Striking The Right Balance for Transparency

Reference Guide to Recommendations to Modernize the Access to Information Act

Chapter 1: Extending coverage
# Section of the Act Current Recommended Change Why Previously Recommended
1.1 3

77

Definition of “government institution” limited to those institutions listed in Sch. I or Crown Corporations listed in Financial Administration Act and their wholly owned subsidiaries Move to criteria based approach for coverage. 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)
  • all institutions covered by the Financial Administration Act
  • Ensure all institutions that spend public money or perform public functions fall within scope of law
  • Align with model laws (OAS, Article 19, Tshwane Principles)
Task Force Report recommended a criteria based approach, where institutions may be covered if:
  • government appoints a majority of board members, or provides all of the financing through appropriations, or owns a controlling interest
  • the institution performs functions in an area of federal jurisdiction with respect to health and safety, the environment, or economic security
  • except where coverage would be incompatible with the organization’s structure or mandate
1.2 3 Ministers’ offices are not covered by the Act Extend coverage of the Act to the Prime Minister’s Office, offices of ministers and ministers of State, and parliamentary secretaries
  • Ministers (and their staff) need to be accountable in disclosing information relating to the administration of their departments or other responsibilities
  • Align with provinces that cover ministers’ offices (AB, MB, NB). Laws in AU and NZ cover ministerial records
  • Address delays in processing requests as a result of Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25 (PM’s agenda case) and Implementation Report No. 115.
  • Align with model laws (OAS, Article 19, Tshwane Principles, Open Government Guide)
 
1.3 New There is no exemption in the Act for information related to the parliamentary functions of ministers Add an exemption for information related to the parliamentary functions of ministers and ministers of State, and parliamentary secretaries as members of Parliament
  • Need to protect certain records in a minister’s office related to the minister’s parliamentary functions as a Member of Parliament
  • Task Force Report recommended an exclusion for political party records and personal, political and constituency records of MPs and Senators
1.4 3 Parliament is not covered by the Act Extend 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
  • Parliament spends public money (14/15 budget: $547,180,321)
  • Align with the UK, MX, India, Serbia
  • The access laws of ON, NFLD and QC all apply to some extent to the legislative branch
  • Align with model laws (OAS, Tshwane Principles, Open Government Guide)
  • Open & Shut, Task Force Report and Commissioner Grace recommended extending coverage of the Act to the House of Commons, the Senate and the Library of Parliament
  • Commissioner Marleau recommended extending coverage of the Act to records related to the general administration of Parliament
1.5 New There is no protection in the Act for parliamentary privilege Add a provision to the Act to protect against an infringement of parliamentary privilege
  • Need to protect parliamentary privilege
  • Align with the NFLD, UK, India
  • Task Force Report recommended an exclusion for information protected by parliamentary privilege
1.6   The administrative bodies that support the courts are not covered by the Act Extend 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
  • Court spends public money (14/15 budget: $611,143,383)
  • Align with provinces and other international jurisdictions that cover some of the court’s administrative records (AB, BC, MX, India, Serbia)
 
1.7 New There is no protection in the Act for judicial independence Exclude from the Act 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
  • Need to protect judicial independence
  • Align with provinces that exclude certain records in court files (AB, BC)
 
Chapter 2: The right of access
2.1 New There is no legislative duty to document Establish a comprehensive legal duty to document, with appropriate sanctions for non-compliance
  • Access to information relies on good recordkeeping and information management practices
  • There is a risk that records, especially instant messages, are deleted before access requests can be processed
  • Commissioners Grace, Reid and Legault have previously recommended such a duty
  • In 2013 and 2014, joint resolutions were issued by the provincial, territorial and federal Information and Privacy Commissioners recommending a legislated duty to create records in support of decisions of governmentFootnote 1
2.2 New There is no legislative duty to report unauthorised loss or destruction of records Create 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
  • Disposing records without authorization effectively denies the right of access
  • Align with US (Federal Records Act)
 
2.3 4 The right of access limited to Canadian citizens, permanent residents, and individuals and corporations present in Canada Extend the right of access to all persons
  • Align with all provinces, as well as Australia, UK, US, MX
  • Align with model laws (OAS, Article 19, Tshwane Principles, Open Government Guide)
  • Open & Shut and Task Force Report both recommended extending the right of access to any person
  • Commissioner Reid (OGA) also supported extending the right of access to any person

2.4

 

 

 

 

2.5

New There is nothing in the Act to allow institutions to refuse to process frivolous, vexatious or abusive requests

Allow institutions to refuse to process requests that are frivolous, vexatious or an abuse of the right of access 

The decision to refuse to process a request should be subject to appeal to the Commissioner

