2015 Chapter 6: Open information
In 2011, the Government of Canada made open government a priority in its Speech from the Throne, committing to provide Canadians with open data, open information and open dialogue.Footnote 1 Shortly thereafter, it joined the Open Government Partnership and committed, in two separate action plans, to increase transparency, accountability, civic engagement, and trust in government.Footnote 2
As noted in Canada’s second action plan, “the proactive release of data and information is the starting point for all other open government activity. It is the foundation upon which all other aspects of Canada's Action Plan are based.”Footnote 3
In 2014, the Treasury Board of Canada Secretariat issued the Directive on Open Government, which establishes an open by default position and requires institutions to maximize the release of data and information, with a goal to effect a fundamental change in government culture.Footnote 4 Following the issuance of this directive, the Commissioner recommended to the President of the Treasury Board that the government should adopt an integrated approach to open government and that an essential foundational commitment to achieve a meaningful open by default culture is to modernize the Act.Footnote 5
The Act should be amended to reflect the government’s open government initiatives, including additional requirements for proactive disclosure. Such an approach will codify these initiatives and make compliance with these proactive disclosure requirements subject to independent oversight.
Obligation to publish information of public interest
British Columbia’s access law requires institutions to proactively disclose information when it is clearly in the public interest.
The provincial Information and Privacy Commissioner recently reported on this requirement and found that the Ministry of Forests, Lands and Natural Resource Operations had failed to meet its obligation when it did not proactively disclose the results of inspection reports related to a failing dam.
The dam eventually collapsed and seriously damaged houses and farmland downstream. It was the provincial commissioner’s view that “the information about the risk of failure of the dam was information that the public did not know and that [if they had known] would have likely resulted in the local citizenry, at the very least, pressuring [the] government to take remedial action.”
See Investigation Report F13-05 Public Body Disclosure of Information under Section 25 of the Freedom of Information and Protection of Privacy Act (December 2, 2013).
Several provincial access laws impose an obligation on institutions to proactively publish information of public interest, regardless of whether an access request for that information has been made.Footnote 6 The Act does not contain such an obligation.
Instances where proactive disclosure would clearly be in the public interest include where the government holds information that may be used to prevent a risk of significant harm or, as in the Lac Mégantic catastrophe, to proactively disclose information about the government’s actions in response to such an event, as well as any other existing information that is clearly of public interest.
Proactive disclosure of information that is clearly of public interest will:
- serve to provide more information to the public so that they may effectively evaluate the government’s response to issues of public interest;
- allow the public to pressure the government to take remedial action to prevent harm; and
- reduce the impact of events of public interest on the access system by decreasing the number of access requests that the public makes to an institution.
The Information Commissioner recommends that institutions be required to proactively publish information that is clearly of public interest.
Section 5 of the Act requires institutions to publish certain information about their organization each year, including descriptions of:
- the institution and its responsibilities;
- all classes of records under their control; and
- all manuals used by their employees.
These descriptions—known as information registers— were intended to be used by the public to help determine what information holdings government institutions had and what types of general information could be requested. This approach is common in older access to information laws.
It is becoming more common in comparable jurisdictions, as well as in model laws, to use publication schemes.Footnote 7 Publication schemes are mandatory requirements within access laws to disclose, on a routine basis, certain broad classes of information, such as policies and procedures, minutes of meetings, annual reports and financial information. Usually, this information must be made available to the public via an institution’s website and must be kept up to date.Footnote 8
Institutions are required by policy or directive to proactively disclose some information. As described above, the Directive on Open Government establishes an open by default position across the Government of Canada and is intended to maximize the release of open data and information. Additional policies require institutions to proactively disclose certain kinds of information related to travel and hospitality expenses, as well as some information related to contracts, grants, loans and contributions.Footnote 9 However, these requirements are not codified in law.
