Access to Information: Making it Work for Canadians

Report of the Access to Information Review Task Force

Chapter 6 – Ensuring Compliance: The Redress Process

The Access to Information Act provides for a two-tiered redress process. Requesters have the right to complain to the Information Commissioner about

any aspect of a government institution’s handling of their request. The Commissioner, an independent ombudsman, investigates complaints and makes recommendations to government institutions. If the government institution does not disclose information as recommended by the Information Commissioner, the complainant or the Information Commissioner with the complainant’s consent, can seek judicial review in Federal Court. In practice, judicial reviews are rare. For example in 2000-2001, 1,337 complaints were investigated by the Information Commissioner. Only two resulted in applications to the Federal Court by the Commissioner.

The high level of success in resolving complaints with government institutions

	Fewer than 10 per cent of requests result in complaints initiated either by requesters, or by the Information Commissioner. And 99.9 per cent of complaints get resolved without resorting to the courts.

reflects positively on the effectiveness of the oversight model in place. On the other hand, in recent years, the relations between the Office of the Information Commissioner (OIC) and the government have become increasingly strained and there are now a number of proceedings before the courts dealing with the scope of the Commissioner’s powers and with questions of procedural fairness.¹ This suggests that there are serious issues to be addressed.

First, we must state at the outset that we believe Parliament made a wise decision in creating the Information Commissioner as an independent body to review complaints under the Act. Successive Information Commissioners have been instrumental in furthering the objectives of the Act and in keeping access issues on the parliamentary, governmental and public radar screens. The Office of the Information Commissioner is an important Canadian institution that should be supported, and equipped with the powers and resources needed to meet the challenges of the future.

Secondly, we need to acknowledge that the role of Information Commissioner is a difficult one. The Commissioner is expected to be in turn a watchdog, an enforcer of rights, an educator, a mediator, a cheerleader for good practices, an advocate for access and an agent of change. The Office deals with extremely sensitive government and third party information, so to be effective, the Commissioner has to have the trust of the government, and of third parties who supply information to government and of Canadians making requests under the Act. Differences of views and tensions are inevitable in the redress process. However, we believe that, managed in a wise and mature way, these can be dynamic tensions that contribute to the development of our democratic life.

Thirdly, we note a significant “perception gap” between the Office of the Information Commissioner, on the one hand, and government officials, including access to information officials, on the other. The Commissioner’s Office, for example, is of the view that the investigation process functions well. Access officials, however, point to what they consider to be fundamental problems with the process. The Commissioner’s Office is of the view that current tensions relate only to a very few high-profile cases. Government officials express more generalized concerns about the fairness and consistency of the investigative process and talk of a breakdown in trust. It is clear that attitudes and behaviours have been shaped by these different perceptions of reality.

We will examine four aspects of the redress regime: the rules governing the right to complain; the mandate of the Information Commissioner; the investigation process; and the structural model for the Information Commissioner.

Right to Complain

Administrative Review

Should requesters be required to ask the government institution for an internal review of its decision before making a complaint to the Commissioner? Administrative review mechanisms are found in several jurisdictions abroad, but not in Canada. The reviews are conducted either by a senior manager not involved in the first decision or by a separate unit in the institution, often the Legal Services.

Experience in the United States, Australia and Ireland suggests that an administrative review process results in the release of additional information and fewer formal complaints, because it provides an opportunity for problems to be resolved early and with a minimum of formality. Moreover, it can contribute significantly to organizational learning. Managers conducting the reviews develop a better understanding of the principles of the law and learn to refine their exercise of discretion.

On the other hand, an administrative review would add another step in the review process and may lead to more delay. It could erode the authority of the institution’s Access Coordinator, whose decisions or advice would be subject to second-guessing by the officials conducting the review. Finally, it would impose an unwelcome additional burden on the time of busy senior managers.

In our view, these disadvantages are significant, and outweigh the benefits of an administrative review process for the federal access regime. However, we believe that some of the benefits of an internal review process could be realized by adopting three administrative practices:

• improved communications with requesters throughout the processing of the request (further discussed in Chapter 7), including at the time of the response, in order to answer questions and provide explanations;
  
  
• keeping the program officials who provided the information in response to the request informed of decisions on disclosure and involved in the resolution of complaints; and
  
  
• keeping senior management aware of the performance and challenges of the institution regarding ATI (further discussed in Chapter 10).
  

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Right to Complain About Fees

In Chapter 5, we recommended a new fee structure. There is no question that requesters should have the right to complain to the Information Commissioner if they believe their request has been improperly categorized as commercial, or if fees have been improperly assessed under the alternate fee structure. This right is already contained in Section 30 of the Act. It may be worthwhile to amend the Act to make this clearer.

The Act is not clear, however, about whether a complainant has a right to seek review by the Federal Court on a complaint about fees. This is a good opportunity to clarify that a complainant has that right regarding all fee-related issues.

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Time to Complain

Timely complaints are desirable for efficient investigations and early settlement of issues. Section 31 of the Act stipulates that a complaint must be made to the Information Commissioner within one year after the request for information was submitted to the government institution. One year is a disproportionately long time in most cases. It can also be too short since processing some large requests can take more than one year. In such cases, requesters lose the right to complain before they have even received the institution’s response, unless they keep the request alive by going through the motions of submitting an identical request, or the Information Commissioner initiates a complaint later.

We believe the best solution to this problem is to have the complaint period start, not when the request is originally made, but when the action is taken by the government institution that the requester wishes to complain about (for example when the requester receives the government’s response, the notice of extension or the fee estimate). This is the approach taken in most of the jurisdictions that we examined. In our view, a period of 60 days would be appropriate for a requester to make a complaint. However, in some cases, government institutions may not respond to a request within the statutory time limit (i.e. within 30 days or such additional time as may have been claimed), and the requester may not be “notified” of such a deemed refusal. In these cases, the Information Commissioner should have discretion to allow a complaint to be made within a reasonable time.

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Fees to Complain

A growing number of jurisdictions require the payment of a fee to launch a complaint. Experience there suggests that introducing a complaint fee could discourage legitimate complaints. We do not believe that this would be in the public interest.

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Mandate of the Information Commissioner

The Act simply stipulates that the Information Commissioner shall receive, investigate and report on complaints and make annual reports (and, where appropriate, special reports) to Parliament.

Although the Act does not prohibit the Information Commissioner from performing other functions, such as educating the public, neither does it authorize them. This may have led the Office of the Information Commissioner to define itself, at times, solely as an investigative body with strong coercive powers.

By contrast, most Information Commissioners in Canada and abroad, whether ombudsmen or quasi-judicial bodies, have a number of complementary responsibilities explicitly provided in their legislation. This well-rounded mandate allows them to be more effective agents of change and champions for access to information.

We believe that amending the legislation to provide the Commissioner with a positive mandate and a broader set of tools would further the objectives of the Act at the federal level as well.

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¹As of writing this report, there were 29 proceedings before the Federal Court in which 7 distinct procedural issues were being litigated.