  • Dealing with frivolous, vexatious or abusive requests can place a strain on public resources, delay delivery of other services and has a negative impact on the rights of other requesters
  • Align with majority of provinces (BC, AB, MB, ON, QC, PEI, NB, NFLD) and international jurisdictions (UK, AU, NZ, MX)
  • Open & Shut and Task Force Report recommended that institutions should be able to refuse to process certain requests with the agreement of the Commissioner (Open & Shut: frivolous and vexatious requests; Task Force Report: frivolous, vexatious or abusive requests)
  • Commissioner Grace recommended allowing institutions to refuse to process requests that are frivolous or vexatious, with a right of appeal to the Commissioner. Commissioner Reid (OGA) recommended that institutions should be allowed, with the Commissioner’s consent, to refuse to process requests that are contrary to the purpose of the Act
2.6 10(2) The application of
s.10(2), which states that institutions do not have to tell a requester whether a record exists when they do not intend to disclose it, is not limited
Limit application of
s. 10(2) to situations where 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 Canadian government 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
  • disclose personal information, as defined in section 3 of the Privacy Act
  • S. 1(2) is overused and inconsistently applied
  • Align with provinces (BC, ON)
  • Open & Shut recommended limiting the application of
    s. 10(2) to only sections 13 (information obtained in confidence from other governments or international organizations of states), 15 (international affairs and defence), 16 (law enforcement) and 17 (safety of individuals)
  • Commissioner Hansen recommended that Parliament consider whether this section should apply to all or only some clearly specified exemptions
2.7 4(2.1) There is an obligation to provide information in the format requested, but this right is limited by the Regulations Require institutions 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
  • it is technologically impossible
  • Align with open government principles and the open government directive
  • Align with the UK, where institutions are required to make electronic datasets available—whether through proactive disclosure or in response to an access request—in a reusable format (as far as is reasonably practicable)
  • Commissioners Grace and Reid (OGA) recommended that information should be made available in the format most useful to the requester whenever the format exists or can be created with a reasonable amount of effort and at a reasonable cost
2.8 11 Fees can be charged under the Act Eliminate all fees
  • Determining fee amounts and processing fee payments adds complexity and results in delays for requesters
  • Fees lead to complaints to the Commissioner, which add further delays for the requester and administrative costs
  • Fees are contrary to open government principles
  • Open and Shut recommended eliminating application fees
Chapter 3: Timeliness

3.1

 

 

 

 

3.2

9 S. 9 allows extensions for a “reasonable period of time”

Limit extensions to a maximum of 60 days, calculated with sufficient rigour, logic and support to meet a reasonableness review

Extensions of longer than 60 days should be available only 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

  • Extensions are a recognized cause of delay
  • The majority of extensions taken by institutions are for less than 60 days
  • Oversight by the Commissioner of longer extensions will ensure appropriate use of lengthy extensions
  • Limiting extensions to a precise number of days is consistent with provincial and international standards
    • In all but one of the provinces, as well as in Australia and the U.S, the length of time for an extension is limited to a precise number of days, ranging from 10 to 40 days
    • Only ON allows extensions for a reasonable period of time
  • Align with model laws that also limit extensions to a precise number of days (OAS, Article 19)
  • Commissioner Marleau recommended that any extension longer than 60 days be subject to approval of the Information Commissioner
3.3 9(1)(a) The Act does not allow extensions for multiple or simultaneous requests when processing these requests would unreasonably interfere with the operations of the institution Allow institutions, with the 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
  • Multiple or simultaneous requests do occur and interfere with operations (CBC)
  • Align with other jurisdictions (AB, PEI, NFLDFootnote 2)
  • Commissioners Reid and Marleau made similar recommendations
3.4 9(1)(b) Allows extensions when consultations are necessary to comply with the request that cannot reasonably be completed within the original 30 days Make explicit that extensions for consultations 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
  • Current language of 9(1)(b) is broad and has led to different interpretations
  • Not clear whether consultations within an institution fall within the scope of 9(1)(b)
  • TBS has shifted guidance recently to allow extensions for internal consultations (except for approval processes)
  • Commissioner Reid made a similar recommendation
  • Commissioner Hansen noted this section was vague and should be clarified as to with whom consultations can take place
3.5 9(1)(b) Does not require consulted parties to respond to requests for consultations by a particular deadline 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
  • Consulted institutions have largely been responding to requests for consultations in a timely fashion
  • However, institutions have indentified this as a systemic issue causing delays
  • The OIC has investigated some instances where there are lengthy delays in responding to requests because the response to a consultation is not returned in a timely manner
 
3.6 9(1)(c) The Act provides 60 days to consult third parties 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
  • Institutions do not always respect legislated time limits for third party extensions
  • There is little incentive for third parties to respond to a notice in a timely manner or at all
  • This delays responding to requests
 

3.7

 

 

3.8

 

 

 

 

 

3.9

26 There is an exemption for information when it will be published within 90 days or within such a time as may be necessary for printing or translation Allow an extension when the requested information is to be made available to the public

