List of recommendations

Chapter 1: Extending coverage

Recommendation 1.1

The Information Commissioner recommends including in the Act criteria for determining which institutions would be subject to the Act. The criteria should include all of the following:

  • institutions publicly funded in whole or in part by the Government of Canada (including those with the ability to raise funds through public borrowing) (this would include traditional departments but also other organizations such as publicly funded research institutions);
  • institutions publicly controlled in whole or in part by the Government of Canada, including those for which the government appoints a majority of the members of the governing body (such as Crown corporations and their subsidiaries);
  • institutions that perform a public function, including those in the areas of health and safety, the environment, and economic security (such as NAV CANADA, which is Canada’s civil air navigation service provider);
  • institutions established by statute (such as airport authorities); and
  • all institutions covered by the Financial Administration Act.

Recommendation 1.2

The Information Commissioner recommends extending coverage of the Act to the Prime Minister’s Office, offices of ministers and ministers of State, and parliamentary secretaries.

Recommendation 1.3

The Information Commissioner recommends creating an exemption in the Act for information related to the parliamentary functions of ministers and ministers of State, and parliamentary secretaries as members of Parliament.

Recommendation 1.4

The Information Commissioner recommends extending coverage of the Act to the bodies that support Parliament, such as the Board of Internal Economy, the Library of Parliament, the Conflict of Interest and Ethics Commissioner and the Senate Ethics Commissioner.

Recommendation 1.5

The Information Commissioner recommends creating a provision in the Act to protect against an infringement of parliamentary privilege.

Recommendation 1.6

The Information Commissioner recommends extending coverage of the Act to the bodies that provide administrative support to the courts, such as the Registry of the Supreme Court, the Courts Administration Service, the Office of the Commissioner for Federal Judicial Affairs and the Canadian Judicial Council.

Recommendation 1.7

The Information Commissioner recommends that the Act exclude records in court files, the records and personal notes of judges, and communications or draft decisions prepared by or for persons acting in a judicial or quasi-judicial capacity. 

Chapter 2: The right of access

Recommendation 2.1

The Information Commissioner recommends establishing a comprehensive legal duty to document, with appropriate sanctions for non-compliance.

Recommendation 2.2

The Information Commissioner recommends establishing a duty to report to Library and Archives Canada the unauthorised destruction or loss of information, with a mandatory notification to the Information Commissioner and appropriate sanctions for failing to report.

Recommendation 2.3

The Information Commissioner recommends extending the right of access to all persons.

Recommendation 2.4

The Information Commissioner recommends that institutions be allowed to refuse to process requests that are frivolous, vexatious or an abuse of the right of access. 

Recommendation 2.5

The Information Commissioner recommends that institutions’ decision to refuse to process an access request be subject to appeal to the Information Commissioner.

Recommendation 2.6

The Information Commissioner recommends limiting the application of section 10(2) to situations in which confirming or denying the existence of a record could reasonably be expected to do the following:

  • injure a foreign state or organization’s willingness to provide the Government of Canada with information in confidence;
  • injure the defence of Canada or any state allied or associated with Canada, or the detection, prevention or suppression of subversive or hostile activities;
  • injure law enforcement activities or the conduct of lawful investigations;
  • threaten the safety of individuals; or
  • disclose personal information, as defined in section 3 of the Privacy Act.

Recommendation 2.7

The Information Commissioner recommends that institutions be required to provide information to requesters in an open, reusable, and accessible format by default, unless the following circumstances apply:

  • the requester asks otherwise;
  • it would cause undue hardship to the institution; or
  • it is technologically impossible.

Recommendation 2.8

The Information Commissioner recommends eliminating all fees related to access requests.

Chapter 3: Timeliness

Recommendation 3.1

The Information Commissioner recommends that extensions be limited to the extent strictly necessary, to a maximum of 60 days, and calculated with sufficient rigour, logic and support to meet a reasonableness review.

Recommendation 3.2

The Information Commissioner recommends that extensions longer than 60 days be available with the permission of the Information Commissioner where reasonable or justified in the circumstances and where the requested extension is calculated with sufficient rigour, logic and support to meet a reasonableness review.

