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Access to Information: Making it Work for Canadians
Report of the Access to Information Review Task Force
In the consultations conducted for this review, we noted a general lack of
A lack of understanding of the intent, scope and limits of ATI legislation among most of those who are affected by it became very clear to us during this consultative roundtable process. Report on Consultations to Review the Access to Information
Act and its Implementation |
understanding of the access to information regime by the public, users and public servants. Obviously, this is an obstacle to the effective use of the Act.
We believe it would be desirable to amend the Act to empower the Commissioner to educate the public about the Access to Information Act. In our view, the Information Commissioner is uniquely positioned to perform this role: the Information Commissioner is already active in the field; has credibility with the public; has a broad view of the Act and its implementation; and has frequent contact with Canadians in the course of his work.
As we will discuss further in Chapter 11, it is important that public servants, especially at the senior level, have a good understanding of the Act, its purpose and its democratic significance. The Office of the Information Commissioner could be an invaluable partner for the Treasury Board Secretariat in educating public servants. We believe that co-operative education endeavours between the Treasury Board Secretariat and the Office of the Information Commissioner would be extremely effective in promoting best practices, achieving greater consistency in access matters and setting the right “tone” for the access community.
It is clear from the experience in other jurisdictions, that an education mandate can be fulfilled without jeopardizing the impartiality and the independence of the Information Commissioner.
6-5 The Task Force recommends that:
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After an investigation, the Information Commissioner reports his findings in writing to the complainant and the institution involved. But to date, the federal
The Information Commissioner should publish decisions which have across-the-government impact, this would provide a narrowing and clarification of some of the questions regarding the processing of requests.
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Information Commissioners have published a relatively small number of case summaries in annual reports (eight in the 2000-2001 Report). In our view, it would be very helpful if such summaries were published more widely and if they were available on the Commissioner’s Web site and indexed by subject matter for easy retrieval. They would be valuable to requesters, institutions and researchers in understanding the Commissioner’s interpretation and application of the Act.
There is no reason to believe that such publication of case summaries is incompatible with the requirement that the Commissioner protect confidential information or with his mandate as an ombudsman. We note that the Nova Scotia Information Review Officer, an ombudsman, publishes findings which have created a body of informal “jurisprudence” that has been influential in determining how the legislation is administered. However, it may require an amendment to Section 64 to ensure that case summaries are covered by the requirement to take precautions.
6-6 The Task Force recommends that:
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Return to Table of ContentsIn my view, it is unfortunate that the Treasury Board Guidelines have not been updated through a collaborative approach including advice and views of the Information Commissioner. As a result, coordinators are left to deal with two sets of rules, the Guidelines and the guidance that can be inferred from the results of the Commissioner’s investigations.
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Legislation in several jurisdictions gives Information Commissioners an advisory function.
We believe that there are many circumstances in which the Treasury Board Secretariat, or a government institution, would benefit from the advice of the Information Commissioner. For example, advice on proposed legislation, regulations, policies or programs that could have an impact on access to information; advice on guidelines; advice on the administration of the Act in an institution; and advice on information management practices, and policies. We believe this advice would be particularly useful to institutions in setting up the strong proactive and informal release strategies we are recommending in Chapter 8.
| 6-7 The Task Force recommends that the Act explicitly recognize the role of the Information Commissioner in advising government institutions on the implications for access to information of proposed legislation, regulations, policies or programs of the government, on the administration of the Act in institutions, and in encouraging institutions to adopt good practices, including the proactive dissemination and informal release of information. |
The redress mechanism under the Act is triggered by individual complaints. A complaint-driven redress system is effective in dealing with concerns about the disposition of specific access requests. It is less effective, however, in dealing with systemic issues, such as chronic delays, and in fostering learning in institutions.
The “approach” adopted by any Information Commissioner is a crucial variable in promoting an effective ATI regime and compliance.
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The Information Commissioner has recognized the need to address systemic issues. In recent years, he has started to assess the performance of departments in meeting the mandatory response deadlines. We believe this “report card” process has been useful in drawing the attention of senior management in the departments concerned to the processing problems in their organizations and the need to correct them.
At this point, the only formal mechanism available to the Commissioner for this purpose is the self-initiated complaint under subsection 30(3) of the Act. This mechanism, requiring as it does “reasonable grounds to investigate,” focuses the review on a specific problem and may carry a negative connotation. Practice assessments, on the other hand, would allow for a more general review of the systems and facilitate working with institutions to find solutions to entrenched problems. They would result in negotiated remedial action plans.
Practice assessments targeting systemic issues would in most cases involve several departments. For several reasons, we suggest that these assessments be carried out co-operatively by the Treasury Board Secretariat and the Office of the Information Commissioner. The President of the Treasury Board, as the designated Minister, already has authority to conduct such assessments under Section 70(1)(a) of the Act.
We believe that such a collaborative approach would be more effective and welcomed by institutions. The assessed institutions, the Treasury Board Secretariat and the Office of the Information Commissioner would define together the parameters of the assessment, agree on its conclusions, and agree on a remedial action plan. This would help to ensure effective system-wide action and learning.
