Summary of Submissions

Open Dialogue on Modernizing  the Access to Information Act

September 2013

Access to information is as an essential component of a vibrant democratic society. It allows the public to participate meaningfully in the democratic process, to hold government to account and to exercise their right to know. Access to information underpins many of our most cherished rights and freedoms: the freedom of expression, the freedom of the press and the right to vote. Legislation of this nature, which expresses the core values of citizens, cannot remain static; it must continue to evolve.

When Canada’s freedom of information law, the Access to Information Act, came into effect in 1983 it was characterized as groundbreaking. At that time, Canada was one of a handful of countries to enact freedom of information legislation.

Since that time, countries around the world have adopted their own freedom of information laws, building upon and improving the legislation first put into place by pioneers like Canada. In addition to providing more sophisticated access to information regimes, these new laws also take into account the tremendous advances in technology that have occurred over the past few decades, technologies that did not exist at the time Canada’s Act was written. And yet, despite these international innovations, Canada’s Act has not seen any major changes in its 30-year history.

Recognizing the need to modernize the Act, the Office of the Information Commissioner decided to embark on a substantive review process. As part of this process, from September 2012 to January 2013, we solicited input and advice from the public, the information community and international counterparts on how to improve the Act.

The questions we asked covered a broad range of topics, from who can make an access request to the Information Commissioner’s powers.

In response, we received submissions from 44 groups and individuals—including two petitions with over 2,300 signatures—representing a broad spectrum of opinions, both in Canada and internationally.

This report summarizes the feedback we received. We have also published all of the submissions, as well as other related documents, on our website.

Theme 1—The Right of Access

The first set of questions we asked related to something generally referred to as “the right of access.” Access laws are based on the fundamental democratic principle that people have a right to know about the actions of their government; providing a right of access to government information allows the public to hold government to account. The right of access encompasses who can make an access request, what institutions are subject to the Act, what records can be obtained and what process is used to obtain information.

At present, the right of access to government-held information is limited to Canadian citizens, permanent residents, as well as individuals and corporations who are present in Canada. Of the 18 contributors who addressed who can make an access request, the majority said that the right of access to information should be open to anyone, including non-citizens, and should be considered a universal right. In its submission, the Canadian Bar Association pointed out that “the [Access to Information Act] is an anomaly in restricting rights to Canadian citizens and permanent residents.”

Top 10 issues most commented on

Oversight model
Proactive disclosure
Right of access
Scope of the Act
Injury-based exemptions
Public interest override
Cabinet confidences
Fees
Format of requests
Order-making powers

With regard to the scope of the Act (determining which government institutions should be covered by the Act), all but one answer said the Act should be extended to cover all federal entities. In its submission, Newspaper Canada stated that “all federal entities should be subject to the ATIA on principle. The basic logic behind the Act is that taxpayers deserve to know how their taxes are being spent and how policies that affect them are being decided.”    

Some suggested adopting a generic definition of “public body,” whereas others said the Act would benefit from broadening the criteria of what is a “public body.” Alasdair Roberts, a professor who has written extensively on access to information regimes, favoured a functional approach. He wrote “it is the character of the work performed by an organization, and not its structure, that should determine whether it is subject to” the Act.

Contributors also stated that records produced by an entity receiving funds from the federal government should be covered by the Act. This would include any Canadian government body, organization, foreign project, foundation or private sector company contracted by the federal government whose operations are funded in whole or in part by Canadian tax dollars.

We also asked contributors to specifically consider extending the Act to cover the Courts and Parliament, as well as the offices of ministers. The Canadian Journalists for Free Expression noted that “it is hard to comprehend how two of the most significant institutions in the functioning of Canadian democracy are not subject to access to information inquiries.” Other contributors said the Act should cover these bodies, with caveats. In terms of the Courts, many contributors stated that coverage should be limited to only those records related to the Courts’ general administration. Respondents to this question also recognized that when the Information Commissioner is reviewing documents from ministers’ offices and Parliament, Cabinet confidentiality and parliamentary privilege must be kept in mind.

