Making representations during investigations

The Information Commissioner must give parties to a complaint a reasonable opportunity to make representations during investigations (subsection 35(2) of the Access to Information Act).

Representations under subsection 35(2) include documents, information and facts the Office of the Information Commissioner (OIC) gathers during investigations from complainants, institutions and other parties, as well as all parties’ views on the matters under investigation. For example, an institution might explain in its representations why a record is exempt from disclosure under a provision of the Act, while a complainant might list reasons why the record is not exempt.

Beyond the representations they make in response to queries from investigators, complainants and institutions may also provide representations of their own accord at any time before the Information Commissioner makes her findings on the complaint.

Representations from third parties and the Privacy Commissioner

The Information Commissioner must give third parties and the Privacy Commissioner a reasonable opportunity to make representations in certain circumstances:

• Third parties (these include private companies and individuals, but not the person who made the access request)
  • When the Information Commissioner intends to order an institution to disclose information that might be covered by subsection 20(1) (third-party information) or make a recommendation to this effect, she must give third parties a reasonable opportunity to make representations (paragraph 35(2)(c)).
  • The Information Commissioner must also give third parties the opportunity to make representations on why the institution should not disclose the information in question when she notifies them of her intention to order the institution to disclose it (section 36.3).
• Privacy Commissioner
  • When the Information Commissioner intends to order an institution to disclose information it withheld under subsection 19(1) (personal information), she must consult the Privacy Commissioner under section 36.2 and provide the Privacy Commissioner with a reasonable opportunity to make representations.

The Information Commissioner may also decide, under subsection 36(1.1), to consult the Privacy Commissioner during an investigation. She does so by providing the Privacy Commissioner with a reasonable opportunity to make representations.

Contact information

The OIC communicates with parties to complaints using the contact information they provide.

Complainants may authorize someone to act on their behalf during an investigation. In this situation, the OIC requires the individual’s contact information, as well as written authorization from the complainant for this person to act on the complainant’s behalf. Third parties may also have an outside party (such as a law firm) act for them during an investigation. In this case, the OIC similarly requires contact information for the outside party and written authorization from the third party for the outside party to act on the third party’s behalf. 

Process

1. Start of the investigation: The investigator generally reviews any information and documents received from the complainant and institution and then contacts the complainant and the institution to seek initial representations. This may include asking for written representations about why any third-party information should not be exempt from disclosure under subsection 20(1).

2. Other times during the investigation: The investigator may request additional representations, including information and documents, from the complainant, the institution and other parties to advance the investigation.

   The Information Commissioner may also decide, under subsection 36(1.1), to consult the Privacy Commissioner during an investigation. She does so by providing the Privacy Commissioner with a reasonable opportunity to make representations.

   In each instance, the investigator sets a response time. When a party does not meet the deadline to provide representations, the OIC may choose to proceed without the benefit of the representations.

3. Once the investigator has formed preliminary conclusions: The OIC may send a written request to the parties for final representations regarding the investigator’s preliminary conclusions on the matters that are the subject of the complaint and any outstanding issues.

   However, when the Information Commissioner intends to order the disclosure of records she has reason to believe might contain information described in subsection 20(1) (third-party information), or make a recommendation to this effect, she must provide the third parties to whom the information relates with a reasonable opportunity to make representations on her preliminary conclusions and the analysis on which they are based.

   The Information Commissioner must also make every reasonable effort to notify the third parties to whom the information relates of her intention to order the institution to disclose it (section 36.3). The notice must describe the information and state that the third parties may, within 20 days after the notice is given, make representations on why the institution should not disclose the information.

   When the Information Commissioner intends to order the institution to disclose information it withheld under subsection 19(1), she must consult the Privacy Commissioner under section 36.2 by giving the Privacy Commissioner a reasonable opportunity to make representations.

4. Once the deadline for providing final representations passes: The investigator completes the investigation and the Information Commissioner makes her findings on the complaint, regardless of whether parties provided representations.