Information
Commissioner
of Canada
Commissaire
à l’information
du Canada
HEADINGS:
BODY COPY:
D ivu lge ligh t
Chaparral light
D ivu lge light i ta lic
Chaparral light ita
Divulge re gular
Chaparral regular
D ivulge bold
Chaparral semibol
Chaparral bold
Respect
Integrity / Intégrité
Prestigious, Innovative, Awareness
Energy, Reassuring, Impress
PMS 7563
PMS 7713
Excellence
Practical, Logical, Reserved,
Dutiful, Methodical
Leadership
STRIKING THE RIGHT
BALANCE FOR
TRANSPARENCY
PMS 5517
PMS 445
Steadfast, Responsible, Acc
Conscientious, Solid
Accessible Colour Pallet
Recommendations to modernize
the Access to Information Act
PMS 160
ENGLISH FIRST
PMS 7715
PMS 5487
PMS 445
FRENCH FIRST
Respect
Respect
Respect
Excellence
Excellence
Excellence
Integrity
Integrity Integrity
Leadership
Leadership
Leadership
Office of the Information Commissioner of Canada
30 Victoria Street
Gatineau QC K1A 1H3
Tel.: 1 800 267-0441 (toll free)
Fax: 819-994-1768
Email: general@ci-oic.gc.ca
Website: www.ci-oic.gc.ca
© Minister of Public Works and Government Services Canada 2015
Cat. No. IP4-12/2015E-PDF
ISBN 978-1-100-22070-3
March 2015
The Honourable Pierre Claude Nolin, Senator
Speaker of the Senate
Ottawa ON K1A 0A4
Dear Mr. Speaker:
Pursuant to section 39 of the Access to Information Act, I have the honour to submit to Parliament a special report entitled
Striking the Right Balance for Transparency.
Sincerely,
Suzanne Legault
Information Commissioner of Canada
March 2015
The Honourable Andrew Scheer, M.P.
The Speaker
House of Commons
Ottawa ON K1A 0A6
Dear Mr. Speaker:
Pursuant to section 39 of the Access to Information Act, I have the honour to submit to Parliament a special report entitled
Striking the Right Balance for Transparency.
Sincerely,
Suzanne Legault
Information Commissioner of Canada
Contents
1
MESSAGE FROM THE COMMISSIONER
5
INTRODUCTION
6
EXTENDING COVERAGE
8
Criteria for adding institutions
Ministers’ offices
8
10
Parliament 11
Courts 13
2 THE RIGHT OF ACCESS
14
Duty to document
14
Duty to report
15
Extending access
16
Frivolous and vexatious requests
17
Confirm or deny the existence of a record
17
Format of information
19
Fees 20
3 TIMELINESS
How to address the culture of delay
23
24
Limit extensions to the extent strictly necessary, with legislated timelines
27
Permission to extend
29
Allow extensions for multiple and simultaneous requests
29
Consultations with other institutions and affected parties
30
Failing to respond to a consultation request
31
Consultations with third parties
32
Allow extensions when information is to be published
34
Extension notices
35
4 MAXIMIZING DISCLOSURE
36
Exemptions 39
Injury-based 39
Discretionary
39
Time-limited 39
Public interest override
40
Independent oversight
41
Information related to other governments (sections 13, 14 and 15)
43
Harm to inter-governmental affairs (sections 14 and 15)
45
National security (sections 15 and 69.1)
46
Law enforcement and investigations (section 16)
48
Personal information (section 19)
49
Third party information (section 20)
52
Advice and recommendations (section 21)
55
Solicitor-client privilege (section 23)
57
Cabinet confidences (section 69)
59
Creating a law of general application
63
Restrictions to the right of access found in other laws
63
Exemptions and exclusions for institutions brought under the coverage
of the Act as a result of the Federal Accountability Act
67
5 STRENGTHENING OVERSIGHT
Oversight models
Ombudsperson model
70
70
70
Order-making model
71
Adopting a more effective model
72
Discretion to adjudicate
73
Mediation 73
Enforcement of orders
Other powers
74
74
Commissioner-initiated investigations
74
Compliance audits
75
Investigative powers
75
Education 75
Research 76
Advisory function
Appointment and term of the Commissioner
77
78
6 OPEN INFORMATION
79
Obligation to publish information of public interest
79
Publication schemes
80
Exclusion for published material, material available for purchase
or library or museum material (section 68)
82
7 CRIMINAL LIABILITY AND CIVIL RESPONSIBILITY
84
Obstruction 85
Failure to document
86
Failure to report
86
Spectrum of sanctions
86
No liability where acting in good faith
87
Criminal offences – increasing fines
88
Administrative monetary penalties
88
Term and condition of employment for employees, directors
and officers of institutions
89
Referral of criminal offences
90
Suspending investigations
90
Notifying authorities
90
8 MANDATORY PERIODIC REVIEW OF THE ACT
LIST OF RECOMMENDATIONS
ANNEX: SOURCES
92
93
102
STRIKING THE RIGHT BALANCE FOR TRANSPARENCY
Message from the
Commissioner
I
nformation is one of society’s most valuable assets. Access to government information is fundamental
to democracy because it ensures that Canadians can hold their government to account.
The Access to Information Act was adopted in 1982. Much has changed within government since that time, including how
the government is organized, how decisions are made and how information is generated, collected, stored, managed and
shared. The Open Government movement has increased Canadians’ expectations and demands for transparency.
Persistent calls to reform the Act have been made ever since its adoption. In the 30-plus year history of the Office of the
Information Commissioner of Canada, my predecessors and I have documented multiple challenges and deficiencies
with the Act. The Act is applied to encourage a culture of delay. The Act is applied to deny disclosure. It acts as a shield
against transparency. The interests of the government trump the interests of the public.
To strike the right balance between the public’s right to know and the government’s need to protect limited and specific
information, I am proposing a comprehensive modernization of the Access to Information Act. The 85 recommendations
in this report are based on my Office’s own experience, as well as comparisons to leading access to information models
in provincial, territorial and international laws.
My recommendations will address ways to modernize the Act:
To deal with the current realities and expectations of Canadians;
To simplify the administration and the application of the Act by focussing only on the interests that legitimately
require protection;
To increase timeliness in the processing of access requests;
To permanently resolve recurring issues;
To align the Act with the most progressive and strongest laws in Canada and abroad; and
To maximize disclosure in line with a culture of openness “by default.”
A modern Act will only succeed, however, if there is a concomitant change in institutional culture from secrecy to
openness, from delay to timeliness. I believe that implementing these recommendations will support true openness and
accountability and allow the Government of Canada to achieve a meaningful “open by default” culture.
I wish to thank all of the former commissioners, all of our employees, past and present, and participants in the open
dialogue consultation process, for contributing their ideas and insights to this much-needed modernization process.
Information Commissioner of Canada
5
Introduction
C
anada’s access to information law—the Access to Information Act— came into force in 1983.1 The Act
provides Canadian citizens, permanent residents, and individuals and corporations who are present
in Canada with the right to access government information, subject to certain limitations. The
Information Commissioner, with the support of the Office of the Information Commissioner of Canada,
conducts efficient, fair and confidential investigations into complaints about institutions’ handling of
access to information requests. As such, the Information Commissioner brings a unique perspective
and expertise on the operation of the Act.
The right of access has quasi-constitutional status in Canada.2 The Supreme Court of Canada has also held that the
overarching purpose of access legislation is to facilitate democracy by helping ensure that citizens have the information
they need to participate meaningfully in the democratic process and that politicians and bureaucrats remain accountable
to the citizenry.3
The right of access also derives from section 2(b) of the Canadian Charter of Rights and Freedoms (the right of free
expression), where access to government information is a necessary precondition of meaningful expression on the
functioning of government.4
The Access to Information Act marked its 30th anniversary in 2013. Over the Act’s three decades of existence, technology,
the administration of government and Canadian society have been transformed in many regards. And yet, despite these
changes, the Act remains largely in its original form.
When the Act became law, information was mostly paper-based. Now, virtually all information is in electronic or digital
form. The sheer volume of electronic data and the speed and methods of transmission have challenged government’s
ability to collect, store, manage and share information with the public.
Moreover, the administration of government has undergone a fundamental shift since the early 1980s. Now, partnerships
with, and outsourcing to, the private sector have become increasingly common ways for government to deliver services
to the public. As well, policy development and decision-making increasingly takes place in ministers’ offices, which are
not covered by the Act. As a result, accessing records necessary to hold government to account has become more complex,
or, in some cases, impossible.
1 RSC, 1985, c A‑1.
2 Canada (Information Commissioner) v Canada (Minister of National Defence), 2011 SCC 25 at para. 40.
3 Dagg v Canada Minister of Finance, [1997] 2 SCR 403 at para. 61.
4 See Ontario (Public Safety and Security) v Criminal Lawyers’ Association, 2010 SCC 23 at para. 30.
6
STRIKING THE RIGHT BALANCE FOR TRANSPARENCY
Lastly, many governments, including Canada’s, have joined the international Open Government Partnership in response
to an increasing desire on the part of the public for more transparency and accountability from government.5 A key
component of an effective and open government is a modern access to information law that maximizes timely disclosure
of government information in electronic, non-static formats. This influx of information to the public increases
accountability and facilitates collaboration between government and the citizenry about how best to deliver programs
and services.
In light of these developments, the Commissioner recommends modernizing the Access to Information Act by:
extending coverage to all branches of government;
improving procedures for making access requests;
setting tighter timelines;
maximizing disclosure;
strengthening oversight;
disclosing more information proactively;
adding consequences for non-compliance; and
ensuring periodic review of the Act.
The Commissioner relied on a variety of sources when developing the recommendations in this report. Key sources are
listed at the end of this report. (Other sources are cited in the footnotes.) Generally, the Commissioner focussed on
access to information laws of other jurisdictions, model laws and guides, Canadian reports on access reform, government
and private members’ bills, policy instruments, assessment tools from civil society, consultations with the public and
previous reform proposals from information commissioners.
5 Open Government Partnership: .
Information Commissioner of Canada
7
Chapter 1
Extending coverage
T
he Access to Information Act applies to about 250 institutions.1
However, not all entities that spend taxpayers’ money or perform
public functions are subject to the Act. The House of Commons, the
Senate, ministers’ offices, the administrative bodies supporting
the courts, airport authorities, NAV CANADA and the Canada
Health Infoway are a few examples of entities that are not covered
by the Act.2
The Access to Information
Act provides a right of
access to information in
records under the control
of a government institution.
Government management and administration have been transformed significantly since the Act came into force in 1983.
Successive governments have expanded the type and altered the structures of organizations that perform government
functions. Quasi-commercial entities, special operating agencies and public-private sector partnerships have become
increasingly common modes for governments to carry out their business. Since many of these bodies are not covered by
the Act, information about public functions and services is difficult to obtain or unavailable to the public through access
to information requests.
Criteria for adding institutions
Broad coverage of public entities is necessary to ensure Canadians can gain access to as much information about
government operations and decisions as possible. Without sufficient coverage, government information may lie outside
the reach of the Act and therefore outside the reach of the public.
Currently, institutions may be brought under the Act by Order in Council or through other laws. The Act also allows the
Governor in Council to prescribe criteria for adding institutions; however, this has never been done.
A criteria-based approach, found in various model laws, was recommended by a government appointed access to
information reform task force and can be found in two access laws that have been highly rated by a civil society
organization.3 Criteria for determining whether an entity should be covered by the Act include whether it was established
by statute, whether it receives substantial government funding or whether it carries out public functions or services.
1 The institutions covered by the Act are either listed in Schedule I of the Act or are Crown corporations (and their wholly owned subsidiaries),
as defined in the Financial Administration Act, RSC, 1985, c F-11. The number of institutions subject to the Act has increased since it was
enacted in 1983. For example, the Federal Accountability Act, SC 2006, c-9 brought 70 new institutions under the Act, including some Crown
corporations and their subsidiaries, agents of Parliament (including the Information Commissioner), foundations and some agencies that
spend taxpayers’ money or perform public functions.
2 Canada Health Infoway is an example of an institution that receives significant public funding. Through a series of grants, Health Canada
has provided this institution with $2.1 billion in funding. See Canada Health Infoway. “What we do.” .
3 The Organization of American States and Article 19 model laws and the Tshwane Principles each include such criteria. Criteria for coverage
was recommended in Making it Work for Canadians and can be found in the access laws of Serbia and India. Organization of American States.
“Model Inter-American Law on Access to Public Information and its Implementation Guidelines.” 2012. ; Article 19. “A Model Freedom of Information Law.” 2006. ; Open Society Foundations, “The Global Principles on National Security and the
Right to Information (Tshwane Principles).” 2013. ; Canada, Access to Information Task Force, Access to Information: Making it Work for Canadians (Ottawa: Public Works
and Government Services Canada, 2002 at p. 24).
8
STRIKING THE RIGHT BALANCE FOR TRANSPARENCY
Under criteria such as these, all public institutions—
including the executive, legislative and judicial branches
of government, as well as any bodies that are owned or
controlled by government—would fall within the scope of
the access legislation. Using criteria for coverage would
also mean that the law would extend to entities that
operate with substantial public funds or carry out public
functions or services.4
Recommendation 1.1
The Information Commissioner recommends
including in the Act criteria for determining which
institutions would be subject to the Act. The criteria
should include all of the following:
� institutions publicly funded in whole or in part
by the Government of Canada (including those
with the ability to raise funds through public
borrowing) (this would include traditional
departments but also other organizations
such as publicly funded research institutions);
� institutions publicly controlled in whole or in
part by the Government of Canada, including
those for which the government appoints a
majority of the members of the governing body
(such as Crown corporations and their subsidiaries);
2014–2015 Budgets
The House of Commons: $413,725,137
The Senate: $91,485,177
The Library of Parliament: $41,970,007
The Office of the Conflict of Interest and
Ethics Commissioner: $6,938,405
The Senate Ethics Officer: $1,166,750
The Supreme Court of Canada: $31,389,794
The Courts Administration Service:
$68,044,743
The Commissioner for Federal Judicial
Affairs: $511,708,846
Substantial Funding
$2.1 billion in funding (to date) to Canada
Health Infoway
Up to $500 million for the Toronto 2015
Pan and Parapan American Games
� institutions that perform a public function, including those in the areas of health and safety, the
environment, and economic security (such as NAV CANADA, which is Canada’s civil air navigation
service provider);
� institutions established by statute (such as airport authorities); and
� all institutions covered by the Financial Administration Act.
4 In these instances, coverage would extend only to the records that relate to those public functions.
Information Commissioner of Canada
9
Ministers’ offices
Departments exist to carry out the work of their
responsible minister. Generally, the powers, duties and
functions of an institution are vested by statute in the
institution’s minister. The minister is ultimately
responsible for the department’s activities.5 However, in
2011 the Supreme Court of Canada determined that
ministers’ offices are not institutions covered by the Act.6
Although the Court found that ministers’ offices are not
part of the institutions over which they preside, it did
acknowledge that some records located in ministers’
offices are subject to the Act. A two-part test was devised
for determining whether records physically located in
ministers’ offices are “under the control” of an institution
and therefore accessible under the Act.7
The facts underlying the Supreme Court of
Canada decision illustrate the accountability
deficit resulting from the lack of coverage
of ministers’ offices. Some of the records
at issue were notes taken by the exempt
staff of the Minister of National Defence
during regular meetings of the Minister,
his Deputy Minister and the Chief of the
Defence Staff. The subject matter of these
meetings was only documented in the notes
of the exempt staff and represented the only
written record of what transpired during the
meetings. The notes were located within the
physical confines of the Minister’s office and
were not taken by departmental employees.
The Court held that the records did not meet
the two-part test and therefore were not
accessible under the Act.
Following this decision, the Treasury Board of Canada
Secretariat issued Implementation Report No. 115.8 In
Exempt staff refers to the political and partisan office staff
of Cabinet ministers.
accordance with this implementation report, access to
information officials must consider whether there are
reasonable grounds to believe that there exist relevant
records in the Minister’s office that would be considered
to be under the institution’s control. Such evidence may come from, for example, records already obtained from the
institution.9 This causes delay in processing the request and risks records no longer being available.
Ministers and their parliamentary secretaries, ministers of state and the Prime Minister are public office holders who
make decisions that impact Canadians.10 These decisions also impact how tax dollars are spent. Ministers (and their
staff) need to be accountable in disclosing information relating to the administration of their departments or other
responsibilities, beyond what they currently release through proactive disclosure.11
5 As reflected in the principle of ministerial accountability.
6 Canada (Information Commissioner) v Canada (Minister of National Defence), 2011 SCC 25.
7 The first step of the two-part control test is to ask whether the record relates to a departmental matter. When it does not, that ends the
inquiry. When the record does relate to a departmental matter, the second step is to determine whether, based on all relevant factors, a
senior official of the institution should reasonably expect to be able to obtain a copy of the record upon request. Relevant factors include
the substantive content of the record, the circumstances in which the record was created and the legal relationship between the institution
and the record holder. In Accountable Government: A Guide for Ministers and Ministers of State, the Privy Council Office explains that “records
kept in the offices of Ministers and Ministers of State must be broken down into four categories: Cabinet documents, institutional records,
ministerial records, and personal and political records.” Canada, Privy Council Office, Accountable Government: A Guide for Ministers and
Ministers of State, (Ottawa: Privy Council Office, 2011) at p. 29. .
8 Treasury Board of Canada Secretariat. “Implementation Report No. 115—Access to Records in a Minister’s Office—Prime Minister’s Agenda
Case.” April 22, 2013. .
9 See section 2 of the Implementation Report.
10 According to the Accountable Government: A Guide for Ministers and Ministers of State, “a Minister may delegate to a Parliamentary Secretary
specific duties for policy development initiatives” (p. 7).
11 Currently, ministers, ministers of state, parliamentary secretaries, and their exempt staff must proactively disclose all travel and hospitality
expenses. Treasury Board of Canada Secretariat. “Policies for Ministers’ Offices.” January 17, 2011. .
10
STRIKING THE RIGHT BALANCE FOR TRANSPARENCY
In some jurisdictions, including some Canadian provinces, the access law explicitly covers ministers’ offices. Model laws
also cover ministers’ offices.12 The access laws in Australia and New Zealand apply to ministerial records.13
The Commissioner recommends extending coverage of the Act to the Prime Minister’s Office, offices of ministers and
ministers of State, and parliamentary secretaries. Thus, the exemptions in the Act would apply to the records in these
offices, such as the exemptions protecting personal information or solicitor-client privilege. However, the Commissioner
recognizes that these exemptions would not protect certain records in a minister’s office related to the minister’s
parliamentary functions as a Member of Parliament.14 It is the Commissioner’s recommendation that these records
should be protected by a new exemption.
Recommendation 1.2
The Information Commissioner recommends extending coverage of the Act to the Prime Minister’s Office,
offices of ministers and ministers of State, and parliamentary secretaries.
Recommendation 1.3
The Information Commissioner recommends creating an exemption in the Act for information related
to the parliamentary functions of ministers and ministers of State, and parliamentary secretaries as
members of Parliament.
Parliament
Currently, Parliament is not covered by the Act. The 2014–2015 Estimates lists the combined budget for the House of
Commons, the Senate and the Library of Parliament as $547,180,321. Some information on the finances of Parliament
is publicly available, but it is often only in aggregate form and published in a schedule that removes the context. Concerns
that arose in 2013 about the expenses of individual senators have shown that Canadians want more, and are entitled to,
transparency and accountability from Parliament with respect to how taxpayer dollars are spent.
12 The laws of Alberta, Manitoba and New Brunswick explicitly include the offices of ministers in the definition of “public body.” In Mexico the
Federal Executive is covered by the law. The Article 19 and Organization of American States model laws, and the Tshwane Principles extend
to the Executive. The Open Government Guide also explicitly states that the executive should be included under an access to information law.
Open Government Guide. “Welcome to the Open Gov Guide.” 2013. . The chapter on right to information
can be found at .
13 In Australia, the right of access explicitly extends to an official document of a minister. In New Zealand, the definition of “official
information” includes any information held by a minister in his or her official capacity.
14 Parliamentary functions in relation to a member of the House of Commons are defined in the Members By-Law of the Board of Internal
Economy as “the duties and activities that relate to the position of Member, wherever performed and whether or not performed in
a partisan manner, namely, participation in activities relating to the proceedings and work of the House of Commons and activities
undertaken in representing his or her constituency or constituents.” House of Commons, Board of Internal Economy, Members By-law
(September 2014) at s. 1. .
Information Commissioner of Canada
11
The access legislation in some Canadian provinces, as well as the U.K., covers the legislative branch to a certain degree,
with protections for certain interests.15 Model laws and some top-ranked right to information laws also cover the
legislative branch.16 In addition, numerous reports—issued not only by the Office of the Information Commissioner but
also by a parliamentary committee and the task force mandated with reviewing the Act in 2002—have recommended
bringing Parliament under the Act.17
Given these considerations, the Commissioner recommends that coverage of the Act should be extended to the bodies
that support Parliament, such as the Board of Internal Economy, the Library of Parliament, the Conflict of Interest and
Ethics Commissioner and the Senate Ethics Commissioner.
