Conclusion

The evidence obtained in this investigation demonstrated that there was systemic interference by members of the Minister’s Office staff at PWGSC during the period investigated. The evidence also demonstrated that senior departmental officials failed to address the interference in an appropriate manner consistent with section 73 of the Act and the requirements of Accountable Government. The result was a failure on the part of PWGSC to fulfill its duty to assist requesters. This failure led, in turn, to delay and lesser disclosure of government information.

The Commissioner is of the view that the steps PWGSC has taken to address seven of her eight recommendations will result in improvements to the processing of requests at PWGSC and serve to limit the ability of those without delegated authority from interfering with the processing of these requests.

Finally, this investigation again illustrates the issues the Commissioner identified in her previous special report to Parliament on interference in relation to the ability of the Commissioner to refer matters to law enforcement bodies for investigation.Footnote 12

Under the current state of the law, ministerial offices are not “government institutions” for the purposes of the Act.Footnote 13 Consequently, ministerial staff members cannot be considered directors, officers or employees of a government institution. Accordingly, the Commissioner was unable to exercise the discretion given to her by subsection 63(2) of the Act, which refers explicitly to “directors, officers or employees of a government institution.” Thus, while there is, in the opinion of the Commissioner, some evidence of the commission of an offence, she was unable, at the time of the investigation, to disclose any information to the Attorney General of Canada.

Accordingly, the Commissioner was limited to making a recommendation that the Minister of PWGSC refer the matter to the appropriate investigative authority. Given the Minister’s refusal to require a law enforcement investigation, the matter is at an end. Once again, this highlights the difficulties posed by the current state of the law, which excludes ministerial offices from the Act. This, along with other matters, will be addressed in the Commissioner’s special report on the modernization of the Access to Information Act, which will be tabled in Parliament.

Footnotes

Footnote 12

The mandate of the Commissioner is to conduct administrative investigations into federal institutions’ compliance with the Act and to make findings of fact. The OIC is not a court or tribunal, and the Commissioner has no authority to determine civil or criminal liability. In conducting an investigation, subsection 63(2) gives the Commissioner discretion to disclose information to the Attorney General when the Commissioner is of the opinion that there is evidence of the possible commission of an offence. Subsection 63(2) reads as follows:

(2) The Information Commissioner may disclose to the Attorney General of Canada information relating to the commission of an offence against a law of Canada or a province by a director, an officer or an employee of a government institution if, in the Commissioner’s opinion, there is evidence of such an offence.

(2) Si, à son avis, il existe des éléments de preuve touchant la perpétration d’une infraction fédérale ou provinciale par un administrateur, un dirigeant ou un employé d’une institution fédérale, le Commissaire à l’information peut faire part au procureur général du Canada des renseignements qu’il détient à cet égard.

Return to footnote 12 referrer

Footnote 13

Canada (Information Commissioner) v Canada (Minister of National Defence) 2011 SCC 25.

Return to footnote 13 referrer