2015 Chapter 5: Strengthening oversight
A key element of an access to information regime is independent and effective oversight of government decisions. An effective oversight model assists requesters in obtaining the information to which they are entitled in a timely manner.
The two main oversight models featured in Canada are the ombudsperson model and the order-making model.Footnote 1
The Act follows an ombudsperson model, with strong investigative powers provided to the Commissioner. Under section 36 of the Act, the Commissioner’s investigative powers include obtaining and reviewing all records required for an investigation (with some exceptions), issuing subpoenas, administering oaths, and entering the premises of any government institution.
Under this model, the Commissioner may also investigate a broad range of issues.Footnote 2
After concluding an investigation, the Commissioner may issue recommendations to institutions. These recommendations are not binding. When an institution does not follow her recommendations, the Commissioner’s (and the complainant’s) recourse is limited.
Under section 42 of the Act, the Commissioner may, with the complaint’s consent, apply to the Federal Court for a review of the institution’s decision to refuse disclosure. The hearing before the Federal Court is de novo, which means the review of the application of exemptions begins anew, with evidence being introduced afresh before the Court.
There are significant drawbacks to this model:
- The Act provides that the Federal Court may only review an institution’s refusal to disclose information.Footnote 3 There are situations that are not subject to judicial review, despite the fact that the Commissioner has the authority to investigate and make recommendations on a broad range of issues.Footnote 4 Without an ability to have the Court review these recommendations, requesters have no avenue to enforce their rights when an institution does not follow the Commissioner’s recommendations.Footnote 5
- Strict confidentiality requirements imposed on the Commissioner prevent her from routinely publishing her findings and recommendations.Footnote 6 Consequently, there is not a wide body of precedents guiding institutions and requesters. This often results in the same issues being investigated needlessly.
- Different interpretations of the Act between the Treasury Board of Canada Secretariat and the Commissioner result in conflicting guidance to institutions. This leads to unnecessary complaints, as well as litigation.Footnote 7
- The de novo hearing before the Federal Court allows institutions to present new or fulsome representations to the Court and has, at times, resulted in the application of new exemptions.
As a whole, the ombudsperson model provides no incentive on institutions to maximize disclosure in a timely manner, particularly in instances where the institution may wish to delay disclosure.
Under an order-making model, the Commissioner is an adjudicator. The adjudicator receives appeals from requesters regarding an institution’s treatment of their access request, including the institution’s decision on disclosure.Footnote 8 The Commissioner may mediate the appeal and, if necessary, adjudicate the appeal based on the representations that have been provided. At the conclusion of the adjudication, an order disposing of the issues raised in the appeal must be rendered. This order is binding.
This model features a number of benefits:
- It gives a clear incentive to institutions to apply exemptions only where there is sufficient evidence to support non-disclosure and then put this evidence before the adjudicator, as judicial review before the Court is based on the record that was before the adjudicator.
- The grounds on which the order can be set aside are limited and the institution cannot introduce new evidence or rely on new exemptions, as it is the adjudicator’s, and not the institution’s, decision that is under review before the Court.
- It avoids the redundancy of having two levels of review of the same decision, which can result in more timely access to information.
- The burden to seek a judicial review before the Court is on institutions, and not requesters, if the institution wishes to oppose the disclosure ordered by an adjudicator.
- It provides finality for requesters because orders of the adjudicator are binding unless reviewed by the Court.
As a whole, the order-making model puts the incentive on institutions to maximize disclosure in a timely manner and reduces the burden on requesters.
Ombudsperson vs. Order-making model
Requesters complain to the Commissioner about an institution’s handling of a request.
Requesters appeal to the Commissioner about an institution’s decision about a request.
The Commissioner mediates and
The Commissioner begins with mediation and, if mediation fails to resolve the entirety of the appeal, she adjudicates.
The Commissioner recommends a resolution to the complaint.
The Commissioner issues an order disposing of the issues raised in the appeal.
If there is no resolution, the Commissioner, with the complainant’s consent, or the complainant, must seek a de novo review of the institution’s decision to refuse disclosure.
