Riley Information Service Seminar – Access to Information : The Next Challenges
Keynote Address of Robert Marleau
Information Commissioner of Canada
[Check Against Delivery]Ottawa, Ontario [2007-9-24] I am very pleased to have the opportunity to speak to you today, particularly since this is my first address as Information Commissioner outside the parliamentary committee process, and since we are on the eve of Right to Know Week.
As you know, I was involved for over 30 years with Parliament and parliamentary procedures so I approach my mandate as an Agent of Parliament with extreme deference to parliamentary convention.
I agree with Professor Paul G. Thomas when he states that independent parliamentary agents are meant to serve 2 purposes:
(1) dealing with individual complaints about a lack of fairness involved with various types of actions and inactions; and
(2) promoting improved performance and appropriate standards in the delivery of public programs and services.
The Information Commissioner is in the unique position where it is expected that he will maintain a constructive dialogue with each branch of the state: the executive, the legislative, the judiciary and also with citizen. This reality will define the scope of the activities of my office in the coming years.
At this early point in my mandate, keeping in mind that I have very knowledgeable investigative and legal staff, and that I am also joined by an experienced, but new team of Assistant Commissioners, I would like to share with you my key priorities.
First, our main raison d’être obviously is to fulfill our statutory mandate under the Access to Information Act (ATIA) and to ensure that the rights and obligations of complainants under the ATIA are respected, that complainants, heads of government institutions, and all third parties affected by complaints, are given a reasonable opportunity to make representations.
Second, we need to ensure thorough and timely investigations through a renewed approach to the administration of the Office. We will focus on improved service delivery and accountability to Canadians, government institutions and Parliament. We will also seek judicial resolution of cases and appear before the Court, where appropriate, to ensure proper interpretation of the statute.
Let me first deal with the protection of individuals’ rights of access to information.
The fundamental importance of ensuring transparency in government institutions was well articulated in 1997 in Dagg v. Canada (Minister of Finance). The decision described the overarching purpose of access to information legislation, as being to facilitate democracy by helping to ensure that citizens have the information required to participate meaningfully in the democratic process, and that politicians and bureaucrats remain accountable to the citizenry.
I can assure you that my office’s commitment in protecting this fundamental right of citizens is, and will remain, front and center in every activity we undertake.
As I stated in our latest Annual Report, I am pledged to assist governments to do better, and requesters to fare better, when administering and using the Act. I am also pledged to assist Parliament in playing its vital role of holding ministers and officials to account for the good administration of the Act.
A fair application of the Act should strike a fine balance between ensuring access, transparency and accountability of government, while recognizing that some information produced by government needs to be protected. Access rights are not absolute. They are subject to specific and limited exceptions, balancing freedom of information against individual privacy, commercial confidentiality, national security, and the frank communications needed for effective policy-making.
Our view is that we will achieve optimal compliance with the Act, and fulfill our mandate, with an investigative approach based on what I will call the "three Cs": Collaboration, Cooperation and Consultation. What this "three Cs" approach means is that we will favour alternate means of dispute resolution, such as mediation and persuasion, and we will rely less on formal hearings and the exercise of judicial powers during our investigations.
Some of you might perceive this as a less aggressive approach than in the past. However, it doesn’t mean that government institutions can avoid complying fully with the statutory provisions, nor does it mean that we won’t go to court to enforce those provisions.
As all of you know, the Information Commissioner is an ombudsman with strong investigative powers, but no authority to order a complaint resolved in a particular way. However, if I find that a complaint against a refusal under the Act is well-founded, section 37 requires me to provide the head of the government institution with a report of my findings, any recommendations and, if appropriate, a request that I be notified of any action taken, or proposed to be taken, to implement the recommendations, or reasons why no action has been, or will be taken. I can assure you that if I issue a section 37 letter, and a government institution fails to follow my recommendation on disclosure, I will not shy away from going to court.
