Independence as a state of mind.

• Author: Reid, John
• Position: Responsibilities of the Federal Access to Information Commissioner and independence to carry them out

In recent years there has been a proliferation of Officers federally, provincially and territorially, with responsibilities for conflict of interest, access to information, privacy, protection of whistle-blowers and children. In every case one of the essential issues is whether the Official will have the necessary independence to carry out the responsibilities provided in the legislation. In this article the federal Access to Information Commissioner outlines some obstacles that must be overcome to enable a culture and spirit of independence to flourish.

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If you only read newspapers and listened to the Ottawa rumour-mill, it might seem that the Information Commissioner is a pretty cranky, crabby guy, who issues subpoenas, grills mandarins under oath, fights court cases against the Prime Minister and makes enemies. This could hardly be farther from the truth.

The Information Commissioner is an ombudsman appointed by Parliament to investigate complaints that the government has denied rights under the Access to Information Act. The Commissioner is duty bound to investigate all complaints fully and to satisfy himself that the Act has been respected. The Commissioner has strong investigative powers but, in the end, he may not order a complaint resolved in a particular way; he can only make recommendations.

Consequently, Information Commissioners and their officials rely on informal techniques of gathering evidence and on persuasion, negotiation and mediation to achieve resolutions of complaints. It is extremely rare for subpoenas to be issued and no one receives a subpoena unless he or she refuses a polite invitation to cooperate voluntarily. It is even more rare for the Information Commissioner to ask for a Federal Court review of a government institution's refusal to disclose documents. The courts are only resorted to if the Information Commissioner believes an individual has been improperly denied access and a negotiated solution has proven impossible.

To show how rare this is, I note that in fiscal year 1999-2000, 99.9% of complaints to us were resolved without me initiating a Federal Court review. Only three reviews were begun. Again, in fiscal 2000-2001, 99.9% of complaints were resolved without going to court. In that year, only two reviews were brought to court. These figures paint a picture of the process that is far different from the image of a power-mad Commissioner and his minions, hell-bent on beating government institutions and bureaucrats into submission.

But, the fact remains that every investigation is an investigation into some action or decision of a government institution or official. Every recommendation is directed towards the head of the appropriate government institution.

This, then, is the type of office where independence is essential to avoid both the appearance and actuality of bias either for or against government. Not only do the duties demand it, but so, too, does the subject matter. The public's right to know cuts across every substantive issue in which government is involved. The courts have called the right "quasi-constitutional". The very vibrancy of our democracy, rests, in part, on this right to know. All of this caused Parliament to use a variety of design devices to encourage independence as a characteristic of the Information Commissioner.

First, Parliament chose to highlight the importance of independence in the Act's purpose clause, subsection 2(1) of the Act, which states:

The purpose of this Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exemptions to the right of access should be limited and specific and that...