2015 Chapter 2: The right of access
The Access to Information Act provides a right of access to records under the control of the government. The Act establishes a formal framework for making and processing access requests.
Duty to document
Missing records complaints registered
2011–2012: 283 (27% of refusal complaints)
2012–2013: 428 (41%)
2013–2014: 470 (39%)
Access to information relies on good recordkeeping and information management practices. When records are not created or appropriately preserved to document decisions, rights under the Act are denied. This, in turn, prevents government accountability and transparency.
No federal statute or regulation sets out a comprehensive and enforceable legal duty to create and preserve records documenting decision-making processes, procedures or transactions.Footnote 1 Without such a duty, there is a risk that not all information related to the decision-making process is being recorded or appropriately preserved in an institution’s information holdings.
According to Shared Services Canada, approximately 98,000 BlackBerrys have been issued to government institutions (as of August 2013).
The adoption across government of new communications technologies, such as instant messaging, has further increased the need for such a duty. The Commissioner has found that there is a real risk that information that should be accessible by requesters could be irremediably deleted or lost when institutions use these technologies as part of decision-making.Footnote 2 The 2014 Treasury Board of Canada Secretariat protocol on instant messaging compounds this problem by recommending that departments should not use automatic logging of instant messages.Footnote 3
Successive commissioners, as well as joint resolutions of the provincial, territorial and federal information and privacy commissioners, have recommended a legislated duty to create records in support of decisions of government.Footnote 4 Further, based on the results of their own investigations, the commissioners in Ontario and British Columbia have also identified a need for such a provision in their access laws.Footnote 5
An obligation to document the decision-making process protects access to information rights by:
- creating official records;
- facilitating better governance;
- increasing accountability; and
- ensuring a historical legacy of government decisions.
To be most effective, the Act would also include appropriate sanctions for non-compliance with the duty to document (see Chapter 7 for further discussion on sanctions for non-compliance).
The Information Commissioner recommends establishing a comprehensive legal duty to document, with appropriate sanctions for non-compliance.
Duty to report
In 2014, the National Research Council (NRC) experienced a cyber intrusion. In response, NRC shut down parts of its IT infrastructure, resulting in an inability to retrieve electronic records. NRC voluntarily notified the Commissioner of this issue and informed her of its plan to respond to access requests in light of the loss of electronic information. As a result of this notification, the Commissioner was more aware of the circumstances at NRC with respect to processing requests and could more effectively oversee the right of access.
Library and Archives Canada (LAC) is charged with preserving the documentary heritage of Canada, including authorising the destruction of records by government institutions.Footnote 6 LAC has issued Multi-Institutional Disposition Authorities and specific institutional authorities that govern the disposal of records.
Institutions are not generally required to report the unauthorised loss or destruction of records, including data.Footnote 7 The Commissioner’s investigations
have revealed that records have been disposed of without authorization,
which effectively denies the right of access.
In the United States, under the Federal Records Act (44 U.S.C. §§ 3106), institutions are required to report to the National Archives and Records Administration (NARA) any unlawful or accidental removal, defacing, alteration, or destruction of records in the custody of an institution. Sanctions include a $2,000 fine, a three-year imprisonment, or both.
In 2012, a congressional inquiry was launched into the Internal Revenue Service’s (IRS) allegedly inappropriate selection procedures for auditing tax exempt organisations. During the inquiry, it was revealed that IRS emails about the selection process had been lost. This loss was not reported to NARA.
The Commissioner recommends that the Act (or the Library and Archives of Canada Act) include a duty to report to LAC the unauthorised destruction or loss of information, with a mandatory notification to the Information Commissioner, as an independent oversight body. This will allow the Commissioner to assess whether any action is warranted to determine if information rights have been compromised within the institution and whether remedial action is necessary. There should also be appropriate sanctions for failing to report the unauthorised destruction or loss of information. (See Chapter 7 for further discussion on sanctions for non-compliance.)
