Access to Information Act (R.S.C., 1985, c. A-1)

Marginal note:Powers of Information Commissioner in carrying out investigations

• 36 (1) The Information Commissioner has, in relation to the carrying out of the investigation of any complaint under this Part, power

  • (a) to summon and enforce the appearance of persons before the Information Commissioner and compel them to give oral or written evidence on oath and to produce such documents and things as the Commissioner deems requisite to the full investigation and consideration of the complaint, in the same manner and to the same extent as a superior court of record;

  • (b) to administer oaths;

  • (c) to receive and accept such evidence and other information, whether on oath or by affidavit or otherwise, as the Information Commissioner sees fit, whether or not the evidence or information is or would be admissible in a court of law;

  • (d) to enter any premises occupied by any government institution on satisfying any security requirements of the institution relating to the premises;

  • (e) to converse in private with any person in any premises entered pursuant to paragraph (d) and otherwise carry out therein such inquiries within the authority of the Information Commissioner under this Part as the Commissioner sees fit; and

  • (f) to examine or obtain copies of or extracts from books or other records found in any premises entered pursuant to paragraph (d) containing any matter relevant to the investigation.

• Marginal note:For greater certainty

  (1.1) For greater certainty, the Information Commissioner may, during the investigation of any complaint under this Part, consult the Privacy Commissioner and may, in the course of the consultation, disclose to him or her personal information.

• Marginal note:Access to records

  (2) Despite any other Act of Parliament, any privilege under the law of evidence, solicitor-client privilege or the professional secrecy of advocates and notaries and litigation privilege, and subject to subsection (2.1), the Information Commissioner may, during the investigation of any complaint under this Part, examine any record to which this Part applies that is under the control of a government institution, and no such record may be withheld from the Commissioner on any grounds.

• Marginal note:Protected information — solicitors, advocates and notaries

  (2.1) The Information Commissioner may examine a record that contains information that is subject to solicitor-client privilege or the professional secrecy of advocates and notaries or to litigation privilege only if the head of a government institution refuses to disclose the record under section 23.

• Marginal note:For greater certainty

  (2.2) For greater certainty, the disclosure by the head of a government institution to the Information Commissioner of a record that contains information that is subject to solicitor-client privilege or the professional secrecy of advocates and notaries or to litigation privilege does not constitute a waiver of those privileges or that professional secrecy.

• Marginal note:Evidence in other proceedings

  (3) Except in a prosecution of a person for an offence under section 131 of the Criminal Code (perjury) in respect of a statement made under this Part, in a prosecution for an offence under section 67, in a review before the Court under this Part or in an appeal from such proceedings, evidence given by a person in proceedings under this Part and evidence of the existence of the proceedings is inadmissible against that person in a court or in any other proceedings.

• Marginal note:Witness fees

  (4) Any person summoned to appear before the Information Commissioner pursuant to this section is entitled in the discretion of the Commissioner to receive the like fees and allowances for so doing as if summoned to attend before the Federal Court.

• Marginal note:Return of documents, etc.

  (5) Any document or thing produced pursuant to this section by any person or government institution shall be returned by the Information Commissioner within ten days after a request is made to the Commissioner by that person or government institution, but nothing in this subsection precludes the Commissioner from again requiring its production in accordance with this section.

Orders and Reports

Marginal note:Power to make order

• 36.1 (1) If, after investigating a complaint described in any of paragraphs 30(1)(a) to (e), the Commissioner finds that the complaint is well-founded, he or she may make any order in respect of a record to which this Part applies that he or she considers appropriate, including requiring the head of the government institution that has control of the record in respect of which the complaint is made

  • (a) to disclose the record or a part of the record; and

  • (b) to reconsider their decision to refuse access to the record or a part of the record.

• Marginal note:Limitation

  (2) The Information Commissioner is not authorized to make an order after investigating a complaint that he or she initiates under subsection 30(3).

• Marginal note:Condition

  (3) The order may include any condition that the Information Commissioner considers appropriate.