If the institution continues to oppose disclosure, it must seek judicial review of the Commissioner’s order. This review would bebased on the record that was before the Commissioner.
Adopting a more effective model
An order-making model has become the progressive standard. Sixty-eight percent of all the countries that have implemented an access law in the past ten years feature an order-making model.Footnote 9 It can also be found in the access laws of B.C., Alberta, Ontario, Quebec, P.E.I., the U.K., India and Mexico. Model access laws and recent private members’ bills also endorse this approach.Footnote 10
Adopting an order-making model in the Act would provide the following benefits to requesters:
- The processing of requests would be more timely because institutions would be aware that the Commissioner could order that a request be processed by a certain time.
- The Commissioner’s ability to issue binding orders would instill in the appeals process more discipline and more predictability. It would also provide an incentive for institutions to make comprehensive and complete representations to the Commissioner at the outset.
- Orders would create a body of precedents that increases over time. Requesters and institutions would then have clear direction as to the Commissioner’s position on institutions’ obligations under the Act. The body of precedents would also reduce the likelihood that the Commissioner would have to review issues that have already been adjudicated.
- The Commissioner’s orders would provide finality to the requester (unless the decision of the Commissioner is judicially reviewed).
- The burden to seek judicial review of a decision of the Commissioner would be on the institution.
- Judicial reviews to the Federal Court would be more limited and would consist of a review of the Commissioner’s adjudication, rather than being a de novo hearing.
After overseeing more than 10,000 investigations, the Commissioner is of the view that, of the two models, the order-making model best protects information rights under the Act.
The Information Commissioner recommends strengthening oversight of the right of access by adopting an order-making model.
Discretion to adjudicate
All of the jurisdictions that adopt an order-making model in Canada give their respective commissioners the discretion to adjudicate an appeal.Footnote 11 Such discretion can also be found in the access law of the U.K.Footnote 12
Giving the Commissioner the discretion to adjudicate an appeal would ensure effective control of the adjudicative process. To protect appellants’ right to an independent review of an institution’s decision under the Act, any decision not to adjudicate an appeal should be subject to judicial review.
The Information Commissioner recommends providing the Information Commissioner with the discretion to adjudicate appeals.
Mediation provides a way to amicably resolve appeals or narrow issues for adjudication. Mediation can be a powerful tool for resolving appeals, especially when order-making is available to focus the negotiations and provide an incentive to resolve issues. Many laws that adopt an order-making model also allow for mediation of an appeal.Footnote 13
Given the positive experience of other jurisdictions that have paired mediation with order-making powers, the Commissioner recommends that the Act should include the explicit authority to resolve complaints by mediation.
The Information Commissioner recommends that the Act provide for the explicit authority to resolve appeals by mediation.
Enforcement of orders
The Act should provide a mechanism to certify the Commissioner’s orders as orders of the Federal Court. This is important to ensure enforcement of her orders issued pursuant to her investigative powers under section 36 and under an order-making model.Footnote 14
The Canadian Human Rights Act provides for the certification of orders made by the Canadian Human Rights Tribunal through the Federal Court.Footnote 15 Once this occurs, orders are deemed to be orders of the Federal Court for the purposes of enforcement. Any subsequent failures to observe the terms of a certified order would be subject to the contempt process of the Federal Court and dealt with accordingly.
The Information Commissioner recommends that any order of the Information Commissioner can be certified as an order of the Federal Court.
Since an order-making model is adjudicative, it is important to specify in the legislative regime the scope of powers, in addition to issuing orders, necessary to maximize the effectiveness of the oversight model and the access to information regime.
Issues that have been the focus of Commissioner-initiated investigations
- The use of instant messaging across government institutions
- The processing of requests in relation to timeliness at specific institutions
The laws of B.C., Alberta, Québec and P.E.I., which have adopted an order-making model, all include the power to conduct investigations at the Commissioner’s own initiative.
Under this model, the Commissioner would be able to investigate issues affecting information rights.
The Information Commissioner recommends that the Act maintain the existing power to initiate investigations related to information rights.