However, the Commissioner also recognizes that certain records held by these entities could be subject to parliamentary
privilege.18 At present, the Act provides no protection to prevent an infringement of parliamentary privilege.19
Recommendation 1.4
The Information Commissioner recommends extending coverage of the Act to the bodies that support
Parliament, such as the Board of Internal Economy, the Library of Parliament, the Conflict of Interest and
Ethics Commissioner and the Senate Ethics Commissioner.
Recommendation 1.5
The Information Commissioner recommends creating a provision in the Act to protect against an
infringement of parliamentary privilege.
15 The laws of Quebec, Newfoundland and Labrador, and Ontario all apply to the legislative branch. However, the Ontario law only covers records
of reviewable expenses of Opposition leaders and the persons employed in their offices and the personal information contained in those
records. Examples of the protections that laws might include are those for parliamentary privilege, and constituency and political records.
16 The Organization of American States model law, the Tshwane Principles and the Open Government Guide all cover the legislative branch,
as do the access laws of India, Mexico and Serbia.
17 Commissioner Grace, Open and Shut and Making it Work for Canadians recommended extending coverage of the Act to the House of
Commons, the Senate and the Library of Parliament. Commissioner Marleau recommended extending coverage of the Act to records
related to the general administration of Parliament. See the Office of the Information Commissioner. “Annual Report—Information
Commissioner—1993–1994.” ; Canada,
Parliament, House of Commons, Standing Committee on Justice and Solicitor General, Open and Shut: Enhancing the Right to Know and the
Right to Privacy, 2nd Sess, 33rd Parl, No 9 (March 1987) (Chair: Blaine A. Thacker); and Strengthening the Access to Information Act to Meet
Today’s Imperatives.” March 9, 2009. .
18 Parliamentary privilege is the collective and individual rights accorded to parliamentarians to ensure they are able to carry out their
functions and perform their duties without obstruction. The privilege is protected by the Constitution and extends to all matters relating
to parliamentary proceedings.
19 Such a protection can be found in the access legislation of Newfoundland and Labrador, the U.K. and India.
12
STRIKING THE RIGHT BALANCE FOR TRANSPARENCY
Courts
The judicial branch and its administrative support bodies are not covered by the Act. The 2014–2015 Estimates lists the
combined budget of the Supreme Court of Canada, the Office of the Registrar of the Supreme Court of Canada, the
Courts Administration Service, the Office of the Commissioner for Federal Judicial Affairs and the Canadian Judicial
Council as $611,143,383.
The constitutionally enshrined principle of judicial independence has been cited as the reason why these entities are not
subject to the Act.20 However, the access legislation of some provinces, as well as a number of other countries, applies to
the courts’ administrative records.21 To allow for administrative records to be disclosed while still protecting judicial
independence, some laws exclude certain types of records from their scope. For example, the access laws of Alberta and
British Columbia exclude records in court files, the records and personal notes of judges, and communications or draft
decisions of persons acting in a judicial or quasi-judicial capacity.
Extending coverage of the Act to court support services would promote accountability and transparency in the spending
of public monies. The Commissioner recommends extending coverage of the Act to the bodies that provide administrative
support to the courts, such as the Registry of the Supreme Court, the Courts Administration Service, the Office of the
Commissioner for Federal Judicial Affairs and the Canadian Judicial Council.
Recommendation 1.6
The Information Commissioner recommends extending coverage of the Act to the bodies that provide
administrative support to the courts, such as the Registry of the Supreme Court, the Courts Administration
Service, the Office of the Commissioner for Federal Judicial Affairs and the Canadian Judicial Council.
Recommendation 1.7
The Information Commissioner recommends that the Act exclude records in court files, the records and
personal notes of judges, and communications or draft decisions prepared by or for persons acting in a
judicial or quasi-judicial capacity.
20 Judicial independence is a guarantee that judges will make decisions free of influence and based solely on fact and law. The 2002 task force
that studied the Act cited the importance of maintaining judicial independence as the reason for not recommending that the courts be
covered by the Act (Making it Work for Canadians at p. 29).
21 In Canada, these jurisdictions include B.C., Alberta, P.E.I. and Nova Scotia. The access laws of Serbia, India and Mexico similarly apply to
courts’ administrative records.
Information Commissioner of Canada
13
Chapter 2
The right of access
T
he 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
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.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).
Missing records
complaints registered
2011–2012: 283
(27% of refusal complaints)
2012–2013: 428 (41%)
2013–2014: 470 (39%)
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.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.3
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.” .
2 Office of the Information Commissioner. Access to Information at Risk from Instant Messaging. November 2013. .
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. < http://www.oic-ci.gc.ca/eng/lettre-pland-action-2.0_letter-action-plan-2.0.aspx>.
14
STRIKING THE RIGHT BALANCE FOR TRANSPARENCY
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.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.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).
Recommendation 2.1
The Information Commissioner recommends establishing a comprehensive legal duty to document, with
appropriate sanctions for non-compliance.
Duty to report
Library and Archives Canada (LAC) is charged with
preserving the documentary heritage of Canada, including
authorising the destruction of records by government
institutions.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.7 The Commissioner’s investigations have revealed
that records have been disposed of without authorization,
which effectively denies the right of access.
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.
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) .
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).
6 As per section 12 of the Library and Archives of Canada Act.
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). .
Information Commissioner of Canada
15
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.)
Recommendation 2.2
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 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.
Extending access
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.8
Recommendation 2.3
The Information Commissioner recommends extending the right of access to all persons.
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 at ; 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).
16
STRIKING THE RIGHT BALANCE FOR TRANSPARENCY
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.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.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.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.
Recommendation 2.4
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.
Recommendation 2.5
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.
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.
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.
11 See Chapter 5 for a discussion of the oversight model found in the Act.
Information Commissioner of Canada
17
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.”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.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.14
Recommendation 2.6
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.
12 Open and Shut, p. 29.
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.
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.
18
STRIKING THE RIGHT BALANCE FOR TRANSPARENCY
Format of information
Based on open government principles, information should
be provided to the public in open formats that facilitate
reuse.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.16, 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.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.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:
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.1
Reusable format: The information must be
provided under terms that permit re-use
and redistribution.
As per Open Definition:
1. 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. .
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.
15 Open Government Partnership, Open Government Declaration, September 2011. .
16 Treasury Board of Canada Secretariat. Directive on Open Government, s. 6.1. .
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.
18 Further, section 12(3) provides that a requester with a sensory disability may ask to receive a record in an alternative format.
19 SOR/83-507
Information Commissioner of Canada
19
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.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.21, 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.23
Recommendation 2.7
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.
Fees
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
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).
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”.
.
22 This will render section 8.1 of the Regulations redundant.
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.
20
STRIKING THE RIGHT BALANCE FOR TRANSPARENCY
“machine-readable” records (section 11(3)). The exact cost
and application of each of these fees are set in
the Regulations.24
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.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.
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. 26 They are
also contrary to the concept that government information
is a national resource that has been funded by taxpayers.
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.
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.
Many jurisdictions limit what kind of fees institutions
may charge. Some do not permit fees for making
requests.27 Others allow fees to be waived in certain
specified circumstances.28 In 2011, New Brunswick
abolished all fees associated with making and processing
access requests.29
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.
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).
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. .
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..
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.
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.
Information Commissioner of Canada
21
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.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.
Recommendation 2.8
The Information Commissioner recommends eliminating all fees related to access requests.
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.
22
STRIKING THE RIGHT BALANCE FOR TRANSPARENCY
Chapter 3
Timeliness
T
imely access to information is a pillar of any
access to information regime. It ensures
that requesters receive responses while the
information is still relevant and that they can
hold governments to account for their decisions
at appropriate times. For this reason, many in
the field of access to information use the
expression “access delayed is access denied.”
This expression holds even more meaning in
the 21st century, where, in the face of the
24-hour news cycle, social media and
instantaneous communications, information’s
value is to a large degree measured by how
current it is.
Parliament recognized the importance of timely
responses to requests when it provided that a failure to
abide by the legislative timelines is deemed to be a
refusal. The importance of timeliness was recognized
again in 2006, when Parliament amended the Act to
include a legislative duty to assist which, among other
things, requires that institutions provide timely access
to information subject to the requirements of the Act.1
Timeliness is a frequent subject of complaint by
requesters. Investigations of these complaints have
revealed a culture of delay across the access to
information system.2
Successive commissioners have tracked institutions’
compliance with timelines and reported to Parliament
on institutions that consistently failed to meet
timelines. The Commissioner has also made a number
The issue of delays has been persistently raised by
information commissioners since 1983.
Inger Hansen (1983–1990)
Delaying access to information in effect destroys
the purpose of the Act.
1984–1985 Annual Report
John Grace (1990–1998)
Most surprising — and dismaying — about the
whole delay problem is that the Act already contains
one of the most liberal extension-of-time provisions
found in any freedom of information statute.
1993–1994 Annual Report
John Reid (1998–2006)
It is my fervent hope that the day will come soon
when I will be able to drop the problem of delay
as my number one priority.
Remarks at the 1999 Canadian Access and Privacy
Association conference
It appears that the problem of delay remains a
significant concern.
2005–2006 Annual Report
Robert Marleau (2007–2009)
The most significant and wide-reaching finding
attests to the fact that the 30-day period intended
by Parliament to be the norm in responding to
information requests is the exception.
2007–2008 Special Report: Systemic Issues Affecting
Access to Information in Canada
Suzanne Legault (2009–present)
Despite warnings and recommendations, delays
continue to be the Achilles’ heel of the access
to information system and have yet to be
appropriately addressed by the government.
2008–2009 Special Report: Out of Time
1 Section 4(2.1). The Federal Court of Appeal in Information Commissioner of Canada v Minister of National Defence, et al., 2015 FCA 56, rev’g
2014 FC 205 at para. 63 has confirmed that timely access is a “constituent part” of the right of access.
2 Requesters may complain about extensions and deemed refusals to the Commissioner. Within 45 days of receiving the Commissioner’s
report of findings they may proceed to Federal Court.
Information Commissioner of Canada
23
of recommendations to the Treasury Board of Canada Secretariat to help ease problems associated with timeliness.3
Although these interventions have led to some improvements in timeliness, these improvements are often short term and
institution-specific, and have not resulted in lasting system-wide improvements.4
A recent Federal Court of Appeal decision with respect to the time limits set out in the Act is expected to have a positive
impact on timeliness and Canadians’ access rights (see box at page 28 for a more detailed description of this decision).5 This
decision establishes that an unreasonable extension is not legally valid and amounts to a deemed refusal, giving a right of
review to the Federal Court (prior to this decision, it was unclear whether an extension was reviewable by the Court). It also
sets standards to institutions in terms of how they must justify the use and length of extensions.
While this decision will serve to improve timeliness under the current legislative framework, the Act remains inconsistent
with international standards, which include both specific and limited timelines, as well as timely and effective oversight.
Modernizing the current framework will ultimately ensure that Canadians obtain the information they are entitled to
within a timeframe that meets their expectations in the context of 21st century information realities.
How to address the culture of delay
Most laws require institutions to respond to requests in approximately 30 working days, which is consistent with the
Act. Model laws and access laws from other jurisdictions, however, frequently limit the circumstances in which
institutions may take extensions. They also limit the length of extensions.6 Indeed, in all but one of the provinces, as well
as in Australia, the U.S., and in model laws, the length of time for an extension is limited to a precise number of days,
ranging from 10 to 40.7 While many of these jurisdictions allow for longer extensions, institutions must ask for prior
approval from the commissioner.8
None of these safeguards are found in the Act.
3 For example, the Commissioner has recommended setting targeted performance levels in institutional reports on plans and priorities
and amending policies and directives to include more rigour and discipline around timelines See Office of the Information Commissioner.
“Letter to the President of the Treasury Board on improving the performance of the access to information system.” April 25, 2014.
and Office of the Information Commissioner. Letter to the
President of the Treasury Board. May 22, 2014.
4 For example, after the Commissioner issued her 2008–2009 report cards, the Commissioner followed up with the institutions that
had performed at risk or below average in 2010–2011. Of those institutions, the use of extensions had decreased by six percent;
however, government-wide, the use of extensions had increased by 24 percent. Office of the Information Commissioner, Out of Time:
2008–2009 Report Cards and Systemic Issues Affecting Access to Information in Canada. April 13, 2010. .
5 See Information Commissioner of Canada v Minister of National Defence at n. 1. This decision was delivered on March 3, 2015 and the
government has 60 days to appeal to the Supreme Court of Canada.
6 Thirty calendar days is the equivalent of 20 working days. All provinces except Quebec give 30 calendar days for the initial response. Such a
timeframe also appears in the laws of Australia, New Zealand and the U.K., as well as in the Article 19 and Organization of American States
model laws. 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. .
7 Australia: 30 days; the U.S.: 10 days, unless the institution has arranged an alternative timeline with the requester; and all but one province;
30 days (Quebec allows for extensions up to 10 days). In contrast, Ontario’s law allows for “reasonable” extensions. The Organization of
American States model law allows extensions of 20 days, while the Article 19 model law permits 40-day extensions.
8 The laws of B.C., Alberta, Manitoba, New Brunswick, Nova Scotia, P.E.I., and Newfoundland and Labrador, as well as the Organization of
American States model law (article 35(3)) contain such a process.
24
STRIKING THE RIGHT BALANCE FOR TRANSPARENCY
Time limits in the Act
Initial response time
The Act requires institutions to respond to
an access request within 30 calendar days
of receipt. Responses can contain the records
requested, a notification that the institution
does not hold any responsive records or a
notification that the institution is taking an
extension to allow more time to respond
completely and accurately to the request
(section 7).
Extensions
The Act allows extensions for a reasonable period
of time, having regard to the circumstances. There
are three circumstances in which an institution
may take an extension:
the original time limit would unreasonably
interfere with the operations of the
institution (section 9(1)(a)).
2. When the institution does not expect to be
able to complete necessary consultations
on the records associated with the request
within the original 30 days (section 9(1)(b)).
3. To consult third parties when they intend to
disclose a record that contains (or may contain)
third-party information (such as trade secrets
and confidential financial, commercial, scientific
and technical information, as identified in
section 20(1) of the Act) (section 9(1)(c)).
Section 27 of the Act sets out a formal process
that institutions must follow for notifying third
parties that they intend to disclose records that
may contain third-party information.
1. When the request is for a large number of
records or necessitates a search through
a large number of records and meeting
The Act requires institutions to notify the
Commissioner of all extensions they take
beyond 30 days.
Delays by the numbers
CIC receives by far the most requests in the
entire federal access system—49 percent
of the total in 2013–2014. Nearly all of the
requests it receives are from consultants and
lawyers representing non-citizens who deal
with CIC on matters related to immigration and
citizenship. Typically, these requests involve a
small number of pages and CIC is generally able
to complete these requests within 30 days. The
performance of CIC thus significantly impacts
on government-wide statistics. When looking at
statistics without CIC, the proportion of requests
responded to within 30 days was 61 percent in
2002–2003 and 55 percent in 2013–2014.
The original intent of the Act was that
government institutions respond to access
requests within 30 days of receipt, unless this
period is extended in specific and limited cases
(section 9).
A key indicator of timeliness is the proportion
of requests responded to within 30 days. The
Treasury Board of Canada Secretariat collects
this information annually and publishes it on an
aggregated basis.1 In 2002–2003, the proportion
of requests responded to within 30 days was at
69 percent. This number has steadily declined
over the years, to 61 percent in 2013–2014,
with a low of 55 percent in 2011–2012.
This indicator can be broken down to get a
clearer picture of the spectrum of performance
across the access to information system.
For instance, the Commissioner looks at
statistics with and without the figures for
Citizenship and Immigration Canada (CIC).
Information Commissioner of Canada
continued on next page
1. All aggregate statistics provided in this chapter are based
on those published by Treasury Board of Canada Secretariat
on the Info Source website. The Commissioner has noted
inconsistencies in the 2013–2014 statistics. At the time of
printing, these statistics had not been corrected. See Info Source.
Info Source Bulletin Number 37B – Statistical Reporting,
2013–2014. .
25
The Commissioner also looks at institutions’
specific statistics. These numbers show important
variations across the government. For example,
in 2013–2014, about 77 percent of requests
made to the Canada Border Service Agency
were responded to within 30 days. In contrast,
only 29 percent of requests were responded
to within that timeline at the Royal Canadian
Mounted Police.
Another interesting indicator of timeliness is
the average response time for requests.2 On
average, a request made to the Canadian Security
Intelligence Service in 2013–2014 was responded
to within 26 days. The average response time at
Transport Canada was 179 days that same year.
Extensions
Since 2002–2003, the frequency in the use
of time extensions has been relatively stable,
representing between 25 to 30 percent of
completed requests. The length of extensions,
however, has increased significantly across
all categories. In 2002–2003, 55 percent of
extensions were for more than 30 days. This
number stood at 79 percent in 2013–2014.
In 2002–2003, 40 percent of extensions claimed
for consultations under section 9(1)(b) were
for more than 30 days. This number jumped
to 88 percent in 2013–2014.3 Within this
category, 97 percent of extensions to
consult on Cabinet confidences were for
more than 30 days in 2013–2014.4
Deemed refusals
The Treasury Board of Canada Secretariat
began collecting statistics in 2011–2012 on
the proportion of requests closed past their
statutory or extended timelines. In the last
26
three years, at least 1 in 10 requests was late
(15% in 2011–2012; 11% in 2012–2013; 14% in
2013–2014). The primary reason cited for not
responding within deadlines was workload.
Even where a request has not been responded
to within the time limits allowed in the Act, the
requirement to respond persists. However, in
2012–2013, only 40 percent of these requests
were responded to within 30 days beyond the
time limits allowed in the Act. In 10 percent of
these cases, the institutions took an additional
year to respond.
Complaints
The Office of the Information Commissioner
of Canada has dedicated a significant amount
of time and resources to resolving complaints
about timeliness. Annual reports contain
multiple examples of investigations related
to long extensions and deemed refusals. In
the last 10 years alone, a large proportion of
all complaints registered annually related to
time extensions and deemed refusals. The
Commissioner’s experience is that the vast
majority of these complaints are well founded
(in 2011–2012: 48 percent for extensions and
74 percent for deemed refusals; in 2012–2013:
68 percent for extensions and 73 percent for
deemed refusals; in 2013–2014: 63 percent for
extensions and 75 percent for deemed refusals).
2. This information was not collected by the Treasury Board of
Canada Secretariat. It was made available as a result of a
parliamentary question (Q-485).
3. These proportions contrast with the completion time for
consultation requests, which shows that the majority of them
are completed within 30 days (74 percent in 2011–2012;
65 percent in 2012–2013 and 68 percent in 2013–2014).
4. Data on consultations for Cabinet confidences was not
collected in 2002–2003.
STRIKING THE RIGHT BALANCE FOR TRANSPARENCY
Examples of the culture of delay
Since 1983, thousands of complaints about
delays have been investigated. As a result,
persistent and recurring practices by
institutions have been identified that delay
responding to access requests.
Statutory deadlines
� Putting requests “on hold” to seek clarification
from requesters and then restarting timelines
upon receiving clarification. This occurs even
when clarification is not necessary or does
not change the request substantially.
� Taking standard length extensions without
considering the volume and complexity of the
information at issue.
� Using extensions to compensate for
lack of resources
high workloads
extended staff absences or
unavailability of key officials
poor information management
practices within the institution
protracted approval processes
� Putting requests “on hold” during holidays.
� Not initiating a consultation at the earliest
opportunity in the processing of a request.
� Employees within institutions failing to meet
the timelines established by the ATIP Office
to provide relevant records.
� Not responding to a consultation request in
a timely manner.
� Fee assessments which allow the institution
to place a request on hold until payment.
Extensions
� Claiming an extension after the initial
response time has expired.
� Claiming an extension to retrieve records
from regional or international offices.
� Not following up on a consultation request in
a timely manner
� Taking extensions of longer than 60 days
for consultations with third parties or taking
two extensions (one under section 9(1)(b) to
consult informally and another under section
9(1)(c).
Limit extensions to the extent strictly
necessary, with legislated timelines
Although institutions must ensure any extension they take meets the
criteria set out in section 9 and, according to the Access to Information
Manual, be for as short a time as possible, it is the Commissioner’s
experience that this is not always the case.9 In a special report on time
limits, the Commissioner found that institutions do not always meet
these requirements and that unjustified use of time extensions is a leading
and well-recognized cause of delays.10
Over the last three years, based
on government-wide statistics,
the majority of extensions were
for 60 or fewer days:
In 2011–2012: 65%
In 2012–2013: 65%
In 2013–2014: 54%
According to Treasury Board of Canada Secretariat statistics, the majority of extensions taken by institutions are for less
than 60 days. Accordingly, the Commissioner recommends that extensions be limited to the extent strictly necessary, to
a maximum of 60 days.11 All extensions should be reasonable or justified in the circumstances and calculated with sufficient
rigour, logic and support to meet a reasonableness review, as was enunciated by the Federal Court of Appeal. An effort will
be required to demonstrate the link between the justification advanced and the length of the extension taken.12
9 As per the Treasury Board of Canada Secretariat. Access to Information Manual. ,
Section 7.3.2.