The process to obtain a record is essential to the right of access because it is how the right is exercised. Given its importance, we asked several questions about how a record is obtained.

We first queried whether the definition of “record” is sufficiently broad. Of the ten people who responded to this question, the majority wrote that the definition is unclear and needs to be further clarified.

In addition, we asked what format a request should be in. The majority of contributors stated they wanted government institutions to accept access requests in any format, including by mail, by email, online or orally by telephone or in person.

The next question, as to whether the Act should require the payment of fees, generated 17 responses. Generally, contributors stated they were in favour of removing fees, especially the application fee that requesters must pay at the time of making a request. In its submission, the B. C. Freedom of Information and Privacy Association noted that “the information that governments create belongs to the public.” The reasons for removing fees were diverse: some wrote that applying fees is undemocratic and goes against the right to access; others stated that fees act as a barrier or deterrent to access; finally, some were adamantly against fees because citizens have already paid for access to records through their taxes.

A few respondents to this question wrote that fees serve a purpose, at least when they are set at a low rate. Fees represented a practical way for public bodies to recoup some of the resources required for processing requests and encouraged applicants to be more reasonable about the scope of their requests.

Some contributors also had specific suggestions regarding fees. A few stated they supported charging fees for making copies of responsive records, as long as the fees were limited to the actual costs incurred and did not exceed market rates. Another suggested providing records in electronic format where possible, as a way to avoid copying fees altogether. One contributor recommended that the number of free search hours, which is currently set at five, should be increased to ten. Lastly, another wanted the Act to clearly state that fees may not be charged for severing or reviewing a record.

We also asked a set of questions specifically about waiving fees. The majority of those who responded to these questions stated they supported including a fee waiver clause in the Act. Respondents to these questions wrote that fees should be waived where the fees caused financial hardship, where releasing the record was in the public interest, or where the government institution had not met legislated time limits. The access to information laws of the United States, Ontario and British Columbia were suggested as models to follow.

A duty to assist requesters was added to the Act in 2007. This duty requires institutions to make every reasonable effort to respond to the request accurately and completely and to provide timely access to the record in the format requested. We posed the question as to whether there should be consequences for the failure to meet this duty. Very few contributors responded to this question. Generally, most of those who did respond argued for stronger incentives to comply with this duty.

We also asked whether the Act should address frivolous and vexatious requests. Most contributors stated they saw the need—some wholeheartedly, others with great caution—to address this problem. Some cautioned that such requests are rare or difficult to define and recommended that the Information Commissioner play a role in determining whether a request is frivolous or vexatious.

In the final section on the right of access, we asked five questions pertaining to the timelines for responding to a request. On average, there were eight responses to each question about the time limit.

Of those who did respond to these questions, many pointed out that Canada does not meet the global standard for response times. Amongst the world’s freedom of information laws, the average request response time is two weeks. The majority of contributors stated that the Act’s time limits should match the global standard.

Administrative Consequences for Missing Deadlines: Contributor Suggestions

Issue a directive to the institution

Force institutions to submit compliance plans to our office

Deny institutions that consistently fail to meet statutory deadlines a portion of their Parliamentary appro-priation

Award or deny bonuses to heads of institutions on the basis of access performance

According to some contributors, the current rules regarding deadlines and extensions are ineffective and “provide no incentive to officials to meet time limits.”

In terms of extensions, most responses to this question proposed fixed periods of time for extensions. Also, contributors added that if an institution needs to prolong a time extension, it should have to ask for the Information Commissioner’s authorization.

The contributors to these questions also unanimously stated that a mechanism to ensure that institutions meet deadlines should be put into place. Some suggested that we should look to other jurisdictions, such as Mexico or India, to examine how they treat breached deadlines.

