In her report, the Information Commissioner recommended changing the oversight provisions from the current ombudsperson model to an order-making model. She made the following recommendations:

Recommendation 5.1

The Information Commissioner recommends strengthening oversight of the right of access by adopting an order-making model.[175]

Recommendation 5.2

The Information Commissioner recommends providing the Information Commissioner with the discretion to adjudicate appeals.[176]

Recommendation 5.3

The Information Commissioner recommends that the Act provide for the explicit authority to resolve appeals by mediation.[177]

Recommendation 5.4

The Information Commissioner recommends that any order of the Information Commissioner can be certified as an order of the Federal Court.[178]

In her testimony to the Committee, the Information Commissioner identified this as a priority and said that adopting an order-making model would:

ensure that the processing of requests would be more timely, would instill more discipline and more predictability, would provide an incentive for institutions to make comprehensive and complete representations to the commissioner at the outset, would create a body of precedents that increases over time, and requesters and institutions would then have a clear direction as to the commissioner's position on institutions' obligations and requesters' rights under the Act.[179]

The Information Commissioner also said an order-making model would need to be complemented by additional powers, such as the ability to audit compliance, to initiate investigations, to carry out education activities, to conduct and fund research and to provide advice on legislation, programs and activities.[180] She also said that if the order-making power were adopted, a period of time would need to be provided to put it into place.[181]

The Information Commissioner drew several distinctions between the ombudsperson model and the order-making model. She said that, in cases related to administrative matters, ordering an institution to disclose information is more efficient than conducting an investigation. In addition, she said that under the order-making model, the mediation process is more effective. As well, institutions must give all their justifications for non-disclosure at the outset.[182] Under the current model, court proceedings are de novo proceedings, where everything is back on the table.[183]

In 2015, Newfoundland and Labrador instituted a unique hybrid model, under which the commissioner operates as an ombudsman. If a public body objects to one of the commissioner’s recommendations, however, it must go to court to request permission not to follow it.[184]

Asked about the differences between this hybrid model and the order-making model, the Information Commissioner said the requests at the federal level are much more numerous and complex. As well, appeals to court under the hybrid model remain de novo proceedings, which the order-making model would avoid. The Information Commissioner also said that in complex cases where there are thousands of pages and multiple recommendations for disclosure, the hybrid model might lead to more cases going to court.[185]

Mr. Wells pointed out that, under the order-making model, there could be a conflict between the Commissioner’s roles as an advocate and as an arbiter. He said there is no such conflict under the hybrid model.[186]

Witnesses from the information and privacy offices of Quebec, Ontario and Alberta spoke about the benefits of their order-making models. Brian Beamish, the Information and Privacy Commissioner of Ontario, said that it “promotes an expeditious, cost-effective, efficient access to information regime that has a real element of finality to it.”[187] He also said the model creates a body of jurisprudence, which provides guidance when dealing with future requests.[188] Ms. Clayton, Information and Privacy Commissioner of Alberta, said that the order-making model enhances consistency and is less adversarial than going to court.[189]

The adoption of an order-making model was supported by Mr. Mendel,[190] Mr. Holman,[191] Mr. Wudrick,[192] Mr. Rubin,[193] Marc-André Boucher of Fasken Martineau,[194] Mr. Marleau[195] and the Assembly of First Nations.[196]

The Committee also heard concerns regarding the order-making model, however. In a letter to the Committee, the Privacy Commissioner of Canada, Daniel Therrien, pointed out that the Access to Information Act and the Privacy Act were passed as twin statutes and recommended that the interplay between the two Acts be carefully examined. He said that “the delicate balance between access and privacy that was struck by Parliament when the two Acts were adopted” would be upset by “granting the Information Commissioner the power to order disclosure of what is claimed to be personal information.” He suggested, “this should not be done until the full implications can be thought through in the legislative review that will take place in 2018.”[197] Asked about his position, the Information Commissioner said it would be unworkable, with an order-making power for some exemptions, but not for others. She also said that the Information Commissioner has been interpreting the exemption for personal information for over 30 years.[198]

In addition, Mr. Gogolek raised concerns about the possibility that the order-making model might be accompanied by a ministerial override or veto, which he said would be “a bad idea.”[199] Mr. Marleau concurred, saying that such an override would place ministers in an awkward situation and undermine the independence of the government officials to whom authority is delegated.[200] As noted in Section 2.3 of our Report, Mr. Marleau also raised concerns about how order-making powers would apply to Parliament.[201]

The Assembly of First Nations also opposed the idea of a ministerial veto saying it “could potentially place Canadian Ministers in a conflict of interest due to the Crown’s fiduciary obligation to act in the best interest of First Nations.”[202] Mr. Wells said that the broad ability of ministers to veto the release of documents would lower public confidence in the system,[203] but said he could see a need in very limited circumstances, such as where national security or national defence issues are involved.[204]

The Information Commissioner also said she was not in favour of a ministerial override or veto. She pointed out that in the United Kingdom, the information commissioner’s decisions may be reviewed by the courts and the ministerial override could be imposed after the commissioner’s order or after the court’s order. She noted that the U.K. Supreme Court recently decided that the ministerial veto was unconstitutional because a minister reviewed a decision of the court and that it was not appropriate for the executive to override a judicial decision. She went on to say that if the government were to adopt a ministerial override, the entire independent oversight model should be abandoned.[205]

In the U.K., the Independent Commission on Freedom of Information reviewing the Freedom of Information Act 2000 published its report in March 2016. In it, the Commission said that Parliament intended the executive to have a veto. It said the executive, which is responsible for national security, defence and international relations, “is in a unique position to assess the wider public interest” ^[206] and recommended that, “the government should legislate to put beyond doubt that it has the power to exercise a veto over the release of information under the Act.”[207] The Commission also recommended that the veto power “be clarified so that it is to be exercised where the executive takes a different view of the public interest in disclosure.”[208] The Commission also said that the veto is most appropriate at the Information Commissioner (IC) stage and not after an appeal to the tribunals or courts. The Commission recommended that the veto be “available only to overturn a decision of the IC where the accountable person (i.e. the head of the institution) takes a different view of the public interest in disclosure.”[209] The veto would be subject to judicial review by the High Court.[210] In its response, the government said:

The Commission recommends the introduction of a narrower and more limited veto provision. The government agrees with the Commission’s analysis that Parliament intended the executive to be able to have the final say as to whether information should be released under the Act. In line with the Commission’s thinking, the government will in future only deploy the veto after an Information Commissioner decision. On the basis that this approach proves effective, we will not bring forward legislation at this stage.[211]

Recommendation 25

That the government strengthen the oversight of the right of access by adopting an order-making model with clear and rigorously defined parameters.

Regarding the idea of a ministerial veto, the Committee heard testimony that raised concerns about it. It therefore recommends:

RECOMMENDATION 26

That if an order-making model is adopted, any ministerial veto be limited to national security issues, be exercised only to overturn an order of the Information Commissioner and be subject to judicial review.

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