2025 Review of the Access to Information Act

Submission of the Information Commissioner

June 2026

Message from the Commissioner

Message from the Commissioner

I am pleased to offer my comments on the Government of Canada’s “2025 review of the Access to Information Act: Policy approaches” consultation document, published on March 6^th, 2026. While I am relieved that the Government appears to be open to making changes to the Act, I feel that its Policy approaches lack ambition, and do not address many of the longstanding, well-documented problems with the current access to information regime.

As I indicated when this consultation was launched, I trust that the Government will consider other substantive legislative improvements beyond those it has proposed. This submission has been drafted with that purpose in mind.

In Part 1 of my submission, I respond to the Treasury Board of Canada Secretariat’s (TBS) proposed Policy approaches. In Part 2, I discuss several of the long-overdue reforms that were not included in what was put forward by TBS. In Part 3, I offer a list of technical amendments that, in my experience, are needed to improve the operation of the Act.

The review must not become a justification for further secrecy. It must expand access, modernize the framework, and reinforce independent oversight. The public’s right to know is fundamental to our democracy, and any review must strengthen that right.

Canadians deserve a swift, results-driven review that directly addresses the Act’s flaws. As I previously indicated to the President of the Treasury Board, I intend to continue to take an active role in ensuring the review delivers meaningful reform, and I welcome the opportunity to meet with him and discuss this submission further in the interest of advancing this essential work.

Caroline Maynard
Information Commissioner of Canada

Part 1: Responding to TBS Policy approaches

1. Enhancing transparency, accountability and public participation

Policy approaches: Adopt publication schemes, and build in more flexibility for proactive publication categories

While I support the broader goal of increased transparency, it is not apparent from TBS’s approaches that publication schemes would result in greater access to information, or that publication schemes would reduce the volume of access requests as claimed.

As I understand it, a model publication scheme is a short document setting out an institution’s high-level commitment to proactively publish information. Model publication schemes from other jurisdictions cited by TBS appear to include basic information about the institution (for example, “Who We Are and What We Do”) and information that has already been made available, such as minutes of public meetings, annual reports, policy statements, and guidelines. These models also generally exclude information that could be withheld under their respective access to information legislation, draft documents, and emails and correspondence.

Federal institutions are already required, under section 5 of the Act, to regularly publish background information and descriptions of record-holdings for its programs and activities, found online in Info Source. In addition, a multitude of statutes and directives require federal institutions to publish various reports, including annual reports and departmental plans and results.

I support allowing the responsible Minister to add new categories of proactive publication through Ministerial directives. A more flexible approach that allows for the addition of new record categories to be proactively published—or existing ones to be adjusted—without requiring legislative amendments is a good thing. However, this flexibility could become challenging to implement and enforce if it results in frequent or inconsistent changes. Therefore, I recommend that this flexibility be carefully managed.

I continue to raise my longstanding concern that proactive publication obligations in Part 2 of the Act lack oversight. TBS’s Policy approach does not address oversight of institutions’ compliance with its publication obligations. Without compliance mechanisms, proactive publication commitments risk being meaningless. Given my lack of authority to investigate complaints related to the proactive publication obligations in Part 2, numerous such complaints have been found inadmissible for investigation since 2019.

Should any of the above policy proposals be considered further by the government, I recommend that my office be consulted on any publication scheme models or proactive publication categories proposed by TBS prior to their adoption. In practice, trends observed in complaints and access to information requests can signal emerging areas where proactive disclosure would be most valuable. They also provide insight into the information that Canadians are seeking. In a context of limited resources, efforts should be focused on publishing information that aligns with this demonstrated demand, rather than making available material that does not respond to the needs or interests of the public.

2. Facilitating access

A: Delays and extensions

Policy approach: Enable fair and equitable access

To introduce this theme, TBS proposes that preventing a small number of requesters or bots from overloading the access system would enable institutions to provide fair and equitable access.

I am not aware of any evidence that bots are making access requests or that bad actors are using digital tools to flood access systems. Hence, it is unclear to me to what extent this is an issue that the Act should address. To the extent that this becomes an issue, TBS, as administrator of the centralized online access request portal, should have technological tools at its disposal to prevent bots from infiltrating its platform.

TBS’s three specific policy approaches are:

to allow time extensions when the same person makes multiple requests;
to allow requesting my authorisation to decline to act on unduly repetitive or systematic requests; and,
to allow declaring a requester a “vexatious applicant”.

I do not support the first proposal to allow time extensions when the same person makes multiple requests, as submitting multiple access requests is not in itself contrary to the purposes of the Act. I am worried that giving institutions unilateral authority to extend the time period for responding based on this criterion alone would be detrimental to requesters such as journalists and academics, who often submit multiple requests based on file lists or finding aids.

Instead, I submit that the Act should be amended to include that a time extension may be taken by mutual agreement of both the requester and the institution. Such agreement must be fully informed and freely given by both parties. Extensions taken by consent would allow the parties to engage in discussions about the reasonable period of time needed to respond to the access request. Requesters would still have the right to complain to my office if the institution does not respond to the access request within the mutually agreed upon extended period.

