2015 Submission to the National Assembly of Quebec – Transformation of the CAI

Gilles Ouimet, MNA
Chair of the Committee on Institutions
National Assembly of Quebec
Pamphile-Le May Building
1035 Des Parlementaires Street
3^rd Floor, Suite 3.15
Quebec City, Quebec G1A 1A3

Dear Mr. Ouimet:

Access to government information is one of the pillars of our democratic architecture, as it enables members of the public to hold their government accountable. A modern legal framework is needed to ensure that this pillar remains strong. I would therefore like to congratulate the Government of Quebec for its modernization efforts in publishing its policy paper entitled Orientations gouvernementales pour un gouvernement plus transparent, dans le respect du droit à la vie privée et la protection des renseignements personnels.

I would also take this opportunity to congratulate the Committee on Institutions of the Quebec National Assembly for launching these public consultations. Civic participation in policy creation and public dialogue fit in perfectly with open and transparent governance.

The government’s policy paper deals with various aspects of the access to information and privacy regime. It clearly shows the desire to increase access to government documents through positive actions, such as greater proactive disclosure and shorter deadlines related to inaccessibility.

Transformation of the CAI

I will limit my comments in this letter to policy direction 30, dealing with the structure of the Commission d’accès à l’information du Québec (CAI). My observations stem from the experience acquired by my office in the last three decades.

Policy direction 30 proposes to transform the CAI, which is currently structured according to the order-making model, into a non-jurisdictional agency with oversight, mediation, promotion and information functions. According to the policy direction, the CAI would have the power to issue orders, and the Commissioner could take cases of non-compliance to the Tribunal administratif du Québec (TAQ), which could make the order legally binding. The model proposed for the CAI would essentially be an ombudsman model similar to my mandate under the federal Access to Information Act (the Act).

Independent and effective oversight of government actions is an essential function of a strong and effective access to information regime. There are two different oversight models in this regard: the ombudsman model and the order-making model.

The ombudsman model

In my ombudsman role, my principal function involves investigating complaints about the handling of access to information requests. I have broad investigative powers, including the power to obtain and examine documents for an investigation (subject to a few exceptions), deliver subpoenas, administer oaths and enter the premises of federal institutions.

At the end of an investigation, if a complaint is well-founded, I can issue recommendations to the institution concerned. These recommendations are not binding and cannot be enforced. Their implementation is entirely up to the institution in question. In practice, this power to make recommendations severely limits my ability to assert the rights of requesters under the Act and ensure rapid access to the requested information.

As noted in the government’s policy paper, if there is a disagreement with the institution, I have the opportunity, under the Act and with the complainant’s agreement, to seek redress from the Federal Court of Canada to have it decide on the matter. I should nevertheless clarify this right of redress.

First, this redress is not a judicial review of my investigation, but, rather, a judicial review of the institution’s decision to deny access. In addition, it is a de novo hearing, which means that the review starts from scratch and the parties can even submit new evidence in court. Second, although my mandate allows me to investigate a wide range of issues, the Federal Court’s jurisdiction is limited to examining the refusal of an institution to disclose information.

Lastly, redress in Federal Court involves considerable delay and cost. If my office decides not to bring the matter before the Federal Court, the requester may exercise this right of recourse, but at his or her own cost.

Basically, the ombudsman model and its related procedures do not encourage institutions to disclose as much information as possible in a timely manner and may be a major obstacle to members of the public who want to exercise their access rights.

The order-making model

Under the order-making model currently in place at the CAI, the Commissioner instead has the role of adjudicator who takes queries from requesters concerning the handling of their access to information requests. The Commissioner decides on matters according to the representations of the parties involved. The order-making model may include a mediation option to more quickly settle cases that lend themselves to this option.

At the end of the process, the Commissioner’s order is legally binding. The order may also be referred for a judicial review by either party. This model has a number of advantages. First, it gives government institutions incentive to provide the Commissioner with complete representations and to submit all their evidence at the outset, since a judicial review by the court is based on the same evidence.

Furthermore, orders create a legal precedent, which is not the case with recommendations. Requesters and institutions thus have clear instructions as to the Commissioner’s position on the obligations of institutions under the Act. Ultimately, this may also lead to fewer complaints about identical issues.

The order-making model also has the advantage of being fast, providing timelier access to government information and thus ensuring access rights are upheld. Access requests are handled more quickly, as the institutions are aware that the Commissioner may order requests to be handled within a specific time frame. The order-making model also avoids delays and costs stemming from de novo hearings in court.

Finally, if the federal institution refuses to disclose information after the Commissioner issues an order, the onus of challenging the order is on the institution, not the requester, as is currently the case at the federal level.

Conclusion

In the light of these observations, in my view the order-making model is the best oversight model for ensuring the quasi-constitutional right of access to information. This is the model I recommend to Parliament in Chapter 5 of my special report entitled Striking the Right Balance for Transparency: Recommendations to modernize the Access to Information Act, tabled in March 2015. In addition, the order-making model is the progressive standard; it can be found in several Canadian provinces, the United Kingdom, India and Mexico.

Should Quebec choose the ombudsman model, I suggest that you take the following factors into consideration in your deliberations:

How do you ensure complaints to the Commissioner’s office are handled quickly, so as to ensure rapid access to government information?
Will institutions have deadlines to provide the Commissioner with their representations?
What will be the Commissioner’s powers of investigation?
Will the Commissioner have the power to conduct investigations at his or her own initiative?
Will the Commissioner’s recommendations be public or confidential?
Will referring cases to the TAQ to have the Commissioner’s orders enforced cause undue delays in access to requested information?
Will cases referred to the TAQ constitute a de novo hearing or a review of the Commissioner’s order?
Will members of the public or only the Commissioner be allowed to seek this kind of redress?
Does the TAQ have the expertise required to handle access to information requests?
Will the TAQ handle only matters involving the refusal to disclose information or any questions of law related to the enforcement of the Act?
The proposal does not indicate whether the TAQ’s decision is final. Can it be appealed to the Court of Quebec? If so, what arrangements have been made to reduce delays resulting from this additional recourse?
If not, can the TAQ’s decision be the subject of a judicial review in Superior Court? What arrangements have been made to reduce delays resulting from this additional recourse?
Will additional resources be needed for the CAI and TAQ to carry out their new mandates?

I will follow the CAI’s deliberations on this matter with interest. I am also attaching to this letter my special report on the modernization of the Act, which provides an overview of the health of the federal access to information system and makes 85 improvement recommendations. I hope that my observations prove useful to your deliberations.

Suzanne Legault

Information Commissioner of Canada

Encl.