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Submissions to the Access to Information Review Task Force
SYNOPSIS OF RECOMMENDATIONS / PROPOSALS / COMMENTS FROM WRITTEN SUBMISSIONS SENT TO THE ACCESS TO INFORMATION REVIEW TASK FORCE
Mandate and Powers of the Commissioner
That the Act be redrafted so that the jurisdiction of the Information Commissioner to investigate complaints pursuant to s.30(1)(f) is clearly limited to complaints of failure of a government institution to comply with an obligation or requirement imposed upon it by the Act, i.e. To insure that the 'ejusdem generis' rule does apply.
A submission
That section 30(f)(1) of the Act be drafted more precisely to make it clear that it relates only to items covered by the intent of the Act and not to facilitate 'investigations at large' and/or issues that are clearly covered in the jurisdictions and mandates of other standing tribunals/commissions who have the unique expertise and competence to investigate alleged breaches of their legislation.
A submission
There should be an explicit reference in the Act to severely limit the investigative powers of the Information Commissioner with respect to the privacy rights of witnesses. Privacy challenges by witnesses in accordance with their Charter rights should be immediately referred to a Federal Court for a ruling.
A submission
There should be a specific reference in the Act to limit the powers of the Information Commissioner from interfering with a witness's charter right to associate freely. The Commissioner should be compelled to apply to the Federal Court to decide whether such an action is warranted.
A submission
In revising and updating the Access to Information Act, the section empowering the Information Commissioner or his designee to commit for contempt to enforce testimonial obligations should be explicitly rescinded.
A submission
The Act should be revised to require and authorize the Information Commissioner to make application to the Federal Court to conduct a hearing into the issue of contempt and decide whether a conviction is warranted and, if so, the appropriate punishment. Ontario adopted this approach thirty years ago.
A submission
Whichever model of redress is chosen, we submit that strong powers of inquiry and/or investigation must be provided.
Ann Cavoukian, Information & Privacy Commissioner, Ontario
We believe that if an ombudsman scheme is chosen as the primary model of substantive redress, order-making powers for procedural appeals such as deemed refusals would complement this scheme, and should be considered.
Ann Cavoukian, Information & Privacy Commissioner, Ontario
... The Information Commissioner needs greater authority to ensure compliance with the provisions of the Access to Information Act, and to protect against excessive delays in responding to requests. At present he has no significant punitive powers beyond public comment upon the performance of government departments and officials. In our view, Sections 30-40 of the existing Act should be amended to provide more independence for the Information Commissioner, and include penalties for non-compliance.
Canadian Historical Association
Increased powers to the commissioner such as the ability to order release, and therefore the government would have to go to court to protect from release.
Canadian Access & Privacy Association
Information commissioner should publish decisions, which would have across the government impact, this would provide a narrowing and clarification of some of the questions regarding processing of requests.
Canadian Access & Privacy Association
The Office of the Information Commissioner strengthened and given the necessary resources to respond to complaints promptly and to monitor systematically the performance of the access to information system.
National Council of Women in Canada
The Office of the Information Commissioner given power to order disclosure of information wherever the public interest clearly overrides the potential harm.
National Council of Women in Canada
The Access Act should specifically permit the Commissioner to co-ordinate with the Archivist to enforce s 5(1) of the Archives Act (records shall not be destroyed without the consent of the Archivist).
Kirsti Nilsen & Margaret Ann Wilkinson
The Information Commissioner should be an independent officer of Parliament with decision-making and order-making capacity.
Kirsti Nilsen & Margaret Ann Wilkinson
The Commissioner (with the Agreement of the Privacy Commissioner) should be empowered to make records management orders.
Kirsti Nilsen & Margaret Ann Wilkinson
The rulings of the Information Commissioner should be binding on the government, thereby removing another level of delay in access to information.
Ad IDEM - Advocates In Defence of Expression in the Media
The separation of the Information Commissioner and Privacy Commissioner should remain. It is important that current sentiment in favour of privacy, for example, does not obstruct advocacy within government for access to information.
