Making representations during investigations

What are representations?
Why is it important for parties to provide representations?
When does the OIC ask for representations?
Representations from institutions after investigations are concluded
When complaints involve third-party information
When the Commissioner consults the Privacy Commissioner
Contact information

The Information Commissioner must give parties to complaints a reasonable opportunity to make representations during investigations (subsection 35(2) of the Access to Information Act).

Parties to complaints are, generally, the complainant and the institution that is the subject of the complaint. Third parties and the Privacy Commissioner are also parties to complaints in some instances.

What are representations?

Representations include documents, information and facts the Office of the Information Commissioner (OIC) gathers during investigations from the various parties.

Representations also include parties’ views and submissions that are relevant to the matters under investigation. For example, an institution might explain in its representations why a record is exempt from disclosure under a provision of the Act, while a complainant might set out reasons why they believe the information should not be subject to an exemption.

Why is it important for parties to provide representations?

Giving parties the opportunity to make representations is an important aspect of conducting fair investigations. In turn, receiving meaningful and relevant representations allows the OIC to address all aspects of complaints fully. When parties provide prompt, relevant and complete representations, they help ensure the investigation progresses in a timely manner.

While parties to a complaint do not have a right to have access to other parties’ representations, the OIC may decide to share some or all of a party’s representations with other parties if it is of the opinion that doing so is necessary to carry out the investigation. However, the OIC must take every reasonable precaution to avoid revealing, as per section 64, any information the institution could legitimately refuse to disclose, including personal information, or any information about whether a record exists when the institution has neither confirmed nor denied whether it exists.

When does the OIC ask for representations?

The OIC may ask parties for relevant representations, and parties may provide them of their own accord, at any time during an investigation before the Commissioner concludes her investigation and makes her findings on the complaint.

At the start of the investigation

The OIC generally reviews any information and documents received from the complainant and institution and then contacts the complainant and the institution to seek initial representations on the allegations within the complaint.

Other times during the investigation

The OIC may request additional representations, including information and documents, from the complainant, the institution and other parties to advance the investigation.

Once the OIC has formed preliminary conclusions

The OIC may send a written request to the parties for final representations regarding preliminary conclusions reached on the matters that are the subject of the complaint and any outstanding issues.

When the OIC ask for representations, it sets a response date. When parties do not meet this deadline, the OIC may choose to proceed without the benefit of the representations. This may include concluding the investigation and the Commissioner making her findings on the complaint.

Representations from institutions after investigations are concluded

When a complaint is well founded and the Commissioner intends to make orders and/or recommendations, she first sends an initial report to the institution. This report sets out the Commissioner’s findings on the complaint and includes the text of the orders and/or recommendations.

The report also includes (as required by paragraph 37(1)(c)) a request that the institution notify the Commissioner of the action it has taken or proposes to take to implement the orders and/or recommendations or the reasons why it will not be taking any such action.

The sole purpose of this notice is to provide the Commissioner with information she needs to meet her obligations under paragraph 37(3)(a). This provision requires her to inform the complainant in her final report of the institution’s intentions regarding the implementation of her orders and/or recommendations.

Providing this notice is not an opportunity for an institution to present new or additional representations on matters that have already been investigated. Nor is it an opportunity to ask the Commissioner to revisit her findings, her orders and/or recommendations or the time limits for their implementation.

Initial reports clearly state that the Commissioner will not consider any new or additional information or representations from institutions at this point. The investigation is complete, and the Commissioner has made her decision on the outcome of the complaint and any actions she wants the institution to take and when.

Institutions are given a reasonable opportunity to provide accurate, relevant and complete representations during the investigation, as per paragraph 35(2)(b). The Commissioner takes these representations, and any additional information gathered during the investigation, into account when making her findings and preparing her orders and/or recommendations.

When complaints involve third-party information

Complaints may include allegations that institutions have improperly withheld under subsection 20(1) information that relates to third parties. Third parties can be private companies, other non-government organizations and individuals, but not the person who made the access request.

As with all types of complaints, the OIC may ask complainants and institutions for representations on the matters under investigation at all points in the investigation before the Commissioner makes her findings. These parties may likewise provide within this period representations without being asked for them. In the case of complaints involving third-party information, these representations could focus on why third-party information should or should not be exempt from disclosure under subsection 20(1).

In addition, the Commissioner must give the third party to whom information relates a reasonable opportunity to make representations on the disclosure of that information (paragraph 35(2)(c)) when two circumstances exist:

the Commissioner intends to order the institution to disclose information that might be covered by subsection 20(1)
the third party to whom the information relates can reasonably be located.

The Commissioner must also make every reasonable effort to give third parties written notice of her intention to order an institution to disclose information that might be covered by subsection 20(1) (section 36.3). This notice must describe the information and give the third parties 20 days after the notice is given to make any representations.

When the Commissioner consults the Privacy Commissioner

Complaints may include allegations that institutions have improperly withheld personal information under subsection 19(1). Complainants and institutions may be asked, or may provide of their own accord, representations throughout the investigation.

However, when the Commissioner intends to order an institution to disclose information it withheld under subsection 19(1), she must also, under section 36.2, consult the Privacy Commissioner. She does this by providing the Privacy Commissioner with a reasonable opportunity to make representations.

The Information Commissioner may also decide, under subsection 36(1.1), to consult the Privacy Commissioner during an investigation. Again, she does this by providing the Privacy Commissioner with a reasonable opportunity to make representations.

Contact information

The OIC communicates with parties to complaints using the contact information they provide.

It is the parties’ responsibility to keep their contact information up to date with the OIC at all times. Therefore, they must inform the OIC promptly if their contact information changes by sending an email with the new details to the Registry (Greffe-Registry@oic-ci.gc.ca) or the investigator.

Complainants

If the OIC is unable to reach a complainant at any time because it does not have the individual’s most recent contact information, the OIC will make a final written attempt at contact and give a 15-day (calendar days) deadline to respond. If the complainant does not respond, the investigator will recommend that the Commissioner cease to investigate the complaint.

Complainants may authorize someone to act on their behalf during an investigation. In this situation, the OIC requires this individual’s contact information, as well as written authorization from the complainant for this person to act on the complainant’s behalf.

Third parties

The OIC will make reasonable efforts to locate third parties when it is time to provide them with the opportunity to make representations. If the OIC is unable to locate a third party, the OIC will continue the investigation, and the Commissioner will make her findings without the benefit of the third party’s representations.

Third parties may also have an outside party (such as a law firm) act for them during an investigation. In this case, the OIC similarly requires contact information for the outside party and written authorization from the third party for the outside party to act on the third party’s behalf.