Even so, it is rare that our cases end up in court. In fiscal year 2006-2007, the office completed 1,846 investigations. No application for review by Canada’s Federal Court was filed by the Information Commissioner during this period. In the previous fiscal year, the office completed 1,656 investigations. Only four applications for review were filed by the Commissioner.
In my view, such litigation’s greatest value is to advance important public policy issues on access to information and to assist individuals or groups who would not otherwise have the financial means to embark in often lengthy litigation to assert their rights.
The case of Information Commissioner of Canada v. Minister of Industry is a case in point. In 2001, the Director of the Algonquin Nation Secretariat, a tribal council representing three Algonquin Bands, made a request to Statistics Canada for census records relating to their ancestors, as part of their research necessary to substantiate their lands claims.
The requester was refused access to the records he had requested, that is, census records for specific districts of eastern Ontario and northwestern Québec. He later complained to my Office.
The Chief Statistician took the position that section 17 of the Statistics Act prohibited the disclosure of the requested records and that since paragraph 8(2)(k) of the Privacy Act, which permits disclosure of personal information to aboriginal groups for the purpose of researching or validating their claims, was "subject to any other Act of Parliament," he had no discretion to disclose the census records.
In turn, the Information Commissioner took the position that the requested census returns could be disclosed under paragraph 17(2)(d) of the Statistics Act by virtue of paragraph 8(2)(k) of the Privacy Act. The Information Commissioner argued that in interpreting these latter provisions, regard must be had for section 35 of the Constitution Act, 1982 which recognizes and affirms the existing aboriginal and treaty rights of aboriginals of Canada and imposes a duty on the Crown to act honourably in all its dealings with aboriginals.
The Chief Statistician did not accept this recommendation. With the requestor’s consent, the Office brought an application to the Federal Court for review of the Chief Statistician’s decision.
The Federal Court allowed the application and ordered the disclosure of the requested records on specified terms. In early June of this year, the Federal Court of Appeal dismissed an appeal by the Minister of Industry with costs. The Minister did not file an application for leave to appeal to the Supreme Court of Canada.
It is evident that without the Office’s intervention, these records would never have been ordered disclosed and the Algonquin Bands would have lacked access to key evidence to substantiate their land claims.
I cannot discuss issues of compliance with the Act without addressing our own record of timeliness in conducting our investigations. In 2006-2007, the average turnaround time for investigations was about 12 months. However, we still have 290 investigations that are over one year old, 164 that are more than 2 years old, and 78 cases that are more than three years old. This is not acceptable.
This leads me to my second priority area, which is thoroughness and timeliness of investigations and an improved service delivery to Canadians, government institutions and Parliament. In addressing this priority, our new management team intends to focus on the following:
- securing adequate financial resources to fulfill our mandate;
- reducing the time taken to complete investigations by streamlining our investigative processes;
- implementing strategic communications plans which help Canadians understand and appreciate the objectives, priorities, views and actions of the Office;
- providing solid policy advice to Parliament on issues related to access and the renewal of the ATIA; and
- addressing the new responsibilities under the ATIA and the Federal Accountability Act.
On this last point, as you know, on April 1st, 2007, the Office of the Information Commissioner became subject to the ATIA and the Privacy Act.
This required my Office to implement an alternative mechanism to deal with potential complaints against the Information Commissioner as it was not provided for under the legislation. I was delighted to announce in April that the Honourable Peter de C. Cory, a former judge of the Supreme Court of Canada, accepted to serve as ad hoc Information Commissioner.
The ad hoc Commissioner’s mandate is to receive and independently investigate any complaints, referred to at section 30 of the Act, against the Information Commissioner arising from access requests made to the Information Commissioner's Office. The ad hoc Information Commissioner is delegated the same functions and powers as the Information Commissioner with regard to conducting investigations and making recommendations.
The appointment of a former judge, particularly one with the depth of experience of Mr. de C. Cory, preserves the integrity and the independence of the process and ensures that all complaints are properly addressed.