The ability to conduct audits into institutions’ general compliance with the Act would enable the Commissioner to proactively identify issues that are developing and address them in a timely and comprehensive manner. The Commissioner could issue recommendations to improve information rights practices.
Many jurisdictions that feature an order-making model also provide their respective commissioners with the general power to audit institutions’ compliance with the access law. Such a mandate has also been recommended in Canada previously.Footnote 16
The Information Commissioner recommends that the Act provide for the power to audit institutions’ compliance with the Act.
To support her investigative function, the Commissioner should continue to have strong investigative powers. These powers facilitate the effectiveness of investigations and ensure the co-operation of institutions during investigations.
The access laws of B.C., Alberta and P.E.I. feature an order-making model and also provide their respective commissioners with investigative powers.
The Information Commissioner recommends that the Act maintain the existing investigative powers of the Information Commissioner.
In Scotland, the Information Commissioner is responsible for promoting Scotland's freedom of information law and has published several surveys on public awareness of freedom of information.
The first survey, conducted in 2004, just prior to the coming into force of the Freedom of Information (Scotland) Act 2002 found that only 44% of respondents were aware of the act. By 2014, this number had increased to 84%.
These surveys are available online: Scottish Information Commissioner, Research.
As part of Canada’s Action Plan on Open Government 2014–2016, the government recognized that digital literacy skills are needed to take full advantage of the benefits of open data, information, and dialogue. The government therefore committed to develop tools, training resources, and other initiatives to help Canadians acquire the essential skills needed to access, understand, and use digital information and new technologies. The same level of commitment and effort needs to be put towards educating Canadians on their right of access.
Without knowledge of the right of access and how to exercise it, Canadians are missing an opportunity to exercise their democratic rights and hold their government to account. However, absent an express mandate for education, the Commissioner is limited in how she can increase awareness.
An education mandate for commissioners or a similar power to promote the right of access can be found in all but one provincial access law, as well as in the laws of Canada’s international counterparts and in various model laws.Footnote 17 Such a mandate has also been recommended in Canada previously.Footnote 18
The experiences in other jurisdictions have demonstrated that an education mandate poses no risk to the impartiality of the Commissioner. In addition, giving the Commissioner such a mandate would bring the Act in line with comparable jurisdictions and increase the profile of the Act and the right of access generally.
The Information Commissioner recommends that the Act provide for the power to carry out education activities.
The authority to conduct, commission or publish research is becoming more common among the provinces and comparable jurisdictions.Footnote 19 The federal Privacy Commissioner has a mandate to conduct and publish research related to the protection of personal information under section 24(b) of the Personal Information Protection and Electronic Documents Act. Former commissioners have recommended a similar mandate for the Information Commissioner.Footnote 20
By carrying out research that draws from and includes Canadian perspectives, the Commissioner could help generate information, insights, analysis and, in some instances, debate on access to information. In turn, these would contribute to the protection and promotion of the right of access.
The Information Commissioner recommends that the Act provide for the power to conduct or fund research.
The Commissioner proactively comments on legislation that impacts access rights once it has been tabled in Parliament. Unfortunately, the lack of a mandatory consultation provision in the Act has contributed to the growth of Schedule II and in the number of laws that contain language that is intended to supersede the Act (as described in Chapter 4), thereby eroding the right of access.Footnote 21
Current and former commissioners, as well as reports on reforming the Act, have considered providing independent input or advice on the potential impacts to access to information to be an important part of the Commissioner’s role and responsibilities, and have recommended providing this mandate to the Commissioner.Footnote 22
The authority to comment on the implications for access to information of proposed legislation can be found in the access laws of the majority of provinces, and is also recommended in the Organization of American States model law.Footnote 23
The Information Commissioner recommends that the government be required to consult with the Information Commissioner on all proposed legislation that potentially impacts access to information.
Treasury Board of Canada Secretariat’s “Information Management Protocol - Instant Messaging Using a Mobile Device” recommends that departments should not use automatic logging of instant messages.
The Commissioner was not consulted on this protocol before its implementation.
