Thank you very much.
Good morning, everybody.
My name is Brian Beamish. I'm the information and privacy commissioner for the Province of Ontario. I appreciate the opportunity to speak to you while you continue to review the federal Access to Information Act.
I'm really pleased to be able to speak to you about Ontario's experience with access to information, or freedom of information, as we call it. In my 10 minutes, I am going to concentrate on the issue of oversight powers and particularly on our experience with having order-making power here in Ontario as compared to the ombudsman-style regime that is set out in the federal act.
Before I do that, let me just give you some context on the work we do here. My office oversees three laws: the provincial Freedom of Information and Protection of Privacy Act, the municipal counterpart to that, and Ontario's health privacy law, the Personal Health Information Protection Act.
In terms of exercising powers under those acts, when it comes to access to information, we have full order-making power, which means that ultimately we resolve issues by making an order that can range from situations where institutions have not made a decision, to fees, to requiring additional searches to be performed for records, or at the end of the day, to the refusal to disclose records. Under the health privacy law, we have, again, full order-making power so that when we conduct an investigation, we can order a health information professional or organization to take particular steps to comply with the law. On the public sector privacy side, we have very limited order-making power. We can only order an institution that is collecting information; otherwise, we have a review and recommendation function.
Again, it's context. I think it's important to understand that, even though on the access to information side we have full order-making power, we only issue orders in a relatively small percentage of cases. In May 2015, provincial and municipal institutions in Ontario received approximately 58,000 access to information requests. Those are the initial requests coming into government bodies. Of those, our office received 1,400 appeals, which represents about 3% of all of those initial access to information requests, and we were able to resolve about 77% of those appeals without issuing an order, which meant that we ultimately issued only 243 orders. So you can see that there's a real winnowing effect from 58,000 requests to 1,400 appeals to 243 orders, and I think a lot of that can be attributed to the fact that we do have order-making power.
Let me turn then to our experience with that power. I can say that it has been overwhelmingly positive. Before becoming commissioner, I was the assistant commissioner with responsibility for our tribunal services, so I did have direct experience with this, and I'm a very strong supporter of the order-making model. I think the bottom line is that it presents a benefit not only to requesters but also to the institutions that are covered by our act, and it promotes an expeditious, cost-effective, efficient access to information regime that has a real element of finality to it.
Let me turn to the specific benefits that we see. The first is that I think the order-making model does help to enforce the right of access in an efficient and effective manner. There is a clear incentive for institutions at the initial request stage to maximize the amount information that they are disclosing and to reduce the administrative burden both on themselves and on the requester.
I think it's important to remember as well that there can be a real power imbalance in the access to information system. The majority of our requesters are individuals who don't necessarily have the resources to engage in a prolonged battle with a government institution that may end up in the courts, and our system is designed to give them greater access to the information system and the review of the initial government decisions.
We are able, because we have order-making powers, to put systems in place to ensure that the review process of an institution's initial decision does not drag on. If it does, we are able to bring it to closure by issuing an order.
I know that one of the criticisms of the ombudsman style, particularly at the federal level, has been a low compliance level. The federal Information Commissioner makes recommendations, but they're not complied with by institutions. Binding orders don't have that difficulty. Our orders are final. They are not appealable to the courts.
Institutions or unsatisfied parties can seek judicial review, but that's a very narrow review process. In fact, last year, of the 243 orders we issued, there were only six cases where they were judicially reviewed. For the most part, our orders are final and binding on the parties and bring finality to the system.
The second benefit we see is that by our ability to issue orders we create a body of jurisprudence that can be relied on by requesters, the public, government institutions, and our staff themselves. Over the years, we have issued thousands of orders that have interpreted the act and how it should be applied. I believe that gives guidance to all the parties, makes for better and full decisions regarding disclosure by institutions, and also provides guidance, should there be an appeal, to the parties on how our organization will resolve those appeals.
The third benefit I see is that order-making power helps to facilitate settlements. Our order-making [Technical difficulty—Editor] not work to the exclusion of mediation. In fact, I believe it helps facilitate the mediation process. Parties, when they come to us on an appeal, have a very strong incentive to mediate and to find common ground, rather than have an issue move on to adjudication and a potential order.
Commissioner Legault noted last week in her comments that one of the benefits of order-making power is that there's a clear distinction between the mediation process and the adjudication process. In our system, if a file does not mediate, it moves on to adjudication, at the end of which an order can be issued. The mediation process is confidential. The parties can engage in mediation in a frank and open discussion, and they don't have the worry that anything they say during mediation might prejudice their case at adjudication. I think that's another way in which mediation is facilitated.
In 2015 we were able to fully mediate 63% of our appeals. I think that demonstrates that order-making power not only can operate in conjunction with a mediation style but in fact enhances it.
The fourth benefit we've experienced is the ability to deal with what we would term “administrative” or “procedural” appeals. Again, I note that Commissioner Legault last week suggested that up to 40% of the caseload she carries are cases that are administrative in nature, preliminary procedural issues that don't get to whether or not an individual has a right to information.
Our stats show that we [Technical difficulty—Editor] less than 10% of our caseload on administrative appeals. Last year it was around 8%. Generally, these are cases where an institution, having a duty to provide a response within 30 days, has not done so, and the requester has come to us to say that they're not getting any action out of the institution. We're able to deal with those directly, because the parties know that we can and will issue an order to require a decision out of an institution. We go to the parties. We go to the institution that hasn't provided a response. We try to renegotiate a deadline for a response. If we don't get that, we will issue an order requiring them to provide a response. We do have cases where months go by and an institution has not complied with their duty to give a response to a requester.
Again, looking at last year's stats, we did not have to issue an order in a deemed refusal situation. We were able to negotiate all of those, and we were able to do that in an average of 40 days. I think it's a very quick and efficient manner of getting responses out of institutions.
Finally, the last benefit I want to point out, and I mentioned this already, is some finality that's brought to the access to information process. There is no right of appeal to the courts. There's only that very rarely exercised ability to seek judicial review. Requesters are not dependent on the courts to exercise their access to information rights. I really believe that making the average requester, the average citizen, go to the courts to exercise their rights is, in many cases, really access denied, and it is not the type of remedy that is suitable for an open and transparent government.
I will wrap up my comments with that. I'm happy to take questions. I note that we understand that having order-making power presents an enormous duty on us to exercise it judiciously—not capriciously and not arbitrarily. We take that duty very seriously. I believe that it really is a fundamental element of a sound access to information regime.
Thank you very much.