As for the second proposal to allow requesting my authorisation to decline to act on unduly repetitive or systematic requests, I do not think that it is necessary. The Act does not define what constitutes an abuse of the right to make an access request. It currently allows for a broad interpretation of what may constitute such an abuse. Further defining this concept or narrowing the language, as proposed, would undermine its breadth and restrict its application.

In any event, the proposed additions reflect considerations I already take into account. I have published a guideline on my office’s website that provides of non-exhaustive list of elements I may consider when I am asked to provide my approval for an institution to decline to act on an access request; a repetitive request is one of them as it may constitute an abuse of the right to make a request to access records. In my view, the Act does not need to be amended to allow for the possibility that an unduly systematic request could constitute such an abuse.

I support the third proposal of amending the Act to allow me to declare a requester vexatious, to address the rare circumstance in which a requester repeatedly abuses their right of access. Australia’s access legislation offers a useful model. Australia’s Information Commissioner may declare a person to be a vexatious applicant only if the Commissioner is satisfied that:

the person has repeatedly engaged in access actions that involve an abuse of process
the person is engaging in a particular access action that would involve an abuse of process, or
a particular access action by the person would be manifestly unreasonable.

The applicable threshold for declaring a requester vexatious should be set high enough to recognize the quasi-constitutional status of the right of access and ensure that this power is exercised only in exceptional circumstances. As a result, while this mechanism could be useful in addressing clearly abusive or repetitive conduct in a limited number of cases, it would likely have little impact on the overall functioning of the access system. The impact of allowing these declarations on the requester’s future right of access would need to be fully considered as well to ensure that my office has the authority and means to properly manage them (i.e. personal, registry, resources, etc.)

Policy approach: Establish objective criteria for time extensions

To improve transparency and consistency, TBS suggests that objective criteria for time extensions should be standardized and made publicly available.

This is another proposal I consider unnecessary. Ensuring that time extensions are more consistently justified by institutions is a good thing. TBS could offer guidance to institutions on factors to consider in determining the duration of extensions; however, to the extent that the standard remains one of reasonableness of the period taken in the circumstances, such measures would not eliminate perceptions of arbitrariness.

When my office investigates a complaint about a time extension, the institution under investigation bears the burden of justifying its decision and it is given the opportunity to submit all of the considerations that informed its decision. Examples of common relevant criteria, such as volume of pages and complexity of the request have already been established in Court decisions as well as my final reports.

I do not agree with the inclusion of “institutional capacity” as a required consideration. Case law has already established that resource constraints should not limit access rights, and I am concerned that its inclusion could be used to justify under-resourcing institutions’ access to information offices.

Policy approach: Allow time extensions during emergencies

TBS proposes that the Act should be updated to allow institutions to take time extensions during an emergency.

The right of access and the need for transparency should not be suspended during an emergency, such as a pandemic. On the contrary, in this kind of extraordinary context, transparency and the well-being of the access system are even more important as:

Major decisions with huge budgetary implications are being taken every day.
New measures and programs related to the economy, public health and safety are being implemented on an almost daily basis.
Canadians require information about how issues, policies and programs are being managed and developed to hold the government accountable.

For that reason, I believe that an extension taken for an urgent, unforeseeable emergency should be limited to what is reasonable in the circumstances. I support clearly defining what constitutes such an emergency, requiring timely notification to my office and the requester, and preserving the requester’s right to complain. In addition, consent-based extensions could also be useful in such situations.

Policy approach: Provide time for clarifying requests

TBS proposes that the Act should be updated so that institutions could take a time extension for clarifying a request or rescoping it.

In past investigations, I have taken the position that when a request is unclear, that is, when it does not provide sufficient detail to enable an experienced employee of the institution to identify the record with a reasonable effort as per section 6, the clock has not started yet. Thus, in my view, there is no need to put a request on hold or claim a time extension to clarify a request to meet the requirements of section 6.

That said, I recognize that, provided that records can be identified through reasonable efforts, allowing additional time to rescope a request could benefit both requesters and institutions by ensuring that only records of interest to the requester are processed in response to a request. For that reason, I agree that institutions should be allowed to put a request on hold for this purpose for a maximum of 15 calendar days.

B. Exemptions and exclusions

Policy approach: Establish a public interest override

TBS proposes requiring institutions to consider the public interest when applying discretionary exemptions. I am of the view that the public interest should always be amongst the factors considered in the exercise of discretion. It is, therefore, unclear what practical effect this proposal would have for records withheld under a discretionary exemption, as they are already subject to this factor.

The Act should be amended to include a provision requiring government institutions to disclose information about a risk of significant harm to public health, public safety or the protection of the environment. I believe that creating an obligation for the head of a government institution to disclose such information regardless of whether a mandatory or discretionary exemption might apply would be in the public interest. This was also recommended by the Standing Committee on Access to Information, Privacy and Ethics in its report on the State of Canada’s Access to Information System tabled in June of 2023 (Recommendation 27).