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

Repeal s. 26

  • Give requesters more certainty as to when the information would be available because institutions would have to set a date upon which the extension would expire
  • Ensure that the request remains active until the information is disclosed
  • Commissioners Grace and Reid recommended that if publication does not take place within the legislated timeframe the records must be released forthwith and without any exemptions applied
3.10 9(1) Institutions are required to give written notice of an extension to the requester within 30 days of receipt of the request 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 Commissioner about the extension within 60 days following receipt of the extension notice
  • a statement that the requester has the right to file a complaint to the 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
  • Insert more discipline around the use of extensions
  • Ensure that requesters are given adequate information about the extension and their rights
 
Chapter 4: Maximizing disclosure
4.1 New There is no general public interest override in the Act Include a general public interest override in the Act, with a requirement to consider the following, non-exhaustive list of factors:
  • Open Government objectives
  • Environmental, health or public safety implications
  • Whether the information reveals human rights abuses or would safeguard the right to life, liberty or security of the person
  • Balance competing interests of the public’s right to know and the interest the exemption protects
  • Align with model laws (OAS, Article 19, Tshwane Principles), international standards, some provinces (AB, BC)
  • Open & Shut recommended a general public interest override where there are grounds to believe that the records reveal a grave environmental, health or safety hazard
  • Commissioners Grace and Reid (OGA) recommended a general public interest override
4.2 68
68.1
68.2
69
69.1
The Act contains exclusions Repeal all exclusions and replace with exemptions where necessary
  • Exclusions are contrary to the purpose of the Act, which provides that exceptions to the right of access should be subject to independent review
  • Align with model laws (OAS, Article 19) and international standards
 
4.3 13 The Act does not require institutions to seek consent to disclose information from provincial, municipal, regional or Aboriginal governments to whom the confidential information at issue belongs Require institutions to seek consent to disclose from provincial, municipal, regional or Aboriginal government
  • It is a straightforward exercise to seek consent from these levels of government within Canada
  • Reduce overuse of this exemption, particularly for historical records
 
4.4 13 The Act does not require institutions to seek consent to disclose information from foreign governments or international organization of states to which the confidential information at issue belongs Require institutions to seek consent where it is reasonable to do so from foreign governments or international organization of states
  • It is not always possible to seek consent from these governments since international consultations can be complicated by protocols of formal diplomatic channels of correspondence, language issues or government instability
  • Reduce overuse of this exemption
 
4.5 13 Consent is not deemed to be given when the consulted government fails to respond to a consultation request Where consultation has been undertaken, consent is deemed to have been given if the consulted government does not respond within 60 days
  • Address the observed lack of response from other governments to requests for consent
 
4.6 13 In circumstances where consent to disclose is given, or the information is made public, institutions may disclose the information Require institutions to disclose information when the originating government consents to disclosure, or where the originating government makes the information publicly available
  • Disclosure should be mandatory rather than discretionary when consent is obtained or the information is publicly available
  • Commissioner Reid (OGA) recommended disclosure be mandatory if the information is otherwise public or if the providing government consents to disclosure
4.7 14 There is an exemption for information which, if disclosed, could reasonably be expected to be injurious to the conduct by the Government of Canada of federal-provincial affairs Replace the term “affairs” with “negotiations” and “relations”
  • The term “affairs” is too broad to protect interest at stake (the government’s ability to conduct business, cooperate and negotiate across jurisdictions)
  • Align with other laws (BC, AB, SK, MB, ON, QC, NB, PEI, NFLD, AU, MX, UK use one or both of the terms “relations” and “negotiations”)
  • Open & Shut recommended “affairs” be replaced with “negotiations”
  • Commissioners Grace and Reid (OGA) both recommended replacing “affairs” with “negotiations”
4.8 14
15
There are two separate exemptions to protect intergovernmental relations Combine the intergovernmental relations exemptions currently found in sections 14 and 15 into a single exemption
  • Clarify that similar interests are being protected
  • Separate the exemption for national security into its own exemption
 
