2013-2014 Appendix B: Report of the Information Commissioner ad hoc

This is the third year that it has been my pleasure to report on the activities of the Office of the Information Commissioner, Ad Hoc. On April 1, 2007, the Office of the Information Commissioner (OIC) became subject to the Access to Information Act (the “ATI Act”). The law that brought this about did not create at the same time a separate mechanism to investigate any complaints that an access request to the OIC has been improperly handled.

Since it is a fundamental principle of access to information law that decisions on the disclosure of government information should be reviewed independently, the office of an independent Information Commissioner, Ad Hoc was created and given the authority to investigate any such complaints about the OIC.

More specifically, pursuant to subsection 59(1) of the ATI Act, the Information Commissioner has authorized me, as Commissioner, Ad Hoc:

… to exercise or perform all of the powers, duties and functions of the Information Commissioner set out in the Access to Information Act, including sections 30 to 37 and section 42 inclusive of the Access to Information Act, for the purpose of receiving and independently investigat[ing] any complaint described in section 30 of the Access to Information Act arising in response to access requests made in accordance with the Act to the Office of the Information Commissioner of Canada.

I am the fourth person to hold this office since 2007.

Outstanding complaints from previous year

Two complaints from last year were still outstanding as this year began. In the first, the complainant had said that the OIC had failed in its statutory duty to assist him by burdening him with too many documents when it responded to his request. When this concern was investigated, however, it was found to be not well-founded.

The second outstanding complaint raised an unusual and surprisingly difficult issue. It concerned the scope and meaning of section 16.1 of the ATI Act, a provision that exempts from production information obtained or created in the course of an investigation by the OIC. That exemption is partially lifted, however, “once the investigation and all related proceedings, if any, are finally concluded”. At that point, the exemption no longer applies to documents created during the investigation.

The question in this complaint was whether the OIC had applied section 16.1 properly. I concluded, for reasons that are summarized briefly below, that the OIC had not done so, and that the complaint was well-founded. The OIC did not agree with my interpretation of section 16.1 and indicated that it did not intend to implement the recommendation that I proposed.

The dispute arose out of an access to information request made by the complainant to another government department. He alleged that that department was improperly levying fees on the processing of his request. The Information Commissioner investigated the matter and agreed with the complainant. The Minister, however, did not accept the Commissioner’s conclusions and refused to implement her recommendations. Although he waived the fees in that instance, the Minister said he would levy them again in the future. 

The complainant made an access request to the OIC for all documents relating to its investigation of this matter. He then launched an Application to Federal Court, seeking a declaration that the department was unlawfully levying fees. The OIC was not a party to that litigation.

There was a significant connection between the Federal Court Application and the OIC’s investigation. Reading the words of the ATI Act in their ordinary, grammatical sense, the OIC took the view that the Application was therefore a “related proceeding” within the plain meaning of section 16.1. Since the Application proceeding was not yet “finally concluded”, the OIC believed that it was required to exempt from production all of its investigative records.

Statutory words, however, must not only be read in their ordinary, grammatical sense, but also in their entire context, harmoniously with the scheme and object of the Act, as well as with the intention of Parliament. Could Parliament have intended the plain meaning of section 16.1 to apply in the novel circumstances of this case?

Section 16.1 creates only a temporary exemption for information created by the OIC. The protection ends when the investigation ends. Considering the scheme and legislative history of the provision, it is evident that Parliament believed that forcing the OIC to disclose certain investigative records during, but not after, an active investigation might prejudice the effectiveness or integrity of OIC investigations. 

In this case, the disclosure to the complainant of the records he was seeking would neither jeopardize the OIC’s completed investigation into the department’s fee-levying practices nor its investigative processes more generally. 

Accordingly, this Office sought to construe section 16.1 in a way that was more harmonious with the scheme and object of the Act than a literal reading offered. In our view, “related proceedings” must be read as applying only to those proceedings that connect to an OIC investigation in a way that potentially interferes with the effectiveness or integrity of that investigation. This reading is also consistent with the principle that exemptions to the obligation to disclose under the ATI Act are to be narrowly construed.

Applying this interpretation to section 16.1, this Office concluded that the OIC had erred in not disclosing the information it had created during the investigation, when initially asked by the complainant. (The OIC later released that information when the complainant withdrew his Federal Court Application.)

The Information Commissioner raised a number of serious objections to this interpretation of the ATI Act. In particular, she argued that it amounted to reading an injury test into section 16.1, something Parliament had specifically avoided doing when adopting the provision. She also asserted that the approach advocated by this Office was not logically consistent.

We believe that there are satisfactory answers to these and other arguments made by the OIC but, clearly, the language of section 16.1 is problematic. It is not entirely unexpected, therefore, to see a divergence of views on how it should be read. In this instance, neither the Commissioner’s interpretation nor that proposed by this Office is wholly free from difficulty. In each case, some parts of the analysis are more compelling than others. It is respectfully submitted, however, that the interpretation adopted by this Office is, on balance, the better view. It is both more faithful to the precepts of statutory interpretation in Canada (reading the text contextually and purposively), and more respectful of the values that underpin access to information (providing more access, construing exemptions narrowly) than the approach offered by the Commissioner.

New complaints this year

Four new complaints were received and investigated this year. In each, the central issue concerned the proper application of section 16.1 of the ATI Act. One case has been disposed of as of the date of writing this report. The other three are still pending. 

In the first investigation, we concluded that the OIC had correctly applied section 16.1 and that the complaint was not well-founded. 

This case reveals another problematic aspect of section 16.1. The prohibition on disclosing information “obtained” by the OIC is so strict that the OIC cannot even return to an access requester the personal information that he or she provided to the OIC in the first place.

The remaining three complaints were all filed by the same individual. Although nearing completion, these investigations are still outstanding.  

This Office was also asked to look into two matters this year over which it did not have jurisdiction. In one, the complaint was filed approximately 18 months after the statutory deadline. 

In the second, an individual was dissatisfied with how the OIC had investigated another government department’s handling of his access request. This Office does not have jurisdiction to deal with such cases. Our mandate is limited to receiving and investigating complaints that an access request for a record under the control of the OIC itself may have been improperly handled.

Conclusion

The existence of an independent Commissioner, Ad Hoc ensures the integrity of the complaints process at the OIC. We remain ready to investigate any future complaints against the OIC thoroughly and independently.

It is a privilege to serve as Information Commissioner, Ad Hoc.

Respectfully submitted,

John H. Sims, Q.C.