Policy approach: Establish more time limits on the protection of information

I support the adoption of time limits on exemptions in the Act. However, the time limits that already exist in the Act are far too lengthy. For example, the 20-year period during which the operations of government exemption (section 21) applies to records is much too long. It represents an additional obstacle to the timely disclosure of records relating to government activities to allow for a public debate about the conduct of government institutions.

My office’s investigations show that institutions have little incentive to exercise their discretion to decide to disclose information exempted under section 21 that is less than 20 years old, even when the public interest weighs in favour of disclosure. Leaving disclosure to the exercise of discretion is not the fastest nor most efficient way to provide access to records that are no longer likely to interfere with or compromising policy development or decision-making processes.

Accordingly, this period should be reduced to 10 years. As stated in the report of the Access to Information Review Task Force: “In our view, reducing the protective period from 20 to 10 years is unlikely to compromise the frankness or candour of advice being provided to the government, the convention of ministerial responsibility, or the authority of Ministers.” The ETHI Committee made a similar recommendation in its report on the State of Canada’s Access to Information System tabled in June of 2023 (Recommendation 34).

Concerning TBS’s Policy Guidance on the Disclosure of Historical Records under the Access to Information Act, this document has created, in many cases, a disincentive for institutions to exercise their discretion to disclose information, with several institutions claiming that they have no discretion to disclose until the threshold is reached. Any sunset clauses must not remove institutions’ discretion regardless of the age of the information.

Policy approach: Make government operations more transparent

Section 21 is one of the exemptions invoked most often by institutions. According to data from TBS, this exemption was invoked 10,192 times in 2024–25 and in 20% of refusal complaints received by my office in 2025-26.

The public interest requires that the development of government policy and decision-making processes benefit from a degree of protection to enable public servants to give ministers and institutions free, full and frank advice. A large portion of the information contained in the records covered by section 21 can be made public without jeopardizing the policy-development or decision-making processes of ministers and institutions.

However, investigations show that institutions often rely on section 21 without due consideration of the purpose of the exemption and whether the public interest is served by refusing access.

A more explicit approach involving a list of categories would facilitate the enforcement of the Act. The Department of Justice shared this view in its 2006 discussion on access reform when it stated that listing categories “may be a useful approach to encourage the release of information that is not advice or deliberations. This proposal could help to strike a more appropriate balance between disclosure and the exemption of information that still merits protection.”

I agree with TBS’s proposal to exclude factual information from the exemption at section 21; however, this will have little practical effect as this interpretation has already been affirmed in jurisprudence. I recommend that a more comprehensive list of information not protected by the exemption be added to subsection 21(2), similar to the provisions found in Ontario and British Columbia’s access laws. This list should specifically include the following information:

factual material;
opinion surveys;
statistical surveys;
economic forecasts;
appraisals (e.g., an appraisal of real property held by a government institution);
directives or guidelines for employees of a public institution; and
information that the head of a government institution has cited publicly as the basis for making a decision or formulating a policy.

3. Declassification and disclosure of historical records

Policy approach: Establish a systematic approach to declassification and disclosure

The declassification and disclosure of historical national security records is an important component to Canadians’ understanding of our country’s history and role in the world. Since I became Information Commissioner in 2018, I have advocated for a declassification and disclosure system in Canada, including in my 2022 Special Report to Parliament, Access at issue: The challenge of accessing our collective memory, in which I detailed how the establishment of a declassification program is needed to relieve pressure on the access system.

In 2022, the government conducted a pilot project on declassification and reviewed over 17,000 classified historical national security records. In addition to finding that over 90% of the information could be disclosed, the pilot project also concluded that declassification would permit the realization of significant financial savings by eliminating duplicative review work and consultations currently undertaken by multiple institutions in response to access requests for this material. Sadly, despite these findings and recommendations, no decision has been taken to disclose the collection of records reviewed under the project and they remain in storage at the Privy Council Office.

I urge the government to create a declassification system for Canada. Numerous other jurisdictions offer useful models, including our Five Eyes partners, and almost every member country of the Council of Europe. The key features of declassification and disclosure regimes in other Five Eyes countries include:

a centralized business model with whole-of-government responsibilities (for example, the United States National Declassification Center, which is part of the National Archives and Records Administration)
prescribing the timeframe for reviewing and transferring historical records, accompanied by handling instructions, by institutions to the national archives
providing for the automatic declassification of historical records after a prescribed timeframe, subject to certain exceptions

Even if the creation of a centralized declassification centre is not immediately feasible, TBS may in the interim establish declassification and transfer timelines and provide clearer guidance and tools to institutions.

It is disappointing that the government has made no significant progress in this regard. TBS’s Policy approach lacks any detail or ambition, stating only that it would be of benefit to the access system to establish a systematic approach to the declassification and disclosure of historical records.

4. Information management

Policy approach: Establish a “duty to document” in official repositories

TBS proposes that the Act should incorporate a duty to document, as British Columbia did in its Information Management Act. TBS further suggests that this duty could be linked to the existing offences framework under section 67.1 of the Act.