4.9 15 There is no statutory obligation to declassify information on a routine basis Create a statutory obligation to declassify information on a routine basis
  • Reduce overuse of section 15 for historical information
  • Routine review of documents with a view to declassification helps determine whether release would result in injury
  • Could result in more timely access to information, particularly with historical records
  • Federal Court noted the usefulness of a declassification process in Bronskill v. Minister of Canadian Heritage, 2011 FC 983 at para. 108
  • Task Force Report recommended Library and Archives Canada develop and adopt processes for the systemic bulk review and release of historical records
4.10 69.1 There is a mandatory exclusion for information that has been certified as confidential under
s. 38.13 of the Canada Evidence Act
Repeal s. 69.1
  • S. 15 already protects this information
  • It is an overly broad exclusion
  • Not subject to independent oversight
  • Commissioner Reid articulated the problems with s. 69.1 during his parliamentary appearances on Bill C-36 in 2001 and again before the Senate Special Committee on Anti-Terrorism (Review of the Anti-Terrorism Act) in 2005.
4.10 69.1 There is a mandatory exclusion for information that has been certified as confidential under
s. 38.13 of the Canada Evidence Act
Repeal s. 69.1
  • S. 15 already protects this information
  • It is an overly broad exclusion
  • Not subject to independent oversight
  • Commissioner Reid articulated the problems with s. 69.1 during his parliamentary appearances on Bill C-36 in 2001 and again before the Senate Special Committee on Anti-Terrorism (Review of the Anti-Terrorism Act) in 2005.
4.11 16 The protection in the Act for law enforcement information is a mix of mandatory, discretionary, class-based and injury-based exemptions Repeal:
  • s. 16(1)(a) information obtained or prepared for specified investigative bodies
  • s. 16(1)(b) information relating to various components of investigations, investigative techniques or plans for specific lawful investigations
  • s. 16(3) confidentiality agreements applicable to the RCMP while performing policing services for a province or municipality
  • s. 16(1)(c), which protects information which if disclosed could reasonably be expected to be injurious to the enforcement of any law, or the conduct of lawful investigations, sufficiently covers and adequately protects the law enforcement interest
  • Strikes the appropriate balance between the enforcement of laws and the public interest in the ability to scrutinize the activities of law enforcement bodies
  • Streamline the application of this exemption by institutions and reduce the concurrent application of multiple exemptions
  • Commissioners Grace and Reid (OGA) recommended repeal of s. 16(1)(a) and (b)
4.12 19 There is a class-based exemption for “personal information” Amend the exemption for personal information to allow disclosure of personal information in circumstances in which there would be no unjustified invasion of privacy
  • Appropriate balance between access and privacy
  • Creates a spectrum of protection
  • Align with provinces (all except SK and QC use this model)
 
4.13 19 There is no exclusion from the definition of personal information for business contact information The definition of personal information should exclude workplace contact information of non-government employees
  • Align with provinces (AB, ON, NB) and the Personal Information Protection and Electronic Documents Act (PIPEDA)
 
4.14 19 There is no allowance in the Act for compassionate disclosure of personal information Allow 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
  • Align with provinces (AB, SK, MB, ON, NB, PEI)
 
4.15 19 The Act is silent as to when an institution should seek the consent of an individual to disclose personal information Require institutions to seek the consent of the individual to whom the personal information relates wherever it is reasonable to do so
  • The Act should only protect personal information when the person to whom it relates wants it protected
 
4.16 19 There is no requirement to disclose personal information if consent to disclose is obtained Require institutions to disclose personal information where the individual to whom the information relates has consented to its disclosure
  • Disclosure should be mandatory rather than discretionary when consent is obtained
 
4.17 20 The protection in the Act for third-party information is a mix of mandatory, discretionary, class-based and injury-based exemptions 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
  • result in undue loss or gain to any person, group, committee or financial institution or agency
  • Balance need to protect third party information against:
    • transparency of public-private partnerships
    • accountability in government contracting,
    • government’s regulatory function
  • Focus the exemption so that it protects certain third party information when disclosure could reasonably be expected to cause significant harm
  • Streamline this exemption, thus reducing the concurrent application of multiple overlapping exemptions
  • Align with provincial laws (BC, AB, ON, PEI)Footnote 3 and OAS model law
  • Give an incentive to third parties to provide adequate representations to institutions to establish proof of harm
 
4.18 20 Institutions may disclose third party information where consent is obtained Require institutions to disclose information when the third party consents to disclosure
  • Disclosure should be mandatory rather than discretionary when consent is obtained
 
4.19 20(6) Limited public interest override Repeal
  • No longer necessary given recommendation of a general public interest override
  • Commissioner Reid (OGA) recommended repealing the limited public interest override in s. 20 in light of his recommendation to include a general public interest override in the Act
4.20 20 The application of the third-party exemption is not limited so that it cannot be applied to information about grants, loans and contributions The third-party exemption may not be applied to information about grants, loans and contributions given by government institutions to third parties
  • The public has an interest in knowing how this money is spent
 
