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A Blueprint for an Effective and Credible DNC/CF Ombudsman (Cont'd)

Confidentiality

Principle

General

Confidentiality is a key component to the successful operation of any effective Ombudsman’s office. It guarantees protection for complainants and cooperation from authorities.235 In order for complainants to feel that the Ombudsman’s office is accessible, they must be assured that their complaint will be treated confidentially in all respects and that no one will have access to any information which they provide to the Ombudsman, without their consent. Prospective complainants need to be certain that they will not be subject to any repercussions or reprisals for bringing a matter to the attention of the Ombudsman. Protection from potential repercussions for bringing a complaint, can best be achieved by keeping the source of the complaint confidential. Indeed, for any potential complainant, the advantage of having the Ombudsman independent from the chain of command, is meaningless, if their identity will automatically be disclosed, leaving them vulnerable to reprisal or repercussion. The same applies if, by virtue of someone accessing a complaint, the complainant can be identified.
 

Throughout the process of research and study on the need for mechanisms of voice at the DND/CF, it has been recognized by all that confidentiality is essential to establish effective mechanisms. For example, Brig.-Gen. (ret’d) Doshen in the Doshen Paper #1, concludes that members of the DND/CF must be confident in the efficacy of internal mechanisms of voice if they are to use them. He noted that this requires, among other things:
 

  • procedural fairness which includes consistency in treatment across people, opportunity to present one’s case and respond to counter arguments, the accuracy of information presented, an objective and unbiased judgement including the absence of conflicting interests, and an explanation of decisions;
     
  • distributive justice that is fairness of outcomes across people;
     
  • polite and respectful treatment;
     
  • confidentiality of members complaint and,
     
  • protection against retaliation both overt and covert.236 (Emphasis added)
     

Brig.-Gen. (ret’d) Doshen in recommending the establishment of an Ombudsman for the CF, explicitly recognized that the “confidentiality, informality and separation from the chain of command” would give such an office “considerable credibility and confidence in the eyes of the CF members”.237 (Emphasis added). He also noted that the existence of the Ombudsman (as a confidential and independent avenue) would help discourage retaliation against complainants and provide a further avenue for complaint should retaliation occur.238
 

The government’s response to the recommendations of the Somalia Commission of Inquiry, which announced the forthcoming appointment of the Ombudsman, also indicated that this office would provide “confidential, independent and informal assistance to members to help resolve complaints and concerns quickly and fairly”.239
 

One of the major advantages of the creation of an Ombudsman as a mechanism for resolving complaints of unfairness and injustice is the element of confidentiality and safety from potential reprisal or retribution. This element is felt to be lacking in other mechanisms of complaint resolution, such as the redress of grievance process or complaining to one’s Member of Parliament. As one CF member put it, “if I go to my Member of Parliament there will be repercussions, why waste time going through channels that will have repercussions on me?240 Another Canadian Forces member remarked “in this organization we are too small, everyone knows that someone put in a grievance. Confidentiality is a myth. If people believe that no one will know that they put in a grievance that’s not true […]”.241
 

You recently re-iterated to me in correspondence that confidentiality is an essential feature of my Office:
 

Your office must carry enormous moral authority and credibility in relation to the senior decision-makers and information custodians within the Department of National Defence and the Canadian Forces, which will be derived in large measure from the neutrality and confidentiality of your office and our direct reporting relationship.242 (Emphasis added)
 

Table of Contents
 

Impact on Operations

A review of the input received during our consultation process, as well as a review of other Ombudsman’s offices, reveals that real and tangible safeguards to protect confidentiality are essential in order for the Ombudsman’s office to provide:
 

  • Accessibility;
     
  • Freedom from Fear of Retaliation or Reprisal; and
     
  • Effective Resolution of Complaints.

 

Accessibility

Confidentiality is required for an accessible office. The entire functioning of an Ombudsman depends upon persons being willing to come forward and share their complaints and concerns about injustice or unfair treatment with the Ombudsman and his staff. In order for individuals to be willing to bring their problems forward to my Office and entrust them to me, I must establish a relationship of public trust and confidence. This confidence requires an assurance that complaints will be kept confidential and consequently, that complainants will not be subject to adverse consequences for bringing a matter to my Office’s attention. In short, confidentiality makes the Ombudsman a “unique and safe” place to turn to.243
 

During the consultation process, the overwhelming view of members of the CF was that confidentiality was of “tremendous importance”:244
 

  • Independence and confidentiality are the key to credibility. (Civilian Employee with the Military, LFWATC, Wainwright, September 3, 1998)
     
  • Who will we call if you don’t keep everything confidential? (Meeting with NCM Reserve MP, Edmonton, September 2, 1998)
     
  • People will be scared to go to the office without a complete guarantee of confidentiality. (Meeting with NCM Reserve MP, Edmonton, September 2, 1998)
     
  • You need to guarantee complete anonymity to complainants, if not they will not go to you because of the repercussions and there will be retribution. (Civilian employee with the Military, LFWATC, Wainwright, September 3,1998)
     
  • We must have assurance that if we speak to you it will be confidential and we will not suffer retribution which will hinder our career path… we need the security to know we can call you in confidentiality. (Telephone interview by a member of my staff, with a Sergeant, Fort Frontenac, August 26, 1998)
     
  • Your credibility depends on results and also on confidentiality. (Coffee at RA Park, LFAA, Halifax, October 28, 1998)
     
  • Confidentiality will be a big issue for us. (General Comments, Velika Kladusa, Bosnia, November 11, 1998)
     
  • Very important if we go to you that information be kept confidential. It is the individual’s choice if he/she wants it to be known. (Meeting with Junior NCMs, 8 Wing Trenton, September 8, 1998)
     
  • Complaints would need to be anonymous or have protection to encourage members or their families to come forth… Need confidentiality, that’s what I mean by anonymous. We tell you our name but it doesn’t go further. (Meeting with Military Family Group, CFB Halifax, October 26, 1998)
     
  • For confidentiality’s sake assign a number and file by number, like Crime Stopper’s does. (Meeting with Junior NCMs, CFB Gagetown, October 29, 1998)
     
  • Confidentiality and independence are crucial for your office to be effective and credible. (Luncheon, NATO, Brussels, November 4, 1998)
     
  • Besoin de confidentialité pas de retribution. (Luncheon, Geilenkirchen, Germany, November 6, 1998)
     
  • Do you have lawyer/client privilege confidentiality? (Visit at NAEWF, Germany, November 6, 1998)
     

The need for confidentiality became readily apparent when we consulted the junior ranks during our visits to CF bases, wings or formations across Canada. During these consultations, we were told that if we wished members of the junior ranks to be frank with us about their concerns and their advice regarding the set up of our Office, we should speak to them without the higher ranks being present. In fact, in some instances, junior officers and non-commissioned members were only willing to speak to us once their supervisors were asked to leave the room. It was made very clear to us that the presence of higher ranks would have an overall chilling effect on what we would hear from the junior ranks:
 

  • If you want to get frank viewpoints from the junior ranks, kick out the commanding officer. (Meeting with Personnel from 402 Squadron, Winnipeg, September 16, 1998)
     
  • Get to Bosnia unexpectedly and get the troops alone. (Meeting with Personnel from 402 Squadron, Winnipeg, September 16, 1998)
     
  • Some time ago we had a similar meeting as yours today and we were told before the briefing what we could say and could not say, these are the questions you can ask and questions you cannot ask – when we ventured into other issues, we were shut down and the commanding officer closed the question and answer session. (Meeting with Personnel from 402 Squadron, Winnipeg, September 16, 1998)
     
  • When we meet with you, it’s hard to speak if officers are around. (Meeting with Marine Eng. – Leading Seaman – September 22, 1998)
     
  • It would be good that when you go around to speak to NCMs that you don’t have a senior officer with you. Perhaps have a Sergeant show you around. (Meeting 12 Wing Shearwater, October 27, 1998)
     

In recognition of this fear amongst the junior ranks, on our recent visit to SHAPE, the commanding officer volunteered not to attend any of our meetings with civilian and military personnel at SHAPE, in order to ensure a good environment for open discussion.245
 

This desire for anonymity and confidentiality was also found to be present as one went up in the ranks of Canada’s Forces. For example, during one consultation meeting with students, a Senior Officer was unwilling to comment if notes were being taken, out of concern that what he said might be recorded and construed as “eroding the chain of command”. 246
 

Our consultation with personnel at the Conflict Resolution Centre (CFB Borden), also confirmed that confidentiality was extremely important in gaining the trust of DND/CF members, such that they would come forward with their complaints:
 

  • Confidentiality is seen as a real issue – people should have the option whether the complaint/investigation is confidential or not.
     
