How the OIC processes and investigates complaints

The OIC Registry receives all complaints, regardless of whether complainants submit them electronically or by email or mail.

Based on the information and documents the complainant submits (e.g. acknowledgements, notices and responses related to the original access request, if any, or details of other communications with the institution), Registry staff review each complaint against a number of criteria to determine whether it is admissible:

• whether the complainant has standing under the Act (see Frequently asked questions: Who may submit a complaint?)
• whether the complaint falls within the Commissioner’s mandate. In other words, it must be one of the types of complaint listed in subsection 30(1) of the Act. More information: Types of complaints
• whether it was submitted by the 60-day deadline (see Timeframe for submitting a complaint)
• whether it is against an institution covered by the Act.

Complaints must also include all the necessary details and not be premature. An example of a premature complaint is one that alleges that an institution improperly applied exemptions to withhold information when the institution has not responded to the access request.

Finally, the Commissioner’s powers to investigate the complaint must not yet be exhausted.

If the complaint is admissible, the Registry informs the complainant and sends a Notice of intention to investigate to the institution and complainant, unless the Commissioner decides to refuse to investigate the complaint (see Refusing or ceasing to investigate complaints).

If the Registry determines the complaint is not admissible, it informs the complainant.

Should Registry staff be unable to determine admissibility based on the information in the complaint, they will make one attempt to contact the complainant and ask for more details. The Registry will follow up with the complainant, as needed, to clarify any additional information submitted. However, if the complainant does not provide the requested information, the Registry will consider the complaint to be inadmissible.

More about the Registry and how it can help you

Once the Notice of intention to investigate is sent, Registry staff collect documents and information from the institution to help start the investigation. This material could include the institution’s file detailing how it processed the access request, if any, notices it sent to the complainant, correspondence within the institution, communications with the complainant and other parties (e.g. third parties) and the requested records.

The investigator contacts the complainant, institution and other parties to learn more about the circumstances of the complaint. Conducting independent research could also be part of the investigation (e.g. searching websites for information already publicly available).

To gain a full understanding of the complaint and the circumstances that led to it (including the processing of any access request), the investigator reviews all the gathered documents, information, facts and viewpoints they have. The investigator might follow up with the complainant, institution and other parties to clarify certain points or ask questions. This could include seeking written representations from any of the parties.

The OIC considers all the documents, information and facts related to the complaint it gathers from complainants, institutions and other parties, as well as all parties’ views about the matters under investigation, to be representations. More information: Making representations during investigations

As the circumstances of the complaint become clearer, the investigator may work with the complainant and institution to resolve or narrow down the matters at issue (e.g. having the institution process only the records in which the complainant is particularly interested).

Based on the analysis, the investigator recommends to the Information Commissioner an outcome for the complaint.

When the Commissioner finds a complaint to be well founded (that is, one or more of the allegations in the complaint have merit), she may order actions she considers appropriate for the institution to take to resolve the matters at issue. For example, she could order the institution to respond to the access request by a certain date when it has yet to do so or to disclose records when it refused access. (Note: The OIC cannot provide complainants with the records they requested. Those must come from the institution.) She may also make any recommendations she considers appropriate.

More information: What are the possible outcomes for my complaint?; Frequently asked questions: Information Commissioner’s orders

Generally, the Commissioner must investigate all admissible complaints. However, in two situations the Commissioner may refuse or cease (stop) to investigate complaints, even when they are within her power to investigate (subsection 30(4)):

• when an investigation is unnecessary, taking all the circumstances of the complaint into account
• when the complaint is trivial, frivolous or vexatious or is made in bad faith.

The Commissioner’s refusing or ceasing to investigate complaints means she can use her investigative resources most effectively for her office and the access system. This is because, among other reasons, investigations, or continued investigations, into matters that have already been resolved would have no practical effect and would not offer any additional relief to the complainant.

Unnecessary investigations

The Commissioner may decide to refuse or cease to investigate a complaint as unnecessary when the matter at the centre of the complaint has been resolved before she starts or completes her investigation. This could be, for example, when the institution responds to the access request before the investigation into a delay in responding to the request has begun or is complete. Another example could be when the institution discloses the information it had previously withheld before an investigation into a complaint about the application of exemptions is finished.

Trivial, frivolous or vexatious complaints, or those made in bad faith

The Commissioner may decide to refuse or cease to investigate complaints that are, in her view, trivial, frivolous or vexatious, or are made in bad faith:

• A trivial complaint is generally a complaint that is trite or of little or no importance.
• A frivolous complaint also often concerns trivial matters. These complaints could also be senseless, foolish or fanciful.
• A vexatious complaint is generally a complaint made for an improper purpose, consciously or not. Such complaints may include those primarily directed towards harassing or oppressing others, including institutions and individuals.
• A complaint made in bad faith involves conscious wrongdoing and/or an improper or dishonest motive. It is more than simply bad judgment or negligence. Such complaints include those intended to mislead and/or deceive.

An example of these types of complaint could be a complaint about the disclosure of records when the complainant said they did not care about receiving them but are upset with the institution or wish to harm it.

When the Commissioner decides to refuse or cease to investigate a complaint, she issues a notice under subsection 30(5).

The Commissioner must report to the complainant, institution and other parties once the investigation is complete and she has determined the outcome of the complaint.

• When a complaint is well founded and the Commissioner intends to make orders and/or recommendations, the OIC first sends an initial report to the institution.
  • This report sets out the Commissioner’s findings on the complaint.
  • The initial report also includes the text of the orders and/or recommendations and includes a request that the institution inform the Commissioner of the action it has taken or proposes to take to implement the orders and/or recommendations or the reasons why it will not be taking any such action.

• For all investigations completed with an outcome of well founded or not well founded, the OIC sends a final report to the complainant and institution.
  • The final report contains the Commissioner’s findings on the complaint.
  • When the Commissioner makes orders and/or recommendations, the report includes them and indicates whether the institution intends to implement them.
  • If the Privacy Commissioner and/or third parties were entitled to make, and made, representations during the investigation, the OIC also sends them a copy of the final report.

The OIC publishes on its website and on the Canadian Legal Information Institute’s website final reports on investigations into complaints about refusals of access (such as when information is exempted) that contain orders. The OIC also publishes on its website the orders resulting from investigations into delays in responding to access requests.

Once the Commissioner issues her final report, the complainant, institutions and other parties may apply to the Federal Court for a review, and when an institution does not intend to fully implement her orders, it must take this step. There are deadlines for the various parties to apply for this review. The Commissioner’s orders come into effect after these deadlines pass.

More information: Information Commissioner’s final reports; Seeking a review by the Federal Court; Frequently asked questions: Information Commissioner’s orders