Questions and Answers

Budget Shortfall

1- In your speech, you mentioned that you were facing a structural deficit. You talked about a reduction representing 3% of your budget. Could you explain in details why this is happening?

This funding shortfall amounts for about $463,000, or 3% of my budget.
In 2019, amendments to the Access to Information Act resulted in new responsibilities for my office and an increase in my workload.
In December 2020, following these changes and a sustained increase in complaints, my office received permanent funding for 27 additional investigators.
- Last April, upon reviewing the funding allocation for new collective agreements, we discovered that Treasury Board Secretariat (TBS) did not provide the money to cover raises for these investigators.
- TBS used a snapshot of positions filled as of March 2021 for their calculations. As my office had only received the permanent funding in December 2020, we had not yet filled the 27 positions by March 2021. These additional FTEs were hired during the 2021-2022 fiscal year.
- This has resulted in a critical funding gap. TBS did not allocate funds for salary raises for 21% of my office’s FTEs.
A discrepancy was also identified in the information provided by TBS related to the recently renewed collective agreement for legal counsel (LP).
- TBS is providing funding for 6 LPs. Due to the amendments to the Act that significantly increased the workload of the Legal Services team, my office currently has 8 LPs.
- The salary increases and retroactive payments for these 2 lawyers will result in an additional shortfall of $91,000 for 2024-2025 and $52,000 ongoing.
Since May 2024, my team has been in discussions with TBS officials. I also met with the Secretary of the Treasury Board to explain the situation and requested his assistance in resolving it.
Last June, I requested an off-cycle budget adjustment through the Minister of Justice.
- This is the only option available under the current funding model for my office.
- This is the only mechanism available to address the time sensitivity of my request.

2- Could you reallocate resources within your organization to resolve the situation?

As of today, nearly all positions are filled, leaving minimal room for internal reallocation within my organization.
Only 14% of our budget is allocated to Operations and Maintenance (O&M), leaving limited flexibility to absorb funding reductions without impacting core functions.
As communicated by TBS, my office was excluded from the 2023 Refocusing Government Spending initiative.
I view this decision as a reflection of the critical role I play as an independent agent of parliament in ensuring the right of access to information continues to be upheld.

3- Is your office looking into artificial intelligence or any other tools to be more efficient with fewer resources?

Improving the operations of my office has been a priority for me throughout my mandate.
We are always looking for tools to make us more efficient, but we are also updating our processes to make sure we work smarter.
In 2023-2024, for example, we introduced a significant update to our online complaint form.
The new form provides features to help complainants submit their complaints. This means they can provide more information at the outset, which allows us to make more efficient decisions regarding complaint admissibility.
We have also recently received input from complainants through an independent third party to better understand their needs. We will adopt additional measures to bridge any identified gaps, including improving our website.

4- How can a funding shortfall be considered critical in an operational context where you are closing more complaints than you are registering?

In 2023-2024, we have managed to close 25% more complaints than we received due to increased efficiency.
My office does not control how many complaints are made each year, so while our intake is currently lower than previous years, nothing guarantees that it will remain this way.
An increasing number of complaints are the subject of orders (7.4% for the whole FY 2023-2024; 9.2% so far in FY 2024-2025).
Of these, a certain amount will result in litigation, which I must also pursue within my existing resources. I require legal counsel to conduct this litigation.
A more flexible funding model would allow scaling back or ramping up funding, in accordance with my intake and operational requirements.
As a small organization with the same reporting obligations as bigger institutions, we are forced to make difficult choices, like pushing back critical capital projects in order to focus on our core mandate. This is not sustainable over the long term.
At the end of the day, a funding shortfall would mean that I would not be able to close as many complaints as in previous years nor would I be able to clear our persistent backlog.
Ultimately, this would mean longer delays for those seeking information from government institutions.

5- Despite TBS calculations, your budget was increased. TBS applies the same standard formulas it used for other institutions in calculating allocations to cover pay increases for your office. Why should it be different for your office?

This is a good illustration of why I have been pushing for an independent funding model.
Independence is crucial to my role as an agent of Parliament. The manner in which my office is funded should reflect this independence.
As an agent of Parliament, I report directly to Parliament rather than to the government or a federal minister.
A better model would be one that does not force me to go cap-in-hand for funding to the institutions I investigate.
There are examples of agents of Parliament who have such a model:
- the Chief Electoral Officer of Canada,
- the Conflict of Interest and Ethics Commissioner and
- the Parliamentary Budget Officer.

6- Why have you hired additional lawyers, given the high cost associated with employing legal professionals? Wouldn’t those resources be better spent on more investigators?

