ADVISORY NOTICE

Special Delegation Investigative Strategy

The Office of the Information Commissioner (OIC) has initiated a strategy to streamline the process of investigating "special delegation" complaints. Special delegation complaints involve the application of subsections 13(1)(a), 13(1)(b) and/or 15 of the Access to Information Act.  We are currently focusing on the investigation of complaints involving the application of subsection 15(1).  The goals of this approach are two-fold:

  • to investigate special delegation files efficiently and effectively in a consistent manner, in accordance with jurisprudence, that promotes access to information where disclosure would not injure the public interest; and,
  • to create an environment of open dialog between the OIC and government institutions that promotes the timely resolution of complaints.

Senior and experienced OIC investigators have been specially designated to conduct these investigations using a portfolio approach, with a focus on institutions with the greatest number of special delegation investigations.  The intention is to minimize the number of contact points and administrative delays, and to promote consistency and strong working relationships.

Process – what institutions can expect:

1. Intake stage

At the intake stage of the investigation, institutions will be provided with an email requesting the records and detailing the relevant test to be met under subsection 15(1).  Institutions will be asked to provide, within twenty (20) working days of the institution's receipt of the notice of complaint:

  1. the institutional processing file and relevant records (working copies);
  2. which of the three harms listed in the subsection (i.e., the conduct of international affairs, harm to the defence of Canada, or harm to the detection, prevention or suppression of subversive or hostile activities) is relevant to the current complaint and, if applicable, which paragraph the institution is relying on (i.e., s. 15(1)(a)-(i));
  3. evidence regarding how disclosure of the withheld information could reasonably be expected to be injurious to the identified harm, with respect to all portions exempted from disclosure that are the subject of the complaint;
  4. how the institution exercised its discretion to withhold certain portions of information under subsection 15(1) (i.e., evidence that the institution considered all relevant factors for and against disclosure); and
  5. the institution's rationale for all other claimed exemptions, as applicable in the requester's complaint.

2. Investigation stage

Investigators will create an exemption analysis table setting out the withheld portions of the records in each special delegation file and the results of any investigative research into the public availability of the withheld information at the time of the decision.

This table will be provided to the government institution with a request that it:

  1. provide specific evidence of the injury which it reasonably expects would have resulted from the disclosure of the information; and
  2. demonstrate how it exercised the discretion provided in ss. 15(1), in accordance with existing jurisprudence.

If the OIC does not agree with the government institution's analysis, we will, after further discussions with the institution, seek further representations as per paragraph 35(2)(b) of the Act.  The complainant will also be given an opportunity to submit representations.

It is anticipated that the streamlining process will result in more frequent requests for formal representations under paragraph 35(2)(b).  The intent is to investigate in the most efficient manner to ensure that the rights of requesters to timely and complete disclosure are respected.

Because we are focusing our current efforts on decreasing the backlog of older files, institutions can expect that older files will move quickly to paragraph 35(2)(b) letters, as it is assumed that mediation avenues have been exhausted at this point.  However, a comprehensive mediation process will be incorporated into the investigation of newer complaints received by the OIC.