Ad IDEM - Advocates In Defence of Expression in the Media
The ombudsman model has not been successful for several reasons. Neither Commissioner really follows the ombudsman model in practice. They tend to treat the complaint as an opportunity to conduct a general audit and evaluation of the handling of the request in all its facets. This approach often leads the investigation into areas which are of no interest to complainants. The audit approach expends unnecessary time for all the parties. Most requests and subsequent complaints have a time sensitivity. Being told months or years later that the complaint was or was not justified is by then of little interest to the requester. The other problem with the model is that, while it can succeed in resolving a particular dispute, it has not achieved the same success in dealing with systemic problems since institutions can simply ignore the Commissioner whose only recourse is to report to Parliament.
Ken Huband
The Commissioner's office could assist the ATI community. Firstly, the office does not publish all its findings making it more difficult for co-ordinators and staff to understand the Commissioner's interpretations of the law. All final reports on complaint investigations should be published. The Commissioner should also consider publishing advance rulings and broad statements of interpretation on issues of uncertainty. Such rulings would not be binding but would serve to indicate the general thinking of the Commissioner on the issues. Secondly, I think the Commissioner should be given the same mandate and resources to publicize and promote the purposes of the Act as was given to the Privacy Commissioner by the Personal Information Protection and Electronic Documents Act.
Ken Huband
It is time to move to a quasi-judicial Commissioner with order-making powers.
Ken Huband
The ATI Act should be amended to give the Information Commissioner the following explicit powers:
- as in the United Kingdom, Ontario, B.C. and Quebec, to order the timely release of any record covered by access rights in the ATI Act;
- as in the United Kingdom, to order the release of any record if the release is in the public interest;
- to order that an institution be covered by the ATI Act if the Commissioner is of the opinion that the institution falls within criteria for coverage in the ATI Act;
- as in Ontario, the power to obtain from government institutions any statistics concerning administration of the law in order to prepare performance-based reports on the institutions;
- to order the amendment of government policies or guidelines, including fee schedules, if the Commissioner is of the opinion that the policies or guidelines do not adhere to the spirit and intent of the ATI Act;
- as in the United Kingdom, to issue directives (including requiring the submission of a compliance plan) to correct patterns of violations of the ATI Act by government departments, and to penalize violators of the ATI Act or related government policies and guidelines.
Open Government Canada & NGO Working Group
on the Export Development Corporation
[The CJFE] calls on the Office of the Information Commissioner to keep a closer watch on the performance of the law.
CJFE - Canadian Journalists for Free Expression
[The CJFE] calls for the Office's annual reports to include more detailed information about the performance of federal departments.
CJFE - Canadian Journalists for Free Expression
[The CJFE] recommends that the Office of the Information Commissioner be equipped to monitor legislative proposals that create new organizations that are not explicitly under the law and which do not contain special provisions preserving access rights. [The CJFE] calls on the Office of the Information Commissioner for help in developing standards and monitoring trends in this regard [see preceding comment].
CJFE - Canadian Journalists for Free Expression
The current powers of the Information Commissioner should not be further restricted in any way.
Open Government Canada & NGO Working Group
on the Export Development Corporation
Return to Table of Contents
Redress Process
We suggest that an oversight body be given the power to review a government institution's exercise of discretion not to disclose a record.
Ann Cavoukian, Information & Privacy Commissioner, Ontario
It is evident that mediation works well within an order-making and ombudsman model of dispute resolution. We highly recommend mediation as a critical component of any new federal access redress scheme along with a statutory provision that expressly provides for this method of dispute resolution.
Ann Cavoukian, Information & Privacy Commissioner, Ontario
Complaints process should be mediated prior to a formal costly investigative process.
Canadian Access & Privacy Association
The Canadian government should consider an expert administrative tribunal that can deal with appeals in a timely and inexpensive fashion.