10 See Out of Time, ch. 1.
11 Commissioner Marleau suggested that the Commissioner should approve any extensions of more than 60 days. Office of the Information
Commissioner. “Strengthening the Access to Information Act to Meet Today’s Imperatives.” March 9, 2009. .
12 As per Information Commissioner of Canada v Minister of National Defence, et al at paras. 76–79 (see n. 1).
Information Commissioner of Canada
27
On March 3, 2015, the Federal Court of Appeal
allowed an appeal brought by the Commissioner
from a decision in which the Federal Court had
dismissed an Application for judicial review
that the Commissioner had initiated, with the
requester’s consent, under section 42 of the Act.
The case relates to a request that was made
to National Defence on February 3, 2011 for
records relating to the sale of certain military
assets. National Defence advised the requester
that it would extend the time limit to respond
to the request by 1,110 days.
As a result of a complaint from the requester, the
Commissioner conducted an investigation and
determined that the requirements of section 9
for the time extension had not been met.
The Commissioner applied for a declaration from
the Federal Court that National Defence had
failed to give access to the records requested
under the Act within the time limits set out in the
Act and was, therefore, deemed to have refused
to give access to the requested information.
About one month before the hearing of
the application, National Defence gave the
requester access to the requested records.
Despite this disclosure, the Federal Court
agreed to hear the matter, but ultimately
dismissed the Commissioner’s application.
The Information Commissioner appealed the
decision. The Federal Court of Appeal granted
leave to intervene to the Information and
Privacy Commissioner of Ontario.
The first issue on appeal was whether the
Federal Court had jurisdiction under section 42
of the Act to review a decision by an institution
under section 9(1) to extend the limit set out in
section 7 to respond to a request under the Act.
28
The Federal Court of Appeal held that the
Federal Court’s interpretation had been incorrect
and that the correct interpretation was the one
offered by the Commissioner. An institution may
avail itself of the power to extend the time to
respond to an access request, as provided by
section 9 of the Act, but only when the required
conditions are met. The Court added: “One such
condition is that the period taken be reasonable
when regard is had to the circumstances set
out in paragraph 9(1)(a) and/or 9(1)(b). If this
condition is not satisfied, the time is not validly
extended with the result that the 30-day time
limit imposed by operation of section 7 remains
the applicable limit.” The Court concluded that
“a deemed refusal arises whenever the initial
30-day time limit has expired without access
being given, in circumstances where no legally
valid extension has been taken.”
The second issue on appeal was whether the
time extension asserted by National Defence
had been valid. The Court found that it had
not been. National Defence’s treatment of
the extension fell short of establishing that a
serious effort was made to assess the duration
of the extension. It further noted that National
Defence’s treatment of the matter had been
“perfunctory” and showed that National Defence
had “acted as though it was accountable to no
one but itself in asserting its extension.” The
Federal Court of Appeal required that an effort
be made to demonstrate the link between the
justification advanced and the length of the
extension taken. Government institutions “must
make a serious effort to assess the required
duration, and that the estimated calculation be
sufficiently rigorous, logic[al] and supportable to
pass muster under reasonableness review.”
See Information Commissioner of Canada v Minister of
National Defence, et al., 2015 FCA 56, rev’g 2014 FC 205.
STRIKING THE RIGHT BALANCE FOR TRANSPARENCY
Recommendation 3.1
The Information Commissioner recommends that extensions be limited to the extent strictly
necessary, to a maximum of 60 days, and calculated with sufficient rigour, logic and support
to meet a reasonableness review.
Permission to extend
In some limited circumstances, an extension of 60 days may not be sufficient. The Commissioner recommends aligning
the Act with provincial and model laws by allowing institutions to take longer extensions with the prior permission of
the Commissioner.13 To obtain this permission, institutions will be required to show the Commissioner that the proposed
extension is reasonable or justified in the circumstances and that a serious effort has been made to assess the required
duration of the extension. As above, the extension must be calculated with sufficient rigour, logic and support to meet a
reasonableness review.
Seeking permission will allow for effective oversight by the Commissioner where lengthy extensions are requested.
Recommendation 3.2
The Information Commissioner recommends that extensions longer than 60 days be available with
the permission of the Information Commissioner where reasonable or justified in the circumstances
and where the requested extension is calculated with sufficient rigour, logic and support to meet
a reasonableness review.
Allow extensions for multiple and
simultaneous requests
Section 9(1)(a) allows an extension when the request is for a
large number of records or involves a large number of records
or necessitates a search through a large number of records
and meeting the original time limit would unreasonably
interfere with the operations of the institution.
However, there are factors other than the number of
records or the nature of the search required that can
interfere with the core functions of an institution when
processing a request. This is seen where a requester makes
multiple requests to the same institution within a short
period of time.
An example that demonstrates the issue
of multiple and simultaneous requests was
reported in the Commissioner’s 2009–2010
Annual Report.1
A requester submitted hundreds of access
requests to the Canadian Broadcasting
Corporation (CBC) in the first few months
that it became subject to the Act. He
then made hundreds of complaints to the
Commissioner when the CBC failed to
respond on time.
The Commissioner’s investigations revealed
that the CBC was unable to process the
requests within the 30 days allowed under
the Act, but could not take an extension.
1. The investigations related to these complaints were also
discussed in the annual reports from 2007–2008 and
2008–2009.
13 Commissioners in B.C. and Newfoundland and Labrador may grant an extension for longer than the statutory limit when it is fair and
reasonable to do so.
Information Commissioner of Canada
29
The Commissioner recommends that institutions should
be allowed to take an extension when an institution
receives multiple requests from one requester within a
period of 30 days and the processing of these requests
would unreasonably interfere with the operations of the
institution.14 This extension should not be available at the
institution’s discretion. Institutions should be required to
seek the permission of the Commissioner in these
circumstances. This will allow her to assess whether the
extension is warranted and does not unduly impede the
requester’s right of access. Such a provision would be in
line with several access laws in Canada.15
Recommendation 3.3
The Information Commissioner recommends allowing
institutions, with the Information Commissioner’s
permission, to take an extension when they receive
multiple requests from one requester within a period
of 30 days, and when processing these requests
would unreasonably interfere with the operations
of the institution.
Consultations with other institutions
and affected parties
Section 9(1)(b) allows extensions when consultations are
necessary to comply with a request that cannot reasonably
be completed within the original 30 days. This language is
broad and has led to different interpretations.
For instance, it is not clear whether consultations within
an institution fall within the scope of section 9(1)(b).
Over the past 20 years there has been a shift in the guidance
provided to institutions from Treasury Board of
Canada Secretariat.
A number of provincial laws, as well as the Organization of
American States’ model law, specifically provide that an
extension to consult is only available where the consultation
is external.16
Consultations under section 9(1)(b)
The frequency of use of extensions for
consultations has not significantly changed
in the last three years (based on the total
number of extensions):
In 2011–2012: 37%
In 2012–2013: 36%
In 2013–2014: 40%
A large proportion, however, are for more
than 60 days. That proportion has increased
in the last three years:
In 2011–2012: 52%
In 2012–2013: 61%
In 2013–2014: 68%
Shift in Guidance
In 1993, Treasury Board of Canada
Secretariat took the view that section 9(1)(b)
could not be used for extensions in relation
to internal consultations.
In 1999, Treasury Board of Canada
Secretariat issued Implementation Report
No. 67 which stated that an extension under
9(1)(b) could occasionally be justified when
the need to seek legal advice arises during
the processing of a request.
More recently, Treasury Board of Canada
Secretariat has revised its guidance. It now
takes the position that section 9(1)(b) may be
used for any internal consultation, with the
exception of the approval process.
Treasury Board of Canada Secretariat, Access to
Information Manual, “Extension” (1993), s. 2-4-14; Treasury
Board of Canada Secretariat, Implementation Report No. 67,
(1999); and Treasury Board of Canada Secretariat, Access
to Information Manual. “Reasons for extension”, s. 7.3.1.
.
14 The Open Government Act contains such a provision. “Strengthening the Access to Information Act to Meet Today’s Imperatives” features a
similar recommendation. Office of the Information Commissioner. Open Government Act. October 25, 2005. .
15 The access laws of Alberta, P.E.I., and Newfoundland and Labrador allow extensions, with the permission of the Commissioner for multiple
concurrent requests that have been made by the same requester.
16 The access laws in B.C., Alberta, Manitoba, New Brunswick, P.E.I., Nova Scotia, and Newfoundland and Labrador allow extensions to consult
with a third party or another public body. Ontario allows extensions for consultations with persons outside of the institution.
30
STRIKING THE RIGHT BALANCE FOR TRANSPARENCY
In light of this, the Commissioner recommends that extensions taken under section 9(1)(b) should be limited to external
consultations with other government institutions or affected parties.
The amendment should make clear that extensions under this section may only be taken, where necessary, to consult
affected parties outside of the institution who do not have consultation rights under section 9(1)(c).
Recommendation 3.4
The Information Commissioner recommends the Act make explicit that extensions for consultations
as per section 9(1)(b) may only be taken to consult other government institutions or affected parties,
other than third parties who already have consultation rights under section 9(1)(c), and only where it is
necessary to process the request.
Failing to respond to a
consultation request
Section 9(1)(b) does not require consulted parties to
respond to requests for consultations by a particular
deadline. Institutions have identified this as a factor
causing significant delay.17
Statistics do not support this assertion. It appears that
consulted institutions have largely been responding to
requests for consultations in a timely fashion. 18
The Commissioner has, however, in the
course of her investigations found
instances where there are lengthy delays
in responding to requests because the
response to a consultation is not
returned in a timely manner.
Completion time for consultations received
from other government institutions
2011–2012: 74% within 30 days;
89% within 60 days
2012–2013: 65% within 30 days;
82% within 60 days
2013–2014: 67% within 30 days;
87% within 60 days
In 2010–2011, the Commissioner investigated a complaint
against Indian and Northern Affairs Canada (INAC), as it
was formerly known, which had gone into deemed refusal
on 13 requests made by the same requester.
During the Commissioner’s investigation, it became clear
that the delays arose from the failure of the Canada Post
Corporation (CPC), the consulted institution, to respond to
INAC’s requests for consultation in a timely manner. As a
result, INAC refused to provide commitment dates to the
Commissioner for responding to the requests without first
knowing the dates by which CPC would respond to the
consultations. It was also discovered that while INAC had
extended the time limit under the Act for most of the requests
in order to consult with CPC, it undertook consultations for
some of the relevant records only after the extended time
period had expired.
17 See Information Commissioner of Canada, Systemic Issues Affecting Access to Information in Canada: 2007–2008. “Consultations.”
and Out of Time.
18 As a result of her investigations, the Commissioner has noted that in many instances, institutions take standard length extensions to
effect consultations without regard to the complexity or volume of the consultation request. They then delay undertaking the consultation
for lengthy periods of time. This appears to be done to manage the institution’s workload and not the consultation process. This supports
limiting such extensions to a maximum of 60 days.
Information Commissioner of Canada
31
To insert some discipline into the consultation process, the Commissioner recommends that institutions be required to
respond to requests without the input of the consulted party should the consulted party not respond to the consultation
within the notified time period. This is consistent with the understanding that the institution who received the
access request bears the responsibility to respond to the request and cannot avoid this responsibility due to the inaction of
another institution.19
Recommendation 3.5
The Information Commissioner recommends that, in cases where a consulted party fails to respond
to a consultation request, the consulting institution must respond to the request within the time
limits in the Act.
Consultations with third parties
Institutions may take extensions under section 9(1)(c) for consultations with third parties when the institution intends
to disclose a record that contains (or may contain) confidential third-party information, usually of a commercial or
financial nature.
Sections 27 and 28 of the Act establish a clear, time-limited legislative framework for notifying third parties about the
potential release of their information. Moreover, section 44 gives third parties the right to apply for a judicial review of an
institution’s decision if it decides to disclose their information.
The following table sets out the time limits provided in the Act.
Time limits for notification and representations under section 27
The institution notifies
the third party of
the request and its
intention to release
the third party’s
information. The
institution takes an
extension under
section 9(1)(c)
The deadline for the
third party to send
representations to
the institution
The institution decides
whether to release
information
Transmittal time
The deadline for the
third party to file an
application for judicial
review. If no application
is filed, the institution
releases information.
First 30 days
20 days after notice
is given
10 days later
20 days later
10 days
60-day time extension under 9(1)(c)
19 This recommendation is consistent with a policy recommendation the Commissioner made in May 2014 to the President of the Treasury
Board of Canada. At that time, she recommended that the Directive on the Administration of the Access to Information Act be amended to
make it clear that consulting institutions must fully and accurately respond to a request by the deadline, even when they have yet to receive
a response to a request for consultation. This recommendation was not implemented.
32
STRIKING THE RIGHT BALANCE FOR TRANSPARENCY
Based on these legislated timelines, the Commissioner is of
the view that extensions to consult third-parties should
never take more than 60 days and has issued an advisory
notice to this effect.20
Despite this clear legislative framework, the Commissioner
has investigated complaints where institutions have not
respected these legislated time limits and have granted
extensions to third parties which are not allowed for by the
Act. This results in delays in responding to requests.
Even when a third party fails to respond to a notification,
the institution must still wait for 20 days before it can
release the information. During this time, the third party
may apply to the Court for a judicial review of the
institution’s decision to disclose the information, which
delays responding to requests even further.
Consultations under section 9(1)(c)
The frequency of use of extensions for
consultations under section 9(1)(c) has not
significantly changed in the last three years
(based on the total number of extensions):
In 2011–2012: 14%
In 2012–2013: 14%
In 2013–2014: 12%
A large proportion of consultations under
section 9(1)(c) are responded to within
60 days. This number is increasing.
2011–2012: 58%
2012–2013: 69%
2013–2014: 70%
Thus, there is little incentive for third parties to respond
to a notification in a timely manner or at all.
To instill discipline in the notification process and place the
burden on the party resisting disclosure to provide timely
representations to the institution, the Commissioner
recommends that a third party be deemed to have consented
to releasing its information if it does not respond to the
notification within the legislative timelines.21 This will
reduce delay by ensuring prompt and complete responses by
third parties or disclosure in the absence of a response.
Finally, it resolves questions relating to disclosure that arise
where a third party has ceased to exist.22
Recommendation 3.6
The Information Commissioner recommends that
a third party is deemed to consent to disclosing
its information when it fails to respond within
appropriate timelines to a notice that an institution
intends to disclose its information.
In 2011–2012, a requester complained to
the Commissioner about a 210-day extension
taken by Industry Canada to respond to
a request, and that Industry Canada had
missed that deadline. The Commissioner’s
investigation focused on Industry Canada’s
practices associated with consultations, and
its overall lack of a timely response.
During the investigation, the Commissioner
learned that Industry Canada had failed to
complete consultations with third parties
within the time frame set out in the Act
(sections 27 and 28). In addition, officials
gave extensions to third parties to provide
a response to the notice and entered into
negotiations with them about the terms of
the proposed disclosure. Neither of these
ways of proceeding is consistent with the
obligations set out in section 28. In this
investigation the Commissioner found
that Industry Canada gave third parties
extensions when they did not hear back
from them with their representations, which
resulted in further delays in responding to
the requester.
20 Office of the Information Commissioner of Canada. “Advisory Notice: Time Extensions under Paragraph 9(1)(c) of the Access to Information Act.”
2014. .
21 This is the approach found at section 49 of Quebec’s access law.
22 This was the case in an investigation reported in the 2013–2014 Annual Report. See Office of the Information Commissioner, Annual Report
2013–2014, “Who is a proper third party.” .
Information Commissioner of Canada
33
Allow extensions when
information is to be published
Currently, institutions may withhold information
when it will be published within 90 days or within such
a time as may be necessary for printing or translation
(section 26). When institutions apply this exemption
and respond to the requester, they then consider the
request complete, although many continue to monitor
the publication of the information and send a follow-up
response to the requester when the information
is published.
While there may be reasons to delay the disclosure of
information that is soon to be published, an exemption
is not necessary to achieve this purpose.23
The availability of an extension for publishing
information may help reduce complaints like
one received in 2008–2009 against Human
Resources and Skills Development Canada (as it
was formerly known), which, after withholding
information in response to an access request
because it was soon to be published, failed to
follow up with the requester once the information
was published. The requester’s complaint and the
Commissioner’s subsequent investigation could
have been avoided if the institution had been
required to take an extension and, therefore,
keep the request active.
Instead, the Commissioner recommends allowing institutions to take an extension if the information is soon to be made
available to the public. This extension would be limited to 60 days, with longer extensions available with the approval of the
Commissioner (as per recommendations 3.1 and 3.2). In combination with the original 30 days, this extension would result
in 90 days in total to respond to the request.24 In the event the information is not published when the extension expires, the
institution would have to disclose the unpublished information to the requester.
Allowing an extension under these circumstances would:
give requesters more certainty as to when the information would be available because institutions would have to
set a date upon which the extension would expire; and
ensure that the request would remain active until the information is disclosed.
The availability of this extension under the Act makes the exemption for information to be published (section 26) redundant.
Recommendation 3.7
The Information Commissioner recommends allowing an extension when the requested information is to be
made available to the public, rather than claiming an exemption.
Recommendation 3.8
The Information Commissioner recommends that if an extension is taken because the information is to
be made available to the public, the institution should be required to disclose the information if it is not
published by the time the extension expires.
Recommendation 3.9
The Information Commissioner recommends repealing the exemption for information to be published
(section 26).
23 Treasury Board of Canada Secretariat’s Access to Information Manual explains that institutions may wish to withhold information that is
soon to be published in order to retain control over the material, ensure all members of the public are given the opportunity to review the
information at the same time, protect Parliament’s right to be made aware of certain matters first, and to ensure the information is available
in both official languages. Access to Information Manual at section 11.23.
24 This length of time is consistent with the current exemption under section 26.
34
STRIKING THE RIGHT BALANCE FOR TRANSPARENCY
Extension notices
If an extension is being taken, section 9(1) of the Act requires institutions to give written notice of the extension to the
requester within 30 days of receipt of the request.
In order to insert more discipline around the use of extensions and to ensure that requesters are given adequate
information about the extension and their rights, the Commissioner recommends that extension notices should contain
the following:
the section being relied on for the extension and the reasons why that section is applicable;
the length of the extension (regardless of what section the extension was taken under);
the date upon which the institution will be in deemed refusal if it fails to respond;
a statement that the requester has the right to file a complaint to the Commissioner about the extension within 60
days following receipt of the extension notice; and
a statement that the requester has the right to file a complaint with the Commissioner within 60 days of the date
of deemed refusal if the institution does not respond to the request by the date of the expiry of the extension.
Recommendation 3.10
The Information Commissioner recommends that extension notices should contain the following information:
� the section being relied on for the extension and the reasons why that section is applicable;
� the length of the extension (regardless of what section the extension was taken under);
� the date upon which the institution will be in deemed refusal if it fails to respond;
� a statement that the requester has the right to file a complaint to the Information Commissioner
about the extension within 60 days following receipt of the extension notice; and
� a statement that the requester has the right to file a complaint to the Information Commissioner
within 60 days of the date of deemed refusal if the institution does not respond to the request by
the date of the expiry of the extension.
Information Commissioner of Canada
35
Chapter 4
Maximizing disclosure
T
he purpose of the Access to Information Act is to provide a right of access to all records under the
control of institutions that are subject to the Act.
The Act says that the general right of access may be
restricted when necessary by limited and specific
exceptions. There is also a presumption in favour of
disclosure imposed on institutions.1 Balancing the right
of access against claims to protect certain information is
at the core of the access to information regime.
The Act also requires that decisions on disclosure should be
reviewed independently of government. The Commissioner
and the courts provide this independent oversight.
Under the Act, many exemptions are not sufficiently
limited and specific, nor are some subject to independent
review. In addition, they are not generally in line with
national and international norms. Moreover, the number
of exemptions to the right of access has increased since
the Act came into force.2
The purpose of the Access to
Information Act
2(1) The purpose of this Act is to extend the
present laws of Canada to provide a right
of access to information in records under
the control of a government institution
in accordance with the principles that
government information should be available
to the public, that necessary exceptions to
the right of access should be limited and
specific and that decisions on the disclosure
of government information should be
reviewed independently of government.
Although more requests are being made and more pages are being released in response to access to information requests,
the percentage of requests resulting in all information being disclosed has declined.
1 Dagg v Canada Minister of Finance, [1997] 2 SCR 403 at para. 51.
2 For example, when the Act was passed 30 years ago, there were 40 provisions in 33 statutes listed in Schedule II. Today, it contains more
than 50 statutes.
36
STRIKING THE RIGHT BALANCE FOR TRANSPARENCY
Figure 1: Proportion of requests completed in which all information was disclosed (1999–2000
to 2013–2014)3
50%
45%
40%
35%
30%
15,675
25%
20%
15%
10%
5%
–2
01
4
3
13
20
–2
01
2
12
20
11
–2
01
01
20
–2
10
01
20
–2
09
20
–2
1
0
9
00
8
08
20
20
07
–2
–2
06
20
–2
00
00
7
6
00
5
05
20
20
04
–2
–2
20
03
–2
02
00
00
4
3
00
2
00
20
–2
01
20
–2
00
20
19
99
–2
00
00
0
1
0%
In 1999–2000, 40.5 percent of all requests resulted in all information being disclosed. In 2013–2014, this number stood
at 26.9 percent.
