Chapter 2. The legal nature and composition of IGAIs in OECD countries

This chapter examines the legal nature of IGAIs (single-person, collective, collegial, under the executive branch or legally independent) as well as the means of establishing IGAIs, either by appointment or by election.

    

The IGAIs in OECD member countries are legal entities made up of a natural person or a collegial body of individuals. Their legal nature and composition set their prerogatives and the terms and conditions for the exercise of their power. They are either public or administrative, depending on the country’s institutional rules, and they are legally autonomous.

2.1. Single-person and collegial IGAIs and their autonomy

An IGAI may be composed of a single person or a collegial body, and it may be an administrative office or an autonomous agency.

2.1.1. Single person or a collegial body

A single-person institution

Under certain conditions, an IGAI may consist of a single person benefiting from the support of a government administration in the performance of his/her missions regarding the right to access to information. This is the case in Germany, Australia, Canada, Scotland, Ireland, the United Kingdom, Slovenia, and Switzerland.

IGAI’s missions are sometimes entrusted to an ombudsman, an independent person responsible for reviewing citizens’ complaints against the government, especially in the legal systems of Sweden, Finland, Norway, and Denmark. As the ombudsman does not form part of the government administration denying access to information and against which the complaint was filed, appealing to the ombudsman’s jurisdiction is in principle beneficial. This system has proven satisfactory and has been adopted by several OECD member countries. Information Commissioners, Mediators, and Ombudsmen have been established in this way (Legrand, 2011). In Canada, the protection of freedom of access to information falls to the Information Commissioner, who has been supported by the Office of the Information Commissioner since the adoption of the 1983 law on access to information.

A single-person institution may exist at the subnational level. There are several single-person institutions in Canada that fulfil an IGAI’s mission: the Information and Privacy Commissioner of Alberta, the Information and Privacy Commissioner of British Columbia, the Information and Privacy Commissioner of Saskatchewan, the Ombudsman of Manitoba, the Information and Privacy Commissioner of Ontario, the Ombudsman of New Brunswick, the Information and Privacy Commissioner of Prince Edward Island, The Review Office of Access to Information and Privacy, the Information and Privacy Commissioner of Newfoundland and Labrador, the Ombudsman and the Information and Privacy Commissioner of the Yukon, the Information and Privacy Commissioner of the Northwest Territories, and the Information and Privacy Commissioner of Nunavut1. The Geneva Cantonal Data Protection and Transparency Officer provides another example of a subnational, single-person institution. This person is an independent authority that reports to the president’s office, and whose mission consists of overseeing the application of the law on public information, access to documents, and the protection of personal data of 5 October 20012.

Collegial institutions

Sometimes, a collective and collegial body is responsible for monitoring the right to access to information. Such is the case of the information access commissions in France3, Belgium, and Italy. These commissions ensure the proper application of the right to access information, provide opinions that represent means of recourse prior to going to court, and they may advise government administrations on implementing this right of access.

However, certain specificities can exist in some circumstances. Hence, the Quebec Information Access Commission (CAI) is a government body responsible for applying the legislation on access to information and the protection of personal information throughout the province. As a supervisory body, the CAI conducts inquiries and informs citizens about the protection of personal information and access to public information. As a judiciary body, it resembles an administrative court that hears complaints regarding the implementation of laws on the access to information and the protection of personal information. According to Quebec’s law on access to information, judgements can be given in a non-collegial fashion by a single member of the commission (art. 130.2 and 139).

Aside from the collective or individual nature of the decision-making process, there appear to be few substantial differences between a single-person commissioner who has assistants and offices and a commission made up of several members. However, commission members do not necessarily work full-time, as in the case of the French and Portuguese commissions. They often devote part of their time to their professional obligations, which results in a lower number of cases reviewed or the lengthening of processing times. The tendency in Europe is towards the establishment of full-time Information Commissions that have all the appropriate human and material resources4.

2.1.2. The independence of the IGAIs

The IGAIs may be placed under the Parliament, the executive branch (President of the Republic or Prime Minister), or be completely independent.

Independence recognised by the Constitution

Some IGAIs originate with a constitutional provision, such as the Swedish Ombudsman (Chapter 12 of the Regeringsform) or the Danish Ombudsman (Section 55 of the Constitution) (Legrand, 2011). In Mexico, the National Institute for Transparency, Access to Information, and the Protection of Personal Information (INAI) is also a constitutional body. This origin means that the IGAI’s independence from other state authorities is particularly marked, and that the IGAI is free from the influence of the executive, legislative, or judiciary branches of government.