A requirement that institutions adopt a publication scheme would support the government’s open government objective to establish an open by default culture and would be a tool to implement the Directive on Open Government. It would also:
- ensure the proactive publication of key information;
- transform the access framework from a responsive to a proactive system;
- decrease the need to make access to information requests; and
- reduce delays to obtain information.
The Information Commissioner recommends requiring institutions to adopt publication schemes in line with the Directive on Open Government.
Institutions are required to proactively disclose limited information about grants, loans and contributions of more than $25,000 awarded to third parties.Footnote 10 They are not required to proactively release information about grants, loans or contributions of less than $25,000. In addition, they are not required to proactively release the terms associated with these grants, loans or contributions, or information on the status of repayment and compliance with the terms.
The 2014–2015 Estimates list the following total grants and contributions transferred in 2014–2015:
Health Canada: $1,683,745,108
Employment and Social Development Canada: $1,227,675,995
Canadian Heritage: $1,187,709,835
Natural Sciences and Engineering Research Council of Canada (grants only): $1,015,471,014
Social Sciences and Humanities Research Council (grants only): $666,664,097
Industry Canada: $557,723,370
As explained in Chapter 4, currently some recipients of these loans, grants and contributions have relied on section 20 of the Act (dealing with third party information) to oppose disclosure. Yet, a significant amount of public money is spent by the Government as part of the grants, loans and contributions programs. Increased transparency related to the spending of these public funds would enhance accountability by ensuring Canadians are able to assess whether this money is being spent responsibly and whether the recipients abide by the terms and conditions of repayment.
The Commissioner recommends that the proactive disclosure requirements of Treasury Board of Canada Secretariat policy be expanded to all grants, loans and contributions. In addition, the Commissioner recommends that the repayment and compliance with the terms of grants, loans or contributions given by the government should be proactively disclosed.Footnote 11
The Information Commissioner recommends including within publication schemes a requirement that institutions proactively publish information about all grants, loans or contributions given by government, including the status of repayment and compliance with the terms of the agreement.
Some access laws require institutions to publish information given in response to an access request so that future information seekers do not need to make a formal request to receive it.
For example, Mexico’s law requires that each response to a request be made public. Other jurisdictions require publication of information that has become or is likely to become the subject of subsequent requests (U.S.) or is routinely requested (Australia).Footnote 12
The Act does not require the publication of all records given in response to access requests.Footnote 13 The Commissioner acknowledges that it may not be reasonable to require institutions to post the responsive records of all requests given, for example, current accessibility requirements and obligations under the Official Languages Act.Footnote 14
The Commissioner recommends that institutions should have to post online the responsive records of completed access requests within 30 days after the end of each month, if that information is or is likely to be frequently requested.Footnote 15
The Information Commissioner recommends including within publication schemes a requirement that institutions post the responsive records of completed access to information requests within 30 days after the end of each month, if information is or is likely to be frequently requested.
Exclusion for published material, material available for purchase or library or museum material (section 68)
Government institutions hold information that has been published or is publicly available such as books, government studies, reports, statistical information, court decisions, statutes and regulations, and media articles. Library and Archives Canada (LAC) and museums also hold material for exhibition and material that has been given to them by third parties.
Currently, the scope of the Act does not cover:
- published material or material available for purchase by the public;
- library or museum material preserved solely for public reference or exhibition purposes; or
- material placed in the Library Archives of Canada, or listed museums, by or on behalf of persons or organizations other than government institutions.
Generally, it is not reasonable or efficient to require institutions to process and provide published, library, or museum materials that are readily available to the public. However, reproduction costs have diminished significantly in the past 30 years, and much of what the government publishes or exhibits today is available online. Therefore, the kinds of information listed above that are currently excluded should be brought under the Act, in order to allow disclosure when doing so would fulfill the purpose of the Act.Footnote 16
For example, information that is “published” or “exhibited” is not always reasonably accessible. Although information may be available on the Internet, a requester may not have access to the information if he or she does not have access to a computer. This has occurred in the context of requesters who are inmates in penal institutions.