Prior to 2019, complaints could only result in a recommendation, rather than an order. Legal counsel were only required in those instances when I chose to launch my own litigation. Essentially, I largely determined my own legal caseload.
When the changes to the Act came into effect in 2019, I was required to adapt my processes to account for the fact that a certain number of my orders would be contested in court by institutions, and that legal counsel would be needed at my office to respond to this demand.
This is a distinct new step in the resolution of complaints with its own resource requirements, involving legal counsel, rather than investigators.
This is also a business line that will continue to grow, as the pre-2019 inventory of complaints disappears, and more complaints are potentially subject to orders.
I also require legal counsel to support me in my mandamus court actions, which have proven necessary as some institutions have chosen to ignore my orders.
Unlike departments, it is not possible for me, as an agent of Parliament, and for my office to utilize the lawyers of Justice Canada, as we are in litigation against the government. This makes our own expertise all the more important and necessary.

7- How will your office deal with possible cuts in the near future?

Additional cuts would mean that I would not be able to close as many complaints as in previous years nor would I be able to clear our persistent backlog that resulted from a sustained increase in new complaints over multiple years.
Ultimately, this would mean longer delays for those seeking information from government institutions.
Delays in resolving complaints harm the government’s commitment to transparency and its fight against misinformation.
Many access requests also relate to current issues, making it crucial to resolve time-sensitive complaints quickly.
This could also impact my capacity of pursuing legal actions when necessary.

8- Why should Canadians be concerned about this?

Canadians’ trust in our institutions as well as our democracy is at stake.
Without access to information held by government institutions, citizens cannot actively participate in society or make informed decisions.
The lack of access hampers their ability to engage meaningfully with the democratic process and hold their government accountable.
This information belongs to them.

9- In previous years, your office has not spent all of the money it had budgeted. As a result, the money has lapsed. Given that your office needs more resources, how is it that you have not even spent what was available?

Institutions are not authorized to spend more than their authorized budget/allotment.
The government has put in place a process to allow institutions to carry forward up to 5% of their budget to next year automatically (without requiring additional approval).
The government has also put a process in place for such scenarios, known as “re-profiling”, which allows institutions to access the unused funding through a “re-profile” request submitted to TBS for approval.
On a few occasions over the last 10 years, my office exceeded the maximum amount allowed to be carried forward automatically to the next fiscal year. On these occasions, my office submitted a reprofile request to TBS to address our priority spending over several years and our overall capacity.
I have spoken to Parliament about the disadvantages posed by yearly injections of temporary funding in the past.
One drawback is that this money is more difficult to spend when received late in the fiscal year as it cannot be used to hire permanent resources or specialized consultants for IT projects, who generally secure employment earlier in the year.
In 2023-2024, the OIC carried forward $540,000 to 2024-2025, representing 2.9% of its total authorities.

10- How many of your employees work on investigations?

For fiscal year 2024-2025, we are funded for 129 full-time equivalents (FTE), 99 dedicated to government transparency. This includes investigators, registry staff responsible for intake of complaints, and legal counsel who provide direct support to investigations, among others.
30 FTEs are dedicated to supporting program delivery. Corporate resources are needed to pay employees and suppliers, hire staff, provide a secure IT infrastructure, support our investigations and, by definition, our mandate.
In order to keep the costs of internal services as low as possible, my office has taken a number of steps, including collaborating with other organizations that provide services at a lower cost. For example, Health Canada (Employee Assistance Program, Informal Conflict Resolution) and the Human Rights Commission (Procurement).

Complaints

11- Is your office receiving a record number of complaints?

During fiscal year 2022-2023, we registered 7 407 complaints. This was a record year.
In 2023-2024, we have experienced a decline in the number of complaints registered (54% decrease from 2022-2023).
We are using this opportunity to refocus our efforts to tackle the many challenging files remaining in our inventory.
We continue to make steady progress against our inventory (24 % decrease from 2022-2023 to 2023-2024).
The decrease in registered complaints is mainly due to that fact that my office is now receiving fewer complaints against Immigration, Refugees and Citizenship Canada (IRCC).
- While my office is receiving fewer complaints against IRCC, this institution still receives a high volume of access requests and has a significant backlog of requests.

12- If the volume of complaints has dropped, why does your office continue to employ the same number of investigators?

My office does not control how many complaints are made each year, so while it is lower this year, nothing guarantees that it will remain this way.
My office assigns investigators to tackling the backlog of complaints whenever possible.
We have been making steady progress against this backlog, but this work will keep our investigations team busy for years to come.
We have performance indicators that help us monitor the situation closely.
Once a complaint has been assigned to an investigator, it is closed within the following timeframes:
- Within 90 days for delay complaints: 76%
- Within 270 days for refusal complaints: 70%
An investigator's caseload consists of approximately 60 files.
Files are assigned to investigators as soon as they are ready to work on a new one.

Order-making power

13- Since the beginning of your mandate, how many legal proceedings have you been involved in?

