During Information Commissioner Legault’s appearance before the Access to Information, Privacy and Ethics Committee (ETHI) on February 25th, 2016, several questions were asked regarding the first recommendation from her report, Striking the Right Balance for Transparency: Recommendations to Modernize the Access to Information Act.
Recommendation 1.1 from the Information Commissioner’s report is as follows:
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.
Specifically, members from the committee wanted more information with respect to the first (funded in whole or in part) and third (perform a public function) criteria.
This submission endeavours to assist the committee by setting out the following:
- explain in more detail the purpose of chapter 1 of her report and recommendation 1.1;
- put forward possible options for the application of the criteria; and
- provide examples of institutions that would become subject to the Access to Information Act (the Act) were criteria for coverage adopted.
The Purpose of Chapter 1: Extending Coverage
Generally, chapter 1 of the Information Commissioner’s report recommends that coverage of the Act should be extended. In this chapter she recommends that a number of specific institutions should be covered by the Act, including ministers’ offices, the bodies that support Parliament, and also the bodies that provide administrative support to the courts.
In addition, she also recommends that criteria for coverage be adopted. In her report, she puts forward five suggested criteria. This recommendation can be found at recommendation 1.1. The criteria that are recommended are intentionally overlapping, as this ensures the broadest coverage possible without leaving gaps.
There are several principled reasons for extending coverage of the Act. Broad coverage ensures access to as much information about government operations and decisions as possible. Broad coverage enables citizens to assess the quality, adequacy and effectiveness of services provided to the public and scrutinize the use of public funds. This increase in transparency, in turn, increases accountability to the public.
The use of criteria as a way to determine which entities should be subject to the Act is a rational approach to coverage, as it promotes predictability with respect to which entities are subject to the Act. It also ensures consistency and coherence, so that institutions that exercise similar functions are equally subjected to the Act.
However, determining what criteria to implement and ultimately deciding which entities should be subject to an access law has been a longstanding subject of study and debate. Due to the incredible variety of ways in which governments deliver programs and services, the topic of coverage is considered "the most complex, amorphous and perplexing topic in [right to information] theory and practice."
To assist ETHI in studying this complex aspect of access to information law, the Office of the Information Commissioner has reviewed academic papers, studied access to information legislation where criteria for coverage is in use, and surveyed the list of entities in Canada at the federal level that receive public funding or in which the government has a corporate interest.
Institutions Funded in Part by the Government of Canada
In her report, the Information Commissioner recommends that institutions should be subject to the Act if they are funded in whole or in part by the Government of Canada. During the Commissioner’s appearance before ETHI, she committed to provide the committee with more information on what the threshold of public funding might be for subjecting an institution to the Act, or conversely, whether there may be a de minimis amount of public funding that an institution could receive that would not trigger coverage under the Act.
The use of public funding as a criteria for coverage was studied in the paper “The Right to Information and the Expanding Scope of Bodies Covered by National Laws since 1989”. According to this paper,
[t]he amount of public funds required to subject private entities to [right to information] requirements varies. The laws of Denmark and Serbia suggest that more than 50% public funding is required. India’s Central Information Commission determined that a private entity will be considered to be substantially financed by the government if it receives grants or loans from the central or state governments totaling more than (a) [Indian Rupee] 2.5 million (about US$60,000) or (b) 75% of its total budget. More recently, the Madras High Court found that receipt of 37% of total funding from public sources sufficed to subject a private college to the [Right to Information] Act; the Court interpreted “substantial” to mean “real or actual” as opposed to trivial. None of the six Latin countries that apply their laws to private entities specify the amount or percentage of public funding required to trigger disclosure obligations.
In this same paper, the author recommends that an access law should clearly define what is meant by “substantial” or “non-trivial” funding so as to provide clarity. For instance, according to the author, “substantial” public funding could mean:
- Public funding equal to or more than 50% of an entity’s operating expenses;
- Public funding over a certain absolute amount; or
- Public assets received at a specific value or at a specified percentage of value or at an amount below fair market value.
In light of these considerations, and taking into account the types of entities that receive funding from the federal government, we believe the formula for determining the threshold of public funding that could trigger coverage under the Access to Information Act could be any of these options:
- Where an entity receives a loan, grant or contribution of five million dollars or more; or
- Where an entity receives 50% or more its funding directly or indirectly from the federal government; or
- A combination of a percentage of funding or an absolute threshold.
More details on each of these options, including examples, are set out below. Note that for each of these options, if an entity were to meet the criteria and become subject to the Act, coverage would extend only to the records that relate to the public funding.
Option A: Where an entity receives a loan, grant or contribution of five million dollars or more
Under this option, we propose that where an entity receives a loan, grant or contribution of five million dollars or more, it could be subject to the Act. The amount of five million dollars was chosen for two related reasons:
- In the Main Estimates, expenditures, grants and contributions equal to or in excess of five million dollars are voted on as separate line items.
- At the departmental level, departments must draw financial information directly from the authorities presented in the Main Estimates into their Departmental Performance Reports. In addition, departments are required to prepare supplemental reporting information as part of their Reports on Plans and Priorities for each transfer payment program that has total planned spending of five million dollars or more during the reporting year.
Since five million dollars has already been chosen as an appropriate amount to which to attach increased transparency and accountability obligations when reporting to Parliament, we propose that extending the Act to entities that receive public funding of this same amount is a logical extension of this same rationale.