The Information Commissioner recommends establishing 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.
The right of access to government-held information is limited under the Act to Canadian citizens, permanent residents, and individuals and corporations present in Canada.
This limit is outdated and unnecessarily complicates the processing of requests, since anyone in the world may make an access request through a Canadian agent (often for a fee). This creates additional costs and delays in the system. A universal right of access is consistent with the free flow of information that is occurring across the increasingly globalized and interconnected world.
Among the provinces and territories, Commonwealth countries, the U.S., in model laws, and those jurisdictions with access legislation ranked in the top 10 on the Global Right to Information Rating, only Canada, New Zealand and India limit who may have access to government information. All of the other jurisdictions reviewed provide a universal right of access and none have indicated that the universal right has resulted in an unmanageable amount of requests. A broadened right of access has also been recommended on numerous occasions in Canada in the past.Footnote 8
The Information Commissioner recommends extending the right of access to all persons.
Frivolous and vexatious requests
It is the Commissioner’s experience that in rare instances some requesters make requests that are frivolous, vexatious or otherwise abusive. Dealing with these requests can place a strain on public resources, delay delivery of other services and have a negative impact on the rights of other requesters. The Act does not allow institutions to refuse to respond to requests such as these.
Some access laws across Canada and in international jurisdictions allow institutions to refuse to process some requests for a variety of reasons.Footnote 9 Model laws are silent on this issue. Various reports have supported amending the Act to include a provision to refuse to process some requests.Footnote 10
The ability to refuse to process some access requests should be strictly circumscribed and limited to only clear instances where the request is frivolous, vexatious or an abuse of the right of access. An institution’s decision to refuse to process a request should also be subject to appeal to the Commissioner.Footnote 11 This will ensure the limited and appropriate application of this ability.
Allowing institutions to refuse to process requests that are frivolous, vexatious or an abuse of the right of access would:
- ensure more efficient use of limited public resources; and
- protect the access rights of other requesters .
The Information Commissioner recommends that institutions be allowed to refuse to process requests that are frivolous, vexatious or an abuse of the right of access.
The Information Commissioner recommends that institutions’ decision to refuse to process an access request be subject to appeal to the Information Commissioner.
Confirm or deny the existence of a record
Section 10(2) of the Act states that institutions do not have to tell a requester whether a record exists when they do not intend to disclose it. When notifying a requester that it is invoking this provision, institutions must also indicate the part of the Act on which a refusal could reasonably be expected to be based if the record existed. Section 10(2) was designed to address situations in which the mere confirmation of a record’s existence (or non-existence) would reveal information that could be protected under the Act.
The Commissioner’s investigations have found that section 10(2) is overused and inconsistently applied. This is problematic because invoking section 10(2) leads to a complete denial of the right of access. Open and Shut acknowledged that “only in rare circumstances can such a denial be justified.”Footnote 12 Limiting the application of section 10(2) to specific situations was recommended by a former Commissioner and is consistent with the access laws of B.C. and Ontario.Footnote 13
The Commissioner recommends that the Act include a list of the circumstances under which institutions could refuse to confirm or deny the existence of a record. These would relate to possible injury to Canada’s foreign relations, the defence of Canada, law enforcement activities and the safety of individuals, and the possible disclosure of personal information.Footnote 14
The Information Commissioner recommends limiting the application of section 10(2) to situations in which 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 Government of Canada 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; or
- disclose personal information, as defined in section 3 of the Privacy Act.
Open format: The information must be provided in a convenient and modifiable form such that there are no unnecessary technological obstacles to the performance of the licensed rights.
Accessible format: The information must be available as a whole and at no more than a reasonable, one-time reproduction cost, preferably downloadable via the internet without charge.Footnote 1a
Reusable format: The information must be provided under terms that permit re-use and redistribution.