Theme 2—Limitations to the Right of Access

The second set of questions we posed concerned limitations to the right of access. All access to information legislation includes some limitations on the information that governments are required to disclose, for such reasons as national security, personal privacy or other concerns. We were interested in knowing the public’s opinion about these limitations.

First, we asked whether all exemptions to the Act should be discretionary. According to the majority of those who responded to this question, exemptions should be discretionary. Some contributors also stated that exemptions should be subject to a harm test and a public interest override. Journalist Stanley Tromp wrote that “access should be denied only when disclosure would pose a reasonable possibility of substantial harms, based on a balance of probabilities and real evidence for injury.” A few contributors did note that personal information and information that would endanger national security if released should not be subject to a discretionary exemption.

We next inquired as to whether exemptions should be targeted at specific institutions or should be of general application. We included this question because in 2006 the federal government passed the Federal Accountability Act¸ which increased the coverage of the Access to Information Act by about 70 institutions. However, in response to this increased coverage, the Federal Accountability Act also introduced into the Act a number of institution-specific exemptions and exclusions. The few people who responded to our question about specific exemptions stated that the exemptions should be of general application because there was no apparent justification for having specific exemptions.

We were also interested in knowing whether a modernized act should include a general public interest override. This question was one of the most popular, answered by nearly half of all contributors. The majority stated that all exceptions, exemptions or limitations should be subject to a public interest override.

Another limitation to the Act can be found in section 24, which provides that disclosure shall be refused when the disclosure is restricted by any of the 77 provisions listed in Schedule II. We asked a number of questions on how to limit the proliferation of these limitations.According to the majority of responses received, the Act should be amended to override all secrecy provisions in other federal statutes.

We also asked several questions about the specific exemptions found in the Act. The first exemption addressed was personal information, section 19 of the Act. We wished to know if the definition of personal information should be changed. Approximately half of the respondents to this question proposed to change the definition, which is contained in the Privacy Act, to include such things as DNA, fingerprints and sexual orientation. They also suggested that salaries and all other forms of remuneration for public officials should not be protected. When asked whether the definition of personal information should incorporate an invasion of privacy test, most of those who responded said that a test similar to British Columbia’s Freedom of Information and Protection of Privacy Act should be used. However, the federal Privacy Commissioner of Canada did not agree with introducing an invasion of privacy test. Her concern was that the test could result in a subjective application of the law across Canada.

Next, we asked about the exemption for foreign, provincial, municipal and aboriginal government information, found in sections 13 and 14 of the Act. The majority who addressed these exemptions stated it should be a discretionary exemption with an injury test. In terms of international affairs, defence and national security, section 15 of the Act, half of the responses regarding this exemption included acknowledgement that it was necessary to protect certain information in specific circumstances. Some contributors also stated that this exemption should include a 20-year time limit; others recommended applying a general mandatory public interest override.

We also posed several questions regarding third party information, found in sections 20, 27 and 28 of the Act. Most respondents to these questions believed there should be a discretionary exemption for this kind of information. A few also noted that the details of a third party’s contract or bid for a contract with a government institution should be disclosed. Two contributors added that when a third party is given notice of the intention to disclose information, the third party should not be able to rely on exemptions other than those related to third-party information.

With respect to the exemption for economic interest of government institutions (sections 18 and 18.1), the majority of those who responded to questions about this topic stated that the current exemptions protecting the commercial interests of government institutions should be changed; however, there was no consensus about what the change should be. Some recommended making this exemption discretionary, whereas another stated the exemption should be abolished altogether.

In terms ofthe exemption for advice to the executive, found in section 21 of the Act, all contributors who responded to the relevant questions stated they were in favour of amending this section. The majority wrote that the time limit to the exemption should be reduced from twenty to five years.