• Marginal note:Effect

  (4) The order takes effect on

  • (a) the 31st business day after the day on which the head of the government institution receives a report under subsection 37(2), if only the complainant and the head of the institution are provided with the report; or

  • (b) the 41st business day after the day on which the head of the government institution receives a report under subsection 37(2), if a third party or the Privacy Commissioner is also provided with the report.

• Marginal note:Deemed date of receipt

  (5) For the purposes of this section, the head of the government institution is deemed to have received the report on the fifth business day after the date of the report.

Marginal note:Consulting Privacy Commissioner

36.2 If the Information Commissioner intends to make an order requiring the head of a government institution to disclose a record or a part of a record that the head of the institution refuses to disclose under subsection 19(1), the Information Commissioner shall consult the Privacy Commissioner and may, in the course of the consultation, disclose to him or her personal information.

Marginal note:Notice to third parties

• 36.3 (1) If the Information Commissioner intends to make an order requiring the head of a government institution to disclose a record or a part of a record that the Commissioner has reason to believe might contain trade secrets of a third party, information described in paragraph 20(1)(b) or (b.1) that was supplied by a third party or information the disclosure of which the Commissioner can reasonably foresee might effect a result described in paragraph 20(1)(c) or (d) in respect of a third party, the Commissioner shall make every reasonable effort to give the third party written notice of the Commissioner’s intention.

• Marginal note:Contents of notice

  (2) The notice must include

  • (a) a statement that the Information Commissioner intends to make an order requiring the head of a government institution to disclose a record or a part of a record that might contain material or information described in subsection (1);

  • (b) a description of the contents of the record or the part of the record that, as the case may be, belong to, were supplied by or relate to the third party to whom the notice is given; and

  • (c) a statement that the third party may, within 20 days after the notice is given, make representations to the Commissioner as to why the record or the part of the record should not be disclosed.

Marginal note:Information Commissioner’s initial report to government institution

• 37 (1) If, on investigating a complaint under this Part, the Information Commissioner finds that the complaint is well-founded, the Commissioner shall provide the head of the government institution concerned with a report that sets out

  • (a) the findings of the investigation and any recommendations that the Commissioner considers appropriate;

  • (b) any order that the Commissioner intends to make; and

  • (c) the period within which the head of the government institution shall give notice to the Commissioner of the action taken or proposed to be taken to implement the order or recommendations set out in the report or reasons why no such action has been or is proposed to be taken.

• Marginal note:Final report to complainant, government institution and other persons

  (2) The Information Commissioner shall, after investigating a complaint under this Part, provide a report that sets out the results of the investigation and any order or recommendations that he or she makes to

  • (a) the complainant;

  • (b) the head of the government institution;

  • (c) any third party that was entitled under paragraph 35(2)(c) to make and that made representations to the Commissioner in respect of the complaint; and

  • (d) the Privacy Commissioner, if he or she was entitled under paragraph 35(2)(d) to make representations and he or she made representations to the Commissioner in respect of the complaint. However, no report is to be made under this subsection and no order is to be made until the expiry of the time within which the notice referred to in paragraph (1)(c) is to be given to the Information Commissioner.

• Marginal note:Contents of report

  (3) The Information Commissioner may include in the report referred to in subsection (2) any comments on the matter that he or she thinks fit and shall include in that report

  • (a) a summary of any notice that he or she receives under paragraph (1)(c);

  • (b) a statement that any person to whom the report is provided has the right to apply for a review under section 41, within the period specified for exercising that right, and that the person must comply with section 43 if they exercise that right;

  • (c) a statement that if no person applies for a review within the period specified for doing so, any order set out in the report takes effect in accordance with subsection 36.1(4); and

  • (d) a statement, if applicable, that the Information Commissioner will provide a third party or the Privacy Commissioner with the report.

• Marginal note:Publication

  (3.1) The Information Commissioner may publish the report referred to in subsection (2).