I support a duty to document that ensures the creation and retention of the right records and is supported by strong information management. As I mentioned in my 2021 submission, the creation of a statutory duty for public servants and senior officials to create a complete, accurate registry of key actions would strengthen responsibility, transparency, good governance and public trust. Such a duty would also be in line with one of the main objectives of the Act: institutional accountability.

That said, the model adopted by British Columba has several shortcomings. First, it contains no clear legal requirement to document key government actions and decisions, as the duty to document is enshrined in policy only. Second, its duty to document regime is largely self-regulatory. BC’s Chief Records Officer initially encouraged ministry self-assessments, but there is no indication that these assessments have been undertaken since 2022, nor are there any published reports on the results of any completed assessments. Third, there exists no independent oversight with powers to conduct reviews, audits, or investigations with penalties for non-compliance.

The duty to document key government actions and decisions requires robust and independent oversight, beyond its treatment as an offence under section 67.1. The responsibility to investigate alleged failures to document decisions could rest with my office, given that I already have authority to investigate, make findings, and issue orders. In addition, consideration should also be given as to whether an intentional failure to document a decision or actions taken by the institution, in order to deny a right of access, could be considered an offence under section 67.1.

Policy approach: Enable better records management for access and accountability

TBS proposes to change the definition of “record” in the Act to “official records”. By this, TBS means that only records “that have ongoing business value and that are stored in official repositories” would be covered by the Act. This, according to TBS, would make searches faster and more efficient, and help provide faster and more useful responses to requesters.

I strongly disagree with this approach. While TBS states that its proposed definition of “official records” would eliminate transitory records from the Act, it risks excluding entire swaths of government-held records. For example, what if records of business value are not yet stored in official repositories when an access request is made? What about records that are no longer of “ongoing” value because a project or contract is no longer active, but their retention period has not yet expired? While TBS’s approach would undoubtedly make searches for records faster, I am of the view that this is a move in the wrong direction.

The prevailing definition of “record” and “official record” in access to information statutes worldwide is “all information recorded in any form”. This definition remains technology-neutral and flexible. We live in the age of information, and requesters are interested in a wide range of information that is not limited to “official records”, including GPS data, geospatial data, environmental data, behavioural or interaction data (i.e., clickstream/web browsing patterns, app usage logs, search queries), metadata, and system-generated data (i.e., error logs, network traffic data).

Rather than narrowing the scope of the right of access through a restrictive definition of “record”, the government should maintain the current broad definition and consider whether certain categories of information should be excluded where they are more appropriately accessible through other established mechanisms. This could include, for example, information available to individuals through secure government portals, such as personal tax information.

Concerning transitory records, responsibility rests with each institution to maintain robust information management practices to ensure that such records are properly identified and destroyed in a timely manner, in accordance with the 2016 Library and Archives of Canada disposition authorization. Where transitory records have not been destroyed before an institution receives an access request, they must be preserved and included in the response.

I do not support excluding transitory records from the scope of the Act. Doing so would create significant risks to transparency and accountability. In practice, records initially characterized as transitory have, in several instances, proven to be of clear evidentiary and public interest value. Excluding such records would therefore risk shielding relevant information from scrutiny.

The appropriate solution is not to address weaknesses in information management by narrowing the scope of the Act. Rather, it is to ensure that institutions meet their obligations through sound information management practices. Creating an exclusion for transitory records would merely shift an existing information management gap into the access regime, thereby undermining its purpose. The Act should remain clear: if a record exists at the time of the request, it is subject to access.

Policy approach: Publish retention and disposition schedules

TBS proposes to add a requirement for institutions to publish retention and disposition schedules, in addition to the existing requirement under section 5 to describe the types of records institutions hold.

I agree with this suggestion. I have seen several instances where, to support their belief that records responsive to their request should exist, requesters have had to seek retention and disposition schedules through an additional access request. This information should be readily available without the need to make a request.

As noted above, I believe that publication requirements should be subject to proper oversight by my office.

5. Indigenous access to, and protection of, information

Policy approach: Update the definition of “Aboriginal government”

I agree that the definition of “Aboriginal government” should be updated. Under paragraph 13(1)(e), the current definition of “Aboriginal government” captures only 39 Nations, grouped into 13 government entities as set out in section 13(3). In contrast, Canada recognizes over 630 First Nations governments or bands, representing more than 50 distinct Nations, including First Nations, Inuit, and Métis peoples. As a result, the definition in subsection 13(3) fails to reflect the full range of Nations recognized under the Canadian Constitution.

Nations not included in the definition constitute third parties under the Act. As third parties, First Nations’ information becomes subject to the additional requirements in section 20 of the Act. The third-party exemption makes it more difficult for both institutions and First Nations to justify withholding information, as they must satisfy multiple requirements to rely on it.

A review of ten recent investigations involving the application of the third-party exemption to First Nation information–such as various agreements between Nations and the federal government, band council resolutions, and federal projects on Indigenous lands–shows the impact of this distinction. In six of these cases, I found that the information did not meet the statutory requirements of the third-party exemption.

