So, Do We Collaborate?

January 12, 2018 - Ron Kruzeniski, Information and Privacy Commissioner

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 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 in an attempt to have public bodies 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 guidelines.

When we receive a request to review a public body’s decision to disclose or not disclose 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 and the applicant 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 informal resolution is not possible.

At that point, my office shifts in its role to one of a neutral objective decision maker.  We neither are for the applicant nor the public body.  We are there to apply the legislation based on case law, other commission 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 and begin to draft a report.  The draft report is sent to the public body to determine whether we have the FACTS right and whether they have comments about the recommendations.  The recommendations are ours, but if a public body believes a recommendation is absolutely impossible, then they should tell us about it.  Also, if they could comply with a modified recommendation, we are interested in knowing that.  When commenting on the draft report, it is not the time for the public body to re-argue what was in the original submission or come up with new exemptions.  Now, up until this point, it is still possible to have the matter informally resolved if both parties can come to an agreement.  This does not happen often but it can happen.

After receiving comments on the draft report, my office takes those comments into consideration, and moves towards issuing the final report.  The final report in most cases mirrors the draft report with any factual corrections or recommended modifications.  We always understand that someone, public body or applicant, will not like all of our recommendations.

So, I hope I have clarified, we are always interested in collaborating on joint ventures in education and informally resolving appeals or complaints but at some point the collaboration stops, the mediation stops, an investigation and an analysis occurs and a report is created with recommendations.

 

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