2023-2024 Annual Report

Table of contents

• Message from the Commissioner
• 2023–2024: Year in review
• Driving efficiency: A year of progress
• Operational enhancements in 2023–2024
• What happens when you submit a complaint?
• Orders: One possible outcome for complaints
• Observations on the access to information system
• About the Office of the Information Commissioner
• Annex — Annual report of the Ad Hoc Information Commissioner

2023–2024: Year in review

Addressing the inventory of complaints

Another area of focus for the Commissioner since the beginning of her mandate has been addressing the inventory of complaints she inherited while investigating new complaints as they come in.

In 2023–2024, the OIC continued to make significant progress on the most challenging complaints in the inventory. Some of these contain thousands of pages with many exemptions claimed, while many involve third-party information or the analysis of highly technical and sensitive information.

Operational enhancements in 2023–2024

In 2023–2024, the OIC continued to improve its processes and tools:

Revamped complaint form

In July 2023, the OIC introduced a significant update to its online complaint form. While retaining all of the user-friendly elements of its predecessor, the new form provides additional features to help complainants accurately submit their complaints. It enables complainants to provide more information at the outset, which allows the OIC’s Registry to make more efficient decisions regarding complaint admissibility. To complement the updated online form, the OIC enhanced the accessibility of the PDF version.

Updated website content

To help complainants, institutions and others better understand the complaint submission and investigation processes, the OIC published new or updated web pages related to complaints and investigations, including an expanded Frequently Asked Questions section. Explanations of key points complainants should consider and steps they should take before submitting their complaint were also added to the OIC website.

In 2023–2024, the OIC also continued to develop guidance on the Commissioner’s interpretation of various sections of the Act. This is part of ongoing efforts to provide as much information and clear explanation as possible to institutions and complainants, so they have a better understanding of how the OIC investigates complaints. One notable example is the publication of Exemption from disclosure: advice, accounts, positions and plans. Focussing on section 21, which covers the inner decision-making processes of government, this guidance sheds light on the requirements of this exemption and the elements investigators examine when determining whether institutions applied it properly.

What happens when you submit a complaint?

The OIC receives complaints on a variety of topics against nearly 100 institutions each year. Regardless of the specifics, each complaint follows the same basic steps:

1. Initial processing: The Registry reviews each complaint to determine whether it is admissible.
2. Information gathering: If the complaint is admissible, the Registry collects the documents and information investigators need to get started. Once the complaint is assigned, the investigator gathers input on the allegations from the complainant, institution and other parties.
3. Analysis: The investigator analyzes all the facts and input and may follow up with the complainant, institution and other parties to gather more information. The investigator may also work with the complainant and institution to resolve or narrow the allegations under investigation.

4. Possible outcomes: Based on the investigator’s analysis, the Commissioner may decide that the complaint is well founded or not well founded, depending on whether the allegations have merit. Sometimes, complainants withdraw complaints or the Commissioner decides to refuse or cease to investigate them (for example, when an institution responds to an access request that is the subject of a delay complaint).

   For well-founded complaints, the Commissioner may order institutions to take specific actions to resolve the matters at issue.

5. Reporting: At the conclusion of each investigation, the Commissioner reports to the complainant, institution and other parties, as applicable:
   • When a complaint is well founded and the Commissioner intends to make orders, she sends an initial report to the institution outlining her analysis, findings and the orders she intends to make.
   • She then sends a final report to the complainant and institution (and other parties, as needed), similarly outlining her analysis, findings and orders and, importantly, indicating whether the institution has agreed to implement them.
   • The Commissioner also sends final reports to complainants and institutions when complaints are not well founded.

The OIC publishes many of its final reports in its Decisions Database, as well as information on all of the Commissioner’s orders.

Orders: One possible outcome for complaints

Since the 2019 amendments to the Act, the Information Commissioner may make any order that she considers appropriate to resolve the matters at issue in well-founded complaints.

In 2023–2024, the Commissioner issued 310 orders, including 275 stemming from investigations into complaints involving delay and extension of time allegations (administrative complaints) and 35 following investigations into, for example, whether institutions correctly applied exemptions or conducted a reasonable search for records (refusal complaints).

