Information Commissioner’s appearance before the Standing Senate Committee on Indigenous Peoples

February 27, 2024
Ottawa, ON

(Check against delivery)

Thank you for inviting me to speak to this committee today.

I would first like to acknowledge that we are gathered today on the unceded, unsurrendered traditional territory of the Anishinaabe Algonquin people, whose presence here reaches back to time immemorial.

Since this is my first appearance before your committee, I will give you an overview of the access to information system and explain my mandate as Canada’s Information Commissioner.

To understand my mandate, it is important to recognize that I am an independent agent of Parliament whose role is defined under the Access to Information Act.

Part 1 of the Access to Information Act provides a right of access to information in accordance with the following principles:

• that government information should be available to the public;
• that necessary exceptions to the right of access should be limited and specific; and
• that decisions on the disclosure of government information should be reviewed independently of government.

Part 2 of the Act sets out requirements for proactive publication of information. As Information Commissioner, I have no role under Part 2 of the Act.

The Treasury Board Secretariat holds the overall responsibility of administering the Act. This involves providing guidance and tools to government institutions.

Access to information requests can be made for any records under the control of a government institution. About 260 institutions are currently subject to the Act, including Crown-Indigenous Relations and Northern Affairs Canada, the Department of Justice, Library and Archives Canada, and others which may have come up in the course of testimony before your committee.

Each institution is responsible for responding to the access to information requests it receives.

My role as Information Commissioner is to investigate complaints relating to those access requests, including on requests regarding records related to residential schools that are subject to the Act.

Typically, complaints are submitted to my Office when requesters are not satisfied with the amount of time that it is taking for an institution to respond, or if they believe that they have not received all of the information to which they are entitled. 

I understand your committee is considering records related to residential schools that have not yet been transferred to the National Centre for Truth and Reconciliation. It is important to note that I am not involved in that transfer process nor do I oversee it, as it is not within my jurisdiction. 

In addition, the Courts have determined that certain records related to residential schools are not under the control of the federal government for the purposes of the Act. This means that they cannot be requested under the Access to Information Act, and that my office does not have the authority to access these records.

Prior to amendments to the Act in 2019, my powers were limited to making recommendations to institutions in respect of well-founded complaints. Once the amendments came into force, I was granted order-making powers. 

At the conclusion of an investigation, I have the power to issue any order against the institution, including the disclosure of information to requesters.

My orders are legally binding. When they receive an order, institutions must implement it unless they apply to the Federal Court for a review.

Complaints are investigated in private, and the Act limits the disclosure of information about investigations. However, at the conclusion of my investigations, I may publish final reports, particularly when I deem them to be of value in providing guidance to institutions, requesters, or the public. For example, I may publish final reports that:

• clarify the application of a provision of the Act,
• touch on recent court decisions or developments in access law, or
• when investigations result in an order.

As an agent of Parliament, I also report annually to Parliament on my activities and can issue special reports to Parliament in respect to important issues that fall within my jurisdiction. 

Ultimately, my mandate is to maximize compliance with the Access to Information Act using the full range of tools and powers at my disposal.

I am now happy to answer your questions.