Section 44 - Powers of Commissioner in Conducting Investigations, Audits or Inquiries

Overview

The Commissioner has the mandate to investigate and comment on all matters covered by the Act and to issue orders, whether or not a complaint has been made or a review requested. This section establishes the power of the Commissioner to inspect records and to require records to be produced by public bodies and other persons.

Sectional Reference

Section 44 of the Freedom of Information and Protection of Privacy Act

  • (1) For the purposes of conducting an investigation or an audit under section 42 or an inquiry under section 56, the commissioner may make an order requiring a person to do either or both of the following:
    1. attend, in person or by electronic means, before the commissioner to answer questions on oath or affirmation, or in any other manner;
    2. produce for the commissioner a record in the custody or under the control of the person, including a record containing personal information.
  • (2) The commissioner may apply to the Supreme Court for an order.
    1. directing a person to comply with an order made under subsection (1), or
    2. directing any directors and officers of a person to cause the person to comply with an order made under subsection (1).
  • (2.1) If a person discloses a record that is subject to solicitor-client privilege to the commissioner at the request of the commissioner, or under subsection (1), the solicitor  client privilege of the record is not affected by the disclosure.
  • (3) Despite any other enactment or any privilege of the law of evidence, a public body must produce to the commissioner within 10 days any record or a copy of any record required under subsection (1).
  • (4) If a public body is required to produce a record under subsection (1) and it is not practicable to make a copy of the record, the head of that public body may require the commissioner to examine the original at its site.
  • (5) After completing a review or investigating a complaint, the commissioner must return any record or any copy of any record produced by the public body concerned.

Summary

Section 44 outlines the Commissioner powers to investigate, audit and conduct inquiries under the Public Inquiry Act and this section. This includes the power to summons persons and information, and the power to hold persons in contempt for failure to meet the requirements of the summons. The section also restricts the response time of public bodies to a request from the Commissioner for the production of records. The section also provides for the examination of the original of a record, by the Commissioner, if it is not practical for the record to be copied and provided to the Commissioner. Finally, the section requires the Commissioner to return any records to the public body, at the end of the review or investigation.

Policy

  1. Public bodies must respond to the Commissioner, within 10 days, when he is conducting an investigation under section 42 or an inquiry under section 56.
  2. Public bodies must provide documents containing section 15 directly to the Commissioner.

Procedure

Request for a site visit:

Notification of a site visit by the Commissioner or his staff, should include:

  • the purpose for the site visit;
  • confirmation of the location/site;
  • confirmation of the date;
  • special access requirements (e.g., computer on-line access may require that an appropriate technician be made available);
  • specific classifications of records required to be made available; the appropriate authority for the site visit

The Ministry Records Officer (MRO) should be present during the site visit.

Request for records to be produced:

The notification of a request for records by the Commissioner or his staff, should include:

  • the purpose of the request for records;
  • specific classifications of records required;
  • the appropriate authority.

Interpretation

Interpretation Note 1 (Section 44(1)):

The Commissioner may compel witnesses to attend an inquiry and answer questions. The Commissioner has the same powers as a judge of the Supreme Court to deal with failures to comply with an attendance or production order. These include the power to hold a person in contempt and to obtain the assistance of law enforcement officers to compel attendance or production.

Section 15 of the Public Inquiry Act gives the Commissioner a power to issue a summons requiring any person to bring and produce before him or her any documents "touching or in any way relating to or concerning the subject matter of the inquiry".

Section 16 of the Public Inquiry Act gives the Commissioner the same power as a judge of the Supreme Court to deal with failures to comply with an attendance or production order. These include the power to hold a person in contempt and to obtain the assistance of law enforcement officers to compel attendance or production of documents.

Interpretation Note 2 (Section 44(2)):

The Commissioner’s request for records may be in writing or it can be an oral request. A public body may ask the Commissioner to put his request in writing although there is nothing in the Act that requires the Commissioner to do so.

The Commissioner may enter the premises of a public body if it is necessary for him to do so in order to perform his legislated functions. Whether or not it is necessary for him to enter public body premises can only be assessed on a case by case basis. If the Commissioner can achieve his objective by compelling the production of records instead of making a site visit, it will not be necessary for him to enter public body premises.

It is reasonable and appropriate for public bodies to ask that the Commissioner give the public body notice of site visits. It is also reasonable and appropriate for public bodies to ask that the site visits take place during normal working hours.

"Be produced" means to "be brought forward for consideration, inspection or use" [OED].

Interpretation Note 3 (Section 44(2.1)):

If a record is subject to solicitor-client privilege and that record is disclosed to the commissioner at the commissioner’s request or under 44(1) or 44(2), the solicitor-client privilege of the record is preserved. The disclosure to the commissioner does not constitute a waiver of solicitor-client privilege.

Interpretation Note 4 (Section 44(3)):

The Commissioner has the right and duty to view all records that have been withheld from disclosure, regardless of the exception that the public body has used, and may require records to be produced within 10 days.

The Commissioner may delegate to his staff the power to conduct investigations, audits or inquiries and to view relevant records, unless the records contain information which would fall under section 15 (Harm to Law Enforcement) exception. In this case, the Commissioner must examine the records personally.

"Privilege of the law of evidence" includes common law rules such as confidentiality or non-disclosure clauses in legislation therefore a public body must produce all requested records to the Commissioner regardless of other enactments or privileges. (Note: as the Commissioner cannot delegate this power to staff, public bodies must send records containing section 15 directly to the Commissioner.

The public body should make every effort to produce the records as soon as possible within 10 days of the Commissioner’s request.

Interpretation Note 5 (Section 44(4)):

The head of a public body may require the Commissioner to examine a record at the site at which it is held, if it is not practicable to make a copy of the record, for example, if the record is too fragile to copy or the copying process would damage the record. [Public bodies avoid, as much as possible, requiring on-site examination of records due to the resulting administrative burden on the Commissioner.]

The Commissioner may delegate to his staff the power to view relevant records, unless the records contain information that would fall under section 15 exception. In this case, the Commissioner must personally examine the records.

"Practicable" means ‘that can be done or used, or possible in practice" [OED].

Interpretation Note 6 (Section 44(5)):

The commissioner is required to return to the public body any records or copies of records which the public body has provided to the Commissioner during the course of an review or an investigation.  Any records which were produced during the review by the public body should be returned not later than 60 days following the date of the Commissioner's Order.

Sectional Index of Commissioner's Orders

For orders organized by the Act's section numbers, Click here.

For a summary of Commissioner's orders and policy interpretation of key points, Click here.

Last updated: July 25, 2007