The Commissioner’s orders are legally binding. This means that institutions are obliged to implement them unless they apply to the Federal Court for a review. During 2023–2024, three institutions went to court for such a review. Their 16 cases focused on orders issued at the conclusion of investigations into administrative complaint cases.

In these cases, the Commissioner had found that institutions had failed to meet their obligation to respond to the access request within the time limits set out in the Act. She therefore issued orders requiring the institutions to respond to the access requests.

Three institutions challenge orders on refusal complaints:

Export Development Canada

The Export Development Canada (EDC) asked the Federal Court to set aside the Commissioner’s order that EDC disclose the policy numbers and maximum liability amounts associated with its insurance policies worth $50,000 (or more) in Honduras between 2009 and 2019. At issue was whether EDC was justified in refusing to disclose this information based on section 24.3 of the Export Development Act, which is incorporated by reference into section 24, and/or section 18.1 of the Access to Information Act. The Court dismissed EDC’s application, ordering the information to be disclosed.

The Court concluded that EDC’s interpretation of section 24.3 was overly broad and was not supported by the wording of the Act, would render the words “obtained by” meaningless and could not be what Parliament intended when it drafted the provision. The Court agreed with the Information Commissioner’s interpretation of section 24.3, concluding as follows:

• The Act distinguishes between information “obtained by” and information “created by” a government institution.
• In order for it to have been “obtained” by EDC,
  • the information must have existed before EDC received it
  • the source of the information must be external to EDC (i.e., coming directly from its customers or supplied to EDC by third parties in relation to its customers).
• The information that EDC created (either exclusively or jointly with another party) cannot also have been obtained by or supplied to EDC.

The Court concluded that because EDC created the redacted information it was not protected by section 24.3 of the Export Development Act and, in turn, section 24 of the Access to Information Act.

The Court also rejected EDC’s arguments that the information could be withheld under section 18.1 of the Access to Information Act, which is intended to protect the economic interests of government institutions listed in the exemption, including EDC. It also established a test for determining the applicability of section 18.1, stating that the following four elements must be established in order for information to be withheld under this exemption:

• The information is trade secrets or financial, commercial, scientific or technical information as those terms are commonly understood.
• There is a reasonable nexus between the information requested and the Corporation’s economic interests.
• The information belongs to one of the corporations listed in subsection 18.1(1).
• The information has been treated consistently in a confidential manner.

The Court concluded that EDC failed to meet the second and fourth elements of this test. EDC has appealed this decision to the Federal Court of Appeal.

Public Services and Procurement Canada

The complainant alleged that Public Services and Procurement Canada (PSPC) failed to conduct a reasonable search for records in response to an access request for the Health Protection Building (Tunney’s Pasture) Whole Building Designated Substances Report.

The Commissioner concluded that the complaint was well founded and that the documents were under PSPC's control, and thus subject to the Act. She then ordered PSPC to retrieve the records and to respond to the access request by processing the records at issue in accordance with the Act. PSPC is challenging the order in Federal Court. The case has recently been heard, with the decision expected later this year.

Agriculture and Agri-Food Canada

The complainant alleged that Agriculture and Agri-Food Canada (AAFC) had improperly withheld information under subsection 19(1) (personal information) and paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information) of the Act in response to an access request. The request was for communication with the National Farm Animal Care Council regarding the Five-Year Review Summary Report and proposed amendments to the Code of Practice for the Care and Handling of Pigs.

The Commissioner concluded that the complaint was well founded. She then ordered AAFC to disclose all information withheld under paragraph 20(1)(b), unless it qualifies for exemption pursuant subsection 19(1) or is outside the scope of the access request. AAFC is challenging the order in Federal Court. The case will be heard in late 2024 or early 2025.

Observations on the access to information system

Through its investigations and engagement with stakeholders, the OIC has a unique perspective on the challenges facing the federal access to information system. In 2023–2024, several issues caught the Commissioner’s attention.