I have been involved in 59 legal proceedings.
Since the 2019 amendments to the Act, I may make any order that I consider appropriate to resolve the matters at issue in well-founded complaints submitted to my office on or after June 21, 2019.
So far, I have made over 600 orders.
Institutions are legally obliged to abide by my orders. That said, they have the right to challenge my orders by applying to the Federal Court for a review of the matter that is the subject of the orders.
If institutions do not comply with my order or ask the Federal Court for a review, I can file an application for a writ of mandamus.
A writ of mandamus is an extraordinary remedy asking a court to order a public authority to perform a legal duty.
The process of obtaining a writ of mandamus expends my office’s resources and those of institutions that are deploying their own legal resources to respond to these applications.
This should not be necessary since my orders are supposed to be legally binding.

14- Last fiscal year, you filed four applications for mandamus before the Federal Court. Three of them were against DND. What can you tell us about these?

One file with DND is still ongoing. I will not comment any further as this is before the court.
If the mandamus mechanism is the only means of achieving the desired outcome, I will continue to pursue the same approach to compel compliance with my orders.
In our experience, institutions comply before the court hears the case on its merits.
That said, this situation expends my resources and those of institutions that are deploying their own legal services to deal with these cases.
I am sure that Canadians would agree that it is not something we can afford in the current economic context.

15- How many institutions choose not to comply with your orders or challenge them in court?

The Office of the Information Commissioner generally does not track institutions’ compliance with orders.
Non-compliance is a concern as orders are legally binding.
So far, I have filed six applications for mandamus before the Federal Court against three different institutions.
Upholding the Act is at the heart of my mandate. That’s why I decided to launch these legal actions.

16- Should there be penalties for institutions that fail to comply with the Act and your orders?

This option could be studied by parliamentarians.
The new Official Languages Act provides for such penalties.
At the very least, the obligation to respect their obligations under the Access to Information Act should be part of public servants’ work objectives, including senior officials.

ATI system

17- What do you think of the government's efforts in addressing the problems within the access to information system?

The access system has been in need of comprehensive reform for years. I have said that since the beginning of my mandate. My predecessors have said it too.
As we see in the news every day, Canadians are seeking information on government actions and decisions.
Access to information is a quasi-constitutional right and a legal obligation. It is not a service.
Last May, the Government presented its Trust and Transparency Strategyand Access to Information Modernization Action Plan.
Unfortunately, there is no sign of much-needed legislative change. Canadians will have to wait until 2025 for the start of the process to review the Access to Information Act.
In addition, much of the proposed actions in the Action Plan center on guidance, information sharing, and training. Many of them are already underway. In fact, the Access to Information Modernization Action Plan results tracking toolprovides progress updates on previous Key Actions on Access to Information from summer 2020-winter 2024.
No matter which government is in power, access to information is not taken seriously. There have been studies and consultations, but very few results.
Our investigations show that some institutions are overwhelmed by access to information requests and that they need additional resources to process them.
The demand for information is increasing every year, and very little is being done to address the situation.

18- What three things should the Government focus on to fix the access system?

Culture change – the best legislation will never work if government leaders do not commit to making access a priority with clear objectives, resources, training, and innovation, including in Information Management.
Legislative change – a strong legislative framework is the foundation of a strong access to information system.
Investment – in the necessary resources, tools and technology to support modernizing the system.

19-Which changes to the Act would have most impact?

When the Act was amended in 2019, I pointed out that the amendments were a step in the right direction, but that further changes would be necessary.
In my opinion, priority should be given to the following changes:
- broaden the application of the Access to Information Act to include the offices of the Prime Minister and ministers;
subject Cabinet confidences to the Act;
limit the application of certain exemptions, such as section 21, which relates to advice and recommendations and add a public interest override provision;
set out a maximum length of time for consultations needed to respond to access requests.

20- There have been allegations related to the destruction of records that were the subject of access to information requests. Can your office investigate criminal offences under the Access to Information Act?

My office has no authority to investigate criminal offences under the Access to Information Act.
There are two such offences: section 67, which prohibits the obstruction of investigations, and section 67.1, which prohibits destroying, altering, falsifying or concealing records with the intent of denying a right of access.
While I may not investigate the intent behind the destruction of records, I may investigate the destruction itself as a refusal to grant access.
I can only disclose information to the Attorney General if, in my opinion, there is evidence of a possible commission of an offence by a director, officer or employee of a government institution (Subsection 63(2) of the Act).
Such information was disclosed to the Attorney General by my office in the past in five (5) occasions. I am not aware of any prosecution that happened as a result of my office’s referral.
There are two (2) additional investigations where the Commissioner at the time concluded that interference occurred in some files. These could not be referred under subsection 63(2) of the Act as the person involved was not an officer or an employee of a government institution.
I recommend that you contact the Attorney General’s office directly for more information.

End of mandate

21- As you are now in the last year of your mandate what do you want to be remembered for? What will your legacy be?

An inventory of complaints whose age is measured in months, not years.
Publication of important guidance documents as well as final reports.
Several hundred orders, some of which will play an important role in future jurisprudence.