  • We tell people that we must report back to the chain of command, we must give the name and describe the situation; it makes us wonder how many don’t come to us because we offer no confidentiality. (Meeting with Personnel, Conflict Resolution Center, CFB Borden, September 28, 1998)

 

Freedom from Fear of Retribution or Reprisal

The need for strict confidentiality stems directly from the expressed fear that if one complains there will be retaliation directly by the person(s) complained about or indirectly by the system as a whole. Invariably, when the issue of confidentiality was raised during our consultations, the belief was expressed that if a complaint was made and the source of the complaint were known there would be direct reprisals: 247
 

  • Most times people want to speak up but are afraid to. (Meeting with Junior Ranks, CFB Gander, October 6, 1998)
     
  • If one complains against a person in the department – they wagon around and cover their ass and squash the complainant. (Meeting with Union Representatives, Edmonton, September 1, 1998)
     
  • The redress process was a major thing but don’t go that route because of the administrative repercussions. (Meeting with Military Police, NDHQ, August 28, 1998)
     
  • Personally I was told since I made a complaint, now I have a black cloud following me – we need to access you outside the military, strict confidentiality is crucial. (Meeting with IAMS Technicians, Cold Lake, September 15, 1998)
     
  • If there is no confidentiality, people will be “black-balled” if they complain. (General Conversation with Soldiers, 2 Royal Canadian Regiment, Training Exercise, Combat Training Centre, Gagetown, October 30, 1998)
     
  • Yes reprisals are a problem “big time”. Get rid of the people causing the problem. (Meeting with Operations Staff, CFS Leitrim, November 25, 1998)
     
  • Redress up chain of command. If they don’t have a decision for you, you’ve just pissed off your chain of command, and you will suffer for it. (Meet and Greet, Golan Heights, Israel, November 7, 1998)
     
  • Need to protect people from reprisal. (Presentation to Staff, Golan Heights, Israel, November 8, 1998)
     

The issue of reprisal, was also raised by members at the recent Defence Ethics Conference, in response to the Defence Ethics Risk Survey, administered by the conference organizers. One of the issues, which the survey specifically attempted to measure, was whether conference participants felt that protection from reprisal was sufficient for those who spoke out on “ethical issues” in their work environment. Of the participants who responded, 11 percent indicated “no”, 17 percent indicated “some” and 24 percent indicated “50/50”. This would indicate that over half (52 percent) of the respondents felt that the protection from reprisal was sufficient only half or less than half the time. Approximately one third (29 percent) of the respondents felt that the protection was good, while only nine percent responded that it was “very good”.248 These responses should be read in light of the fact that the conference participants came from mostly senior ranks and there was lesser representation from the junior ranks, who are most likely to be concerned about protection against reprisal. 249
 

Defence Ethics Conference participants were also asked in the survey, to identify the most serious ethical risks in their work environment. These responses identified reprisal as a key issue and showed that this concern is very much alive among members of the DND/CF, including members of the senior, as well as the junior ranks.250 Some of these responses were:
 

  • Fear of reprisal if people tell the truth openly;
     
  • Protection of individual(s) which bring ethical issues forward particularly those issue(s) that question the behavior of superiors;
     
  • (1) lack of honesty, (2) personal integrity, (3) fear of retaliation;
     
  • Reprisal/Ostracization – if speaking out. No firm sense of reprisal protection;
     
  • Not discussing issues, ignoring negative solutions. Too many people afraid of being singled out if disturbing the chain of command for what they believe in;
     
  • No experience with this yet. However, retribution has always been an issue on any subject;
     
  • Reprisals which are not explicit and therefore impossible to address;
     
  • Fear of reprisal for taking a stand.
     

Strong sanctions against interference in the conduct of any complaint before the Ombudsman and for effecting any sort of retribution or reprisal against anyone who has made a complaint, are essential features for the Ombudsman’s operating framework.251 Provisions, which penalize retaliation after it has already occurred, are not sufficient by themselves. It must be considered that reprisal or retribution can be difficult to detect and difficult to prove. It can often be done subtly, such as by spreading rumors or making derogatory comments about someone’s character or often it can be disguised behind apparently legitimate motives.
 

In order to earn credibility and the trust of the members of the DND/CF, we need to actively protect against reprisals happening in the first place, by following a strict code of confidentiality. It is important to note that the need for confidentiality stems from the fear of future retaliation. Whether retaliation or retribution will actually occur if confidentiality is breached is not the issue, so much as there is a perception that it will occur. It is this perception that will prevent complainants from coming forward to the Ombudsman with their problems.
 

Our consultations with all ranks of the Canadian Forces and with civilian members of DND revealed clearly that if individuals feel that confidentiality will not be strictly adhered to and there is a potential that their identities may become known, they won’t complain. Consequently, if persons are afraid to turn to the Ombudsman, my Office as a mechanism for resolving injustice and unfairness will break down and become ineffective.
 

Effective Resolution of Complaints

Confidentiality is required in order for the Ombudsman to be an effective tool for solving problems. Investigation or fact gathering will be a key component in resolving many of the complaints made to my Office. It is important that I be able to rely on the cooperation of those persons who possess information, which may be required to resolve a particular complaint. Much time and effort will be saved, where all parties are comfortable with providing my Office with information in a free flowing and frank manner. Furthermore, in order to resolve problems informally and at the lowest possible level, I must be able to rely on the credibility of my Office and my powers of persuasion. This implies that I must be able to frankly discuss matters both with the individuals who claim they have been wronged and with the authorities.252
 

This free flow of information is most likely to occur, where I can provide assurance that the information provided will remain confidential unless disclosure is required to further the investigation of the matter or to support a finding or recommendation. However where the problem is resolved quickly and informally to everyone’s satisfaction, confidentiality of the information provided to my Office can be preserved.
 

Table of Contents
 

Implementation

Internal Issues

For confidentiality to be a truth, rather than be seen by stakeholders as an empty promise, I must be free to establish strict and clear procedures, which must be followed at all stages of the handling of complaints. I must also be given sufficient protections in my enabling authority. These procedures and protections will include:
 

  • Oaths of Secrecy and Confidentiality;
     
  • Procedures for the Taking of Complaints and Handling of Information;
     
  • Clear Policies Outlining When Information May and May not be Disclosed;
     
  • Provision for the Retention and Storage of Files;
     
  • Establishment of an Access to Information and Privacy Coordinator for the Ombudsman’s Office.
     
Oath of Secrecy and Confidentiality

In order to instill confidence in the confidentiality of information provided to myself and my staff, all members of my Office should be required to swear an oath of secrecy.253 In recognition of the fact that my Office will be dealing with confidential and sometimes very sensitive information, I have been afforded a level three security clearance. All members of my staff who are responsible for handling complaints and receiving information pertaining to cases will also be required to hold appropriate security clearances.
 

I therefore recommend that:
 

The Ombudsman and members of his staff should swear an oath of secrecy and confidentiality.
 

