copy the linklink copied!Chapter 4. The functioning of IGAIs
This chapter looks at the different ways in which IGAIs work. From an institutional standpoint, it emphasises the difference between single-person and collegial entities. It then examines the human and material resources at the disposal of IGAIs, as well as the risks of saturation to which they are exposed.
The way that an IGAI works determines the effectiveness and extent of its actions, as well as its compliance with the law and citizens’ expectations. To achieve these goals, IGAIs in OECD member countries often rely on a highly structured organisation and operation, and they have their own financial, human, and material resources; however, these resources are not always sufficient.
copy the linklink copied!4.1. A strong organisation
To ensure a functioning that complies with the principles of a nation based on the rule of law and good public governance, IGAIs establish stable, precise, and clear structures and modes of operation.
4.1.1. Internal organisation
Single-person institutions are organised around a representative figure, an information commissioner, or an ombudsman in most cases. This person heads an office and may be assisted by a board.
For example, the United Kingdom’s Information Commissioner exercises his functions in collaboration with a team of nine directors, five of which are the principal directors (Figure 4.1). Canada’s Information Commissioner has three departments: i) the Complaints Resolution and Compliance Branch, which carries out investigations and dispute resolution efforts to resolve complaints. It assesses the performance of federal institutions and conducts systemic investigations; ii) the Corporate Services Branch, which provides guidance and advice to senior management on strategic issues; and iii) the Legal Services Branch, which represents the commissioner in court cases and provides legal advice on investigations and legislative and administrative matters.
Source: United Kingdom’s Information Commissioner’s Office. https://ico.org.uk/about-the-ico/who-we-are/management-board/
(excerpts from the Information Commissioner’s Office of Canada, “Our Structure”)
The Office of the Information Commissioner of Canada has three branches: The Complaints Resolution and Compliance Branch carries out investigations and dispute resolution efforts to resolve complaints. It assesses the performance of federal institutions and conducts systemic investigations.
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The Intake and Early Resolution Unit was introduced as part of the Office's efforts to strengthen and streamline its complaints-handling process to eliminate its historical backlog of cases and to improve service to Canadians and federal institutions. It carries out the initial assessment of complaints; establishes the order of priority and prepares files for investigation; investigates more straightforward complaints, usually administrative in nature; and tries to reach a solution that satisfies both the complainant and the institution. The unit is an integral component of the Office's case management model.
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The Complaints Resolution Team is responsible for the investigation of complaints from individuals and organisations who believe that federal government institutions covered by the Access to Information Act have not complied with their access to information obligations, under the Act. This team investigates complaints submitted by complainants after April 1, 2010. Complaints may be submitted where Institutions refuse the release of information and/or apply specific and/or partial exemptions and/or exclusions under the Act. The mandate of this unit is to provide thorough, unbiased and private investigations with respect to these types of complaints.
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The Strategic Case Management Team was created in November 2008 to address the inventory of complaints predating April 1, 2008. Based on the strategies and approaches recommended by the multi-disciplinary Inventory Assessment Team struck in October 2008, complaints in the inventory are being investigated with a view to eliminating the inventory.
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The Corporate Services Branch provides guidance and advice to senior management on strategic issues.
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The Access to Information and Privacy Secretariat is responsible for processing all requests for information pursuant to the Access to Information and Privacy Acts.
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The Human Resources Unit oversees all aspects of human resources management and provides advice to managers and employees on human resources issues.
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The Information Management and Technology Unit is responsible for organising and managing a variety of services and initiatives in information management and for providing technology support and direction for the entire Office.
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The Public Affairs Unit manages the Office's external relations with the public, media, government and Parliament.
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The Strategic Planning, Finance and Administration Unit provides strategic and corporate leadership in areas of financial management, internal audit, and security.
The Legal Services Branch represents the Commissioner in court cases and provides legal advice on investigations, and legislative and administrative matters.
Source: Information Commissioner’s Office of Canada, “Our structure” http://www.oic-ci.gc.ca/eng/abu-ans_our-structure-notre-structure.aspx
Collegial institutions consist of several members at the same hierarchical level who adopt decisions in a collegial manner under the direction of a chairperson. Their organisation tends to resemble that of a court.
