Letter to the Chair of the Standing Committee on Access to Information, Privacy and Ethics on the proposed oversight model


Mr. Blaine Calkins, M.P.
Chair, Standing Committee on
Access to Information, Privacy and Ethics
House of Commons
Ottawa ON  K1A 0A6


Dear Mr. Calkins:

Please find my response to the Committee’s letter of June 7, 2016.

The order-making model that I have recommended and that I have explained in my special report to modernize the Access to Information Act follows a three stage process. Each step of the process would be managed by different teams within the Office of the Information Commissioner of Canada. The three steps are as follows:

  1. Intake: An appeal is made to the Commissioner, where it is received at intake. It can be dismissed, settled, streamed to mediation or, in rare circumstances, directly to adjudication.
  2. Mediation: Mediation can be used to settle the appeal or narrow the issues for adjudication.
  3. Adjudication: Adjudication is a standalone process and is not a review of any previous mediation. However, any factual reports made by the mediator may be forwarded to the adjudicator. Processes are put in place to respect procedural fairness obligations, including the right to make representations, the majority of which are provided in the form of written representations. At the conclusion of the adjudication, an order disposing of the issues raised in the appeal must be rendered. This order is binding. Any order rendered can be certified as an order of the Federal Court.

The actual and practical benefits resulting from the adoption of my proposed order-making model are as follows:

  • It will improve timeliness across the access to information regime as the ability to issue orders will instill discipline in the system.
  • It will maximize disclosure because it gives a clear incentive to institutions to apply exemptions only where there is sufficient evidence to support non-disclosure.
  • It will resolve the majority of appeals by mediation, as the experience of Ontario and British Columbia has demonstrated.
  • It will eliminate de novo proceedings before the Federal Court, as it is the adjudicator’s, and not the institution’s, decision that is under review before the Court.
  • It will create predictability because orders of the adjudicator are binding unless reviewed by the Court and the grounds on which the adjudicator’s order can be set aside are limited. Further, institutions cannot introduce new evidence or rely on new exemptions during judicial review.
  • It will reduce the need to re-investigate the same issues, as orders from the adjudicator create a body of jurisprudence. This also increases predictability.

Overall, this model will strengthen the right of access.

In response to the Committee’s question as to whether a tribunal within the Office of the Information Commissioner of Canada would review the Commissioner’s orders, the answer is no. Under my proposed model, a dissatisfied party could ask the Federal Court for a review of the Commissioner’s order.

In addition to recommendations 5.1 to 5.4 of my special report, it is essential that the oversight model be complemented by additional powers to maximize its effectiveness. 

These other powers, found at recommendation 5.5 to 5.11 of the report, include:

  • maintaining the existing power to initiate investigations and the existing investigative powers;
  • auditing institutions’ compliance with the Act;
  • carrying out education activities;
  • conducting or funding research;
  • requiring institutions to consult with the Commissioner on all proposed legislation that potentially impacts access to information; and
  • requiring institutions to submit access to information impact assessments to the Commissioner.

In the Committee’s letter, reference was made to Quebec’s Commission d’accès à l’information. I am not recommending this model at the federal level. It is a formal model that was implemented based on the specific legal framework of that province (civil law). The order-making model that I have recommended in my report more closely resembles the models found in British Columbia, Alberta, and Ontario.

In making its oversight recommendations, it is imperative that the Committee bear in mind that the law must clearly state the powers the Commissioner can exercise. This is because the Commissioner cannot act without express statutory authority.

I hope this submission is of assistance to the Committee. I remain available for any further assistance it may require as it completes this important study.

 

Sincerely,

 

Suzanne Legault
Information Commissioner of Canada

 

c.c.:    Mr. Joël Lightbound, First Vice-Chair

Standing Committee on Access to Information, Privacy and Ethics

Mr. Blaikie, Second Vice-Chair
Standing Committee on Access to Information, Privacy and Ethics

Michel Marcotte, Clerk
Standing Committee on Access to Information, Privacy and Ethics