Procedures for Taking of Complaints and Handling of Information

Confidentiality requires that complaints be received and information be stored under circumstances that will ensure that no information is “leaked” either through advertent or inadvertent action. During the consultation process, much concern was expressed about the ability to keep complaints confidential. For example, we were asked if the Office would be using caller ID or whether persons could call in anonymously, out of fear that their identities may not be kept confidential.254 In order to allay these fears strict safeguards must be put in place and followed in my Office’s day to day operations. We were also advised during the consultation process that the Ombudsman’s staff must be cognizant and must alert complainants that confidential information should not be faxed unless a secure line is available and that the confidentiality of e-mail may be compromised.255
 

Provisions must also be put in place to ensure that all potential complainants can have unfettered confidential access to my Office. A letter to the Ombudsman from a person who resides on any Canadian Forces Base, Wing or Formation, or who is deployed by the Canadian Forces or who is in detention, incarceration or hospitalized must be required to be forwarded immediately to the Ombudsman, unopened and unread. The same treatment must also be accorded to any correspondence from my Office to any such person. Telephone calls between such persons and any member of my Office must also be confidential and not subject to interception or monitoring. Furthermore, any communications between my Office and complainants should not be covered or counted under any restrictions on the right to send letters or other documents or receive or make telephone calls.256 Severe sanctions should follow against anyone who opens mail or takes any other action to intrude upon the confidentiality of communications between another person and my Office.
 

I therefore recommend that:
 

Correspondence from any person who resides on any CF base, wing or formation, who is deployed by the CF or who is in detention, incarceration or hospitalized must be forwarded immediately to the Ombudsman, unopened and unread. The same treatment must be accorded any correspondence flowing from the Ombudsman’s Office to such persons. All communications, including e-mail, telephone and cellular phone communications, between such persons and the Ombudsman or any member of his staff must be treated as confidential and not subject to interception.
 

Communications between the Ombudsman and any person should not be covered or counted under any restrictions on that person’s right to send letters or other documents or to receive or make telephone calls.
 

Severe sanctions should follow against anyone who opens correspondence or takes any other action to intrude on the confidentiality of communications between another person and the Ombudsman.
 

Strict procedures should be put in place in the Ombudsman’s Office to ensure confidential handling of all complaints including all documentation provided to the Ombudsman’s Office in the course of dealing with a complaint.
 

Mechanisms should also be created to ensure that all records of internal and external communications to or by the Ombudsman or his staff are not accessible to anyone outside of the Office including the DND. This should include all records of internal and external phone calls, e-mails and cellular phone communications.
 

In order to provide completely confidential access to my Office, it is likely that a separate computer system with e-mail will have to be established, outside of the existing DND/CF computer network. At present, the computer system provided to my Office through DND is not secure or confidential and in fact contains the following warning:
 

This computer/network is a DND/CF resource intended for official purposes only. Please note that there shall be no assumption of privacy and that users are subject to monitoring at any time. This network is approved for processing up to “Protected A” information only. Click on this window to accept these terms. 257 (Emphasis added)
 

Persons who wish to contact my Office must be able to do so without being subject to any monitoring and all of my Office’s computer files must not be subject to access by any outside source including the DND/CF.
 

I therefore recommend that:
 

In addition to having access to the DND/CF computer systems, the Ombudsman’s Office should have a separate computer system by which complainants can access the office. This system should not be subject to monitoring and its files must not be accessible by any outside source including the DND/CF.
 

Clear Policies Outlining When Information May and May Not Be Disclosed

An assurance of confidentiality requires that all information including notes and records received during the course of taking a complaint and in investigating and resolving complaints be kept confidential. Furthermore, the circumstances in which such information may be disclosed must be clearly delineated. All investigations and inquiries, conducted by my Office, should be conducted in private. All members of my Office must be bound not to disclose any matter coming to their attention except in so far as is necessary for the purpose of investigating or resolving a complaint or to substantiate the findings or recommendations of the Ombudsman in a particular case.258
 

This approach was endorsed by the Committee on the Concept of a Federal Ombudsman, which concluded that:
 

The ombudsman and each member of his staff should be bound not to disclose any matter except in so far as is necessary for the purposes of investigation or to substantiate the findings or recommendations of the ombudsman in a particular case. In applying the exception, the ombudsman and his staff should be obligated to take every reasonable precaution to avoid revealing personal information and other sensitive matters. In this regard the legislation should be guided by s. 60(2) of the Canadian Human Rights Act and such additional exemptions as may be incorporated in any freedom of information legislation, if these are judged appropriate.259
 

Because of the over-riding concern about the potential for retribution or retaliation, disclosure of the identity of the complainant should be avoided. This protection should extend to cover any information, which in the opinion of my Office may serve to identify the complainant. As was noted during the consultation process, even if names are crossed out, in many situations complainants will still be identifiable.260 The need to ensure that the identity of individual complainants is fully protected was felt to be of particular concern in cases where supervisors will have direct access to complainants.261
 

In many cases, the investigation and/or resolution of a complaint will result in the identity of the complainant being revealed. In such cases, the complainant should be notified prior to any steps being taken to follow-up on the complaint. My staff must also consult with the complainant on any options, which may avoid or minimize the extent of disclosure of such information.
 

I therefore recommend that:
 

All investigations conducted by the Ombudsman’s Office should be conducted in private.
 

The Ombudsman and members of his staff should be bound not to disclose any matter coming to the Ombudsman’s attention except in so far as is necessary for the purpose of an investigation or to substantiate findings or recommendations of the Ombudsman in a particular case.
 

Provision for Retention and Storage of Closed Files

No persons other than members of my Office should have access to information contained in the Ombudsman’s files. All files should be stored under circumstances in which confidentiality can be assured. Clear provisions must exist to prohibit public access to areas where files are stored. Access to electronic records of Ombudsman’s cases, including telephone records must also be restricted to members of my Office only. I must also be free to establish guidelines for the destruction of closed files, once a certain period of time has elapsed.262
 

I therefore recommend that:
 

The Ombudsman should be free to establish clear policies for the confidential storage and retention of case files and all records in possession of the Office, including telephone records. The Ombudsman should also be free to establish clear guidelines for the destruction of closed files, after specific periods of time have elapsed.
 

Establishment of an Access to Information and Privacy Coordinator for the Ombudsman's Office

Currently, requests for access to information in the hands of the Ombudsman’s Office are handled through the DND/CF Access to Information and Privacy Coordinator. As my Office moves towards becoming operational, however, the time involved in responding to Access to Information Act and Privacy Act requests and complaints will increase until I am exempt from this legislation.263 Dealing with such requests will also require the development of expertise and experience to meet the unique needs of my Office. The review of documents and the ultimate determination of whether access to information exemptions apply, must be restricted to members of my staff, in order to ensure confidentiality and neutrality. There is also potential that confidentiality may be compromised if my staff is required to provide the DND/CF members (who serve in the DND/CF Access to Information and Privacy Coordinator’s Office) with access to and/or copies of complaint files, for purposes of review and response to access and privacy requests. Furthermore, if the ultimate decision regarding exemptions and the release of information from my Office is placed in the hands of DND/CF personnel, the independence of my Office is clearly compromised.
 

I must be free to appoint an Access to Information and Privacy Coordinator as part of my staff. Access to Information Act and Privacy Act requests should be handled within my Office. My staff will be free to consult the DND Access to Information and Privacy section and DND Legal Counsel whenever advice is required. The ultimate review of documents and decisions about the release of information must however lie with my Office.
 

I therefore recommend that:
 

Until such time as the Ombudsman’s Office obtains an exemption from the Access to Information and Privacy Acts, the Ombudsman may establish a Co-ordinator for Access to Information and Privacy Act requests separate from the DND/CF Access to Information Co-ordinator.
 

Table of Contents
 

External Issues
Exemption from the Access to Information Act

The purpose of the Access to Information Act is to provide a right of access to all records under the control of government, in accordance with the principle that government information should be available to the public and that necessary exceptions should be clearly delineated and specific.264 Under the Access to Information Act, any person who is a Canadian citizen or a permanent resident, can access any record under the control of a government institution, unless the information contained in the record falls within one of the enumerated exceptions of the Act.265 Government institutions which are bound by the Act are listed in Schedule I of the Act. Given that my Office falls within the Department of National Defence, which is listed as a government institution in Schedule I of the Act, my Office will be subject to the application of the Act, unless specifically exempted.
 

