Chapter 5: Strengthening oversight
A key element of an access to information regime is independent and effective oversight of government decisions. An effective oversight model assists requesters in obtaining the information to which they are entitled in a timely manner.
The two main oversight models featured in Canada are the ombudsperson model and the order-making model.
The Act follows an ombudsperson model, with strong investigative powers provided to the Commissioner. Under section 36 of the Act, the Commissioner’s investigative powers include obtaining and reviewing all records required for an investigation (with some exceptions), issuing subpoenas, administering oaths, and entering the premises of any government institution.
Under this model, the Commissioner may also investigate a broad range of issues.
After concluding an investigation, the Commissioner may issue recommendations to institutions. These recommendations are not binding. When an institution does not follow her recommendations, the Commissioner’s (and the complainant’s) recourse is limited.
Under section 42 of the Act, the Commissioner may, with the complaint’s consent, apply to the Federal Court for a review of the institution’s decision to refuse disclosure. The hearing before the Federal Court is de novo, which means the review of the application of exemptions begins anew, with evidence being introduced afresh before the Court.
There are significant drawbacks to this model:
- The Act provides that the Federal Court may only review an institution’s refusal to disclose information. There are situations that are not subject to judicial review, despite the fact that the Commissioner has the authority to investigate and make recommendations on a broad range of issues. Without an ability to have the Court review these recommendations, requesters have no avenue to enforce their rights when an institution does not follow the Commissioner’s recommendations.
- Strict confidentiality requirements imposed on the Commissioner prevent her from routinely publishing her findings and recommendations. Consequently, there is not a wide body of precedents guiding institutions and requesters. This often results in the same issues being investigated needlessly.
- Different interpretations of the Act between the Treasury Board of Canada Secretariat and the Commissioner result in conflicting guidance to institutions. This leads to unnecessary complaints, as well as litigation.
- The de novo hearing before the Federal Court allows institutions to present new or fulsome representations to the Court and has, at times, resulted in the application of new exemptions.
As a whole, the ombudsperson model provides no incentive on institutions to maximize disclosure in a timely manner, particularly in instances where the institution may wish to delay disclosure.
Under an order-making model, the Commissioner is an adjudicator. The adjudicator receives appeals from requesters regarding an institution’s treatment of their access request, including the institution’s decision on disclosure. The Commissioner may mediate the appeal and, if necessary, adjudicate the appeal based on the representations that have been provided. At the conclusion of the adjudication, an order disposing of the issues raised in the appeal must be rendered. This order is binding.
This model features a number of benefits:
- It gives a clear incentive to institutions to apply exemptions only where there is sufficient evidence to support non-disclosure and then put this evidence before the adjudicator, as judicial review before the Court is based on the record that was before the adjudicator.
- The grounds on which the order can be set aside are limited and the institution cannot introduce new evidence or rely on new exemptions, as it is the adjudicator’s, and not the institution’s, decision that is under review before the Court.
- It avoids the redundancy of having two levels of review of the same decision, which can result in more timely access to information.
- The burden to seek a judicial review before the Court is on institutions, and not requesters, if the institution wishes to oppose the disclosure ordered by an adjudicator.
- It provides finality for requesters because orders of the adjudicator are binding unless reviewed by the Court.
As a whole, the order-making model puts the incentive on institutions to maximize disclosure in a timely manner and reduces the burden on requesters.
Ombudsperson vs. Order-making model
Requesters complain to the Commissioner about an institution’s handling of a request.
Requesters appeal to the Commissioner about an institution’s decision about a request.
The Commissioner mediates and
investigates the complaint.
The Commissioner begins with mediation and, if mediation fails to resolve the entirety of the appeal, she adjudicates.
The Commissioner recommends a resolution to the complaint.
The Commissioner issues an order disposing of the issues raised in the appeal.
If there is no resolution, the Commissioner, with the complainant’s consent, or the complainant, must seek a de novo review of the institution’s decision to refuse disclosure.
If the institution continues to oppose disclosure, it must seek judicial review of the Commissioner’s order. This review would bebased on the record that was before the Commissioner.
Adopting a more effective model
An order-making model has become the progressive standard. Sixty-eight percent of all the countries that have implemented an access law in the past ten years feature an order-making model. It can also be found in the access laws of B.C., Alberta, Ontario, Quebec, P.E.I., the U.K., India and Mexico. Model access laws and recent private members’ bills also endorse this approach.
Adopting an order-making model in the Act would provide the following benefits to requesters:
- The processing of requests would be more timely because institutions would be aware that the Commissioner could order that a request be processed by a certain time.
