Practical Analysis of Obstacles Encountered by Legal Services as Part of Access to Information Requests Presentation to the Canadian Institute at the Conference on Managing the Legal Risks Related to Internet Use Within the Public Sector By Me Nadine Gendron Office of the Information Commissioner of Canada May 27, 2010

Overview of access principles Commissioner’s scope and coercive power –Jurisdiction of the Information Commissioner –Administrative complaints and exemption complaints –Commissioner’s powers and the investigation process –Systemic investigations Effective management of access requests –Distinction between requests made under the Access to Information Act and the Privacy Act: Who can request what? –Information management –Training –Duty to assist Commissioner’s standpoint and practical approaches –How to deal with conflict –Recent decisions concerning access to information

Overview of access principles The Act came into force on July 1, 1983, creating a right of access to records under the control of government institutions.

Purpose of the Act The overarching purpose of access to information legislation is to facilitate democracy, which it does in two interconnected ways. It helps to ensure that citizens have the information required to participate meaningfully in the democratic process, and that politicians and bureaucrats remain accountable to the citizenry. Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403 (La Forest)

The Act is intended to complement existing procedures for obtaining information. Section 2 “Purpose” was used by the courts to interpret the legislation. It states, “The purpose of this Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific, and that decisions on the disclosure of government information should be reviewed independently of government.”

Quasi-constitutional status Large and liberal interpretation of the Act “Notwithstanding” clause (s. 4): “Subject to this Act, but notwithstanding any other Act of Parliament, [every person in Canada] has a right to and shall, on request, be given access to any record under the control of a government institution.”

Communication requests Fees / Time limits / Extensions

Exemptions The exemptions are mandatory (a few) or discretionary (most) and are either class-based or subject to an injury test. Exclusions S. 25: Severability Third parties

Ad hoc Commissioner

Commissioner’s scope and coercive power Jurisdiction of the Information Commissioner –Officer of Parliament –S. 3: Definition of “government institutions” –Power to make recommendations

Administrative complaints and exemption complaints -S. 30: Grounds for filing a complaint -Procedures and time limits

Commissioner’s powers and the investigation process –Procedure –Confidentiality of investigations –Opportunity to submit observations during the investigation –Significant powers –Access to all records –Recommendations

Judicial review - Request for judicial review of the institution’s decision By the Commissioner By the individual requesting access By a third party - Challenges to the Commissioner’s authority and jurisdiction - Burden of proof

Systemic investigations –Report cards –Other investigations

Effective management of access requests Distinction between requests made under the Access to Information Act and the Privacy Act: Who can request what?

Information management Training Proactive disclosure

Duty to assist Summarized as: a duty to make every reasonable effort to identify and locate records responsive to the request and to provide the applicant with information regarding the processing of the request in a timely manner.

Every reasonable effort means the effort that a fair and rational person would expect to be made and would find acceptable. An institution’s effort is expected to be thorough and comprehensive. –Positive duty –Continues throughout the request process

Principal aspects of the duty: 1.Interpretation of the request / Contacting the applicant 2.Search of responsive records 3.Responding to the applicant

Commissioner’s standpoint and practical approaches How to deal with conflict Cooperation Practice Directions

Recent decisions concerning access to information - Consequences of a deemed refusal Statham v. Société Radio-Canada (2009 FC 1028, de Montigny)

- “Control of records in a minister’s office” Federal Court Canada (Information Commissioner) v. Canada (Minister of National Defence) (2008 FC 766, Kelen) Federal Court of Appeal Canada (Information Commissioner) v. Canada (Minister of National Defence) (2009 FCA 175, 2009 FCA 181) Supreme Court Information Commissioner of Canada v. Minister of National Defence (33300, 33296, 33297, 33299)

Current cases Canadian Broadcasting Corporation : Exclusion Canadian Broadcasting Corporation v. Information Commissioner (T ) Criminal Lawyer’s Association Ministry of Public Safety and Security, et al. v. Criminal Lawyers’ Association (32172)

Useful links Office of the Information Commissioner of Canada Info Source