IGAIs have administrative offices that are sometimes managed by a general secretariat, the size and organisation of which generally reflect the variety of their missions. IGAIs responsible solely for access to information are smaller and have a relatively simple organisation for their small number of staff. Thus, to the contrary, the more missions an IGAI has, the greater the personnel and the more complex the organisational charts become, and it may initially be difficult to ascertain which offices are responsible for access to information.
However, in certain IGAIs that are organised as commissions, such as the CAI in Quebec, decisions may be rendered by only one of its members.
Source: Quebec Commission on Access to Information (2017), www.cai.gouv.qc.ca/documents/CAI_organigramme.pdf..
The Swedish ombudsman has four areas of responsibility that correspond to four delegated mediator institutions. For the preparation of cases that arise from complaints or are initiated by the Ombudsmen and in connection with consultation documents regarding proposed legislation, the Ombudsmen are assisted by a Head of Secretariat and supervisory departments consisting of Heads of Division, Senior Legal Advisors and Legal Advisors. Each supervisory department has its own bureau to deal with its cases.
To carry out the tasks incumbent on a national preventive mechanism pursuant to the Optional Protocol of 18 December 2002 to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT), the Parliamentary Ombudsmen are assisted by a special unit, the OPCAT unit. This comprises a Head of Unit and Legal Advisors.
The Chief Parliamentary Ombudsman is assisted by an administrative department that comprises a unit for human resources, finance, premises and IT issues, a unit for registration and archives as well as a Public Relations Manager and an International Coordinating Director. The unit for human resources, finance, premises and IT issues is headed by the administrative director. This unit employs staff for financial and human resources management, administrative assistants and cleaning staff.
The unit for registration and archives is headed by the Head of Division responsible for registration and the archives. This unit employs a chief registrar, registrars and receptionists.
Source: Riksdagens Ombudsmän, “Administrative Directives”, www.jo.se/en/About-JO/Legal-basis/Administrative-directives/.
4.1.2. Formal decision-making
Depending on the different traditions and legislations, IGAIs enact procedures with varying degrees of formality for the introduction, revision and decision of cases regarding access to information, for both general matters and cases concerning one or more individuals. To ensure the quality and impartiality of their decisions, the decision-making procedure adopted by IGAIs, especially those in collegial form, often resemble that of a court. The decision-making process is based on the following principles:
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The rules for an IGAI’s operation is based on the legislation that concerns it directly, as well as from other relevant legislation.
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The IGAI has its own internal operating regulation (IGAI internal regulation, ethics code, internal regulation of the decision-making body).
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The meetings of an IGAI’s decision-making body follow an agenda announced in advance by the responsible authority; a secretary prepares the meeting documents; the chairperson ensures the oversight of the work; a voting regulation is applied; a register of resolutions is kept, and; a person is appointed in charge of enforcing a decision.
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As regards IGAI decisions on individual matters, the procedure can be either written1 or oral, and is often adversarial, which means that each party is entitled to be informed of the arguments and documents exhibited by the other party, and that the IGAI’s decision can only be based on the exhibits that all the parties know. Depending on the legal traditions, the procedure resembles either an inquiring procedure (where the IGAI directs the investigation) or an accusatory one (where the person requesting and the entity subject to the obligation to provide access to information hold the same status, and the IGAI’s role is limited to arbitrating the litigation between the two parties).
France’s CADA has two deliberation formations, while all decisions are adopted by a majority of those members present:
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In plenary form (general cases): six members establish a quorum. The government commissioner may make oral observations.
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In limited form (penalties for the reuse of public information): the quorum is established by three members, who must not have any conflict of interest as regards the matter at hand. The operating rules for this formation take into account the procedure’s punitive nature.
Since the entry into force of the Law for a Digital Republic, the Commission may delegate the exercising of some of its attributions to its chairperson. To ensure the CADA’s operation, the chairperson relies on rapporteurs, whose work is coordinated by a chief rapporteur and two assistant chief rapporteurs. A government commissioner appointed by the Prime Minister sits on the Commission and participates in its deliberations. In fulfilment of its mission, the CADA relies on a general secretariat, whose officials (currently 14 in number) come from the Prime Minister’s offices.
