2015 Chapter 1: Extending coverage

The Access to Information Act applies to about 250 institutions.^{Footnote 1} However, not all entities that spend taxpayers’ money or perform public functions are subject to the Act. The House of Commons, the Senate, ministers’ offices, the administrative bodies supporting the courts, airport authorities, NAV CANADA and the Canada Health Infoway are a few examples of entities that are not covered by the Act.^{Footnote 2}

Government management and administration have been transformed significantly since the Act came into force in 1983. Successive governments have expanded the type and altered the structures of organizations that perform government functions. Quasi-commercial entities, special operating agencies and public-private sector partnerships have become increasingly common modes for governments to carry out their business. Since many of these bodies are not covered by the Act, information about public functions and services is difficult to obtain or unavailable to the public through access to information requests.

Criteria for adding institutions

Broad coverage of public entities is necessary to ensure Canadians can gain access to as much information about government operations and decisions as possible. Without sufficient coverage, government information may lie outside the reach of the Act and therefore outside the reach of the public.

Currently, institutions may be brought under the Act by Order in Council or through other laws. The Act also allows the Governor in Council to prescribe criteria for adding institutions; however, this has never been done.

A criteria-based approach, found in various model laws, was recommended by a government appointed access to information reform task force and can be found in two access laws that have been highly rated by a civil society organization.^{Footnote 3} Criteria for determining whether an entity should be covered by the Act include whether it was established by statute, whether it receives substantial government funding or whether it carries out public functions or services.

Under criteria such as these, all public institutions—including the executive, legislative and judicial branches of government, as well as any bodies that are owned or controlled by government—would fall within the scope of the access legislation. Using criteria for coverage would also mean that the law would extend to entities that operate with substantial public funds or carry out public functions or services.^{Footnote 4}

Recommendation 1.1

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

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

Ministers’ offices

Departments exist to carry out the work of their responsible minister. Generally, the powers, duties and functions of an institution are vested by statute in the institution’s minister. The minister is ultimately responsible for the department’s activities.^{Footnote 5} However, in 2011 the Supreme Court of Canada determined that ministers’ offices are not institutions covered by the Act.^{Footnote 6}

Although the Court found that ministers’ offices are not part of the institutions over which they preside, it did acknowledge that some records located in ministers’ offices are subject to the Act. A two-part test was devised for determining whether records physically located in ministers’ offices are “under the control” of an institution and therefore accessible under the Act.^{Footnote 7}

Following this decision, the Treasury Board of Canada Secretariat issued Implementation Report No. 115.^{Footnote 8} In accordance with this implementation report, access to information officials must consider whether there are reasonable grounds to believe that there exist relevant records in the Minister’s office that would be considered to be under the institution’s control. Such evidence may come from, for example, records already obtained from the institution.^{Footnote 9} This causes delay in processing the request and risks records no longer being available.

Ministers and their parliamentary secretaries, ministers of state and the Prime Minister are public office holders who make decisions that impact Canadians.^{Footnote 10} These decisions also impact how tax dollars are spent. Ministers (and their staff) need to be accountable in disclosing information relating to the administration of their departments or other responsibilities, beyond what they currently release through proactive disclosure.^{Footnote 11} 

In some jurisdictions, including some Canadian provinces, the access law explicitly covers ministers’ offices. Model laws also cover ministers’ offices.^{Footnote 12} The access laws in Australia and New Zealand apply to ministerial records.^{Footnote 13}

The Commissioner recommends extending coverage of the Act to the Prime Minister’s Office, offices of ministers and ministers of State, and parliamentary secretaries. Thus, the exemptions in the Act would apply to the records in these offices, such as the exemptions protecting personal information or solicitor-client privilege. However, the Commissioner recognizes that these exemptions would not protect certain records in a minister’s office related to the minister’s parliamentary functions as a Member of Parliament.^{Footnote 14} It is the Commissioner’s recommendation that these records should be protected by a new exemption.

Recommendation 1.2

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

Recommendation 1.3

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

Parliament

Currently, Parliament is not covered by the Act. The 2014–2015 Estimates lists the combined budget for the House of Commons, the Senate and the Library of Parliament as $547,180,321. Some information on the finances of Parliament is publicly available, but it is often only in aggregate form and published in a schedule that removes the context. Concerns that arose in 2013 about the expenses of individual senators have shown that Canadians want more, and are entitled to, transparency and accountability from Parliament with respect to how taxpayer dollars are spent.

The access legislation in some Canadian provinces, as well as the U.K., covers the legislative branch to a certain degree, with protections for certain interests.^{Footnote 15} Model laws and some top-ranked right to information laws also cover the legislative branch^{Footnote 16} In addition, numerous reports—issued not only by the Office of the Information Commissioner but also by a parliamentary committee and the task force mandated with reviewing the Act in 2002—have recommended bringing Parliament under the Act.^{Footnote 17} 

Given these considerations, the Commissioner recommends that coverage of the Act should be extended 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.

However, the Commissioner also recognizes that certain records held by these entities could be subject to parliamentary privilege.^{Footnote 18} At present, the Act provides no protection to prevent an infringement of parliamentary privilege.^{Footnote 19}

Recommendation 1.4

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

Recommendation 1.5

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

Courts

The judicial branch and its administrative support bodies are not covered by the Act. The 2014–2015 Estimates lists the combined budget of the Supreme Court of Canada, the Office of the Registrar of the Supreme Court of Canada, the Courts Administration Service, the Office of the Commissioner for Federal Judicial Affairs and the Canadian Judicial Council as $611,143,383.

The constitutionally enshrined principle of judicial independence has been cited as the reason why these entities are not subject to the Act.^{Footnote 20} However, the access legislation of some provinces, as well as a number of other countries, applies to the courts’ administrative records.^{Footnote 21} To allow for administrative records to be disclosed while still protecting judicial independence, some laws exclude certain types of records from their scope. For example, the access laws of Alberta and British Columbia exclude records in court files, the records and personal notes of judges, and communications or draft decisions of persons acting in a judicial or quasi-judicial capacity.

Extending coverage of the Act to court support services would promote accountability and transparency in the spending of public monies. The Commissioner recommends extending coverage of the Act to the bodies that provide administrative support to the courts, such as the Registry of the Supreme Court, the Courts Administration Service, the Office of the Commissioner for Federal Judicial Affairs and the Canadian Judicial Council.

Recommendation 1.6

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

Recommendation 1.7

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