Recommendation 3.3

The Information Commissioner recommends allowing institutions, with the Information Commissioner’s permission, to take an extension when they receive multiple requests from one requester within a period of 30 days, and when processing these requests would unreasonably interfere with the operations of the institution.

Recommendation 3.4

The Information Commissioner recommends the Act make explicit that extensions for consultations as per section 9(1)(b) may only be taken to consult other government institutions or affected parties, other than third parties who already have consultation rights under section 9(1)(c), and only where it is necessary to process the request.

Recommendation 3.5

The Information Commissioner recommends that, in cases where a consulted party fails to respond to a consultation request, the consulting institution must respond to the request within the time limits in the Act.

Recommendation 3.6

The Information Commissioner recommends that a third party is deemed to consent to disclosing its information when it fails to respond within appropriate timelines to a notice that an institution intends to disclose its information.

Recommendation 3.7

The Information Commissioner recommends allowing an extension when the requested information is to be made available to the public, rather than claiming an exemption.

Recommendation 3.8

The Information Commissioner recommends that if an extension is taken because the information is to be made available to the public, the institution should be required to disclose the information if it is not published by the time the extension expires.

Recommendation 3.9

The Information Commissioner recommends repealing the exemption for information to be published (section 26).

Recommendation 3.10

The Information Commissioner recommends that extension notices should contain the following information:

  • the section being relied on for the extension and the reasons why that section is applicable;
  • the length of the extension (regardless of what section the extension was taken under);
  • the date upon which the institution will be in deemed refusal if it fails to respond;
  • a statement that the requester has the right to file a complaint to the Information Commissioner about the extension within 60 days following receipt of the extension notice; and
  • a statement that the requester has the right to file a complaint to the Information Commissioner within 60 days of the date of deemed refusal if the institution does not respond to the request by the date of the expiry of the extension.

Chapter 4: Maximizing disclosure

Recommendation 4.1

The Information Commissioner recommends that the Act include a general public interest override, applicable to all exemptions, with a requirement to consider the following, non-exhaustive list of factors:

  • Open Government objectives;
  • environmental, health or public safety implications; and
  • whether the information reveals human rights abuses or would safeguard the right to life, liberty or security of the person.

Recommendation 4.2

The Information Commissioner recommends that all exclusions from the Act should be repealed and replaced with exemptions where necessary.

Recommendation 4.3

The Information Commissioner recommends requiring institutions to seek consent to disclose confidential information from the provincial, municipal, regional or Aboriginal government to whom the confidential information at issue belongs.

Recommendation 4.4

The Information Commissioner recommends requiring institutions to seek consent to disclose confidential information of the foreign government or international organization of states to which the confidential information at issue belongs, when it is reasonable to do so.

Recommendation 4.5

The Information Commissioner recommends that, where consultation has been undertaken, consent be deemed to have been given if the consulted government does not respond to a request for consent within 60 days.

Recommendation 4.6

The Information Commissioner recommends requiring institutions to disclose information when the originating government consents to disclosure, or where the originating government makes the information publicly available.

Recommendation 4.7

The Information Commissioner recommends replacing international and federal-provincial “affairs” with international and federal-provincial “negotiations” and “relations.”

Recommendation 4.8

The Information Commissioner recommends combining the intergovernmental relations exemptions currently found in sections 14 and 15 into a single exemption.

Recommendation 4.9

The Information Commissioner recommends a statutory obligation to declassify information on a routine basis.

Recommendation 4.10

The Information Commissioner recommends repealing the exemption for information certified by the Attorney General (section 69.1).

Recommendation 4.11

The Information Commissioner recommends repealing the exemptions for information obtained or prepared for specified investigative bodies (section 16(1)(a)), information relating to various components of investigations, investigative techniques or plans for specific lawful investigations (section 16(1)(b)) and confidentiality agreements applicable to the RCMP while performing policing services for a province or municipality (section 16(3)).

Recommendation 4.12

The Information Commissioner recommends amending the exemption for personal information to allow disclosure of personal information in circumstances in which there would be no unjustified invasion of privacy.

Recommendation 4.13

The Information Commissioner recommends that the definition of personal information should exclude workplace contact information of non-government employees.