• Marginal note:Limitation

  (3.2) However, the Information Commissioner is not to publish the report until the expiry of the periods to apply to the Court for a review of a matter that are referred to in section 41.

• Marginal note:Access to be given

  (4) If the head of a government institution gives notice to the Information Commissioner under paragraph (1)(c) that access to a record or a part of a record will be given to a complainant, the head of the institution shall give the complainant access to the record or the part of the record

  • (a) on receiving the report under subsection (2) or within any period specified in the Commissioner’s order, if only the complainant and the head of the institution are provided with the report; or

  • (b) on the expiry of the 40th business day after the day on which the head of the government institution receives the report under subsection (2) or within any period specified in the Commissioner’s order that begins on the expiry of that 40th business day, if a third party or the Privacy Commissioner are also provided with the report, unless a review is applied for under section 41.

• Marginal note:Deemed date of receipt

  (5) For the purposes of this section, the head of the government institution is deemed to have received the report referred to in subsection (2) on the fifth business day after the date of the report.

Reports to Parliament

Marginal note:Annual report

38 The Information Commissioner shall, within three months after the termination of each financial year, submit an annual report to Parliament on the activities of the office during that financial year.

Marginal note:Special reports

• 39 (1) The Information Commissioner may, at any time, make a special report to Parliament referring to and commenting on any matter within the scope of the powers, duties and functions of the Commissioner where, in the opinion of the Commissioner, the matter is of such urgency or importance that a report thereon should not be deferred until the time provided for transmission of the next annual report of the Commissioner under section 38.

• Marginal note:Where investigation made

  (2) Any report made pursuant to subsection (1) that relates to an investigation under this Part shall be made only after the procedures set out in section 37 have been followed in respect of the investigation.

Marginal note:Transmission of reports

• 40 (1) Every report to Parliament made by the Information Commissioner under section 38 or 39 shall be made by being transmitted to the Speaker of the Senate and to the Speaker of the House of Commons for tabling in those Houses.

• Marginal note:Reference to Parliamentary committee

  (2) Every report referred to in subsection (1) shall, after it is transmitted for tabling under that subsection, be referred to the committee designated or established by Parliament for the purpose of section 99.

Review by the Federal Court

Marginal note:Review by Federal Court — complainant

• 41 (1) A person who makes a complaint described in any of paragraphs 30(1)(a) to (e) and who receives a report under subsection 37(2) in respect of the complaint may, within 30 business days after the day on which the head of the government institution receives the report, apply to the Court for a review of the matter that is the subject of the complaint.

• Marginal note:Review by Federal Court — government institution

  (2) The head of a government institution who receives a report under subsection 37(2) may, within 30 business days after the day on which they receive it, apply to the Court for a review of any matter that is the subject of an order set out in the report.

• Marginal note:Review by Federal Court — third parties

  (3) If neither the person who made the complaint nor the head of the government institution makes an application under this section within the period for doing so, a third party who receives a report under subsection 37(2) may, within 10 business days after the expiry of the period referred to in subsection (1), apply to the Court for a review of the application of any exemption provided for under this Part that may apply to a record that might contain information described in subsection 20(1) and that is the subject of the complaint in respect of which the report is made.

• Marginal note:Review by Federal Court — Privacy Commissioner

  (4) If neither the person who made the complaint nor the head of the institution makes an application under this section within the period for doing so, the Privacy Commissioner, if he or she receives a report under subsection 37(2), may, within 10 business days after the expiry of the period referred to in subsection (1), apply to the Court for a review of any matter in relation to the disclosure of a record that might contain personal information and that is the subject of the complaint in respect of which the report is made.

• Marginal note:Respondents

  (5) The person who applies for a review under subsection (1), (3) or (4) may name only the head of the government institution concerned as the respondent to the proceedings. The head of the government institution who applies for a review under subsection (2) may name only the Information Commissioner as the respondent to the proceedings.

• Marginal note:Deemed date of receipt

  (6) For the purposes of this section, the head of the government institution is deemed to have received the report on the fifth business day after the date of the report.