In order for my Office to be in a position to offer a complete assurance of confidentiality for complainants and those subject to investigation, an exemption from the requirement to disclose information pursuant to requests under the Access to Information Act is required. During the consultation process, numerous concerns were expressed that an exemption from the Access to Information Act was mandatory in order to ensure confidentiality. During our meeting with Lt.-Col. Pellicano, who was involved in the evolution of my Office, he indicated that he recognizes that my Office is subject to Access to Information legislation. He also indicated that he realizes that this is inconsistent with one of the functions of the Ombudsman, recognized by the Doshen Paper #1, which was confidentiality. Lt.-Col. Pellicano specifically recognizes that this is a problem, as he questions whether a junior member would want to access the Ombudsman, under such circumstances.266
 

It was clearly felt by those members of the DND/CF and many of the others we consulted, that if the Ombudsman were not exempt from the application of the Access to Information Act, this would “impair the integrity of the complaint process and the investigation of complaints:”267
 

  • Will my complaint be accessible through access to information? (Meeting at Combat Training Centre, CFB Gagetown, October 29, 1998)
     
  • If you are not exempt from the Access to Information Act we foresee two problems: All your office will be doing is dealing with ATI requests; You will have no credibility if you cannot offer confidentiality. (Coffee at RA Park, LFAA, Halifax, October 28, 1998)
     
  • Need Access to Information exemption. Will your office give information if I make a complaint and my supervisor wants to look at it? You must offer protection. (Visit to 36 GCB, LFAA, Halifax, October 28, 1998)
     
  • Your office needs to be confidential and exempt from the Access to Information Act and the Privacy Act, also you cannot be forced to report back to anyone. (Luncheon, NATO, Brussels, November 4, 1998)
     
  • You need not to be submitted to the Access to Information Act. (Meeting with Me Daniel Jacoby, Q.C., Québec Ombudsman, August 19, 1998)
     

Although the values of transparency and accessibility, which are reflected in the Act are fundamental to a democratic society, the Act itself recognizes that there are certain enumerated and specific exceptions that need to be made for the good of society as a whole. In the case of the Ombudsman’s Office, it is submitted that the need for the elimination of injustice, inequality and unfair treatment should be given precedence over specific individual rights to access information contained in the Ombudsman’s files.
 

Specifically delineated exceptions from the application of the Act, will not hinder the overall transparency and accountability of the Ombudsman’s Office, as will be outlined later in this report. Furthermore, without an exemption to the Act, it is unfair and misleading to promise potential complainants that their complaints will be kept confidential. As the Assistant Director General of the Investigations Branch for the Official Languages Commissioner notes, he is placed in the awkward position of having to advise individuals that the office guarantees confidentiality but at the same time telling them that anyone can access their file.268 My Office will not be able to ensure confidentiality of its files when anyone, including the person who is the subject of the complaint, will be able to access information contained in the file under the Access to Information Act.
 

In recognition that there will be specific instances in which exceptions must be made to individual rights to access government information, the Act delineates a number of instances in which government offices can claim exemptions. These exceptions reflect the principle that in some cases the ability of government to perform important and legitimate functions for the good of the whole will conflict with the individual’s need to have access to government information. Where these two needs conflict, the good of society as a whole is given precedence by setting out specific exemptions in the Act, to allow government to perform certain functions free from access to information requests.
 

In order to assure all complainants that their complaint and any ensuing investigation will truly be kept confidential, my Office requires an exemption from mandatory disclosure pursuant to the Access to Information Act. If the Ombudsman is forced to assess each file on a case-by-case basis whenever there is a request and demonstrate that each particular file falls within an exemption under the Act, complainants will not be sufficiently assured that the confidentiality of their particular file is protected. Requiring a detailed review of relevant files every time an access to information request is received will also be extremely time consuming and costly. Valuable staff resources will be required to review large amounts of material and analyze whether each line qualifies for an exemption to the Act. Any release of information, which directly or indirectly leads to a complainant being identified, could also result in severe consequences of reprisal or retribution.
 

Inadequacy of Existing Exemptions

Section 17 of the Access to Information Act

Under section 17 of the Access to Information Act, the head of a government institution may refuse to disclose any record requested under the Act, which contains information, which if disclosed, could reasonably be expected to threaten the safety of individuals. Although there may be an argument on a case-by-case basis, that information contained in some complaints could fall within this exception under some circumstances, it is recommended that all complaints and investigations be protected from disclosure. This is especially important given that a direct threat to the safety of the individual may be difficult to assess, especially prior to the disclosure of any particular information.
 

Section 19 of the Access to Information Act

Section 19 of the Access to Information Act, provides that the head of a government institution shall refuse to disclose any record requested under the Act which contains personal information as defined in section 3 of the Privacy Act. Subsection 19(2) provides for disclosure of such information only where the individual to whom the information relates consents, it is publicly available or is in accordance with section 8 of the Privacy Act, which allows for disclosure of personal information in a number of specifically delineated circumstances.
 

Reliance upon section 19 of the Access to Information Act and editing complaints to remove personal information, is also an insufficient and inadequate method of ensuring confidentiality of complaints and investigations conducted by the Ombudsman’s Office. This exemption would require each file to be purged of personal information every time a request is received, which would be extremely time consuming. More importantly however, merely editing personal information in responding to access requests greatly erodes the degree to which my staff can assure complainants and those consulted during investigations, that the information, which they provide to the Ombudsman, will be kept confidential.
 

The limitations of relying solely on the section 19 exemption as the basis for confidentiality of complaints can be seen when one looks specifically at section 3 of the Privacy Act, which defines personal information. Throughout the consultation process, concerns were expressed that the editing of names and other personal information from records of complaints was not sufficient to ensure confidentiality and protect persons from reprisal or retribution. The person about whom the complaint is made will likely be sufficiently familiar with the complainant that they can identify them based solely on the content of their complaint.
 

Section 16(1)(a) of the Access to Information Act

Section 16(1)(a) of the Act provides an exemption for information obtained or prepared by a government institution, which is an investigative body specified in the regulations, in the course of lawful investigations pertaining to the detection, prevention or suppression of crime or the enforcement of any law of Canada or province. This exemption applies where the record is less than 20 years old. Bodies which are exempt under section 16(1)(a) and pursuant to the Access to Information Regulations, include the Canadian Forces Military Police, the Director of Investigations and Research for the Department of Consumer and Corporate Affairs, the Royal Canadian Mounted Police and the Special Investigations Unit of the Department of National Defence (now the National Investigation Service).269
 

An exemption under section 16(1)(a) of the Act would require an amendment by the Governor in Council to section 9 and Schedule I of the Access to Information Regulations, to specify my Office as an investigative body. Amendments to the regulations, for purposes of section 16(1)(a), are done by the Governor in Council on recommendation by the Minister of Justice.
 

One of the criteria for such a recommendation, includes that the main work of the body seeking the exemption must be connected with investigations relating to the enforcement of one or more federal statues or a specific issue of concern to the government. The investigations must also be of a criminal or quasi-criminal nature,270 which is not the type of investigation I expect my Office would normally be conducting.
 

Given the specific wording of section 16(1)(a), an exemption under this section may also prove too specific and limited to cover the all of the types of investigations carried out by the Ombudsman’s office.
 

Suitable Options

Recognizing the Ombudsman as a Separate Entity from the DND

The most preferable option to ensure confidentiality for my Office’s files would be to exclude my Office from the application of the Act in its totality. If my Office were not included in any of the government institutions listed in Schedule I of the Act, it would not be subject to any of the provisions of the Act and thus specific exemptions would not need to be fashioned.271 This option would require that my Office be recognized as a separate entity, apart from the DND, which is specified as a government institution in Schedule I of the Act and is thus subject to the application of the Act. In order to this achieve this status for my Office, it is likely that a separate piece of legislation recognizing my Office as an independent body, apart from the DND, would be required. As this recommendation appears not to be in keeping with the public policy parameters, which have been set for my Office, it may unfortunately not be a viable option at this time.
 

Section 24 of the Access to Information Act

A stronger and more comprehensive exemption from disclosure (than those contained in sections 17, 19 or section 16(1)(a) of the Act) could be achieved through the application of section 24 of the Act. This section allows for a head of a government institution to refuse to disclose any record requested under the Act which contains information, the disclosure of which is restricted by a legislative provision set out in Schedule II of the Act.272 In order to bring my Office within the protection of section 24 of the Act, a specific legislative provision would be required, declaring that information received and produced by my Office is confidential. An amendment to schedule II of the Access to Information Act, adding this provision to the schedule of legislative exemptions, would also be required.
 