A modern access law must be developed in the context of the Open Government initiative and the government’s
commitment to be open by default.4 The exemptions in the Act need to be comprehensively reviewed to maximize
disclosure of information. This will result in:
a meaningful open by default culture in the government;
an Act that is aligned with the most progressive national and international norms; and
an effective access to information regime that fosters transparency, accountability and citizen engagement.5
3 In 2013–2014, 54.6% of the Canadian Border Service Agency’s and 33.4% of Citizenship and Immigration Canada’s completed requests
were disclosed entirely. These proportions are significantly higher than the government-wide statistic of 26.9%. This seems to be related
to the nature of the requests these institutions receive. When these two institutions are excluded, the proportion of requests for which
information was disclosed entirely in 2013–2014 decreases from 26.9% to 16%.
Please note that all aggregate statistics provided in this chapter are based on those published by Treasury Board of Canada Secretariat on
the Info Source website. The Commissioner has noted inconsistencies in the 2013–2014 statistics. At the time of printing, these statistics
had not been corrected. See Info Source. Info Source Bulletin Number 37B – Statistical Reporting, 2013–2014. .
4 As found in Canada’s Action Plan on Open Government 2014–2016. Open Government (Canada). Canada’s Action Plan on Open Government
2014–2016. .
5 The Commissioner has previously recommended to the President of the Treasury Board that the Access to Information Act be
modernized in line with the principle of “open by default” and the most progressive national and international standards.
See Information Commissioner of Canada. “Letter to the President of the Treasury Board on Action Plan 2.0” (November 5, 2014).
.
Information Commissioner of Canada
37
How the Act currently protects information
The Act protects information through the use of exemptions and exclusions.
Exemptions
Exemptions permit or require institutions to withhold a range of records and information from disclosure.
The Act contains the following categories of exemptions:
� Class-based or injury-based exemptions: Class-based exemptions prevent disclosure of
information based solely on whether it falls within a specified class of information. The
exemption for personal information is an example of a class-based exemption. Injury-based
exemptions require that a harms test be applied in order to determine whether disclosure
would prejudice the interest the exemption protects.
� Mandatory or discretionary exemptions: Mandatory exemptions prohibit disclosure of
information once it has been determined that the exemption applies. As a result, the institution
in control of the information is under a legal obligation to refuse access. The mandatory
exemptions in the Act usually apply to information that was obtained by an institution and does
not belong to it. Discretionary exemptions permit an institution to refuse disclosure based on a
two-step process. First, the institution must determine whether the exemption applies. Second,
when it does, the institution must determine whether the information should nevertheless be
disclosed based on all relevant factors.
In some cases, information covered by an exemption may still be disclosed when a condition is met,
for example, if consent is obtained or where the information is publicly available.
In other instances, the exemption includes express permission to disclose the information when the
public interest in disclosure clearly outweighs the importance of protecting the information.
Exclusions
Exclusions provide that the Act does not apply to certain records or information. In some cases this
removes independent oversight.
38
STRIKING THE RIGHT BALANCE FOR TRANSPARENCY
Exemptions
To protect only what requires protection, the exemptions in the Act must be limited and specific. Exemptions that are
overly broad result in information being withheld when it should be disclosed. Overly broad exemptions also make the
application of the Act more complex and lead to institutions applying multiple and overlapping exemptions to the same
information at the same time.
To maximize disclosure, model laws promote exemptions that are:6
injury-based;
discretionary;
time-limited;
subject to a public interest override; and
subject to independent oversight.7
Injury-based
Injury-based exemptions take into account the fact that the level of sensitivity attached to information changes as
circumstances, time and perspective change. In contrast, for class-based exemptions, all that must be demonstrated is
that the information falls within that class.8
Discretionary
Discretionary exemptions allow for a case-by-case assessment on disclosure. Case law in Canada has established that
discretion must be exercised in a reasonable manner, taking into account all relevant factors.9 For discretion to be
reasonably exercised, the institution must provide evidence that it considered whether information falling within the
exemption claimed could nonetheless be disclosed, depending on the specific facts of the particular request and the
interests involved.10 In comparison, a mandatory exemption prohibits disclosure of information once it has been
determined that the exemption applies.
Time-limited
Exemptions that are time-limited create greater certainty in access laws. As soon as the time limit is reached or the
specified event (such as publication) takes place, institutions may no longer invoke the exemption to withhold
the information.
6 In some instances, it may not be appropriate to construct an exemption in this manner. Sometimes, the interest that merits protection
needs an exemption that provides more certainty as to when information will be disclosed. In other instances, the exemption must be
written in such a way to simplify its application. In these instances, a mandatory and/or class-based exemption may be appropriate.
However, variations from a discretionary, injury-based exemption should be the exception to the rule.
7 The Article 19 and Organization of American States model laws, as well as the Tshwane Principles all take such an approach. The Open Government
Guide endorses “a limited regime of exemption based on preventing harm to protected interests.” 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. ; Society Foundations, “The Global Principles on National Security and the Right to Information (Tshwane
Principles).” 2013. ; and Open
Government Guide. “Welcome to the Open Gov Guide.” 2013. . The chapter on right to information can be
found at .
8 Unless the exemption is discretionary or is a class-based exemption that allows information to be disclosed in certain instances, such as
when consent has been obtained or the information is already available to the public.
9 Relevant factors include the purpose of the Act, the purpose of the exemption and the public interest in disclosure of the information.
Institutions may not take into account irrelevant factors.
10 Attaran v Minister of Foreign Affairs 2011 FCA 182 at paras. 14, 17 and 29; Ontario (Public Safety and Security) v Criminal Lawyers’ Association,
2010 SCC 23 at paras. 45–48.
Information Commissioner of Canada
39
Public interest override
A public interest override in an access law allows for the competing
interest of the public’s right to know to be balanced against the interest
the exemption protects.11 The decision-maker must determine if nondisclosure is necessary and proportionate as compared to the public’s
interest in the information.
In making that determination, a number of factors related to the public
interest in the information must be taken into account. Examples of
relevant factors to consider include:
open government objectives, such as whether the disclosure would
support accountability of decision-makers, citizens’ engagement
in public policy processes and decision-making, or openness in the
expenditure of public funds;
Former Information Commissioner
John Grace:
The lack of a general public
interest override in the Act has
been called “a serious omission
which should be corrected.”
Office of the Information
Commissioner, 1993–1994
Annual Report.
whether there are environmental, health or public safety implications; and
whether the information reveals human rights abuses or would safeguard the right to life, liberty or security of
the person.
Public interest overrides can be found in model laws, most of the national access to information laws that are among the
top-10 of the Global Right to Information Rating and some provincial laws.12 In addition, both the Tshwane Principles
and the Organization of American States model law include a higher presumption in favour of disclosure for information
related to human rights or crimes against humanity.13
Currently, the Act contains only limited public interest overrides, and these are only applicable to a few sections.14
A general public interest override must be added to the Act to ensure that the public interest in disclosure is taken into
account while considering whether to apply any of the exemptions within the Act.
This override should include a non-exhaustive list of factors to be considered.
Recommendation 4.1
The Information Commissioner recommends that the Act include a general public interest override,
applicable to all exemptions, with a requirement to consider the following, non-exhaustive list of factors:
� open government objectives;
� environmental, health or public safety implications; and
� whether the information reveals human rights abuses or would safeguard the right to life, liberty
or security of the person.
11 General public interest overrides applicable to all exceptions (as opposed to exemption-specific overrides), are necessary because it is not
possible to frame all exceptions sufficiently narrowly to cover only information which may legitimately be withheld. See Mendel, Toby.
“National Security vs. Openness: An Overview and Status Report on the Johannesburg Principles.” National Security and Open Government:
Striking the Right Balance. New York: Campbell Public Affairs Institute, 2003 at p. 18.
12 The Article 19 and Organization of American States model laws, the Tshwane Principles, and the access laws of Serbia, India, Liberia,
El Salvador, Sierra Leone, Ukraine, Alberta and B.C. all contain mandatory public interest overrides. Ontario’s law does as well; however,
it does not apply to all exemptions (as confirmed by the Criminal Lawyers’ Association decision. See n. 10 above). Nova Scotia’s law includes
a discretionary, general public interest override.
13 The Tshwane Principles contain a high presumption in favour of disclosure for certain classes of information, such as that which reveals
gross violations of human rights or serious violations of international humanitarian law, or information that would safeguard the right
to life, liberty or security of the person. Article 44 of the Organization for American States model law provides that some of the law’s
exceptions do not apply in cases of serious violations of human rights or crimes against humanity.
14 Section 19 and sections 20(1)(b)–(d) contain such an override. In addition, in the Criminal Lawyers’ Association decision (see n. 10, above)
the Supreme Court of Canada held that the exercise of discretion necessarily involves consideration of the public interest.
40
STRIKING THE RIGHT BALANCE FOR TRANSPARENCY
Independent oversight
Exemptions to the right of access in the Act are independently reviewable. However, this oversight can be limited when
information is protected by an exclusion from the coverage of the Act.
For example, it is clear that when an exemption is invoked, the Commissioner has access to all records during her investigation
so that she may independently review the decision on disclosure. This is not always the case with exclusions. The exclusions
in the Act differ from one to another. No two exclusions have the same wording or produce the same effects. Determining
what records the Commissioner may obtain in the conduct of her investigations is assessed on a case-by-case basis.
An exclusion that limits oversight results in a weakened right of access. For this reason, model access laws recommend
that all information controlled by an institution should be subject to the access law, with no exclusions for certain kinds
of information.15
In light of these considerations, the Commissioner recommends removing all exclusions from the Act and replacing them
with exemptions, unless an exemption already exists to protect the interest at issue.
Recommendation 4.2
The Information Commissioner recommends that all exclusions from the Act should be repealed and
replaced with exemptions where necessary.
15 For example, the Article 19 and Organization of American States model laws both provide that any recorded information, regardless of its
form, source, date of creation, or official status, whether or not it was created by the public authority that holds it, and whether or not it is
classified, should be subject to the law.
Information Commissioner of Canada
41
The graphic below presents the five most commonly applied exemptions between 1996–1997 and 2013–2014. They are:
personal information (section 19), international affairs and defence (section 15), operations of government (section 21),
law enforcement and investigations (section 16) and third party information (section 20).
Figure 2: Top 5 exemptions (1996–1997 to 2013–2014)
40%
35%
20,701
30%
25%
20%
11,090
15%
7,927
6,517
10%
5,255
S. 19
S. 15
S. 21
S. 16
–2
01
4
3
–2
13
20
01
12
20
–2
01
2
1
01
11
20
–2
10
20
20
09
–2
01
0
9
00
8
–2
00
08
20
20
07
–2
–2
00
7
6
20
06
00
5
–2
00
20
–2
04
20
05
00
4
3
–2
03
20
–2
00
02
20
–2
01
20
00
2
1
00
0
20
00
–2
00
9
–2
99
19
99
–1
98
19
–1
97
19
19
96
–1
99
99
7
0%
8
5%
S. 20
The proportion of exemptions applied under section 19 has increased from 26% in 1996–1997 to 32% in 2013–2014, with
a peak of 36.5% in 2010–2011. Use of section 15 has also increased. Exemptions under this section represented 5% of all
exemptions applied in 1996–1997, the proportion was 22% in 2009–2010 (with a slight decrease to 17% by 2013–2014).
Use of section 16 has fluctuated by about five percentage points during this same period (from 7% in 1996–1997 to
12% in 2013–2014). There was a general downward trend in the use of section 21 between 1996–1997 and 2013–2014.
However, it is believed that the decrease in 2013-2014 is due to a statistical error in the Info Source Bulletin. Finally, the
proportion of exemptions applied under section 20 decreased significantly, from 28% in 1996–1997 to 8% in 2013–2014.
42
STRIKING THE RIGHT BALANCE FOR TRANSPARENCY
Information related to other
governments (sections 13,
14 and 15)
The Government of Canada holds information related to
its dealings with other governments. This information
falls into two main categories: The government may hold
information that has been obtained in confidence from
another government, or it may hold information related
to its positions, plans and strategies in intergovernmental
negotiations and relations.
There is a public interest in protecting both kinds of
information. Other governments must be able to rest
assured that information communicated to the Government
of Canada in confidence will indeed be kept confidential.16
Without this assurance, they would be far less likely to
share this kind of information.17 There is also a need to
protect relationships between governments. The disclosure
of certain information could injure relationships.
Exemptions and exclusions reviewed
in this chapter
� Information obtained from other
governments (sections 13, 14 and 15)
� National defence (sections 15 and 69.1)
� Law enforcement and investigations
(section 16)
� Personal information (section 19)
� Third party information (section 20)
� Advice (section 21)
� Solicitor-client privileged information
(section 23)
� Cabinet confidences (section 69)
� Exemptions for information protected
by other laws or for specific agencies
(sections 24, 16.1–16.4, 18.1, 20.1, 20.2,
20.4, 68.1 and 68.2)
To protect these interests, the Act currently contains the
following exemptions:
Section 13 provides a mandatory, class-based exemption for information obtained in confidence from foreign
governments, international organizations of states, governments of the provinces, municipal or regional
governments and certain specific Aboriginal governments.
Section 14 provides a discretionary, injury-based exemption for information the disclosure of which could
reasonably be expected to be injurious to the conduct by the Government of Canada of federal-provincial affairs.
Section 15 provides a discretionary, injury-based exemption for information which, if disclosed, could
reasonably be expected to be injurious to the conduct of international affairs.18
16 During the legislative committee hearings of Bill C-43, MP Baker stated that the “that government ought to be able to correspond and
communicate with the federal government with some assurance about information received under certain circumstances, information
received in confidence.” Bill C-43, June 17, 1981 (Parliament, House of Commons, Standing Committee on Justice and Legal Affairs, Minutes
of Proceedings and Evidence, 1st Sess, 32nd Parl at 42:29).
17 Ruby v Canada (Solicitor General), [1996] 3 FCR 134. See also Bill C-43, Committee Hearings, June 17, 1981 at 42:34.
18 Section 15 also contains the “national security” exemption, discussed below.
Information Commissioner of Canada
43
Information obtained in confidence (section 13)
This section protects confidential information belonging to
other governments or international organizations of states. This
information was not created by the Government of Canada and
was transmitted to the Government of Canada by another
government in confidence.
There is a public interest in the sharing of confidential information
between governments: It fosters intergovernmental collaboration
and cooperation. Other governments and organizations would be
less likely to share information with Canada if they lost confidence
in the ability of the Government of Canada to protect their
confidences. Accordingly, the mandatory exemption found in the
Act is justified.19, 20
Section 13 provides a mandatory,
class-based exemption for information
obtained in confidence from a foreign
government, international organizations
of states, governments of the provinces,
municipal or regional governments and
certain specific Aboriginal governments.
Section 13 was invoked 2,470 times
in 2013–2014.
The Act provides two limitations on this strict prohibition. Information obtained in confidence from another government
or international organization of states may be disclosed if consent is obtained, or if the originating government or
organization makes the information publicly available. However, there is no incentive to respond to consultation requests
for consent to disclose, and in fact other governments rarely do. This leads to overuse of this exemption, particularly for
historical records.
Consulting with other levels of government within Canada is generally a straightforward exercise, as the heads of these
governments or institutions are easily identified and located, and most are subject to similar access regimes within their
own jurisdictions. Consultations should be mandatory in these circumstances.
Recommendation 4.3
The Information Commissioner recommends requiring institutions to seek consent to disclose confidential
information from the provincial, municipal, regional or Aboriginal government to whom the confidential
information at issue belongs.
There are different considerations at the international level that make a mandatory obligation to consult inappropriate.
International consultations can be complicated by protocols of formal diplomatic channels of correspondence, language
issues or government instability. Given these considerations, at the international level, consultation should always be
undertaken when it is reasonable to do so.21
Recommendation 4.4
The Information Commissioner recommends requiring institutions to seek consent to disclose confidential
information of the foreign government or international organization of states to which the confidential
information at issue belongs, when it is reasonable to do so.
19 This is similar to the protection afforded to third-party confidential information under section 20 of the Act.
20 It is important to note that the interest protected in this section is not the ongoing relationship between Canada and other governments.
That interest is protected under the international affairs exemption found at section 15 of the Act or the federal-provincial affairs exemption
found at section 14, discussed below. In Canada (Attorney General) v Khawaja 2007 FC 490, Mosley J. concluded, at para. 141 that the “third
party rule” (codified in section 13 of the Act) cannot be applied to protect the existence of a working relationship between Canada and a
foreign government or agency; it must be applied in the context of an exchange of confidential information. In Khadr v Canada 2008 FC 549,
Mosley J. observed at para. 98 that: “too much of the routine communication between foreign and Canadian agencies is protected by the
Attorney General in application of the third party principle.”
21 The Federal Court of Appeal has stated in the context of a request for personal information under the Privacy Act that a request by an
applicant for information subject to section 19 of the Privacy Act (the parallel to section 13 of the Access to Information Act) “includes a
request to the head of a government institution to make reasonable efforts to seek the consent of the third party [other government or
international organization of states] which provided the information. (Ruby v Canada (Solicitor General), [2000] 3 FC 589 (FCA)).
44
STRIKING THE RIGHT BALANCE FOR TRANSPARENCY
To address the observed lack of response from other governments to requests for consent, it is necessary to require that,
where consultation has been undertaken, consent is deemed to have been given if the consulted government does not
respond within 60 days. It would therefore be incumbent on the government or organization whose interest is being
protected to indicate that it does not wish the information to be disclosed.22, 23
Recommendation 4.5
The Information Commissioner recommends that, where consultation has been undertaken, consent be deemed
to have been given if the consulted government does not respond to a request for consent within 60 days.
The current Act provides that in circumstances where consent to disclose is given, or the information is made public,
institutions may disclose the information. This exemption should be directive rather than discretionary: An institution
shall not refuse to disclose information on the basis of section 13 where consent has been obtained, or where the
information has been made publicly available by the originating government or organization.
Recommendation 4.6
The Information Commissioner recommends requiring institutions to disclose information when the
originating government consents to disclosure, or where the originating government makes the information
publicly available.
Harm to inter-governmental
affairs (sections 14 and 15)
The Government of Canada holds information related to
its positions, plans and strategies in negotiations and
relations between itself and other governments, at both
the provincial and international levels.
The interest that requires protection in this case is the
government’s ability to conduct business, cooperate and
negotiate across jurisdictions. This interest is protected in
the Act on a discretionary basis, where the government
can show that disclosure could reasonably be expected to
be injurious to the conduct of international affairs (in
section 15) or federal-provincial affairs (in section 14).24
Section 14 provides a discretionary,
injury-based exemption for information
which, if disclosed, could reasonably be
expected to be injurious to the conduct
by the Government of Canada of federalprovincial affairs.
Section 15 includes a discretionary,
injury-based exemption for information
which, if disclosed, could reasonably be
expected to be injurious to the conduct
of international affairs.
Section 14 was invoked 990 times in
2013–2014.
Section 15 as it relates to international
affairs was invoked 2,346 times in
2013–2014.
22 Based on a 2010 comparative study, the vast majority of consultations are with the United States. Comeau, Paul-Andre. Comparative Study
Prepared for the Information Commissioner of Canada. Foreign Consultations by the Department of Foreign Affairs and International Trade in
Conjunction with the Access to Information Act (September 2010). .
23 By way of analogy, there are strict notification and consultation timelines in the Act for non-governmental third-party information obtained
in confidence by the Government of Canada (section 20). Third party consultations require the third party entity that is to benefit from
the protection of the section justify non-disclosure. They must provide their representations on the disclosure or non-disclosure of the
information or risk having this information disclosed.
24 Section 15 also contains the “national security” exemption, discussed below.
Information Commissioner of Canada
45
In drafting the Act, the word “affairs” was selected by the government to ensure that the protection in this exemption
would extend beyond actual negotiations to also encompass positions leading up to negotiations, as well as negotiation
strategies.25 However, the term “affairs” is too broad to protect this interest. The word should therefore be replaced with
more specific terms, such as “negotiations” and “relations.”26 This is consistent with other access laws and clearly
circumscribes the protection to the interests to be protected: positions taken during the course of inter-governmental
deliberations, and the diplomatic conduct of relationships between governments.27
Recommendation 4.7
The Information Commissioner recommends replacing international and federal-provincial “affairs” with
international and federal-provincial “negotiations” and “relations.”
To further clarify that these provisions contain a similar interest, the Commissioner recommends combining these
provisions into a single exemption that protects inter-governmental negotiations and relations. This would leave a single
interest protected under section 15: national security.
Recommendation 4.8
The Information Commissioner recommends combining the intergovernmental relations exemptions currently
found in sections 14 and 15 into a single exemption.
National security (sections 15
and 69.1)
The Government of Canada holds a wide range of
information relating to national security, from plans
related to military operations to human source reports.
Section 15 provides a discretionary,
injury-based exemption for information the
disclosure of which could reasonably be
expected to be injurious to the defence of
Canada or any state allied or associated
with Canada or the detection, prevention or
suppression of subversive or hostile activities.
