Year in review
Implementing amendments to the Access to the Information Act
The Office of the Information Commissioner (OIC) spent much of 2019–20 implementing the first significant amendments to the Access to Information Act since it came into effect in 1983.
Bill C-58 (An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts) received Royal Assent in June 2019. As a result, the Commissioner may make an order and/or recommendations at the conclusion of investigations into complaints registered on or after June 21, 2019, when she finds the complaints to be well founded.
Two investigations that concluded in the early months of 2020 resulted in intended orders to the Royal Canadian Mounted Police (RCMP) related to significantly delayed responses to access requests. In one instance, the RCMP, who had been in deemed refusal, responded to the access request after learning that the Commissioner intended to issue an order to that effect. In the other case, the response to the access request went out before the Commissioner’s order came into effect.
Publishing orders and reports
The amendments also allow the Commissioner to publish final reports. The OIC developed a new format for these reports, along with a new searchable database of decisions. Collectively, these reports are becoming a useful reference for complainants and institutions about the Commissioner’s positions on the application and interpretation of the Act.
Approving or denying applications from institutions to decline to act on access requests
Institutions have traditionally had to process and respond to all valid access requests they receive for records under their control. However, the 2019 amendments allow institutions to ask the Commissioner for approval to not process valid access requests they view as vexatious, made in bad faith or otherwise an abuse of the right to make access requests.
The OIC responds to COVID-19
When the severity of the COVID-19 pandemic became apparent in early March 2020, the OIC immediately implemented a plan to ensure it could seamlessly continue operations.
Due to the extraordinary work of the OIC’s information technology team, all employees were, in a matter of days, able to work from home, with access to the OIC network. Corporate functions proceeded as normal for the most part, facilitated by the prompt implementation of electronic delivery of documents and electronic signatures. At the close of the fiscal year, the OIC began planning for selective access to the otherwise closed office for critical services and for new tools to facilitate remote work.
Investigators were able to continue their activities, but were hindered by the shutdown of access operations in many institutions.
On March 20, the OIC issued a brief statement on the impact of the pandemic on its operations. The OIC reminded institutions covered by the Access to Information Act to, as they moved to alternative working arrangements, take all reasonable measures to limit the impact on individuals’ right of access to information. The OIC also recommended that institutions advise requesters of their reduced capacity to process access requests. The Commissioner issued a longer communication in early April 2020 on these and other access-related concerns that had arisen over the early weeks of the pandemic response.
The OIC set up a process for institutions to apply for this approval, aided by an electronic communications and document-sharing platform to allow the OIC to gather information from the institutions and requesters. This helps ensures an efficient process which helps the Commissioner issue timely decisions, i.e. within 20 business days to the extent possible.
The Commissioner received six such applications over the course of 2019–20 and granted one. In that instance, the Commissioner found that the access request was vexatious because the requester had made numerous prior requests that either duplicated or were substantially similar to the access request at issue. The Commissioner also found that the access request was an abuse of the right of access, because of the large volume of access requests the requester had previously submitted, as well as the repetitive nature of several of the requests.
In denying the other applications, the Commissioner first considered whether each institution had fulfilled its duty to assist the requester before seeking the Commissioner’s approval to not act on the access request. The Commissioner then considered whether the institution had established that the access request was, in fact, vexatious, made in bad faith or otherwise an abuse of the right to make such requests. The OIC posts summaries of notable decisions related to institutions’ applications for approval to decline to act on access requests in its online decisions database—again, to build a body of reference material to guide institutions and requesters.
Along with all other institutions covered by the Act, the OIC began in 2019–20 to proactively disclose more information as a result of the legislative amendments. This information gives Canadians insight into the OIC’s operations and preparations for, for example, the Commissioner’s appearances before parliamentary committees.
Addressing the Commissioner’s 2019–20 priorities
In addition to implementing the legislative amendments, the OIC focused on three other priorities.
Reducing the number of complaints in the inventory
In 2019–20, the OIC continued to improve how it carries out investigations to increase efficiency and the number of complaints it can close each year. Teams were organized to investigate specific types of complaints and to work with portfolios of institutions. The responsibilities of the Registry, which the Commissioner had set up in the previous year to receive, register and manage complaints, were fine-tuned based on the first year’s experience.