By contrast, when a First Nation falls within section 13(1)(e), only a single requirement must be met: the information must have been provided in confidence.

Policy approach: Protect Indigenous knowledge from disclosure

I support TBS’s proposal to protect Indigenous knowledge from disclosure without consent. British Columbia’s access law provides an excellent model. To date, British Columbia is the only province that has amended its access legislation to align with the United Nations Declaration on the Rights of Indigenous People (UNDRIP).

Policy approach: Establish an alternative pathway for access

With full recognition of the distinct status, rights, and perspectives of First Nations, Inuit, and Métis, and of the importance of ensuring access to information in a manner that is respectful and appropriate, observations drawn from our office’s investigations and ongoing discussions with Indigenous governments and organizations suggest a need to focus on how existing approaches are functioning in practice.

In this context, improving access for Indigenous groups may be more effectively pursued by strengthening and making fuller use of existing tools and processes. While the objective of improving access is important, the creation of a new alternative pathway as described by TBS may not, in itself, address the key challenges that have been consistently raised. Several federal institutions have already developed tailored access processes in response to Indigenous information priorities. These include Library and Archives Canada (LAC), which provides specialized Indigenous heritage services, supports community-driven access to historical records, and collaborates with Indigenous groups on stewardship and repatriation of information; Crown-Indigenous Relations and Northern Affairs Canada, which maintains processes for accessing treaty, claims, consultation, and historical records, often outside the standard access system; and Indigenous Services Canada, which offers pathways for Indigenous groups seeking information related to programs, funding, governance, and service delivery.

TBS’ approach is helpful in highlighting the importance of improving access; however, experience to date points to timeliness as a central and recurring challenge. Feedback from Indigenous groups during the government’s 2020 review of the Act indicates that concerns have focused less on the existence of access pathways and more on the time required to receive responses.

In this context, a consent-based approach to time extensions may represent a constructive avenue for improvement. Rather than relying solely on unilateral extensions, timelines could be discussed and established collaboratively, while preserving requesters’ rights to bring complaints to my office. Such an approach may help mitigate delays and support a more balanced and responsive process, consistent with the principles of partnership, participation, and self-determination reflected in the UNDRIP.

My office already provides a free and independent oversight mechanism for all requesters, including Indigenous governments and organizations. It is committed to continuously improving and adapting its investigative practices to better respond to diverse contexts and needs, including through more flexible and respectful approaches to communication.

Policy approach: Permanently waive the $5 application fee for Indigenous requesters

I agree with this proposal. It is worth noting that LAC has permanently waived the 5$ fee from December 2025.

6. Oversight and compliance

Policy approach: Improve performance reporting

In the current system, statistics related to institutional performance under the Part 1 of the Act are collected and published yearly. However, these statistics are released with a delay of more than one year.

I have repeatedly recommended that TBS look to the models provided in Australia, Scotland and Ontario to improve its collection and publication of performance statistics. Not only would more frequent and timelier publication of performance statistics provide greater transparency to the public, but it would also allow my office to identify ongoing and/or emerging issues in institutions and would allow for early intervention through my engagement with senior officials or through my investigations.

I am skeptical that adding an authority to the President’s ability to collect statistics under Part 2 of the Act will improve compliance, given TBS’s failure to date to provide contemporary statistical reporting under Part 1.

What is needed in the Act is an independent review mechanism for Part 2. This would ensure that individuals as well as institutions covered by Part 2 are indeed complying with the related information publication requirements. My office would be well positioned to provide independent oversight of Part 2 but would require adequate resources to do so.

Policy approach: Give more weight to the Information Commissioner’s orders

I support the certification of my orders. The Act does not include a mechanism for my orders to be enforced as orders of the Federal Court. This means that, apart from a mandamus application, where I ask the Federal Court to order a government institution to take a positive action, there is no recourse available to address situations where an institution simply decides not to comply with an order issued by me.

Since 2019, I have applied for a writ of mandamus against institutions on nine occasions. All but one of these instances pertained to the institution’s failure to respond to an access request within the statutory timelines: the institution had neither implemented my order requiring it to provide a response to an access request by a specific date nor sought a review before the Federal Court. All applications were discontinued prior to being heard by the Court, after each institution fully complied with my orders.

In my view, a provision in the Act to certify my orders would reinforce that institutions subject to these orders must take them seriously.

Policy approach: Require action plans to address compliance issues

TBS proposes enabling me to order an institution to publish action plans in response to investigations that reveal broader, systemic challenges. I have recommended action plans in several systemic investigations that I myself initiated. When an institution accepts my recommendations and remains committed to implementing its plan, I have seen significant improvement. An excellent example of this is LAC, that launched an ambitious action plan after my systemic investigation into its difficulties in meeting the timelines set out in the Act. Having implemented a range of measures to improve the effectiveness of its access work, LAC continues to share its positive results and has since published seven updates to report on its ongoing progress.

I would support such an addition to my order-making power, if it does not in any way diminish my current authority to issue any order in respect of a record that I consider appropriate. TBS could consider whether this authority should also apply to self-initiated complaints under subsection 30(3) of the Act.