Section 16(1)(c) of the Access to Information Act

The application of section 16(1)(c) could serve to a limited extent and as the least desirable option to meet the need for assuring confidentiality of cases brought forward to my Office. Section 16(1)(c) would exempt from disclosure any information, which could reasonably be expected to be injurious to the enforcement of any law of Canada or a province and also to the conduct of any lawful investigation. This section specifically requires the application of an “injury” test. This would require that in each case where an access request was made, an argument must successfully be put forward to show that the disclosure of the information sought would be injurious to the enforcement of a law or the conduct of a lawful investigation. It is important to note that recent court decisions on the application of section 16(1)(c) have served to further restrict the availability of this exemption. The Federal Court of Appeal has taken the view that section 16(1)(c) does not protect information unless its disclosure would harm an ongoing or imminent investigation.273 The court has held that this section cannot be relied upon in cases where disclosure is sought to be denied on the basis of protecting the investigative process, where the concern is that disclosure would harm future investigations or have a chilling effect on such.274 For my Office to be eligible to claim an exemption under section 16(1)(c), an amendment would be required to section 10 and Schedule II of the Access to Information Regulations or my Office must have specific and enumerated powers of investigation provided for in a legislative scheme pursuant to the National Defence Act.
 

Another limit to both the section 16(a) and section 16(c) exemptions of the Act is that they only cover information which was obtained “pursuant to an investigation” or which may be injurious to the enforcement of a law or the conduct of an investigation. Where a complaint is received by the Ombudsman and jurisdiction is declined, it is unlikely that section 16 would apply.
 

I therefore recommend that:
 

The necessary legislative steps required to bring my Office within the exemption accorded by section 24 of the Access to Information Act should be taken. In the alternative, the necessary legislative or regulatory steps should be taken to bring my Office within the exemption provided by section 16(1)(c) of the Act.
 

Exemption from the Privacy Act

Under section 12(1) of the Privacy Act, an individual who is a citizen or a permanent resident has the right to access personal information about themselves, which is in the hands of the government. The potential impact of such access requests on my Office and it’s ability to ensure confidentiality must be viewed in light of the definition of “personal information”, contained in section 3 of the Act. Personal information is broadly defined to include such things as (g) “the views or opinions of another individual about the individual”. Information obtained by my Office during it’s investigation of complaints, may include personal information in relation to various individuals. Consideration must also be given to the need for exemption from access requests under the Privacy Act. In order for assurances of confidentiality to be real and effective, access to information obtained from complainants and during investigations must be restricted from all avenues. An individual who cannot obtain disclosure of information under the Access to Information Act, may attempt to access personal information gathered about themselves during the investigation of a complaint by way of a request under the Privacy Act. Individuals may attempt to access such information in an attempt to try and identify the complainant. Although the identity of the complainant may already be known by the subject of the complaint or may become known during the course of an investigation, there may be situations where this is not the case. For example, there may be instances where an investigation is not pursued or is discontinued and no recommendations are made, at the request of the complainant, out of fear of their identity becoming known and fear of potential reprisals. Allowing for disclosure of information in such circumstances, would severely impact on the willingness of individuals to be frank and forthright with my staff during the course of their investigations.
 

I therefore recommend that:

All necessary legislative or regulatory steps be taken to bring my Office within available exemptions to the disclosure of information under the Privacy Act.
 

Protection Against Compelled Disclosure of Confidential Information

For the promise of confidentiality to be fulfilled, information in the possession of my Office needs to be protected from compelled disclosure. Whether through a subpoena issued to myself or my staff or through compelled disclosure pursuant to access to information legislation, once my Office can be required to disclose information contained in our case files, any assurance of “confidentiality” becomes illusory.
 

In order to safeguard both the appearance and the practice of neutrality and confidentiality, Ombudsmen should resist appearing as a witness in any judicial or quasi-judicial proceedings on behalf of any party including complainants and their employer.275
 

Protection against subpoena is the best means of ensuring that confidentiality remains intact and preventing the Ombudsman and current and former staff from being used as tools of discovery.276 The privilege of confidentiality, which attaches to information provided to the Ombudsman, belongs to the Ombudsman and not to the complainant or any other party. The Ombudsman is not an advocate for complainants and the interests of the Ombudsman and the complainant will not always be the same. As an independent third party, I have a duty not to disclose any information provided to my Office, except in accordance with clearly delineated guidelines, regardless of whose interests such disclosure would serve. The Ombudsman must not allow himself to be used as a witness or a tool of discovery by any party.
 

The Ombudsman Association (TOA), notes that many Organizational Ombudsmen have agreements with their employers that the employer will not call the ombudsperson in their own defence. These types of agreements, however, do not completely protect the Ombudsman or his staff from being compelled to testify or to produce documents in any judicial or quasi-judicial proceedings. Such agreements clearly impinge upon the neutrality and independence that an Organizational Ombudsman must have from its employer. Practically, they serve to place the confidentiality of the Ombudsman’s records in the hands of the employer, who could waive the informal agreement at any time or in any particular case. Furthermore, in the context of the DND/CF, where there is much skepticism surrounding the ability of government officials and the chain of command to respect confidentiality, potential complainants are unlikely to feel assured that the such an agreement would be abided by in all cases. An informal agreement between my Office and the Minister that I would not be compelled to testify or produce documents on behalf of the government in any proceeding, will not prevent any other party including a complainant or someone who has been complained about, from issuing a subpoena to myself or a member of my staff.
 

A specific provision must be made in my Office’s enabling authority, stating that no Ombudsman or any present or former member of his staff, shall be called to give evidence or produce documents in any court or any proceedings of a quasi-judicial or administrative nature, in respect of anything coming to their knowledge in the course of carrying out their duties.277 This approach was reviewed and recommended by the Committee on the Concept of a Federal Ombudsman, which concluded that:
 

As already indicated, the Committee believes that an ombudsman and his staff should be under an obligation to protect information they acquire in the course of their duties, except as may be necessary to investigate a case or substantiate a recommendation. However, there remains the possibility that they might be forced to reveal confidential information in a court action or be subject to contempt of court. To avoid this, and thus to ensure their ability to obtain full and frank information from officials and the production of necessary documents, legislation creating the office of an ombudsman should declare that the Ombudsman and his staff are not competent or compellable witnesses regarding any matter brought to their knowledge in the exercise of their function.278
 

I therefore recommend that:
 

The National Defence Act should be amended to declare that the Ombudsman and any member of his staff are exempt from being compelled to testify or to produce documents in any judicial or quasi-judicial or administrative proceeding, except where required for the prosecution of anyone for interfering with an Ombudsman’s investigation, for providing false or misleading information to the Ombudsman or for enacting a reprisal on anyone who makes a complaint to the Ombudsman or for perjury.
 

In the alternative, a regulation should be passed pursuant to the National Defence Act to declare that the Ombudsman and any member of his staff are exempt from being compelled to testify or to produce documents in any judicial or quasi-judicial or administrative proceeding, except where required for the prosecution of anyone for interfering with an Ombudsman’s investigation, for providing false or misleading information to the Ombudsman or for enacting a reprisal on anyone who makes a complaint to the Ombudsman or for perjury.
 

