A Comprehensive Framework for Access to Information Reform
Government Views on Legislative Reform
3. Updating Processes
The Access to Information Act contains provisions relevant to a number of different processes. The authority to charge fees and the parameters for the fee structure are set out in the Act itself, while the specific fee provisions are included in the Access to Information Regulation. A number of provisions in both the Act and the Regulation relate to the administration of the access process, including limits such as legitimate extensions of the time taken to process a request. The Act also sets out the provisions defining the redress process, that is, the investigation of complaints by the Information Commissioner, and judicial review of decisions taken by government institutions not to disclose information.
Basic Application Fee
The Task Force recommended an increase in the basic application fee from $5.00 to $10.00. While the Government is mindful of the need to control the costs of administration of the access regime, the Government does not want to impose an additional burden on non-commercial requesters, which could discourage their seeking access. The Government does not support the increase and would propose to leave the fee at the current rate to encourage use of the Act by members of the general public.
The Government welcomes the Committee's views on whether the basic application fee should be changed.
Differentiating Between Commercial and Non-Commercial Requests
Section 11 of the Act is the authority for charging application and other fees related to access requests. The Regulations made under the Act set out specific amounts which are applicable to all requesters without distinction and these have remained virtually unchanged since the Act came into force. The Task Force recommended a new fee structure that would differentiate between commercial and general, or non-commercial, requests. The Task Force Report noted that approximately 40 per cent of requests under the Act are made for commercial purposes (e.g. corporations seeking information on a competitor's bid on a contract, or requests for information which the requester will repackage for sale), and that this proportion appears to be growing. The Task Force proposal was that the basic application fee for a general request would cover five free hours of search and preparation and 100 pages of reproduction. Commercial requests, on the other hand, would be subject to the basic application fee and an hourly rate for all reasonable hours of search, preparation and review.
The Information Commissioner has expressed the view that the current fee structure is adequate to ensure that requesters have serious motives for making requests. He was critical of the level of fees for commercial requests within the differential fee structure proposed by the Task Force, but did not comment on the concept or the desirability of a categorization of requesters except to say that it would be justifiable to charge actual costs to information brokers.
The Government is considering making a distinction between requests made to further commercial interests and those made primarily to further the public interest or inform individuals, in line with the objective of the Act. A fee structure making this distinction would create incentives for broad public access while ensuring the heavy commercial users bear a proportionate share of the cost. However, a clear definition of "commercial" should be added to the Regulation. In this regard, the Government agrees with the Task Force that the types of requests normally received from academics, the media, Parliamentarians, non-profit public interest organizations, and members of the general public for their own use, should not be considered commercial requests.
To address any concern that requesters might be unfairly placed in the commercial requester category, the Act could be amended to include a provision requiring that the requester be notified of the decision and given the opportunity to give reasons why they should not be charged the commercial rates, or be given the right to complain to the Information Commissioner.
The Government would welcome the Committee's views on whether this distinction is appropriate.
Extremely Large Requests
Although rare, requests for exceedingly large numbers of records do occur. The Task Force Report referred to a request that involved over one million records, with processing costs estimated at $1.3 million involving a team of 12 to 15 people over more than two years. The Task Force concluded that the people making requests of this size should pay for the extra staff required to process them, and suggested that institutions be authorized to charge reasonable processing costs and not merely the rates set out in the Regulation.
The Information Commissioner has expressed the view that increasing fees for such large requests would act as a deterrent and could prevent the disclosure of information which is of interest and relevance to the general public. He also has expressed the view that, under the current fee structure, requesters seeking such large amounts of information do not get it for free. As stated previously, the Commissioner has offered the alternative suggestion that information brokers be charged the full cost of processing their requests. The Task Force recommended that the Act be amended to provide for full recovery of reasonable costs that can be directly attributed to the processing of requests (commercial or non-commercial) where the cost of processing exceeds $10,000. As with all other fees, the head of the institution would have the discretion to waive a portion or all fees, especially where it is in the public interest to do so. A requester could provide arguments as to why fees should be reduced or waived entirely, and may complain to the Information Commissioner and seek an order from the Federal Court.
The Government would welcome the Committee's views on how best to deal with these rare but exceedingly burdensome requests.
Defining a Request
The Government does not propose to implement the Task Force recommendation to require that access requests refer to a specific subject matter, or to specific records. Such a limit might have the effect of blocking legitimate access under the Act, while its effectiveness as a tool to clarify and focus access requests is questionable.
Frivolous, Vexatious and Abusive Requests
The Government supports the idea that institutions be allowed to refuse to process requests that are frivolous, vexatious or abusive. The Task Force recommended that institutions first have the agreement of the Information Commissioner. In his 2000-2001 Annual Report, the Information Commissioner instead recommended an appeal to his office following a refusal to process a request. Considering the current structure of the complaint process within the Act already provides for complaints from requesters to the Information Commissioner, the introduction of a procedure for institutions to seek prior agreement would not appear to be onerous.
The Government would welcome the input of the Committee as to the appropriate procedure for addressing this issue.
Timing for Processing Requests
The Government agrees with a number of other recommendations made by the Task Force to streamline elements of the access process and make it more effective. These administrative limits should result in more timely processing of requests overall, which would be beneficial to requesters. For example, the Government supports the Task Force proposal to change the time limit for processing an access request from 30 calendar days to 21 working days. On average, the two approaches are equivalent, but 21 working days overcomes the problem of a 30-calendar day period with a number of statutory holidays (e.g., December-January).
