Shell game
Another disturbing clash between Canada’s information commissioner and a federal department raises fresh concerns about whether her new order-making power is a sham.
Caroline Maynard recently posted a report of her investigation into the way Public Services and Procurement Canada (PSPC), formerly Public Works, delayed responding to two access-to-information requests.
The requests concerned the Prison Farm program at two Kingston, Ont.-area penitentiaries. About 4,000 pages of records were at issue.
Request No. 1 was due Jan. 13, 2020, after the department took a 150-day extension. Officials blew past the date, and the requestor properly complained. The information commissioner investigated, and the department committed to releasing by July 30, 2021. They also blew past that date.
Request No. 2 became due Sept. 11, 2020, after a 210-day extension. Officials blew past the date. They committed to Maynard to releasing by July 30, 2021 – and blew past that date as well.
The commissioner then used her order-making power, conferred in 2019 by Bill C-58, to require PSPC to release the records for both requests “forthwith.” The minister, Filomena Tassi at the time, committed to releasing them before March 31, 2022.
What happened? The department blew past that date as well. That’s three deadlines ignored.
Last week, I asked Maynard’s office whether PSPC has released anything since March 31. The surprising answer was that they have no idea. Why? The information commissioner “does not monitor compliance with its orders.”
“The Commissioner has no power under the Act to force the institution to implement all aspects of her order,” spokesperson Josee Brouillette told me.
Accordingly, the “Office of the Information Commissioner generally does not track institutions’ compliance with the Commissioner’s orders.”
She suggested I ask the department whether they have since complied with the release order. So I did.
PSPC spokesperson Michele Rose told me the department released records from request No. 1 in August. The records for request No. 2 are “scheduled to be released within the next few weeks.”
What do we learn from this case? That the commissioner’s vaunted order-making power is actually an empty shell. That institutions can and do ignore such orders. And they do so with impunity. The commissioner lacks enforcement powers, indeed does not even track their non-compliance.
This is not the first such case. Maynard reported in May this year that Shared Services Canada failed to even acknowledge her order. She said she could do nothing to compel them.
During Parliament’s review of Bill C-58 in 2018-19, Maynard and her predecessor Suzanne Legault argued for much stronger order-making power than proposed by the amendments. They wanted such orders to be the equivalent of a federal judge’s order, with strong enforcement mechanisms. Government rejected the proposal.
Not only are the commissioner’s orders unenforceable, they’re easily challenged.
The way the law is now written, a department chafing under an order can ask a Federal Court judge to review the case afresh (de novo). A department can introduce new evidence and arguments never provided to the commissioner. It’s a reset, not just a review of whether the commissioner made a reasonable ruling based on the evidence before her.
Indeed, PSPC applied for such a court reset in August, in another case (T-1623-22) that challenges the authority of the commissioner. That action is still wending its way through Federal Court.
So it turns out the commissioners’ worries raised in 2018-2019, about weak order-making power, are being realized three years later.
More evidence, if more were needed, that the purported reforms of the Access to Information Act in 2019 are turning out to be a ruse.
Dec. 11, 2022
