Heron Law ATIP Complaint Leads to Information Commissioner Final Report Finding the Complaint Well-Founded

At Heron often times we talk about doing law differently. Part of that is digging where we believe it is in the public interest to dig. In June 2022, given I am starting Masters of Law – Thesis at the University of British Columbia (Allard) School of Law, I requested information from the Immigration and Refugee Board (“IRB”) with respect to how they are implementing artificial intelligence and automation. As some of you may know, I am doing an institutional sweep of immigration law-related administrative tribunals to see how they are implementing and governing AI implementation.

The IRB responded back with a 616 day extension request, for which a complaint was brought to the Information Commissioner of Canada in October 2022.

Our Firm is of the opinion that especially in this area of AI and technology, we cannot continue to have a non-transparent system where information is released only two to three years after implementation. It has become a common trend for institutions to delay ATIP requests for significant periods to the point where the ATIP’d material is no longer relevant before releasing it.

Yesterday, the Office of the Information Commissioner of Canada (“OIC”) rendered a decision in our favour.

The Report gives us deep insight into how ATIPs are processed. We would suggest it is a transparency level we have not seen to date.

We will spare the details, but it is eye-opening how much time it takes to process an ATIP request, the competing pressures the ATIP office has, in this case with the IRB – the time needed to be spent on depersonalizing refugee decisions. We also learned how about they use technology (AccessPro Redaction). The Information Commissioner clearly has a target of what she thinks and wants departments to do, and I am glad she stepped in here suggesting the 616 days was too much.

That being said, I think as the inquiring public, we should be demanding more proactive disclosure from tribunals particularly around their implementation of AI and new technologies, so that we can specify and clarify our ATIP requests and not have it all done within a guessing game of whether certain records exist or not. We do big net fishing ATIPs because we have no choice as we do not know what is the ocean of information.

I do encourage Departments to utilize proactive disclosure, posting information on websites, and even giving us a call. In this case, I did have communication with the IRB where several members met me to clarify the scope of my inquiry but rather than clarify what records were available and what I was seeking, I was hit with a 616 day without any warning or update.

Indeed, if it were not for ATIPs we would not be able to bring to public light knowledge and information of systems – alongside the proper pressure and outside monitoring – needed to ensure these systems are equitable and transparent. In fact, this is how our Chinook advocacy largely came to the forefront and now our current campaign of seeking more data transparency from the Federal Court.

Now, let us hope the IRB meaningful provides disclosure without over-redaction. I thought it was interesting that the OIC almost ‘pre-empted’ possible non-compliance, suggesting that they go to Federal Court if they want to challenge the order. I know, as an interested stakeholder (and original complainant), I do have a vested interested in receiving this information to advise my own advocacy and research.

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