Source: French Commission on Access to Government Documents, “Composition”, www.cada.fr/composition,6076.html.
copy the linklink copied!4.2. Financial, human, and material resources
IGAIs are independent in their management, and they have their own financial and human resources; however, the perceptible increase in the workload of some IGAIs creates the danger that they are not always able to fulfil their mission under the terms and conditions provided for in the legislation.
4.2.1. Independent management
IGAIs in OECD member countries enjoy a large degree of independence in their management. In the case of single-person institutions, the person heading the institution directs its offices. For example, the German Federal Information Commissioner directs his offices independently and decides on their work. In the case of collegial body institutions, the decision-making power falls to the member heading the body, most often the institution’s chair or director. For example, the chairperson of Chile’s Council for Transparency is in charge of recruitment and the Chairperson of France’s Commission on Access to Government Documents is the main person in charge of the Commission’s expenses; hence, he disposes of a general budget that he uses according to the needs of the institution he directs2.
The chairperson of the management board is the legal representative of the Council for Transparency. He/she specifically exercises the following roles and responsibilities:
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ensuring the observance and implementation of management board resolutions;
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planning, organising, directing, and coordinating the Council’s work in accordance with the directives imparted by the management board;
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establishing the internal regulation to ensure the Council’s proper functioning, with the agreement of the management board;
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recruiting and dismissing Council personnel in accordance with the law;
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ensuring the implementation of any other decision and entering into the necessary conventions for the fulfilment of the Council’s missions;
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delegating specific powers or responsibilities to Council members;
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exercising any other role or responsibility delegated to him/her by the management board.
Source: “Digital Law 20.285: On Access to Public Information”, viewable on the website of the National Congress Library of Chile, www.leychile.cl/Navegar?idNorma=276363&idVersion=2016-01-05.
4.2.2. Financial and human resources
An IGAI’s financial resources come from the public authorities to which they belong (states or intra-state entities), and they are subject to public law budget rules. Thus, the Minister of Finance proposes the budget of the Irish Information Commissioner that is then adopted by the Parliament. The budget of the Hungarian National authority for data protection and freedom of information is approved by the Parliament, and constitutes a separate line item in the state budget. The United Kingdom’s Information Commissioner files a request before the Ministry of Justice, which then allocates credits to it in the budget approved by the Parliament. The Commissioner must also prepare an annual report and financial statements3. In collaboration with the Ministry of Justice, he prepares a management and financial report in a document that contains the rules and recommendations tied to the exercise of his roles, responsibilities and powers, the attribution of funds placed at his disposal by the public authorities, the presentation of his report to the Parliament, and his relations with the Ministry of Justice.
The budgets allocated to IGAIs vary to a significant degree in function of their missions, size, and the specific situation of each state or intra-state entity. The budget of the Belgian Commission on the Access and Reuse of Government Information and that of the Federal Appeals Commission for Access to Environmental Information is zero, but the two bodies receive funds placed at their disposal by the federal government4. The budget of the Portuguese Commission on Access to Information was 782,400 EUR in 20175. The budget of France’s Commission on Access to Government Documents in 2017 covered mainly the salaries of the 14 FTE agents, which brought the personnel expenditures to almost 1.2 million EUR out of a total budget of 1.4 million EUR. The means of this institution’s operation are handled by the Department of Administrative and Financial Services in the Prime Minister’s Office. Expenses other than for personnel (Title II), namely the operating expenses, totalled 255,957 EUR. They mainly involve the maintenance of the website and the reprogramming of the IT programme SALSA (Rabault, 2016). In the fiscal year 2016-17, The Australian Office of the Information Commissioner received 10,618 000 AUD (equal to roughly 6,972,440 EUR) from the federal budget to employ an average of 71 persons. At 30 June 2017, it had 74.37 full-time equivalents (FTE), including permanent and temporary employees (OAIC, 2017).