The Treasury Board Secretariat, with its government-wide responsibility for the administration of the Access to Information Act as well as for audit and evaluation, has a great deal of experience and sound practice to contribute to such assessments. From our consultations with other jurisdictions, we have found that obtaining the necessary resources for this type of activity has been a challenge. A partnership approach involving the Office of the Information Commissioner, the Treasury Board Secretariat and government institutions, should help to ensure adequate funding and support. Finally, practice assessments would provide one more opportunity for the Treasury Board Secretariat, government institutions and the Information Commissioner’s Office to work collaboratively to resolve access problems and to improve the system. In our view, this could go some way towards rebuilding trust and diminishing the current level of tension.
The authority to conduct such practice assessments would have no impact on the regular investigative powers of the Commissioner. It is compatible both with the Information Commissioner’s independence and the Commissioner’s other responsibilities. In our view, the addition of this “softer” tool is likely to generate learning in institutions and long-lasting progress in the system.
6-8 The Task Force recommends that:
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Information Commissioners in all of the jurisdictions we studied attempt to resolve disputes through mediation, regarding this as the most effective and efficient means to settle complaints. Resolution of complaints through mediation was introduced by the first federal Commissioner, notwithstanding the lack of a statutory mandate for this role. Legislation in most provincial jurisdictions specifically provides for a mediation role.
Complaints should be mediated prior to a formal costly investigative process. Canadian Access |
The Information Commissioner’s Web site describes his role as “mediating between dissatisfied applicants and government institutions.” However, possibly because of a lack of specific statutory mandate, the Office of the Information Commissioner occasionally questions whether mediation is compatible with the primary mandate to investigate complaints.
We have also observed that the mediation process is not always well understood. For example, there should be opportunities in appropriate cases for departments and requesters to sit down together to try to work out a resolution to a complaint. Some departments have been reluctant to engage in this form of mediation, however, we have heard from other jurisdictions that it can be quite successful.
After discussing this issue with several jurisdictions, the Task Force is strongly of the view that effective mediation is a critical component of a well-functioning access to information redress scheme.
Settlement is not an exercise designed to reduce the rights of requesters in any way. It is aimed at narrowing the differences between the parties.
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We believe that expressly recognizing mediation as part of the Information Commissioner’s mandate would bring clarity and legitimacy to this crucial activity for both institutions and complainants.
Mediation in the context of an investigation by an ombudsman may not be structured exactly as in a quasi-judicial inquiry. However, some of the same characteristics need to be present: the process should be clear for all the parties, and flexible and informal enough to reach the best possible resolution in the circumstances. In both British Columbia and Ontario, it is clearly stated in published procedures that the mediation phase is separate from a subsequent formal inquiry phase. We believe there is a need, at the federal level, for more procedural clarity and more recognition of mediation as an important compliance tool.
The mediation function on meeting timelines for access requests with government departments and agencies is crucial to the success of openness and accountability.
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It would be highly desirable if officials from both the Office of the Information Commissioner and government institutions that are involved in mediation have the necessary authority to reach a settlement, with the consent of the complainant.2 There may be a few exceptions, especially on sensitive files or cases that raise new issues, but this is generally recognized to be a requirement for effective mediation. Such authority should be the general rule, as it is in most Canadian jurisdictions. In our view, there is nothing inherently different in the ombudsman model that would impede this kind of delegation.
6-9 The Task Force recommends that:
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Even with the addition of this broader mandate, investigating individual
Whichever model of redress is chosen, we submit that strong powers of inquiry and or/investigation must be provided. Ann Cavoukian |
complaints would remain the primary function of the Information Commissioner under the Act.
There is no doubt that the Information Commissioner needs strong and effective powers to carry out the responsibility for conducting independent reviews of access decisions made by government institutions. Moreover, these powers must contain some coercive elements to ensure the co-operation of institutions in all cases.
The federal Information Commissioner has essentially the same investigative powers as his provincial counterparts.3 We believe that the Commissioner’s investigative powers and responsibilities are appropriate and sufficient to enable the Office to carry out its investigative responsibilities. These powers should be retained.
While the investigative powers of all Canadian Information Commissioners are largely similar, a number of investigative practices set the federal Information Commissioner apart. In recent years, there has been an increase in the number of formalized investigations involving subpoenas, examination of witnesses under oath, and confidentiality orders. The use of these powers occurs in only a minority of investigations, but it is a distinct and growing trend and represents a significant departure from the past. It has raised issues of procedural fairness, strained the relationship between government officials and the Office of the Information Commissioner and has come to colour, perhaps disproportionately, the perception federal officials have of the investigative process.
2This is not currently the case. It is the policy of the Office of the
Commissioner that each proposal for settlement be reviewed by the Commissioner.
As well, many Coordinators do not have the final authority to agree to
a final settlement.
3Barbara McIsaac, The Information Commissioner Investigative Powers and
Procedures, Research Report 28, pp. 28-29.
