Some investigations recently completed by the Information Commissioner of Canada have stretched over a decade long

As part of its Open Information Initiative, CIPPIC has learned that some investigations recently completed by the Office of the Information Commissioner of Canada, the ombudsperson responsible for investigating complaints filed by persons using the Access to Information Act, have taken up to 11 years to complete. The Act is Canada’s main transparency legislation for obtaining records under the federal government’s control.

CIPPIC obtained data for all investigations completed by the Commissioner during a three-year period from 2022-2024 using an access to information request filed with the Commissioner.[1] According to the records, the Commissioner completed 17,430 investigations during this time period. The average length of an investigation is unclear due to issues in the data CIPPIC received from the Commissioner, but appears to be between four and five months.[2]

There were some notable exceptions to this average. During the time period, a total of 1,652 investigations took more than a year to reach an outcome. While the Commissioner completed approximately half of those investigations in under two years, one hundred investigations took five or more years. Eight took more than a decade to resolve.

The longest wait time was for two investigations that took more than 11 years — specifically, 4,067 days between when the watchdog assigned the matters to an investigator on Jan. 19, 2011, and when the investigations resulted in an outcome on March 9, 2022.

The Commissioner withheld from CIPPIC information showing when complaints were filed, only disclosing when complaints were assigned to investigators. While the processing time between filing a complaint to a final outcome is necessarily longer, the total duration cannot be determined from the available data. (CIPPIC has filed an appeal to obtain this information).

The records do not account for the processing time of access requests made to federal institutions prior to filing of a complaint. According to the Globe and Mail’s 2023 Secret Canada project, only 50 per cent of federal access requests are completed within legislative timelines.

Shortly after responding to CIPPIC’s request for the information, the Commissioner began posting some new general statistics pertaining to the timelines of her investigations. These materials do not mention the time periods revealed in the documents obtained by CIPPIC.

How the complaint process works

Under the Access to Information Act, complainants have 60 days after receiving a response to their access request to file a complaint about the processing of that request with the Commissioner. This may be due to the institution improperly refusing the access request or failing to meet a legislated deadline for responding to the request. After the Commissioner receives a complaint, an investigator reviews the complaint for admissibility. If the complaint is admissible, the Commissioner’s staff will issue a notice of intention to investigate to the complainant and the government.

The complaint then moves into the information-gathering stage, where investigators collect the necessary documents. After gathering the information, the complaint moves into the analysis stage. The Commissioner’s investigator may follow up with either the complainant or the government institution for more information. There are no mandatory caps on the length of the Commissioner’s investigations.

During the course of an investigation, the file might be reassigned to a new investigator. The records obtained by CIPPIC show that the Commissioner frequently reassigned files during the three-year period in question. The time between the date the file is first assigned and when it is reassigned ranged widely, from a matter of days to multiple years.

Based on an investigator’s analysis, the investigator will recommend an outcome. If the complaint is well-founded and the allegations have merit, the Commissioner can order the government institution to take action to resolve the matter or make a recommendation—for example, requiring the federal institution to disclose a record. The Commissioner does not have the power to release records directly.

If the complaint is not well-founded, the Commissioner can either refuse to investigate or cease an in-progress investigation. This can happen in two cases: when the complaint is trivial, vexatious, or made in bad faith, or when an investigation becomes unnecessary. An investigation may become unnecessary when an institution responds to an access request after the complaint is filed or when there is no practical benefit in continuing the investigation.

The Commissioner must report to the complainant, the government institution, and any affected third parties when an investigation is finished and the Commissioner has made a recommendation. When the complaint is well-founded, the Commissioner will send an initial report to the institution, including any findings. The Commissioner will also send out the final report, which includes the findings of the investigation and any orders.

Under the Access to Information Act, complainants cannot challenge in Federal Court the federal government’s response to their request until the Commissioner has finished her investigations.

Why are investigations so long?

The length of an investigation depends on the type of complaint and the original request, the Commissioner said in a statement in response to CIPPIC’s questions.

There are a variety of factors that affect the length of an investigation, including the volume of documents to process, the classification of the documents, and the question of whether the government applied any legislative exceptions to releasing documents. The Commissioner stated that they can generally complete an investigation in between three and 12 months. The records obtained by CIPPIC corroborate this range.