Robert Bothwell & Patricia McMahon
A fast internal review mechanism could be very useful since many complaints revolve around a simple question as to why information was not released. An internal review process could be located in the Commissioner's office.
Ken Huband
The federal government should not, in any way, amend the ATI Act or change the access to information system to require dissatisfied requesters to await the completion of a departmental review process before making a complaint to the Information Commissioner.
Open Government Canada
I also suggest you study the additional powers given to the Privacy Commissioner by the Personal Information Protection and Electronic Documents Act, in particular the ability to refer the complainant to other available fora (grievance or other procedures) or through a procedure (such as a human rights tribunal) more appropriate to the issue, to refuse complaints that are too old, to employ alternate dispute resolution mechanisms such as mediation and conciliation rather than undertaking a formal investigation. Granting the Commissioner similar powers would simplify and improve the disposition of complaints.
Ken Huband
If a report of the Commissioner becomes public the documents that led to the creation of that report should become available to the public under the Access to Information Act.
A submission
The Commissioner, using a process that is secret and not open to review by any other body, investigates the actions of public servants. As there may be grave consequences to the individuals investigated, it only seems fair that a process be created by the Act that provides appropriate checks and balances, including an appeal mechanism that permits a review of the investigation process.
A submission
The Access to Information Act clearly needs some changes to protect future public servants who sincerely and honestly carry out their duties. As the consequences to their careers may be catastrophic they need the protection of a process that, at a minimum, adheres to the Canadian Charter of Rights and Freedoms.
A submission
Judicial Review
The Federal Court should remain available for Judicial Review of the Commissioner's activities.
Kirsti Nilsen & Margaret Ann Wilkinson
The Federal Court should be given full powers of review so that all decisions, whether in relation to fees, time extensions, or any other access issues, may be subject to judicial scrutiny.
Robert Bothwell & Patricia McMahon
I can see no reason why all matters under the Act should not be ones on which the Court can rule. However, granting the Commissioner formal powers to issue binding orders would make this option unnecessary.
Ken Huband
OTHER
The federal government should enact a whistleblower protection law that has the following characteristics:
- applies to public servants and political staff;
- creates an entity that has full investigative powers and adequate resources, and that reports only to Parliament;
- gives whistleblowers the right to complain anonymously to the entity about violations of laws, regulations, government policies or guidelines;
- protects whistleblowers who reveal their identity from retaliation of any kind if their complaint is proven true; and
- rewards whistleblowers whose claims are proven true with a portion of the financial penalty assessed against the violators of whichever law has been violated.
Open Government Canada
In accordance with the above recommended enactment of a whistleblower protection law, the federal government should change its guidelines for public servants to replace the principle of "loyalty" with a duty "to obey the law."
Open Government Canada
... The CHA believes in the need to strike a balance between rights of access and rights of privacy. ... As advocates of greater protection of privacy rights make their case, it is important that their demands for protection do not come at the expense of rights of access. In our view, the present conflict over issues relating to access and privacy (including the current census impasse and disputes relating to the authority of the Information Commissioner) suggests the need to vigorously defend access rights. The CHA thus calls for a comprehensive parliamentary review of the existing Access to Information Act in the hope that these rights might be better protected and even enhanced.
Canadian Historical Association
[The Association of Canadian Archivists] urges the Task Force to maintain the historical and just balance between citizen's rights, on the one hand, to access government information for many research purposes and to hold government accountable through reliable records as the basis of democracy, and, on the other hand, to prevent the early disclosure of sensitive personal information that constitutes an invasion of privacy.
Association of Canadian Archivists
[The Association of Canadian Archivists] urges the Task Force to consider, in light of recent impasses on this release of historical censuses, inserting an explicit census release clause in a revised Act... .
Association of Canadian Archivists
New communications technologies can create the risk of invasion of personal privacy. In order to prevent this from happening, the Privacy Act needs to be part of the discussion.
Canadian Library Association
