Communication Security Establishment – Right to Know Week

Emily McCarthy
A/Assistant Commissioner
Complaints Resolution and Compliance Branch
September 24, 2012

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The ATIA: an Overview

  • The Access to Information Act came into force in 1983.
  • The Office of the Information Commissioner was established that same year.

Purpose of the ATIA

The purpose of the ATIA is set out in section 2:

…to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exemptions should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government.

Section 4 of the ATIA

  • Section 4 of the ATIA provides that it supersedes any other Act of Parliament.

Judicial Interpretation of the Purpose of the ATIA

  • The Supreme Court of Canada has held that the ATIA is a pillar of Canadian democracy.
  • It has also given the ATIA "quasi-constitutional" status.
  • The right to information underlines many of our fundamental rights and freedoms including: freedom of the press, freedom of expression and the right to vote

International context

  • Over the past 30 years, there has been a significant movement at the international level towards the enactment and implementation of freedom of information legislation.
  • Today over 90 countries have enacted right to information legislation.

Recent changes to the ATIA: Federal Accountability Act 2006

  • Expanded the application of the Act to Crown Corporations;
  • Codified the duty to assist.

Duty to Assist – section 4(2.1) ATIA

The duty to assist imposes three primary obligations on the head of an institution:

  1. Make every reasonable effort to assist the requester in connection with the request.
  2. Respond to the request accurately and completely; and
  3. Provide timely access to the record in the format requested.

Section 4(2.1) also makes clear that access requests must be processed without regard to the identity of the requester.

Duty to assist – implications for management

  • Duty to assist implies a commitment to a culture of service and underscores the importance of Access to Information as a service to Canadians;
  • Duty to assist is more than a process issue and a statutory obligation. It should be viewed as a statutory principle of interpretation.
  • The duty to assist requires that managers and executives ensure that responses to taskings from the ATIP office are responded to promptly and completely.

Role of Managers and Executive

  • Our Report Cards have demonstrated that one of the most important elements in ensuring compliance with the ATIA is a commitment by management to transparency. 
  • Many institutions have included compliance with Access to Information requests/taskings in their Performance Agreements.

Best Practices

  • Leadership by heads of federal institutions:
    • Being more proactive in disclosing information to the public as a matter of course;
    • Placing access to information higher on their list of priorities;
    • Putting in place more effective programs for administering requests, training personnel and records management;
    • Ensuring that senior management is kept apprised of the progress of requests and complaints.

What do we do?

The role of the Information Commissioner

  • The Information Commissioner of Canada is an independent agent of Parliament who is charged with investigating and reporting on complaints made in relation to any matter relating to obtaining or requesting access to information under the ATIA.
  • The Commissioner is the first level of independent review established by the ATIA. 
  • The second level of review is the Federal Court.

Conduct of investigations

  • The Assistant Commissioner of the Complaints Resolution and Compliance (CRC) Branch is responsible for the conduct of investigations.
  • The CRC Branch has four teams:
    • IERU – Intake and Early Resolution;
    • CRT – Complaint Resolution Team;
    • SCMT – Special Case Management Team;
    • SD – Special Delegation Team.

Types of complaints

  • Administrative:
    • Extension of time;
    • Deemed refusal – failure to respond by due date;
    • Fees;
    • Miscellaneous.
  • Refusal:
    • Missing records;
    • Exemptions/exclusions.

Investigative powers – section 36

Section 36 of the ATIA gives the Commissioner and her delegates the power to:

  • Summon and enforce the appearance of persons before the Commissioner and compel them to give oral or written evidence on oath;
  • Compel the production of documents and things;
  • Administer oaths
  • To receive evidence and information whether or not that information would be admissible in a court of law
  • To enter any premises occupied by any government institution on satisfying any security requirements of the institution relating to the premises.
  • To converse in private with any person in the premises entered and carry out such inquiries within the Commissioner’s authority
  • To examine or obtain copies of records found in any premises entered containing any matter relevant to an investigation.

Investigative powers – access to records: section 36(2)

To ensure that the Commissioner is able to investigate effectively, subsection 36(2) states:

“Notwithstanding any other Act of Parliament or any privilege under the law of evidence, the Information Commissioner may during the investigation of any complaint under this Act, examine any record to which this Act applies that is under the control of a government institution, and no such record may be withheld from the Commissioner on any grounds”

Confidentiality obligations of the OIC

  • The Act requires that the Commissioner and her delegates satisfy any security requirements applicable to persons who normally have access to and use of information.
  • The Act also prohibits the Commissioner and her delegates from disclosing any information that comes to their knowledge in the performance of their duties.
  • Finally, the Act prohibits the Commissioner from disclosing records responsive to a request or from confirming or denying the existence of a records where an institution has refused to do so.

