How we investigate
The Access to Information Act gives Canadians the right to request information from federal institutions.
If you submitted a request for information to a federal institution under the Act and you are not satisfied with how it was processed, you may complain to us. You must file your complaint within 60 days of receiving a response from the institution.
To ensure a high standard of service to complainants, the Office of the Information Commissioner (OIC):
- deals with complaints professionally, efficiently and impartially;
- keeps complainants informed of the progress and outcome of investigations; and
- provides clear reasons for our recommendations.
Investigation of administrative complaints
The OIC assigns your complaint to an investigator. The investigator reviews the complaint and related records, and communicates with you and the institution to explore possible ways to resolve the matter.
Response already sent to requester
If the institution has already responded to your request when the OIC starts its investigation, it must send the OIC a copy of its response to you. If the OIC reviews the documentation and confirms that the response was sent, the OIC concludes the investigation as resolved.
Response not sent to requester but time extension claimed or 30-day timeframe to respond has not yet elapsed (so complaint is not in what is known as deemed refusal)
In these cases, the institution must send all relevant documentation and its position on the matter to the OIC to justify the validity of the extension or that the 30-day timeframe has not elapsed.
The OIC finds time extension to be valid in the following circumstances:
- The institution notified the requester about the extension within the first 30 days after receiving the request.
- The institution satisfied all of the criteria set out in the extension provision of the Act (section 9).
- The length of the extension is reasonable given the circumstances and context of the complaint, and meets the standards set out in Information Commissioner of Canada v. Minister of National Defence, 2015 FCA 56.
If the institution has satisfied these criteria, the OIC concludes the investigation as not well-founded and sends a report of findings to both the institution and the complainant.
If the has not met these criteria, the OIC finds the time extensions to be in invalid and requests a new disclosure date from the institution. The OIC then assesses the reasonableness of this date, in consultation with the complainant. The OIC investigation may be concluded as resolved when the disclosure date is reasonable or the complainant receives a response before the delay has been fully investigated. When the disclosure date is not reasonable the OIC may attempt to negotiate a new date and/or close the complaint as well-founded.
Response not sent to requester (so that the complaint is a deemed refusal)
When an institution acknowledges that it has not sent a response and that it is in deemed refusal, the institution must send the OIC all relevant documentation, written reasons for the delay and a date for disclosure. The OIC investigation may be concluded as resolved when the disclosure date is reasonable or the complainant receives a response before the delay has been fully investigated. When the date it not reasonable, the OIC may attempt to negotiate an earlier day and/or close the complaint as well-founded.
Investigation of refusal complaints
Early intervention stage
A member of the OIC’s early intervention team reviews the complaint and related records, and communicates with you and the institution to explore possible ways to resolve the matter or to narrow the issues in dispute.
Refusal investigation stage
When a complaint cannot be resolved at the Early Intervention Stage, an investigator does a preliminary review of the file, and contacts you discuss the outstanding issues.
The investigator then contacts the institution to obtain its position on the matter.
The investigator reviews the relevant documentation to analyze the issues, and asks specific questions regarding the institution’s decisions.
Exemption analysis worksheet
- The investigator’s review is based on the rationale the institution provided. If no rationale is received, the investigator must conduct their review based solely on the exemptions claimed and the redactions themselves.
- The worksheet sets out questions based on specific instances in which the OIC is not satisfied that the institution properly applied the exemption. The worksheet clearly sets out the date on which the institution must submit its answers to the OIC.
- Information obtained from the institution, complainant and other parties during investigations is subject to the confidentiality provisions of the Access to Information Act. The investigator must ask permission to share representations between the parties in order to facilitate negotiation.
The OIC may not review records that Cabinet confidences. In these cases, the OIC reviews all representations from the parties, as well as processing documents, a severed copy of the records, and a letter of confirmation from the institution’s Access to Information and Privacy Coordinator that describes the excluded information and the conclusion of consultations with their departmental legal services unit. Where the institution has consulted the Office of the Counsel to the Clerk of the Privy Council about the records, it must submit to the OIC the schedules prepared by the institution and the Office of the Counsel for this consultation.
Reasonable search and miscellaneous complaints
The OIC reviews processing documents and uses a reasonable search worksheet to ask specific questions regarding the institution’s search for records or other aspects of the processing of the request, as per the scope of the complaint.
Reasonable search worksheet
The investigator’s review is based on the rationale the institution provided. If no rationale is received, the investigator must conduct their review based solely on the processing documents and knowledge of the institution’s structure and information holdings.
The worksheet sets out questions for the institution related to the thoroughness of its search for responsive records. The worksheet clearly sets out the date on which the institution must submit its answers to the OIC.
Information obtained from institution, complainant and other parties during investigations is subject to the confidentiality provisions of the Access to Information Act. The investigator must ask permission to share representations between the parties in order to facilitate negotiation.
Request for representations
The investigator notifies the institution of the impending delivery of either the exemptions analysis or reasonable search worksheet.
The institution is expected to provide detailed written representations in the worksheet(s) to explain and justify its application of the Act.
Refusal complaint resolution
Depending on the response the institution provides, one of the following may result:
- The institution may agree with the OIC’s assessment, reconsider its position and agree to disclose more records to the complainant.
- The institution may more further information that satisfies the OIC. In such instances, the investigator informs the complainant of the recommended finding, and gives them a final opportunity to provide any representations that may affect this outcome.
- An institution may disagree with the OIC’s assessment and provide representations that do not sufficiently address the OIC’s concerns. In these cases, the OIC will bring the file to the attention of the Access to Information and Privacy Coordinator’s superior who has delegated authority under the Act to submit representations to the OIC.
- If after reviewing the institution’s response, the OIC is not satisfied and no agreement can be reached between the parties, the Commissioner will recommend to the head of the institution (often the deputy minister) that the institution take particular action to resolve the matter. As an ombudsperson, the Commissioner may not order a complaint to be resolved in a particular way, but she may make recommendations.
Once all representations have been received from both parties (including final representations from the complainant) and the investigation is concluded, the OIC will send the parties a report of findings.
Once a complainant has received this report, they may apply to the Federal Court of Canada for a review of the institution's decision to deny access—regardless of whether the Commissioner supports the complaint.
The Commissioner may also decide to take a case involving an important point of law to the Federal Court of Canada, if the complainant agrees to it.
Applications to the Federal Court must be made within 45 days of receiving the OIC’s report of findings.
Code of communications with the OIC:
The OIC is committed to communicating with you in a respectful, professional and civil manner. Similarly, the OIC expects the same courtesy from you.
While understanding that the circumstances or issues you are communicating may be stressful, the OIC will not accept abusive behaviour or communications towards staff. This includes threats, vexatious or harassing comments or conduct, sexual harassment, intimidation, yelling or screaming, or obscene, racist or discriminatory statements.
The OIC is required by law to protect staff from abusive behaviour and will not tolerate such behaviour against our staff. Repeated behaviour of this kind may result in the OIC communicating with you only in writing or otherwise restricting future interactions with you.