IGAIs as independent authorities

None of the IGAIs in OECD member countries functions as administrative departments without any legal independence. These IGAIs act as a public or independent administrative authority. The latter instance is created by the Constitution or by a law. It is often directed by a person or by a council made up of independent persons. It also has a legal personality. It is responsible for managing an area of the nation’s life, and it is not subject to ministerial hierarchies. It acts on the basis of proposals, opinions, regulations, individual decisions, and penalties (Drago, 2007). The closest concept in common law is that of an “autonomous non-governmental organisation” (QUANGO).

IGAIs are authorities. In fact, they possess a certain number of powers (of recommendation, decision, regulation, and punishment). Depending on the country’s legal system, they are public or administrative entities. When they are administrative entities, they act in the name of the state, and certain government responsibilities are delegated to them, such as a part of regulatory powers. Similarly, their actions are carried out at the state’s responsibility, and according to some country’s legal systems, the government is responsible for their actions before the Parliament. They are independent, primarily of political power, as the regulation of access to information, collectively or individually, is incompatible with the political management of cases. Then, they are independent of the public and private actors in question. This avoids the bending of the regulation in favour of certain interests, and maintains their impartiality in arbitration and regulation. Their founding articles guarantee their independence5.

Most IGAIs in OECD member countries conform to the definition of a public, independent administrative authority. This is particularly the case of the French, Italian, Belgian administrative commissions on access to information, as well as the Canadian and German Information Commissioners. Established with the law on the transparency of public service and access to government information, Chile’s Council for Transparency also serves as an example of an independent entity. It is an independent public law entity with a legal personality and its own assets, directed by a board of four council members, and which makes collective and individual decisions. The United States’ OGIS was created within the National Archives and Registers, which have been an independent agency since 1985.

The operational assignment of IGAIs

Some IGAIs are tied through their operating plan to a ministry or administrative department. This assignment does not deprive them of their independence of decision-making and action.

a) Assignment to the executive branch

IGAIs may be placed under the authority of the President of the Republic, the Prime Minister, or other ministries or administrative departments, such as the archives. Often, this is a functional connection, meaning that the IGAI’s operations form part of the administrative services of a ministry, for example the Ministry of Justice. However, this does not mean that they are dependent on this ministry. The Japanese Supervisory Commission on the Communication of Information and Protection of Personal Information thus forms an independent body within the Office of the Council of Ministers. It is now part of the Ministry of the Interior and Communication since 2016.

Similarly, the Office of the Australian Information Commissioner (OAIC), which is under the direction of the Australian Information Commissioner, is a statutorily independent entity that also acts as the national authority responsible for the protection of personal data6. The OAIC is, for financial and administrative purposes, part of the Office of the Australian Attorney General.

b) Institutions assigned to the Parliament

In some OECD member countries, the IGAIs represent an instrument of parliamentary oversight of the government at the citizens’ disposal. Their actions are undertaken according to the constitutional principle of the separation of powers and the legislature’s actual capacity to monitor the executive branch (Gil-Robles et al., 1988). In this case, they are assigned to the Parliament, as in the case of Portugal’s Commission for Access to Government Documents, which is established by the President of the Assembly of the Republic7. The same is true for a number of single-person IGAIs, such as Canada’s Information Commissioner, and the Ombudsman’s Offices in Sweden, Finland, Norway, and Denmark. Generally, the Ombudsman’s Offices that are also IGAIs report to the Parliament, as shown by the OECD survey conducted in 20178.

In federal states, the IGAI may also report to the legislative branch of the federated state. Thus, in Ontario, Canada, the Information and Privacy Commissioner is an employee of the legislature9.

2.2. The appointment and composition of IGAIs

To ensure the independence of an IGAI’s decisions, its members must provide the best guarantees of ethics, independence, and competency in the relevant area of activity. However, given that these positions have a very high degree of responsibility, it is only natural that political authorities, who remain responsible before the electorate, participate in the appointment of these individuals.

