Chapter 2: The right of access
The Access to Information Act provides a right of access to records under the control of the government. The Act establishes a formal framework for making and processing access requests.
Duty to document
Missing records complaints registered
2011–2012: 283 (27% of refusal complaints)
2012–2013: 428 (41%)
2013–2014: 470 (39%)
Access to information relies on good recordkeeping and information management practices. When records are not created or appropriately preserved to document decisions, rights under the Act are denied. This, in turn, prevents government accountability and transparency.
No federal statute or regulation sets out a comprehensive and enforceable legal duty to create and preserve records documenting decision-making processes, procedures or transactions. Without such a duty, there is a risk that not all information related to the decision-making process is being recorded or appropriately preserved in an institution’s information holdings.
According to Shared Services Canada, approximately 98,000 BlackBerrys have been issued to government institutions (as of August 2013).
The adoption across government of new communications technologies, such as instant messaging, has further increased the need for such a duty. The Commissioner has found that there is a real risk that information that should be accessible by requesters could be irremediably deleted or lost when institutions use these technologies as part of decision-making. The 2014 Treasury Board of Canada Secretariat protocol on instant messaging compounds this problem by recommending that departments should not use automatic logging of instant messages.
Successive commissioners, as well as joint resolutions of the provincial, territorial and federal information and privacy commissioners, have recommended a legislated duty to create records in support of decisions of government. Further, based on the results of their own investigations, the commissioners in Ontario and British Columbia have also identified a need for such a provision in their access laws.
An obligation to document the decision-making process protects access to information rights by:
- creating official records;
- facilitating better governance;
- increasing accountability; and
- ensuring a historical legacy of government decisions.
To be most effective, the Act would also include appropriate sanctions for non-compliance with the duty to document (see Chapter 7 for further discussion on sanctions for non-compliance).
The Information Commissioner recommends establishing a comprehensive legal duty to document, with appropriate sanctions for non-compliance.
Duty to report
In 2014, the National Research Council (NRC) experienced a cyber intrusion. In response, NRC shut down parts of its IT infrastructure, resulting in an inability to retrieve electronic records. NRC voluntarily notified the Commissioner of this issue and informed her of its plan to respond to access requests in light of the loss of electronic information. As a result of this notification, the Commissioner was more aware of the circumstances at NRC with respect to processing requests and could more effectively oversee the right of access.
Library and Archives Canada (LAC) is charged with preserving the documentary heritage of Canada, including authorising the destruction of records by government institutions. LAC has issued Multi-Institutional Disposition Authorities and specific institutional authorities that govern the disposal of records.
Institutions are not generally required to report the unauthorised loss or destruction of records, including data. The Commissioner’s investigations
have revealed that records have been disposed of without authorization,
which effectively denies the right of access.
In the United States, under the Federal Records Act (44 U.S.C. §§ 3106), institutions are required to report to the National Archives and Records Administration (NARA) any unlawful or accidental removal, defacing, alteration, or destruction of records in the custody of an institution. Sanctions include a $2,000 fine, a three-year imprisonment, or both.
In 2012, a congressional inquiry was launched into the Internal Revenue Service’s (IRS) allegedly inappropriate selection procedures for auditing tax exempt organisations. During the inquiry, it was revealed that IRS emails about the selection process had been lost. This loss was not reported to NARA.
The Commissioner recommends that the Act (or the Library and Archives of Canada Act) include a duty to report to LAC the unauthorised destruction or loss of information, with a mandatory notification to the Information Commissioner, as an independent oversight body. This will allow the Commissioner to assess whether any action is warranted to determine if information rights have been compromised within the institution and whether remedial action is necessary. There should also be appropriate sanctions for failing to report the unauthorised destruction or loss of information. (See Chapter 7 for further discussion on sanctions for non-compliance.)
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.
The right of access to government-held information is limited under the Act to Canadian citizens, permanent residents, and individuals and corporations present in Canada.
This limit is outdated and unnecessarily complicates the processing of requests, since anyone in the world may make an access request through a Canadian agent (often for a fee). This creates additional costs and delays in the system. A universal right of access is consistent with the free flow of information that is occurring across the increasingly globalized and interconnected world.
