Annual Report: 2002-2003

B. Demystifying the Investigative Process

When the Information Commissioner is of the view that evidence or representations should be offered "on the record", the investigative process may become more formal. Situations which may trigger a more formal process include:

1) Lack of cooperation by a witness/departmental official with the informal process (i.e. failure to agree to an interview time; failure to appear for interview; refusal to answer a question; insistence on a formal, on-the-record process; refusal to provide records; inappropriate behaviour);

2) Presence of circumstances (such as, for example, allegations of wrongful destruction of records) which may give rise to a finding, comment or recommendation which is adverse to an individual;

3) The existence of conflicting evidence and issues of credibility;

4) Potential that judicial proceedings may ensue;

5) Insistence by a witness that he or she be accompanied by counsel; and

6) The need to ensure that a witness fully understands the nature, quality and gravity of the evidence which they have offered informally.

In the formal process, evidence is taken during a proceeding conducted by a presiding officer delegated for the purpose by the Information Commissioner. Formal proceedings are arranged by invitation, at a mutually convenient time. Only if it is not possible to secure the witnesses' participation voluntarily will a subpoena be issued to compel attendance. Usually, formal proceedings are conducted on the premises of the Information Commissioner. The formal proceeding is recorded (usually audio only, although audio-visual recording may be made to facilitate investigative training) and witnesses swear an oath to be truthful and complete in their evidence. Witnesses may be accompanied by counsel but not by co-workers, supervisors or representatives of the witness's employer. Evidence may be received from more than one witness during a proceeding if the presiding officer is satisfied that a panel of witnesses would assist the investigation and all witnesses agree to be interviewed in the presence of the others.

The presiding officer conducts all aspects of the proceeding including the conduct of the questioning and ruling on procedural and evidentiary issues. The presiding officer may be assisted by counsel and investigative staff during the proceeding. The presiding officer is not constrained by the rules of evidence applicable to the courts and, hence, may require evidence on any matter he or she considers relevant to the full investigation and consideration of the complaint(s).