Policy approach: Prioritize mediation to resolve complaints

I fully support the use of mediation and remain committed to resolving complaints as efficiently and collaboratively as possible. However, TBS’s proposal that my office should place greater emphasis on mediation appears to rest on a misunderstanding of how investigations are already conducted.

Mediation is not separate from our process—it is integral to it. My office actively seeks resolution throughout the lifecycle of every investigation and already resolves the vast majority of complaints without the need for orders. In 2025–26, approximately 70% of complaints were resolved before the conclusion of the investigation, and more than 90% were concluded without an order or recommendation.

To support its position, TBS cites a 2015 pilot project undertaken by my office, which reported a 70% rate of resolution. This figure is consistent with our current results and reflects an approach that remains firmly rooted in mediation and early resolution.

Maintaining files in our inventory in an effort to continue mediating or negotiating, once it is evident that resolution is no longer possible, would not serve the access to information system. On the contrary, it would contribute to further delays, undermine timely outcomes for complainants, and risk eroding trust in both the process and government institutions. It would also detract from transparency and accountability by postponing the exercise of my formal powers in situations where institutions are not meeting their obligations under the Act.

Orders are therefore not an alternative to mediation, but a measure of last resort. They are issued only when institutions fail to meet their legal obligations and a complaint cannot otherwise be resolved. A significant proportion of orders relate to delays, particularly failures to respond within legislated timelines. These orders simply direct the institutions to do what the law already requires them to do: provide the response that the requester is entitled to under the Act.

In this context, adding explicit mediation authority to the Act would not meaningfully change outcomes. It would not reduce the number of orders issued, as these arise only where resolution efforts have been unsuccessful, often due to non-compliance by institutions.

The central issue facing the system is not a lack of mediation, but unacceptable delays experienced by requesters. Expanding or formalizing mediation processes will not address this challenge and risks adding further time to already lengthy processes.

The priority should instead be to ensure timely compliance with the Act by addressing factors like lack of resources, lack of mandatory timelines for consultations, and improper information management. My office will continue to pursue resolution wherever possible, while using its formal powers when necessary to uphold the law and protect requesters’ rights.

Policy approach: Establish standard criteria related to orders

TBS’s proposal requiring the publication of my decision’s rationale appears to be based on misconceptions as to how I report my findings. The fact that I publish my final reports on my office’s website and through a public database appears to have been overlooked. For all well-founded complaints, I issue a final report that explains my analysis and conclusion and contains any orders and recommendations. The institution under investigation bears the burden of justifying its actions and decisions; and my findings are based on the information gathered during the investigation, together with the representations of the parties.

Some of the suggested factors are not always relevant to an investigation, such as the institution’s history of compliance with the Act, or its capacity to implement the order. Their relevance and applicability will depend on the type of complaint. Other elements are not discretionary considerations, but procedural obligations—such as providing a reasonable opportunity to make representations, which must be followed in every investigation. Requiring the consideration of specific criteria risks a) fettering my decision-making authority; and b) delaying the conduct of my investigations if required information is not forthcoming.

Part 2: Reform issues not raised in TBS policy approaches

Coverage of the Act (Ministers’ offices, agencies that provide government services or that carry out activities of a governmental nature)

Increasingly, the government is transferring some of its public services and government functions to private sector agencies or to organizations it creates with various organizational structures and often at arm’s length from government.

However, these agencies or organizations fall outside the scope of the Act, which makes it difficult, if not impossible, to access information relating to the administration of federal services and the exercise of public functions entrusted to them by the government. My investigations show that when requesters attempt to obtain this information from government institutions, they are denied access on the grounds that the records are “not under the control” of the institutions, but of the agencies or organizations in question.

When records turn out not to be under the control of government institutions, it is therefore necessary to allow requesters, in the interests of transparency and accountability, to have access to information by broadening the scope of the Act to make it at a minimum applicable to agencies or organizations:

to whom the government has outsourced the delivery of programs;
that provide government services through the private sector;
that carry out activities of a governmental nature.

For the same reasons, the Offices of the Prime Minister and Ministers should also be subject to the Act. The records they hold should be accessible to the public, with the exception of those of a personal or political nature.

It is true that the Prime Minister’s Office (PMO) and Ministers’ offices are now required to publish information under Part 2 of the Act. This information includes:

mandate letters;
all briefing materials for the new ministers;
title of memorandum prepared for ministers;
information on the use of public funds (travel and hospitality expenses, contracts over $10,000, expenses incurred by a minister’s office); and
Question Period notes and briefing materials relating to appearances before parliamentary committees.

Ministers’ offices have other records relating to their administration and the decisions they make that are not covered by Part 2 of the Act. It is important to provide the public with access to records that are of interest to them, not just those that are proactively made available to them. Records that are not of a personal or political nature should therefore be included under Part 1. The PMO and Ministers’ offices should therefore be subject to this part of the Act. The ETHI Committee made a similar recommendation in its report on the State of Canada’s Access to Information System tabled in June of 2023 (Recommendations 31 and 32).

