Questions and answers

Access to information challenges

During the Government’s review of access to information, Treasury Board Secretariat received input from various Indigenous organizations and peoples to learn about their usage of the access system and the unique issues they face. I invite you to look at TBS report.
Some of the challenges mentioned include:
- delays in receiving requested information,
- difficulty communicating with ATIP offices
- inconsistent application of exemptions.
While these issues are also reported by non-Indigenous people and organizations, Indigenous organizations note these issues result in a differential impact for their communities relying on access requests for critical, time-sensitive, and delicate purposes that can range from accessing infrastructure funding to assessing and monitoring natural resource development that may affect their rights, interests or claims.
In my discussions and correspondence with the Minister of Justice, the Deputy Minister of Justice, and the Minister of Crown-Indigenous Relations, I have addressed their responsibilities regarding the disclosure and treatment of documents related to residential schools, as well as the use of Library and Archives Canada’s Principled Framework on Providing Access to Archival Government Records Containing Solicitor-Client Privileged Information.

Each institution is responsible for responding to the access to information requests it receives.
My mandate is to investigate complaints from individuals who believe they have been denied rights under the Access to Information Act.
I may order the disclosure of records at the conclusion of my investigations.
Some investigations related to those records were done under the previous model, in which I could only issue recommendations

Prior to the coming into force of changes to the Act in June 2019, I only had the power to make recommendations. Complaints made before that date were not subject to orders.
The overall number of orders is increasing each year. Since June 2019, I have made 457 orders.
I deem that it is the most efficient way to enforce the Act. In my investigations, I have found that my orders have a deterrent effect: institutions will take the necessary measures to avoid an order.
My orders are binding. An institution is required to comply with my order, unless it applies to the Federal Court for review.

I have not issued any orders on investigations related to records on residential schools to date.
The Courts have determined that certain records related to residential schools are not under the control of the federal government for the purposes of the Act.
This means that they cannot be requested under the Act, and that my office does not have the authority to access these records.

The Act requires institutions to respond to access requests within 30 days unless they have transferred a request to another institution or validly extended the 30-day period for responding by meeting specific requirements of the Act.
When an institution does not respond to a request within the 30-day or extended period, it is deemed to have refused access to the requested records. Such requests may result in a complaint to my office.
Requesters may also complain about an extension taken by an institution.
The Treasury Board Secretariat holds the overall responsibility of administering the Act.
Each institution is responsible for responding to the access to information requests it receives.

We currently have four (4) complaints in our inventory. Two (2) are against the Department of Justice, and two (2) are against Crown-Indigenous Relations and Northern Affairs Canada.

As Canada’s Information Commissioner, I actively encourage transparency within the federal government. I do this by regularly meeting with heads of institutions, including Library and Archives Canada.
I am in favor of any initiative that would increase transparency and facilitate access to information.

Since the 2019 amendments to the Act, I may publish final reports at the conclusion of my investigations, when I deem them to be of jurisprudential value in providing guidance to both institutions and complainants.
For example, I may publish final reports that clarify the application of a provision of the Act or touch on recent court decisions or developments in access law.
Given that the publication of final reports has a positive effect of the efficient resolution of complaints, my Office has increased the publication of these reports in order to make known our position on key issues.
In February 2023, I also undertook to make information on all orders I issue publicly available in the interest of full transparency.
One of the final reports published on my Office’s website addresses a complaint regarding the Department of Justice's improper withholding of information in response to a records request related to the Alternate Independent Process for St-Anne’s Residential School hearings.
To date, my office has closed 49 complaints related to residential schools. Of this total, 30 were from complainants who were not satisfied that they received all the information they were entitled to under the Act; and 19 were from complainants who had not received a response to their requests under the legislated timelines.

The Office of the Information Commissioner supports a culture that support diversity and inclusion to enable the full participation of its employees, clients, and stakeholders in the delivery of its activities and its mandate.
In 2022, the OIC published its plan for eliminating barriers and preventing the introduction of new barriers over a three-year period.
We are currently reviewing and assessing our investigation process from an accessibility lens as well as the process complainants should follow to request accommodation.