Archived - Access to Information Guidelines - Review of Decisions

The Access to Information Act provides for a two-tiered system of review of decisions made under the Act. The first stage is a complaint to the Information Commissioner, an individual with the power of an ombudsman. The second is an appeal to the Federal Court B Trial Division. The role of the Commissioner is to attempt to mediate a resolution of complaints in order to avoid, if possible, costly and time-consuming recourse to the Federal Court. The Commissioner also provides an accountability link to Parliament for the administration of the Act. Parliament is responsible for reviewing the administration of the Act on a permanent basis (see subsection 75(1)). This responsibility is carried out by the Standing Committee on Justice and Solicitor General. Government institutions should attempt to resolve, complaints through the auspices of the Commissioner, wherever it is feasible to do so.

Subsection 30(1) of the Act provides that the following matters may be the subject of a complaint to the Information Commissioner:

• refusal of access to a record;
• the amount of fees charged under section 11;
• extension of time limits for response to a request under section 9;
• the official language in which access is provided under subsection 12(2);
• the length of time taken to translate a record into the official language preferred by the applicant under subsection 12(2);
• any publications or bulletins referred to in section 5; and
• any other matter relating to requesting or obtaining access to records.

Complaints regarding any of these matters may be brought by an applicant or his or her representative (see subsection 30(2)). As well, the Information Commissioner may initiate an investigation into any matter relating to requesting or obtaining access to records under the Act, if satisfied that there are reasonable grounds for doing so (see subsection 30(3)). This means that the Information Commissioner is free to act without a complaint being lodged, if a matter comes to his or her attention and there are reasonable grounds to believe that it could form the basis for a complaint. It should be noted that a complaint relating to a publication or bulletin may be brought by any person or be initiated by the Commissioner regardless of whether or not a request for access has been made under the Act.

Normally, complaints to the Information Commissioner must be made in writing but this requirement may be waived by the Commissioner. A complaint relating to a request for access to a record (i.e. refusal of access, fees, time extensions or language) must be lodged with the Commissioner within one year of the time that the particular request concerned was received by the government institution to which it was sent by the applicant (see section 31).

Subsection 36(1) provides that the Information Commissioner has, under the Access to Information Act, the following powers in relation to carrying out investigations:

• to summon persons and compel them to give evidence;
• to compel the production of documents;
• to administer oaths;
• to receive evidence;
• to enter premises occupied by the government institution;
• to converse in private with the person in such premises; and
• to examine or make copies of any records related to an investigation.

Government institutions must provide to the Information Commissioner for examination any record requested by the Commissioner, except a confidence of the Queen's Privy Council (i.e. Cabinet confidences, see subsection 36(2)). No access is provided to this type of record because section 69 of the Act excludes such records from the legislation. The Section of these Guidelines on excluded records discusses which types of records qualify as Cabinet confidences.

Legal advice which is not in itself the subject of the request would not normally be included with the information provided to the Commissioner for examination, in order to preserve the solicitor-client privilege. On rare occasions the Commissioner, or persons working on behalf or under the direction of the Commissioner (usually an investigator), may request to examine this information. While the ultimate decision whether or not to release legal advice rests with the client institution, it is essential that legal advisors be consulted and that legal advice only be provided to the Commissioner or his or her representative on the express condition that the privilege is not being waived.

The Information Commissioner has 10 days in which to return any documents produced by a government institution for examination, if the institution requests their return. The Commissioner can, however, compel the production of any document again if it is deemed necessary to an investigation (see subsection 36(5)).

In order to ensure proper security arrangements for information required pursuant to an investigation, section 61 of the Act provides that the Information Commissioner and every person acting on behalf of or under that official's direction in any investigation shall, in gaining access to and using any information required in the investigation, satisfy any security requirements applicable to, and take any oaths of secrecy required to be taken by persons who normally have access to the information.