Recent disclosures about the surveillance activities of
national security bodies have raised citizens’ concerns
Section 15 as it relates to national security
and resulted in calls for greater transparency. The Tshwane
was invoked 8,744 times in 2013–2014.
Principles, which offer guidance to countries on how to
balance access to information with national security
interests, underscore that legitimate national security
interests are, in practice, best protected when the public is well informed about the state’s activities, including those
undertaken to protect national security.28 Making this type of information available to the public contributes to informed
debate on important issues or matters of serious interest and enhances government accountability.
National security is protected in the Act by a discretionary exemption that allows institutions to refuse to disclose this
information only where potential injury can be shown to defence, or the detection, prevention or suppression of
subversive or hostile activities. Although the Act contains no specific reference to “national security,” these two interests
are sufficiently defined at section 15(2) so that the scope of protection for national defence is limited and specific.
25 Bill C-43, Committee Hearings, June 18, 1981 at 43:22.
26 This was also recommended in Forcese, Craig. “Canada’s National Security “Complex”: Assessing the Secrecy Rules.” IRPP Choices 15, 5
(June 2009) at p. 28.
27 The following laws use one or both of the terms “relations” and “negotiations”: B.C., Alberta, Saskatchewan, Manitoba, Ontario, Quebec,
New Brunswick, P.E.I., Newfoundland and Labrador, Australia, Mexico and the U.K.
28 at p. 6.
46
STRIKING THE RIGHT BALANCE FOR TRANSPARENCY
However, the Commissioner’s investigations have revealed an overuse of section 15 for historical information,
particularly documents that have been transferred to Library and Archives Canada (LAC). Although the Federal Court
noted in the Bronskill decision that “the passage of time can assuage national security concerns”,29 some of this
information continues to be classified at a confidential, secret, or even top secret level, a fact that complicates the
assessment of injury in the disclosure of these documents.30
The Treasury Board of Canada Secretariat’s Security Organization and Administration Standard requires that information
be “classified or designated only for the time it requires protection, after which it is to be declassified or downgraded.”
The Standard also indicates that departments should provide for automatic declassification when the information is
created or collected.31 Departments must develop with LAC agreements to declassify or downgrade sensitive information
transferred to the control of LAC. The Standard also recommends that an automatic expiry date of 10 years should apply
to secret, confidential and low-sensitive designated information. The Commissioner’s investigations have revealed that
this Standard does not appear to have been implemented by institutions.
The Government’s Directive on Open Government and Action Plan speak to the removal of access restrictions or the
declassification of departmental information resources of enduring value prior to transfer to LAC or as it occurs within
LAC. However, the Directive and the Plan do not speak of a systematic review, nor do they talk of the implementation of
a declassification process for its government records of enduring value. To provide the flexibility needed to adequately
protect national security interests while maximizing disclosure, the Commissioner recommends a mandatory obligation
on the part of institutions to declassify information on a routine basis.32, 33
To be clear, declassified documents could still be legitimately withheld under the national security exemption if the injury
test is met. However, a routine review of documents with a view to declassification would greatly help those tasked with
determining injury or non-injury and could result in more timely access to information, particularly in historical records.34
Recommendation 4.9
The Information Commissioner recommends a statutory obligation to declassify information on a routine basis.
Certificates issued by the Attorney General (section 69.1)
In addition to section 15, the Act also includes another protection for information related to national security. Section 69.1
is a mandatory exclusion for information that has been certified as confidential under section 38.13 of the Canada Evidence
Act (CEA).35
Section 38.13 of the CEA empowers the Attorney General to personally issue a certificate in connection with a proceeding
for the purpose of protecting information obtained in confidence from, or in relation to, a foreign entity or for the purpose
of protecting national defence or national security. The expressions “national defence” or “national security” are not defined.
29 Bronskill v Minister of Canadian Heritage, 2011 FC 983 at para. 227.
30 Indeed, the very fact of having been transferred to archives indicates that they are of historical importance, no longer of operational value to
the institution, and very likely no longer require protection at their original classification level.
31 The purpose of this policy is to establish “the operational standard for the organization and administration of security as required by the
Security policy.” Treasury Board of Canada Secretariat. Security Organization and Administration Standard. June 1, 1995. .
32 See Information Commissioner of Canada, “Letter to the President of the Treasury Board on Action Plan 2.0.” November 5, 2014.
.
33 Section 552(b)(1) of the U.S.’ access law permits a government agency to deny access to information that is “national defense or foreign
policy information properly classified pursuant to an Executive Order.” Executive Order 13526 (December 29, 2009) created the National
Declassification Center and required all agencies to review their classification guidelines. The Order defines classification levels, sets limits
on the kinds of information that can be classified, and sets a time limit of 10 years (or 25 for sensitive information, with a possibility of
renewal should injury remain).
34 The usefulness of a declassification process was mentioned most recently by the Federal Court in Bronskill at para. 108.
35 RSC, 1985, c C-5.
Information Commissioner of Canada
47
When a certificate under this section is issued, it terminates all proceedings under the Act related to a complaint,
including an investigation by the Commissioner, an appeal or a judicial review. After this point, the Information
Commissioner has no authority to review the information in dispute or the application of the exclusion.36
This section was added to the Act in 2001 under the
Anti-terrorism Act.37 To the Commissioner’s knowledge,
the certification process has never been used to prevent
disclosure under the Act.
There are a number of significant issues with section 69.1
when it is assessed in light of the purpose of the Act.38
It is not subject to independent oversight, which
hinders the ability to strike the right balance
between the right of access and non-disclosure.
The lack of definition for “national defence” or
“national security”, as well as other ambiguities that
have been identified with section 38.13 of the CEA,
result in an overly broad scope to the exclusion.39
It is unnecessary, as section 15 is adequate to protect
national security.
Recommendation 4.10
The Information Commissioner recommends
repealing the exemption for information certified
by the Attorney General (section 69.1).
Law enforcement and
investigations (section 16)
The Government of Canada holds a wide range of
information related to law enforcement, including RCMP
investigation files, penitentiary records, parole board
files, citizenship and immigration files, and tax audit files.
Generally, the interest that section 16 protects is the
enforcement of laws. While it is of public importance that
law enforcement authorities’ work not be impeded by the
disclosure of information, there is also an important
public interest in the ability to scrutinize the activities of
law enforcement bodies.
Section 16 contains two discretionary,
class-based exemptions for:
� Information of listed investigative
bodies that pertains to the detection,
suppression or prevention of crime, the
enforcement of a law, or threats to the
security of Canada, if the record is less
than 20 years old (Section 16(1)(a));
� Information relating to investigative
techniques or plans for specific lawful
investigations (Section 16(1)(b)).
Section 16 contains two discretionary,
injury-based exemptions for:
� Information the disclosure of which
could reasonably be expected to be
injurious to the enforcement of any law,
or the conduct of lawful investigations
(Section 16(1)(c));
� Information the disclosure of which could
reasonably be expected to be injurious to
the security of penal institutions (Section
16(1)(d));
� Information that could reasonably be
expected to facilitate the commission of
an offence (Section 16(2)).
Further, section 16(3) provides a mandatory
exemption prohibiting the disclosure of
information that was obtained or prepared
by the RCMP while performing policing
services for a province or municipality, if the
Government of Canada has agreed not to
release this information.
Section 16 was invoked 7,758 times in
2013–2014.
36 Once such a certificate has been issued and proceedings are terminated, the Commissioner is required to take all necessary precautions to ensure
the information at issue is not disclosed and must return the information to the institution within 10 days of the publication of the certificate.
37 SC 2001, c 41.
38 The problems with section 69.1 were first articulated by Commissioner Reid during his parliamentary appearances on Bill C-36. See
his appearance before the Standing Committee on Justice and Human Rights on Bill C-36 on October 23, 2001 (Parliament. House of
Commons, Standing Committee on Justice and Human Rights, Minutes of Proceedings and Evidence, 1st Sess, 37th Parl) and his appearance
before the Special Senate Committee on the Subject Matter of Bill C-36, also on October 23, 2001 (Parliament. Senate, Special Committee on
the Subject Matter of Bill C-36, Minutes of Proceedings and Evidence, 1st Sess, 37th Parl). See also Commissioner Reid’s subsequent appearance
before the Senate Special Committee on Anti-Terrorism (Review of the Anti-Terrorism Act) on May 30, 2005 (Parliament. Senate, Special
Committee on Anti-Terrorism, Minutes of Proceedings and Evidence, 1st Sess, 38th Parl).
39 See Forcese, Craig. “Clouding Accountability: Canada’s Government Secrecy and National Security Law ‘Complex.’” Ottawa Law Review 36
(2005) at p. 79 for a complete discussion of the ambiguities in section 38.13 of the CEA.
48
STRIKING THE RIGHT BALANCE FOR TRANSPARENCY
A discretionary exemption that requires evidence of a reasonable expectation of injury strikes the appropriate balance
between these interests.
The scope of this exemption must be narrowed so that it protects only what is legitimately necessary. After 30 years of
experience, it is clear that section 16(1)(c), which protects information which if disclosed could reasonably be expected
to be injurious to the enforcement of any law, or the conduct of lawful investigations, sufficiently covers and adequately
protects the law enforcement interest.
Sections 16(1)(a), 16(1)(b), and 16(3) are unnecessary and should therefore be repealed. This simpler structure would also
streamline the application of this exemption by institutions and reduce the concurrent application of multiple exemptions.
The two other interests protected in this section, namely the security of penal institutions and the avoidance of illegal
activity, are appropriately circumscribed by the protections in sections 16(1)(d) and 16(2) and do not require amendment.
Recommendation 4.11
The Information Commissioner recommends repealing the exemptions for information obtained or prepared for
specified investigative bodies (section 16(1)(a)), information relating to various components of investigations,
investigative techniques or plans for specific lawful investigations (section 16(1)(b)) and confidentiality
agreements applicable to the RCMP while performing policing services for a province
or municipality (section 16(3)).
Personal information (section 19)
The Government of Canada holds a significant amount of
personal information. This information can be transmitted
to the government voluntarily, as when a person submits
comments regarding a local development project, or it can
be required to be submitted, as is tax information. This
information could be very sensitive, such as medical
information, or fairly innocuous, such as the business
contact information normally found on a business card or
email signature.
The interest that requires protection here is personal
privacy, which, in turn, connotes “concepts of intimacy,
identity, dignity and integrity of the individual.”40 This
information belongs to identifiable individuals, and the
risks of inappropriate disclosure may be quite serious to
the individual. Therefore, protection of personal privacy
warrants a mandatory prohibition on disclosure.
Section 19 is a mandatory, class-based
exemption prohibiting the disclosure
of “personal information,” subject to
certain exceptions.
The term “personal information” is
defined by reference to the Privacy Act
as, “information about an identifiable
individual that is recorded in any form.”
The definition also provides examples
of what is and is not included within
the meaning of personal information.
Institutions may disclose any record
that contains personal information if:
� the individual to whom it
relates consents to the disclosure;
� the information is publicly available; or
� the disclosure is in accordance with
section 8 of the Privacy Act.
Section 19 was invoked 20,701 times
in 2013–2014.
40 Canada (Information Commissioner) v Canada (Transportation Accident Investigation and Safety Board), 2006 FCA 157.
Information Commissioner of Canada
49
Not all disclosures of personal information result in an unjustified invasion of a person’s personal privacy. A balancing
test that considers all of the relevant circumstances is needed in order to ensure that only information that merits
protection is withheld.
Under the Act, personal information may only be disclosed where there is consent from the individual, the information
is publicly available, or the disclosure is in accordance with section 8 of the Privacy Act, which sets out a list of circumstances
in which a government institution may disclose personal information.41 There is one circumstance that provides for an
injury-based assessment. This is where, in the opinion of the head of the institution, the public interest in disclosure
clearly outweighs any resulting invasion of privacy. However, this rarely-used provision requires a public interest to be
identified and weighed to justify disclosure, regardless of the kind or sensitivity of the personal information
at issue.42
Almost all provincial and territorial access laws contain an exception to the personal information exemption where the
disclosure would not constitute an “unjustified invasion of privacy.”43 The decision-maker must consider all relevant
circumstances. These include, but are not limited to, criteria listed in the statute. Examples include whether the disclosure
is desirable for the purpose of subjecting the activities of government to public scrutiny; whether the information is
highly sensitive; and whether disclosure may unfairly damage the reputation of any person referred to in the record.
In addition, most statutes list circumstances in which disclosure of personal information is presumed to be an unjustified
invasion of personal privacy. This includes, for example, personal information relating to medical history. Most statutes
also list circumstances in which disclosure is presumed not to be an unjustified invasion of personal privacy. This includes,
for example, personal information that discloses financial or other details of a contract for personal services between the
individual and an institution.
An injury-based approach to the disclosure of personal information strikes the appropriate balance between access and
privacy.44 It creates a spectrum of protection, using presumptions of injury or non-injury depending on the kind of
information at issue, while also allowing for these presumptions to be rebutted, based on the particular circumstances
and context of the information. This spectrum ensures the protection of sensitive personal information, and maximum
disclosure of non-sensitive personal information.45
41 RSC, 1985, c P-21.
42 Privacy Act, section 8(2)(m). It is to be noted that notification to the Privacy Commissioner is required before disclosing information
under this section. Further, the Treasury Board Manual cautions that this section does not imply a right of access, but rather only permits
disclosure at the discretion of the head of the institution, and should be used “with a great deal of restraint.”
43 Except for the laws of Saskatchewan and Quebec.
44 An “invasion of privacy” test can be found in Canadian jurisdictions with a “dual mandate,” where access to information and protection of
privacy can be found in the same statute and are overseen by one oversight body.
45 In her submission to the Commissioner’s Fall 2012 consultations with the public on the modernization of the Act, former Privacy
Commissioner Jennifer Stoddart stated that she could “not agree with the idea of narrowing the definition of ‘personal information’
or submitting it to an invasion of privacy test, which might result in a subjective application of the law.” Office of the Information
Commissioner of Canada. “Submission of the Privacy Commissioner of Canada.” Modernization of the ATIA. January 11, 2013 at p. 1.
.
50
STRIKING THE RIGHT BALANCE FOR TRANSPARENCY
Recommendation 4.12
The Information Commissioner recommends amending the exemption for personal information to allow
disclosure of personal information in circumstances in which there would be no unjustified invasion of privacy.
In addition, the Commissioner’s investigations have revealed
two specific instances in which the section 19 exemption for
personal information requires modification: business
contact information and compassionate disclosure.
Some laws that protect personal privacy specifically exclude
from the definition of personal information business
contact information. For example, the Personal Information
and Protection of Electronic Documents Act, which establishes
the rules to govern the collection, use and disclosure of
personal information by the private sector, excludes from
its definition of “personal information” the names, titles,
business addresses and telephone numbers of an employee
of an organization.46 The access and privacy laws of Alberta,
Ontario, and New Brunswick also exclude business contact
information from the definition of personal information.
This information should similarly be excluded from the
definition of “personal information.”
Recommendation 4.13
The Information Commissioner recommends
that the definition of personal information
should exclude workplace contact information
of non-government employees.
At issue in Information Commissioner v
Minister of Natural Resources Canada,
2014 FC 917, was whether basic professional
information, consisting of the names, titles
and workplace contact information of private
sector employees appearing in records
responsive to a request under the Act is
“personal information” warranting exemption
under section 19(1).
The Commissioner argued that the meaning
and scope of “personal information” should
be informed by individuals’ rights of privacy
(which, in turn, connote “concepts of intimacy,
identity, dignity and integrity of the individual”)
and that, as a result, information that would
generally appear on an individual’s business
card cannot be considered “personal
information.”
The Federal Court rejected this argument,
concluding instead that all information
“about” an identifiable individual is “personal
information” unless it falls within one of the
exceptions to the definition of “personal
information” set out in section 3 of the
Privacy Act.
In addition, many of the provincial access laws allow
disclosure to the spouse or close relatives of a deceased
person, as long as it would not result in an unreasonable invasion of the deceased’s privacy.47 The Commissioner has
encountered investigations where this information is not disclosed because a “public interest” could not be identified. It
is the Commissioner’s view that the Act should explicitly allow for compassionate disclosure, as long as the disclosure is
not an unreasonable invasion of the deceased’s privacy.
Recommendation 4.14
The Information Commissioner recommends including a provision in the Act that allows institutions to
disclose personal information to the spouses or relatives of deceased individuals on compassionate
grounds as long as the disclosure is not an unreasonable invasion of the deceased’s privacy.
Finally, the Act currently provides that in circumstances in which consent to disclose is given, institutions may disclose
the information. This is problematic in two respects. First, the Act is silent as to when an institution should seek the
consent of an individual. Second, this provision has, in some instances, been interpreted to refuse disclosure even in
circumstances in which the individual has consented. To ensure that the interest protected is the personal privacy of the
individual, institutions should be explicitly required to seek consent whenever it is reasonable to do so. Further,
46 SC 2000, c 5 at section 2.
47 Provisions that allow disclosure of personal information to the spouse or close relatives of a deceased individual can be found in the access
laws of Alberta, Saskatchewan, Manitoba, Ontario, New Brunswick, P.E.I., and Newfoundland and Labrador.
Information Commissioner of Canada
51
institutions should be obligated to disclose personal
information where the individual to whom the
information relates has consented to its disclosure.
Section 20 contains three mandatory,
class-based exemptions for:
Recommendation 4.15
� a third party’s trade secrets
(section 20(1)(a));
The Information Commissioner recommends
requiring institutions to seek the consent of the
individual to whom the personal information relates,
wherever it is reasonable to do so.
Recommendation 4.16
The Information Commissioner recommends
requiring institutions to disclose personal
information where the individual to whom the
information relates has consented to its disclosure.
Third party information (section 20)
The Government of Canada collects a wide range of
information from third parties,48 including trade secrets
and other confidential commercial information, market
research, business plans and strategies, and internal
inspection and testing results. This information may be
submitted voluntarily, such as in a bid for a government
contract, or submitted as required by law, for example as
proof of regulatory compliance.
There is a compelling need to protect information that is
provided to the government by third parties. According to
the Supreme Court of Canada, “such information may be
valuable to competitors and disclosing it may cause
financial or other harm to the third party who had to
provide it. Routine disclosure of such information might
even ultimately discourage research and innovation.”49
Given the public interest in encouraging business
development and innovation, the potentially serious
economic consequences of disclosure, and the fact that
third party information is not owned by the government,
this is an instance in which a mandatory exemption
is justified.
� financial, commercial, scientific or
technical information that is confidential
information supplied to a government
institution by a third party and is treated
consistently in a confidential manner by
the third party (section 20(1)(b));
� information supplied in confidence by a
third party when it relates to preparation,
maintenance, testing or implementation
by a government institution of emergency
management plans that concern the
vulnerability of the third party’s buildings
or other structures, its networks or
systems or the methods used to protect
any of those buildings, structures,
networks or systems (section 20(1)(b.1)).
It also contains two mandatory, injury-based
exemptions for:
� information which, if disclosed, could
reasonably be expected to result in
financial loss or gain to a third party or
could reasonably be expected to cause
prejudice to a third party’s competitive
position (section 20(1)(c));
� information whose disclosure could
reasonably be expected to interfere
with a third party’s contractual or other
negotiations (section 20(1)(d)).
Institutions may disclose information with
a third party’s consent. Further, institutions
have the discretion to disclose third party
information (with the exception of a third
party’s trade secrets) when such disclosure
would be in the public interest as it relates
to public health, public safety or protection
of the environment, and provided the public
interest in disclosure clearly outweighs any
loss or gain to the third party.
This section was invoked 5,255 times in
2013–2014.
48 Section 3 of the Act defines “third party” as any person, group of persons or organizations other than the government institution or
the person making the access request. The term includes, but is not limited to, corporations and other business entities.
49 As per Merck Frosst Canada Ltd. v Canada (Health), 2012 SCC 3 at para. 2.
52
STRIKING THE RIGHT BALANCE FOR TRANSPARENCY
However, the protection offered in section 20 must also
be balanced against the need for transparency regarding
public-private partnerships and the need for accountability
in both government contracting practices and awards. It
must also take into account the government’s regulatory
function of the private sector.
Therefore, the mandatory exemption should be limited by
an injury test. It should only apply to specific types of
third party information where disclosure could reasonably
be expected to cause significant harm to a third party’s
competitive or financial position, or where disclosure
could result in similar information no longer being
supplied voluntarily to the institution.
The Commissioner therefore recommends a mandatory
exemption for trade secrets or scientific, technical,
commercial or financial information, supplied in
confidence, when the disclosure could reasonably be
expected to:
significantly prejudice the competitive position or
interfere significantly with the contractual or other
negotiations of a person, group of persons, or
organization;
result in similar information no longer being
supplied voluntarily to the institution when it is in
the public interest that this kind of information
continue to be supplied;
In 2008, Canada Post Corporation (CPC)
received a request for “contracts given to
Wallding International” dating from 1997 to
2000. In response, CPC withheld details
about a contract that awarded a monthly
$15,000 retainer to Wallding for general
advice on broadly worded subject areas. In
part, the justification for non-disclosure was
based on some of the exemptions found in
section 20.
The Commissioner was not convinced that
CPC had properly applied the exemptions
found in section 20.
