Access to Information: Making it Work for Canadians

Report of the Access to Information Review Task Force

The Investigation Process

When a complaint is received in the Information Commissioner’s Office, it is assigned to an investigator, who reviews the file and tries to settle the complaint at the working level. If that is not possible, the matter is brought to the attention of the senior management of the institution with a view to resolving it at that level. If this negotiation is unsuccessful, more formal powers of investigation are brought into play.

The Task Force found that for the vast majority of investigations, any tension arises from problems with communication between investigators and government institutions, clarity of the procedures being followed, and consistency of approach. We believe that the solution lies in better communications, and more structure, discipline and consistency on the part of both the institutions and the Commissioner’s Office.

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A Shared Understanding

Access officials in institutions have suggested they have not been given a clear picture of the process being followed in some investigations. Overwhelmingly, they ask for a clear and consistent investigation process. Requesters have also expressed the view that the Commissioner’s procedure needs to be more transparent and they would like to be more involved in the process of resolving their complaint.

The Office of the Information Commissioner has developed an intensive training program and extensive internal procedures manuals for its investigators. The day-to-day activities of investigators are supported by impressive internal resources which include not just manuals, but a Code of Professional Conduct, and a grid for the analysis of the application of exemptions, exercise of discretion and delay issues. This grid is supplemented by a data bank of the previous findings of the Information Commissioner. It is clear that successive Information Commissioners have made serious efforts to equip investigators with the tools to conduct fair, disciplined and consistent investigations.

It is not obvious, therefore, why Coordinators perceive that there is a lack of clarity, focus and consistency in the investigation process. In our view, these perceptions may be due largely to communication problems.

There will be occasions when the Commissioner determines that it is necessary to issue subpoenas and hold hearings of a more formal nature. These types of investigations can be even more stressful for institutions. It is even more imperative, therefore, that there be clear information communicated to government institutions on how the Commissioner’s Office will proceed and what rights and obligations individuals have when they are involved in such an investigation.

We have noted that other Information Commissioners publish their policies and procedures. For example, the policies and procedures of the British Columbia and Ontario Commissioners are posted on their Web sites.⁴ They provide parties, witnesses and counsel with an indication of how the investigation will be conducted. Those involved, therefore, know what to expect.

As a first step in improving the efficiency and effectiveness of investigations, we believe it would be beneficial if the Commissioner developed and published procedural guidelines governing the conduct of both routine and more formal investigations.

We would expect these guidelines to be consistent with principles of procedural fairness and natural justice, especially in the case of formal investigations. While this may not be strictly required for administrative investigations, it can only enhance the credibility of the investigation process and respect for the Office of the Information Commissioner.

Access officials have indicated that they would welcome training on the investigative process and their role in it. They have also expressed an interest in participating in joint sessions with the Investigation Unit of the Commissioner’s Office to develop a better common understanding of the investigative process and to explore issues of a general nature that have proved to be problematic. We believe that such initiatives would help improve both communication between access officials and the Office of the Information Commissioner, and the efficiency of investigations. It would be time well spent.

The Office of the Information Commissioner has developed a very useful grid for investigators to evaluate the application of the exemptions and extensions.⁵ This kind of tool should be shared with institutions. Investigations should not take institutions by surprise. On the contrary, the better prepared the file and the Coordinator are, the more efficient the investigation will be. This would be exceptionally helpful for institutions that are less experienced with investigations, to assist them in preparing.

In general, institutions find investigators well trained and very professional. They would, however, like different investigators to be more consistent in their approach to the same issues, and they would like the investigators to have a deeper understanding of the business of the institutions. They suggest organizing investigators by portfolios, as is done in many provinces, so they can get to know areas of government activities and make more informed judgments more quickly. We believe this would make investigations more efficient, understanding that there would be a need for investigators to change portfolios from time to time to safeguard their impartiality.

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Clarity as to Issues under Investigation

Access to Information Coordinators have told us that they are, at times, unclear about the focus of an investigation and sometimes new issues are raised quite late in the investigation. This is not only a source of unnecessary aggravation, but the lack of clarity makes it difficult for institutions to respond efficiently.

The reason for this is unclear, as the Office of the Information Commissioner spends a lot of time talking with complainants in order to clarify their complaints. Notice of complaints should establish the parameters of the investigation and provide enough details to the institution about the points on which the investigation will focus.⁶ After reviewing the file, it would be good practice for the investigator to confirm in writing the points to be resolved. This would make investigations more efficient and better position Coordinators to assist the Commissioner’s Office.

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Documenting the Handling of the Request

Better documented files in institutions – recording the rationale for exemptions claimed for example – would also contribute to more efficient investigations.

We recognize that taking the time to fully document the process file may conflict with providing a response within the statutory timelines. Detailed rationales are not needed for all exemptions claimed. However, recording the rationale, where appropriate, would not only save having to reconstruct the file during an investigation, it would also foster a clearer and more principled exercise of discretion by institutions under the Act.

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Investigations into Process Matters

Complaints to the Commissioner can relate to process matters, such as the fees charged, the format and language of a response, delays, and extensions of time to respond to a request. We believe that investigations into these sorts of complaints ought to be relatively straightforward especially in cases of delays. The facts are simple to ascertain. They should be conducted expeditiously to provide an effective avenue of redress for requesters.

The Commissioner’s latest Annual Report indicated that these investigations currently take, on average, from three months (deemed refusals) to seven months (fees). It also appears that the length of time required to investigate these matters has been increasing in recent years. While the length of investigations is due in part to limited resources in both the Commissioner’s Office and government institutions, we believe that there could be improvements. The Office of the Commissioner has set up a special unit to deal with complaints relating to delays. Many provincial jurisdictions have also put in place a streamlined process for process issues which ensures that such complaints are dealt with quickly.

By the time the delay investigation starts, a late response may or may not have been processed. Where it has not, the investigator will review the file and talk to access officials to assess the circumstances. The government nstitution will then be asked for a commitment to comply by a date the Commissioner’s Office considers to be reasonable in light of all the circumstances. however, when the request has already been processed by the institution by the time the investigation is initiated, it is not clear why investigators need to review the whole file to check the completeness of response and appropriate application of exemptions. We believe that a more streamlined process and focused fact finding would be appropriate.

Efficiency has to be improved on the side of institutions as well. Better use and documentation of time extensions and fee calculations could both diminish the number of process investigations and make them more efficient.

The time taken by institutions to respond to investigations also needs to be improved. There may be a tendency in institutions to give priority to processing new requests (“to keep out of trouble”) instead of responding in a timely way to investigations (since “they are already in trouble”). This attitude may be less than fair to complainants.

There should be standards set in ATI units for responding to investigations, especially process investigations. Resource planning should take these standards into consideration, as well as the time needed to respond to these

types of investigations in the past.

We believe that any improvement in the efficiency of investigations on the part of the institutions or the Office of the Information Commissioner will benefit everyone involved.

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⁴British Columbia: www.oipc.bc.org; Ontario: www.ipc.on.ca
⁵Supra, note 3, p. 46.
⁶However, some examples provided by Access Coordinators are clearly too deficient in details to be helpful for an institution preparing for an investigation. For example, one notice of complaint read as follows: “Mr. X is complaining about the response received from your Department.”