Format of information
Based on open government principles, information should be provided to the public in open formats that facilitate reuse.Footnote 15 The Directive on Open Government, recently issued by the Treasury Board of Canada Secretariat, also requires institutions to ensure that open data and open information released through open government initiatives are in accessible and reusable formats.Footnote 16, Footnote 17
Section 4(2.1), commonly referred to as the duty to assist, requires that the response to a request must be accurate, complete and provided in a timely manner in the format requested.Footnote 18 This would include in an open, reusable and accessible format.
There are limitations on the obligation to provide information in the format requested, contained in the Access to Information Regulations.Footnote 19 Section 8.1 of the Regulations provides that when a record does not exist in the format requested, institutions can decline to convert the record to the requested format if it is unreasonable to do so. The Regulations include the following factors to consider when determining if conversion would be unreasonable:
- the costs to the government institution;
- the potential degradation of the record;
- if the person making the request is to be given access to only a part of a record, the facility with which the record may be severed in the format requested;
- the existence of the record within the government institution in another format that is useful to the person making the request;
- the possibility that the record can be converted to another format that is useful to the person making the request;
- the impact on the operations of the government institution;
- the availability of the required personnel, resources, technology and equipment.
Section 4(3) of the Act also provides that, where records do not exist, institutions are required to produce records from machine-readable records by using the hardware, software and technical expertise they normally use. However, section 3 of the Regulations provides that an institution does not need to do this when it would unreasonably interfere with the operations of the institution.
As a result, although the Act requires institutions to provide information in the format requested, the limitations on this obligation allow institutions to refuse to do so in circumstances so broad as to be inconsistent with open government principles.
For example, investigations by the Commissioner, as well as a recent response to a parliamentary written question, indicate that few institutions disclose information in open, reusable and accessible formats by default or at the request of the requester.Footnote 20 Instead, responses are provided in PDF or paper printouts, and institutions consider this sufficient to meet their obligations under the Act. The reason for providing records in these formats is often technical; institutions are concerned that some electronic formats may allow information that they have protected under the Act to be revealed.
Technical problems such as these can be fixed in most instances with current technology. Moreover, if institutions are following the Directive on Open Government, many of the factors currently found in section 8.1 of the Regulations that limit an institution’s obligation to provide records in the format requested will no longer be relevant. For example, the availability of the required personnel, resources, technology and equipment should no longer be an issue because institutions are already required to provide open data and open information.
The Commissioner recommends that the Act include a stand-alone obligation that institutions provide information to requesters in an open, reusable, and accessible format by default. This open by default approach should be limited only where the requester asks for the information in another format (such as paper), where it would cause undue hardship to the institution or it is technologically impossible.Footnote 21, Footnote 22
Providing information to requesters in open, reusable and accessible format by default ensures that the information is provided in a format that is useful to the requester.Footnote 23
The Information Commissioner recommends that institutions be required 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; or
- it is technologically impossible.
Anyone who makes a request for information under the Act may be required to pay an application fee (section 11(1)(a)). This fee is set at $5 in the Regulations (section 7(1)(a)).
In addition, the Act allows institutions to charge additional fees in a number of circumstances: for every hour after the first five that they reasonably need to search for records and prepare them for release (section 11(2)), for reproducing records (section 11(1)(b)), for producing records in alternative formats (section 11(1)(c)) and for producing “machine-readable” records (section 11(3)). The exact cost and application of each of these fees are set in the Regulations.Footnote 24
In 2011–2012, the Commissioner’s investigation into a complaint against the former Foreign Affairs and International Trade Canada (DFAIT) revealed that DFAIT had a practice of automatically charging search and preparation fees for any request with 500 or more responsive pages. The Commissioner found this practice to be inconsistent with the proper use of DFAIT’s discretion to charge fees because it failed to appropriately balance and weigh other factors, such as the public interest in disclosure of the information, whether the response was overdue, and any particular circumstance raised by the requester.