Other Ombudsmen Models

Private Sector

Most “soft” Organizational Ombudsmen who deal with internal staff problems tend to do no formal investigations and write no case reports.279 The TOA maintains a code of ethics requiring strict confidentiality.280 However, since many practicing Organizational Ombudsmen in the private sector have no formal mechanisms to protect confidentiality, they must shred their notes and do not keep any case files. They are constantly conscious of creating a record of any complaint they receive. The TOA advises students in its Ombuds 101 Course to get rid of all records according to a standard policy or procedure, because “once a subpoena arrives, you can’t touch the documents.”281
 

The American Express Organizational Ombudsperson advises that at American Express, “we shred everything”. We only keep notes and documents as long as they are absolutely needed. No files are kept except for generic information on demographics.282 The Harvard University Medical School Ombudsperson, tells complainants in sexual harassment cases “don’t tell me who it is or where it is, let’s just talk about the problem”. She does take notes during her interviews with complainants but she too has a shredder in her office and notes are shredded as soon as the meeting is over.283
 

Concordia University Ombudsman

The Terms of Reference of the Concordia University Ombudsman’s office state that should the pursuit of any inquiry necessitate the disclosure of details that identify an applicant, the applicant shall be informed. Disclosure is limited to “those who need to know”. Further, should an applicant withdraw an application to protect his or her anonymity, the Ombudsman shall respect this decision. The Terms of Reference also provide that the Ombudsman shall respect the confidentiality of any confidential information or materials which they have access to and confidentiality of the applicant must be respected in all of their reports.
 

The terms of reference also provide that the Ombudsman shall maintain suitable records of complaints, findings and recommendations which shall be accessible only to the staff of the Ombuds office. However, such files shall be destroyed according to a retention schedule determined in accordance with provincial legislation.
 

TD “Between Us” Programme

This office maintains that confidentiality is the “cornerstone” of the office. As is the practice in many Organizational Ombudsman’s offices which do not have formal protections for confidentiality, they choose to protect confidentiality by not keeping notes or records of any complaints coming to the office and they avoid asking for names and specifics. They do not conduct any follow-ups and they rely on complainants to come and tell them if the matter has been dealt with. They admit that “complainants don’t always come back to tell us whether or not the situation/problem has been resolved”.284 Presumably since they do not keep notes or records, they have no way of ensuring on their own that a situation of injustice or unfairness has been remedied. This lack of formal protection for confidential complaints, has raised skepticism about the ability of such an office to actually ensure confidentiality. One participant at the Defence Ethics Conference remarked, after the TD "Between Us" presentation, that “They give lip service to confidentiality – how can they really protect complainants from management”?285
 

Public Sector

Provincial

The majority of provincial Ombudsmen offices have specific provisions in their enabling legislation to ensure that their assurances of confidentiality of complaints are in fact carried out.286 Provincial Ombudsmen are also exempt from the application of their respective provincial freedom of information acts. This exemption is achieved by either not listing the Ombudsman’s office in the schedule of bodies to which such legislation applies or by declaring the Ombudsman to be an “officer of the legislature”, which is exempt from such legislation.287
 

The Alberta Ombudsman commented in his 1997 Annual Report that:
 

In Alberta, the Freedom of Information and Privacy Commissioner has ruled that pursuant to section 4(1)(c) of the Freedom of Information and Privacy Act of Alberta, filed copies of Ombudsman’s records are excluded from the application of the Act and cannot be produced under the legislation.288
 

The Nova Scotia Ombudsman commented to my staff that “it is the issue of confidentiality that makes us effective. You can sit down with the MND and DM and they know it is confidential.” 289
 

The British Columbia Ombudsman also noted that she was not subject to the Freedom of Information and Protection of Privacy Act, as pursuant to section 3(1)(c) she is exempt, as an “officer of the legislature”. She commented to me that “you must get yourself into that FOI definition”. 290
 

The British Columbia Worker's Compensation Board (WBC) Ombudsman is not exempt from that province’s Freedom of Information and Protection of Privacy Act. The WCB Ombudsman notes that as a result their records are very “cryptic”. He commented to a member of my staff that “the exemption will determine whether or not you can sell confidentiality to your constituency. If you are not exempt – you’d be misrepresenting.” The WCB Ombudsman is lobbying for an exemption from the Act, as it is felt that “it’s violating the right of the complainant to come forward with any security”.291
 

Federal

Commissioner of Official Languages

The Commissioner is not exempt from the Access to Information Act, although investigations are done in private and are not published. Individuals are told that the office guarantees confidentiality but at the same time they are also told that someone can access their file! The inherent contradiction in this advice is obvious. The Assistant Director General of the Investigations Branch advised that he would take the option to be exempt from the Act. He conceded that “it is difficult getting collaboration during interviews because the results can be accessed”.292
 

Departmental Ombudsman for Foreign Affairs and International Trade

The Ombudsman for the Department of Foreign Affairs and International Trade has her own informal policy of confidentiality but has no formal protections. The Ombudsman will not acknowledge that someone has met with her and because she does not have formal protection for her records and she is subject to the Access to Information Act, she keeps as few records as possible. She frankly admits that if a complainant does not call her back or maintain contact, it’s hard to keep track of what happened because she does not keep detailed notes. Further, because of her lack of record keeping, she cannot offer any follow-up. Her notes are routinely destroyed after information is jotted down, in order to protect the confidentiality of complainants. Documentation is not retained because of the concern that it would have to be disclosed pursuant to an access request. She also admits that in serious complaints such as abuse of power or authority, neither the Ombudsman nor the complainant are comfortable putting information down on paper. People are often scared and do not want to pursue formal channels because confidentiality cannot be assured. 293
 

Department of Indian Affairs and Northern Development Ombudsman

The Ombudsman for the Department of Indian Affairs and Northern Development (DIAND) serves an informal role within the organization. She does not possess any investigative powers and views her role to be one of dissemination of information and to direct people to the right venues. Where she is asked to intervene, she will mediate in a non-threatening, non-confrontational manner.294
 

The DIAND Ombudsman related that she has over 131 active on-going files in her office. However, she admitted that she does not take notes during her first meeting and initial consultation with complainants because she cannot ensure confidentiality of her records. The inherent limitations in terms of follow-up and resolution of complaints under such conditions is obvious. The Ombudsman was very cognizant that everything which is recorded is available through the Access to Information Act. She sees the Act as directly stifling her capabilities as an Ombudsman: “it’s killing what I’m doing.”295
 

Office of the Correctional Investigator

The Correctional Investigator is bound to follow strict provisions for confidentiality of complaints and investigations under sections 182 and 183 of the Corrections and Conditional Release Act. The Act provides that neither the investigator, nor anyone acting on his behalf shall disclose any information that comes to their knowledge in the exercise of their powers or the performance of their functions. Specific exceptions for disclosure are provided, where such is necessary in the opinion of the Correctional Investigator to carry out an investigation or establish grounds for findings or recommendations. Disclosure is also permitted in the course of a prosecution for an offence under the Act or for perjury. The Act also requires that the Correctional Investigator and his staff take “every reasonable precaution to avoid the disclosure of, and shall not disclose” any information in specific delineated circumstances. These circumstances include situations where disclosure may result in a serious disruption to an inmate’s institutional or conditional release programme or result in physical or other harm to the inmate or any person.296 The Correctional Investigator is not exempt from the application of the Access to Information Act. The office recognizes however the constraints this places on confidentiality and is currently reviewing the applicability of exemptions under this legislation to their office (including the application of section 16 of the Act).
 

Office of the Information Commissioner and Office of the Privacy Commissioner

The Access to Information Act, contains strict provisions for confidentiality, to be followed by the office of the Information Commissioner, which are similar to those of Correctional Investigator’s office.297 The Information Commissioner takes the position even on an application for judicial review that, any party which challenges the Commissioner's recommendation is not entitled to have access to the Commission's investigative records and that the confidentiality of the office's investigative process must be respected.298 The Privacy Act also provides that that the investigation of a complaint made to the Privacy Commissioner shall be conducted in private.299 The Privacy Commissioner is not listed in the schedule of government institutions to which the Access to Information Act applies and as such, is not subject to the application of the Act.300
 

Military

Parliamentary Commissioner for the German Armed Forces

The German Parliamentary Commission for the German Armed Forces also has a strict policy of confidentiality. Article 9 of the Law on the Parliamentary Commissioner for the Armed Forces provides that where a commissioner takes action in response to a petition, it shall be left to his discretion to disclose the fact of a petition and the name of the petitioner. The Parliamentary Defence Force Commissioner must refrain from the disclosure if this is the wish of the petitioner and compliance with such a desire is not barred by legal duties. The Commissioner is obliged to maintain secrecy regarding matters that have come to his official knowledge even after his term of office has come to an end. However, he may disclose official communications or matters which are known to the general public or which, because they are unimportant, do not require secrecy. 301
 