Sending the right message on access to information

The Commissioner received a complaint alleging that chief financial officers (CFOs) from institutions across the federal government had, during a meeting on February 2, 2023, received direction from the Office of the Comptroller General of Canada (OCG) not to record information of business value because it would be accessible under the Access to Information Act. Specifically, the complainant alleged that the Comptroller General advised those in attendance to, “Be careful what you write down. It will find its way out through an ATIP.”

The OCG maintained that the statements were intended simply to remind public servants to remain factual in their communications to avoid situations in which personal opinions could be understood to be the Government of Canada’s position. The OCG also indicated that no one from its organization ever said or implied that CFOs should not record information of business value.

In the complainant’s view, the statements contradicted both the purpose and spirit of the Act by restricting access to written opinions and views from public servants.

The OIC asked CFOs who had attended the meeting for their understanding of the statements. The consensus was that the statements were perceived as a reminder that, when dealing with sensitive situations, government employees need to remain factual in their documentation.

Ultimately, the complaint was discontinued. However, it is interesting to note that, in a recent communication to CFOs, the Comptroller General emphasized the importance of maintaining a culture of accountability and transparency across government. He reminded colleagues that decisions must be, “supported by accurate and complete information” and that “records must be maintained to facilitate access to information whether it be proactive or in response to requests.”

Challenges low-volume institutions face

Roughly 110 institutions that are subject to the Access to Information Act receive 10 or fewer access requests per year. Among these organizations are most ports, pilotage authorities and museums.

Through its investigations, the OIC has noted that these institutions frequently lack knowledge of how to handle access requests and of their obligations under the Act. They typically do not have a dedicated team that coordinates access requests, and the individuals assigned to this task often find themselves managing multiple responsibilities. Occasionally, low-volume institutions receive a sudden in flux of requests, leading to challenges managing their workload.

Working with institutions unfamiliar with their access obligations presents several challenges for the OIC, including the following:

• Institutions create new records to summarize documents, rather than providing the actual documents, which constitutes a denial of access.
• They improperly apply exemptions or have a poor understanding of their obligations to requesters.
• They do not recognize access to information as a priority or even a responsibility.
• They have insufficient resources to provide representations and evidence to the OIC in a timely manner.

Shining light on request backlogs

Each institution subject to the Act is required to provide the Treasury Board of Canada Secretariat (TBS) with annual statistics on its performance in responding to access requests. One mandatory data point is the number of access requests it carries forward from one year to the next.

Based on information TBS published in December 2023, many institutions are not keeping pace with the rate of new access requests. The tables below show how large institutions’ backlogs are and how they have grown from year to year.

The Commissioner is concerned about the current state of backlogs and emphasizes the critical need for institutions to prioritize efforts to reduce or, ideally, eliminate them. Timely responses to access requests are of paramount importance, and addressing backlogs is essential to maintaining transparency and accountability. To ensure prompt and effective responses to all access requests, it is imperative that institutions take proactive steps to streamline processes, allocate sufficient resources and implement efficient strategies.

About the Office of the Information Commissioner

The purpose of Canada's Access to Information Act, which came into force in 1983, is to protect the public’s right to access records under the control of government institutions, while ensuring that the use of exemptions and exclusions is limited and specific. The Act also entrusts the Information Commissioner of Canada with the independent review of any matters relating to requesting or obtaining access to records under Part 1 of the Act. The OIC was established to support the Information Commissioner in her capacity role as an independent agent of Parliament.

The OIC seeks to enforce the Act, using the full range of tools, activities and powers at the Commissioner’s disposal. These include negotiating with complainants and institutions, and making recommendations or orders to resolve matters at the conclusion of investigations.

The OIC supports the Commissioner in her advisory role to Parliament and parliamentary committees on all matters pertaining to access to information. It also actively makes the case for greater freedom of information in Canada through targeted initiatives such as Right to Know Week and ongoing dialogue with Canadians, Parliament and government institutions.

Thank you to all the OIC employees who were involved in the development of this annual report, which was produced entirely in-house.