Mediation with the Mediation with the Information Information

Commissioner’s Commissioner’s OfficeOfficeCory MartinsonCory Martinson

Appeals and Policy AnalystAppeals and Policy Analyst

25 November 200925 November 2009

Mediation DemystifiedMediation Demystified

How does it work?How does it work? Before the ICO proceeds formally with Before the ICO proceeds formally with

an appeal it will generally authorize the an appeal it will generally authorize the Appeals and Policy Analyst to mediate, Appeals and Policy Analyst to mediate, investigate and attempt to settle the investigate and attempt to settle the matter.matter.

The Analyst will send out a letter to the The Analyst will send out a letter to the parties explaining how the mediation parties explaining how the mediation process works.process works.

The Analyst will ask each party to The Analyst will ask each party to provide information necessary so he can provide information necessary so he can investigate and understand the dispute.investigate and understand the dispute.

How does it work cont’…How does it work cont’… The Analyst is not an advocate for either The Analyst is not an advocate for either

side.side. The Analyst’s role is to:The Analyst’s role is to:

Investigate and discuss the circumstances of Investigate and discuss the circumstances of the request with the parties.the request with the parties.

Facilitate through various means either a full Facilitate through various means either a full or partial settlement of the appealor partial settlement of the appeal

Ensure that the applicant has received all of Ensure that the applicant has received all of the information that he or she is entitled.the information that he or she is entitled.

Form and share opinions based on the Form and share opinions based on the applicable provisions of the law and any applicable provisions of the law and any relevant case law.relevant case law.

Mediation may result in a Mediation may result in a number of outcomes number of outcomes

These are some examples:These are some examples:

Further information is released to the Further information is released to the individual,individual,

A fee is confirmed or reduced, A fee is confirmed or reduced, Additional records responsive to the request Additional records responsive to the request

may be located, may be located, Referral to another agency for resolution of the Referral to another agency for resolution of the

issue (e.g. Office of the Complaints issue (e.g. Office of the Complaints Commissioner), Commissioner),

Personal information is corrected or annotated, Personal information is corrected or annotated, Reasons are provided for refusing access to Reasons are provided for refusing access to

personal information.personal information.

Use of PowersUse of Powers

The Analyst will generally The Analyst will generally investigate on a consensual basis investigate on a consensual basis and will engage the ICO’s and will engage the ICO’s compulsory powers of production compulsory powers of production and inspection of records under the and inspection of records under the Law only if cooperation is not Law only if cooperation is not forthcoming.forthcoming.

Why Mediate?Why Mediate?

Can be less costly than a Hearing which may Can be less costly than a Hearing which may involve legal counsel.involve legal counsel.

Many appeals can be resolved quickly and Many appeals can be resolved quickly and fairly without proceeding to a Hearing.fairly without proceeding to a Hearing.

More efficient. (i.e. coming to a reasonable More efficient. (i.e. coming to a reasonable outcome often requires less effort than if the outcome often requires less effort than if the matter proceeds to a Hearing before the matter proceeds to a Hearing before the Commissioner)Commissioner)

Mediation outcomes do not set precedents.Mediation outcomes do not set precedents. Mediation is a less public activity than a Mediation is a less public activity than a

Hearing.Hearing.

Why Mediate cont’…?Why Mediate cont’…?

Good PR; the public authority is seen as Good PR; the public authority is seen as working with the applicant rather than against working with the applicant rather than against them.them.

Education; Mediation provides an opportunity Education; Mediation provides an opportunity for the Information Commissioner’s Office to for the Information Commissioner’s Office to educate the public and the public authority on educate the public and the public authority on the intricacies of the FOI Law. the intricacies of the FOI Law.

Information can be kept confidential at Information can be kept confidential at mediation.mediation.

Offers multiple and flexible possibilities for Offers multiple and flexible possibilities for resolving a dispute.resolving a dispute.

Steps in MediationSteps in Mediation

1. Ensure all the appropriate 1. Ensure all the appropriate documentation has been collected documentation has been collected from the parties involved.from the parties involved.

Original requestOriginal request Response letterResponse letter Internal review decision (if applicable)Internal review decision (if applicable) Appeal request from applicantAppeal request from applicant A copy of the records in dispute, if A copy of the records in dispute, if

necessarynecessary

Steps in Mediation cont’…Steps in Mediation cont’…

2. Establish jurisdiction2. Establish jurisdiction Do we have authority to conduct this Do we have authority to conduct this

investigation/appeal?investigation/appeal?

3. Contact the applicant and do the 3. Contact the applicant and do the following:following:

Listen to their storyListen to their story Determine what they really wantDetermine what they really want Manage their expectationsManage their expectations Provide them with next stepsProvide them with next steps

Steps in Mediation cont’…Steps in Mediation cont’…

4. Contact the Public Authority and 4. Contact the Public Authority and do the following:do the following:

Listen to their storyListen to their story Obtain copies of the recordsObtain copies of the records Obtain the rationale utilized in their Obtain the rationale utilized in their

decision making processdecision making process Clarify any inconsistenciesClarify any inconsistencies Provide them with next stepsProvide them with next steps

Steps in MediationSteps in Mediation

5. Analyze the records involved and the 5. Analyze the records involved and the sections of the FOI Law which are sections of the FOI Law which are applicable.applicable.

6. Conduct any case law research necessary.6. Conduct any case law research necessary.7. Formulate an opinion on the merits of the 7. Formulate an opinion on the merits of the

Public Authority’s decision.Public Authority’s decision.8. Provide the mediator’s opinion to the 8. Provide the mediator’s opinion to the

Public Authority either orally or in writing Public Authority either orally or in writing and suggest corrective action, if and suggest corrective action, if necessary.necessary.

9. Obtain feedback from the Public Authority 9. Obtain feedback from the Public Authority on whether they are willing to alter their on whether they are willing to alter their decision, if necessary.decision, if necessary.

Steps in Mediation Steps in Mediation con’t…con’t…

10. Contact the applicant and discuss the merits of 10. Contact the applicant and discuss the merits of the public authority’s decision any alterations to the public authority’s decision any alterations to that decision and provide an opinion on the that decision and provide an opinion on the applicant’s likelihood of success at a formal applicant’s likelihood of success at a formal hearing.hearing.

11. Determine whether the applicant wishes to 11. Determine whether the applicant wishes to pursue the matter further or close the file.pursue the matter further or close the file.

12. Close the file or proceed to a formal hearing 12. Close the file or proceed to a formal hearing before the commissioner.before the commissioner.

13. Refer the parties to our Hearing process 13. Refer the parties to our Hearing process procedures and conduct a hearing.procedures and conduct a hearing.

14. The Commissioner makes binding Order.14. The Commissioner makes binding Order.15. If either side is not satisfied with the Order they 15. If either side is not satisfied with the Order they

may apply for a judicial review by the Grand may apply for a judicial review by the Grand CourtCourt..

SummarySummary

Mediation is an informal, flexible process that Mediation is an informal, flexible process that aims to assist applicants and public aims to assist applicants and public authorities in reaching an agreement. This authorities in reaching an agreement. This process is facilitated by an impartial third process is facilitated by an impartial third party prior to proceding to a formal Hearing party prior to proceding to a formal Hearing which would result in a binding decision from which would result in a binding decision from the Information Commissioner. the Information Commissioner.

The mediation process has similar benefits for The mediation process has similar benefits for all parties involved including confidentiality, all parties involved including confidentiality, cost savings and the fact that agreements cost savings and the fact that agreements through mediation are not binding.through mediation are not binding.