Remarks to the Library of Parliament Seminar on Access and Privacy - Seminar Series for Parliamentarians and Staff

OTTAWA, ONTARIO

[2004-10-22]

(Speech delivered by Deputy Information Commissioner, Alan Leadbeater)

It is a pleasure for me to be here today to speak to you, who are in some sense, my "bosses" and to share the stage with Jennifer Stoddart, Canada’s Privacy Commissioner.

The Information Commissioner is one of Canada’s five "Officers of Parliament", appointed only after approving resolution in the House and Senate, to investigate complaints that the government has denied rights under the Access to Information Act – Canada’s freedom of information legislation.

Passage of the Act in 1983 gave Canadians the broad legal right of access to information recorded in any form and controlled by most federal government institutions. The Act sets out 13 limited and specific reasons why government may refuse to disclose requested records.

This is a complex piece of legislation and disputes about its application are inevitable, so the law makes provision for an appeal process. The disputes may relate to fees, delays, denials of access, language or any other matter relating to requesting or obtaining access to records.

The first level of review is to the Information Commissioner who is, as I have said, an officer of Parliament who is independent of the government. The second level of review is to the Federal Court of Canada. The Information Commissioner has strong powers of investigation but no power to order remedial actions. He may only make recommendations to government.

In examining a complaint, the task of the Commissioner is to determine fairly whether the department against whom a complaint is made properly respected the rights and obligations set out in the Access to Information Act. He is not an advocate for complainants or for government institutions, he is an advocate for the Act!

The primary role of the Information Commissioner is, therefore, to investigate complaints and to ensure that individuals receive the records to which they are entitled, that government secrecy is kept to the legislated minimum and that access is granted or denied in a timely fashion.

The Information Commissioner has a statutory duty to investigate every complaint lodged with the office and must report the findings of the investigation to the complainant and to the government institution against which the complaint was made. He has no authority to dismiss a complaint as "frivolous or vexatious" and government institutions have no authority to ignore an access request they consider to be abusive. The Act gives the Commissioner power to initiate investigations on his own initiative where he feels there is a problem. The Commissioner has used this power, for example, to enable him to review the response-time performance of institutions and to publish annual "report cards" thereon.

The Act’s investigatory powers (the same as those of a Superior Court) enable the Commissioner to review and obtain copies of all records except cabinet confidences, to enter government premises, to compel the production of evidence and to compel witnesses to testify under oath.

Process

Complaints, which must be in writing, may be submitted not only by Canadian citizens, anywhere, but also by anybody physically present in Canada. Most complaints (54%) concern allegations of excessive secrecy by government. These involve an inquiry into whether or not one or more of the Act’s 13 exemptions justifies a refusal to disclose requested records. Complaints of failure to meet the 30-day response time and complaints of improper use of the Act’s extension of response time provisions represent 14% each or 28% of the complaint profile. The remainder concern disputes over fees and refusals to translate requested records. A growing category of complaint, now at 9.5%, concerns claims that requested records constitute cabinet confidences.

When a complaint is received by the Commissioner’s office, it is:

Acknowledged in writing and assigned to an investigator.

The government institution is advised and a summary of the complaint sent to them.

The investigator visits the department, reviews the relevant records, obtains copies of the records and related records concerning how the request was handled, and has an initial discussion about the complaint.

The investigator will then familiarize himself or herself with the background of the request and its subject matter and most likely form some initial views as to the legitimacy or otherwise of the department’s actions.

In the course of the investigation, the complainant is kept informed of developments and invited to contribute any information that he or she believes relevant to the complaint.

If the investigator believes that the department’s handling of or response to, the access request was contrary to the law, he or she will attempt to persuade the department to take remedial action.

Finally, once all the facts have been gathered and the representations of the complainant and government institutions have been heard (orally or in writing), the investigator forms a view as to the legitimacy of the complaint and the adequacy of remedial action (if any was needed). The investigator will then bring forward all the facts, representations and his or her views to the Information Commissioner. After review of all this material, the Commissioner makes a finding in the particular case and reports the findings to the department and to the complainant. If the Commissioner considers the complaint to be well-founded, and if the department refuses to follow remedial recommendations, the Commissioner may, with the consent of the complainant, ask the Federal Court to review the matter and order a remedy.

Mode of Operation – Informality

A few words on investigative "style". The Information Commissioner and his predecessors have embraced an informal investigative style for most of our investigations. In the vast majority of cases, we are able with all parties to sort out the facts and the problems, without resort to subpoenas or hearings or putting witnesses under oath.

Informality, experience has shown, is more effective because problems may be addressed at the level they arise and, ideally, resolved at that level in the course of an investigation. Experience has shown that problems or errors are more likely to be remedied if officials are given the chance to correct their own mistakes. Formality, on the other hand, encourages early adoption of rigid (and hard to change) positions.

Informality also seeks to develop an atmosphere of mutual trust and cooperation between the government and my office. On the other hand, if there are impediments to candid communications, if investigators believe they are obstructed or misled, the formal powers are used.

By choosing to create a specialized, independent ombudsman to deal with access disputes, Parliament expressed its preference for a non-judicialized administration of the access to information regime. Although the U.S. Freedom of Information Act was influential on the design of Canada’s law, Parliament specifically rejected its approach of requiring all dissatisfied requesters to seek redress in the federal circuit court.

Under Canadian law, dissatisfied users are given the right to go to court but only after the Commissioner has had an opportunity to look into the dispute and, if rights have been denied, to obtain, through persuasion, remedial action. I am proud that, under this model, less than one percent of all complaints cannot be resolved by my office and end in Federal Court. Last year, for example, out of some 1000 investigations, only 8 (0.8%) could not be resolved without recourse to the Federal Court.

This law is a vital tool by which Canadians gain the information necessary to participate meaningfully in the democratic process and hold governments accountable. No government (of whatever party) finds it comfortable to govern in the open and, hence, our law has not been strengthened over the years to keep up with changing technologies, strategies, and interpretations. Reform of this law is overdue and that was recognized by all parties in the unanimous recorded vote in the last Parliament to accept the Bryden Bill on second reading. That Bill has been reintroduced and the Minister of Justice has indicated his government’s commitment to improving the access law. That is good news, and I urge all of you to put this item on your priority lists.

I don’t intend today to go into the Information Commissioner’s wish list for reform. He has already informed Parliament of that in a Special Report tabled in September 2002 which you will find on our website www.infocom.gc.ca

But let me pause for questions on a positive note. Even as we rightly lament the instances of records alteration and destruction, excessive secrecy, inflation of fees, inadequate searches for records and failure to respect response times, don’t lose sight of the profound difference this law has made in the transparency and accountability of government. The law shifts to government the burden of proving that secrecy is legitimate. The law is available to all at a very reasonable cost – five dollar application fee which includes five free hours of search time. There are no fees for making a complaint to our office. We are obliged to investigate all complaints and, consistent with our modest resources of 23 investigators, we try to do so in a thorough and timely manner.

Even though, by the nature of our role in the system, we see what goes wrong, we believe we have a law to be proud of. I urge you to make it your priority to nurture it, help to make it better when reforms are brought before Parliament and exercise your rights under it responsibly.

Thank you.