Australian Defence Force Ombudsman

The Defence Force Ombudsman (DFO) of Australia also conducts investigations in private, in the interests of confidentiality. Under section 35 of the Ombudsman Act 1976 all officers, including the Ombudsman, must observe confidentiality. Section 35 prevents disclosure of any information by an officer or ex-officer except in specifically delineated circumstances.302 It should be noted however that the degree of confidentiality is limited to the extent that the Australian D.F.O. is not exempt from the application of Australia’s Freedom of Information Act. Specific exemptions can be claimed under the Act however, including an exemption for documents containing material obtained in confidence.303
 

Inspector General for the Netherlands

The Inspector General of the Netherlands Armed Forces follows working methods of “total independence”, “undisputed confidence” and “absolute confidentiality”. 304
 

Israeli Defence Force Soldiers' Complaints Commissioner

The Israeli Commissioner’s office follows a strict code of confidentiality where complaints are treated as “classified” information. The Commissioner’s reports refer only to case numbers and the names of units and soldiers involved in a complaint are withheld from reports.305
 

Table of Contents
 

Analysis

Once the safeguards which allow the protection of confidentiality are eroded, we are forced to limit ourselves in how we respond to complaints, in order to avoid betraying the confidence of complainants. To do this would erect barriers around my Office. An examination of Ombudsmen models which do not have exemptions from access to information legislation or other sufficient mechanisms to ensure confidentiality, reveals how the absence of these safeguards can severely compromise the ability of the Ombudsman to run an effective and credible office.
 

At first glance, it may seem surprising that Organizational Ombudsmen advocate the destruction of notes and case files. This practice is clearly a necessary evil for Canadian Ombudsmen who are subject to access to information legislation. However, if Ombudsmen are to follow through on their promises of confidentiality, in the absence of exemptions from the Access to Information Act, they are left with no other options. Without such promises and assurances it is unlikely that many persons would bring their problems forward. It is highly unlikely that the drafters of the Access to Information Act and the Privacy Act intended that this legislation interfere with individual rights of confidential access to an Ombudsman or with the ability of an Ombudsman to protect the interests of justice and fairness. It is clearly undesirable that an office, whose mandate is to serve members of the public by finding just and equitable solutions to problems, be reduced to shredding documents in order to ensure confidentiality. The strength, accessibility and ultimate credibility of my Office will depend on the measure of confidentiality I will be able to provide for my constituency. Shredding notes and destroying documents is quite simply an insufficient and inadequate method to achieve the measure of confidentiality, which is both expected and required of my Office.
 

The practice of routinely shredding notes, refusing to retain documents or case files and deliberately refusing to seek details about complaints, also clearly hampers the ability of an Ombudsman to effectively and professionally pursue the resolution of complaints. It has been estimated that the DND/CF Ombudsman's Office will receive in the vicinity of 8,000 contacts in its first year of operations. It is unrealistic and impossible to expect that any of these complaints can be handled in an effective and fair fashion if no case files are kept and all notes are shredded. At the same time however, it is equally unfair to promise complainants confidential handling of complaints when their files will be subject to review by anyone who makes an access to information or privacy request and can be subject to subpoena in any court proceeding.
 

The relationship between keeping proper documentation and note-taking and conducting a fair review process, was highlighted in the Auditor General's report on the CHRC. The report assessed the CHRC investigation procedures to determine whether it was adhering to its own standards, by randomly reviewing 50 complaint files handled by the Commission. The report noted that key documents were often not completed by investigators and that the results of key discussions between investigators and supervisors, as well as of telephone discussions and interviews with the parties, often were not recorded in files. As a result of this review, the Auditor General expressed concern that the CHRC was not consistently adhering to some of it’s key standards designed to ensure the quality of investigations.306
 

In addition, the practice of shredding documents violates the spirit and intent of the Access to Information Act. The deliberate destruction of documents to avoid the operation of the Act, will be subject to penalty, pending the passage of Bill C-208 in the House of Commons. 307 This bill proposes to specifically deem that it is an offence to destroy, mutilate or alter a record, falsify a record or make a false record or to conceal a record or to cause anyone else to do these things, with the intent to deny a right of access under the Act. Such an offence would be punishable by up to two years imprisonment and/or a fine not exceeding $10,000 on proceeding by indictment.
 

In order to be credible, I fully recognize that my Office must be transparent and subject to public scrutiny, while at the same time confidentiality of complainants must be ensured. Exemptions from access to information and privacy legislation and subpoena, as well as other mechanisms to protect the confidentiality of individual complaints, will not impede the overall transparency of my Office. My regular reports to you will shed light on problems and issues brought to the attention of my Office, including information on statistics as to the number of complaints, the type of complaints received and how they were resolved. If there is any concern that strict safeguards for confidentiality may impair the transparency of my Office, one only need to refer to the annual reports of any of our provincial Ombudsmen. All of these offices are highly respected and transparent organizations despite the strict protections of confidentiality they have in place.
 
____________________

235. Setting Up an Ombudsman Office: A Checklist (Basic Principles, Statutory Provisions, Organization and Practices), supra, note 2 at para. 7.1.2.
 

236. The Doshen Paper # 1, supra, note 19, at page 34.
 

237. Ibid, at page 51.
 

238. Ibid.
 

239. A Commitment to Change: Report on the Recommendations of the Somalia Commission of Inquiry, supra, note 39 at pages 8 and 16.
 

240. Meeting with NCM Reserve MP Edmonton, September 2, 1998.
 

241. Meeting PMC’s Officer’s Mess, Land Forces Halifax, October 26, 1998.
 

242. Correspondence from The Honourable Art Eggleton, P.C., M.P., Minister of National Defence to Ombudsman, Me André Marin, September 8, 1998.
 

243. Mr. Wendall Jones, Ombudsman, Sandia National Laboratories, Presentation on Confidentiality, supra, note 212.
 

244. Meeting with Wing Personnel Support Section 4 Wing, Cold Lake, September 15, 1998.
 

245. Meeting with Commanding Officer at SHAPE, Belgium, November 5, 1998.
 

246. CLFCSC Students, Fort Frontenac Mess, August 25, 1998.
 

247. For more examples, see Summary of Results of Focus Group Discussions, CFPARU Sponsor Research Project Report 95-1, “Problems Voicing Complaints: 2. Informal Reprisals Against Grievers”, Contained in Annex C of the Doshen Paper #1, supra, note 19 at pages 25/37 to 37/37.
 

248. 1998 Defence Ethics Conference, Conference Results – Speaking Notes. It should be noted that ten percent of the respondents indicated no response or that they didn’t know or were unsure.
 

249. Ibid. Some conference participants recommended more lower level participation or conferences for lower ranks.
 

250. Ibid. See also: Defence Ethics Risk Survey Responses, Question 7.
 

251. For further discussion on this point, see Chapter 4 under sub-heading "Protection from Reprisal" at page 173 of this Report.
 

252. Setting Up and Office: A Checklist (Basic Principles, Statutory Provisions, Organization and Practices), supra, note 2, at para. 7.1.2.
 

253. Report of the Committee on the Concept of the Ombudsman, supra, note 43; British Columbia's Ombudsman Act, supra, note 148, s. 9(1)(2); New Brunswick Ombudsman Act; supra, note 148, s. 17(1); Ontario's Ombudsman Act, supra, note 148, s. 12(1)(2).
 

254. Meeting with Junior Ranks, CFB Gander, October 6, 1998.
 

255. Meeting with Senior Officer, Edmonton Land Forces Hospital, September 2, 1998.
 

256. See also: Corrections and Conditional Release Act, supra, note 72, s. 184; Alberta's Ombudsman Act, supra, note 148 s. 13; British Columbia's Ombudsman Act, supra, note 148 s. 12(3); New Brunswick's Ombudsman Act, supra, note 148 s. 13(4); Ontario's Ombudsman Act, supra, note 148, s. 16.
 