Recommendation 4.14

The Information Commissioner recommends including a provision in the Act that allows institutions to disclose personal information to the spouses or relatives of deceased individuals on compassionate grounds, as long as the disclosure is not an unreasonable invasion of the deceased’s privacy.

Recommendation 4.15

The Information Commissioner recommends requiring institutions to seek the consent of the individual to whom the personal information relates, wherever it is reasonable to do so.

Recommendation 4.16

The Information Commissioner recommends requiring institutions to disclose personal information where the individual to whom the information relates has consented to its disclosure.

Recommendation 4.17

The Information Commissioner recommends a mandatory exemption to protect third-party trade secrets or scientific, technical, commercial or financial information, supplied in confidence, when the disclosure could reasonably be expected to:

  • significantly prejudice the competitive position or interfere significantly with the contractual or other negotiations of a person, group of persons, or organization;
  • result in similar information no longer being supplied voluntarily to the institution when it is in the public interest that this type of information continue to be supplied; or
  • result in undue loss or gain to any person, group, committee or financial institution or agency.

Recommendation 4.18

The Information Commissioner recommends requiring institutions to disclose information when the third party consents to disclosure.

Recommendation 4.19

The Information Commissioner recommends that the limited public interest override in the third party exemption be repealed in light of the general public interest override recommended at Recommendation 4.1.

Recommendation 4.20

The Information Commissioner recommends that the third party exemptions may not be applied to information about grants, loans and contributions given by government institutions to third parties.

Recommendation 4.21

The Information Commissioner recommends adding a reasonable expectation of injury test to the exemption for advice and recommendations.

Recommendation 4.22

The Information Commissioner recommends explicitly removing factual materials, public opinion polls, statistical surveys, appraisals, economic forecasts, and instructions or guidelines for employees of a public institution from the scope of the exemption for advice and recommendations.

Recommendation 4.23

The Information Commissioner recommends reducing the time limit of the exemption for advice and recommendations to five years or once a decision has been made, whichever comes first.

Recommendation 4.24

The Information Commissioner recommends imposing a 12-year time limit from the last administrative action on a file on the exemption for solicitor-client privilege, but only as the exemption applies to legal advice privilege. 

Recommendation 4.25

The Information Commissioner recommends that the solicitor-client exemption may not be applied to aggregate total amounts of legal fees.

Recommendation 4.26

The Information Commissioner recommends a mandatory exemption for Cabinet confidences when disclosure would reveal the substance of deliberations of Cabinet.

Recommendation 4.27

The Information Commissioner recommends that the exemption for Cabinet confidences should not apply:

  • to purely factual or background information;
  • to analyses of problems and policy options to Cabinet’s consideration;
  • to information in a record of a decision made by Cabinet or any of its committees on an appeal under an Act;
  • to information in a record that has been in existence for 15 or more years; and
  • where consent is obtained to disclose the information.

Recommendation 4.28

The Information Commissioner recommends that investigations of refusals to disclose pursuant to the exemption for Cabinet confidences be delegated to a limited number of designated officers or employees within her office.

Recommendation 4.29

The Information Commissioner recommends a comprehensive review, made in consultation with the Information Commissioner, of all of the provisions listed in Schedule II and any legislation that otherwise limits the right of access. Any provision covered by the general exemptions in the Act should be repealed.

Recommendation 4.30

The Information Commissioner recommends that new exemptions be added to the Act, in consultation with the Information Commissioner, where the information would not be protected by a general exemption that already exists in the Act.

Recommendation 4.31

The Information Commissioner recommends that section 24 and Schedule II be repealed.

Recommendation 4.32

The Information Commissioner recommends a comprehensive review, made in consultation with the Information Commissioner, of the exemptions and exclusions for institutions brought under the coverage of the Act as a result of the Federal Accountability Act.

Chapter 5: Strengthening oversight

Recommendation 5.1

The Information Commissioner recommends strengthening oversight of the right of access by adopting an order-making model.

Recommendation 5.2

The Information Commissioner recommends providing the Information Commissioner with the discretion to adjudicate appeals.

Recommendation 5.3

The Information Commissioner recommends that the Act provide for the explicit authority to resolve appeals by mediation.

Recommendation 5.4

The Information Commissioner recommends that any order of the Information Commissioner can be certified as an order of the Federal Court.

