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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 457 orders.
  • We now publish information on all orders issued on our web site. You can find them by consulting our decisions database.

DND Performance

  • As I highlighted in my opening remarks, I have observed a decline in DND’s performance across a number of indicators.
  • Last fiscal year, 73% of requests were responded to within legislated timelines, almost 40% are in deemed refusal.
  • Two complainants are responsible for 22% of the DND complaints since 2019-20. Most of these complaints were registered in 2019-20.
  • 2019-20 was a high in registered complaints against DND. This was the result of a large number of complaints from two complainants comprising 56% of the complaints registered that year.
  • It is important to remember that the Minister of National Defence is responsible for access to information at the Department of National Defence and for the Canadian Forces.

DND Systemic Investigation

  • Between 2018 and 2020, I conducted a systemic investigation focused on the six offices of primary interest (OPIs) most frequently tasked with responding to access to information requests for the Department of National Defence (DND).
  • I initiated this investigation into DND’s overall processing of access to information requests further to serious allegations made during the pre-trial hearings of Vice-Admiral Mark Norman, together with findings that I had made in an earlier investigation involving the Office of the Judge Advocate General, that DND had inappropriately withheld information in response to a request.
  • Information also came to my attention during the investigation that, in my view, was evidence of the possible commission of an offence under the Act during the processing of an access request related to Vice-Admiral Norman. Since I do not have the authority to investigate such offences, I disclosed this information to the Attorney General of Canada in February 2019.
  • The results of this investigation were detailed in my July 2020 special report to Parliament, Access at issue: Nine recommendations regarding the processing of access requests at National Defence.
  • In response, DND introduced a management action plan to address the issues I raised.
  • In response to my request to provide status updates on progress against the measures undertaken for my 2021-2022 Annual Report, DND reported that the implementation of the plan had led to improvements to its access system, including the adoption of an electronic retrieval model, streamlining processes and fostering good relationships with Tasking Liaison Officers.

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.

Litigation

  • Institutions are legally obliged to abide by my orders unless they apply to the Federal Court for a review.
  • When I issue an order, there are two options: institutions must either challenge it in court or comply with it. Some institutions refuse to abide by either of these requirements.
  • When I learn of allegations of non-compliance with my orders, I follow up with the institution in question to ensure compliance is a priority.
  • However, when institutions still do not implement my orders and do not apply to the Federal Court, I have no power under the Access to Information Act to force the institution to implement an order. At that point, I may take action by applying in Federal Court for a mandamus under the Federal Courts Act.
  • I have now made three applications for mandamus to seek DND’s compliance with my orders.
  • This type of extraordinary recourse to compel compliance should not be necessary.
  • I will not comment any further as these issues are before the courts.
  • If the mandamus mechanism is the only means of achieving the outcome I am seeking, I will continue to pursue this approach.

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.

Leadership

  • Complying with the law as it currently exists would represent an important first step to improving things. The message has to come from the leadership, way on top.
  • 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.

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.
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