Prior to commencing an investigation, the Information Commissioner must inform the head of the government institution concerned of his or her intention to carry out an investigation and of the substance of the complaint (see section 32). Subsection 35(2) ensures that government institutions will be given a reasonable opportunity to make representations to the Information Commissioner in the course of an investigation as will the person who lodged the complaint and, where applicable, any third party who is involved in the complaint action. Third party representation and notification procedures relating to an investigation by the Information Commissioner (see section 33 and subsections 35(2), 37(2) and 37(4)(b), which are discussed in detail in section 8.1 of Chapter 2-8). All investigations by the Commissioner must be conducted in private and no party is entitled, as a right, to be present during, to have access to, or to comment on representations made by another party involved in the complaint (see section 35). Any person summoned to appear before the Information Commissioner is, at the Commissioner's discretion, entitled to receive witness fees and allowances similar to those permitted for attendance in the Federal Court (see subsection 36(4)).

Evidence that an employee of a government institution or any other person involved in the complaint gives in the course of an investigation is not admissible as evidence against the employee or person in a Court or any other proceeding except in a prosecution for an offence under section 131 of the Criminal Code (false statements in extrajudicial hearings), in a prosecution for an offence under this Act, in a review before the Court under this Act or in an appeal resulting from such review (see subsection 36(3)). Government employees should not impede in any way an investigation by the Information Commissioner. Section 67 of the Act provides that such obstruction of the Commissioner or his or her delegates in the performance of duties and functions under the Act is an offence and subject, upon summary conviction, to a fine not to exceed $1,000.00.

Subsection 37(1) of the Access to Information Act provides that, when the Information Commissioner has investigated a complaint and finds that it has merit, the Commissioner must report to the head of the government institution that has the record under its control concerning the findings of the investigation and any recommendations resulting from it (see paragraph 37(1)(a)). This report is first made to the head of the institution in order that he or she will have an opportunity to take any appropriate action resulting from the recommendations to meet the complaint. This report may also include a request by the Commissioner that the institution notify him or her within a specified time of any action taken or proposed to be taken to implement the recommendations made in the report or, if no action is to be taken by the institution, the reasons for this decision (see paragraph 37(1)(b)).

A similar process applies where the Information Commissioner initiates an investigation and finds that the reasons for having done so are well-founded.

Where an institution notifies the Information Commissioner that access is to be given to a record or part of it, the institution shall, if no third party notification is involved, forthwith give access (see subsection 37(4)). Similarly, if an institution notifies the Commissioner that it will meet any other matter of complaint (i.e. fees, time extensions, language etc.), it shall forthwith carry out remedial action. In indicating remedial action, institutions should set out the action to be taken, by what date it will be done, and proceed accordingly.

In all instances the Information Commissioner is bound to report to the complainant concerning the results of his or her investigation but where a time limit has been specified for an institution to report on compliance with the recommendations resulting from an investigation, the Commissioner may not report to the complainant until the notification period has expired (see subsection 37(2)). However, after expiration of the time limit, if the institution does not comply with the recommendations or its response is, in the view of the Commissioner, inadequate, inappropriate or will not be taken in a reasonable time, the Commissioner must include in the report to the complainant his or her findings and recommendations, the response of the institution to these and may include in such report any comments he or she sees fit on the matter under consideration (see subsection 37(3)).

It is important to note that the Information Commissioner has the powers of an ombudsman. This official can, for instance, recommend that a complainant be given access to a record but cannot order the government institution to provide access. The Commissioner's power derives from a mandate to fully investigate a matter and to make recommendations for the resolution of a complaint which are fair and impartial. Further, if the recommendation is that access be given and the institution refuses, the Commissioner must advise the complainant of his or her right to apply to the Federal Court for a review of the matter; may, with the complainant's consent, apply for such a review; may represent the complainant or appear as a party to the review. Moreover, the Commissioner can report to Parliament when the head of a government institution does not comply with his or her recommendations. This may be done at any time, in a special report when the Information Commissioner considers the matter involved is of an urgent, important or serious nature (see section 39) or reference may be included in the annual report to Parliament required of this official under section 38 of the Act.

Investigation, report and recommendation by the Information Commissioner is the only level of appeal for all matters except the refusal of a request for access. However, where an institution refuses to comply with the recommendation of the Commissioner to give access to a record, the Commissioner is required to inform the complainant of his or her right to apply to the Federal Court B Trial Division for further review of the matter (see subsection 37(5)).