Among the provinces and territories, Commonwealth countries, the U.S., in model laws, and those jurisdictions with access legislation ranked in the top 10 on the Global Right to Information Rating, only Canada, New Zealand and India limit who may have access to government information. All of the other jurisdictions reviewed provide a universal right of access and none have indicated that the universal right has resulted in an unmanageable amount of requests. A broadened right of access has also been recommended on numerous occasions in Canada in the past.
The Information Commissioner recommends extending the right of access to all persons.
Frivolous and vexatious requests
It is the Commissioner’s experience that in rare instances some requesters make requests that are frivolous, vexatious or otherwise abusive. Dealing with these requests can place a strain on public resources, delay delivery of other services and have a negative impact on the rights of other requesters. The Act does not allow institutions to refuse to respond to requests such as these.
Some access laws across Canada and in international jurisdictions allow institutions to refuse to process some requests for a variety of reasons. Model laws are silent on this issue. Various reports have supported amending the Act to include a provision to refuse to process some requests.
The ability to refuse to process some access requests should be strictly circumscribed and limited to only clear instances where the request is frivolous, vexatious or an abuse of the right of access. An institution’s decision to refuse to process a request should also be subject to appeal to the Commissioner. This will ensure the limited and appropriate application of this ability.
Allowing institutions to refuse to process requests that are frivolous, vexatious or an abuse of the right of access would:
- ensure more efficient use of limited public resources; and
- protect the access rights of other requesters .
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.
The Information Commissioner recommends that institutions’ decision to refuse to process an access request be subject to appeal to the Information Commissioner.
Confirm or deny the existence of a record
Section 10(2) of the Act states that institutions do not have to tell a requester whether a record exists when they do not intend to disclose it. When notifying a requester that it is invoking this provision, institutions must also indicate the part of the Act on which a refusal could reasonably be expected to be based if the record existed. Section 10(2) was designed to address situations in which the mere confirmation of a record’s existence (or non-existence) would reveal information that could be protected under the Act.
The Commissioner’s investigations have found that section 10(2) is overused and inconsistently applied. This is problematic because invoking section 10(2) leads to a complete denial of the right of access. Open and Shut acknowledged that “only in rare circumstances can such a denial be justified.” Limiting the application of section 10(2) to specific situations was recommended by a former Commissioner and is consistent with the access laws of B.C. and Ontario.
The Commissioner recommends that the Act include a list of the circumstances under which institutions could refuse to confirm or deny the existence of a record. These would relate to possible injury to Canada’s foreign relations, the defence of Canada, law enforcement activities and the safety of individuals, and the possible disclosure of personal information.
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.
Open format: The information must be provided in a convenient and modifiable form such that there are no unnecessary technological obstacles to the performance of the licensed rights.
Accessible format: The information must be available as a whole and at no more than a reasonable, one-time reproduction cost, preferably downloadable via the internet without charge.
Reusable format: The information must be provided under terms that permit re-use and redistribution.
As per Open Definition
Format of information
Based on open government principles, information should be provided to the public in open formats that facilitate reuse. The Directive on Open Government, recently issued by the Treasury Board of Canada Secretariat, also requires institutions to ensure that open data and open information released through open government initiatives are in accessible and reusable formats.,
Section 4(2.1), commonly referred to as the duty to assist, requires that the response to a request must be accurate, complete and provided in a timely manner in the format requested. This would include in an open, reusable and accessible format.
There are limitations on the obligation to provide information in the format requested, contained in the Access to Information Regulations. Section 8.1 of the Regulations provides that when a record does not exist in the format requested, institutions can decline to convert the record to the requested format if it is unreasonable to do so. The Regulations include the following factors to consider when determining if conversion would be unreasonable:
- the costs to the government institution;
- the potential degradation of the record;
- if the person making the request is to be given access to only a part of a record, the facility with which the record may be severed in the format requested;
- the existence of the record within the government institution in another format that is useful to the person making the request;
- the possibility that the record can be converted to another format that is useful to the person making the request;
- the impact on the operations of the government institution;
- the availability of the required personnel, resources, technology and equipment.
Section 4(3) of the Act also provides that, where records do not exist, institutions are required to produce records from machine-readable records by using the hardware, software and technical expertise they normally use. However, section 3 of the Regulations provides that an institution does not need to do this when it would unreasonably interfere with the operations of the institution.
