Thank you very much, Mr. Chair.
I appreciate the invitation to be here to talk to you a bit about the work of my office. I'm joined by Kim Kreutzer-Work, who is the director of knowledge management in my office, and Sharon Ashmore who is general counsel and director of legal services.
As the information and privacy commissioner of Alberta, I am an independent officer of the legislature responsible to provide oversight for free access to information and protection of privacy laws. The first is the Freedom of Information and Protection of Privacy Act, which applies in our public sector, the second is the Health Information Act, which applies in our health sector, and the third is the Personal Information Protection Act, or PIPA, which applies to provincially regulated private sector organizations.
I have broad powers under all three of these statutes, including the power to conduct investigations both in response to complaints and on my own motion, and also to review responses to requests for access to information. I also provide general advice and recommendations, inform the public about the administration of the acts, comment on access and privacy implications of proposed legislative schemes or programs, review privacy impact assessments, and as a quasi-judicial administrative tribunal I have the power to hold inquiries and issue binding orders.
For the most part I will focus my comments today on our public sector legislation, the Freedom of Information and Protection of Privacy Act, otherwise known as the FOIP Act. In Alberta the FOIP Act is both access to information legislation and protection of privacy legislation. It applies to public bodies, which includes provincial government departments, boards and agencies, and schools and chartered schools, as well as local government bodies, municipalities, police services, housing management bodies, universities, and those types of institutions. At its core the FOIP Act provides applicants with a right to access any information in the custody or control of the public body subject only to specific and limited exceptions set out in the legislation.
In the over 20 years since the act came into force the FOIP Act has been reviewed three times by all-party special committees of the legislative assembly. Two of those reviews, the first in 1998-99 and the second in 2001-02, resulted in amendments to the legislation. There was a third review in 2010 that resulted in a number of recommendations to amend the legislation that did not go forward. In 2013 the Government of Alberta announced its own review of the legislation. There was a consultation process, but that has not led to any report or recommendations for amendment.
I made two submissions to the government's 2013 review, both of which are available on my website. One of those submissions was focused primarily on technical amendments to the legislation. The other provided ideas, suggestions, and recommendations for modernizing and strengthening the FOIP Act.
Some of the key recommendations from that second submission included reviewing the scope of the act to ensure that publicly funded entities that should be subject to the legislation are, and confirming the need for existing exclusions. Another recommendation was to review the exceptions to access set out in the FOIP Act to ensure they are appropriate, require public bodies to identify categories of records that should be made publicly available without requiring formal access requests, and ensure there is an appropriate statutory and policy framework in place for records and information management practices that support transparency, accountability, and compliance with the FOIP Act. This includes requiring that public bodies create such records as are reasonably necessary to document decisions, actions, advice, recommendations, and deliberations.
Both of the recommendations I've just referred to are similar to or consistent with those found in the Information Commissioner of Canada's report “Striking the Right Balance for Transparency“, which sets out recommendations for modernizing the federal Access to Information Act.
In addition the Information Commissioner's report also recommends strengthening oversight of the right of access by adopting an order-making model similar to what is already in place in Alberta and in other provincial jurisdictions. I understand our experience in Alberta with order-making powers is of particular interest to this committee, and I will use my remaining time to describe how that works in our office.
Similar to the federal Access to Information Act, our FOIP Act provides a right of access to records in the custody or control of a public body subject to limited and specific exceptions. If an applicant is not satisfied with the response that he or she receives from a public body, the applicant may ask me to review any decision after a failure to act by the public body. For example, a government department may disclose some records to an applicant but withhold others, citing an exception to access. Perhaps the disclosure would be an unreasonable invasion of a third party's personal privacy or could reasonably be expected to harm a law enforcement matter or the economic interests of a public body.
If the applicant asks, I can review the public body's claim that these exceptions to access apply. We call this a request for review in my office. When an applicant requests a review of a public body's decision to deny access, typically I authorize someone on my staff to investigate and attempt to mediate or settle the matter. This is our informal process, which results in non-binding recommendations and resolves approximately 80 to 85% of cases in our office.
If the matter is not resolved through this informal process, I can authorize an inquiry process, which decides all matters of fact and law. Inquiries are a quasi-judicial administrative tribunal process where the burden of proof generally lies with the public body to prove that the applicant has no right of access to the record or part of the record.
On completing an inquiry I, or the adjudicator I have delegated to hear the inquiry, will issue an order. Examples of orders include requiring a public body to give an applicant access to all or part of the record, confirming a public body's decision to deny access, confirming or reducing a fee for access, or requiring that a duty imposed by the legislation be performed.
A commissioner's order made under the FOIP Act is final and may be filed with the clerk of the Court of Queen's Bench. After filing, the order is enforceable as a judgment or order of that court. Since the FOIP Act came into force in 1995, we have issued more than 675 orders under that legislation and we have had 100% compliance with those orders. All orders are made public on my office's website and through publicly available legal databases. They not only provide finality in resolving a particular matter but also set precedents that can be helpful to other public bodies and lead to improved information management practices.
Orders issued by my office and other jurisdictions as well constitute a body of jurisprudence that educates and guides public bodies on interpreting and applying the law. Publicly issued orders may also help to reduce duplication of effort in mediating, investigating, or adjudicating similar matters over and over again.
There are also significant benefits to individuals in the finality that goes along with a binding order that resolves a matter. My office's processes do not require that the parties have legal presentation, for example, and there is no cost. This is not to say that matters heard in an inquiry never make their way to court. Although orders are final, they are subject to judicial review, and since the FOIP Act came into force we've seen approximately 30 judicial review applications. In about half of those cases, the order was upheld as issued.
As I've just outlined, it is my view there are significant benefits to the order-making model in Alberta and our experience is that it provides clarity, enhances consistency of decision-making, and can be more timely, less expensive, and less adversarial than the courts while still providing finality for the parties involved.
Overall, in my view I think order-making power has been to the benefit of access rights in Alberta. I would be pleased to answer any questions that you may have.
Thank you.