When the Information Commissioner's investigation is complete, a person who has not obtained access to a record requested under the Act has the right to apply to the Federal Court B Trial Division for a review of the matter (see section 41). As noted above, this review may occur only when a head of a government institution has refused access to a record requested under the Act (including situations involving deemed refusals). The Act does not provide for review by the Court of complaints about other matters which arise under the Act, such as fees and language of access. Normally, an applicant must make an appeal within 45 days after the results of the investigation by the Information Commissioner have been reported to him or her. An application to the Federal Court B Trial Division is to be heard and determined in a summary way (see section 45).

The Information Commissioner also may apply to the Federal Court for a review of a decision to refuse access, provided the Commissioner first obtains the consent of the person who requested the record. In addition, the Commissioner may appear as a party in any case brought under the Act and may represent an applicant who has initiated proceedings before the Court (see section 42).

Any third party about which the government holds information to which the exemption in subsection 20(1) may apply also has the right to initiate proceedings in the Federal Court to prevent disclosure of the information. Any such third party has the right to appear as a party in a case initiated by the applicant or Information Commissioner regarding a decision to withhold a record under subsection 20(1) (see section 44 of the Act and section 8.1 of Chapter 2-8 of these Guidelines).

During proceedings brought under the Access to Information Act, the Court has the power to examine all records except Cabinet confidences (see section 46). As explained above, the Act does not apply to this type of record. To ensure the confidentiality of information which is the subject of proceedings before the Court, and other sensitive information produced during such proceedings, the Court may conduct hearings in private and receive representations ex parte (see subsection 47(1)). The Court may disclose to any appropriate authority information relating to the commission of an offence against any law of Canada or a province on the part of any officer or employee of a government institution, if in its opinion evidence exists of such an offence (see subsection 47(2)). In cases arising under the Act concerning a review of refusal of access, the burden of proof regarding a decision to refuse access always rests with the government institution (see section 48).

The type of review which the Court is authorized to conduct in a case brought under the Access to Information Act depends on the exemption which has been claimed. The following exemptions are subject to de novo review:

1. section 13 B information obtained in confidence from another government or international organization;
2. paragraphs 16(1)(a) and (b) B law enforcement information collected or obtained by specified investigative bodies and investigative techniques and plans;
3. subsection 16(2) B information which would facilitate the commission of an offence;
4. subsection 16(3) B information obtained or prepared by the RCMP when performing its provincial policing role;
5. section 17 B information the release of which would threaten the safety of individuals;
6. paragraph 18(a) B proprietary information belonging to the Government of Canada;
7. paragraphs 18(b) and (c) B prejudice the competitive position of a government institution or scientific research by a government employee;
8. section 19 B personal information;
9. subsection 20(1) B trade secrets and confidential information of a third party; and prejudice to the competitive position or the negotiations of a third party;
10. section 21 B advice;
11. section 22 B testing procedures and audits;
12. section 23 B solicitor-client privilege;
13. section 24 B statutory prohibitions.

De novo review means that the Court will examine the merits of the issue; that is whether or not the exemption applies to the record before it on hearing the applicant, the government institution and, where appropriate, any third party involved. If the Court decides that the exemption applies to the record, the record will not be released (see section 51). If the Court concludes that the exemption does not apply, it will order the head of the institution to release the record (see section 49).

However, the court is limited to a determination of whether or not the head of the government institution had 'reasonable grounds' for the decision to withhold a record, if the denial of access is based on the following exemptions:

1. section 14 B injury to the conduct of federal-provincial affairs;
2. section 15 B injury to international affairs, defence and security;
3. paragraphs 16(1)(c) and (d) B injury to law enforcement, the conduct of investigations or the security of penal institutions;
4. paragraph 18(d) B injury to the financial interests of the Government of Canada or its ability to manage the economy.

In such cases the Court can only order the record released where it finds that reasonable grounds for the decision do not exist. Otherwise, the decision of the head of the government institution to withhold the record will be upheld (see section 50).

If a government institution is represented before the Federal Court by someone other than the Department of Justice or an agent appointed by the Department of Justice, the Information, Law and Privacy Section of the Department of Justice should be immediately informed so that the Department can consider the need for formal or informal intervention.