This protocol is contrary to the Commissioner’s recommendations in her special report Instant messaging putting access to information at risk. In this report, the Commissioner found that there was a real risk that information communicated via instant message that should be accessible by requesters was being irremediably deleted or lost. She specifically recommended that an adequate technical safeguard mechanism be made available and implemented to ensure that instant messages (whether or not of business value) were archived on a government server for a reasonable period of time.
Access to information should be included by design in programs and activities.Footnote 24 To achieve this, the Commissioner recommends that institutions be required to complete access to information impact assessments in a manner that is commensurate with the level of risk identified to access to information rights, before establishing any new or substantially modifying any program or activity.
This would allow institutions and the Commissioner to proactively address issues that may impact access to information rights.Footnote 25
The Information Commissioner recommends that institutions be required to submit access to information impact assessments to the Information Commissioner, in a manner that is commensurate with the level of risk identified to access to information rights, before establishing any new or substantially modifying any program or activity involving access to information rights.
Appointment and term of the Commissioner
Under section 54, an Information Commissioner holds office during good behaviour for a term of seven years and may only be removed with cause. He or she is appointed by the Governor in Council, after consultation with the leader of every recognized party in the House of Commons and Senate, and after approval by resolution of both houses.
This appointment process in the Act could be amended to reflect model laws and be consistent with the appointment of the other agents of Parliament.
Model laws provide that the appointment of an Information Commissioner should be approved by a supermajority of the legislature (i.e. more than two-thirds). Footnote 26 There should also be eligibility criteria for the position.Footnote 27
The Auditor General and the Chief Electoral Officer are both appointed for a ten-year term, which is not subject to renewal.Footnote 28
The Information Commissioner recommends:
- that the appointment of the Information Commissioner be approved by more than two-thirds of the House of Commons and the Senate;
- 10 years relevant experience in order to be eligible for the position of Information Commissioner; and
- a non-renewable, 10-year term for the position of Information Commissioner.
- Footnote 1
A third oversight model, which allows for appeals directly to the court, can also be found internationally.
- Footnote 2
Section 30(1)(f) provides that the Commissioner may investigate any matter relating to requesting or obtaining access to government-held records. In addition, sections 30(1)(a)–(e) provide that she may receive and investigate complaints from (a) persons who have been refused access to a record requested under this Act or a part thereof; (b) from persons who have been required to pay a fee that they consider unreasonable; (c) from persons who have requested access to records in respect of which time limits have been extended pursuant to section 9 where they consider the extension unreasonable; (d) from persons who have not been given access to a record or a part thereof in the official language requested by the person or have not been given access in that language within a period of time that they consider appropriate; (d.1) from persons who have not been given access to a record or a part thereof in an alternative format or have not been given such access within a period of time that they consider appropriate; (e) and in respect of any publication or bulletin institutions are required to publish as per section 5.
- Footnote 3
As per section 41.
- Footnote 4
See n. 2 for a list of the issues the Commissioner may investigate in addition to an institution’s refusal to disclose information.
- Footnote 5
Where an institution does not wish to follow the Commissioner’s recommendation with respect to issues that are not reviewable by the Court, the Commissioner’s ability to assist the requester is limited to negotiating with the institution the most suitable outcome possible.
- Footnote 6
During an investigation, the Commissioner may only disclose information when it is necessary to carry out an investigation or establish the grounds for her findings and recommendations (section 63(1)(a)(i) and (ii)); in the course of a prosecution for an offence under the Act, a prosecution for an offence under section 131 of the Criminal Code, RSC, 1985, c C-46 (perjury) in respect of a statement made under the Act, a review before the Federal Court under the Act or an appeal (section 63(1)(b)); or to the Attorney General of Canada when, in the Commissioner’s opinion, she has evidence relating to the commission of an offence against a law of Canada or a province by a director, officer or employee of a government institution (section 63(2)). Once an investigation is complete, the Commissioner must report her findings to the complainant and any third parties entitled to make representations concerning the disclosure of the requested information. In addition, when a complaint is well founded, the Commissioner must, prior to reporting her findings to the complainant, provide the institution with her findings and any recommendations for resolving the complaint. The Commissioner may inform the public about her investigations through her annual report to Parliament. She may also issue special reports that can be tabled in Parliament at any time; however, they must be related to an important or urgent matter within the scope of the Commissioner’s assigned powers, duties and functions.
