Access to Information Act Modernization Initiative

Presentation for the Canadian Bar Association

Presented by Nadine Gendron

September 14, 2012

CHECK AGAINST DELIVERY

Reform proposals since 1983  

  1. Few changes since the enactment of the ATIA
  2. Exception: Federal Accountability Act (2006)
  3. Since 1983, there has been numerous studies, reports and bills on proposals for reform, such as the 1987 Review, Commissioners’ Reports, reports of Parliamentary Committees, studies from various interveners, bills and draft legislation.

Main Relevant Themes

We identified the 4 following themes :

  1. The Right of Access
  2. The Limitations to the Right of Access
  3. Oversight Powers and Authorities of the Commissioner
  4. Information Management

Specific Themes

  1. Powers of the Commissioner
  2. Institutions covered
  3. Time Limit / Extensions
  4. Fees
  5. Structure of the Exemptions and Public Interest Override

Powers of the Commissioner

Federal

  1. Officer of Parliament; ombudsman-type 
  2. Broad powers to carry out investigations
  3. Can only issue recommendations

Other Jurisdictions

Generally, 2 main models:

  1. Commissioner: ombudsman with the power to issue recommendations
  2. Commissioner: power to order the disclosure of requested documents

Institutions Covered

Federal

  1. Approximately 285 government institutions are subject to the ATIA
  2. The Supreme Court of Canada ruled that the Prime Minister’s office and the Ministers’ Offices are not part of the government institutions for which they are responsible

Other Jurisdictions

  1. Wide variety of institutions are covered
  2. Some legislations list criteria

Time Limit/Extensions

Federal

  1. 30 days to respond to a request
  2. Possibility of extension in certain circumstances
  3. Failure to respect the time limit : deemed refusal

Other Jurisdictions

  1. 30 days : typical time limit in Canada
  2. Possibility of extension in certain circumstances

Fees

Federal

  1. $5 fee
  2. Act and Regulations have not been updated to reflect  current technology
  3. Discretion to waive the fees: no criteria

Other Jurisdictions

  1. In other jurisdictions, there are different kinds of fees depending on the types of users
  2. Discretion to waive fees : some jurisdictions provide criteria for a waiver or reduction of charges

Structure of Exemptions and Public Interest Override

Federal

  1. Exceptions: mandatory and discretionary / class and injury test.
  2. Exclusions : Cabinet Confidences, CBC, AECL, public documents, museums, etc.
  3. The ATIA does not provide a general provision for a public interest override; there are only two provision of limited application.

Canadian Jurisdictions:

  1. Structure: very similar to the ATIA model
  2. Some jurisdictions have a general provision indicating that information should be disclosed when it is in the interest of the public to do so.

International Jurisdictions:

Different approaches. For example, in Commonwealth countries: there are two categories of exceptions, those that are absolute and those that are subject to the public interest. In certain cases, institutions are completely excluded and in some others cases, it is only certain documents that are excluded.