Intake and Early Resolution Unit

  • Validates and registers complaints, responds to inquiries;
  • Manages the intake process;
  • Investigates administrative complaints, i.e. those dealing with extensions, missed deadlines, fees and other issues dealing with requesting and obtaining access to records;
  • The ER team investigates less complex or low volume of records refusals complaints as well as missing record complaints;
  • IERU seeks to resolve complaints in less than 90 days.

Intake process

  • Triage of complaints – identify early resolution and priority complaints
  • Issue Summary of complaints
  • Request: Processing file and responsive records

Arrangements for records classified Top Secret

Advisory Notices on: Triage of complaints and Requesting records from institutions
http://www.oic-ci.gc.ca/eng/inv-inv_advisory-notices-avis-information.aspx

CRT\SCMT

  • CRT – investigates complex refusal complaints. Target is to close files within 9 months;
  • SCMT – put in place to address the backlog of older complex refusal complaints.

Special delegation team

  • Special delegation complaints are those dealing with issues of international affairs, national security, defence and third party information;
  • OIC published an advisory notice: http://www.oic-ci.gc.ca/eng/inv-inv_advisory-notices-avis-information_special-delegations-speciales.aspx ;
  • They are referred to as “special delegation” because investigators must be “specially delegated” by the Commissioner to investigate these complaints.  A maximum of 8 investigators may be specially delegated at any time– s. 59(2) ATIA.

The ATIA in the national security context

There are two primary exemptions relied on in the context of a non-investigative body operating in the national security field.

  1. Section 13
  2. Section 15

Section 13 – information obtained in confidence

Section 13 creates an exemption for information that can be received from a:

  • Foreign state;
  • International organization (UN, ICRC etc.);
  • Government of a province/municipality;
  • Aboriginal government.

To qualify for exemption the information must be “obtained in confidence.” Although the exemption is mandatory and there are two exceptions:

  • If the organization has consented to the disclosure (the case law implies an expectation that an institution will seek consent whenever it is reasonable); or
  • If the organization has made the information public.

Section 15 – International affairs and defence

Section 15(1) provides that:

“The head of an institution may refuse to disclose any record requested under this Act that contains information the disclosure of which could reasonably be expected to be injurious to the conduct of international affairs, the defence of Canada or the detection, prevention or suppression of subversive or hostile activities…”

Section 15 is an injury-based exemption.

  • This means that when we review the application of this exemption we will be seeking specific evidence of the asserted injury to international affairs, defence or national security.

Section 15 is also a discretionary exemption.

  • In reviewing the exercise of discretion we examine whether the head of the institution considered and balanced:
    • The public interest in disclosure, more specifically, the interest protected by the ATIA – accountability, transparency etc.
    • The interest in non-disclosure
    • The exercise of discretion must be reasonable.

Disposition categories

We have four disposition categories for our investigations:

  • Well-founded – the Commissioner concludes that the complaint has merit.  Two sub-categories:
    • resolved: institution takes remedial action to the satisfaction of the Commissioner.
    • unresolved: institution maintains its position.
  • Not-well founded – the Commissioner concludes that the complaint has no merit.
  • Settled – a settlement is negotiated by the Commissioner that is acceptable to both the institution and the complainant.  No finding is made on the merits of the complaint.
  • Discontinued – a complainant decides to withdraw the complaint.

Recourse to the Federal Court

  • Once a complainant receives a report of finding (regardless of the finding) from the Commissioner he or she may seek judicial review of the refusal to disclose in Federal Court.
  • If a complaint is well-founded and cannot be resolved, the Commissioner may seek the consent of the complainant to apply for judicial review of the head of the institution’s decision to withhold information in the Federal Court.

OIC priorities

The OIC has identified 3 key result areas:

  • A leading access to information regime;
  • Exemplary service to Canadians;
  • An exceptional workplace.

Consistent with our key result area of providing “exemplary service to Canadians” the priorities of the investigative branch are to reduce the existing backlog and increasing the timeliness of the resolution of complaints.

This will be done by further streamlining our investigative processes.

We will do more analysis at the front end of a complaint to enable us to seek targeted representations from the institution and complainant.

We will continue to strive to resolve complaints informally where possible but will resort to using more formal steps where we are not satisfied with the progress of an investigation.

In closing - 10 common myths debunked

  1. Institutions must create new records to respond to access requests.
  2. Classifying documents as “confidential” or “secret” will protect all of the information contained in them.
  3. Pin to pin messages, SMS text messages, marginal notes or “sticky notes” are not records.
  4. Advice and recommendations by external consultants can automatically be protected.
  5. When a document contains any advice or recommendations to the Minister, the entire record qualifies for exemption.
  6. Ministers’ notes and those of Ministerial staff to Departmental officials are excluded from the purview of the Act.
  7. Program experts make the decisions regarding the disclosure of information.
  8. An exemption can be used to “blanket” or withhold the entire record.
  9. There is an exemption for information that the requester clearly will not understand or could misinterpret.
  10. There is an exemption for information that could potentially embarrass politicians and/or bureaucrats.

Conclusion

Leadership at all levels is required to ensure success.