2.2.1. . The composition of the IGAIs

The composition of the IGAIs is at times hardly specified in national laws, as is the case of the Japanese Commission for the Oversight of the Communication of Information and the Protection of Personal Data, which is made up of 15 experts selected and appointed by the Prime Minister from among “people of superior judgment”. The composition of IGAIs generally varies quite a bit, as it may include bureaucrats, politicians, competent persons, academics, judges, members of civil society, and professionals in the domain of law and data protection. For example, the French Commission on Access to Government Documents includes judges from the Council of State, the Court of Cassation, and the National Audit Court, a deputy and a senator, a locally elected politician, a professor of higher education, a competent person, a member of the National Commission on Informatics and Freedoms (CNIL), and three competent persons from various domains10.

In practice, the United Kingdom has an Information Commissioner who is an experienced attorney in the field of consumption, while her two deputies have worked in labour unions and local government. Ireland and Slovenia have had Information Commissioners who are journalists who worked in the field of politics and who were experienced with questions regarding freedom of the press. Hungary’s Information Commissioner is an attorney and professor of political science who has worked on promoting the right to information. Lastly, Mexico’s IGAI includes academics, legal scholars, and persons who have worked in the government among its Information Commissioners11.

The composition of IGAIs generally tends to be representative of the country’s citizens. For example, Belgium’s Commission on Access to Government Documents (CARDA) includes, aside from its chairperson, an equal number of Francophone and Flemish-speaking members with voting powers. Furthermore, chairmanship alternates between a Francophone and a Flemish speaker12.

Box ‎2.1. Composition of the Italian Commission on Access to Government Documents

The Italian Commission on Access to Government Documents is chaired by the Under-Secretary of State to the Prime Minister’s Office. It is composed of:

• two senators and two deputies, appointed by the speakers of their respective chambers;

• four judges and attorneys appointed by their respective independent bodies;

• a professor who teaches legal and administrative matters, appointed by the Ministry of Education, Universities, and Research;

• the director of the entity assigned to the Prime Minister’s Office who supports the Commission’s operations.

Source: Article 6 (27) of Law No. 241 of 7 August 1990, as amended, www.commissioneaccesso.it/la-commissione/composizione-attuale.aspx.

2.2.2. IGAI members: obligations, rights, and qualities

IGAI members are subject to strict obligations, and they enjoy certain rights, both of which ensure the proper performance of their duties and obligations. Independence and impartiality constitute the statutory basis for the IGAIs. Provided for by the legislation and legal system of each country, they take the form of an ethics code that conditions the appointment of the members and the performance of their mandate, among other things. IGAI members are thus required to prove their dignity, subtlety, and a certain sense of honour, both professionally and personally.

IGAI members are also subject to extensive prohibitions. With the exception of the elected members of collegial IGAIs, members most often may not hold a political office, and in some countries, their terms of office are not renewable. They are often obligated to exercise the strictest discretion and confidentiality in relation to the information they come to know in performance of their duties or the deliberations in which they participate. As such, members of the Japanese Supervisory Commission on Communication of Information and the Protection of Personal Data are subject to penalties for the disclosure of information learned during their term of office, even after the end of this term.

IGAI members are often subject to an audit of their assets and potential conflicts of interest that might potentially impair the proper performance of their role. They may not receive instructions when reviewing cases, requests for opinions, or appeals. Mechanisms to guarantee an IGAI’s transparency are also implemented, for example by ensuring the extensive visibility of their meetings and interviews. Under certain conditions, the greatest impartiality translates into rules that enable an IGAI member to abstain, if not recuse him/herself, from a request made by a party to the procedure, especially when the IGAI is in collegial form.

Management qualities are often demanded of IGAI members. For example, the Scottish Public Services Ombudsman must prove his/her excellent ability in handing down opinions and making impartial decisions, significant competency in terms of influence and communication, a track record of strategic leadership, and proven experience in the diffusion of the results of his/her missions.

IGAI members enjoy certain privileges and protections that shelter them from threats to which they may be subject, such as the security of tenure. For example, members of Chile’s Council for Transparency are appointed by the Supreme Court at the request of the President of the Republic or of the Chamber of Deputies13. IGAI members may also benefit from legal or other means necessary to protect the fulfilment of their mission. Lastly, their professional status must be sufficiently respectable, especially to avoid any form of incitation to commit criminal acts.

Box ‎2.2. Observance of the independence and neutrality of Belgium’s Commission for Access to Government Documents

Chaired by a member of the Council of State, Belgium’s Commission for Access to Government Documents carries out its work in a completely independent, neutral manner. It may not receive instructions for the handling of requests for opinions or appeals.