If five million dollars was chosen as an absolute threshold to trigger coverage under the Act, the following is a non-exhaustive list of institutions that are not currently covered that would become subject:
- Canadian Blood Services (received $8,858,235 in 2014-2015 in transfer payments)
- The Nature Conservancy of Canada (received $20,010,376 in 2014-2015 in transfer payments)
- Canada Health Infoway (received $87,956,664 in 2014-2015 in transfer payments)
- The Canada Media Fund Corporation (received $134,146,077 in 2014-2015 in transfer payments)
- The Toronto Organizing Committee for the 2015 Pan American and Parapan American Games (received $189,762,765 in 2014-2015 in transfer payments)
Option B: where an entity receives 50% or more of its funding directly or indirectly from the federal government
Under this option, we propose a 50% funding threshold for triggering coverage under the Access to Information Act, where funding is provided directly (i.e. through the Main Estimates) or indirectly (i.e. through loans, grants and contributions or through fees or charges mandated by government). This approach is consistent with the international standards noted above.
If this option were adopted, the following is a non-exhaustive list of institutions that are not currently covered that would become subject:
- Canadian Council on Rehabilitation and Work (received $3,685,907 in 2015, representing 70% of its total funding that year)
- Canadian Agency for Drugs and Technology in Health (received $16,058,769 in 2015, representing 70% of its total funding that year)
- Canadian Foodgrains Bank (received $28,630,002 in 2015, representing 66% of its total funding that year)
Option C: A combination of a percentage of funding or an absolute threshold
Under this option, we propose that an entity could become subject to the Act when one of the two triggering circumstances are met:
- Either the entity receives a certain percentage of its funding from the federal government; or
- an absolute threshold, higher than five million dollars, of public funding is met.
This option would be suitable if the committee believes that five million dollars as proposed under Option A is too low a threshold.
This option would also address one of the drawbacks of Option B, which is that there are some circumstances where the 50% threshold of funding would not be met, even though substantial sums of public funding are provided to an entity by the federal government.
The 2015 Toronto Pan American and Parapan American Games are a good example of this circumstance. Although the federal government provided this organisation $189,762,765 in 2014-2015, the multi-party agreement signed by the federal government included a term that it would contribute “not more than 35% of total event costs and not more than 50% of total government assistance”. Under this term, the 50% triggering threshold we have proposed in Option B would never be reached, despite the substantial funding provided.
Under Option C, the absolute threshold could be set at high amount so it acts as a catch-all provision, capturing just those entities that receive substantial public funding, like the 2015 Toronto Pan American and Parapan American Games, which do not meet the percentage threshold.
Institutions That Perform a Public Function
In her report, the Commissioner also recommends that institutions that perform a public function should be subject to the Act. During her appearance, the Commissioner agreed to provide the committee with further information on what “public function” might include.
The purpose of this criteria is to ensure that the way in which an entity is constituted or funded does not preclude it from coverage under the Act, especially when its function is, for all intents and purposes, public in nature. This particular issue has become especially pressing as governments, not just in Canada, but around the world continue to downsize and divest services traditionally performed by the public service to the private sector. This criteria ensures that entities that act for the benefit of the public interest are subject to appropriate transparency and accountability mechanisms.
Note that if an entity were to meet this criteria and become subject to the Act, coverage would extend only to the records that relate to its public functions.
In order to understand what “public function” might include, we propose looking at the nature of the operations undertaken by the entity. A number of factors could be taken into consideration, such as:
- Is the entity performing a public function on behalf of the federal government within one of its areas of responsibility, such as health and safety, the environment, and economic security?
- Does the entity have the authority to regulate or set standards within a sphere of federal responsibility?
- Is the entity tasked with executing a public policy on behalf of the federal government?
An example of a private entity that performs a public function, based on consideration of the factors outlined above, is NAV CANADA. NAV CANADA is a privately run, not-for-profit corporation that owns and operates Canada’s civil air navigation service. Based on the criteria recommended by the Information Commissioner in recommendation 1.1 of her report, NAV CANADA would only become subject to the Act if a public function criteria was adopted.
Prior to the creation of NAV CANADA in 1996, Canada’s civil air navigation service was operated by Transport Canada (TC). Under the Civil Air Navigation Services Commercialization Act, the legislation that divested TC’s responsibility for air navigation service to NAV CANADA, there is a requirement that NAV CANADA provide all aircraft operators with civil air navigation services to the same extent as such services as were formerly provided by TC. The Minister of Transport retains authority to give directions to NAV CANADA on certain issues and NAV CANADA cannot change its letters patent or by-laws without approval from the Minister.
According to the Civil Air Navigation Services Commercialization Act, NAV CANADA’s functions include the following:
- providing aeronautical information services, air traffic control services and specified flight information services in Canadian airspace and any other airspace in respect of which Canada is responsible for providing air traffic control services. NAV CANADA has exclusive authority (subject to narrow exceptions) to provide this service;
- proposing regulations under the Aeronautics Act related to aeronautical radio navigation services and liability insurance, subject to the Minister of Transport’s approval;
- Charging fees from airlines and other owners and operators of aircraft. These fees must be consistent with a series of principles and requirements set out by legislation and can be appealed to the Canadian Transportation Agency.
Interestingly, when privatizing Canada’s civil air navigation service, the federal government determined that the Official Languages Act should apply to NAV CANADA as if it were a federal institution. A similar obligation was not imposed on NAV CANADA with respect to the Access to Information Act.
Despite its constitution as a not-for-profit, privately run corporation, NAV CANDA’s functions remain anchored within the public realm; it operates for the benefit of the public; it is overseen by and at times directed by the federal government; and its exclusive authority to regulate in an area of federal responsibility derives from and is protected by federal legislation. Yet, it is not currently subject to the Act and without a public function criteria, would not become subject.
We hope that the information provided will be of assistance to the committee. The issue of coverage is complex and there is no one size fits all approach. The Information Commissioner and her staff remain available if further questions arise.