So, Do We Collaborate?
I had someone, whom I respect, say to me that some public bodies feel we don’t collaborate. This caused me to think about this concern and I thought it important to clarify our role and in turn define expectations.
‘Collaborate’ in the Oxford Dictionary is defined as, “work jointly on an activity or project”.
As an oversight body that gets appeals and complaints, we walk a fine line at times when having to do reports that may be critical and also have to be involved in education programs. On the education side, we are most interested in collaborating with others to put on education events. I have made offers for joint projects and will continue to do so to have public bodies, trustees and residents of the province understand the legislation that has been passed by the Legislative Assembly. We have collaborated on workshops, training materials and the writing of certain guidelines. We also consult. For more on that process, see my office’s Consultation Request Form.
When we receive a request to review a public body’s/trustee’s decision to release or not release records, or a complaint of a breach of privacy, we are, at the beginning, most interested in seeing whether the matter can be informally resolved. We take on a mediation role. Mediation is defined in the Oxford Dictionary as, “intervention in a dispute in order to resolve it.” In this role, my office tries to get the public body or trustee and the applicant or complainant to move toward resolution. As a mediator, you are not collaborating, but you are facilitating the parties moving towards resolution. The resolution is a result between the parties. Where it works, that is the best solution. It does not always work, and if the parties just cannot agree, then at some point my office concludes early or informal resolution is not possible.
When early or informal resolution is not possible, my office shifts in its role to one of a neutral objective decision maker. We neither take sides with the applicant/complainant nor the public body/trustee. We are there to apply the legislation based on case law, other commissioner’s office decisions and what seems reasonable under all the circumstances. We turn to gathering information, investigating the situation and analyzing to determine what recommendations, if any, should be made. At this point, we are not collaborating. We accept representations (submissions) from the parties and start reaching conclusions as we begin to complete a report. Before finalizing a public review or investigation report, we may seek information or clarification on any issue from the public body, trustee, applicant, complainant or a third party as necessary.
Once a report is finalized, my office issues it and provides a copy to the parties involved. From the date my office issues the final report, public bodies or trustees have 30 days to provide their written response to my office and to the applicant or complainant. If the applicant or complainant is not satisfied with the public body’s or trustee’s response, they then have 30 days after receiving it to appeal the decision to the Court of King’s Bench. An appeal, which my office cannot become involved in, is one more opportunity for an applicant or complainant to have their case heard by a higher neutral body. My office also posts reports to our office website approximately seven days after my office issues them, which makes them public.
So, I hope I have clarified that we are always interested in collaborating on joint ventures in education and informally resolving appeals or complaints through mediation. At some point, the collaboration and mediation stop, and a review or investigation and an analysis occur. The result is a report with my findings and recommendations, which a public body – or an applicant – may not like. It is a role our office plays, though, and one in which we do not collaborate.