This theme addresses who can file an access to information request and which institutions and records are subject to the right of access.

Right of Access?

1. To whom should the right of access to information be given?  Should it be expanded to include all persons or continue to be restricted to Canadian citizens and permanent residents?

Scope of the Act: what institutions are subject to the Act?

This sub-category addresses the institutions that are subject to the Act and the criteria used.

2. Which institutions should be subject to the right of access found in the Act?   
   1. How should we determine whether an institution is subject to the Act?  Should it be based on a functional approach (i.e. the role of the institution) or is another approach preferable (for example, based on sources of funding)?
   2. Should the Information Commissioner be consulted when changes are made to the list of institutions subject to the Act?
   3. Should the application of the Act be applicable, and to what extent, to:
      1. The judicial branch of governance (courts and/or court administration)?
      2. The legislative branch of governance (Parliament)?
      3. The offices of Ministers (including Secretaries of State)?

What records can be obtained through an access request?

3. Is the current definition of a record sufficiently broad? 

How can records be obtained?

In this section, we will examine various aspects of the process for making an access to information request to a government institution, including the fees for processing such a request, the roles and responsibilities of the institutions, the duty of an institution to provide a requester with assistance in making his or her request, and responses to frivolous or vexatious requests.

The general process

4. How should access requests to institutions be made?  Should they have to be in writing or could other formats including oral requests be accepted?

  Fees

5. Should the Act require payment of fees for:
   1. Making an access request;
   2. Processing an access request;
   3. Providing copies of responsive records.
6. Should a distinction between electronic and non-electronic records be preserved in the provisions concerning fees?
7. Should criteria for waiver of fees be included in the Act?
8. Should fees be legislatively waived in certain circumstances, i.e. public interest, failure to respond on time, source of the request? 

Duty to assist

9. Should there be consequences when institutions that fail to meet their legislated duty to assist?  If so, what form should those consequences take?

Responding to frivolous and vexatious requests

10. Is there a need to establish criteria to determine if a request is frivolous or vexatious?  If so, what should those criteria be? Who should have the authority to determine if a request is frivolous or vexatious? What should the role of the Information Commissioner be, if any?

  Timelines for responding to requests

11. Should any change be made to the current 30-day time period for responding to requests?
12. Should institutions be entitled to extend that 30-day time period and, if so, on what basis?  Should any changes be made to the existing provision for extending time lines?
13. Should there be a maximum length of time imposed on extensions?
14. Should time extensions beyond a certain length require authorization of the Commissioner?
15. Should there be a mechanism to ensure that institutions meet the extended deadline? Administrative consequences, access to judicial review etc.?

Overview of the limitations to the right of access

16. Should all exemptions be discretionary?
17. Should all exemptions be injury based?
18. Should there be exemptions that are targeted at specific institutions or should all exemptions be of general application?
19. Should any category of information be excluded from the application of the Act?

Public interest override

20. Currently, certain specific exemptions contain public interest overrides.  Should exemption specific public interest override provisions be replaced by a general public interest override applicable to all exemptions?
21. Should “public interest” be clearly defined in the Act?

Limitations in other statutes

A Schedule to the Act currently lists approximately 60 provisions found in other legislation that form the basis of a mandatory exemption under the Act (s. 24).

22. Should the Act incorporate, on a mandatory basis, provisions found in other legislation which restrict access to information or are the current exemptions sufficiently broad? 
23. What process, if any, should be followed when adding new provisions to the list found in the Schedule?
24. Should specific criteria be established? 
25. What role if any should the Information Commissioner play in relation to the addition of a provision to the Schedule?

Limitations on the right of access - exemptions

Personal Information (s. 19)

26. Should the definition of personal information, and the exceptions to that definition, be changed?
27. Should the definition of personal information incorporate an invasion of privacy test?  If so, should the ATIA adopt a model which involves presumptions about the kinds of personal information which are and are not likely to be invasions of privacy?

Information from foreign, provincial, municipal or aboriginal governments (s. 14)

28. Should the exemption for foreign government information continue to be a mandatory class exemption?
29. Should the Act prescribe a specific process to seek the consent of the third party to disclose?
30. In the absence of an over-arching public interest override, should this exemption be subject to a specified public-interest override?

International Affairs, Defence and Prevention of Hostile Activities (s. 15)

31. Should the exemption protecting international affairs, defence and other national security interests be changed?  
    1. If so, how?  Should the exemption be subject to a time limit?
    2. Should it be subject to a specified public interest override? 

Business Information (economic and other interests) and notification process (ss. 20, 27 & 28)

32. Should the provisions exempting third party information from disclosure be changed? 
    1. Should there be an exception for third party information in contracts awarded by government institutions?
    2. Should a public interest override be made mandatory in specified circumstances?
    3. Should third parties who are given notice of the intention to disclose information be able to rely on exemptions other that the third party information exemption?
33. Are the current provisions relating to third-party notification effective?  Should third parties be deemed to have given their consent if they do not respond within a specified period of time?

