Procedures in response to amendments to the Access to Information Act
A number of targeted amendments were made to the Access to Information Act by the passage of Bill C-58 on June 21, 2019. Some of these amendments give new responsibilities and powers to the Information Commissioner and which, in turn, bring changes to the way the Office of the Information Commissioner (OIC) conducts its investigations.
Below are details on these changes. Some of these changes apply only to access requests institutions received and to complaints made to the OIC on or after June 21, 2019, others apply to all complaints whether they were made before, on or after that date.
Applying for the Information Commissioner’s approval to decline to act on access requests
Institutions may now ask the Information Commissioner for approval to decline to act on access requests made on or after June 21, 2019, that are vexatious, made in bad faith or otherwise an abuse of the right to make a request for access to records.
Institutions have the obligation to justify why their application for approval to decline to act on an access request should be granted. In general, institutions will have one opportunity to explain why the Information Commissioner should approve their application. Requesters will also be given an opportunity to submit reply submissions where the Information Commissioner determines the application merits further consideration for approval.
The period set out in the Act for institutions to respond to the access request is suspended from the day institutions communicate with the Information Commissioner, to the day they receive the Information Commissioner’s written decision. If the Information Commissioner does not grant the application, the time period to respond to the access request resumes the following day.
When the OIC wishes to decline to act on an access request, the Information Commissioner asks the Information Commissioner ad hoc for approval to do so.
For more information
- Process: Seeking the Information Commissioner’s approval to decline to act on an access request
- Interpretation: Seeking the Information Commissioner’s approval to decline to act on an access request
Consulting the Privacy Commissioner during investigations
The Information Commissioner may now consult with the Privacy Commissioner during investigations of any complaints.
The Information Commissioner, however, must consult the Privacy Commissioner when she intends to order an institution to disclose information to which the exemption for personal information has been applied.
Involving third parties during investigations
The Information Commissioner will continue to seek representations from third parties where their information may be at issue in investigations.
When the Information Commissioner intends to make an order requiring an institution to disclose records or part of a record that might contain information that is exempt under subsection 20(1) (third-party information), the Information Commissioner will make every reasonable effort to give third parties a written notice of her intention.
For more information
- Process: Investigating complaints involving the exemption for third-party information (Complaints received by the OIC before June 21, 2019 - subjected to recommendations only)
- Process: Investigating complaints involving the exemption for third-party information (Complaints received by the OIC on or after June 21, 2019 - subjected to orders, recommendations or both)
Refusing or ceasing to investigate complaints
For complaints made on or after June 21, 2019, the Information Commissioner may refuse or cease to investigate complaints she considers to be trivial, frivolous, vexatious, made in bad faith or otherwise unnecessary having regard to all the circumstances of the complaint.
If the Information Commissioner refuses or ceases to investigate complaints, she will notify complainants and provide reasons for doing so. Institutions will be notified when a notice of intention to investigate was provided to them under section 32. Other parties will also be notified when the Act requires it.
The Information Commissioner is now reporting the findings of her investigations in initial reports and/or final reports. However, the Information Commissioner will issue initial reports only when she finds that complaints are well founded and she makes recommendations and/or she intends to make orders.
Initial reports are only provided to institutions. They contain the Information Commissioner’s findings, any orders she intends to make, and any recommendations she makes. They also set out the period within which institutions have to give her notice of the action they have taken or propose to take to implement her orders and/or recommendations or the reasons why they will not take any action.
Final reports are provided to complainants and institutions. If third parties and/or the Privacy Commissioner were involved in the investigation, they also receive a copy. They set out the results of the Information Commissioner’s investigation and any order and/or recommendations she makes.
When the Information Commissioner has issued initial reports, she will issue her final reports either:
- After she receives the above-mentioned notice from institutions about any actions to implement recommendations and/or orders, or
- After the time within which the notice is to be given has passed.
When the Information Commissioner does not issue initial reports to institutions, final reports are issued at any time after the completion of her investigation.
The Information Commissioner may also publish her final reports for any investigations completed after June 21, 2019.
For complaints made on or after June 21, 2019, the Information Commissioner may now make any order in respect of a record when she finds that these complaints are well founded.
If no one applies for a review before the Federal Court, orders from the Information Commissioner take effect:
- 31 business days after they are received by institutions if the complaint only involved the institution and the complainant, or
- 41 business days after they are received by institutions if the complaint also involved third parties and/or the Privacy Commissioner.
Reviewing matters before the Federal Court
If institutions do not want to implement an order from the Information Commissioner, they must now apply to the Federal Court for a review of the matter that is the subject of the Information Commissioner’s order. Complainants, third parties and the Privacy Commissioner may also apply for a review by the Federal Court in certain circumstances.
For more information
- Guidance : Seeking a review before the Federal Court