4.21 21 There is a discretionary, class-based, time-limited exemption for advice or recommendations developed by or for an institution or a minister of the Crown Add a reasonable expectation of injury to the exemption for advice and recommendations
  • S. 21 is too broad
  • There is a public interest in providing citizens with the information needed to be engaged in public policy and decision-making processes so that citizens can have a meaningful dialogue with government and hold government accountable for its decisions
  • Open & Shut recommended adding an injury test to this exemption
  • Commissioners Hansen, Grace and Reid (OGA) also recommended adding an injury test to this exemption
4.22 21 The exemption for advice cannot be applied to:
  • an account or a statement of reasons for a decision that affects the rights of a person
  • a report prepared by a consultant or an adviser who was not a director, an officer or an employee of a government institution or a member of the staff of a minister of the Crown at the time the report was prepared
Broaden the list of records to which the exemption for advice cannot be applied to the following:
  • factual materials
  • public opinion polls
  • statistical surveys
  • appraisals
  • economic forecasts
  • instructions or guidelines for employees of a public institution
  • Limit application of this exemption
  • Align with provinces (BC, AB, SK, MB, ON, NB, NS, PEI, NFLD)
  • Task Force Report recommended broadening the list of records to which this exemption cannot be applied
  • Commissioners Grace and Reid (OGA) also recommended that the list of records to which the exemption cannot be applied should be broadened
4.23 21 The exemption for advice has a 20 year time limit The exemption for advice should have a 5 year time limit or be inapplicable once a decision has been made, whichever comes first
  • There is a public interest in citizen engagement
  • Consistent with open government commitments
  • Open & Shut and Task Force Report recommended the exemption have a 10 year time limit
  • Commissioner Grace recommended the exemption have a 10 year time limit
  • Commissioner Reid (OGA) recommended the exemption have a 5 year time limit
4.24 23 The solicitor-client privilege exemption has indefinite application as it applies to legal advice privilege The solicitor-client privilege exemption should have a 12-year time limit from the last administrative action on a file, but only as the exemption applies to legal advice privilege
  • The government’s public interest mandate provides heightened incentive to waive legal advice privilege to ensure greater transparency and accountability
  • Task Force Report recommended Library and Archives Canada develop and adopt processes for the systemic bulk review and release of historical records
4.25 23 The application of the solicitor-client privilege exemption is not limited so that it cannot be applied to aggregate total amounts of legal fees The solicitor-client privilege exemption may not be applied to aggregate total amounts of legal fees
  • Aggregate total amounts of legal fees are neutral information
  • Legal fees associated with the work done by counsel retained by institutions are funded by taxpayers
 
4.26 69 There is an exclusion from the Act for Cabinet confidences Create a mandatory exemption for Cabinet confidences when disclosure would reveal the substance of deliberations of Cabinet
  • S. 69 is overly broad (particularly 69(1)(g))
  • The exclusion for Cabinet confidences significantly hampers the Commissioner’s ability to provide effective oversight
    • The Commissioner cannot see the records at issue to independently assess if the exclusion was appropriately applied
    • Instead, tombstone descriptions of the records or circumstantial evidence concerning the record’s content are reviewed
  • Want to ensure protection from disclosure is based on the substance of the information at issue, instead of the record’s format or title
  • Align with provinces (all but NFLD have an exemption)Footnote 4 and AU, NZ, UK
  • The following have all contained recommendations to include an exemption, rather than exclusion, in the Act for Cabinet confidences:
    • The Green Paper that was a precursor to the Access to Information Act (class-based)
    • Bill C-43, which was the bill that introduced the Act (class-based)
    • Open & Shut(discretionary, class-based)
    • Task Force Report (mandatory, class-based)
    • Commissioners Grace and Reid (OGA) recommended an exemption where disclosure would reveal substance of deliberations
    • Commissioner Marleau recommended that the Act should apply to Cabinet confidences
4.27 69 The application of the exclusion for Cabinet confidences is limited so that it does not apply to discussion papers if the decision to which the discussion paper relates has been made public or, if the decision has not been made public, when four years have passed since the decision was made 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
  • where consent is obtained to disclose the information
  • Limit application of this exemption
  • Align with provinces (BC, AB, SK, MB, ON, NS and PEI list records to which the exemption cannot apply)
  • Task Force Report recommended that the Act be amended to allow access to background explanations and analyses
  • Commissioner Reid (OGA) recommended that the exemption should not apply to background explanations, analyses of problems or policy options presented to Cabinet
4.28 69 There is no restriction in the Act on who may investigate Cabinet confidences complaints at the OIC Restrict the number of officers or employees who can review Cabinet confidences
  • Given the sensitivity attached to Cabinet confidences
 

4.29

 

 

 

 

 

 

 

 

 

 

4.30

 

 

4.31

24 S. 24 is a mandatory exemption that requires government institutions to withhold information protected by a series of statutory provisions listed in Sch. II of the Act

Undertake a comprehensive review, made in consultation with the Information Commissioner, of all of the provisions listed in Sh. II and any legislation that otherwise limits the right of access

Any provision covered by the general exemptions in the Act should be repealed

Add new exemptions, in consultation with the Information Commissioner, where the information would not be protected by a general exemption