Personal information exemption

Subsection 19(1) of the Act requires that information that meets the definition of “personal information” within the meaning of the Privacy Act be exempt from disclosure. Subsection 19(2) of the Act provides an exception to the general prohibition against disclosure of personal information.

Section 19 is the most widely used exemption in the Act. In 2024-25, institutions invoked this exemption in 47% of access requests, or 95,451 times.

I reiterate the submissions I made in September 2019 to the Department of Justice Canada regarding the review of the Privacy Act. These recommendations seek to strike a balance between the right of access and privacy rights.

Unjustified invasion of privacy test

Some information that meets the current definition of “personal information” may not always warrant protection in some specific circumstances where the disclosure would not constitute an “unjustified invasion of a person’s privacy.” Taking into account the particular circumstances and context of the information in question ensures the protection of sensitive personal information, and maximum disclosure of non-sensitive personal information.

Most provincial and territorial access to information and privacy laws in Canada (except Saskatchewan and Quebec) provide for circumstances where the personal information exemption does not apply when the disclosure of the information would not constitute an “unjustified invasion of privacy”.

In Ontario, the Freedom of Information and Protection of Privacy Act lists a series of non-exhaustive circumstances to be considered by the head of an institution in determining whether disclosure of personal information as a result of an access request constitutes an unjustified invasion of personal privacy.

Compassionate disclosure

The disclosure of a deceased person’s personal information to his or her spouse or to a close relative should be allowed when it is warranted for compassionate reasons, as long as the disclosure is not an unreasonable invasion of the deceased’s privacy.

Although the Act allows for disclosure of personal information where the public interest in disclosure “clearly outweighs any invasion of privacy that could result from the disclosure”, my office has conducted investigations where the deceased’s personal information could not be disclosed to the grieving family members because this threshold could not be met.

Such an amendment would allow the institution to take into account competing contextual factors, and make a decision based on these factors, including compassionate reasons.

This exemption already exists in many provincial access to information and privacy laws, notably the laws of Alberta, Saskatchewan, Manitoba, Ontario, New Brunswick, Prince Edward Island and Newfoundland and Labrador.

Business or professional contact information

The disclosure of the name, title, and business or professional address and telephone number of an employee should be permitted if it appears on a record in the course of a business, professional or official activity.

Currently, institutions are under an obligation not to disclose such information unless the individual to whom the information relates consents to the disclosure, the information is publicly available or the disclosure is in accordance with section 8 of the Privacy Act. This type of information, usually found in email messages and on business cards, is routinely disclosed in the private sector. Therefore, the Act should be amended to permit the disclosure of business or professional contact information in response to access requests, either in circumstances where there is no unreasonable invasion of privacy or by excluding it from the definition of “personal information.”

Cabinet confidences

Currently, the Act’s exclusion for Cabinet confidences shields this information from my office’s independent review. It also leads requesters to limit the records they wish to obtain—indeed, requesters frequently stipulate, either in their access request or after being asked to do so by the institution, that they are not seeking information that may be considered a Cabinet confidence.

If Cabinet confidences are made subject to the Act, it would give me access to documents containing Cabinet confidences that the head of a government institution has refused to disclose. Otherwise, it is impossible for me to determine objectively and independently if the records indeed contain Cabinet confidences. The ETHI Committee made a similar recommendation in its report on the State of Canada’s Access to Information System tabled in June of 2023 (Recommendation 30). Making the Act applicable to Cabinet confidences would put Canada in a situation similar to that of most Canadian provinces, and to that of other Commonwealth countries including Australia, the United Kingdom and New Zealand.

Consultations

Delays in the processing of access requests are one of the major problems of the access regime. Based on what I have seen in my investigations, this issue is exacerbated when institutions consult other institutions in order to respond to an access request. The Act provides that when necessary consultations cannot be reasonably completed within the 30-day time limit, institutions may extend the time limit, provided that the extension period is reasonable in the circumstances. However, the Act’s absence of explicit time limits for conducting consultations often results in institutions taking an unreasonable time extension, or citing ongoing consultations to justify the delay in responding to an access request.

In 2024-25, extensions to consult accounted for 39% of all time extensions.

Indeed, my office’s investigations have revealed the following:

Even though under the Treasury Board Secretariat’s Interim Directive on the Administration of the Access to Information Act institutions must give the same importance to consultation requests as access requests, consulted institutions generally prioritize responding to access requests that they have received, over responding to consultations from other institutions.
Institutions establish broad standards for responding to consultation requests amongst themselves. Generally speaking, these standards are solely based on the number of pages at issue in the consultation. The establishment of such standards means that institutions are failing to consider the type of exemption, the sensitivity of the information, and the contents or age of records when setting a reasonable time limit for responding to consultation requests.