- The Commissioner’s ability to issue binding orders would instill in the appeals process more discipline and more predictability. It would also provide an incentive for institutions to make comprehensive and complete representations to the Commissioner at the outset.
- Orders would create a body of precedents that increases over time. Requesters and institutions would then have clear direction as to the Commissioner’s position on institutions’ obligations under the Act. The body of precedents would also reduce the likelihood that the Commissioner would have to review issues that have already been adjudicated.
- The Commissioner’s orders would provide finality to the requester (unless the decision of the Commissioner is judicially reviewed).
- The burden to seek judicial review of a decision of the Commissioner would be on the institution.
- Judicial reviews to the Federal Court would be more limited and would consist of a review of the Commissioner’s adjudication, rather than being a de novo hearing.
After overseeing more than 10,000 investigations, the Commissioner is of the view that, of the two models, the order-making model best protects information rights under the Act.
The Information Commissioner recommends strengthening oversight of the right of access by adopting an order-making model.
Discretion to adjudicate
All of the jurisdictions that adopt an order-making model in Canada give their respective commissioners the discretion to adjudicate an appeal. Such discretion can also be found in the access law of the U.K.
Giving the Commissioner the discretion to adjudicate an appeal would ensure effective control of the adjudicative process. To protect appellants’ right to an independent review of an institution’s decision under the Act, any decision not to adjudicate an appeal should be subject to judicial review.
The Information Commissioner recommends providing the Information Commissioner with the discretion to adjudicate appeals.
Mediation provides a way to amicably resolve appeals or narrow issues for adjudication. Mediation can be a powerful tool for resolving appeals, especially when order-making is available to focus the negotiations and provide an incentive to resolve issues. Many laws that adopt an order-making model also allow for mediation of an appeal.
Given the positive experience of other jurisdictions that have paired mediation with order-making powers, the Commissioner recommends that the Act should include the explicit authority to resolve complaints by mediation.
The Information Commissioner recommends that the Act provide for the explicit authority to resolve appeals by mediation.
Enforcement of orders
The Act should provide a mechanism to certify the Commissioner’s orders as orders of the Federal Court. This is important to ensure enforcement of her orders issued pursuant to her investigative powers under section 36 and under an order-making model.
The Canadian Human Rights Act provides for the certification of orders made by the Canadian Human Rights Tribunal through the Federal Court. Once this occurs, orders are deemed to be orders of the Federal Court for the purposes of enforcement. Any subsequent failures to observe the terms of a certified order would be subject to the contempt process of the Federal Court and dealt with accordingly.
The Information Commissioner recommends that any order of the Information Commissioner can be certified as an order of the Federal Court.
Since an order-making model is adjudicative, it is important to specify in the legislative regime the scope of powers, in addition to issuing orders, necessary to maximize the effectiveness of the oversight model and the access to information regime.
Issues that have been the focus of Commissioner-initiated investigations
- The use of instant messaging across government institutions
- The processing of requests in relation to timeliness at specific institutions
The laws of B.C., Alberta, Québec and P.E.I., which have adopted an order-making model, all include the power to conduct investigations at the Commissioner’s own initiative.
Under this model, the Commissioner would be able to investigate issues affecting information rights.
The Information Commissioner recommends that the Act maintain the existing power to initiate investigations related to information rights.
The ability to conduct audits into institutions’ general compliance with the Act would enable the Commissioner to proactively identify issues that are developing and address them in a timely and comprehensive manner. The Commissioner could issue recommendations to improve information rights practices.
Many jurisdictions that feature an order-making model also provide their respective commissioners with the general power to audit institutions’ compliance with the access law. Such a mandate has also been recommended in Canada previously.
The Information Commissioner recommends that the Act provide for the power to audit institutions’ compliance with the Act.
To support her investigative function, the Commissioner should continue to have strong investigative powers. These powers facilitate the effectiveness of investigations and ensure the co-operation of institutions during investigations.
The access laws of B.C., Alberta and P.E.I. feature an order-making model and also provide their respective commissioners with investigative powers.
The Information Commissioner recommends that the Act maintain the existing investigative powers of the Information Commissioner.
In Scotland, the Information Commissioner is responsible for promoting Scotland's freedom of information law and has published several surveys on public awareness of freedom of information.
The first survey, conducted in 2004, just prior to the coming into force of the Freedom of Information (Scotland) Act 2002 found that only 44% of respondents were aware of the act. By 2014, this number had increased to 84%.
These surveys are available online: Scottish Information Commissioner, Research.
