Annual Report: 2003-2004

4. Government Can’t Complain About Requesters

Background

For the first time since the coming into force of the Access to Information Act (1983), the Information Commissioner received a complaint from a government institution, Canadian Air Transportation Security Authority (CATSA). CATSA was created in 2002 to be responsible for security at Canadian airports.

After a senior official of CATSA was fired for harassment, the official made 14 access requests to CATSA (over a one-month period) for records on a variety of subjects. Three of the requests concerned, in part, individuals whose allegations of harassment had led to the requester’s firing.

CATSA formed the view that the requester’s use of the Access Act amounted to a continuing form of harassment and, in its complaint to the Information Commissioner, it asked the commissioner to endorse CATSA’s view that it is under no obligation to answer access requests which are being made as a form of harassment.

The requester was notified by CATSA of the complaint. He took the view that the Information Commissioner has no jurisdiction to investigate a complaint from a government institution.

Legal Issues

The matters which the Information Commissioner is authorized to investigate are set out in subsection 30(1) of the Access to Information Act. CATSA argued that paragraph 30(1)(f) governs this case. It provides:

"Subject to this Act, the Information Commissioner shall receive and investigate complaints
(f) in respect of any other matter relating to requesting or obtaining access to records under this Act."

In CATSA’s view, this is a broadly worded jurisdiction which, unlike some other paragraphs of subsection 30(1), is not limited by the words "from persons". CATSA also drew a connection between the words in paragraph 30(1)(f) and the broad powers in paragraph 37(1)(a) which authorize the commissioner to make "any recommendations that the commissioner considers appropriate." In CATSA’s view, these provisions require the commissioner to investigate a complaint alleging that specific access requests are acts of harassment and give him broad latitude to recommend how CATSA should react, including a recommendation that access requests from a specific individual not be answered.

The requester did not agree that paragraph 30(1)(f) would allow a complaint from a government institution. He pointed out that, if Parliament had contemplated complaints from government institutions, it would not have used the phrase "relating to requesting or obtaining access." Rather, Parliament would have also used the terms "receiving" access requests and "granting" access.

Second, the requester asked the commissioner to look at the scheme of the Act as reflected in Parliament’s directions as to how investigations are to be conducted and reported. For example, it was pointed out that subsection 35(2) requires the commissioner, in the course of an investigation, to give the following persons a reasonable opportunity to make representations:

• the person who made the complaint;
• the head of the government institution concerned; and
• any third party having a section 20 (commercial confidentiality) interest in a record that might be recommended for disclosure.
  

The requester pointed out that there is no mention here of an obligation to give the access requester a right to make representations when the person who makes the complaint is also the head of the government institution concerned. This omission, according to the requester, is evidence that Parliament did not intend that government institutions could make complaints to the commissioner.

The requester also referred the commissioner to section 37 of the Act, which requires the commissioner to report the results of investigations to:

• the head of the government institution;
• the complainant;
• third parties with respect to commercial confidentiality issues.

Again, there is no mention of an obligation to report results to an access requester because, according to the requester’s argument, Parliament did not intend that government institutions could also be complainants.

As a counter to these arguments concerning the inherent limits in sections 35 and 37, CATSA pointed out that the commissioner would have natural justice obligations to take representations from, and report to, the access requester in the circumstances of this case.

The commissioner agreed with CATSA that his investigative jurisdiction under paragraph 30(1)(f) is broad. However, he also agreed with the requester that, when one considers the scheme of the Act and its purpose, as set out in section 2, it becomes clear that Parliament did not intend to authorize the commissioner to investigate complaints by government institutions against access requesters. Consequently, the commissioner reported to the parties that he had no jurisdiction to investigate CATSA’s complaint. He also informed the parties that the requester had the right to complain to the commissioner about CATSA’s failure to answer his access requests.

Lessons Learned

Absent legislative change, government institutions that question the motives of access requesters cannot, by making a complaint, compel the Information Commissioner to investigate the matter. In this case, the commissioner did not consider the merits of the complaint, i.e. whether there are circumstances in which government institutions may refuse to answer access requests because of the motives of the requester or the effect requests have on employees of the receiving institution.