Commission members are not authorised to participate in deliberations:

• on subjects in which they hold a direct interest, either directly or as an agent, or in which their biological or legal relatives removed up to the 4th degree hold a personal interest;

• when they have been directly implicated in the making of an administrative decision against which a request for review or an appeal has been filed.

Source: Federal Public Office of the Interior, “Presentation of the Commission”, www.ibz.rrn.fgov.be/fr/commissions/publicite-de-ladministration/presentation-de-la-commission/.

Box ‎2.3. The Quebec Commission for Access to Information

Excerpts from the ethics code of its members

Section I: General provisions

1. 1. The member must observe the ethics rules set forth in the Law on Access to the Documents of Public Bodies and the Protection of Personal Information (RLRQ, c. A-2.1) and in this code.

Section II: Members’ duties of office

1. 1. The member fulfils his/her duties with care, dignity, and integrity.

2. 2. The member fulfils his/her duties in full independence and free of any interference.

3. 3. The member must be expressly and objectively impartial.

4. 4. The member shows his/her respect of and courtesy towards persons who come before him/her while exercising the authority required for the proper conducting of the hearing.

5. 5. The member preserves the Commission’s integrity and defends its independence in the higher interest of justice.

6. 6. The member conscientiously and diligently performs his/her duties of office.

7. 7. The member respects the confidentiality of the deliberated matter.

8. 8. The member must observe the confidential nature of the information he/she obtains and discretion about what he/she learns in performance of his/her duties.

9. 9. The member takes the necessary steps to maintain and improve his/her knowledge and abilities needed for the fulfilment of his/her duties.

Section III: Members’ general duties

1. 1. Members refrain from situations of conflicts of interest or ones likely to impair the dignity of his/her office or to discredit the Commission.

2. 2. Members show reserve and prudence in their public conduct.

3. 3. Members show political neutrality and do not engage in any political activities of a partisan nature that is incompatible with the fulfilment of his/her duties.

4. 4. Members disclose all direct or indirect interests to the Commission’s Chair that they hold in an enterprise that is likely to create a conflict between their personal interests and their duties of office.

5. 5. Members may hold non-remunerative roles in not-for-profit organisations as long as these do not compromise their impartiality or the fruitful fulfilment of their duties.

6. 6. The following are nevertheless incompatible with the fulfilment of their duties:

   1. 1° Soliciting or receiving gifts, unless these activities are related to community, school, religion, or family that do not compromise the other duties set forth in this code;

   2. 2° Associating his/her status as Commission member with the activities mentioned in paragraph 1;

   3. 3° Participating in organisations likely to be involved in a matter brought before the Commission.

Source: Quebec Commission on Access to Information, “Member’s Ethics Code”, www.cai.gouv.qc.ca/a-propos/code-de-deontologie-des-membres/.

2.2.3. The procedures for appointing IGAI members

An IGAI’s rules for designating, appointing, or electing members vary from one institution to another and largely follow those of the country’s federal or unitary organisation, the parliamentary or presidential nature of the regime, and its institutional traditions. Chile’s Council for Transparency is staffed with four directors appointed by the President of the Republic upon approval by two thirds of the members of the Senate in office. In Germany, the Federal Data and Information Protection Commissioner is appointed by the federal government. The Scottish Public Services Ombudsman is appointed by the Scottish Parliament14. The Council of Ministers appoints the Canadian Information Commissioner after consulting the head of each recognised party in the Senate and House of Commons and after their approval through a resolution adopted with a simple majority by both chambers15.

Sometimes the appointment procedure begins with a call for applications, as in the case of the Scottish Public Services Ombudsman. Generally, the selection procedure must be transparent, open, and participatory, and it must result in the appointment of a person free of political influence who enjoys the support of civil society and who is able to win the public’s trust. The selection process often involves public hearings and the drafting of a restricted list of candidates. For its part, members of the CAI from Quebec are named by the National Assembly on the basis of a list of candidates that have been declared eligible following a selection process as specifically provided by a provincial regulation.16