- Footnote 7
For example, as a result of conflicting guidance, the Commissioner made a reference to the Federal Court in 2013 seeking a determination on whether institutions may charge search and preparation fees for electronic records when the Regulations under the Act specify that institutions are allowed to charge such fees when records are non-computerized. Information Commissioner of Canada v Attorney General of Canada et al. (T-367-13).
- Footnote 8
The following discussion in this chapter is based on an appeal of an institution’s refusal to disclose information.
- Footnote 9
Where the access law established an independent oversight body dedicated to access to information. Some countries provide that complaints go directly to the court or to a human rights commissioner. The countries that adopted an order-making model for the independent body overseeing the right of access are Maldives, Ivory Coast, Sierra Leone, Guyana, Yemen, Malta, Hungary, El Salvador, Brazil, Liberia, Indonesia, Ethiopia, Chile, Bangladesh, Nepal, Macedonia, Honduras, India and Azerbaijan.
- Footnote 10
The Article 19 and Organization of American States model laws, and the Open Government Guide all include order-making powers for their respective oversight authorities. Bill C-567 at cl. 5 and Bill C-613 at cl. 8 both amended the Act to include an order-making model. Article 19. A Model Freedom of Information Law. 2006. Organization of American States. Model Inter-American Law on Access to Public Information and its Implementation Guidelines. 2012. Open Government Guide. Welcome to the Open Gov Guide. 2013. The chapter on right to information can be found here; and Bill C-567, An Act to Amend the Access to Information Act (Transparency and Duty to Document), 2nd Sess, 41st Parl, 2014; Bill C-613, An Act to amend the Parliament of Canada Act and the Access to Information Act (transparency), 2nd Sess, 41st Parl, 2014.
- Footnote 11
The laws of B.C., Alberta, Ontario, Quebec and P.E.I. all give the respective commissioners the discretion to refuse to adjudicate. In Alberta and P.E.I., this discretion is limited to where the subject-matter of the appeal has been dealt with in an order or investigation report of the Commissioner or the circumstances warrant refusal. In Ontario, in addition to having the discretion to adjudicate, the Commissioner may also immediately dismiss an appeal if the notice of appeal does not present a reasonable basis for concluding that the record to which the notice relates exists. In Quebec, the Commission d’accès à l’information may refuse or cease to examine a matter if it has reasonable cause to believe that the application is frivolous or made in bad faith or that its intervention would clearly serve no purpose.
- Footnote 12
The law in the U.K. provides that the Commissioner does not have to provide a decision where it appears that the complainant has not exhausted any complaints procedure which is provided by the public authority in conformity with the code of practice; there has been undue delay in making the application; the application is frivolous or vexatious; or the application has been withdrawn or abandoned.
- Footnote 13
The laws of B.C., Alberta, Ontario and P.E.I. all give their commissioners the authority to mediate disputes, as well as order-making power.
- Footnote 14
This issue was most recently addressed in Rowat v Canada (Information Commissioner) (2000), 193 FTR 1 (FCTD).
- Footnote 15
RSC, 1985, c H-6 at section 57.
- Footnote 16
The laws of B.C., Alberta, Quebec and P.E.I. all include the power to conduct investigations and audits to ensure compliance with the law in conjunction with order-making, as do the Article 19 and Organization of American States model laws. Making it Work for Canadians and the Open Government Act both recommended giving such power to the Commissioner. Canada, Access to Information Task Force, Access to Information: Making it Work for Canadians (Ottawa: Public Works and Government Services Canada, 2002); Office of the Information Commissioner. Open Government Act. October 25, 2005.
- Footnote 17
Nova Scotia’s law does not include an education mandate. The U.K. and Mexican laws (in the latter case, through the publication of a guide on the procedure to access government information), the Article 19 and Organization for American States model laws and the Open Government Guide all provide for this type of mandate.