The fee structure set out in the Regulations, like the rest of the Act, has not been comprehensively updated since the Act was introduced and has consequently become outdated.Footnote 25
Determining fee amounts and processing fee payments adds complexity to the administration of the access system and results in delays for requesters. Fees are also inconsistently applied across institutions. Fees, especially related to search times, depend on the quality and implementation of information management practices.
In 2013–2014, the Commissioner investigated a complaint against the Privy Council Office (PCO) about a $4,250 fee estimate. She learned that this estimate was not based on the $10 per hour rate set out in the Regulations (which would be equivalent to an annual salary of $19,566), but instead reflected current rates of pay for an employee earning $73,000 per year. As a result of the Commissioner’s investigation, PCO provided a new, reasonable fee estimate of $119.80 to the requester.
As a consequence of these problems, fees lead to complaints to the Commissioner, which add further delays for the requester and administrative costs. The Commissioner’s investigations have also revealed that some institutions use fees to deter requests they consider frivolous, to narrow requests, to discourage requesters from following through with requests or as a method of cost recovery.
Fees are also inconsistent with open government principles, which recognize that free access to open data is of significant value to society and the economy. Footnote 26 They are also contrary to the concept that government information is a national resource that has been funded by taxpayers.
Many jurisdictions limit what kind of fees institutions may charge. Some do not permit fees for making requests.Footnote 27 Others allow fees to be waived in certain specified circumstances.Footnote 28 In 2011, New Brunswick abolished all fees associated with making and processing access requests.Footnote 29
In light of these considerations, and after contemplating a number of alternatives to update the fee structure, the Commissioner has come to the conclusion that the fees for making and processing access requests should be eliminated in their entirety.Footnote 30 This would result in the following benefits:
- the administration of the Act would be simplified;
- there would be more timely access for requesters;
- the Act would be consistent with open government principles; and
- the importance of information as a public asset would be underscored.
The Information Commissioner recommends eliminating all fees related to access requests.
- Footnote 1
The Library and Archives of Canada Act, SC 2004, c 11 does speak to the retention and disposition of records but does not impose an obligation on government officials to document their decisions and how they are made. Other laws, such as the Financial Administration Act, RSC, 1985, c F-11 require that only certain types of records be prepared and maintained. Although existing federal policy instruments set out general requirements for ensuring government officials document decisions, these are not codified in law. Moreover, these obligations are enforced through the Values and Ethics Code for the Public Sector, which is applicable to employees only (such that they do not apply to ministers and others who create records). An example of a policy on record keeping can be found at Treasury Board of Canada Secretariat. Policy on Information Management. April 1, 2012.; Directive on Recordkeeping. June 1, 2009. The Values and Ethics Code for the Public Sector can be found at Treasury Board of Canada Secretariat. Values and Ethics Code for the Public Sector.
- Footnote 2
Office of the Information Commissioner. Access to Information at Risk from Instant Messaging. November 2013.
- Footnote 3
Information Management Protocol — Instant Messaging Using a Mobile Device. November 27, 2014. In a November 2014 letter to the President of the Treasury Board, the Commissioner recommended the implementation of an electronic information management tool to ensure that emails and instant messages of key officials are preserved. Office of the Information Commissioner. Letter to the President of the Treasury Board on Action Plan 2.0. November 5, 2014.
- Footnote 4
See the Information Commissioner’s annual reports from 1996–1997, 1998–1999 to 2005–2006, and 2010–2011, Access to Information at Risk from Instant Messaging, the Open Government Act (October 25, 2005), Modernizing Access and Privacy Laws for the 21st Century: Resolution of Canada’s Information and Privacy Commissioners and Ombudspersons (October 9, 2013) and Protect and Promote Canadians’ Access and Privacy Rights in the Era of Digital Government: Resolution of Canada’s Information and Privacy Ombudspersons and Commissioners (November 14, 2014).