As required by the Act, the Commissioner
sought representations from the former
president of Wallding. She was not persuaded
by his representations, which focused
entirely on the potential damage to him in
his personal capacity. The Commissioner
therefore recommended that the information
be disclosed.
In the end, CPC disclosed all the details of
the contract.
result in undue loss or gain to any person, group, committee or financial institution or agency.
Such an amendment, when paired with the Commissioner’s recommendation that all exemptions be subject to a general
public interest override, would:
focus the exemption so that it protects certain third party information when disclosure could reasonably be
expected to cause significant harm;
streamline this exemption, thus reducing the concurrent application of multiple overlapping exemptions;
make the protections for third party information consistent with provincial laws;50 and
in conjunction with the Commissioner’s recommendation in Chapter 3 that a third party is deemed to consent to
disclosing its information when it fails to respond to a consultation request within appropriate timelines, give an
incentive to third parties to provide adequate representations to institutions to establish proof that harm would
result if the information were to be disclosed.
50 The laws of B.C., Alberta, Ontario and P.E.I., as well as the Organization of American States model law, follow such an approach.
Information Commissioner of Canada
53
Recommendation 4.17
The Information Commissioner recommends a mandatory exemption to protect third-party trade secrets or
scientific, technical, commercial or financial information, supplied in confidence, when the disclosure could
reasonably be expected to:
� significantly prejudice the competitive position or interfere significantly with the contractual or
other negotiations of a person, group of persons, or organization;
� result in similar information no longer being supplied voluntarily to the institution when it is in the
public interest that this type of information continue to be supplied; or
� result in undue loss or gain to any person, group, committee or financial institution or agency.
The Act provides that in circumstances where consent to disclose is given by a third party, institutions may disclose the
information. This exception should be directive rather than discretionary: An institution shall not refuse to disclose
information on the basis of section 20 when the third party has consented to disclosure.
Recommendation 4.18
The Information Commissioner recommends requiring institutions to disclose information when the third
party consents to disclosure.
The application of section 20 is narrowed when such disclosure would be in the public interest as it relates to public health,
public safety or protection of the environment, and provided the public interest in disclosure clearly outweighs any loss or
gain to the third party. In these instances, institutions have the discretion to disclose a third party’s information.
Given the Commissioner’s recommendation that all exemptions be subject to a general public interest override, this
limited public interest override can be repealed.
Recommendation 4.19
The Information Commissioner recommends that the limited public interest override in the third party
exemption be repealed in light of the general public interest override recommended at Recommendation 4.1.
The application of the exemption for third parties should be limited in one other instance. Under the Act, institutions
can apply third party exemptions to protect information about grants, loans or contributions that have been given to a
third party by the government (as long as the information meets the criteria of the exemption as currently constructed).
Given that grants, loans and contributions are publicly funded, the public has an interest in knowing how this money is
spent. The Commissioner therefore recommends increasing the level of transparency surrounding grants, loans and
contributions by providing that section 20 cannot be applied to information about them, including information related
to the status of repayment and compliance with the terms (See Chapter 7 for a broader discussion on proactive disclosure
related to grants, loans and contributions).
This will aid the public in tracking the types, amounts, recipients and repayment of grants, loans and contributions, and
keep institutions accountable for their decisions surrounding these types of financial support.
Recommendation 4.20
The Information Commissioner recommends that the third party exemptions may not be applied to
information about grants, loans and contributions given by government institutions to third parties.
54
STRIKING THE RIGHT BALANCE FOR TRANSPARENCY
Advice and recommendations
(section 21)
Policy- and decision-making is at the heart of government.
As this encompasses much of the daily business of
government, institutions hold a vast amount
of information related to policy- and decision-making.
There is a public interest in protecting the policy- and
decision-making processes of government. If all policyand decision-making information were disclosed, there is
a risk that public officials may not provide full, free and
frank advice. This, in turn, could impair the effective
development of policies, priorities and decisions.
There is an equally important public interest in providing
citizens with the information needed to be engaged in
public policy and decision-making processes, to have a
meaningful dialogue with government, and to hold
government accountable for its decisions.
Section 21 is a class-based, discretionary exemption that
protects a wide range of information relating to policyand decision-making. However, the exemption in its
current form extends far beyond what must be withheld
to protect the provision of free and open advice. The
breadth of this exemption must be narrowed to strike the
right balance between the protection of the effective
development of policies, priorities and decisions on the
one hand, and transparency in decision-making on
the other.
Section 21 is a discretionary, class-based,
time-limited exemption for advice or
recommendations developed by or for an
institution or a minister of the Crown.
This exemption also applies to accounts of
consultations or deliberations, positions
or plans for negotiations carried on or
to be carried on by or on behalf of the
government or plans relating to managing
personnel or the administration of
institutions that have not been implemented.
The exemption applies to records that came
into existence fewer than 20 years prior to
the request.
Section 21 does not apply to:
� accounts or statements of reasons for a
decision that is made in the exercise of
a discretionary power or an adjudicative
function and that affects the rights of a
person; and
� a report prepared by a consultant or
an adviser who was not a director, an
officer or an employee of a government
institution or a member of the staff of
a minister of the Crown at the time the
report was prepared.
Section 21 was invoked 6,517 times in
2013–2014.
First, the section should only protect information which,
if disclosed, could reasonably be expected to be injurious
to the provision of free and open advice and recommendations.51
Recommendation 4.21
The Information Commissioner recommends adding a reasonable expectation of injury test to the exemption
for advice and recommendations.
51 Adding an injury test to section 21 was recommended in Main Brief 1986, the Commissioner’s 1993–1994 annual report, the Open
Government Act and Open and Shut. See 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); Office of the Information
Commissioner. Open Government Act. October 25, 2005. ; and 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).
Information Commissioner of Canada
55
Second, the Act should extend the list of explicit examples
of information that will not fall within the scope of
the exemption.52
At present the list is limited to:
an account or a statement of reasons for a decision
that is made in the exercise of a discretionary power
or an adjudicative function and that affects the
rights of a person; and
a report prepared by a consultant or an adviser who
was not a director, an officer or an employee of a
government institution or a member of the staff of
a minister of the Crown at the time the report was
prepared.53
The list should also include factual materials, public
opinion polls, statistical surveys, appraisals, economic
forecasts and instructions or guidelines for employees of
a public institution.54
Recommendation 4.22
Successive information commissioners have
indicated that the exemption for advice and
recommendations is problematic.
Inger Hansen (1983–1990)
Section 21, permitting the exemption of
advice and accounts of consultations and
deliberations, is probably the Act’s most
easily abused provision.
Annual Report 1987–1988
John Grace (1990–1998)
The advice and recommendations exemption,
together with the exclusion of Cabinet
confidences, ranks as the most controversial
clause in the Access to Information Act.
Annual Report 1992–1993
John Reid (1998–2006)
The exemption for advice and recommendations
is one of the most controversial provisions of
the Act as its broad language can be made to
cover—and remove from access—wide swaths
of government information.
The Information Commissioner recommends
explicitly removing factual materials, public opinion
Open Government Act: Notes
polls, statistical surveys, appraisals, economic
forecasts, and instructions or guidelines for
employees of a public institution from the scope of the exemption for advice and recommendations.
Third, in light of the public interest in citizen engagement and the government’s Open Government commitments, the
20-year time frame included in section 21 is unnecessarily long.55 This time limit should be reduced to provide certainty
as to when the exemption can no longer be applied.
Recommendation 4.23
The Information Commissioner recommends reducing the time limit of the exemption for advice and
recommendations to five years or once a decision has been made, whichever comes first.
52 See Making it Work for Canadians, the Commissioner’s 2000–2001 Annual Report and the Open Government Act. Canada, Access to
Information Task Force, Access to Information: Making it Work for Canadians (Ottawa: Public Works and Government Services Canada, 2002).
53 At section 21(2).
54 The laws of B.C., Alberta, Saskatchewan, Manitoba, Ontario, New Brunswick, Nova Scotia, P.E.I., and Newfoundland and Labrador include
such a list.
55 Making it Work for Canadians, p. 49. This report, Open and Shut and Commissioner Grace’s 1993–1994 Annual Report recommended reducing
this time limit to 10 years. The Open Government Act reduced it to five.
56
STRIKING THE RIGHT BALANCE FOR TRANSPARENCY
Solicitor-client privilege (section 23)
Institutions frequently engage the services of legal professionals. As a result,
institutions hold information that stems from these relationships, such as
legal opinions, factums of law, routine communications and fee invoices.
The Act contains an exemption to protect information that is subject to
solicitor-client privilege. Solicitor-client privilege is not defined in the Act;
however, the courts have clarified that the exemption covers both legal
advice privilege and litigation privilege.56
Legal advice privilege recognizes that the justice system
depends on the vitality of full, free and frank communication
between those who need legal advice and those who are
best able to provide it. The resulting confidential
relationship between solicitor and client is a necessary and
essential condition of the effective administration of justice
and the public’s confidence in the legal system.57 Legal
advice privilege is of unlimited duration.
Litigation privilege, in contrast, is aimed at ensuring the
efficacy of the adversarial process by creating a zone of privacy
that allows litigants to “prepare their contending positions in
private, without adversarial interference and without fear of
premature disclosure.”58 It applies to documents that were
created for the dominant purpose of existing, contemplated,
or anticipated litigation. Litigation privilege is of temporary
duration, automatically coming to an end upon the
termination of the litigation that gave rise to its existence.
Given the importance of the protection of solicitor-client
privilege to the proper functioning of the legal system, a
class-based, discretionary exemption for solicitor-client
privilege should be maintained.
Unlike litigation privilege, the indefinite application of
section 23 as it relates to legal advice privilege in the
public sector is problematic.
Contrary to organizations in pursuit of private goals, the
government’s mandate is to pursue the public interest. This
public interest aspect of government administration
justifies differences in the operation of solicitor-client
privilege. The government’s public interest mandate
provides heightened incentive to waive privilege to ensure
greater transparency and accountability.59 Therefore, factors
such as whether the protection is still relevant, whether the
advice is old and outdated, or the historical value of the
advice carry more weight in favour of disclosure.
Section 23 is a discretionary,
class-based exemption
for information subject to
solicitor-client privilege.
Section 23 was invoked
2,132 times in 2013–2014.
Section 23 was recently considered in
Canada (Information Commissioner of
Canada) v Canada (Minister of Public
Safety and Emergency Preparedness)
et al., 2012 FC 877.
A requester sought access to a copy of a
protocol between the Royal Canadian
Mounted Police (RCMP) and the Department
of Justice regarding the principles governing
the listing and inspection of RCMP documents
within the context of civil litigation.
Requests for this protocol were sent to both
the RCMP and the Department of Justice.
In response, both institutions refused to
disclose the protocol based on section 23,
as well as another exemption.
The Court was asked to determine whether
the protocol contained information subject to
solicitor-client privilege and, if so, whether
discretion to refuse access was reasonably
exercised.
The Court held that most of the protocol was
not protected by solicitor-client privilege,
because it was “a negotiated and agreedupon operational policy formulated after any
legal advice has been given and after any
continuum that is necessary to be protected
in light of the purposes behind the privilege.”
It was impossible to tell whether the protocol
was based on earlier legal advice. Thus,
disclosing the document does not disclose
the content of any earlier legal advice.
56 Blank v Canada (Minister of Justice), 2006 SCC 39 at para. 4.
57 Blank at paras. 26–27.
58 Blank at para. 27.
59 As per Stevens v Canada (Prime Minister), [1998] 4 FC 89 at para. 52 (FCA).
Information Commissioner of Canada
57
The Commissioner therefore recommends that
this exemption, as it applies to the legal advice
privilege, be subject to a time limit of 12 years
after the last administrative action on the file.60
This is consistent with the practice at the
Department of Justice to transfer to LAC legal
opinions 12 years after the last administration
action on the file because the information no
longer has any business value.61
Recommendation 4.24
The Information Commissioner recommends
imposing a 12-year time limit from the
last administrative action on a file on the
exemption for solicitor-client privilege,
but only as the exemption applies to legal
advice privilege.
The Commissioner has observed that section 23
is frequently applied to withhold legal counsel’s
billing information.
In common law, this information is presumed
privileged. However, in the case of aggregate
total amounts billed, this presumption of
privilege can frequently be rebutted on the
grounds that the information is neutral and, as
such, the disclosure of total billing amounts
would not prejudice the interest that solicitorclient privilege is intended to protect.62
Given that legal fees associated with the work
done by counsel retained by institutions are
funded by taxpayers, the Commissioner
recommends that section 23 cannot be applied to
aggregate total amounts of fees paid. This will
help the public track how much money institutions
spend on legal issues and keep institutions
accountable for their decisions to engage
legal services.
Recommendation 4.25
Library and Archives Canada (LAC) received a
request for all records in a file concerning an
individual involved in the Halifax Explosion disaster
of 1917. LAC refused to disclose certain information
in this file, stating it was still subject to solicitorclient privilege, as per section 23 of the Act.
The requester, who is a professional historian and
author who needed the requested information
for an upcoming publication, complained to the
Commissioner about the denial of access.
The Commissioner asked LAC if it would exercise its
prerogative as client to waive solicitor-client privilege
and release the information to the requester, as it
would be in the public interest.
During the investigation it was revealed that LAC
consulted with the Department of Justice, who
confirmed that the requested information was
still covered by solicitor-client privilege and
recommended that it be withheld.
Based on that recommendation, LAC withheld the
records. However, it did not consider disclosing
the information in the public interest, as the
Commissioner had requested. The Commissioner
asked LAC again to carry out this assessment.
During a second consultation with the Department
of Justice, LAC was advised that the documents
in question were actually under the control of
either Transport Canada or Fisheries and Oceans
Canada, even years after the event to which they
refer occurred. This effectively made one of these
two institutions the actual “client” and, as such,
responsible for exercising the required discretion.
Fisheries and Oceans Canada replied that the
records were not under its control. Transport
Canada reviewed the information and, after careful
consideration, determined that it held no litigation
value and waived the solicitor-client privilege. LAC
subsequently released all records to the requester.
The Information Commissioner recommends
that the solicitor-client exemption may not be applied to aggregate total amounts of legal fees.
60 A time limit is not needed for this exemption as it applies to litigation privilege, as litigation privilege comes to an end upon the termination
of the litigation that gave rise to its existence.
61 Department of Justice. Records Retention and Disposition Schedule, June 20, 2012. Note that the retention period for files related to
Aboriginal law are retained for 25 years.
62 Maranda v Richer, 2003 SCC 67.
58
STRIKING THE RIGHT BALANCE FOR TRANSPARENCY
Cabinet confidences
(section 69)
Cabinet is responsible for setting the
policies and priorities of the Government
of Canada. In doing so, ministers must be
able to discuss issues within Cabinet
privately, so as to arrive at decisions that
are supported by all ministers publicly,
regardless of their personal views. The
need to protect the Cabinet decisionmaking or the deliberative process is well
established under the Westminster
system of Parliament, and is known as
Cabinet confidences. This need for
protection has been recognized by the
Supreme Court of Canada.63
At present, Cabinet confidences are
excluded from the right of access under
the Act, subject to certain limited
exceptions. What is described as a Cabinet
confidence in section 69(1) of the Act is
overly broad and goes beyond what is
necessary to protect the interest that the
exclusion is intended to address – namely,
Cabinet’s deliberative process.
Section 69 excludes confidences of the Queen’s Privy
Council for Canada. This includes Cabinet confidences and
confidences of the Privy Council and Cabinet committees,
such as Treasury Board (hereinafter “Cabinet confidences”).
The exclusion sets out a non-exhaustive list of types of
records that constitute a Cabinet confidence, that includes:
� memoranda to cabinet (69(1)(a));
� discussion papers (69(1)(b));
� agenda of Cabinet or records recording deliberations or
decisions of Cabinet (69(1)(c));
� records used for or reflecting certain communications
or discussions between ministers (69(1)(d));
� records intended to brief Ministers in relation to matters
(69(1)(e));
� draft legislation (69(1)(f));
� any record that contains information about the contents of
any record referred to in sections 69(1)(a) to (f) (69(1)(g)).
The exclusion does not apply to:
� Cabinet confidences that are more than 20 years old; or
� discussion papers, when the decision to which the paper
relates has been made public or four years have passed
since the decision was made.
Section 69 was invoked 3,136 times in 2013–2014.1
1. Because Cabinet confidences are protected by an exclusion from the Act,
requesters often specify, either in their initial request or at the prompting of
the institution, that the institution should not include information that could
be considered a Cabinet confidence in its response. In addition, sometimes
requesters do not complain about the application of section 69 because of the
Commissioner’s inability to review the records at issue. Of those complaints the
Commissioner has received and investigated on the application of section 69
from April 2009 to November 2014, the Commissioner has found on average
that 14% are well founded.
63 In Babcock v Canada (Attorney General), [2002] 3 SCR 3 at para. 18 the Supreme Court of Canada stated that there are two reasons to protect
Cabinet confidences: First, it allows “those charged with the heavy responsibility of making government decisions [to be] free to discuss all
aspects of the problems that come before them and to express all manner of views, without fear that what they read, say or act on will later be
subject to public scrutiny.” Second, Cabinet confidentiality “avoids creating or fanning ill-informed or captious public or political criticism.”
Information Commissioner of Canada
59
Successive information commissioners have indicated that the Act’s exclusion for Cabinet
confidences is problematic.
Inger Hansen (1983–1990)
[M]y concern was that the withholding of records under the exclusionary section should be
minimal. [...] My personal opinion [...] was that a democracy would benefit by having access to
that kind of material.
1989–1990 Annual Report
John Grace (1990–1998)
Perhaps no single provision brings the Access to Information Act into greater disrepute than
section 69 which excludes Confidences of the Queen’s Privy Council for Canada from the
legislation’s reach.
1993–1994 Annual Report
John Reid (1998–2006)
The last vestiges of unreviewable government secrecy – i.e. Cabinet confidences – should be
brought within the coverage of the law and the review jurisdiction of the Commissioner. Cabinet
confidentiality risks being broadly, and too self-servingly, applied by governments when it is free
from independent oversight.
Remarks to the University of Alberta’s 2006 Access and Privacy Conference
Robert Marleau (2007–2009)
The role of Cabinet in a Westminster system of Parliament and the need to protect the Cabinet
decision-making process are well understood. However, experience in other provincial, territorial
and international jurisdictions with Westminster-style governments has demonstrated that the
deliberations and decisions of Cabinet can be properly protected without excluding them from
the purview of the legislation.
Strengthening the Access to Information Act to Meet Today’s Imperatives, presentation to the Standing Committee
on Access to Information, Privacy and Ethics, March 2009
Suzanne Legault (2009-present)
As I stated publicly, it is my deep conviction that, under the Access to Information Act, Cabinet
confidences should be subject to an exemption, and not an exclusion [...] Similarly, the Office of
the Commissioner should have the right to review them independently to determine whether they
are in fact Cabinet confidences.
Evidence given to the Standing Committee on Procedure and House Affairs, March 16, 2011
Section 69(1) of the Act sets out a non-exhaustive list of types of records that are to be considered Cabinet confidences.
This list includes records not traditionally considered to be part of the Cabinet paper system. For instance, pursuant to
section 69(1)(g) even records containing information about the content of any Cabinet record are to be excluded.
60
STRIKING THE RIGHT BALANCE FOR TRANSPARENCY
Section 69(3) sets out some exceptions to the Cabinet confidences exclusion. According to this provision, discussion papers
are not excluded if the decision to which the discussion paper relates has been made public or, if the decision has not been
made public, when four years have passed since the decision was made.64 However, as a practical matter, these exceptions
may be unlikely to result in the disclosure of additional information. This is because what was known as a discussion paper
in 1983 no longer exists as a result of changes to the Cabinet paper system.65
Also problematic is the fact that Cabinet confidences are
currently excluded from the Act, and not just exempted
from the right of access. This is unlike the protection
afforded to Cabinet confidences in all but one Canadian
province, as well as in Australia, the U.K. and New Zealand.66
An exemption for Cabinet confidences
has been recommended in the following
government or parliamentary documents:
� The Green Paper that was a precursor
to the Access to Information Act
The fact that the Act excludes Cabinet confidences has
significant repercussions on the Commissioner’s ability to
� Bill C-43, which was the bill that
provide effective oversight when investigating a complaint
introduced the Act
that concerns a government institution’s refusal to
� Open and Shut
disclose records based on section 69(1). Based on current
� A Call for Openness, the 2001 report of
case law, the Commissioner cannot require that records
the ad hoc Parliamentary Committee on
claimed to be excluded under section 69(1) be provided to
Access to Information
her office so that she can independently assess whether
� Making it Work for Canadians
the records are in fact Cabinet confidences.67 This means
that the Commissioner cannot actually see or consider the
� Private members bills C-554 and C-556
substance of what is claimed to be excluded. Instead, the
Commissioner must assess whether the exclusion applies
based on tombstone descriptions of the records or circumstantial evidence concerning the record’s content.
The Commissioner recommends that Cabinet confidences be protected by a mandatory exemption when disclosure
would reveal the substance of deliberations of Cabinet and, as is the case for all exemptions, that this exemption be
subject to a general public interest override.68 Such an exemption will sufficiently protect the interest that is intended to
be protected, while ensuring that:
claims of Cabinet confidences are subject to effective independent oversight;
disclosure is based on the substance of the information at issue instead of the record’s format or title;
the protection afforded to Cabinet confidences is consistent with the majority of national and international
access laws.