The United Kingdom’s Information Commissioner employed 500 people during the 2016-2017 period, and the state’s funding totalled 3,750,000 GBP; the fees earned during this same period totalled 19,729,000 GBP. Total expenditures during the period totalled 4,504,000 GBP (ICO, 2017). The offices of the Finnish Parliamentary Ombudsman employ 63 people (including the staff of the Human Rights Centre). Five of them are responsible full-time for ensuring access to information, four work in the clerk’s office, and one person manages the ICT. The internal regulation of the Parliamentary Ombudsman’s Office also provides that access to information and the processing of requests and all related activities constitute an integral part of each employee’s duties.
The total budget for 2017 was 5,608,000 EUR. Since 2016, the Parliamentary Ombudsman’s Office has had a new system for the electronic processing of cases, the results of which have been judged satisfactory. The Office processes approximately 5,000 complaints per year. All complaints received via post are recorded in the system and processed electronically. The costs of this system total 13,000 EUR per year6. The budget of subnational IGAIs, such as the Quebec Commission on Access to Information or the IGAIs of the autonomous Spanish governments, are financed by the government entity to which they belong. The Quebec Commission on Access to Information had 63 employees in 2012 and 58 in 2016, and its budget grew from 5.98 million CAD in 2016-17 to 6.10 million CAD in 2017-18.
The laws of each country determine the labour regulations that apply to the IGAI’s personnel. Some, like France’s Commission on Access to Government Documents, employ public officials and agents. Others, like Chile’s Council for Transparency, employ private law agents who are sometimes subject to specific obligations in view of the IGAI’s missions.
The compensation of IGAI personnel is an expense of an administrative nature. For example, the German Federal Information Commissioner earns the salary of a federal official of an equivalent rank, and his situation is similar to that of a public agent. In Ireland, the Information Commissioner’s salary is the same as that of a High Court judge. Members that sit on an IGAI who mainly exercise another profession are sometimes compensated for their work according to their shifts (for handling cases and attending meetings, for example).
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Subsidies
The Information Commissioner’s Office is financed with “grant in aid”, which totalled 3,750,000 GBP in 2015-16 and 2016-17.
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Fees
Data protection activities are financed by fees collected from data controllers who have to notify their processing of personal data under the DPA. The annual fee is £35, unchanged from its introduction in 2000. It applies to charities and small organisations with fewer than 250 employees. In 2009, a higher fee of £500 was introduced for larger data controllers as those with an annual turnover of £25.9 million or more and employing more than 250 people. For public authorities employing more than 250 people the fee is also £500.
Fees collected in the year totalled 19,729,000 GBP (2015-16: 18,311,000 GBP); a 7.7% increase on the previous year.
Expenses during the fiscal year 2016-17 totalled 4,504,000 GBP (compared to 5,255,000 GBP for the previous year).
Source: Information Commissioner’s Office (2017), Information Commissioner’s Annual Report and Financial Statements 2016/17, Wilmslow, Cheshire, https://ico.org.uk/media/about-theico/ documents/2014449/ico053-annual-report-201617-s12-aw-web-version.pdf.
The Council’s personnel is subject to the Chilean Labour Code. It is also subject to the rules of probity set forth in the Law on Probity in Public Service and the Prevention of Conflicts of Interest, and the provisions of Title III of Law No. 18.575 on the constitutional organisation of the general bases of the state’s administration. A specific clause about these legal obligations is included in the employment contracts.
Persons holding a management role within the Council are selected through a public call for applications launched by the government, in accordance with the rules for recruiting management personnel.
Source: Article 43 of Law No. 20.285: On Access to Public Information, viewable on the website of the National Congress Library of Chile, https://www.leychile.cl/Navegar/?idNorma=276363&idParte=0
4.2.3. The risk of exceeding IGAIs’ capacities
A number of countries have seen an increase in requests to access government documents. For example, statistics for the United States government on FOIA show a marked increase in the number of requests, which went from 600,000 in 2010 to almost 800,000 in 2016.7
This marked increase in requests for access to information can also be seen at the subnational level. For example, the city of Montreal received more than 17,000 requests in 2016, which results in an average response time of 22 days, and which can be as long as 50 days8. The requests concern all local sectors of activity, especially in the case of Spanish local government entities (see Figure 4.3 below).
