2015 Chapter 1: Extending coverage
The Access to Information Act provides a right of access to information in records under the control of a government institution
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.
The House of Commons: $413,725,137
The Senate: $91,485,177
The Library of Parliament: $41,970,007
The Office of the Conflict of Interest and Ethics Commissioner: $6,938,405
The Senate Ethics Officer: $1,166,750
The Supreme Court of Canada: $31,389,794
The Courts Administration Service: $68,044,743
The Commissioner for Federal Judicial Affairs: $511,708,846
$2.1 billion in funding (to date) to Canada Health Infoway
Up to $500 million for the Toronto 2015 Pan and Parapan American Games
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
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.
The facts underlying the Supreme Court of Canada decision illustrate the accountability deficit resulting from the lack of coverage of ministers’ offices. Some of the records at issue were notes taken by the exempt staff of the Minister of National Defence during regular meetings of the Minister, his Deputy Minister and the Chief of the Defence Staff. The subject matter of these meetings was only documented in the notes of the exempt staff and represented the only written record of what transpired during the meetings. The notes were located within the physical confines of the Minister’s office and were not taken by departmental employees. The Court held that the records did not meet the two-part test and therefore were not accessible under the Act.
Exempt staff refers to the political and partisan office staff of Cabinet ministers.
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.
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.
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.
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 branchFootnote 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
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.
The Information Commissioner recommends creating a provision in the Act to protect against an infringement of parliamentary privilege.
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.
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.
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.
- Footnote 1
The institutions covered by the Act are either listed in Schedule I of the Act or are Crown corporations (and their wholly owned subsidiaries), as defined in the Financial Administration Act, RSC, 1985, c F-11. The number of institutions subject to the Act has increased since it was enacted in 1983. For example, the Federal Accountability Act, SC 2006, c-9 brought 70 new institutions under the Act, including some Crown corporations and their subsidiaries, agents of Parliament (including the Information Commissioner), foundations and some agencies that spend taxpayers’ money or perform public functions.
- Footnote 2
Canada Health Infoway is an example of an institution that receives significant public funding. Through a series of grants, Health Canada has provided this institution with $2.1 billion in funding. See Canada Health Infoway. “What we do.”
- Footnote 3
The Organization of American States and Article 19 model laws and the Tshwane Principles each include such criteria. Criteria for coverage was recommended in Making it Work for Canadians and can be found in the access laws of Serbia and India. Organization of American States. Model Inter-American Law on Access to Public Information and its Implementation Guidelines. 2012.; Article 19. A Model Freedom of Information Law. 2006.; Open Society Foundations, The Global Principles on National Security and the Right to Information (Tshwane Principles). 2013.; Canada, Access to Information Task Force, Access to Information: Making it Work for Canadians (Ottawa: Public Works and Government Services Canada, 2002 at p. 24).
- Footnote 4
In these instances, coverage would extend only to the records that relate to those public functions.
- Footnote 5
As reflected in the principle of ministerial accountability.
- Footnote 6
Canada (Information Commissioner) v Canada (Minister of National Defence), 2011 SCC 25.
- Footnote 7
The first step of the two-part control test is to ask whether the record relates to a departmental matter. When it does not, that ends the inquiry. When the record does relate to a departmental matter, the second step is to determine whether, based on all relevant factors, a senior official of the institution should reasonably expect to be able to obtain a copy of the record upon request. Relevant factors include the substantive content of the record, the circumstances in which the record was created and the legal relationship between the institution and the record holder. In Accountable Government: A Guide for Ministers and Ministers of State, the Privy Council Office explains that “records kept in the offices of Ministers and Ministers of State must be broken down into four categories: Cabinet documents, institutional records, ministerial records, and personal and political records.” Canada, Privy Council Office, Accountable Government: A Guide for Ministers and Ministers of State, (Ottawa: Privy Council Office, 2011) at p. 29.
- Footnote 8
Treasury Board of Canada Secretariat. “Implementation Report No. 115—Access to Records in a Minister's Office—Prime Minister's Agenda Case.” April 22, 2013.
- Footnote 9
See section 2 of the Implementation Report.
- Footnote 10
According to the Accountable Government: A Guide for Ministers and Ministers of State, “a Minister may delegate to a Parliamentary Secretary specific duties for policy development initiatives” (p. 7).
- Footnote 11
Currently, ministers, ministers of state, parliamentary secretaries, and their exempt staff must proactively disclose all travel and hospitality expenses. Treasury Board of Canada Secretariat. Policies for Ministers’ Offices. January 17, 2011.
- Footnote 12
The laws of Alberta, Manitoba and New Brunswick explicitly include the offices of ministers in the definition of “public body.” In Mexico the Federal Executive is covered by the law. The Article 19 and Organization of American States model laws, and the Tshwane Principles extend to the Executive. The Open Government Guide also explicitly states that the executive should be included under an access to information law. Open Government Guide. Welcome to the Open Gov Guide. 2013. The chapter on right to information can be found here.
- Footnote 13
In Australia, the right of access explicitly extends to an official document of a minister. In New Zealand, the definition of “official information” includes any information held by a minister in his or her official capacity.
- Footnote 14
Parliamentary functions in relation to a member of the House of Commons is defined are the Members By-Law of the Board of Internal Economy as “the duties and activities that relate to the position of Member, wherever performed and whether or not performed in a partisan manner, namely, participation in activities relating to the proceedings and work of the House of Commons and activities undertaken in representing his or her constituency or constituents.” House of Commons, Board of Internal Economy, Members By-law (September 2014) at s. 1.
- Footnote 15
The laws of Quebec, Newfoundland and Labrador, and Ontario all apply to the legislative branch. However, the Ontario law only covers records of reviewable expenses of Opposition leaders and the persons employed in their offices and the personal information contained in those records. Examples of the protections that laws might include are those for parliamentary privilege, and constituency and political records.
- Footnote 16
The Organization of American States model law, the Tshwane Principles and the Open Government Guide all cover the legislative branch, as do the access laws of India, Mexico and Serbia.
- Footnote 17
Commissioner Grace, Open and Shut and Making it Work for Canadians 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. See the Office of the Information Commissioner. Annual Report—Information Commissioner—1993–1994; Canada, Parliament, House of Commons, Standing Committee on Justice and Solicitor General, Open and Shut: Enhancing the Right to Know and the Right to Privacy, 2nd Sess, 33rd Parl, No 9 (March 1987) (Chair: Blaine A. Thacker); and Strengthening the Access to Information Act to Meet Today's Imperatives. March 9, 2009.
- Footnote 18
Parliamentary privilege is the collective and individual rights accorded to parliamentarians to ensure they are able to carry out their functions and perform their duties without obstruction. The privilege is protected by the Constitution and extends to all matters relating to parliamentary proceedings.
- Footnote 19
Such a protection can be found in the access legislation of Newfoundland and Labrador, the U.K. and India.
- Footnote 20
Judicial independence is a guarantee that judges will make decisions free of influence and based solely on fact and law. The 2002 task force that studied the Act cited the importance of maintaining judicial independence as the reason for not recommending that the courts be covered by the Act (Making it Work for Canadians at p. 29).
- Footnote 21
In Canada, these jurisdictions include B.C., Alberta, P.E.I. and Nova Scotia. The access laws of Serbia, India and Mexico similarly apply to courts’ administrative records.