As part of Canada’s Action Plan on Open Government 2014–2016, the government recognized that digital literacy skills are needed to take full advantage of the benefits of open data, information, and dialogue. The government therefore committed to develop tools, training resources, and other initiatives to help Canadians acquire the essential skills needed to access, understand, and use digital information and new technologies. The same level of commitment and effort needs to be put towards educating Canadians on their right of access.
Without knowledge of the right of access and how to exercise it, Canadians are missing an opportunity to exercise their democratic rights and hold their government to account. However, absent an express mandate for education, the Commissioner is limited in how she can increase awareness.
An education mandate for commissioners or a similar power to promote the right of access can be found in all but one provincial access law, as well as in the laws of Canada’s international counterparts and in various model laws. Such a mandate has also been recommended in Canada previously.
The experiences in other jurisdictions have demonstrated that an education mandate poses no risk to the impartiality of the Commissioner. In addition, giving the Commissioner such a mandate would bring the Act in line with comparable jurisdictions and increase the profile of the Act and the right of access generally.
The Information Commissioner recommends that the Act provide for the power to carry out education activities.
The authority to conduct, commission or publish research is becoming more common among the provinces and comparable jurisdictions. The federal Privacy Commissioner has a mandate to conduct and publish research related to the protection of personal information under section 24(b) of the Personal Information Protection and Electronic Documents Act. Former commissioners have recommended a similar mandate for the Information Commissioner.
By carrying out research that draws from and includes Canadian perspectives, the Commissioner could help generate information, insights, analysis and, in some instances, debate on access to information. In turn, these would contribute to the protection and promotion of the right of access.
The Information Commissioner recommends that the Act provide for the power to conduct or fund research.
The Commissioner proactively comments on legislation that impacts access rights once it has been tabled in Parliament. Unfortunately, the lack of a mandatory consultation provision in the Act has contributed to the growth of Schedule II and in the number of laws that contain language that is intended to supersede the Act (as described in Chapter 4), thereby eroding the right of access.
Current and former commissioners, as well as reports on reforming the Act, have considered providing independent input or advice on the potential impacts to access to information to be an important part of the Commissioner’s role and responsibilities, and have recommended providing this mandate to the Commissioner.
The authority to comment on the implications for access to information of proposed legislation can be found in the access laws of the majority of provinces, and is also recommended in the Organization of American States model law.
The Information Commissioner recommends that the government be required to consult with the Information Commissioner on all proposed legislation that potentially impacts access to information.
Treasury Board of Canada Secretariat’s “Information Management Protocol - Instant Messaging Using a Mobile Device” recommends that departments should not use automatic logging of instant messages.
The Commissioner was not consulted on this protocol before its implementation.
This protocol is contrary to the Commissioner’s recommendations in her special report Instant messaging putting access to information at risk. In this report, the Commissioner found that there was a real risk that information communicated via instant message that should be accessible by requesters was being irremediably deleted or lost. She specifically recommended that an adequate technical safeguard mechanism be made available and implemented to ensure that instant messages (whether or not of business value) were archived on a government server for a reasonable period of time.
Access to information should be included by design in programs and activities. To achieve this, the Commissioner recommends that institutions be required to complete access to information impact assessments in a manner that is commensurate with the level of risk identified to access to information rights, before establishing any new or substantially modifying any program or activity.
This would allow institutions and the Commissioner to proactively address issues that may impact access to information rights.
The Information Commissioner recommends that institutions be required to submit access to information impact assessments to the Information Commissioner, in a manner that is commensurate with the level of risk identified to access to information rights, before establishing any new or substantially modifying any program or activity involving access to information rights.
Appointment and term of the Commissioner
Under section 54, an Information Commissioner holds office during good behaviour for a term of seven years and may only be removed with cause. He or she is appointed by the Governor in Council, after consultation with the leader of every recognized party in the House of Commons and Senate, and after approval by resolution of both houses.
This appointment process in the Act could be amended to reflect model laws and be consistent with the appointment of the other agents of Parliament.
Model laws provide that the appointment of an Information Commissioner should be approved by a supermajority of the legislature (i.e. more than two-thirds). There should also be eligibility criteria for the position.
The Auditor General and the Chief Electoral Officer are both appointed for a ten-year term, which is not subject to renewal.
The Information Commissioner recommends:
- that the appointment of the Information Commissioner be approved by more than two-thirds of the House of Commons and the Senate;
- 10 years relevant experience in order to be eligible for the position of Information Commissioner; and
- a non-renewable, 10-year term for the position of Information Commissioner.