Oversight Models: The Canadian Experience Andrea Neill Assistant Information Commissioner Complaints Resolution and Compliance American Bar Association Annual Meeting - Toronto August 5, 2011 1

International Principles of Oversight Article 19, Principle 5 Requests for information should be processed rapidly and fairly and an independent review of any refusals should be available Atlanta Declaration, Key Principle #4k The requester should be guaranteed a right to appeal any decision, any failure to provide information, or any other infringement of the right of access to information to an independent authority with the power to make binding and enforceable decisions, preferably an intermediary body such as an Information Commission(er) or Specialist Ombudsman in the first instance with a further right of appeal to a court of law 2

Full order-making power Oversight Models Ombudsperson Commissioner has the power to investigate and make recommendations to government institutions but not to render binding decisions Hybrid Commissioner’s recommendations are binding on government institutions with respect to administrative matters such as fees, fee waivers, extensions of time, delays and formats Only the court has the power to order the disclosure of records Full order-making power Commissioner has the power to make orders with respect to administrative matters such as fees, fee waivers, extensions of time, delays and formats, as well as to order the disclosure of records 3

Freedom of Information in Canada and International Principles 4

Canada’s Access to Information Act (ATIA) Complements existing means of obtaining information from federal government Written requests to be made by Canadian citizens and permanent residents or all individuals and corporations present in Canada $5 application fee (other fees possible) Federal institutions to provide response within 30 days Extensions may be applied (reasonable) Limitations in the form of exclusions and exemptions Recourse rights 5

Recourse Rights under the ATIA: Two-Tiered System First Level - Information Commissioner of Canada Complaint to the Information Commissioner : independent ombudsperson who investigates complaints and makes recommendations to federal government institutions Second Level - Federal Court of Canada Complainant or Information Commissioner (with complainant’s consent) may seek judicial review Available when a government institution refuses to provide access under the ATIA (not for process issues) 6

First Level Recourse: Information Commissioner of Canada Agent of Parliament – appointment subject to Parliamentary scrutiny Protects rights of requesters under the ATIA Strong investigative powers, including subpoenas and hearings Resolves complaints through mediation and persuasion No order-making powers – orders issued pursuant to judicial review No legal provision for public education or research 7

Information Commissioner (Cont’d) Types of Complaints Refusals to provide access to requested records Administrative issues, e.g. fees, time extensions, language of records, format of records, duty to assist requester, other Complaints Resolution Commissioner determines procedures for investigations Strong investigative powers, including subpoenas and hearings Investigations conducted in private Can administer oaths - Can enter any premises of any government institution and search for and seize documents 8

Information Commissioner (cont’d) Compliance Assesses performance of federal institutions through various mechanisms, including: Annual Report Special Reports to Parliament: Report Cards (institutions’ performance on timeliness) Findings on systemic investigations Findings and recommendations on investigations that raise serious issues or legislative deficiencies (e.g. political interference) 9

Our Investigative Process 10

Complaints Registered Between April 1, 2010, and March 31, 2011

Turnaround Times For Complaints Closed 12

Disposition of Complaints: 2010-2011 13

Disposition of Complaints: 2010-2011 14

ATIA Oversight Model - Refusals complaint Not well founded Report of findings to complainant Complainant may seek judicial review (s.41) Well founded (s.37) Institution decides to disclose information that 3rd party claims exempted (s.20,27,28) 3rd party challenges decision (s.444) Settled or discontinued Recommendations to institution head Recommendations accepted Recommendations not accepted Commissioner may seek judicial review (s.42) No recommendations resolved 15

Second Level Recourse: Federal Court of Canada Individuals can apply to the Federal Court only when institutions have refused access to records or parts of records (s. 41) Applications for judicial review can be made only after the Information Commissioner‘s report of findings have been issued - 45 day time limit Commissioner can also apply for review or act on behalf of an access requester with the requester’s consent (s. 42) Federal Court reviews the institution’s decision, not the Commissioner’s recommendations Burden of proof lies with the party opposing disclosure If the Court finds that the head of an institution was not authorized to refuse disclosure, it can order that the records, or parts thereof, be released 16

Our Compliance Continuum Compliance through information and partnerships Facilitating compliance Responses to non-compliance Annual and special reports to Parliament Advice and representations to Parliament News releases and media interviews Speeches, presentations, information sessions and seminars Input and representations to Central Agencies (e.g. the Treasury Board Secretariat) Participation at access to information community events Liaison with federal, provincial, territorial and international information and privacy commissioners Liaison with national and international freedom of information communities and civil society groups International parliamentary assistance Website, blogs and podcasts Right to Know Week Review of complaints to identify systemic issues Systemic investigations (proactive) Report cards Review of extension notices Consultations with access to information stakeholders, including institutions and users Compliance programs Case summaries and Commissioner’s findings Reference guides, information notices and best practices Investigation guidelines Training Suasion and resolution Adversarial Investigations and systemic investigations (reactive) Early resolution Well-founded complaints accepted Commissioner-initiated complaints Exercise of formal powers (e.g. subpoenas and hearings) Non-resolved complaints Federal Court applications and appeals therefrom Interventions in court Mediation and negotiation Informal representations to senior officials Commissioner’s interpretations of policy positions Reports of findings and recommendations Special reports to Parliament GENERAL APPLICATION SPECIFIC APPLICATION 17

Modernizing the ATIA Movement towards more open government New jurisdictions using IT to facilitate FOI process and provide more timely responses ATIA fallen behind other FOI regimes nationally and internationally: process, fee scheme, timelines, universal access, and oversight Special Report to Parliament with recommendations - legislative deficiencies in our investigative powers related to interference (March 2011) Study of oversight models within Canada and international (AUS, Mexico, NZ, UK, US) to gather empirical data to measure effectiveness of different models 18

Success Factors for Oversight Bodies Accessible and affordable Necessary degree of statutory authority to resolve complaints and enforce compliance with the legislation Capacity, based on an appropriately resourced office, to: Resolve complaints in a timely manner, and Identify and facilitate the resolution of systemic issues Mechanism to advise government on legislative initiatives and influence change Legal provision for public education and research Widely recognized results in improving compliance 19

Oversight in Context Based on my experience, the enhancement of the authority of oversight bodies, while desirable and necessary, is unlikely to achieve good governance. That goal only will be realized when the embrace of rule of law ideals, transparency and integrity comes from within the executive branch of government, not through the outside enforcement of the legislative or judicial branch or their various offices and officers. Lorne Sossin, Dean of Osgoode Hall Law School: The Future of Administrative Law and Good Governance in Nigeria, June 2011. 20