Source: Campos Acuña, C., “The role of public administrations in access to information: subnational governments and access to information”, Contribution to the OECD regional workshop on access to information held in Caserta on 18 December 2017.
The increase in the number of refusals to access information, explicit or tacit, is often related to the number of appeals to IGAIs. The Spanish Council for Transparency and Good Governance (the Spanish government’s IGAI) thus received 844 appeals during the first eight months of 2017, which represents 8.33% of all requests to access information (see Table 4.2). The French and Portuguese Commissions on Access to Government Documents have also recorded a constant increase in requests for access to information (see Table 4.3 and Diagram 4.4). In 2015, the French institution recorded 7,222 appeals and issued 5,591 opinions and 227 recommendations, while 1,404 cases remained to be investigated.9 It processed 6,606 cases in 2016, provided 5,214 opinions and 273 recommendations, of which 56.8% were favourable to the persons requesting. The average processing time was 58 days in 2015 and 69 days in the first quarter of 2016.10 This increase is likely to lead to the institution exceeding its processing capacities, as noted in the reports by the French Commission on Access to Government Documents for the years 2015 and 2016.11
Source: Guichard, C., Secretary General of France’s Commission on Access to Government Documents, Contribution to the OECD regional workshop on access to information held in Caserta on 18 December 2017.
The increase in the number of requests for access to information and the resulting excess in workload are sometimes due to the exercising of the right to access information by someone without a legitimate legal interest. The person requesting, be they individuals or legal entities, wish to acquire the confidential information about an individual or a legal entity by requesting it from the public entities holding that information (Jonason, 2016). Such practices ignore the principles of proportionality and necessity that govern the information’s communicability12. This excessive workload may also originate with the cumbersome nature of the law on access to information or the centralised processing of requests, which are likely to hinder the proper functioning of access to information13.
Lastly, the increase in requests to IGAIs is also related, to some extent, to the government’s reticence to communicate documents that could nevertheless be communicated. The immediate consequence of the increase in the number of appeals is the lengthening of the timeframes with which IGAIs process cases, while the proactive communication of information constitutes to some extent a better handling of requests for access to information.
For example, the Irish Parliament passed a law on access to information in 1997 that provides for the automatic publication of certain pieces of information. This has help unencumber the IGAI. The burdening of the IGAI and the lengthening of timeframes is often due to the liberal conditions for appealing and the care that the IGAI gives to processing the case of the person requesting. It is also because IGAIs allow, in the interest of the person appealing to them, for long timeframes for investigation to ensure a better communication of pieces of information and to allow them to issue more precise opinions and decisions14. Furthermore, late responses from persons obligated to communicate the information to requests from the IGAI result in delays in the IGAI’s processing of cases.
For that matter, the very nature of the laws on access to information seems to entail an increase in the number of appeals to IGAIs. Experience has shown that previous laws give rise to questions with which IGAIs must grapple (for example, concerning the limits of the sphere of privacy in terms of personal data, or the border between administrative and judicial documents). The most recent laws, especially those concerning the reuse of information or digital data (for example, complex databases) and their posting online (the implications for public security, for example), are even more likely to raise new issues with which IGAIs will have to deal15.
Some IGAIs believe that they are no longer able to carry out their missions well under the best conditions16. Changes have been made, for example in the allocation of human resources to the most complex cases. Procedures have at times been simplified by legislative reforms that implement the sorting of requests that do not involve any investigation, or by entrusting simple cases to one person as opposed to an IGAI’s collegial body. Similarly, the implementation of procedures for the acceptability of requests entrusted to administrative departments or the automatic processing of the simpler cases under the supervision of an IGAI member17 allow IGAIs to focus on more
References
French Commission on Access to Government Documents, “2016 Annual Report”, www.cada.fr/IMG/pdf/rapport_d_activite_2016.pdf
Information Commissioner’s Office (2017), Information Commissioner’s Annual Report and Financial Statements 2016/17, Wilmslow, Cheshire, https://ico.org.uk/media/about-the-ico/documents/2014449/ico053-annual-report-201617-s12-aw-web-version.pdfRabault, V. (2016), Report on behalf of the Commission on Finance, the General Economy, and Budget Oversight on the 2017 draft finance law (no. 4061)”, National Assembly, www.assemblee-nationale.fr/14/rapports/r4125-ti.asp.