Economic interest of government institutions (s. 18, 18.1)

34. Should the current exemptions protecting the commercial interests of government institutions be changed? 
    1. Should there be a distinct exemption for Crown corporations or should there be one exemption of general applicability for governmental economic interests? 
    2. Should the economic interests of government institutions be subject to a specified public interest override?

Policy or advice to the executive (including Cabinet confidences)

35. Should any changes be made to the current wording of the exclusion?
    1. For example, should the time period of 20 years found in the exclusion be reduced or is it appropriate?
36. Should the Act be applicable to Cabinet confidences?
37. Should an injury-test be incorporated into the exemption for advice in the context of government operations?
    1. Should s. 21 be subject to a public-interest override?  Should the 20-year period time-period be modified or removed?

Solicitor-Client privilege

38. Should an exception be established for information relating to public monies spend on legal services?
39. If a government institution is the client receiving privileged legal advice, should there be circumstances under which it is encouraged or required to waive the privilege? 
    1. Should government institutions benefit from the same scope of legal privilege as private parties?
40. Should there be separate exemptions for legal advice privilege and litigation privilege so that the particularities of each one can be taken into account in the design of the exemptions?

Law enforcement, lawful investigations, audits and similar processes

41. What changes if any should be made to the exemptions relating to law enforcement and investigations? 
    1. Should specific criteria be established to determine whether an entity is an “investigative body” under the Act?
42. Are institution-specific exemptions for investigations or audits conducted by agents of Parliament required? 
    1. Should they be injury-based?
    2. Should the exemptions be subject to a time limit?

Other issues

43. Should class-based exemptions be limited in time? If so, for how long?
44. Should there be specific exemptions applicable to the decision-making and other procedural aspects of administrative tribunals?

This theme discusses the oversight models and powers of the Information Commissioner and equivalent positions in other jurisdictions. In particular, this theme will examine how a requester can make a complaint to the Commissioner, how investigations of complaints are conducted, what the Commissioner’s powers are during an investigation, and other responsibilities that the Commissioner has, while also considering confidentiality obligations and requirements. This theme will also discuss what offences and sanctions are provided in the access legislation, and when access decisions can be judicially reviewed. In addition, this theme will study what reporting requirements are contained in the legislation, in terms of reporting to Parliament. Finally, this theme will also look at requirements of periodic legislative review.

Oversight Models

45. What changes, if any, should be made to the current oversight model established by the ATIA? 
    1. Should the ombudsmodel be retained?
    2. Should the federal Information Commissioner have order-making powers?
    3. Should a hybrid-model be considered?

Reviews by the Oversight Body

Process

General Process

46. Should the Commissioner have the discretion to extend the deadline for submitting a complaint to the Commissioner?
47. Should the Commissioner have the discretion to not investigate a complaint? If so, in what circumstances?
48. Should there be a time limit to complete an investigation?
49. Should requesters be able to seek judicial review without complaining to the Commissioner? If so, in what circumstances?

Powers During an investigation

50. Does the provision allowing the Commissioner to review records under the control of a government institution, notwithstanding any other Act of Parliament or privilege under the law of evidence need clarification? 

Reporting obligations

51. Should the Commissioner publish summaries of her investigative findings on a regular basis?
52. Should the Commissioner’s discretion to report instances where she believes she has evidence of a commission of an offence be extended to all individuals, and not limited to officers, employees or directors of government institutions?

Review by the Courts

53. What changes, if any, should be made to the sections relating to judicial review by the Courts (ss. 41-53)? 
    1. Should the scope of judicial review be expanded to include fee assessments and other administrative matters?

Offences and Sanctions

54. What changes, if any, should be made to the Act’s provisions on offences and sanctions?
55. Should monetary penalties be available in the case of destruction, concealment or falsification of records requested under the ATIA?

Commissioner’s mandate

56. Should the ATIA give the Commissioner an audit function?
57. Should the ATIA expressly grant the Commissioner a research or educational mandate?

Legislative Review

58. Should the ATIA have a periodic review built-in?
    1. If so, how often should review occur? 

This theme looks at Information Management broadly and as specifically framed by the duties to manage information, to publish information and to document decision-making processes.

59. What role, if any, should the Information Commissioner have in relation to information management in government institutions?

    1. Should information management rules and practices include consideration for the routine release of documents?
    2. Should information management rules and practices incorporate a declassification process for government records?

60. Should the Act include a duty to publish information? 

    1. If so, what types of documents should fall within such a duty?
    2. Does an index of records suffice or should substantive records (such as policies, guidelines, background papers) be released?

61. Should proactive disclosure practices be formalized in legislation or via other, non-legislated alternatives?

    1. Are publication schemes the preferred solution to encourage proactive disclosure?
    2. What level of involvement should an Information Commissioner have in the creation, approval, maintenance and review of a publication scheme?

62. Should the Act include a duty to document their decision making processes?

    1. Should this duty include a requirement to create records following an access request?