The OIC updated a number of tools to assist investigators, which it tested over the year and will roll out in 2020–21.
To augment its investigative capacity and continue inventory reduction efforts, the OIC hired additional term investigators and consultants for the year with temporary funding provided through Budget 2019.
With these extra staff and the various other measures, the OIC was better positioned to respond to a dramatic increase in new complaints and completed a record number of investigations. See “Investigations” for complete statistical details and highlights of the OIC’s investigative work and related legal decisions in 2019–20.
Ensuring transparencyThe OIC unveiled a completely revamped website in 2019–20. This refreshed and modern online presence makes it easy for complainants and institutions to find useful information on the Commissioner’s interpretations of the Act (including reports on systemic investigations and searchable summaries of notable investigations completed over the past decade), guidance on procedures the OIC follows during investigations and other matters related to the Commissioner’s oversight role.
The OIC published new guidance documents in 2019–20 covering e-mail management and applying for the Commissioner’s approval to decline to act on access requests.
In the winter of 2020, the OIC consulted institutions on guidance related to investigations affected by a change of circumstance or the passage of time. The OIC published a new guidance document on this topic in June 2020. The OIC also sought input on the factors the OIC takes into account in investigations related to the control of records—a fundamental concept in the Act, since the right of access does not exist without records being under the control of government institutions. The results of this consultation informed a new guidance document published in August 2020.
The Commissioner appeared before parliamentary committees three times during 2019–20. In April 2019, she presented her views on a number of proposed amendments to the Act that the Standing Senate Committee on Legal and Constitutional Affairs was considering as part of its clause-by-clause review of Bill C-58. The following month, the Commissioner appeared before the House of Commons Standing Committee on Access to Information, Privacy and Ethics to answer questions about the resources she had available to deliver her mandate. In March 2020, the Commissioner introduced herself and outlined her priorities to the new members of the same committee, which had been reconstituted after the 2019 federal election.
Over the year, the Commissioner and senior officials spoke to groups of access to information specialists across Canada on, among other topics, implementing the 2019 legislative amendments. Meetings with provincial and territorial commissioners, and with the Commissioner’s counterparts in the U.K. Information Commissioner’s and Scottish Information Commissioner’s offices were opportunities for the Commissioner and OIC staff to learn from other jurisdictions and to share and gather best practices. Staff in both offices attributed their excellent performance (neither has an inventory of complaints) to being able to publish their decisions and to having implemented digital work environments.
Systemic investigation completed into the processing of access requests at National Defence
In 2019–20, the OIC completed a systemic investigation the Commissioner had initiated in late 2018 into National Defence’s overall processing of access requests. This investigation was further to serious allegations made during the pre-trial hearings of Vice-Admiral Mark Norman, together with findings that the Commissioner had made in an earlier investigation involving the Office of the Judge Advocate General, that National Defence had improperly withheld information in response to an access request. The OIC published the results of the investigation in July 2020.
In May 2019, the Commissioner moderated a panel at the Open Government Partnership Global Summit held in the National Capital Region on how removing restrictions on historical government records could improve access to those records, reduce the need to make access requests, and make the processing of historical national security records less complex. This panel led, in February 2020, to the Commissioner’s meeting with the National Security Transparency Advisory Group to discuss access to information and national security. In February 2020, the OIC published a declassification strategy for national security and intelligence records authored by University of Ottawa professor and national security expert Wesley Wark, who had served as rapporteur for the Commissioner’s panel. (See also, “Classified records challenging for institutions and the OIC.”)
Finally, the OIC continued to respond to access requests well within legislated deadlines; the average completion time was 21 days in 2019–20. The OIC joined the Government of Canada’s online access to information and privacy request portal in July 2019 and received 42 access requests during the year. Among the 43 completed access requests were those focussed on topics such as investigations, job competitions at the OIC and the Commissioner’s new powers. Appendix A contains the 2019–20 annual report of the Information Commissioner ad hoc. She investigates complaints against the OIC about its handling of access requests.