- Footnote 18
See the Information Commissioner’s 1992–1993 Annual Report. See also the Open Government Act and Office of the Information Commissioner. Strengthening the Access to Information Act to Meet Today's Imperatives. March 9, 2009. Open and Shut recommended that the Commissioner be given the mandate to foster public understanding of the Act and that the Treasury Board of Canada Secretariat conduct a public education campaign (Canada, Parliament, House of Commons, Standing Committee on Justice and Solicitor General, Open and Shut: Enhancing the Right to Know and the Right to Privacy, 2nd Sess, 33rd Parl, No 9 (March 1987) (Chair: Blaine A. Thacker)). Making it Work for Canadians recommended amending the Act to recognize the role of the Commissioner in educating the public about the Act and access to government information in general.
- Footnote 19
The laws of B.C., Alberta, Saskatchewan, Manitoba, Ontario, the U.K. and Mexico (all of which were passed after the Access to Information Act) give the Commissioner such power.
- Footnote 20
See the Open Government Act and “Strengthening the Access to Information Act to Meet Today’s Imperatives.”
- Footnote 21
In 2013, the Commissioner wrote to the Minister of Justice and Attorney General of Canada to request that she be consulted during the drafting phase of legislation that impacts access rights. In his response, the Minister stated that the current approach to collaboration with the Commissioner was sound and did not need to be modified. See Information Commissioner of Canada. Letter to Peter MacKay, Minister of Justice and Attorney General of Canada (December 23, 2013) and Minister of Justice and Attorney General of Canada. Letter to Suzanne Legault, Information Commissioner of Canada (February 24, 2014).
- Footnote 22
See the Open Government Act, “Strengthening the Access to Information Act to Meet Today’s Imperatives,” Making it Work for Canadians and Department of Justice Canada. The Offices of the Information and Privacy Commissioners: The Merger and Related Issues (Report of the Special Advisor to the Minister of Justice) (Ottawa: Minister of Public Works and Government Services Canada, November 15, 2005).
- Footnote 23
The laws of B.C., Alberta, Manitoba, New Brunswick, P.E.I., and Newfoundland and Labrador give the Commissioner advisory authority. Quebec’s law provides that the Commission must give its opinion on draft regulations submitted to it under that law. In the U.S., the Office of Government Information Services can review policies and procedures of administrative agencies as they relate to the Freedom of Information Act.
- Footnote 24
More information about the concept of access by design can be found at: Information and Privacy Commissioner of Ontario. Introduction to access by design.
- Footnote 25
This requirement would be similar to privacy impact assessments, which help ensure that privacy protection is a core consideration when a project is planned and implemented. Under the Treasury Board of Canada Secretariat’s Directive on Privacy Impact Assessment, government departments must conduct a PIA in a manner that is commensurate with the level of privacy risk identified, before establishing any new or substantially modified program or activity involving personal information. Treasury Board of Canada Secretariat. Directive on Privacy Impact Assessment, April 1, 2010.
- Footnote 26
The Organization of American States and Article 19 model laws require a super majority to appoint a Commissioner. P.E.I. has adopted this approach.
- Footnote 27
Jurisdictions that use eligibility criteria include Quebec, Australia, Mexico and Serbia, as well as the model laws of the Organization of American States and Article 19. Examples of such criteria include that the person have legal or other significant relevant experience, have not recently held a government or political position, or have no criminal convictions. In Canada, as per section 81 of the Parliament of Canada Act, RSC, 1985, c P-1, the Conflict of Interest and Ethics Commissioner must be either a former judge, a former member of a federal or provincial board, commission or tribunal, or a former Senate Ethics Officer or former Ethics Commissioner. Judges of the Federal Court, as per the Federal Courts Act, RSC, 1985, c F-7 at section 5.3 must also meet eligibility criteria, including 10 years standing at the bar of any province. (Under section 55(2) of the Act, the Commissioner is to be paid a salary equal to the salary of a judge of the Federal Court, other than the Chief Justice of that Court.)
- Footnote 28
Auditor General Act, RSC, 1985, c A-17 at section 3; Canada Elections Act, SC 2000, c 9, s 13.