Institutions’ lengthy consultations with one another result in significant delays in the processing of access requests. Consultations with other institutions are not mandatory. It is up to the institution processing an access request whether or not to consult. However, my office’s investigations show that institutions often consult without determining if it is really necessary to do so. It is also important to understand that as long as a consultation is underway, many institutions are unwilling to respond to an access request, even though there is nothing to stop them from doing so under the Act. As a result, requesters are frequently denied timely access to requested records, in whole or in part.

The Act should provide a clearer process for institutions that decide that consultations are necessary and set out a maximum length of time for consultations required in order to respond to access requests. Requiring consulted institutions to respond within a specific time frame would help reduce processing times for access requests. The ETHI Committee made a similar recommendation in its report on the State of Canada’s Access to Information System tabled in June of 2023 (Recommendation 20).

Statutory prohibitions exemption

My office should be consulted during the process of adding new statutory prohibitions to Schedule II of the Act. Subsection 24(1) requires institutions to refuse to disclose information the disclosure of which is restricted by or pursuant to any provision set out in Schedule II of the Act.

When the Act was adopted in 1983, this schedule contained 40 prohibitions from 33 statutes. In recent years, the number of statutory prohibitions has continued to increase.

Many statutory prohibitions have been added without ever having been debated or thoroughly reviewed, especially with respect to the following points:

factors and grounds justifying their addition to Schedule II;
effects on access; and
the need to include them in cases where the Act already grants sufficient protection against disclosure.

Given the significant consequences of these restrictions on access to information, I should be consulted prior to the addition of any new statutory prohibitions. Considering the expertise of my office, the consultation would allow us to ensure that any considerations relevant to the right of access are adequately presented to and taken into consideration by Parliament before any other statutory prohibitions are added. The ETHI Committee made a similar recommendation in its report on the State of Canada’s Access to Information System tabled in June of 2023 (Recommendation 35).

Proactive contract disclosure

The Government of Canada should commit to an open contracting model, whereby the whole process of awarding federal public sector contracts is visible to the public. Open contracting means all data and documents are disclosed at all stages of the contracting process. This supports contracting transparency and allows deeper analysis of contracting data by a wide range of users. The open contracting model has been adopted by the United Kingdom.

Independent funding for the Office of the Information Commissioner

Under the current model, it is the Government of the day, and not Parliament, which establishes the proposed funding of the Office of the Information Commissioner. This means that my office is required to submit funding requests through a minister responsible for one or more departments over which I have an oversight role. This in turn creates a real or apparent conflict of interest in the conduct of my mandate. This has very real implications for my office’s operations, the fulfillment of my mandate, and potentially, my credibility as an independent agent of Parliament.

In its report on the State of Canada’s Access to Information System tabled in June of 2023, the ETHI Committee recommended “that the Government of Canada establish an independent funding mechanism for the Office of the Information Commissioner of Canada and other Agents of Parliament who do not have access to such mechanism” (Recommendation 38).

Some of my fellow Agents (the Chief Electoral Officer of Canada, the Conflict of Interest and Ethics Commissioner and the Parliamentary Budget Officer) already operate under such an independent funding model. By incorporating the highest standards of stewardship of public funds and by including the necessary safeguards, they have amply demonstrated that they can ensure value for money.

Part 3: Required technical amendments

Should the government decide to propose amendments to the Act, I recommend the following list of technical amendments for consideration:

My authority to publish should be extended to include not only final reports, but also all decisions rendered in the exercise of my powers and duties, so that these decisions may serve as precedents for institutions and complainants.
The timeline for publication of final reports set out at subsection 37(3.2) of the Act should be repealed. Currently, the Act allows for the publication of final reports whether or not an application for judicial review has been filed; therefore, the purpose of such a waiting period is unnecessary.
Subsection 63(1)(b) should be amended to include all judicial proceedings commenced under the Act or the Federal Courts Act, including mandamus proceedings and judicial review of my decisions. Currently, this provision is limited to review under the Act.
Subsection 63(2) of the Act should be amended to enable me to disclose information relating to the commission of an offence by any person. Currently, this provision is limited to directors, officers or employees of a government institution.
Subsection 63(2) of the Act should be amended to enable me to disclose to the appropriate authority information relating to the commission of an offence against a law of Canada or a province by any person. Currently, this provision is limited to the Attorney General of Canada.
The notice to third parties set out in section 36.3 of the Act should be repealed. This is an unnecessary step, as the Act already provides for a detailed process which guarantees third parties procedural fairness and allows them to object to the disclosure of information.
A discretionary exemption should be added to allow institutions to protect their representations provided to my office in the course of an investigation. This would align with the Federal Court of Appeal’s reasoning in Rubin v Canada.
When my office receives an access request, subsection 16.1 requires me to continue withholding information obtained in the course of an investigation, even though the investigation is concluded. It does not allow me to disclose such information, even if it has been published or already made available to the public through my final report or other reporting. This provision should be amended to allow me to disclose any information that has been published by me in the course of my duties under 37(3.1)). In addition, this provision should be amended to allow me to disclose, once the investigation and all related proceedings are concluded, to a requester all information that they submitted to my office in the course of an investigation into their complaint. The same consideration should be given to the equivalent exemptions for other agents of Parliament.