“Reducing the amount of time the [Commissioner] takes to assign a complaint, as well as reducing the time it takes to complete an investigation once assigned, are key priorities, but it is also important to note that the [Commissioner] has no control over the number of complaints it receives,” the emailed statement reads.

Funding is also an issue. The Commissioner’s funding for her contingent of 135 employees is provided through the Treasury Board Secretariat. According to the Commissioner’s 2023-2024 annual report, the Commissioner started the fiscal year in a deficit. The Commissioner has a budget of approximately $18.5 million for the 2024-2025 fiscal year.

“In the past, the Commissioner has sought funding through the Government for additional resources when circumstances dictated. Unfortunately, the [Commissioner] currently lacks an independent funding model. Such a funding model would both reflect the Commissioner’s independence as an Agent of Parliament, and align the [Commissioner’s] annual budget with its workload, providing greater efficiency in assigning and investigating complaints,” the Commissioner said in the email.

The Commissioner also saw a massive increase in the number of complaints filed during the COVID-19 pandemic. According to the data obtained by CIPPIC, the number of complaints filed ticked up between 2021 and 2024. The Commissioner’s annual report shows approximately 4,000 open complaints in the Office’s inventory each year between 2020 and 2022, compared to 3,340 in 2019.

Despite this, the Commissioner says she has reduced the number of open complaints. According to the data made public by the Commissioner after CIPPIC obtained a response to its request, as of Jan. 6, 2025, there were 2,481 open complaints. The Commissioner states that this is 31 per cent less than when the Commissioner started her first term on March 1, 2018. (The Commissioner was recently reappointed to a second seven-year term, starting on March 1, 2025).

“By the end of the current fiscal year, this inventory will overwhelmingly consist of complaints under investigation or recently submitted complaints awaiting investigation,” the Commissioner stated.

Entrenched delays

Delays and long waits are not new in Canada’s notoriously slow and dysfunctional access to information system. According to the Globe and Mail’s 2023 Secret Canada project led by Tom Cardoso and Robyn Doolittle, in 2021, federal government institutions only completed approximately 50 percent of access requests within the 30-day statutory timeline.

Canada’s highest court has already called out delays in other parts of the justice system. In R v Jordan, which dealt with delays in the criminal justice system, the Supreme Court of Canada zeroed in on the impact of delays in the justice system.

“Timely justice is one of the hallmarks of a free and democratic society,” said the majority decision in that judgment.

While the Jordan decision only applies to the criminal system, the emphasis on problematic delays applies more broadly to other aspects of the legal system, including the access to information system. When Commissioner’s investigations take years, it can leave complainants in a state of uncertainty and erode public confidence in a system whose purpose is “to enhance the accountability and transparency of federal institutions in order to promote an open and democratic society and to enable public debate on the conduct of those institutions.”

The current Commissioner has repeatedly called out government institutions for failing to respect the legislated 30-day response time to requests. For example, in a joint release in late 2024 between Canada’s Information Commissioners and Ombuds, she called for public institutions to commit to responding to access requests within legislated timelines.

The current Commissioner also addressed these issues in her 2023-2024 annual report, writing that a properly functioning access to information system is a collective responsibility for government institutions.

“This is a collective responsibility shared by all public servants,” she wrote.

A legislative review of the Access to Information Act is currently scheduled to begin by June 2025.

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[1] CIPPIC’s access to information request was for: “Three lists of all investigations finally concluded in 2022, 2023, and 2024, identifying: the file number that the OIC assigned to each of the listed complaint investigation; complaint receipt date; investigation start date; investigation conclusion date; and, if available, the date the investigative reports went to parties. Preferably in XLSX or an Excel-readable file.” Despite this request, CIPPIC received the data in PDF format. CIPPIC converted the data into .XLSX format to analyze it.

[2] The data CIPPIC received contained three dates: the date the Commissioner assigned the complaint to an investigator, the date the Commissioner reassigned the complaint file, and the date the investigation reached an outcome. In the Excel file, the column with the date the Commissioner assigned the file is blank after line 15,255, while the column with the date the investigation reached an outcome still contains a date. This means that CIPPIC does not have a complete picture of the length of the 2,177 complaint investigations that do not list the date the Commissioner assigned the investigation. When taking into consideration all entries in the spreadsheet where CIPPIC knows how long the investigation took, the average length was approximately 152 days. When taking an average of every single entry in the data the average length of an investigation is 133 days