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The Access to Information Act in the Courts

A. The Role of the Judiciary

A fundamental principle of the Access to Information Act, set forth in section 2, is that decisions on disclosure of government information should be reviewed independently of government. The commissioner’s office and the Federal Court of Canada are the two levels of independent review provided by the law.

Requesters dissatisfied with responses received from government to their access requests first must complain to the Information Commissioner. If they are dissatisfied with the results of his investigation, they have the right to ask the Federal Court to review the department’s response. If the Information Commissioner is dissatisfied with a department’s response to his recommendations, he has the right, with the requester’s consent, to ask the Federal Court to review the matter. This year, the Information Commissioner filed four new applications for review (section 42).

This reporting year, the commissioner’s office investigated 1,140 complaints. 104 cases could not be resolved to the commissioner’s satisfaction and these resulted in four new applications for review being filed by the commissioner (101 cases concerned the same matter, i.e. disclosure of the 1911 census and were consolidated into one application for review). Eight applications for court review were filed by dissatisfied requesters (section 41). Third parties opposing disclosure filed 17 applications (section 44). Individuals or the Crown may ask the Federal Court to judicially review pursuant to the Federal Court Act alleged excesses of jurisdiction by the commissioner in the conduct of his investigations. In this reporting year, 22 applications were initiated against the Information Commissioner by the Crown, certain witnesses and other individuals.

Court Decisions Issued in Access Litigation

This year, with respect to access litigation, the Federal Court of Canada issued 17 decisions, the Federal Court of Appeal issued 2 decisions and the Supreme Court of Canada granted leave to appeal in one case. Summaries follow of the decisions in which the Information Commissioner is or was a party.