Repeal s. 24 and Sch. II

  • S. 24/Sch. II dilutes the right of access
  • Creates a complex regime of protection
  • Sch. II hasn’t be reviewed since Act came into force
  • Sch. II is growing
  • Most of the provisions listed in Sch II. are unnecessary
  • Unclear to what extent the Commissioner can exercise her independent oversight over the application of Sch. II provisions
  • Open & Shut recommended repealing s. 24 and replacing with mandatory exemptions where necessary
  • Task Force Report recommended Sch. II be examined to substantially reduce the number of provisions
  • Commissioners Hansen, Grace and Reid (OGA) recommended repealing s. 24
4.32 Sections
added by
FedAA
16.1-16.5
18.1
20.1-20.4
22.1
68.1
68.2
A mix of exemptions and exclusions were added to the Act to protect institutions brought under the Act by FedAA Undertake a comprehensive review, made in consultation with the Information Commissioner, of the exemptions and exclusions for institutions added by FedAA
  • Exemptions and exclusions added by FedAA introduced a patchwork regime of protection to the Act
  • Most are unnecessary
  • When these exemptions were introduced Commissioner Reid argued they were not necessary and should be repealed
Chapter 5: Strengthening oversight
5.1 37 The Act features an ombudsman model to resolve complaints Strengthen oversight of the right of access by adopting an order-making model
  • More timely processing of requests
  • More discipline and predictability in appeals process
  • Provide an incentive for institutions to make comprehensive and complete representations to the Commissioner at the outset
  • Create body of precedence
  • Provide finality to the requester
  • Puts burden on institutions to seek judicial review
  • Judicial review would be of Commissioner’s order and no longer de novo once at court
  • Align with provinces (BC, AB, ON, QC, PEI), UK, MX, India, model laws, top ranked progressive access laws
  • Open & Shut recommended power to issue binding orders for issues related to delays, fees, fee waivers and time extensions
  • Task Force Report recommended the government consider moving to an order-making model in the medium-term
  • Commissioner Marleau also supported order-making powers for administrative matters
5.2 30 The Commissioner is required to investigate all complaints Give discretion to adjudicate appeals
  • Ensure effective control of adjudicative process
  • Align with provinces that use an order-making model (BC, AB, ON, QC, PEI)
  • Commissioner Marleau recommended the Commissioner should have discretion on whether to investigate complaints
5.3 New The Act is silent with respect to mediation Give discretion to mediate
  • Provides a way to amicably resolve appeals or narrow issues for adjudication
  • Align with provinces that use an order-making model (BC, AB, ON, PEI)
  • Task Force Report recommended the Commissioner be fully empowered to attempt to effect the settlement of complaints through mediation
5.4 36(1)(a) Commissioner has the powers of a superior court of record, but no way to enforce orders Any order of the Commissioner can be certified as an order of the Federal Court
  • Similar to enforcement of orders of the Canadian Human Rights Tribunal
 
5.5 30(3) The Commissioner may self-initiate investigations related to information rights Maintain this ability
  • Align with provinces (BC, AB, QC, PEI)
 
5.6 New No mandate to audit compliance with the Act Provide for the power to audit compliance with the Act
  • Proactively identify issues
  • Align with other jurisdictions (BC, AB, QC, PEI) and model laws (Article 19 and OAS)
  • Task Force Report recommended the Commissioner should be authorized to conduct  assessments of practices within institutions having an impact on compliance
  • Commissioner Reid (OGA) recommended  that the Commissioner should be responsible for monitoring the administration of the Act
5.7 36 The Commissioner has strong investigative powers Maintain these powers
  • Supports investigative function
  • Align with other jurisdictions (BC, AB, PEI)
 
5.8 New No mandate to educate Provide for the power to carry out education activities
  • The Government’s Open Government commitments include fostering digital literacy skills; should also foster education on the right of access
  • Align with provinces (all but NS have this mandate) and UK, MX and model laws (Article 19, OAS and Open Government Guide)
  • Open & Shut and Task Force Report recommended the Commissioner should have such a mandate
  • Commissioners Reid (OGA) and Marleau also recommended such a mandate
5.9 New No mandate to conduct, commission or publish research Provide for the power to conduct or fund research.
  • Such a mandate can be found in PIPEDA for the Privacy Commissioner
  • Research would help generate information, insights, analysis and debate on access to information
  • Commissioners Reid (OGA) and Marleau recommended a research mandate
5.10 New No requirement to consult the Commissioner on legislation that impacts access rights Require the government to consult the Information Commissioner on all proposed legislation that potentially impacts access to information
  • Lack of consultation is leading to growth of Sch. II
  • Align with provinces (BC, AB, MB, QC NB, PEI, NFLD) and OAS model law
  • Commissioner Reid (OGA) recommended that the Information Commissioner be allowed to publicly comment on proposed legislative schemes
  • Commissioner Marleau recommended an advisory mandate on proposed legislative initiatives
5.11 New No requirement to consult the Commissioner on new programs or activities involving access to information rights Require institutions to submit access to information impact assessments, 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
  • Proactively address issues that may impact access to information rights
  • Commissioner Reid (OGA) recommended that the Information Commissioner be allowed to publicly comment on proposed government programs
5.12 54 Information Commissioner appointed for seven years, subject to one renewal, by Governor in Council after consultation with every recognized party in the House of Commons and Senate, and after approval by resolution of both houses Appoint the Information Commissioner by super majority (approved by more than two-thirds of the House of Commons and the Senate) 10 years relevant experience 10 year non-renewable term
  • Align with model laws
  • Consistent with other agents of Parliament
  • Commissioner Reid (OGA) recommended appointment by super-majority
Chapter 6: Open information
6.1 New There is no obligation in the Act to proactively publish information that is clearly of public interest Require institutions to proactively publish information that is clearly of public interest
  • Provide more information to the public proactively so the public may evaluate the government’s response to issues of public interest
  • Allow the public to pressure the government to take remedial action
  • Reduce the impact of events of public interest on the access system
  • Align with provinces (BC, AB, NS, PEI have broad obligation. ON, NB, NFLD have positive obligation to proactively disclose information in limited circumstances)
  • Open & Shut recommended that institutions be required to reveal information as soon as practicable where there are reasonable and probable grounds to believe that it is in the public interest to do so and that the records reveal a grave environmental, health or safety hazard
  • Task Force Report recommended that institutions should more systematically identify information that is of public interest and proactively disclose it
6.2 5 The Act requires publication of information registers Require institutions to adopt publication schemes in line with the Open Government Directive
  • Ensure the proactive publication of key information
  • Transform the access framework from a responsive to a proactive system
  • Decrease the need to make access to information requests
  • Reduce delays to obtain information
  • Task Force Report recommended that institutions make as much non-sensitive information available to the public in hard copy or electronic form, where there is an identified need or interest
6.3 New Proactive disclosure polices require disclosure of travel and hospitality expenses, contracts over $10,000 and grants, loans and contributions over $25,000 Include within the model publication scheme 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
  • Enhance accountability relating to the spending of public funds
 
