Andrea Neill Assistant Information Commissioner of Canada CAPA Conference Ottawa November 23,

 Recent challenges and approaches in conducting access to information investigations Examples of recent challenges faced by the Office of the Information Commissioner of Canada (OIC) in investigating complaints under the Access to Information Act (ATIA):* 1. Examining excluded records 2. Interference with access requests 3. National security exemption Approaches, tools and powers used  News from the OIC Overview 2 * More details found in Annual Report

 Power to view any record – exception for Cabinet confidences  When 70 new institutions became subject to ATIA, 2 new exclusions were added: 1. s for CBC (creative, journalistic, programming activities) 2. s for Atomic Energy Canada Limited (not related to general administration or operation of nuclear facility) 1.Examining excluded records 3

Issue: Production of Records  CBC regularly claimed s in access requests, resulting in large number of complaints to the OIC  In starting investigations, CBC refused to provide us with the records  Difference of opinion about the implications of this exclusion in our investigations  Without benefit of reviewing the information, we cannot assess whether CBC was correct to exclude it  AECL is providing their records 1.Examining excluded records 4

Approach / tools / powers:  Several informal attempts to obtain records  Issued subpoena for CBC to produce the records  CBC applied to Federal Court to challenge our authority to compel the production of records. The court rejected CBC’s challenge. The CBC is appealing to the Federal Court of Appeal.  Until courts resolve the matter, more than 150 cases on hold and cannot be investigated 1.Examining excluded records 5

 Commissioner may investigate any matter relating to requesting or obtaining access under the ATIA (s. 30(1)(f) – includes interference with access requests)  Allegations of political or other interference with access requests (e.g. National Gallery of Canada, PWGSC)  Criminal offence to destroy, mutilate, alter or conceal a record, or counsel others to do so, with intent to deny a right of access under the ATIA (s. 67.1) 2.Interference with access requests 6

Issue: Without a trace - destruction of records  Media reports of wrongful dismissal action where court documents suggested employees of National Gallery of Canada destroyed or counseled others to destroy records responsive to an access request  We conduct administrative investigations into compliance with ATIA, not criminal investigations  We make findings of fact  We cannot assign civil or criminal liability 7

Approach / tools / powers:  Commissioner initiated this complaint  Ensuring procedural fairness heightened: duty to notify and disclose, opportunity for individuals to make representations, review evidence and comment where finding could adversely affect their interests  Found as fact that individuals destroyed records and counseled others to do so during the processing of access request  Evidence found of possible commission of offence – first time referral to the Attorney General of Canada since section 67.1 enacted 11 years ago  Lessons learned for similar investigations 2.Interference with access requests 8

3.National security exemption  Discretionary, injury-based exemption to protect international affairs, national defence and national security (s. 15)  Increased public and parliamentary interest in Afghanistan related issues (e.g. human rights reports, detainees, cost of mission)  Exemption applied broadly over the years in access requests, resulting in many complaints 9

3.National security exemption 10

3.National security exemption Issue: When a “hair scrunchie” is a state secret  Access request for list of personal grooming items of Afghan detainees such as combs, razors, cosmetics, hair scrunchies  DND refused to release list, citing personal information and safety of individuals for identities of detainees and military personnel, and national security  We supported all but national security exemption  Institution must exercise discretion carefully, demonstrate probable harm, and apply severance 11

Approach / tools / powers:  Oral and documentary evidence, including seeking detailed justification  Negotiation efforts  Report to Minister of a well-founded complaint with recommendation to release grooming items  Recommendation accepted and list released  Enhanced training needed for investigators with special delegation to investigate s. 15 issues  Close scrutiny in investigating s. 15 complaints 3.National security exemption 12

Other approaches, tools and powers Approach / tools / powers:  Examinations under oath  Confidentiality orders  Requirement to preserve paper and electronic evidence (archived , back-up tapes)  Portfolio approach to investigations  Special reports / report cards  Systemic investigations  Litigation  Practice directions, complaint form 13

News from the OIC  CAIRS  Access to information and the Open Government movement  Greater transparency at the OIC 14

Open Government Movement United States – Open Government United Kingdom – Smarter Government Australia – Government

Principles of Open Government 1.The Commissioners endorse and promote open government as a means to enhance transparency and accountability which are essential features of good governance and critical elements of an effective and robust democracy. 2.The Commissioners call on the federal and all provincial and territorial governments to declare the importance of open government, including specific commitments for stronger standards for transparency and participation by the public. 3.Governments should build access mechanisms into the design and implementation stages of all new programs and services to facilitate and enhance proactive disclosure of information. 4.Through ongoing consultations with the public, governments should routinely identify data sources and proactively disclose information in open, accessible and reusable formats. Public access to information should be provided free or at minimal cost. 5.In implementing open government policies, the federal and all provincial and territorial governments should give due consideration to privacy, confidentiality, security, Crown copyright and all relevant laws. Office of the Information Commissioner Office of the Privacy Commissioner 16

Greater transparency at the OIC  Publication of monthly complaint statistics  E-requests – list of completed requests  Waiver of $5 application fee (pilot project) 17