64 The exclusion for Cabinet confidences does not apply to records that are more than 20 years old.
65 In Canada (Minister of Environment) v Canada (Information Commissioner), 2003 FCA 68, the Court noted that the type of discussion
previously reflected in a separate document identified as a “discussion paper” had, since the Act’s coming into force, been moved to the
“analysis” section of the document referred to as a “memorandum to Cabinet” (or MC). The Federal Court of Appeal concluded that when a
corpus of words, consisting of information that would have previously been found in a discussion paper, is within or appended to another
document in the Cabinet Paper system (i.e. an MC), it must be severed and disclosed where conditions described in 69(3)(b) are met. Since
this time the Cabinet Paper system has again been changed. According to new MC templates introduced in Fall 2012, MC are no longer to
include a background / analysis section; meanwhile, the Privy Council Office’s 2013 Drafter’s Guide to Cabinet Documents does not refer
to Discussion Papers as being part of the Cabinet Paper system. See Privy Council Office. A Drafter’s Guide to Cabinet Documents, 2013.
.
66 The exemptions for Cabinet confidences in B.C., Alberta, Manitoba, Ontario, New Brunswick, Nova Scotia and P.E.I. focus on the substance
of deliberations and then list the type of information this would cover, such as advice, recommendations, policy considerations or draft
legislation. Only Newfoundland and Labrador’s access law contains an exclusion for ministerial briefing papers. Other Cabinet records in
Newfoundland and Labrador are subject to an exemption; however, the Commissioner’s oversight is limited when a record is certified as an
“official Cabinet record.” In the U.K., protections focus on whether disclosure would likely prejudice the maintenance of the convention of
the collective responsibility of ministers of the Crown, or would likely inhibit the free and frank provision of advice, exchange of views for
the purposes of deliberation, or would otherwise prejudice the effective conduct of public affairs.
67 Gogolek v Canada (Attorney General), [1996] FCJ No. 154, paras. 9 -14; Canadian Broadcasting Corporation v Canada (Information
Commissioner), 2011 FCA 326 at para. 45.
68 A public interest override for Cabinet confidences is consistent with Carey v Ontario, [1986] 2 SCR 637 and Babcock v Canada (Attorney
General), which both provided that the government must weigh the need to protect confidentiality in Cabinet deliberations against the
public interest in disclosure.
Information Commissioner of Canada
61
Recommendation 4.26
The Information Commissioner recommends a mandatory exemption for Cabinet confidences when
disclosure would reveal the substance of deliberations of Cabinet.
Most of the provincial access laws list types of information that cannot be withheld as a Cabinet confidence. A
parliamentary committee and the task force mandated with reviewing the Act in 2002 also recommended that the Act
mirror this approach.69 Examples of the types of information that cannot be withheld include:
information, the purpose of which is to provide background explanations or analysis to Cabinet for its consideration
in making a decision, if the decision has been made public, has been implemented or more than a certain amount
of time has passed since the decision was made or considered;
purely factual or statistical information provided to Cabinet;
analyses of problems or policy options that do not contain subjective information; and
information in a record of a decision made by Cabinet when acting in its capacity as an appeal body.70
Several jurisdictions in Canada that contain an exemption for Cabinet records provide that the exemption cannot be
applied to records that are older than 15 years, rather than 20, as currently found in the Act.71
Finally, the access laws in Saskatchewan, Manitoba and Ontario provide that the exemption for Cabinet confidences
cannot be applied when the Cabinet for which the record has been prepared consents to access being given.72
To facilitate citizens’ participation in the government’s decision-making process, the government needs to be more
forthcoming with the information it relies upon to make decisions. The exemption for Cabinet confidences should allow
for maximum disclosure. To accomplish this, the exemption should not apply to information other than what is necessary
to protect Cabinet’s deliberative process and should be of limited duration.73
Recommendation 4.27
The Information Commissioner recommends that the exemption for Cabinet confidences should not apply:
� to purely factual or background information;
� to analyses of problems and policy options to Cabinet’s consideration;
� to information in a record of a decision made by Cabinet or any of its committees on an appeal
under an Act;
� to information in a record that has been in existence for 15 or more years; and
� where consent is obtained to disclose the information.
69 The exemptions for Cabinet confidences in the access laws of B.C., Alberta, Saskatchewan, Manitoba, Ontario, Nova Scotia and P.E.I.
list records to which the exemption cannot apply. Open and Shut (at p. 31), Making it Work for Canadians (at p. 47) and The Access to
Information Act and Cabinet Confidences: A Discussion of New Approaches also recommended limiting the exemption for Cabinet confidences.
Office of the Information Commissioner of Canada. The Access to Information Act and Cabinet Confidences: A Discussion of New Approaches.
Ottawa: Minister of Public Works and Government Services Canada, 1996.
70 At the federal level, the Cabinet functions as an appeal body with authority to vary or rescind decisions made by administrative tribunals
for certain statutes related to economic regulation, such as the Canada Transportation Act, SC 1996, c 10.
71 The time limit in the laws of B.C., Alberta and New Brunswick is 15 years. Nova Scotia’s is limited to 10 years.
72 In Ontario, two orders have been issued with respect to obtaining consent to disclose deliberations of the Executive Council. In Order 24
(Re Ministry of the Attorney General; October 21, 1988), it was held that there was no requirement on the head of an institution to seek
consent of the Executive Council to disclose. Rather, the exemption provides discretion on the head to seek consent depending on the
circumstances. In Order P-1390 (Re Ministry of Finance; May 8, 1997), it was determined that the head must reasonably exercise his or
her discretion to seek consent, which is reviewable by the Ontario Information and Privacy Commissioner.
73 Any changes made to the Act with respect to Cabinet confidences would require similar amendments to the Canada Evidence Act.
62
STRIKING THE RIGHT BALANCE FOR TRANSPARENCY
Given the sensitivity attached to Cabinet confidences, the Commissioner recommends that investigations of refusals to
disclose pursuant to this exemption be delegated to a limited number of designated officers or employees within her
office. Such a requirement would be consistent with section 59(2) of the Act, which limits the number of officers or
employees who may investigate complaints related to international affairs or defence.
Recommendation 4.28
The Information Commissioner recommends that investigations of refusals to disclose pursuant to the
exemption for Cabinet confidences be delegated to a limited number of designated officers or employees
within her office.
Creating a law of general application
Restrictions to the right of access found
in other laws
Section 4 of the Act provides that, notwithstanding any other act of
Parliament, every person has a right to access and shall, on request,
be given access to any record under the control of an institution.
This section gives the Act precedence over any other act of
Parliament. However, section 24 requires government institutions
to withhold information protected by a series of statutory provisions
listed in Schedule II of the Act (for example, sections of the Statistics
Act and Criminal Code).74
Section 24 is a mandatory exemption
for any information the disclosure
of which is restricted by a provision
listed in Schedule II of the Act.
Section 24 was invoked 135 times
in 2013–2014.
In addition, the precedence of the Act over any other act of Parliament may be impaired when recent legislation includes
language intended to prevent disclosure of information, by using language such as “despite the Access to Information Act.”75
Schedule II and the laws that contain language that is intended to supersede the Act affect the general right of access to
government information. These provisions make it more difficult to understand what information can be obtained
because determining whether or not the information falls within the mandatory exemption set out in section 24
frequently involves an analysis of complex provisions incorporated from other statutory regimes into the Act.
74 According to Making it Work for Canadians (at p. 64) the rationale for section 24 and Schedule II is to protect confidentiality regimes found
in other laws, even though general exemptions may be available to protect the information. Listing the provision in Schedule II gives a very
firm assurance that the specific information will not be disclosed.
75 For example, section 46 of the Hazardous Materials Information Review Act, RSC 1985, c 24 (3rd Supp), Part III claims to privilege information,
and thus prevent disclosure, “despite the Access to Information Act.”
Information Commissioner of Canada
63
Successive information commissioners have indicated that section 24 and Schedule II are
problematic.
Inger Hansen (1983–1990)
In our view, section 24 and the Schedule II statutes are not necessary at all to the working of the
Access to Information Act, and in some instances give rise to unfairness and inconsistent treatment.
We recommend their repeal.
Main brief to House of Commons Standing Committee on Justice and Legal Affairs, May 7, 1986
John Grace (1990–1998)
These “by the back door” derogations from access rights are ... troubling to the Commissioner....The
spirit and intent of the Access to Information Act can be whittled away by oft-ignored consequential
amendment provisions buried at the back of other laws. For that reason, too, Parliamentarians have
reason for concern. When Parliament adopted the right of access to government records it included
a very important phrase: “notwithstanding any other Act of Parliament” (section 4). The continuing
growth of Schedule II now threatens to erase the vital constraint on creeping secrecy which those
six words originally gave.
Annual Report 1991–1992
The Commissioner [is] also concerned that the process used to effect these changes [are] not by
direct amendments to the access Act. They [are] treated much like minor housekeeping amendments,
tagged on to other bills. There [is] no debate; no discussion of the effects or the need for this type of
an amendment. There [is] no consultation with the Commissioner’s office.
Annual Report 1992–1993
John Reid (1998–2006)
The Access to Information Act contains a sweeping, catch-all provision. Section 24 requires that
secrecy be maintained with respect to information made secret by another statute, if that other
stature is referenced in Schedule II of the Access to Information Act.
Annual Report 1999–2000
Connected with this notion, that the coverage of the Act should be comprehensive, is the notion that
the Act should be a complete code setting out the openness/secrecy balance. No longer should we
permit secrecy provisions in other statutes to be mandatory, in perpetuity, without meeting any of
the tests for secrecy in the Act’s substantive exemptions. Section 24 of the Access to Information
Act, which sets out this open-ended, mandatory, class exemption, should be abolished.
The Access Act – Moving Forward – A Commissioner’s Perspective, September 8, 2005
Suzanne Legault (2009-present)
The inclusion of statutory provisions in Schedule II, and the resulting expansion of the mandatory
class-based exemption found in section 24, has, in my opinion, resulted in the erosion of the right
of access. It has done so by requiring government institutions to consider more than one statute in
their decision-making process and making it more difficult for requesters to understand and exercise
their access rights.
A letter from the Information Commissioner of Canada to the Chair of the Senate Committee on Legal and
Constitutional Affairs concerning C-51, An Act to amend the Witness Protection Program Act and another Act,
June 12 2013
64
STRIKING THE RIGHT BALANCE FOR TRANSPARENCY
Schedule II has not been comprehensively reviewed since
the Act came into force. Moreover, the number of
provisions listed in Schedule II is growing. There were 40
provisions in 33 statutes in 1983. This number has now
doubled – as of 2015, Schedule II contains 81 provisions
listed in 58 statutes.76
In addition, many of the provisions listed in Schedule II or
found in other laws may not be necessary.77 In many
instances, general exemptions already available in the Act
adequately protect the information at issue.78
It is also unclear to what extent the Commissioner can
exercise her independent oversight over the application
of the provisions listed in Schedule II. For example, when
a provision from another Act listed in Schedule II also
includes an alternative method for accessing information,
case law suggests that a requester may need to pursue
disclosure under that statute, rather than under the Act.79
The result of these issues is that the right of access is diluted
by a regime that is complex and not comprehensive. For this
reason, repealing section 24 and Schedule II has repeatedly
been recommended by information commissioners and
Parliamentarians.80
Top Aces Consulting Inc v Minister of
National Defence, 2012 FCA 75 raises some
question as to whether the Commissioner
would have jurisdiction, in some instances, to
consider whether disclosure is restricted by
a statutory regime incorporated by reference
into section 24.
At issue before the Court in this decision was:
� Whether a provision in the Defence
Production Act (DPA), incorporated by
reference into section 24, restricted access
to certain information, thereby warranting
exemption under that section; or
� Whether the information was not
restricted under section 24 because
an exception to the prohibition against
disclosure set out in the DPA provision
applied.
The Court ultimately concluded that the
information was not restricted within the
meaning of section 24, as an exception to
the restriction set out in the DPA provision
applied.
However, when doing so, the Court
suggested that if a statute that contains a
provision incorporated by reference into
Schedule II provides an adequate mechanism
by which an individual can seek disclosure,
the individual seeking access cannot pursue
that information’s disclosure within the
framework of the Access to Information Act.
In this instance, the DPA did not have an
adequate mechanism for obtaining access.
Therefore, disclosure was able to be
considered under the Act.
76 The Commissioner recommends in Chapter 5 that the government be required to consult the Commissioner on all proposed legislation that
potentially impacts access to information. In 2013, the Commissioner wrote to the Minister of Justice and Attorney General of Canada to
request that she be consulted during the drafting phase of legislation that impacts access rights. In his response, the Minister stated that
the current approach to collaboration with the Commissioner was sound and did not need to be modified. See Information Commissioner
of Canada. Letter to Peter MacKay, Minister of Justice and Attorney General of Canada, December 23, 2013 and Minister of Justice and
Attorney General of Canada. Letter to Suzanne Legault, Information Commissioner of Canada, February 24, 2014.
77 For example, Schedule II refers to section 14 of the Anti-Inflation Act, a law which had been repealed four years before the Act came into force.
78 The Commissioner made this point in a letter to the Senate Committee on Legal and Constitutional Affairs concerning Bill C-51, An Act
to amend the Witness Protection Program Act and another Act. This bill added a new statute and provision to Schedule II. See Office of the
Information Commissioner of Canada. “A letter from the Information Commissioner of Canada to the Chair of the Senate Committee
on Legal and Constitutional Affairs concerning C-51, An Act to amend the Witness Protection Program Act and another Act,” June 12, 2013.
.
79 Top Aces Consulting Inc v Minister of National Defence, 2012 FCA 75.
80 Such a recommendation has been made by information commissioners in the 1986 Main Brief, the Commissioner’s 1993–1994 and
2000–2001 annual reports, and 2002 special report, and the Open Government Act. Parliamentarians have recommended repealing section 24
and Schedule II in Open and Shut, Bill C-201 and Bill C-554. Office of the Information Commissioner of Canada. Response to the Report of the
Access to Information Review Task Force. Ottawa: Minister of Public Works and Government Services Canada, 2002; Bill C-201, Open Government
Act, 1st Sess, 38th Parl; and Bill C-554, An Act to amend the Access to Information Act (Open Government Act), 2nd Sess, 39th Parl.
Information Commissioner of Canada
65
To address these issues, a comprehensive
review of all of the provisions listed in Schedule
II or of provisions in other laws that limit the
right of access must be undertaken. Any
information that can be adequately protected
by a general exemption that already exists in
the Act should be repealed. For any information
that would not be protected by a general
exemption, a new exemption that is specific
and limited should be added to the Act. These
should be constructed in line with the
considerations discussed at the beginning of
this chapter.81
The Commissioner expects that the necessity
for new exemptions will arise only in very
limited circumstances. Any review and decision
to add a new exemption should be made in
consultation with the Commissioner in an
advisory capacity (See her recommendation in
Chapter 5).
Recommendation 4.29
The Information Commissioner
recommends a comprehensive review,
made in consultation with the Information
Commissioner, of all of the provisions
listed in Schedule II and any legislation
that otherwise limits the right of access.
Any provision covered by the general
exemptions in the Act should be repealed.
Recommendation 4.30
The Information Commissioner
recommends that new exemptions be
added to the Act, in consultation with the
Information Commissioner, where the
information would not be protected by a
general exemption that already exists in
the Act.
The complexity of incorporating by reference statutory
regimes from other laws into the Act was illustrated
in Hibernia Management and Development Company
Ltd. v Canada-Newfoundland and Labrador Offshore
Petroleum Board and Information Commissioner of
Canada, 2012 FC 417.
In this decision, a third party challenged an institution’s
decision under the Act to disclose records relating to
the institution’s safety and environmental protection
audits and inspections based, in part, on section 24.
The relevant provision listed in Schedule II of the Act was
section 119 of the Canada-Newfoundland Atlantic Accord
Implementation Act (“the Accord Act”). Section 119(2)
sets out a privilege over certain information “provided”
for the purposes of Parts II and III of the Accord Act,
or regulations made under those Parts. However,
Section 119(2) goes on to provide that the privilege
is subject to a particular provision in the Accord Act
(section 18) as well as a number of exceptions, such as:
� if there is written consent from the person who
provided the information;
� if disclosure would be for the purposes of the
administration or enforcement of entire Parts of
the Accord Act; or
� if disclosure would be for the purposes of legal
proceedings relating to the administration or
enforcement of entire Parts of the Accord Act.
The Commissioner intervened in this case and had to
hire an expert to understand the statutory regime in
the Accord Act.
Ultimately, the Federal Court concluded that the
information at issue was not privileged under section
119(2) of the Accord Act and therefore could not
be exempted under section 24. The Court further
concluded that section 20(1)(b) and section 19 were
not applicable. Interestingly, a number of arguments
made by the parties concerning the requirements of
section 20(1)(b) duplicated those made concerning the
application of section 119(2).
Recommendation 4.31
The Information Commissioner recommends that section 24 and Schedule II be repealed.
81 For example, new exemptions should only be mandatory and class-based if the information warrants such a high degree of protection.
Otherwise, any new exemption must be limited and specific to protect only what merits protection and, to the greatest extent possible be
discretionary and injury-based. Any new exemption should be subject to a public interest override and its application should be subject to
independent oversight.
66
STRIKING THE RIGHT BALANCE FOR TRANSPARENCY
Exemptions and exclusions for institutions brought under the coverage of
the Act as a result of the Federal Accountability Act
In 2006, the coverage of the Act was extended to a number of Crown corporations, agents of Parliament, foundations
and a series of other organizations as a part of the Federal Accountability Act (FedAA).82
Crown corporations are corporations owned or controlled by the government. They may operate in a competitive market
and benefit from direct or indirect public funding. Examples are the Canadian Broadcasting Corporation, Canada Post
Corporation and VIA Rail.
Agents of Parliament carry out specific statutory mandates that require them to conduct investigations, audits and other
compliance activities in relation to government institutions and individuals. Examples are the Information Commissioner,
the Auditor General and the Privacy Commissioner.
The FedAA added a number of exemptions and exclusions to the Act. In most instances these new limitations protect
information that may already fall within existing exemptions. These changes introduced a patchwork regime of protection
to the Act.
The following table sets out the new exemptions: seven are mandatory exemptions without the need to demonstrate
injury from disclosure, are not time limited and contain no public interest or consent overrides. Four exemptions
are discretionary but contain no injury test and one protects records for 15 years. It also included two new
institution-specific exclusions.
82 SC 2006, c 9.
Information Commissioner of Canada
67
New exemptions adopted under the FedAA
Mandatory, class-based exemptions
Section
Exemption
Institutions
s. 16.1
Records relating to investigations, examinations and audits
Auditor General
Commissioner of Official Languages
Information Commissioner
Privacy Commissioner
s. 16.2
Records relating to investigations
Commissioner of Lobbying
s. 16.4
Records relating to investigations or conciliation
Public Sector Integrity Officer
s. 16.5
Records relating to the Public Servant Disclosure Protection Act
All government institutions
s. 20.1
Advice or information relating to investments
Public Sector Investment Board
s. 20.2
Advice or information relating to investments
Canada Pension Plan Investment Board
s. 20.4
Contracts for the service of performing artist or the identity of a donor
National Arts Centre Corporation
Discretionary, class-based exemptions
s. 16.3
Investigations, examinations and reviews under the Canada Elections Act Chief Electoral Officer
s. 16.31
Investigations, examinations or reviews in the performance of the
functions of the Commissioner of Canada Elections under the Canada
Elections Act82
Director of Public Prosecutions
s. 18.1
Economic interest of certain government institutions
Canada Post Corporation
Export Development Canada
Public Sector Pension Investment Board
VIA Rail Canada
s. 22.1
Draft internal audits (less than 15 years)
All government institutions
New exclusions
Section
Exclusion
Institutions
s. 68.1
Information that relates to journalistic, creative or programming activities, Canadian Broadcasting Corporation
other than information that relates to its general administration
s. 68.2
Information that is under the control of the institution, other than
information that relates to its general administration or operation of any
nuclear facility
Atomic Energy of Canada
83
83 Added in 2014 by the Fair Elections Act, SC 2014, c 12.
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STRIKING THE RIGHT BALANCE FOR TRANSPARENCY
Most of the information that falls within these new limitations would be subject to exemptions in the Act that apply to
all government institutions. These additions have introduced an increased level of complexity to the Act and led
to institutions concurrently applying multiple and overlapping exemptions for the same information.
When the Federal Accountability Act was introduced, the Commissioner at that time argued that most of the new
limitations were not necessary and should be repealed.84
These institution-specific exemptions and exclusions should be reviewed to determine whether they are necessary
to protect the interests in question.
Recommendation 4.32
The Information Commissioner recommends a comprehensive review, made in consultation with the
Information Commissioner, of the exemptions and exclusions for institutions brought under the coverage of
the Act as a result of the Federal Accountability Act.