6.4 New No requirement to proactively publish all records given in response to access requests Include within the model publication scheme 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
  • Reduce need for future information seekers to make formal information requests
  • Align with MX, US, AU
 
6.5 68 The scope of the Act does not cover:
  • published material or material available for purchase by the public
  • library or museum material preserved solely for public reference or exhibition purposes
  • material placed in the Library and Archives of Canada, or listed museums, by or on behalf of persons or organizations other than government institutions
Create 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 in listed museums by third parties
  • Material that is published or available for purchase is not always reasonably available to some requesters
    • i.e. inmates
  • Affordability is also sometimes an issue
  • Commissioners Hansen, Grace and Reid (OGA) recommended amending s. 68 to ensure that only information which is reasonably accessible is excluded
  • Commissioners Grace and Reid (OGA) also recommended s. 68 should address whether the information is reasonably priced
Chapter 7: Criminal liability and civil responsibility
7.1 67 This section prohibits obstructing the Commissioner in the performance of her duties Add obstructing the processing of an access request (or directing, proposing or causing anyone to do so) as an offence in the Act
  • The Commissioner has uncovered evidence that the processing of several access requests had been interfered with
  • At the time, there was nothing in the Act that prohibited these behaviours
 
7.2 67.1 This section prohibits the destruction, mutilation, alteration, falsification or concealment of a record Prohibit destroying, mutilating, altering, falsifying or concealing a record or part thereof or directing, proposing or causing anyone to do those actions
  • Make s. 67.1 consistent with the rest of the Act
 
7.3 New There are no sanctions in the Act for failing to document or preserve a decision-making process Prohibit 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)
  • This is coupled with the recommendation to add a duty to document to the Act
 
7.4 New There are no sanctions in the Act for failing to report the unauthorised destruction or loss of information Prohibit failing to report to Library and Archives Canada and/or notify the Commissioner of the unauthorised destruction or loss of information (or directing, proposing or causing anyone to do so)
  • This is coupled with the recommendation to add a duty to report to the Act
 
7.5 74 The Act provides that no civil or criminal proceedings lie against the head of any government institution, or against any person acting on behalf or under the direction of the head of a government institution, and no proceedings lie against the Crown or any government institution, but only in the following circumstances:
  • for the disclosure in good faith of any record or any part of a record
  • for any consequences that flow from that disclosure,
  • or for the failure to give any notice required under this Act if reasonable care is taken to give the required notice
No one acting reasonably and in good faith in the performance of their duties under the Act will be subject to sanction
  • Ensures that sanctions are only applied against those who act in bad faith or are negligent in the performance of their duties
  • Align with OAS model law
 
7.6 67

 

 

 

 

67.1

Fines are set at the following amounts:
S. 67
Summary conviction: $1,000 fine
Indictable offence: N/A S.

67.1
Summary conviction: $5,000 fine
Indictable offence: $10,000 fine

Increase fines
Summary conviction: $5,000 fine
Indictable offence: $25,000 fine
  • An increase in fines reflects the seriousness of violations
  • Fines are currently lower than many of the provinces (MB, NB, AB, PEI, BC, ON, NFLDFootnote 5) and other federal regulatory schemes (Elections, Lobbying)
 
7.7 New There are no sanctions outside of criminal offences in the Act Add an administrative monetary regime to the Act, with a requirement to publish any administrative monetary penalty imposed
  • Need spectrum of sanctions available under the Act
  • An AMP regime will allow the Commissioner to proportionately respond to the broad spectrum of actions she encounters that are not in compliance with the Act
  • Align with OAS model law, Conflict of Interest Act
 
7.8 New There are no sanctions outside of criminal offences in the Act Make adherence to the requirements of the Act a term and condition of employment for employees, directors and officers of institutions
  • Need spectrum of sanctions available under the Act
  • As part of the spectrum of possible sanctions, disciplinary proceedings should be an option
  • Would make it clear to those that work in institutions that they have responsibilities under the Act, are accountable for meeting them, and are subject to disciplinary procedures when these obligations are not met
  • Similar to s. 19 of Conflict of Interest Act
 
