Key messages

General

As Information Commissioner, I play a vital role in the system, but I have a very specific mandate: Investigating complaints.
I also advise Parliament on access to information matters, including through special reports.
Approximately 4% of access requests will result in complaints to my office. As the volume of requests grows, we can expect the volume of complaints to grow proportionally.
The OIC has improved its performance, but it is still not enough to cope with increasing volumes
The access to information system is under pressure like never before. The system must be adequately funded.
A properly funded access to information system contributes to Canadians’ confidence in public institutions.
Canadians who complain to the OIC are exercising Quasi-Constitutional rights that form the basis of our democratic system.
Canadians are entitled to timely access to information. They should not tolerate a situation where their institutions don’t respect the law of the land.
The right to information strengthens Canadians' trust in government decision-making. More transparency would also allow Canadians to better understand the government’s decisions and policies, and would enhance accountability.
The right of access is a means by which we not only hold our government to account, but determine how and why decisions were made and actions taken, in order to learn and find ways to do better in the future.

Duty to document and information management

In order to hold government to account, decisions must be properly recorded and accessible.
We must ensure that we capture and keep track of records that document decisions and actions, and that information is being properly managed at all times.
The right of access cannot exist without records, and culture change starts at the top.
Ministers and deputy ministers must ensure that they and their officials generate, capture and keep track of records that document decisions and actions, and that information is being properly managed at all times. This is particularly important in a hybrid environment.
Currently, there is no legislative requirement regarding the duty to document. This should be required by the legislation.

Processes and delays - Complaints

We have a limited number of investigators. Each investigator can tackle a limited number of complaints at once.
Complaints remain in our inventory until investigators are available to take them on. When all investigators have a full caseload, this results in a delay in assigning complaints.
Complaints are categorized according to a number of criteria, including type (administrative vs refusal), when they were received, and whether they are pre or post C-58. We take a balanced approach to assigning complaints in order to make progress against each segment of our inventory.
This means that investigators are assigned both new files and older files, based on a variety of factors, including area of expertise, level of complexity, and type of complaint.
In 2021, we were able to hire many new investigators but it takes time to develop them to the level where they can tackle the most complex files.
Through our Investigators’ Development program, we are training our investigators to take on increasingly complex files.
Many of the files remaining in our inventory are very complex. They sometimes involve tens of thousands of pages with many exemptions claimed.
I am committed to do everything I can to get those remaining older complaints resolved before the end of my mandate.

Investigations: Process improvements

In recent years, investigations process improvements have allowed the OIC to consistently improve its performance year over year, assigning and concluding investigations more rapidly, in the face of a steadily increasing volume of complaints.
The strategies and process improvements adopted have included the following:
publishing more guidance on the Commissioner’s interpretation of the Access to Information Act and the approach of her office when conducting investigations, to ensure both complainants and institutions easily understand the OIC’s position.
structuring the investigations group into three distinct portfolios by grouping institutions with similar mandates together to develop program expertise and generate opportunities to collaborate.
adopting standard procedures in order to facilitate onboarding and training of new investigators and to improve consistency and efficiency.

Investigations: Results

2021-2022 was a record year, with almost 7,000 new complaints registered. That was 70% more than the previous year.
In 2021-2022, the OIC succeeded in closing 67% more complaints than the previous fiscal year.
So far^{Footnote 1}, in 2022-2023, with almost 6,600 complaints registered, the OIC has closed 6,970 complaints. This represents a 25% increase from last year at the same date.
Despite this rise, the OIC has managed to clear 97% of the backlog of files I had inherited at the beginning of my mandate.
I am committed to do everything I can to get those remaining older complaints resolved before the end of my mandate.
To provide clear guidance on my interpretation of the Act and to ensure both complainants and institutions easily understand the OIC’s position, the OIC has also published 50 final reports and summaries on its website as of March 1, 2023.
By the end of the current fiscal year, we expect to publish four more final reports and summaries.