We also specifically asked whether the Act should apply to Cabinet confidences, as section 69 currently states that it does not. This was one of the most popular questions. We received 17 responses, with the majority stating the Act should apply. The Centre for Law and Democracy noted, “the fact that the ATIA contains blanket exclusions that overlap with targeted exceptions is troubling in what it reveals about the general attitude of Canadian authorities towards disclosure. By constructing multiple lines of defence against information requests, the law treats openness as a threat to be neutralized rather than as a human right to be promoted.” Another contributor specifically suggested that the category of records considered “confidences of the Privy Council” should be specified and the definition of “discussion papers” should be considerably broadened. Many contributors specifically recommended that the exclusion be changed to an exemption.

With respect to the exemption for solicitor-client privilege, found at section 23, a few contributors stated they were in favour of holding government accountable for costs spent on legal fees. The Canadian Bar Association noted, however, that “it would be difficult to draft an exemption for legal billing information sufficiently nuanced to enable government institutions to restrict access to information about legal fees without attracting the protection of privilege.” The majority of those who addressed this exemption stated that government institutions should be encouraged to waive their privilege; however, this should not be a legislative requirement. Responses were mixed as to whether government institutions should benefit from the same scope of legal privilege as private parties and whether there should be separate exemptions for legal advice privilege and litigation privilege.

The next exemption we addressed was for investigations, found at sections 16 and 16.1 to 16.5 of the Act. Of the few people who responded to whether the section should be amended, half stated that an injury test should be used for the entire section. In addition, a few believed that institution-specific exemptions for investigations or audits conducted by agents of Parliament were not required.

We ended our questions regarding exemptions by inquiring about some provisions that are not currently in the Act. First we asked whether class-based exemptions should be limited in time, and if so, for how long.Those who responded said there should be no class-based exemptions at all. Second, we wanted to know whether there should be specific exemptions applicable to the decision-making and other procedural aspects of administrative tribunals. The only contributor who answered this question was not in favour of adding specific exemptions applicable to the decision-making and other procedural aspects of administrative tribunals.

Theme 3—Oversight and Powers

The Information Commissioner is an ombudsman who uses mediation and suasion, rather than order-making, to resolve complaints. As such, Theme 3 raised questions that concerned this oversight model, including the Commissioner’s powers. In addition, this theme asked questions about the complaint process, offences and sanctions and judicial review. It also addressed the reporting requirements to Parliament contained in the legislation.

We initially asked what changes, if any, should be made to the current oversight model established by the Act. This question, tied with another question in Theme 4 about proactive disclosures, generated the most responses of all the questions we asked. Generally, the majority of those who responded believed the Information Commissioner should have strong and unfettered powers. The majority of respondents to this question recommended that the Act abandon its ombudsman model and adopt an order-making model. The Centre for Law and Democracy pointed out that “an empowered oversight body is essential to an effective right to information regime.” British Columbia’s Information and Privacy Commissioner also stated that she found it extremely important to have order-making power: “We believe that the purposes of [the Freedom of Information and Protection of Privacy Act] are better served by a regulator with the authority to compel compliance, as opposed to an ombudsman model that relies on recommendations and persuasion. This power gives our adjudication of issues greater authority and provides administrative tribunal justice in a timely manner.”

Our next set of questions covered the process for reviewing a complaint. First, we asked whether the Information Commissioner should have the discretion to extend the deadline for complaint submissions. We received mixed responses to this question; some in favour, some against. However, of those who answered the question, all were in favour of the Commissioner having the discretion to not investigate a complaint that was frivolous or vexatious. According to the CBA, the “[c]omplaint investigation backlog will only be exacerbated if the Information Commissioner cannot deal expeditiously with complaints that clearly lack merit, are or become moot . . . or relate to issues decided in previous cases. Discretion is an important tool for the Information Commissioner to efficiently manage the complaint process.”

In addition, of those who responded, all agreed there should be a time limit on the Information Commissioner’s investigations, although there was no consensus on the length of the time limit.

