Key Messages

Information Commissioner’s mandate

My mandate is very specific: I investigate complaints about the handling of access to information requests by government institutions.
I also advise Parliament on access to information matters, including through special reports.
To maximize compliance with the Access to Information Act, I have a variety of tools and powers, including making orders.

Orders

As few pre-2019 complaints remain in my inventory, most complaints now fall under the order-making model.
Since the changes to the Act in 2019, I have made 451 orders.
We now publish information on all orders issued on our web site. You can find them by consulting our decisions database.

Information Commissioner’s priorities

Investigations have always been my primary focus.
I have set the following objectives for my office:
- Maximize the use of formal powers at our disposal, including order-making powers;
- Balance that with tackling older complaints in our inventory;
- Publish more final reports in order to enhance our credibility and make known our position on key issues.
My office and I are always looking at improvements and efficiencies.
In the last twelve months, we have reduced our inventory by 30%.

State of the system

The access system has deteriorated to the point where it no longer serves its intended purpose.
Access to information is a quasi-constitutional right. It must be treated as such.
If we want to increase confidence in official sources of information, we must increase transparency.

Duty to document and information management

The right of access cannot exist without records. Heads of institutions 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.
I raised this issue in my January 2021 submission to the Government’s review of access to information.
The creation of a statutory duty for public servants and senior officials to create a complete, accurate registry of key actions would strengthen responsibility, transparency, good governance and public trust.
Such a duty would also be in line with one of the main objectives of the Act,institutional accountability.
The duty to document was also the subject of a joint resolution of Federal Provincial and Territorial Information Commissioners in 2016.

Leadership

Complying with the law as it currently exists would represent an important first step to improving things. The message has to come from leaders.
Senior leaders must be held accountable for their institution’s performance in the area of access.
In institutions that are doing better than others, leaders are engaged and playing an active role. They know what is going on across their department when it comes to access. They understand ATIP challenges and bottlenecks in their institution. They ask for reports and debriefs on performance. They also understand the importance of innovation, of harnessing technology, and of managing records effectively.
In institutions where things are going in the right direction, the message that ATIP is a core part of a public servant’s job, rather than a distraction from other responsibilities, has gotten through. If ATIP teams do not receive the necessary cooperation from other areas of department in the retrieval of records, they cannot respond to requests in a timely manner.

Criminal offences

My office has no authority to investigate criminal offences under the 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 six occasions.
I am not aware of any prosecution that happened as a result of my office’s referral.
I recommend that you contact the Attorney General’s office directly for more information.

Three things to fix the system now

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, training, tools and technology to support modernizing the system.

Three legislative changes needed now

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.

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.
Institutions that we investigate are involved in determining if, when, and how much funds are allocated to my office. This is not consistent with my independence or my accountability to Parliament.
As I outlined in my letter to the committee chair on February 5, 2024, an independent funding model for my office and other Agents of Parliament is not an innovation.
Some of my fellow Agents already operate under such a model. They have amply demonstrated that, by incorporating the highest standards of stewardship of public funds and by including the necessary safeguards, they can ensure value for money.
This issue has been the object of Parliament’s attention before. Most recently, in its report on the State of Canada’s Access to Information System tabled in June of 2023, the ETHI Committee recommended “that the Government of Canada establish an independent funding mechanism for the Office of the Information Commissioner of Canada”.
Your committee could examine what could be the most suitable approach.
The most significant requirement for maintaining my independence is that the chosen model is independent from the government of the day.

Complaints – Investigation time

The average processing time for complaints about access requests depends on the type of complaint, the request and the collaboration with the institution targeted by the complaint.
Administrative complaints are normally resolved more quickly, in less than three months.
For refusal complaints, the volume of documents to be processed, the classification of the documents, and the exceptions applied play a role in the investigation time.
In general, refusal complaints are processed within six to twelve months. However, some files require a more lengthy investigation.

Complaints - Assignment

My office assigns files based on many factors, including:
Area of expertise;
Level of complexity;
Type of complaint;
Workload constraints;
Input from complainants;
How time sensitive the requested information is.

Office of the Information Commissioner’s activities

Currently, we have 99 full-time equivalents (FTE) out of 129 working on investigations. This includes registry staff, responsible for intake of complaints, and legal counsel who provide direct support to investigations, among others.
Corporate resources are needed to pay employees and suppliers, hire team members, 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, the OIC 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).