The Commissioner met with deputy ministers and senior officials at five institutions over the year (Transport Canada, the Department of Justice Canada, National Defence, Library and Archives Canada, and the Privy Council Office). The purpose of these meetings was to gather and share best practices, learn more about the state of access operations in individual institutions, and communicate the Commissioner’s concerns about whether and how institutions are fulfilling their obligations under the Act.
Dealings with specific institutions in the course of investigations in 2019–20 highlighted the positive results of fostering collaboration:
- Canadian Broadcasting Corporation (CBC). Access officials at the CBC rigorously manage their complaint inventory. For several years, the CBC and the OIC have held bi-weekly meetings to discuss ongoing complaint investigations. These meetings allow for early resolution of complaints and clear lines of communication. In 2019–20, the OIC concluded 31 investigations into complaints against the CBC.
- Canadian Commercial Corporation. This institution received 18 requests in 2018–19 and has only been the subject of 14 complaints in its history. The OIC closed four of them in 2019–20, all to do with a multi-million-dollar contract Canada had signed in 2014 to supply Saudi Arabia with light armoured vehicles. Officials at the institution worked with OIC investigators to release information to the complainant that shed light on how the Canadian Commercial Corporation conducts its business and how it arrived at the decision to approve the deal with Saudi Arabia.
- Copyright Board of Canada. The Board only received one request in all of 2018–19. In seeking to resolve a 2016 complaint, the institution took the OIC’s suggestion to hire a consultant to reprocess requested records that refer to a report by the House of Commons Standing Committee on Canadian Heritage on the Canadian music industry. The Board then conducted consultations on the records with two government institutions and followed their recommendations on what could be disclosed, resulting in more information being released to the complainant.
The Commissioner spoke at the annual meeting of federal access to information and privacy practitioners, held during Right to Know Week in September 2019, and discussed the importance of access to information in a January 2020 presentation to staff at Immigration, Refugees and Citizenship Canada. This institution receives roughly two thirds of all access requests across government each year.
Supporting investigations through internal services
The OIC’s internal services teams supported investigations throughout the year, in particular securing $1.7 million in permanent annual funding to implement the Commissioner’s new powers and responsibilities, and $3 million in temporary funding for inventory reduction. Toward the end of 2019–20, the OIC began the process to request permanent funding for its ongoing inventory reduction activities. Securing such resources would allow the OIC to augment its investigative capacity on a permanent basis and thus increase efficiency.
The hiring of investigators with the new funding required significant support from the Human Resources team, in terms of staffing actions and other processes, over the course of 2019–20. The team also resolved numerous Phoenix-related pay problems.
As the OIC moved to electronic investigations over the year, the OIC’s information management and information technology teams developed policies and procedures, and sourced equipment, for converting paper records to digital ones. To further facilitate electronic investigations, the OIC began to integrate new templates and standard language for investigations reports with the OIC’s case management system. New policies to be enacted in 2020–21 will govern the use of electronic signatures for investigations-related and corporate documents.
A related important priority was to develop a multi-year approach to innovation at the OIC. The OIC has set priorities for investments in information management and information technology applications and infrastructure to transform operations in line with government direction and to enhance network and information security. To help ensure the OIC’s security measures are robust and aligned with emerging threats, the OIC carried out threat risk and vulnerability assessments in 2019–20 and will act on the findings in 2020–21. The OIC also finalized its new Departmental Security Plan and updated its Business Continuity Plan, two important pillars supporting ongoing work to reduce operational risks.
The OIC’s work in the new fiscal year and the subsequent four years will be guided by a new strategic plan, which the OIC developed in 2019–20 with extensive employee input. New governance and committee structures support all aspects of OIC operations, as will a new intranet, which will be launched in 2020–21.
2020–21 TO 2024–25 STRATEGIC PLAN
Vision: Federal institutions properly apply the Access to Information Act and respect Canadians’ right of access.
Mission: To conduct efficient and fair investigations, be open and transparent when dealing with institutions and complainants, and provide expert advice to Parliament and other stakeholders on access to information.
Values: Respect, Collaboration, Transparency, Accountability and Credibility
- Invest in and support our resources
- Innovate and transform our operations
- Maintain and enhance our reputation