Jonason, P. (2016), Le droit d’accès à l’information en droit suédois : une épopée de 250 ans [“The right to access information under Swedish law: a 250-year saga”], Revue internationale de droit des données et du numérique [“International Law Review on Data and Digital”], vol. 2, pp. 37-50, http://ojs.imodev.org/index.php/RIDDN/article/view/137/175.
Office of the Australian Information Commissioner (2017), Annual Report 2016–2017, Australian Government, www.oaic.gov.au/resources/about-us/corporate-information/annual-reports/oaic-annual-report-201617/oaic-annual-report-2016-17.pdf.
Notes
← 1. In principle, the parties may only present their arguments and conclusions in written form. This principle renders the administrative procedure less supple, but it provides a guarantee of seriousness and security.
← 2. French Senate, “Draft Finance Law for 2006: Management of the Government’s Action”, www.senat.fr/rap/a05-104-2/a05-104-25.html.
← 3. Data Protection Act 1998, Chapter 5, point 1, paragraph 10, www.legislation.gov.uk/ukpga/1998/29/contents.
← 4. Data provided by the secretariats of the Belgian Commission on the Access and Reuse of Government Documents and the Federal Appeals Commission for Access to Environmental Information.
← 5. Comissão de acesso aos documentos administrativos, http://www.cada.pt/modules/news/index.php?storytopic=12
← 6. Information communicated to the OECD by the Finnish parliamentary ombusdman parlementaire on 23 November 2017.
← 7. United States Department of Justice, https://icic2017open.files.wordpress.com/2017/08/icic-melanie-ann-pustay.pdf
← 8. LA PRESSE.CA, Les délais d’accès à l’information s’allongent à Montréal [“The timeframes for accessing information are growing in Montreal”], www.lapresse.ca/actualites/montreal/201706/09/01-5106142-les-delais-dacces-a-linformation-sallongent-a-montreal.php.
← 9. French Commission on Access to Government Documents, “2015 Annual Report”, https://www.cada.fr/sites/default/files/cada_rapport_activite_2015.pdf.
← 10. Guichard, C., Secretary General of France’s Commission on Access to Government Documents, Contribution to the OECD regional workshop on access to information held in Caserta on 18 December 2017.
← 11. French Commission on Access to Government Documents, “2015 Annual Report”, https://www.cada.fr/sites/default/files/cada_rapport_activite_2015.pdf; French Commission on Access to Government Documents, “2016 Annual Report”, www.cada.fr/IMG/pdf/rapport_d_activite_2016.pdf.
← 12. The Supreme Administrative Court of the Czech Republic and ACA Europe (2015), “Supreme Administrative Courts and the development of the right to publicity, privacy, and information, Brno, 18 Mai 2015, Responses to the questionnaire : Italy”, www.aca-europe.eu/seminars/2015_Brno/Italie.pdf.
← 13. LA PRESSE.CA, Les délais d’accès à l’information s’allongent à Montréal [“The timeframes for accessing information are growing in Montreal”], www.lapresse.ca/actualites/montreal/201706/09/01-5106142-les-delais-dacces-a-linformation-sallongent-a-montreal.php.
← 14. French Commission on Access to Government Documents, “2016 Annual Report”, www.cada.fr/IMG/pdf/rapport_d_activite_2016.pdf.
← 15. Ibid.
← 16. LA PRESSE.CA, La Commission d'accès à l'information du Québec est sous-financée, selon son président [The Quebec Comission on Access to information is under-funded, according to its Chair”], http://www.lapresse.ca/actualites/politique/politique-quebecoise/201704/25/01-5091678-la-commission-dacces-a-linformation-est-sous-financee-selon-son-president.php.
← 17. French Commission on Access to Government Documents, “2016 Annual Report”, www.cada.fr/IMG/pdf/rapport_d_activite_2016.pdf.
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