How the OIC processes and investigates complaints
The Office of the Information Commissioner (OIC) receives many types of complaints under the Access to Information Act—about delays in responding to access requests, information being withheld, institutions not conducting a reasonable search for records and other matters—but all complaint investigations generally follow the same steps.
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Initial processing
The OIC Registry receives all complaints, regardless of whether complainants submit them electronically or by email or mail. Registry staff check each complaint to ensure it is admissible, 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).
To be admissible, a complaint must include all the necessary details, have been submitted by the 60-day deadline (see Timeframe for submitting a complaint), not be premature and fall within the Commissioner’s mandate.
If the Registry determines the complaint is not admissible, it informs the complainant.
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 refuses to investigate (see, “Refusing or ceasing to investigate complaints,” below).
Information gathering
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).
Analysis
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).
Outcomes
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
Refusing or ceasing to investigate complaints
Generally, the Commissioner has to investigate all admissible complaints. However, in two circumstances the Commissioner may refuse or cease to investigate complaints, even when they are within her power to investigate:
- the complaint is trivial, frivolous or vexatious or is made in bad faith (paragraph 30(4)(a))
- an investigation or further investigation is unnecessary having regard to all the circumstances of the complaint (paragraph 30(4)(b)).
The Commissioner may decide to refuse or cease to investigate a complaint at any time—that is, she may decide not to start an investigation or may halt one in progress. This could happen when she has already investigated the matter at the centre of the complaint.
The Commissioner may also decide to refuse or cease to investigate a complaint because the institution responded to the access request—when, for example, the complaint is about a delay in responding or about whether an extension of time is unreasonable. In making this decision, the Commissioner may consider, among other factors, whether continuing to pursue the complaint would have any practical benefit, now that the institution has responded—in particular, whether there is any meaningful action she could order the institution to take in light of the complaint.
When the Commissioner decides to refuse or cease to investigate a complaint, she issues a notice under subsection 30(5).
The Commissioner refuses to investigate when she makes her decision before the OIC Registry has notified the institution that the Commissioner intends to investigate the complaint under section 32. After that point, the Commissioner decides whether to cease to investigate.
Reporting
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 her whether it plans to implement them (and if not, why not [This is mandatory.]).
- This is not an opportunity for the institution to present new information or representations on the outcome of the complaint. The investigation is complete.
- 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.
When a final report includes useful information for complainants, institutions or other parties, the OIC may publish the report on its website.
Once the Commissioner issues her final report, the complainant, institutions and other parties may apply to the Federal Court for a review. 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
Principles the OIC follows when investigating complaints
- Deal with all parties to complaints professionally, efficiently and impartially.
- Keep all parties informed of the progress and outcomes of investigations.
- Provide clear reasons for all conclusions, orders and recommendations.
- Conduct investigations in private and safeguard the security of information.
Expected behaviour during investigations
Disrespectful or abusive behaviour toward OIC staff is unacceptable and will not be tolerated.
If any complainant or other individual threatens, harasses (including sexual harassment) or intimidates an investigator or other employee, or yells at or makes obscene, racist or discriminatory remarks to them, the Commissioner may decide to restrict the interactions of that individual with OIC staff.
These restrictions could involve limiting communications with the OIC to a certain number of instances within a specified period, to certain days or times, or to a maximum duration. The OIC may also decide to direct all telephone and email communications to a supervisor or other manager. In addition, OIC staff could no longer respond to correspondence about matters already addressed. Finally, the OIC could limit the number of complaints it investigates at any one time for a complainant who continues to threaten or harass a staff member.
The OIC understands that some individuals who behave inappropriately toward its staff might have suffered trauma, be in crisis or have physical developmental and/or mental impairments that could result in challenging behaviour. In all instances, the OIC commits to being patient and compassionate, and to communicating with complainants—indeed, with all parties to complaints—respectfully, professionally and civilly.