7.9 New There is no requirement in the Act to suspend investigations when there are reasonable grounds to believe that a criminal offence has been committed Suspend investigations when the Commissioner believes on reasonable grounds that a criminal offence on the same subject-matter of the investigation has occurred
  • Need to amend Act to be compliant with requirements of Supreme Court of Canada decisions in R v. Jarvis, 2002 SCC 73 and R v. Ling, 2002 SCC 74
  • Similar to Lobbying Act and Conflict of Interest Act
 
7.10 63(2) S. 63(2) allows the Commissioner to disclose information to the Attorney General of Canada when she is of the view that she has evidence of an offence against a law of Canada or a province by a director, officer or employee of an institution Permit the Commissioner to share:
  • any information where she believes a referral is warranted
  • about anyone’s conduct related to a criminal offence
  • to the appropriate authority
  • S. 63(2) does not set out what information the Commissioner may provide to the Attorney General
  • S. 63(2) is limited to the conduct of just directors, officers or employees. This means the conduct of consultants, contractors, ministers and their exempt staff cannot be referred
  • The Attorney General is not charged with conducting criminal investigations
  • Commissioner Legault made similar recommendations in her special report Interference with Access to Information: Part 1
Chapter 8: Mandatory periodic review of the Act
8.1 75(2) S. 75(2) required a onetime parliamentary review of the Act three years after it came into force, with a report tabled to Parliament within a year after the review was undertaken Mandatory parliamentary review of the Act every five years, with a report tabled in Parliament
  • Quickly fill gaps in legislative coverage identified in the Commissioner’s orders
  • Harmonize the Act with progressive national and international standards
  • Ensure Canada is a global leader in protecting the right of access and in being accountable to its citizens
  • Align with provinces (BC, QC, NFLD)
  • Open & Shut recommended another review of the Act within four years of the tabling of that report
  • Commissioners Reid (OGA) and Marleau recommended periodic review of the Act every five years
LEGEND
Green Paper Green Paper:  Legislation on Public Access to Government Documents (Secretary of State, June 1977)
Open & Shut “Open & Shut : Enhancing the Right to Know and the Right to Privacy”, the Report of the Standing Committee on Justice and Solicitor General (1987)
Task Force Report   Access to Information: Making it Work for Canadians - Report of the Access to Information Review Task Force (2002)
OGA The Draft Open Government Act was prepared by the OIC, John Reid, and tabled at the Standing Committee on Access to Information, Privacy and Ethics on October 25, 2005 (at the request of the Committee).
INFORMATION COMMISSIONERS
2010- Present Suzanne Legault
2009 Suzanne Legault (Acting)
2007-2009 Robert Marleau
1998-2006 John Reid
1990-1998 John Grace
1983-1990 Inger Hansen

Footnotes

Footnote 1

Since publication of Striking the Right Balance for Transparency, Newfoundland and Labrador’s access to information and protection of privacy law was amended. Under its previous access to information and protection of privacy law, the Commissioner could not exercise his oversight function if a record was refused from disclosure because it was certified an “official Cabinet record” by the Clerk of the Executive Council. This limitation on the Commissioner’s oversight has been removed and Cabinet records are now protected by a mandatory exemption.

Return to footnote 1 referrer

Footnote 2

Since publication of Striking the Right Balance for Transparency, Newfoundland and Labrador’s access law was amended. Under its previous access law, on summary conviction the fine was up to $5,000. Under the new 2015 access law, the fine on summary conviction is up to $10, 000.

Return to first footnote 2 referrer

Footnote 3

Since publication of Striking the Right Balance for Transparency, Newfoundland and Labrador’s access to information and protection of privacy law was amended. Under its previous access to information and protection of privacy law, the Commissioner could not exercise his oversight function if a record was refused from disclosure because it was certified an “official Cabinet record” by the Clerk of the Executive Council. This limitation on the Commissioner’s oversight has been removed and Cabinet records are now protected by a mandatory exemption.

Return to second footnote 3 referrer

Footnote 4

Since publication of Striking the Right Balance for Transparency, Newfoundland and Labrador’s access law was amended. Under its previous access law, on summary conviction the fine was up to $5,000. Under the new 2015 access law, the fine on summary conviction is up to $10, 000.

Return to third footnote 4 referrer

Footnote 5

Since publication of Striking the Right Balance for Transparency, Newfoundland and Labrador’s access to information and protection of privacy law was amended. Under the previous version of its access to information and protection of privacy law, extensions could be taken “where multiple concurrent requests have been made by the same applicant or multiple concurrent requests have been made by 2 or more applicants who work for the same organization or who work in association with each other.” Under the 2015 version of its law, the commissioner now has the authority to grant extensions “where the commissioner considers that it is necessary and reasonable to do so in the circumstances.” This would include situations such as multiple and simultaneous requests.

Return to fourth footnote 5 referrer