The Task Force also recommended simplifying the provision that allows an extension of the time limit for processing a request if the number of records is large and meeting the original time limit would unreasonably interfere with the operations of the government institution. The Government supports an amendment which would delete the reference to a large number of records in order to accommodate those rare situations where meeting the original time limit would unreasonably interfere with the operations of the government institution (e.g., the records are located in domestic or foreign field offices or on ships; the program officers or specialists required to review the records are not immediately available because of other priorities).
Similarly, the Government supports the Task Force recommendation to amend the Act so that institutions are able to aggregate requests that were made separately to avoid fees or the application of a time limit extension. The Information Commissioner has recognized that requesters may split requests in order to take advantage of the five free hours of processing time allotted to each request, and has, therefore, expressed support for this measure. In order to be grouped together in this manner, requests must be from the same requester or multiple requesters acting together, be on the same topic or on a reasonably similar topics, and be received within 21 working days of each other.
The Government seeks the Committee's views on these timing and process issues.
Duty to Assist Requesters
The Government agrees with the Task Force recommendation that the Act be amended to impose a duty on institutions to help requesters formulate their requests. The duty would include helping them to re-formulate a request that was refused as frivolous, vexatious or abusive or requests that a government institution has decided to aggregate.
The Government would appreciate the views of the Committee on these administrative proposals.
Mandates of Information Commissioner
The Task Force recommended that the non-investigative mandates of the Information Commissioner (education, advisory, mediation, practice assessment) be enshrined in the legislation. Although the Information Commissioner maintains that such an amendment would be superfluous, the Government believes that recognizing the multi-faceted role of the Commissioner in the Act could be beneficial to the full implementation of the Act.
The Government would appreciate the views of the Committee on this issue.
Time Period for Making Complaints
The Task Force recommended changing the time frame for making a complaint from the current one-year period from the time the request is made to 60 days after the institution responds. This would accommodate requesters by allowing them a greater opportunity to make a complaint. For those cases where government institutions do not respond to a request within the statutory time limit, the Task Force proposed that the Information Commissioner should have the discretion to allow a complaint to be made within a reasonable time.
The Government would be interested in the views of the Committee on these timing issues.
Time Limit for Investigating Complaints
There is currently no time limit on the completion of complaint investigations. The Government recognizes the importance of timely responses in the handling of requests, but stops short of the Task Force proposal to require the Information Commissioner to complete all complaint investigations within 90 days. Such a change would place too great a restriction on the complaint investigation process.
The Information Commissioner provides independent review of decisions on disclosure of government information. In doing so, the Information Commissioner has at his disposal strong investigative powers under Section 36 of the Act, including the right to compel the production of documents, the right to enter any premises occupied by a government institution, and the right to summon and enforce the appearance of persons. Reform of the Act would provide an opportunity to modernize the complaint investigation process to ensure consistency with principles of administrative fairness.
The Task Force made a number of recommendations to amend the Act in order to ensure procedural fairness in the redress process:
- Clarifying that the requirement to conduct investigations in private, generally intended to prevent the Commissioner from disclosing information obtained during the course of an investigation, does not prevent government institutions or individuals from presenting a full response in the course of an investigation;
- Ensuring a right to counsel for witnesses testifying under oath;
- Extending the Information Commissioner's statutory duty to give notice to the head of the government institution and provide information about the complaint before commencing an investigation, to notify any person the Commissioner considers appropriate (e.g., any individual whose actions may be called into question because of a complaint);
- Protecting solicitor-client communications by providing that the Information Commissioner cannot compel the production of privileged communications relating to rights and obligations under the Act or in contemplation of proceedings under the Act;
- Providing that contempt charges be heard by a judge of the Federal Court; and
- Clarifying that evidence given to the Information Commissioner or the Commissioner's staff by a witness is inadmissible against the witness in a prosecution under Section 67.1 (the offence of intentionally denying a right of access by destroying, altering, concealing or falsifying a record, or by directing someone else to do so), and that the Information Commissioner and any person working on the Commissioner's behalf not be competent or compellable witnesses in a prosecution under Section 67.1.
The Government would appreciate the Committee's views on these procedural fairness issues.
The Office of the Information Commissioner is currently given "ombudsman" powers, which include the powers of investigation and recommendation but not directive powers. Under the current two-tiered review process, requesters have the right to complain to the Information Commissioner about an institution's handling of their request. Following an investigation and report by the Commissioner to the head of the institution, there is a further right to seek review of a denial of access to the Federal Court of Canada, which may order the government to disclose the records in question.
A number of provinces with newer access legislation have adopted an adjudicative model. As well, a single Commissioner administers both access and privacy legislation in the provinces and territories while federally there are two Commissioners to administer the Access to Information Act and Privacy Act4.
Generally speaking, the Task Force highlighted the success of this model, noting that over 99% of requesters' complaints were resolved informally under the ombudsman model. The Task Force did not recommend that the Commissioner be given directive powers, but instead encouraged
"the government to consider moving to an order-making model…in the medium term".
Switching from an ombudsman to a quasi-judicial model at the federal level could have significant impacts on the administration of the access to information law and would only be warranted if it would bring about demonstrable improvements to the access regime. In contemplating such a change, it would be important to consider the implications for other Agents of Parliament who exercise ombudsman functions.
The Government is not persuaded of the need to shift to an order-making or quasi-judicial model for the Information Commissioner, but nonetheless would welcome the views of the Committee on this issue.
4 The Privacy Act envisages the possibility of one Commissioner performing both functions, as was the case with the very first Commissioner.
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