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B. Investigative Process – Update

In our 2002–03 annual report, we reported on our efforts to demystify the investigative process by the judicious use of the Information Commissioner’s discretion to select the procedures by which investigations are conducted. This discretion gives the Information Commissioner flexibility in the choice of investigative methods, styles and approaches. Despite the need for this flexibility, the Information Commissioner also recognizes the importance of assisting all parties involved in investigations to understand what procedural options are open to the Information Commissioner and the circumstances in which they are likely to be used.

To that end, the 2002–03 annual report set out the two types of processes used – informal and formal – and when each is likely to be used. Additionally, the role of counsel at formal proceedings, the usage of confidentiality orders and the potential for adverse comments were discussed. Tied closely to this procedural flexibility was the institution of the quality of service standards discussed on pages 54 through 58 of that annual report.

After one-and-a-half year’s experience with the timeframes set out in the service standards, it would appear that the major stumbling block to them being fully met is the fact that most institutional processing files do not document or substantiate the reasons for the decision made with regard to exemptions or the exercise of discretion. This shortcoming is of serious concern since it means that, whenever there is a complaint, the processing must be recreated and repeated for the investigator – a needlessly time-consuming activity.

Failure to address this problem across the system is particularly surprising given the recommendation of the Report of the Access to Information Review Task Force, "Access to Information: Making It Work for Canadians", issued in June 2002. In chapter 6 of that report, "Ensuring Compliance: The Redress Process", the Task Force made the following recommendation: "The Task Force recommends that the Treasury Board Secretariat, with the advice of the Office of the Information Commissioner, work with institutions to develop realistic standards for the documentation of processing files." That work must be completed.

In the meantime, in order to make the investigative process faster, the commissioner intends to amend the service standards by including a new approach when there is no documented rationale on file for the exemptions claimed. In such cases, the delegated authority will be expected to provide representations, in the form of a detailed rationale, regarding all exemptions claimed and discretionary decisions made. Depending on the circumstances, such representations may be in writing or by way of oral evidence and will be expected within a matter of days, not weeks. A decision whether or not to require formal representations will be taken at the end of the first meeting between the investigator and the coordinator of the institution, if it is apparent that no documented rationale exists.

The Information Commissioner hopes to improve cooperation with his investigations by following-up on a suggestion made by the Access to Information Review Task Force. In chapter six, the Task Force recommended that "training and information sessions on the investigative process be offered to access officials by the Office of the Information Commissioner" and the "investigators of the Office of the Information Commissioner meet from time to time with access officials to clarify and resolve general issues related to the investigation process in order to make investigations more efficient and effective."

The Office of the Information Commissioner has been working with the University of Alberta to produce information and training materials to be used online, in the office or in sessions with the staff of the commissioner. As well, in the new fiscal year, workshops will be offered to ministerial and senior political staff on their role in the process. The compact disc version of this training will be available for self-study and covers the Act and Regulations and the obligations of government institutions under that legislation. In addition, senior staff of the Office of the Information Commissioner are prepared to meet with senior staff of ministers to educate them on their roles and obligations.