257. Warning as it currently appears on our computer network.
 

258. Report of the Committee on the Concept of the Ombudsman, supra, note 43.
 

259. Ibid. at page 50.
 

260. Meeting with ADM (Pol & Com) at NDHQ, August 17, 1998.
 

261. Ibid.
 

262. See for example: Alberta's Ombudsman Act, supra, note 148, s. 29.
 

263. See specifically sub-heading "Exemption from Access to Information Act" at page 111 of this Report.
 

264. Access to Information Act, supra, note 231, s. 2(1).
 

265. Ibid.
 

266. Meeting with Lt.-Col. Pellicano, DPCR, November 18, 1998.
 

267. Meeting with NCM Reserve MP Edmonton, September 2, 1998. See also: Meeting with ADM (Pol & Com) at NDHQ, August 17, 1998; Meeting with Senior Officer, Land Forces Western Area, Edmonton, September 1, 1998.
 

268. Meeting with Mr. Gilbert Langelier, Assistant Direct General Investigations Branch, Office of the Commissioner of Official Languages, August 18, 1998.
 

269. Access to Information Act Regulations, s. 9 and Schedule I.
 

270. Investigative Body Designation: Procedure and Questionnaire, s. 16(1)(a) Access to Information and s. 22(1)(a) Privacy Acts, Department of Justice, Information Law and Privacy Section.
 

271. Office of the Privacy Commissioner, for example, is not listed as a Government Institution for purposes of Schedule I and is thus not subject to the application of the Act. On this point, see also: Meeting with Mr. Julien Delisle, Executive Director, Privacy Commissioner of Canada, December 1998.
 

272. See for example the Canadian Human Rights Act, R.S.C. 1985, c.H-6, s. 47(3) which provides that information received by a conciliator in the course of attempting to reach a settlement of a complaint is confidential and may not be disclosed except on consent.
 

273. Rubin v. Canada (Minister of Transport), [1997] F.C.J. 1614 (C.A.). See also: Information Commissioner of Canada and the Privacy Commissioner of Canada v. Chairperson of the Immigration and Refugee Board (December 24, 197) (Federal Court of Canada, Trial Division); and see Information Commissioner Annual Report 1997-1998, supra, note 145 at pages 33 and 39.
 

274. Ibid.
 

275. Options Functions and Skills: What an Organizational Ombudsperson Might Want to Know, supra, note 49, at page 2.
 

276. Ombudsman Legislative Resource Document, supra, note150.
 

277. See Access to Information Act, supra, note 231, s. 65; Corrections and Conditional Release Act, supra, note 72 s. 189; British Columbia's Ombudsman Act, supra, note 148, s. 9(5); New Brunswick's Ombudsman Act, supra, note 148, s. 24(2); Ontario's Ombudsman Act, supra, note 148, s. 24(2); Alberta's Ombudsman Act, supra, note 148, s. 24(2). Alberta's Ombudsman Act however, does provide that the Ombudsman and his staff are compellable at a public inquiry (see s. 22 and s. 23).
 

278. Report of the Committee on the Concept of the Ombudsman, supra, note 43, at page 51.
 

279. Options, Functions and Skills: What an Organizational Ombudsperson Might Want to Know, supra, note 49.
 

280. The Ombudsman Association Code of Ethics. See also: Notes from The Ombudsman Association (T.O.A.), Ombudsman 101 Course, October 21-23, 1998.
 

281. Wendall Jones, Ombudsman, Sandia National Laboratories, The Ombudsman Association (TOA), Ombuds 101 Course, Presentation on Confidentiality, supra, note 212.
 

282. Wendy Friede, American Express Ombudsman, The Ombudsman Association (TOA), Ombuds 101 Conference, Presentation on Operating an Ombudsman’s Office, American Express Ombudsman, October 21-23, 1998.
 

283. Linda Wilcox, Ombudsperson, Harvard Medical School, The Ombudsman Association (TOA), Ombuds 101 Course, Presentation on Skilled Listening As a Neutral, October 21-23, 1998.
 

284. Presentation by TD “Between Us” Programme Counsellors at the Defence Ethics Conference, October 22, 1998.
 

285. Ibid.
 

286. See: Alberta's Ombudsman Act, supra, note 148, s. 19; British Columbia's Ombudsman Act, supra, note 148, s. 9(6)(7); Ontario's Ombudsman Act, supra, note 148, s. 18(2).
 

287. British Columbia's Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c.165, and Schedule I of the Act; Meeting with Mr. Barry E. Tuckett, Manitoba Ombudsman, September 16, 1998; Meeting with Legal Staff of the Ontario Ombudsman’s Office, September 9, 1998. See also: The Ontario Ombudsman’s Office Complaints Resolution Manual, June 1998; Meeting with Mr. Douglas Ruck, Q.C., Nova Scotia Ombudsman, October 28, 1998. Telephone Interview with Ms. Ellen King, New Brunswick Ombudsman, by a member of my staff, December 16, 1998; Meeting with Me Daniel Jacoby, Q.C., Protecteur du citoyen du Québec, August 19, 1998.
 

288. Alberta Ombudsman, 31st Annual Report, supra, note 145 at page 6; Meeting with Mr. Scott Sutton, Alberta Ombudsman, September 4, 1998.
 

289. Meeting with Mr. Douglas Ruck, Q.C., Nova Scotia Ombudsman, October 28, 1998.
 

290. Meeting with Ms. Dulcie McCallum, British Columbia Ombudsman, September 2, 1998.
 

291. Telephone interview with Mr. Peter Hopkins, British Columbia Worker’s Compensation Ombudsman, by a member of my staff December 16, 1998.
 

292. Meeting with Mr. Gilbert Langelier, Assistant Director General, Investigations Branch, Office of the Commissioner of Official Languages, August 18, 1998.
 

293. Meeting with Ms. Isabelle Massip, Department of Foreign Affairs and International Trade Ombudsman, August 18, 1998.
 

294. Meeting with Ms. Chantal Paradis-Chartier, Department of Indian Affairs and Northern Development Ombudsman, September 23, 1998. See also: Staff Ombudsman Report, Department of Indian Affairs and Northern Development, December 1, 1996 to November 30, 1997.
 

295. Ibid.
 

296. Corrections and Conditional Release Act, supra, note 72, s. 183(2).
 

297. See: Access to Information Act, supra, note 231, s. 62 through to s. 64.
 

298. Information Commissioner Annual Report 1997-1998, supra, note 145 at pages 33-34.
 

299. Privacy Act, supra, note 231, s. 33(1).
 

300. Meeting with Mr. Julien Delisle, Executive Director, Office of the Privacy Commissioner of Canada, December 9, 1998.
 

301. Karl Gleumes, supra, note 89, at page 34. Article 10 (2) of the Law on the Parliamentary Commissioner for the Armed Forces, provides that the Commissioner shall not even if he is not in office any more, give evidence on such matters before or out of a court or make statements without permission. This permission shall be given by the President of the Bundestag in agreement with the defence committee. The permission to give evidence as a witness shall not be denied unless it would be to the detriment of the public good of the Federation or of one of the German Laender or it would severely jeopardize or considerably impede the performance of public duties.
 

302. Functions and Powers of the Commonwealth Ombudsman, November 1998, document provided by Lt.-Col. P.R. Tyrell, Assistant Defence Advisor, Australian Army Senior Standardization Representative. See also: Telephone Interview with Ms. Susan Matthews, Director of Investigations, Commonwealth Ombudsman, Australia, by a member of my staff, December 15, 1998 and Ombudsman Act (Commonwealth Australia 1976) s. 35.
 

303. Telephone interview with Ms. Susan Matthews, Director of Investigations, Commonwealth Ombudsman, Australia, by a member of my staff, December 16, 1998.
 

304. The Function of the Inspector General of the Dutch Armed Forces, supra, note 109.
 

305. Meeting with (Brig.-Gen. (ret'd) Uzi Levtzur) Israeli Defence Force Soldiers' Complaints Commissioner, November 9, 1998.
 

306. Report of the Auditor General, supra, note 139 at para. 10.68 through 10.74.
 

307. Bill C-208 an Act to Amend the Access to Information Act, as passed by the House of Commons of Canada, November 16, 1998.
 

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