- Footnote 5
Ontario: see the Information and Privacy Commissioner’s Special Investigative Report, Deleting Accountability: Records Management Practices of Political Staff, (June 5, 2013). B.C.: see the Information and Privacy Commissioner’s investigation reports F-13-01, Increase in No Responsive Records to General Access to Information Requests: Government of British Columbia (March 4, 2013) and F11-02, Investigation into the Simultaneous Disclosure Practice of BC Ferries (May 16, 2011).
- Footnote 6
As per section 12 of the Library and Archives of Canada Act.
- Footnote 7
There are policies related to the unauthorised treatment of specific information. For example, the Treasury Board of Canada Secretariat’s Directive on Privacy Practices requires that institutions establish a process for the mandatory reporting of material privacy breaches to the Office of the Privacy Commissioner and the Treasury Board of Canada Secretariat.In addition, the Directive on Recordkeeping provides that non-compliance with the directive can result in the Secretary of the Treasury Board recommending that the Librarian and Archivist of Canada review the disposition authorities issued to a department. Directive on Privacy Practices. (April 1, 2010).
- Footnote 8
The jurisdictions reviewed were all the Canadian provinces and territories, along with Australia, Mexico, the U.K., the U.S., Serbia, India, Slovenia, Liberia, Sierra Leone, El Salvador, Antigua, Azerbaijan and Ukraine. This right is also included in the Article 19 and Organization of American States model laws, the Tshwane Principles, and the Open Government Guide. Open and Shut recommended extending the right of access to any natural or legal person, along with not-for-profits, employee associations and labour unions. Making it Work for Canadians and the Open Government Act also recommended a universal right of access. Article 19. A Model Freedom of Information Law. 2006.; Organization of American States. Model Inter-American Law on Access to Public Information and its Implementation Guidelines. 2012.; Open Society Foundations, The Global Principles on National Security and the Right to Information (Tshwane Principles). 2013.; Open Government Guide. Welcome to the Open Gov Guide. 2013. The chapter on right to information can be found here.; 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); Canada, Access to Information Task Force, Access to Information: Making it Work for Canadians (Ottawa: Public Works and Government Services Canada, 2002).
- Footnote 9
The laws of B.C., Alberta, Ontario, Quebec, P.E.I., New Brunswick, Manitoba, and Newfoundland and Labrador all allow certain requests to be disregarded, as do those of Mexico, Australia, the U.K., and New Zealand.
- Footnote 10
See the 1993–1994 Annual Report of Commissioner John Grace, Commissioner Reid’s special report Response to the Report of the Access to Information Review Task Force (Ottawa: Office of the Information Commissioner, 2002), the Open Government Act, and both Open and Shut and Making it Work for Canadians.
- Footnote 11
See Chapter 5 for a discussion of the oversight model found in the Act.
- Footnote 12
Open and Shut, p. 29.
- Footnote 13
Commissioner Inger Hansen recommended that Parliament consider whether this authority should apply to all or only some clearly specified types of records. Office of the Information Commissioner, Main Brief to House of Commons Standing Committee on Justice and Legal Affairs from the Office of the Information Commissioner (Ottawa: Government of Canada, May 7, 1986), s. 14. Section 8(2) of B.C.’s access law provides that institutions may only refuse to confirm or deny the existence of a record when doing so would harm law enforcement activities or would result in an unreasonable invasion of personal privacy. Ontario’s law includes similar limitations (see sections 14(3) and 21(5)) and also allows institutions to neither confirm nor deny the existence of a record when disclosure could reasonably be expected to interfere with the ability of the Attorney General to determine whether a proceeding should be commenced under the Civil Remedies Act, 2001, SO 2001, c 28 or the Prohibiting Profiting from Recounting Crimes Act, 2002, SO 2002, c 2.
- Footnote 14
These harms parallel the interests that sections 13, 15, 16, 17 and 19 of the Act protect. See Chapter 4 for further discussion of these sections.
- Footnote 15
Open Government Partnership, Open Government Declaration. September 2011.
- Footnote 16
Treasury Board of Canada Secretariat. Directive on Open Government, s. 6.1.