As a result, although the Act requires institutions to provide information in the format requested, the limitations on this obligation allow institutions to refuse to do so in circumstances so broad as to be inconsistent with open government principles.
For example, investigations by the Commissioner, as well as a recent response to a parliamentary written question, indicate that few institutions disclose information in open, reusable and accessible formats by default or at the request of the requester. Instead, responses are provided in PDF or paper printouts, and institutions consider this sufficient to meet their obligations under the Act. The reason for providing records in these formats is often technical; institutions are concerned that some electronic formats may allow information that they have protected under the Act to be revealed.
Technical problems such as these can be fixed in most instances with current technology. Moreover, if institutions are following the Directive on Open Government, many of the factors currently found in section 8.1 of the Regulations that limit an institution’s obligation to provide records in the format requested will no longer be relevant. For example, the availability of the required personnel, resources, technology and equipment should no longer be an issue because institutions are already required to provide open data and open information.
The Commissioner recommends that the Act include a stand-alone obligation that institutions provide information to requesters in an open, reusable, and accessible format by default. This open by default approach should be limited only where the requester asks for the information in another format (such as paper), where it would cause undue hardship to the institution or it is technologically impossible.,
Providing information to requesters in open, reusable and accessible format by default ensures that the information is provided in a format that is useful to the requester.
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.
Anyone who makes a request for information under the Act may be required to pay an application fee (section 11(1)(a)). This fee is set at $5 in the Regulations (section 7(1)(a)).
In addition, the Act allows institutions to charge additional fees in a number of circumstances: for every hour after the first five that they reasonably need to search for records and prepare them for release (section 11(2)), for reproducing records (section 11(1)(b)), for producing records in alternative formats (section 11(1)(c)) and for producing “machine-readable” records (section 11(3)). The exact cost and application of each of these fees are set in the Regulations.
In 2011–2012, the Commissioner’s investigation into a complaint against the former Foreign Affairs and International Trade Canada (DFAIT) revealed that DFAIT had a practice of automatically charging search and preparation fees for any request with 500 or more responsive pages. The Commissioner found this practice to be inconsistent with the proper use of DFAIT’s discretion to charge fees because it failed to appropriately balance and weigh other factors, such as the public interest in disclosure of the information, whether the response was overdue, and any particular circumstance raised by the requester.
The fee structure set out in the Regulations, like the rest of the Act, has not been comprehensively updated since the Act was introduced and has consequently become outdated.
Determining fee amounts and processing fee payments adds complexity to the administration of the access system and results in delays for requesters. Fees are also inconsistently applied across institutions. Fees, especially related to search times, depend on the quality and implementation of information management practices.
In 2013–2014, the Commissioner investigated a complaint against the Privy Council Office (PCO) about a $4,250 fee estimate. She learned that this estimate was not based on the $10 per hour rate set out in the Regulations (which would be equivalent to an annual salary of $19,566), but instead reflected current rates of pay for an employee earning $73,000 per year. As a result of the Commissioner’s investigation, PCO provided a new, reasonable fee estimate of $119.80 to the requester.
As a consequence of these problems, fees lead to complaints to the Commissioner, which add further delays for the requester and administrative costs. The Commissioner’s investigations have also revealed that some institutions use fees to deter requests they consider frivolous, to narrow requests, to discourage requesters from following through with requests or as a method of cost recovery.
Fees are also inconsistent with open government principles, which recognize that free access to open data is of significant value to society and the economy. They are also contrary to the concept that government information is a national resource that has been funded by taxpayers.
Many jurisdictions limit what kind of fees institutions may charge. Some do not permit fees for making requests. Others allow fees to be waived in certain specified circumstances. In 2011, New Brunswick abolished all fees associated with making and processing access requests.
In light of these considerations, and after contemplating a number of alternatives to update the fee structure, the Commissioner has come to the conclusion that the fees for making and processing access requests should be eliminated in their entirety. This would result in the following benefits:
- the administration of the Act would be simplified;
- there would be more timely access for requesters;
- the Act would be consistent with open government principles; and
- the importance of information as a public asset would be underscored.
The Information Commissioner recommends eliminating all fees related to access requests.