Annual Report: 2002-2003

In last year's annual report, the view was offered that one of the reasons for the lengthy duration of the commissioner's investigations (in addition to insufficiency of resources) is the slowness by institutions in responding to investigative requests for meetings, explanations and documentation. As well, last year, the commissioner informed government to his intention to develop timelines for investigative activities designed to bring investigations to completion by fixed target dates or "standards". Such timelines and standards were developed, shared with Treasury Board and discussed with the community of access to information coordinators. Having taken into account comments and suggestions made during the consultation process, the commissioner has adopted the following service timelines and standards to guide the work of his investigators and government officials with whom they deal.

Policy on Service Standards

It is the policy of the Office of the Information Commissioner that every reasonable effort will be made, in cooperation with complainants and government institutions, to complete all "administrative" complaints (delays, fees, language and extensions) within 30 days from the issuance of the notice to the department under section 32 of the Act. With respect to all other complaints (exemptions, exclusions and missing records), every reasonable effort will be made to complete them within 90 days from the date of the issuance of the notice.

In order to achieve these targets, it will be necessary to expect staff of the Office of the Information Commissioner, and staff of government institutions against which complaints are made, to respect certain timelines and processes in their dealings. In excess of 90 percent of investigations are informal (evidence is not taken under oath or recorded, the production of records or witnesses is not compelled by order, original records are rarely required). Consequently, these service standards guide the informal investigative process.

1. Within five days of being assigned a complaint, the investigator will make every reasonable effort to communicate in person or by telephone with the complainant for the following purposes:

   i)	to make introductions and provide the complainant with information concerning how to contact the investigator;
   ii)	to explain the commissioner's investigative process and the complainant's right to make representations;
   iii)	to discuss the nature of the complaint to ensure that it is well-understood by the investigator and well-focussed by the complainant; and
   iv)	to obtain all supporting evidence available to the complainant.

2. Based on a review of the wording of the complaint, supporting evidence provided by the complainant and any clarifications provided by the complainant, the investigator will make a determination as to whether or not the complaint constitutes a matter falling within the commissioner's jurisdiction as set out in subsection 30(1) of the Access to Information Act. If the investigator determines that the matter of the complaint does not fall within the investigative jurisdiction of the Information Commissioner, the investigator will report the matter to the Information Commissioner with a recommendation that the complainant be so informed. The final decision whether or not the commissioner has jurisdiction to investigate a matter rests with the Information Commissioner.

3. If the complaint concerns a matter falling within the commissioner's jurisdiction, the investigator will formally initiate the investigation by personally serving a notice of intention to investigate, containing a summary of the substance of the complaint (as required by section 32 of the Act), on the delegate of the head of the institution against which the complaint is made. Normally, the delegate receiving the commissioner's section 32 notices is the institution's access to information and privacy coordinator.

4. Investigators and institutional access coordinators are expected to work together to arrange a mutually convenient time, within five days of a request to the coordinator by the investigator, for the initial investigation meeting. The purpose of the initial meeting will be:

   i)	to effect personal service of the section 32 notice;
   ii)	to ensure that there is a common understanding of the complaint;
   iii)	to provide the investigator with the original of the institution's administrative file(s) relating to the processing of the access request(s) to which the complaint relates as well as a copy of the ATIPflow record related to the request(s) to which the complaint relates. The original file will be copied by the investigator on-site or returned to the institution within 10 days after a copy is made.
   iv)	to ensure that the investigator has an up-to-date copy of the institution's designation order pursuant to section 73 of the Act;
   v)	to obtain copies or originals of all records relevant to the access request(s) in respect of which a complaint of improper denial of access has been made. These records are to be provided in their entirety except in cases where the institution has relied on section 69 of the Act to deny access to the requester and there is appropriate documentation from PCO in the processing file confirming that the withheld information constitutes a cabinet confidence;
   vi)	to obtain any additional documentation not contained in the processing file which sets out the rationale on which the designated authority relied in invoking any of the Act's fee, extension, exclusion or exemption provisions (or any other provision to which the complaint relates);
   vii)	to obtain names and contact information for the principals involved in the processing of the request(s) to which the complaint relates including: the assigned ATIP analyst; the OPI official(s) who provided advice concerning the sensitivity of the records and/or the time, effort and cost involved in processing the request(s); the individual(s) who conducted the search for relevant records; and the individuals who approved the response giving rise to the complaint;
   viii)	to compile a list of deficiencies including: adequacy of the section 32 notice and adequacy of the processing file;
   ix)	arrange a mutually convenient time for a second meeting, within 10 days of the initial meeting.

   (Note: original records provided to the investigator will be returned within 10 days of a request for them as provided for in subsection 36(5) of the Act.)

5. The purpose of the second investigative meeting between the investigator and the ATIP coordinator will be:

   • to address any outstanding information deficiencies;
   • to discuss and finalize the investigator's plan for future steps in the investigation. The investigation plan will include specific dates for completion of investigative steps designed to bring the investigation to a conclusion within the target dates (i.e. 30 days (administrative complaints); 90 days (denials of access)).

6. The investigator will, after receiving the institution's representations, afford the complainant an opportunity to make representations and to respond to the substance of the institution's representations (subject to the investigator's confidentiality obligations under sections 63 and 64 of the Act).

7. Within five days of completion of the steps set out in the investigation plan, the investigator will complete and submit to the Information Commissioner a report of the results of the investigation including the investigator's recommendation as to whether the complaint is:

   1. not well-founded
   2. resolved
   3. well-founded with recommendations to the head of institution for remedial action.

The investigator's report will, when warranted, specify reasons why the 30-day or 90-day service standard was not met.

The Investigation Plan

Since it is the role of the Information Commissioner to conduct independent, thorough investigations, it is essential to avoid the reality or appearance that government institutions control how investigations of complaints against them will be conducted.

Nevertheless, it is also important to make investigations as efficient as possible by securing, informally, the cooperation of institutions in assisting investigators in fact-finding, obtaining representations and finding solutions. It is for this latter purpose that investigators will discuss, with ATIP coordinators, certain elements of their investigation plans. In rare cases, where there may be allegations of wrongdoing, issues of credibility or special confidentiality requirements, investigators may choose to refrain from sharing elements of the investigation plan with ATIP coordinators.

Ordinarily, the investigator seeks the agreement of the ATIP coordinator to facilitate specific activities within specific times. The elements of the investigation plan for which timelines are to be discussed and agreed upon at the second investigative meeting include:

1. interviews with officials;
2. provision of additional records to the investigator;
3. provision by investigator to ATIP coordinator of his or her analysis of the merits of the position of the institution;
4. provision by the designated official to the investigator of representations in support of his or her decisions;
5. provision by the investigator to the designated officials of a proposal for resolution (subject to the approval of the Information Commissioner);
6. provision by the designated officials to the investigator of a response to the investigator's proposed solution; and
7. when relevant, a statement of reasons why it was not possible to agree on times which permit the investigative activities in the plan to be completed within the 30-day or 90-day service standard.

The Information Commissioner recognizes that the ability of his office, and government institutions against which complaints are made, to meet these investigative service standards will depend on adequate resources, efficient processes, as well as mutual cooperation, respect and goodwill. Experience will be carefully monitored in consultation with Treasury Board Secretariat. If service standards cannot be met, early action will be taken to address the causes.