2008-2009 Appendix 1. Report of the Information Commissioner ad hoc

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The authority of the Information Commissioner ad hoc is the delegation by the Information Commissioner of Canada, pursuant to section 59 of the Access to Information Act (the ATI Act). The current delegation is effective May 1, 2008 for a one-year period, until such time as it is revoked, amended or renewed. It is the second similar delegation, the first having been issued in 2007 to the Honourable Peter Cory.

The delegation by the Commissioner provides authority for

“ . . .the Hon. W. Andrew MacKay, as commissioner ad hoc, to exercise or perform all of the powers, duties and functions of the Information Commissioner set out in the Access to Information Act, including sections 30 to 37 and section 42 inclusive of the Access to Information Act, for the purpose of receiving and independently investigate any complaint described in section 30 of the Access to Information Act arising in response to access requests made in accordance with the Act to the Office of the Information Commissioner of Canada.”

The delegation implements arrangements whereby the Office of the Information Commissioner is subject to the ATI Act. Thus, that Office’s activity and decisions in relation to access requests made to it are subject to review, like other government institutions of Canada, in accord with the Federal Accountability Act, of 2007 and amendments then made to the ATI Act.

It is of fundamental importance as emphasized in the Report of the Ad Hoc Access to Information Commissioner by the Honourable Peter Cory in 2008 that the role of the Ad Hoc Commissioner be completely independent of the Information Commissioner, with a separate office, mailing address, telephone, investigating and secretarial assistance.

In my view the necessary independence of the Office of the Commissioner ad hoc has been maintained in the past year and its independence has been respected by the Information Commissioner, through whose good offices the needs of the work of the Commissioner ad hoc have been met. Expenses of the office, support for an experienced senior investigating officer, for secretarial assistance, and for legal advice have been provided as needed. In particular, I acknowledge the assistance of Ms. Julia O’Grady, whose work, investigating and resolving complaints for this office independent of but with cooperation of the Commissioner’s staff, and whose advice to me, have been invaluable.

Since May 1, 2008 this office has been concerned with a dozen complaints. All have been investigated. A few of these were initiated before May 1, 2008. Three of those, which remain unresolved, concern the issue of control by a government institution, in this case the Office of the Information Commissioner, of certain computer-based information. The complaints raise issues of both fact of concern to the Commissioner, and law for which I have obtained independent legal advice. Those complaints will, I trust, soon be resolved.

Other complaints initiated in 2008 raise issues of the application of section 16.1 of the ATI Act in situations where the Office of the Information Commissioner has contended the information requested by a complainant is exempt from release as information obtained or created in the course of an investigation or examination conducted by that office. It is noted that if it is such information, it is exempt from release only pending conclusion of the investigation and related proceedings by that Office. A process for review by the Commissioner of any such request after conclusion of an investigation would be an appropriate routine.

Three complaints raised the issue of the jurisdiction of the Information Commissioner ad hoc in circumstances where the information was refused to be released by the government institution which was asked for it after the institution had consulted with the Office of the Information Commissioner. As I interpret jurisdiction of the Commissioner ad hoc, as set out in the delegation above, unless the Information Commissioner is requested information and refuses to release it there is no decision by his office that is to be reviewed.

I concur with the words of my predecessor, the Honourable Peter Cory, “In my view, it is necessary to maintain the Office of the Ad Hoc Commissioner. This is necessary in order to ensure that someone independent of the Commissioner has considered the complaints made against the Commissioner were properly considered and appropriately dealt with.” That continues to be the goal of this office.

Respectfully submitted,

Andrew MacKay

The Honourable W. Andrew MacKay

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