Canada's access-to-info gamble

Few complaints about secrecy make it to the winners' circle

Canadians are not whiners by nature, but sometimes frustration about bad service makes us snap. We complain when our flights are screwed up. We complain when Amazon loses our order. We complain when a restaurant takes two hours to serve a meal.

Some of us also complain when we file an access-to-information request to a federal department that ignores or dismisses us. That kind of institutional snub happens too often.

Official complaints about shoddy treatment go to the Information Commissioner of Canada, currently Carolyn Maynard. There’s no fee for lodging a complaint, unlike some other jurisdictions such as Ontario, which charges $25. So there’s no financial barrier to complaining. And it can all be done online.

But it’s a long and difficult road for those who do ask the commissioner to look into a grievance. They run a gauntlet, in which the vast majority of complaints is tossed aside and only a few get fully investigated.

To illustrate by extrapolating from official numbers, imagine there were 100 complaints to Maynard in the last fiscal year, 2023-24.

Of these, 31 are rejected out of hand. They’re deemed inadmissible mostly because the requester did not complain within the 60-day window, or provided insufficient information, or asked the commissioner to do something outside her mandate.

The remaining 69 cases get registered as official complaints – but 41 of these later are dropped without any resolution. The commissioner simply ceases to investigate.

A typical case involves a complaint that an institution failed to respond within the 30-day deadline set by law. Before the commissioner can launch her investigation, the institution provides a belated response to the requester. The case is then deemed moot, and the matter is dropped even though the institution clearly violated the law.

So out of those initial 100 complaints, just 28 are left standing.

Ten of these are discontinued, with the agreement of the complainant. These cases are often stale. So much time has passed that the matter becomes irrelevant. “Before we start an investigation into your complaint, are you still interested – given that so many months (years) have passed?” That’s the question I’ve been asked many times over the years. Often I do abandon a complaint out of concern about wasting public resources over documents that are long past their best-before date.

So now there are just 18 complaints still standing out of that original 100. These are the cases that do indeed undergo full investigations that deliver actual findings, albeit months later.

Six of those surviving complaints are decided in favour of the government. The commissioner sides with the complainant in the final 12.

So the attrition rate is brutal. If you made it to the final dozen, you’re lucky indeed.

(The calculations used above are not precise because each year the commissioner also investigates cases drawn from her substantial backlog, dating to previous years. I’ve tried to adjust for that mathematically.)

Maynard also publishes statistics about which departments she exonerates after investigating complaints. On average, she sides with the requester about two-thirds of the time. In contrast, the commissioner for Ontario’s freedom-of-information system most often sides with the government, more than 80 per cent of the time by one measure.

Canada’s security institutions are the most likely to get a favourable ruling from Maynard. RCMP, CSIS and Public Safety won more cases than they lost in 2023-24. So did Justice Canada, Finance, IRCC and CBC.

Of the net losers, the worst was Library and Archives Canada. That institution lost 109 complaint cases and won just nine. No other department comes even close to that miserable record.

In 2019, Maynard was also given a new legal tool. She now can order departments to respond to requesters when they have failed to do so, though some departments have flouted her orders.

Here again, Library and Archives Canada easily dominates the Hall of Shame. There were 104 orders against LAC in 2023-24 – more than three times the number of orders against the next largest offender, National Defence.

What does all this mean practically?

Complainants first need to manage their expectations; simply filing a complaint is certainly no guarantee of an investigation. To better the odds, do your homework. Provide sufficient, relevant information, not vague accusations. Make sure the complaint is filed within 60 days of being aware of a problem; the commissioner is inflexible about that deadline. Don’t play footsie with any department longer than 60 days.

Complaints about departments blowing past legal deadlines are a special problem. Hundreds of these complaint files are ditched when the offending institution delivers a response before the commissioner can assign the case to an investigator, which often takes months.

So the department gets off scot-free, with no official finding that it violated the Access to Information Act. This type of complaint is still worth pursuing, in my experience. At least it gets the attention of the rogue department because it receives an official notice of your case. But it’s frustrating that no bureaucrats get a rap on the knuckles for ignoring the law.

If your complaint survives to the last lap, those lucky few that actually get a full investigation, remember you’ve still got a one-in-three chance of losing. And if your complaint is against RCMP, CSIS, Public Safety, Justice, Finance, IRCC and the CBC, the odds are worse – they’re less than one-in-two.

The silver lining, though, is that if the commissioner does declare you the winner, she has order-making power to get results. And for journalists, a story that recounts your hard-earned victory over government secrecy is a sweet reward in itself. After all, you beat the odds.