Lastly with respect to process, we asked whether direct recourse to the Federal Court should be available to requesters, without first having to complain to the Information Commissioner. This question generated mixed responses. Of those who responded, some stated this was a good option. However, others, such as the CBA, noted that “the Information Commissioner is best placed to make initial determinations in a timely fashion, resulting in a more efficient use of limited government resources. Many requesters do not have the skills or resources to take advantage of direct judicial recourse.”

Additional Powers and Legislative Requirements

Contributors suggested a number of additional powers and legislative requirements to be added to the Act or given to the Information Commissioner, beyond the ones we specifically asked about.

  • Give the Information Commissioner the power to obtain from government institutions any statistics concerning the administration of the Act in order to prepare performance-based reports.
  • Give the Information Commissioner the power to order the amendment of government policies or guidelines, including fee schedules.
  • Require the Standing Committee on Access to Information, Privacy and Ethics to hold public hearings (however brief) on the Information Commissioner’s annual reports within 90 days of their being tabled in the House of Commons.
  • Give the Information Commissioner the power to advise on proposed legislative initiatives.
  • Allow the Information Commissioner to establish programs to train public servants about their responsibilitiesunder the Act.

Next, we posed two questions about the Information Commissioner’s reporting obligations. First, we wanted to know if the Commissioner should publish summaries of her investigative findings on a regular basis. All respondents to this question stated that the Commissioner should have the ability to publish summaries of her investigative findings. Second, we asked whether the Commissioner’s discretion to report instances where she believes she has evidence of a commission of an offence should be extended to all individuals, and not limited to officers, employees or directors of government institutions. Of those who responded, all stated they agreed that the Commissioner’s discretion with respect to this issue should be extended.

Additional Powers and Legislative Requirements

Contributors suggested a number of additional powers and legislative requirements to be added to the Act or given to the Information Commissioner, beyond the ones we specifically asked about.

  • Give the Information Commissioner the power to obtain from government institutions any statistics concerning the administration of the Act in order to prepare performance-based reports.
  • Give the Information Commissioner the power to order the amendment of government policies or guidelines, including fee schedules.
  • Require the Standing Committee on Access to Information, Privacy and Ethics to hold public hearings (however brief) on the Information Commissioner’s annual reports within 90 days of their being tabled in the House of Commons.
  • Give the Information Commissioner the power to advise on proposed legislative initiatives.
  • Allow the Information Commissioner to establish programs to train public servants about their responsibilitiesunder the Act.

We were also interested in knowing whether any changes should be made to the sections relating to judicial review by the Courts. We received a number of suggestions about this topic, such as waiving court costs if the applicant was acting in good faith and in the spirit of the public interest, and expanding the scope of judicial review to include fee assessments and other administrative matters.

The next section of queries pertained to offences and sanctions. Specifically, we asked what changes, if any, should be made to the Act’s provisions on offences and sanctions. All of those who responded stated the Act should include stronger deterrents, such as increasing the maximum fines, adding additional penalties for failing to create records, or empowering the Information Commissioner to issue directives to correct patterns of violations. 

There were also a few questions regarding the Information Commissioner’s mandate. First, we asked whether the Act should give the Commissioner an audit function. All but one respondent to this question stated that the Commissioner should have an audit function. Second, we asked whether the Act should expressly grant the Commissioner a research or educational mandate. This question generated several responses, all of which stated that the Act should include a public education and research mandate. The Canadian Bar Association noted that “the ATIA is one of the central tools for citizen engagement and understanding of the operations of the federal government. As such, public education about the ATIA is important.”

The last question under Theme 3 was whether the Act should have a periodic review built in. All of those who responded to this question stated that periodic review should be included in the Act. Every five years was the most frequently suggested timeframe. In its submission, the B. C. Freedom of Information and Privacy Association pointed out that “the current archaic law is the result of Parliament’s failure to modernize legislation on a regular basis. This is particularly true for laws in fast changing fields such as information management and rights.”