Recommendation 5.5

The Information Commissioner recommends that the Act maintain the existing power to initiate investigations related to information rights.

Recommendation 5.6

The Information Commissioner recommends that the Act provide for the power to audit institutions’ compliance with the Act.

Recommendation 5.7

The Information Commissioner recommends that the Act maintain the existing investigative powers of the Information Commissioner.

Recommendation 5.8

The Information Commissioner recommends that the Act provide for the power to carry out education activities.

Recommendation 5.9

The Information Commissioner recommends that the Act provide for the power to conduct or fund research.

Recommendation 5.10

The Information Commissioner recommends that the government be required to consult with the Information Commissioner on all proposed legislation that potentially impacts access to information.

Recommendation 5.11

The Information Commissioner recommends that institutions be required to submit access to information impact assessments to the Information Commissioner, in a manner that is commensurate with the level of risk identified to access to information rights, before establishing any new or substantially modifying any program or activity involving access to information rights.

Recommendation 5.12

The Information Commissioner recommends:

  • that the appointment of the Information Commissioner be approved by more than two-thirds of the House of Commons and the Senate;
  • 10 years relevant experience in order to be eligible for the position of Information Commissioner; and
  • a non-renewable, 10-year term for the position of Information Commissioner.

Chapter 6: Open information

Recommendation 6.1

The Information Commissioner recommends that institutions be required to proactively publish information that is clearly of public interest.

Recommendation 6.2

The Information Commissioner recommends requiring institutions to adopt publication schemes in line with the Directive on Open Government.

Recommendation 6.3

The Information Commissioner recommends including within publication schemes a requirement that institutions proactively publish information about all grants, loans or contributions given by government, including the status of repayment and compliance with the terms of the agreement.

Recommendation 6.4

The Information Commissioner recommends including within publication schemes a requirement that institutions post the responsive records of completed access to information requests within 30 days after the end of each month, if information is or is likely to be frequently requested.

Recommendation 6.5

The Information Commissioner recommends a discretionary exemption that would allow institutions to refuse to disclose information that is reasonably available to the requester. The exemption should continue to allow an institution to withhold information placed in Library and Archives Canada or listed museums by third parties.

Chapter 7: Consequences for non-compliance

Recommendation 7.1

The Information Commissioner recommends that obstructing the processing of an access request (or directing, proposing or causing anyone to do so) be added as an offence under the Act.

Recommendation 7.2

The Information Commissioner recommends that section 67.1 prohibit destroying, mutilating, altering, falsifying or concealing a record or part thereof or directing, proposing or causing anyone to do those actions.

Recommendation 7.3

The Information Commissioner recommends that failing to document or preserve a decision-making process with intent to deny the right of access (or directing, proposing or causing anyone to do so) be prohibited under the Act.

Recommendation 7.4

The Information Commissioner recommends that failing to report to Library and Archives Canada and/or notify the Information Commissioner of the unauthorised destruction or loss of information (or directing, proposing or causing anyone to do so) be prohibited under the Act.

Recommendation 7.5

The Information Commissioner recommends that no one acting reasonably and in good faith in the performance of their duties under the Act will be subject to sanction.

Recommendation 7.6

The Information Commissioner recommends increasing the maximum fine for summary convictions under the Act to $5,000 and to $25,000 for indictable offences.

Recommendation 7.7

The Information Commissioner recommends an administrative monetary regime be added to the Act, which should include a requirement to publish any administrative monetary penalty imposed. 

Recommendation 7.8

The Information Commissioner recommends that adherence to the requirements of the Access to Information Act be made a term and condition of employment for employees, directors and officers of institutions.

Recommendation 7.9

The Information Commissioner recommends that an investigation under the Act must be suspended when the Information Commissioner believes on reasonable grounds that a criminal offence on the same subject-matter of the investigation has occurred.

Recommendation 7.10

The Information Commissioner recommends that the Information Commissioner be permitted to share any information to the appropriate authority where the Information Commissioner believes a referral is warranted about anyone’s conduct related to a criminal offence.

Chapter 8: Mandatory period review of the Act

Recommendation 8.1

The Information Commissioner recommends a mandatory parliamentary review of the Act every five years, with a report tabled in Parliament.