New for 2023 FIPA sent its first national survey to gain insight into Commissioners’ approaches to access regime evaluation. Spencer Izen worked to develop:
FIPA sent a questionnaire in both official languages to numerous regulators, auditors, and complaint bodies in Canada whose mandates intersect access regimes and conduct Government reviews, audits, and monitoring. This primarily meant Ombudspersons, Information and Privacy Commissioners, and auditor generals. Our goal was to gain insight into how each office approached the evaluation of performance in an access regime.
Information and Privacy Commissioners are almost universally cast as administrative- appellate decision-makers, either as ombuds (based on issuing non-binding recommendations in access disputes), adjudicators (issuing binding orders), or a hybrid of the two. While these Commissioners are empowered to address individual cases through these mechanisms, they also enjoy some authority over the access regime as a whole—in respect to being able to examine it and its performance, similar to how an auditor general (AG) may conduct performance or financial audits of various government programs. In this sense, a Commissioner can be viewed as a specialized auditor general with narrowed jurisdiction over a particular pair of policy twins: information and privacy.
Each office was asked seven written questions and given approximately two and a half months (April 21 – June 30) to respond.
The following offices across six jurisdictions responded in detail:
Office of the Information and Privacy Commissioner for British Columbia (OIPC-British Columbia)
Office of the Information Commissioner of Canada (OIC-CA)
Office of the Information and Privacy Commissioner of Newfoundland and Labrador (OIPC-Newfoundland and Labrador)
Office of the Information and Privacy Commissioner for Nova Scotia (OIPC-Nova Scotia)
Office of the Information and Privacy Commissioner for Nunavut (OIPC-Nunavut)
Office of the Information and Privacy Commissioner for Ontario (OIPC-Ontario)
Office of the Yukon Ombudsman, Information and Privacy Commissioner and Public Interest Disclosure Commissioner (OIPC-Yukon)
The responses offer valuable insights into how commissioner’s offices across Canada approach their auditor-adjacent functions methodologically, the identification of common issues, and multiple opportunities for improvement.
Summary of Questions and Findings
Q1 Key performance indicators
Broadly, the evaluation of access regimes tends to lean towards quantitative approaches, as indicated by the offices’ various listings of numeric measures, such as timeliness. While this is important, the pairing of qualitative approaches to access regime program evaluation should not be disregarded or considered lesser.
Q2 Evaluation methodologies
From these responses, FIPA believes it is in the interest of an access regime that not only statutory compliance be addressed, but that the process by which that compliance is achieved is administratively just in and of itself. Part of this can be achieved through an examination of what the Newfoundland Commissioner referred to as an examination of both the statute and implementation; both the text and practice of access matter as determinants of applicant’s information rights.
Q3 Statutory reporting
The responses indicate that while broad mandates to evaluate access regimes are common, the legislative infrastructures that enable this activity also limits what data sources are available to Commissioners. This suggests again that public-body specific reporting is an important part of evaluating access regimes but is not always present in or backed by law.
Q4 Actions from recommendations
The ombuds versus adjudicator model of information commissioners has long attracted debate. The responses indicate a wide variety of commissioners’ ability across the country to follow their decisions after they are rendered. An interesting opportunity is present for Offices with and without legally binding order-making powers; an audit can be used as a tool of compliance, not dissimilar to an order or recommendation, especially where the order or recommendation implicates the administrative policies and procedures of access to information. Similarly public and legislative reporting of instances where a public body has refused recommendations is an approach FIPA is intrigued by.
Q5 Steps to address declining trust
Accountability through robust administrative practices was consistently linked to the promotion and manifestation of transparency in all responses. When governments are asked this question, typically the attention is devoted to “proactive disclosure” and “open data.” The Commissioners have not fixated on that in their responses here. More detailed response letters (i.e. the letters applicants are sent to close their request files) were raised by two Commissioners. These letters are not usually the focus of evaluations—but FIPA believes that if they were folded into the subject of investigations, audits, etc., it would be consistent with Commissioners’ previous responses wherein they expressed an interest in paying greater attention to individualized applicant needs.
Q6 Public interest paramountcy
Every Commissioner tied their response regarding their public interest paramountcy clause (if present in their enabling statues) to the text of the legislation itself, and case law as it emerged. Yet, the Commissioners’ responses do not suggest they are aware of governments’ attempts to manifest these provisions meaningfully, which FIPA anticipates means governments have not actually done the work to make them actionable.
Q7 What do you want to highlight
We’ll let the Commissioners responses speak for themselves here.
Interested in being part of activities like this?
There are lots of ways to work with us or act as an Academic Advisor. We are always open to making our research results better so be sure to provide any feedback and constructive criticism regarding this publication and its methodology to FIPA at fipa.bc.ca .
