re refusals give Commissioner the power to order disclosure in all circumstances; i.e. Commissioner could substitute his own decision for that of Head or order Head to reconsider even if Head had concluded some or all of the information was exempt;⁵
Appeal to federal court:	The appeal under this model would be by way of certiorari - on questions of law only, but add the power to substitute its own decision for that of the Head.
Relative merits:	By virtue of the fact that this builds on B1, the same relative merits apply but it would probably be more effective and have fewer complaints and, because of this, the costs might not stay about the same as for B1.⁶

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ABOUT THE AUTHOR

Paul Tetro

Paul Tetro worked continuously over a 14 year period with Canada's Access to Information Act. Initially, during the year prior to the Act's promulgation, he assisted in the implementation of the Act. Subsequently, as the Senior Legal Advisor, he advised the Foreign Investment Review Agency on legal issues under the Act. Finally, from 1985 until his retirement in 1997, he was General Counsel to the Information Commissioner of Canada. During that time, he advised Commissioners Inger Hansen and John Grace.

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The 1977 Green Paper supra page 16 considered that one of the criteria for the review process should be consistency with the doctrine of ministerial responsibility. The concept of "discretion" is considered to be equivalent for the purposes of this paper.
This is a broader power than the Court has under the Act. It must be remembered that the Act identifies a number of circumstances where information in records must not be disclosed; must not be disclosed if a harms test is met; or may be disclosed (under certain circumstances).Accordingly, in considering the merits of such sweeping powers, consideration must be given to whether there should be any limitations on types of information on which the Commissioner will be able to rule (this model has no such limits); and the Commissioner is to have the power to rule on whether information has been properly exempted and, if not, to substitute his opinion even to ordering it to be disclosed (this model gives that power), or the Commissioner could send the matter back to the Head for re-determination according to a set of principles determined by the Commissioner.
The implications of this approach for the Government could not be greater - it would be seen as giving up virtual control to the Commissioner and the Court. Would there be a perception of too much power in the Commissioner? - It must be remembered that the Act deals with more than Government information, it comes in from third parties, other governments and individuals. Would it be considered a fair system? Is there too much discretion vested in the Commissioner and in the Court? Where does accountability lie? -the Courts are not accountable nor is the Commissioner given the independence/term of his statutory mandate. Under some FOI legislation where the given to a "Commissioner" the more responsible that person will be.

Last Updated: 2001-08-19

Important Notices