Table ‎2.1. Composition and appointment of the Belgian Federal Commission on the Access and Reuse of Government Documents
President + substitute	Appointed from among members of the Council of State at the proposal of its First President
Secretary + substitute	Appointed from among members of the Federal Public Service (SPF) of the Interior, at the proposal of the Minister of the Interior
Other members + substitutes	Four particularly competent members in government publicity, appointed at the Prime Minister’s proposal: two members appointed from among Level A bureaucrats in the state’s centralised or decentralised public services; the two other members are not bureaucrats	Four particularly competent members in the reuse of information held by a public authority, appointed at the Prime Minister’s proposal: two members appointed from among Level A bureaucrats in the state’s centralised or decentralised public services; the two other members are selected from outside the members of the public service
Source: Schram, F. (undated) “The Commission on the Access and Reuse of Government Documents”. http://www.ibz.rrn.fgov.be/fileadmin/user_upload/fr/com/publicite/avis/2017/AVIS-2017-60.pdf

References

Drago, R. (2007), L’émergence des autorités administratives indépendantes [“The emergence of independent administrative authorities”] (podcast), Canal Académie, www.canalacademie.com/ida2336-L-emergence-des-Autorites-Administratives-Independantes.html.

Gil-Robles, A. and F. Marin Riano (1988), Naturaleza juridica del control sobre el gobierno y la administración, Dirección General del Servicio Jurídico del Estado, Gobierno y Administración en la Constitución, [“The legal nature of the monitoring of the government and its administrations, Legal Office of the State, Government and Administration in the Constitution”], Vol. 1, pgs. 729-46

Legrand, A. (2011), Ombudsmän nordiques et Défenseur des droits [“Nordic Ombudsmen and Defenders of Rights”], Revue française d'administration publique [“French Review of Public Administration”] 2011/3 (no. 139), pgs. 499-506, www.cairn.info/revue-francaise-d-administration-publique-2011-3-page-499.htm.

Notes

← 1. Please refer to the list of Information and Privacy Commissioners and Ombudsmen of the Provinces of Canada, https://blood.ca/sites/default/files/privacycommissionerombudsman-fr.pdf.

← 2. Republic and Canton of Geneva, “Cantonal Data Protection and Transparency Officer”, https://www.ge.ch/ppdt/

← 3. Their area of action and the means at their disposal are defined in Article 20 of the Law of 17 July 1978. Their mission is to “monitor the observance of the freedom of access to government documents and public archives, as well as the application of Chapter II regarding the reuse of public information”.

← 4. The Right to Information, “Information Commission/ners and Other Oversight Bodies and Mechanisms”, www.right2info.org/information-commission-ers-and-other-oversight-bodies-and-mechanisms.

← 5. Parliamentary Office for the Evaluation of Legislation (2006), “Independent administrative authorities: evaluation of an unidentified legal object”, French Senate, www.senat.fr/rap/r05-404-1/r05-404-12.html.

← 6. www.oaic.gouv.au/about-us/

← 7. Comissão de acesso aos documentos administrativos, www.cada.pt (site web).

← 8. Among the ombudsman’s offices that responded to the OECD survey, and which are also IGAIs, 70% are appointed by the Parliament, address reports on their work to it, and are financed by it. Source: responses to the OECD survey on the Role of Ombudsman Institutions in Open Government, 2017.

← 9. Law on access to information and the protection of privacy, L.R.O. 1990, C. F.31, Art. 4 (1).

← 10. Article L 341-1 of the Code of Relations between the Public and the Government.

← 11. See: The Right to Information, “Information Commission/ners and Other Oversight Bodies and Mechanisms”, www.right2info.org/information-commission-ers-and-other-oversight-bodies-and-mechanisms.

← 12. See Schram, F. (undated) “The Commission on the Access and Reuse of Government Documents”, www.juritic.be/pages/CARDA.pdf.

← 13. Consejo para la transparencia, http://200.91.44.244/consejo/site/edic/base/port/inicio.html (site web).

← 14. See the Scottish Parliament, “Parliament to nominate new Public Services Ombudsman”,  www.parliament.scot/newsandmediacentre/103367.aspx.

← 15. Government of Canada, Law on access to information, L.R.C. 1985, C. A-1, Art. 4 (1).

← 16. Regulation on the selection procedure of qualified candidates to be nominated to become members of the access to information commission (A-2.1.r.5), http://legisquebec.gouv.qc.ca/fr/ShowDoc/cr/A-2.1,%20r.%205/

Chapter 2. The legal nature and composition of IGAIs in OECD countries