Theme 4—Information Management

The final theme addressed Information Management broadly and as specifically framed by the duties to manage information, to publish information and to document decision-making processes.

We first asked what role, if any, the Information Commissioner should have in relation to information management in government institutions. Of those who responded,the majority stated that the Commissioner should be provided with a certain role in information management. Submissions included suggestions such as instituting Access by Design systems and implementing a systematic declassification schedule.

We also asked whether the Act should include a duty to publish information. Of those who responded, the majority stated that the Act should include this duty. Several submissions included suggestions regarding the process that should be used to accomplish this objective and what types of documents should be subject to the duty. 

As a related question, we asked whether proactive disclosure practices should be formalized in legislation or via other, non-legislated alternatives. This question received a significant number of responses; it was tied in popularity with the question in Theme 3 regarding oversight models. Generally, respondents to this question stated that government institutions should be required to proactively publish materials. The B. C. Freedom of Information and Privacy Association wrote that proactive disclosure should be guaranteed in law “so that the public is not left to depend on the uncertainties of regulations, and voluntary practices that could be curtailed any day.”

Publication schemes were frequently suggested as an option for enforcing proactive disclosure, although there were mixed responses regarding the level of involvement the Information Commissioner should have in the creation, approval, maintenance and review of such schemes. The majority who suggested publication schemes were in favour of the Commissioner being involved at least at the creation and review stages. Another example of proactive disclosure came from Canadian Journalists for Free Expression, who suggested that “documents released to an individual should then be made available to all Canadians” as a method of proactive disclosure and to prevent duplication of effort.

Our final question was whether the Act should include a duty to document decision- making processes. According to all the responses to this specific question, the Act should include a duty to document the decision-making process of government bodies covered by the Act. 

Participants

  1. Patrick Marleau
  2. John A. Weiler
  3. John McMillan, Information Commissioner of Australia
  4. Dean Beeby, Journalist, The Canadian Press
  5. Barb Goertzen
  6. B. C. Freedom of Information and Privacy Association
  7. Monique Dumont
  8. Progressive Librarians Guild–London Ontario Chapter
  9. Observateur de l’information
  10. Stanley Tromp, Journalist
  11. Tina L. McKinnon
  12. Nancy Massie, Information Asset Services/Access to Privacy, Information Centre Aurora
  13. Office of Government Information Services, National Archives and Records Administration of the United States
  14. Anonymous
  15. Probe International
  16. Jennifer Stoddart, Privacy Commissioner of Canada
  17. Petition no. 1
  18. Centre for Law and Democracy
  19. Ken Rubin
  20. Heather Morrison, PhD, The Imaginary Journal of Poetic Economics
  21. Gregory Michener
  22. Immanuel Giulea
  23. Canadian Environmental Law Association and Ecojustice
  24. Peter Meyler
  25. Rob Moorcroft 
  26. Mark Weiler, PhD, Master of Library and Information Science, Candidate, Western University
  27. Democracy Watch and Open Government Coalition
  28. Québec Ouvert et Nord Ouvert
  29. Canadian Journalists for Free Expression
  30. Canadian Library Association
  31. Canadian Committee for World Press Freedom
  32. Canadian Bar Association–National Privacy and Access Law Section
  33. Newspapers Canada
  34. Fred Vallance-Jones, Associate Professor of Journalism, University of King’s College
  35. Fighter for FOI
  36. Elizabeth Denham, Information and Privacy Commissioner of British Columbia
  37. Via Rail Canada et la Société Radio-Canada/CBC
  38. Samuelson-Glushko, Canadian Internet Policy and Public Interest Clinic
  39. British Columbia Library Association
  40. Gary Dickson, Information and Privacy Commissioner of Saskatchewan
  41. Ron Sterritt
  42. RBM Roy
  43. Petition no. 2
  44. Alasdair Roberts, Professor, Suffolk University Law School, Boston