- Footnote 17
The U.K., one of the founding members of the OGP, requires institutions, through its access law, 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). (See section 102 of the Protection of Freedoms Act 2012, 2012, c 9.) It also has a policy on open information that requires all government bodies to create documents in open document file formats to meet the needs of citizens and government staff when they are viewing or working on documents together.
- Footnote 18
Further, section 12(3) provides that a requester with a sensory disability may ask to receive a record in an alternative format.
- Footnote 19
- Footnote 20
In December 2012 Liberal MP Justin Trudeau asked the government a number of questions related to the format of responses to access to information requests. The responses revealed that there is great variation across departments. For example, the Privy Council Office responded that it only provides paper copies, whereas other departments would only release electronic records in PDF or transmit the records on a CD. See Order Paper question 1099 (placed on the Notice Paper on December 5, 2012 and answered on January 28, 2013).
- Footnote 21
The concept of “undue hardship” is established in jurisprudence with respect to an employer’s obligations to accommodate. There is no precise legal definition of undue hardship or a standard formula for determining undue hardship; however, under the Canadian Human Rights Act, an employer or service provider can claim undue hardship when adjustments to a policy, practice, by-law or building would cost too much, or create risks to health or safety. See the Canadian Human Rights Commission, Duty to Accommodate.
- Footnote 22
This will render section 8.1 of the Regulations redundant.
- Footnote 23
The Commissioner made a policy recommendation along these lines in May 2014 in response to consultations by the Treasury Board of Canada Secretariat on proposed updates to the Policy on Access to Information.
- Footnote 24
There is no explicit provision in the Act detailing the rationale for the application of fees. However, a historical Parliamentary discussion paper that formed the basis for the Act discussed fees and acknowledged that it is unrealistic that fees would ever be able to achieve total cost recovery. This same paper also discussed fees as a tool for deterring frivolous applications. See Secretary of State, Green Paper: Legislation on Public Access to Government Documents, June 1977 (Hon. J. Roberts) at p. 27.
- Footnote 25
See the Commissioner’s reference to the Federal Court on fees and electronic records such as emails for an example of how the fee structure has become outdated: Information Commissioner of Canada v Attorney General of Canada et al, FC, (T-367-13).
- Footnote 26
See for example the G8 Open Data Charter, Principle 1, Article 13. G8 Open Data Charter and Technical Annex. June 18, 2013. As part of its G8 Open Data Action Plan, the Government of Canada committed to review user fees being charged for accessing Government of Canada data, and work with departments to eliminate these fees where they still exist by December 2015. Government of Canada. G8 Open Data Charter – Canada's Action Plan. February 21, 2014.
- Footnote 27
For example, in Canada only the Alberta, Ontario, Nova Scotia and P.E.I. laws require payment of an application fee. In contrast, there are no application fees under the laws of Australia, New Zealand and the U.K..
- Footnote 28
The laws of B.C., Alberta, Saskatchewan, Manitoba, Ontario, Nova Scotia, P.E.I., Newfoundland and Labrador, and the U.S. all allow fees to be waived for a variety of reasons, such as when it would be in the public interest to do so or when the fee would impose an unreasonable financial hardship on a requester.
- Footnote 29
The Office of the Information of Canada stopped charging fees in 2007 and has not received a significant increase in requests as a result of this change.
- Footnote 30
For example, the Commissioner considered updating the structure to reflect new technologies for processing and storing information, increasing the number of free search hours available to requesters, setting out criteria as to when fees may be waived, and preventing institutions from charging fees when they fail to meet statutory deadlines when responding to a request.
- Footnote 1a
Although the definition of accessible format provided by Open Definition allows for a one-time charge, the Government of Canada has committed to review user fees being charged for accessing Government of Canada data, and work with departments to eliminate these fees where they still exist. See Government of Canada. G8 Open Data Charter – Canada's Action Plan. February 21, 2014.