However, as this process was not activated until an actual complaint was made against my Office, we realize that this new responsibility is presenting new challenges for us, which Suzanne Legault, Assistant Commissioner, Policy, Communications and Operations, will address this afternoon.
In addition, the amendments to our Act brought forward by the Federal Accountability Act increased the number of government institutions subject to the ATIA. To this date, the ATIA applies to 255 government institutions, an increase of 37%. This will likely lead to a significant increase in the workload of our Office, and hence poses an additional challenge to our pledge to improve our service delivery.
Another addition that is worth special note is the new section 4(2.1) of the Act which now requires the head of a government institution to make every reasonable effort to assist the person in connection with the request for access to a record under the control of the institution, to respond to the request accurately and completely and, subject to the regulations, provide access to the record in the format requested. This we call the "duty to assist" – a sort of Good Samaritan obligation for the information world.
In my view, this is not just a question of statutory obligation. It is a question of leadership. Ministers, deputy ministers and the heads of organizations subject to the Act should lead by example in implementing procedures that will give full force to this provision.
Finally, as we soon will venture into the 25th Anniversary of our Act, I would be remiss if I did not address briefly the subject of legislative reform.
There have been, in recent years, many laudable efforts at reforming the ATIA but also, which is often forgotten, many recommendations for administrative reforms, for instance in the Delagrave Report (2002).
There are many outstanding legislative issues, including:
- standardizing the criteria for inclusion of government institutions in the Act;
- defining the coverage of records in Minister’s offices;
- dealing with the exercise of discretion under the Act and how it is applied;
- determining whether Cabinet confidences should continue to be excluded from the Act;
- dealing with the issue of frivolous, vexatious or abusive access requests;
- re-examining the time limits for replying to an access request and the rules for taking extensions of time;
- considering incentives for compliance with the time limits for response;
- reviewing the fee structure for the various aspects of making an access request as well as the process of fee waivers; and
- revisiting the scope of the mandate of the Information Commissioner to include such items as formal mediation, advisory functions, practice assessments and education.
In addition, some ideas for reform may be gleaned from legislation in various provincial or territorial access to information laws which post-date the federal legislation and may therefore, in some respects, be more avant-garde.
One such area that could be looked at is the complaint process against provincial or territorial information commissioners or ombudsmen in access to information requests, which is statutorily outlined in their legislations.
As I have stated at the beginning of my remarks, I am very mindful of parliamentary procedures so I will not address any specifics today on legislative reform. My Office’s position on legislative and policy issues will be made directly at the House of Commons Committee should it choose to address these issues.
In the meantime, and in the spirit of the collaboration, cooperation, and consultation, the OIC has offered its assistance to the Standing Committee, the Minister of Justice and the President of the Treasury Board, with respect to the development of any legislative and administrative initiatives pertaining to the reform of the ATIA.
Before closing my remarks this morning, I would like to mention Right to Know Week, which is starting on September 28th.
In Canada, we are celebrating Right to Know Week. The goal is to promote the right to information as a fundamental human right and to campaign for citizen participation in open, democratic societies. I invite you, as members of the access community, to consider how you might use Right to Know Week in future years to contribute to a better understanding of the role of access to information in our world.
My Office is hosting an event on October 3 as part of the Right to Know Week. A number of provincial and territorial authorities are also planning events. I invite you to visit www.righttoknow.ca for more information.
In concluding, let me reiterate that we are a new team, we have knowledgeable and experienced staff, and we are dedicated to protecting Canadians’ right to access to information and to promoting transparency in our institutions. We will approach our statutory mandate with fairness and balance, using a collaborative, cooperative and consultative approach. We will, however, initiate a litigated process when necessary. In this era of accountability, we are intent on maximizing the efficiency of our Office to improve our service delivery to Canadians, government institutions and Parliament.
I look forward to meeting many of the players in the access community, working with you, sharing ideas, and confronting the challenges that we will inevitably face.
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