The issue of affordability has also been raised in the Commissioner’s investigations. A requester was denied a copy of the Canada Corporations database because the information was available for purchase at the cost of $1 per page. While this seemed reasonable at first, the investigation revealed that the entire database, which was the subject of the request, consisted of 300,000 pages.
In such instances, the institutions applied the exclusion found in section 68 despite the fact that it was unreasonable to believe the requester could access the information. Therefore, the exclusion should be repealed, and an exemption created to allow institutions to refuse disclosure only where information is reasonably available to a requester.
Finally, the exemption should allow an institution to withhold information placed in LAC, or in museums currently listed in the Act, by non-government persons or organizations. Without this protection, third parties would be less likely to provide important historical information of archival value.
The Information Commissioner recommends a discretionary exemption that would allow institutions to refuse to disclose information that is reasonably available to the requester. The exemption should continue to allow an institution to withhold information placed in Library and Archives Canada or listed museums by third parties.
- Footnote 1
Parliament, House of Commons, Speech from the Throne, 41st Parl, 1st Sess, June 3, 2011.
- Footnote 2
- Footnote 3
Canada’s Action Plan on Open Government 2014–2016 at part A “Open Government Foundation - Open By Default.”
- Footnote 4
Treasury Board of Canada Secretariat. Directive on Open Government. October 9, 2014. Section 5.1.
- Footnote 5
Office of the Information Commissioner. Letter to the President of the Treasury Board on Action Plan 2.0. November 5, 2014.
- Footnote 6
The laws of B.C., Alberta, Nova Scotia and P.E.I. all contain a broad positive obligation to disclose information when it is clearly in the public interest. The laws of Ontario, New Brunswick and Newfoundland and Labrador impose a positive obligation to disclose information that is about a risk of significant harm to the environment or to the health or safety of the public.
- Footnote 7
The laws of Ontario, Quebec, Mexico, Australia, the U.K., and the U.S., the Article 19 and Organization of American States model laws, and the Open Government Guide all require the publication of certain documents and other types of information. 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 Government Guide. The chapter on right to information can be found here.
- Footnote 8
Although the information identified in the scheme must also be available in printed format, when possible, for those without Internet access.
- Footnote 9
See Treasury Board of Canada Secretariat Disclosure of Travel and Hospitality Expenses, March 26, 2013. Disclosure of Contracts Over $10,000, October 31, 2012, and the Policy on Transfer Payments, April 1, 2012.
- Footnote 10
For grants, loans and contributions over $25,000 institutions proactively disclose the name of the recipient, location of the recipient, date, value of the funding, whether the funding is a grant, loan or contribution, the purpose of the grant, loan or contribution and additional technical comments, such as whether the funding is a multi-year commitment or the reporting was belated.
- Footnote 11
In the meantime, the government may wish to consider adding this kind of information to its Directive on Open Government.
- Footnote 12
In the U.S., information that is the subject matter of a request must be proactively disclosed if it is either requested or is anticipated to be requested for a third time. See U.S. Department of Justice, Guide to the Freedom of Information Act. “Proactive Disclosure” (Washington, D.C.: U.S. Government Printing Office, 2009 Edition) at p. 17.
- Footnote 13
The Treasury Board of Canada Secretariat does have a policy requiring institutions to post summaries of completed access to information requests within 30 calendar days after the end of each month, including the disposition of the request and the number of pages released. Treasury Board of Canada Secretariat. Directive on the Administration of the Access to Information Act. May 5, 2014. Section 7.13.
- Footnote 14
RSC, 1985, c 31 (4th Supp).
- Footnote 15
Publication of these responsive records to access requests will need to meet the requirements of the Official Languages Act and accessibility requirements. See Treasury Board of Canada Secretariat. Standard on Web Accessibility, August 1, 2011.
- Footnote 16
Note that the Copyright Act, RSC, 1983 c C-42 at section 32.1 states that it is not an infringement of copyright for a person to disclose a record pursuant to the Access to Information Act.