Need for additional resources

Based on current funding, the OIC is expected to deal with 4400 complaints annually.
In order to adequately respond to the increasing number of complaints (70% increase), the OIC has been pursuing additional permanent funding.
This permanent funding would be invested in hiring additional investigators, and bolstering our IT infrastructure, which has reached the end of its lifecycle.
More completed investigations means more Canadians will receive responses to their access requests more quickly than they would have without the OIC’s intervention, in many cases with more records than they would have otherwise received.

Order-making powers

Bill C-58 was the first bill to significantly amend and update the Access to Information Actsince it first became law in 1983.
Once the amendments came into force in June 2019, I was granted order-making powers and the OIC started operating under a hybrid system. I have since made both recommendations and orders, depending on the date each complaint was submitted.
Since the inventory of pre-June 2019 complaints is diminishing steadily, an increasing number of complaints are now subject to orders.
Since the coming into force of C-58, I have made 194 orders. More than 3/4 of my orders (85%) were made during the current fiscal year.

Enforcement of orders

I have no power under the Access to Information Act to force the institution to implement all aspects of my orders.
Institutions are legally obliged to abide by orders unless they apply to the Federal Court for a review of the matter that is the subject of the orders. The Access to Information Act does not provide any other alternative to complying with the orders.
When I learn of allegations of non-compliance with orders, I follow up with the institution in question to ensure compliance is a priority. Should that not be the case, I consider my options, including taking action in Federal Court.
The Office of the Information Commissioner generally does not track institutions’ compliance with orders. However, non-compliance is a concern as orders are legally binding. This is the basic difference between them and recommendations.

Government’s final report on the review of access to information

The government originally announced that the review would be completed by January 2022. The individuals who took the time to participate in this exercise—and indeed all Canadians—had a right to expect more.
This report falls short of what is needed, namely concrete proposals to improve the Access to Information Act and address the issues within the system
I hope that this does not signal that the Government has reached the limits of its willingness to improve the legislative framework.
As I highlighted in my submission to the review, and as others have pointed out repeatedly, further changes to the law are required.
While I am pleased that the government took note of some of the concerns I raised including the length of consultations between institutions and the lack of a declassification framework. I find it regrettable that no concrete commitments with firm timelines accompany the Government’s analysis.

Recommendations – Improvements to the Access to Information Act

Overall, there should be more voluntary disclosure to pre-empt access requests.
The Access to Information Act should set out a maximum length of time for consultations needed to respond to access requests (Recommendation 1) as delays are the biggest issue for access.
As you have heard by many witnesses, I believe the Act’s coverage should be extended to Offices of the Prime Minister and Ministers (Recommendation 3).
Subsection 21(2) of the Act should be amended to add a list of categories of information not covered by the exemption. (Recommendation 9). In fact, the 20-year-period provided for in subsection 21(1) of the Act should be reduced to 10 years. The current exemption is too broad.
Cabinet confidences should be subject to the Act and covered by and exemption rather than an exclusion in order to allow for independent review. (Recommendation 7 and 8)

Declassification

As I raised in my 2022 special report on my systemic investigation against Library and Archives Canada, handling classified information is an extremely complicated and lengthy process.
National security records often become less sensitive over time. A proper declassification system based on regular reviews and consensus by experts would enable researchers and others to gain access to records that are no longer sensitive to national security, through mechanisms other than the Act.
This would alleviate pressure on the access to information regime and achieve a better result for all stakeholders.

Consultations between institutions

The Access to Information Act should provide a clearer process for institutions that decide to have a consultation and set out a maximum length of time for consultations required in order to respond to access requests.
Requiring consulted institutions to respond within a specific time frame would help reduce processing times for access requests.
While perhaps improved, the delays in the consultation process were by no means corrected with the latest directive issued by Treasury Board. For example, my own ATIP shop recently received a notice from Public Service and Procurement Canada that their “service standards” dictated that they would need 90 days to respond to our request for consultation on two pages.