84 See Commissioner Reid’s appearances before the Legislative Committee on Bill C-2, May 18, 2006 (Parliament, House of Commons,
Legislative Committee on Bill C-2, Minutes of Proceedings and Evidence, 1st Sess, 39th Parl), the Standing Committee on Access to
Information, Privacy and Ethics, June 19, 2006 (Parliament, House of Commons, Standing Committee on Access to Information, Privacy
and Ethics, Minutes of Proceedings and Evidence, 1st Sess, 39th Parl), and the Senate Standing Committee on Legal and Constitutional Affairs,
September 20, 2006 (Parliament, Senate, Standing Committee on Legal and Constitutional Affairs, Minutes of Proceedings and Evidence,
1st Sess, 39th Parl), as well as Deputy Commissioner Leadbeater’s appearance before the Standing Committee on Access to Information,
Privacy and Ethics on November 6, 2006 (Parliament, House of Commons, Standing Committee on Access to Information, Privacy and
Ethics, Minutes of Proceedings and Evidence, 1st Sess, 39th Parl). Added in 2014 by the Fair Elections Act, SC 2014, c12.
Information Commissioner of Canada
69
Chapter 5
Strengthening oversight
A
key element of an access to information regime is independent and effective oversight of government
decisions. An effective oversight model assists requesters in obtaining the information to which
they are entitled in a timely manner.
The two main oversight models featured in Canada are the ombudsperson model and the order-making model.1
Oversight models
Ombudsperson model
The Act follows an ombudsperson model, with strong investigative powers provided to the Commissioner. Under section 36
of the Act, the Commissioner’s investigative powers include obtaining and reviewing all records required for an investigation
(with some exceptions), issuing subpoenas, administering oaths, and entering the premises of any government institution.
Under this model, the Commissioner may also investigate a broad range of issues.2
After concluding an investigation, the Commissioner may issue recommendations to institutions. These recommendations
are not binding. When an institution does not follow her recommendations, the Commissioner’s (and the complainant’s)
recourse is limited.
Under section 42 of the Act, the Commissioner may, with the complaint’s consent, apply to the Federal Court for a review
of the institution’s decision to refuse disclosure. The hearing before the Federal Court is de novo, which means the review
of the application of exemptions begins anew, with evidence being introduced afresh before the Court.
There are significant drawbacks to this model:
The Act provides that the Federal Court may only review an institution’s refusal to disclose information.3 There are
situations that are not subject to judicial review, despite the fact that the Commissioner has the authority to
investigate and make recommendations on a broad range of issues.4 Without an ability to have the Court review
these recommendations, requesters have no avenue to enforce their rights when an institution does not follow the
Commissioner’s recommendations.5
1 A third oversight model, which allows for appeals directly to the court, can also be found internationally.
2 Section 30(1)(f) provides that the Commissioner may investigate any matter relating to requesting or obtaining access to government-held
records. In addition, sections 30(1)(a)-(e) provide that she may receive and investigate complaints from (a) persons who have been refused
access to a record requested under this Act or a part thereof; (b) from persons who have been required to pay a fee that they consider
unreasonable; (c) from persons who have requested access to records in respect of which time limits have been extended pursuant to
section 9 where they consider the extension unreasonable; (d) from persons who have not been given access to a record or a part thereof
in the official language requested by the person or have not been given access in that language within a period of time that they consider
appropriate; (d.1) from persons who have not been given access to a record or a part thereof in an alternative format or have not been given
such access within a period of time that they consider appropriate; (e) and in respect of any publication or bulletin institutions are required
to publish as per section 5.
3 As per section 41.
4 See n. 2 for a list of the issues the Commissioner may investigate in addition to an institution’s refusal to disclose information.
5 Where an institution does not wish to follow the Commissioner’s recommendation with respect to issues that are not reviewable by the
Court, the Commissioner’s ability to assist the requester is limited to negotiating with the institution the most suitable outcome possible.
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STRIKING THE RIGHT BALANCE FOR TRANSPARENCY
Strict confidentiality requirements imposed on the Commissioner prevent her from routinely publishing her
findings and recommendations.6 Consequently, there is not a wide body of precedents guiding institutions and
requesters. This often results in the same issues being investigated needlessly.
Different interpretations of the Act between the Treasury Board of Canada Secretariat and the Commissioner
result in conflicting guidance to institutions. This leads to unnecessary complaints, as well as litigation.7
The de novo hearing before the Federal Court allows institutions to present new or fulsome representations to the
Court and has, at times, resulted in the application of new exemptions.
As a whole, the ombudsperson model provides no incentive on institutions to maximize disclosure in a timely manner,
particularly in instances where the institution may wish to delay disclosure.
Order-making model
Under an order-making model, the Commissioner is an adjudicator. The adjudicator receives appeals from requesters
regarding an institution’s treatment of their access request, including the institution’s decision on disclosure.8 The
Commissioner may mediate the appeal and, if necessary, adjudicate the appeal based on the representations that have
been provided. At the conclusion of the adjudication, an order disposing of the issues raised in the appeal must be
rendered. This order is binding.
This model features a number of benefits:
It gives a clear incentive to institutions to apply exemptions only where there is sufficient evidence to support
non-disclosure and then put this evidence before the adjudicator, as judicial review before the Court is based on the
record that was before the adjudicator.
The grounds on which the order can be set aside are limited and the institution cannot introduce new evidence
or rely on new exemptions, as it is the adjudicator’s, and not the institution’s, decision that is under review before
the Court.
It avoids the redundancy of having two levels of review of the same decision, which can result in more timely access
to information.
The burden to seek a judicial review before the Court is on institutions, and not requesters, if the institution wishes
to oppose the disclosure ordered by an adjudicator.
It provides finality for requesters because orders of the adjudicator are binding unless reviewed by the Court.
6 During an investigation, the Commissioner may only disclose information when it is necessary to carry out an investigation or establish
the grounds for her findings and recommendations (section 63(1)(a)(i) and (ii)); in the course of a prosecution for an offence under the
Act, a prosecution for an offence under section 131 of the Criminal Code, RSC, 1985, c C-46 (perjury) in respect of a statement made under
the Act, a review before the Federal Court under the Act or an appeal (section 63(1)(b)); or to the Attorney General of Canada when, in the
Commissioner’s opinion, she has evidence relating to the commission of an offence against a law of Canada or a province by a director, officer
or employee of a government institution (section 63(2)). Once an investigation is complete, the Commissioner must report her findings to
the complainant and any third parties entitled to make representations concerning the disclosure of the requested information. In addition,
when a complaint is well founded, the Commissioner must, prior to reporting her findings to the complainant, provide the institution with
her findings and any recommendations for resolving the complaint. The Commissioner may inform the public about her investigations
through her annual report to Parliament. She may also issue special reports that can be tabled in Parliament at any time; however, they must
be related to an important or urgent matter within the scope of the Commissioner’s assigned powers, duties and functions.
7 For example, as a result of conflicting guidance, the Commissioner made a reference to the Federal Court in 2013 seeking a determination
on whether institutions may charge search and preparation fees for electronic records when the Regulations under the Act specify that
institutions are allowed to charge such fees when records are non-computerized. Information Commissioner of Canada v Attorney General of
Canada et al. (T-367-13).
8 The following discussion in this chapter is based on an appeal of an institution’s refusal to disclose information.
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71
As a whole, the order-making model puts the incentive on institutions to maximize disclosure in a timely manner and
reduces the burden on requesters.
Ombudsperson vs. Order-making model
Requesters complain to the Commissioner about an
institution’s handling of a request.
Requesters appeal to the Commissioner about an institution’s
decision about a request.
The Commissioner mediates and investigates the complaint.
The Commissioner begins with mediation and, if mediation fails
to resolve the entirety of the appeal, she adjudicates.
The Commissioner recommends a resolution to the complaint.
The Commissioner issues an order disposing of the issues
raised in the appeal.
If there is no resolution, the Commissioner, with the
complainant’s consent, or the complainant, must seek a de
novo review of the institution’s decision to refuse disclosure.
If the institution continues to oppose disclosure, it must seek
judicial review of the Commissioner’s order. This review
would be based on the record that was before the
Commissioner.
Adopting a more effective model
An order-making model has become the progressive standard. Sixty-eight percent of all the countries that have
implemented an access law in the past ten years feature an order-making model.9 It can also be found in the access laws
of B.C., Alberta, Ontario, Quebec, P.E.I., the U.K., India and Mexico. Model access laws and recent private members’ bills
also endorse this approach.10
Adopting an order-making model in the Act would provide the following benefits to requesters:
The processing of requests would be more timely because institutions would be aware that the Commissioner could
order that a request be processed by a certain time.
The Commissioner’s ability to issue binding orders would instill in the appeals process more discipline and more
predictability. It would also provide an incentive for institutions to make comprehensive and complete
representations to the Commissioner at the outset.
Orders would create a body of precedents that increases over time. Requesters and institutions would then have
clear direction as to the Commissioner’s position on institutions’ obligations under the Act. The body of precedents
would also reduce the likelihood that the Commissioner would have to review issues that have already
been adjudicated.
The Commissioner’s orders would provide finality to the requester (unless the decision of the Commissioner is
judicially reviewed).
9 Where the access law established an independent oversight body dedicated to access to information. Some countries provide that complaints
go directly to the court or to a human rights commissioner. The countries that adopted an order-making model for the independent
body overseeing the right of access are Maldives, Ivory Coast, Sierra Leone, Guyana, Yemen, Malta, Hungary, El Salvador, Brazil, Liberia,
Indonesia, Ethiopia, Chile, Bangladesh, Nepal, Macedonia, Honduras, India and Azerbaijan.
10 The Article 19 and Organization of American States model laws, and the Open Government Guide all include order-making powers for their
respective oversight authorities. Bill C-567 at cl. 5 and Bill C-613 at cl. 8 both amended the Act to include an order-making model. 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. “Welcome to the Open Gov
Guide.” 2013. . The chapter on right to information can be found at ; and Bill C-567, An Act to Amend the Access to Information Act (Transparency and Duty to Document), 2nd Sess, 41st Parl, 2014;
Bill C-613, An Act to amend the Parliament of Canada Act and the Access to Information Act (transparency), 2nd Sess, 41st Parl, 2014.
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The burden to seek judicial review of a decision of the Commissioner would be on the institution.
Judicial reviews to the Federal Court would be more limited and would consist of a review of the Commissioner’s
adjudication, rather than being a de novo hearing.
After overseeing more than 10,000 investigations, the Commissioner is of the view that, of the two models, the ordermaking model best protects information rights under the Act.
Recommendation 5.1
The Information Commissioner recommends strengthening oversight of the right of access by adopting an
order-making model.
Discretion to adjudicate
All of the jurisdictions that adopt an order-making model in Canada give their respective commissioners the discretion
to adjudicate an appeal.11 Such discretion can also be found in the access law of the U.K.12
Giving the Commissioner the discretion to adjudicate an appeal would ensure effective control of the adjudicative
process. To protect appellants’ right to an independent review of an institution’s decision under the Act, any decision not
to adjudicate an appeal should be subject to judicial review.
Recommendation 5.2
The Information Commissioner recommends providing the Information Commissioner with the discretion to
adjudicate appeals.
Mediation
Mediation provides a way to amicably resolve appeals or narrow issues for adjudication. Mediation can be a powerful tool
for resolving appeals, especially when order-making is available to focus the negotiations and provide an incentive to
resolve issues. Many laws that adopt an order-making model also allow for mediation of an appeal.13
Given the positive experience of other jurisdictions that have paired mediation with order-making powers, the
Commissioner recommends that the Act should include the explicit authority to resolve complaints by mediation.
Recommendation 5.3
The Information Commissioner recommends that the Act provide for the explicit authority to resolve appeals
by mediation.
11 The laws of B.C., Alberta, Ontario, Quebec and P.E.I. all give the respective commissioners the discretion to refuse to adjudicate. In Alberta
and P.E.I, this discretion is limited to where the subject‑matter of the appeal has been dealt with in an order or investigation report of the
Commissioner or the circumstances warrant refusal. In Ontario, in addition to having the discretion to adjudicate, the Commissioner may
also immediately dismiss an appeal if the notice of appeal does not present a reasonable basis for concluding that the record to which the
notice relates exists. In Quebec, the Commission d’accès à l’information may refuse or cease to examine a matter if it has reasonable cause
to believe that the application is frivolous or made in bad faith or that its intervention would clearly serve no purpose.
12 The law in the U.K. provides that the Commissioner does not have to provide a decision where it appears that the complainant has not
exhausted any complaints procedure which is provided by the public authority in conformity with the code of practice; there has been undue
delay in making the application; the application is frivolous or vexatious; or the application has been withdrawn or abandoned.
13 The laws of B.C., Alberta, Ontario and P.E.I. all give their commissioners the authority to mediate disputes, as well as order-making power.
Information Commissioner of Canada
73
Enforcement of orders
The Act should provide a mechanism to certify the Commissioner’s orders as orders of the Federal Court. This is important
to ensure enforcement of her orders issued pursuant to her investigative powers under section 36 and under an ordermaking model.14
The Canadian Human Rights Act provides for the certification of orders made by the Canadian Human Rights Tribunal
through the Federal Court.15 Once this occurs, orders are deemed to be orders of the Federal Court for the purposes of
enforcement. Any subsequent failures to observe the terms of a certified order would be subject to the contempt process
of the Federal Court and dealt with accordingly.
Recommendation 5.4
The Information Commissioner recommends that any order of the Information Commissioner can be certified
as an order of the Federal Court.
Other powers
Since an order-making model is adjudicative, it is important to specify in the legislative regime the scope of powers,
in addition to issuing orders, necessary to maximize the effectiveness of the oversight model and the access to
information regime.
Commissioner-initiated
investigations
The laws of B.C., Alberta, Québec and P.E.I., which have
adopted an order-making model, all include the power to
conduct investigations at the Commissioner’s own initiative.
Under this model, the Commissioner would be able to
investigate issues affecting information rights.
Issues that have been the focus of
Commissioner-initiated investigations
� The use of instant messaging across
government institutions
� The processing of requests in relation
to timeliness at specific institutions
Recommendation 5.5
The Information Commissioner recommends that the Act maintain the existing power to initiate
investigations related to information rights.
14 This issue was most recently addressed in Rowat v Canada (Information Commissioner) (2000), 193 FTR 1 (FCTD).
15 RSC, 1985, c H-6 at section 57.
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STRIKING THE RIGHT BALANCE FOR TRANSPARENCY
Compliance audits
The ability to conduct audits into institutions’ general compliance with the Act would enable the Commissioner to
proactively identify issues that are developing and address them in a timely and comprehensive manner. The Commissioner
could issue recommendations to improve information rights practices.
Many jurisdictions that feature an order-making model also provide their respective commissioners with the
general power to audit institutions’ compliance with the access law. Such a mandate has also been recommended in
Canada previously.16
Recommendation 5.6
The Information Commissioner recommends that the Act provide for the power to audit institutions’
compliance with the Act.
Investigative powers
To support her investigative function, the Commissioner should continue to have strong investigative powers. These
powers facilitate the effectiveness of investigations and ensure the co-operation of institutions during investigations.
The access laws of B.C., Alberta and P.E.I. feature an order-making model and also provide their respective commissioners
with investigative powers.
Recommendation 5.7
The Information Commissioner recommends that the Act maintain the existing investigative powers of the
Information Commissioner.
Education
As part of Canada’s Action Plan on Open Government 2014–
2016, the government recognized that digital literacy
skills are needed to take full advantage of the benefits of
open data, information, and dialogue. The government
therefore committed to develop tools, training resources,
and other initiatives to help Canadians acquire the
essential skills needed to access, understand, and use
digital information and new technologies. The same level
of commitment and effort needs to be put towards
educating Canadians on their right of access.
Without knowledge of the right of access and how to
exercise it, Canadians are missing an opportunity to
exercise their democratic rights and hold their government
to account. However, absent an express mandate for
education, the Commissioner is limited in how she can
increase awareness.
In Scotland, the Information Commissioner
is responsible for promoting Scotland’s
freedom of information law and has
published several surveys on public
awareness of freedom of information.
The first survey, conducted in 2004, just
prior to the coming into force of the Freedom
of Information (Scotland) Act 2002 found
that only 44% of respondents were aware
of the act. By 2014, this number had
increased to 84%.
These surveys are available online: Scottish Information
Commissioner, Research. .
16 The laws of B.C., Alberta, Quebec and P.E.I. all include the power to conduct investigations and audits to ensure compliance with the law
in conjunction with order-making, as do the Article 19 and Organization of American States model laws. Making it Work for Canadians and
the Open Government Act both recommended giving such power to the Commissioner. Canada, Access to Information Task Force, Access
to Information: Making it Work for Canadians (Ottawa: Public Works and Government Services Canada, 2002); Office of the Information
Commissioner. Open Government Act. October 25, 2005. .
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75
An education mandate or a similar power for commissioners to promote the right of access can be found in all but one
provincial access law, as well as in the laws of Canada’s international counterparts and in various model laws.17 Such a
mandate has also been recommended in Canada previously.18
The experiences in other jurisdictions have demonstrated that an education mandate poses no risk to the impartiality of
the Commissioner. In addition, giving the Commissioner such a mandate would bring the Act in line with comparable
jurisdictions and increase the profile of the Act and the right of access generally.
Recommendation 5.8
The Information Commissioner recommends that the Act provide for the power to carry out
education activities.
Research
The authority to conduct, commission or publish research is becoming more common among the provinces and
comparable jurisdictions.19 The federal Privacy Commissioner has a mandate to conduct and publish research related to
the protection of personal information under section 24(b) of the Personal Information Protection and Electronic Documents
Act. Former commissioners have recommended a similar mandate for the Information Commissioner.20
By carrying out research that draws from and includes Canadian perspectives, the Commissioner could help generate
information, insights, analysis and, in some instances, debate on access to information. In turn, these would contribute
to the protection and promotion of the right of access.
Recommendation 5.9
The Information Commissioner recommends that the Act provide for the power to conduct or fund research.
17 Nova Scotia’s law does not include an education mandate. The U.K. and Mexican laws (in the latter case, through the publication of a
guide on the procedure to access government information), the Article 19 and Organization for American States model laws and the Open
Government Guide all provide for this type of mandate.
18 See the Information Commissioner’s 1992–1993 Annual Report. See also the Open Government Act and Office of the Information
Commissioner. “Strengthening the Access to Information Act to Meet Today’s Imperatives.” March 9, 2009. . Open and
Shut recommended that the Commissioner be given the mandate to foster public understanding of the Act and that the Treasury Board
of Canada Secretariat conduct a public education campaign (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)). Making it Work for Canadians recommended amending the Act to recognize the role of the Commissioner in educating
the public about the Act and access to government information in general.
19 The laws of B.C., Alberta, Saskatchewan, Manitoba, Ontario, the U.K. and Mexico (all of which were passed after the Access to Information Act)
give the Commissioner such power.
20 See the Open Government Act and “Strengthening the Access to Information Act to Meet Today’s Imperatives.”
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Advisory function
The Commissioner proactively comments on legislation that impacts access rights once it has been tabled in Parliament.
Unfortunately, the lack of a mandatory consultation provision in the Act has contributed to the growth of Schedule II
and in the number of laws that contain language that is intended to supersede the Act (as described in Chapter 4),
thereby eroding the right of access.21
Current and former commissioners, as well as reports on reforming the Act, have considered providing independent
input or advice on the potential impacts to access to information to be an important part of the Commissioner’s role and
responsibilities, and have recommended providing this mandate to the Commissioner.22
The authority to comment on the implications for access to information of proposed legislation can be found in the
access laws of the majority of provinces, and is also recommended in the Organization of American States model law.23
Recommendation 5.10
The Information Commissioner recommends that the government be required to consult with the Information
Commissioner on all proposed legislation that potentially impacts access to information.
Access to information should be included by
design in programs and activities.24 To achieve
this, the Commissioner recommends that
institutions be required to complete access to
information impact assessments in a manner
that is commensurate with the level of risk
identified to access to information rights,
before establishing any new or substantially
modifying any program or activity.
This would allow institutions and the
Commissioner to proactively address issues
that may impact access to information rights.25
Treasury Board of Canada Secretariat’s “Information
Management Protocol — Instant Messaging Using a
Mobile Device” recommends that departments should
not use automatic logging of instant messages.
The Commissioner was not consulted on this protocol
before its implementation.
This protocol is contrary to the Commissioner’s
recommendations in her special report Instant messaging
putting access to information at risk. In this report,
the Commissioner found that there was a real risk that
information communicated via instant message that should
be accessible by requesters was being irremediably
deleted or lost. She specifically recommended that
an adequate technical safeguard mechanism be made
available and implemented to ensure that instant messages
(whether or not of business value) were archived on a
government server for a reasonable period of time.
21 In 2013, the Commissioner wrote to the Minister of Justice and Attorney General of Canada to request that she be consulted during the
drafting phase of legislation that impacts access rights. In his response, the Minister stated that the current approach to collaboration
with the Commissioner was sound and did not need to be modified. See Information Commissioner of Canada. Letter to Peter MacKay,
Minister of Justice and Attorney General of Canada (December 23, 2013) and Minister of Justice and Attorney General of Canada. Letter to
Suzanne Legault, Information Commissioner of Canada (February 24, 2014).
22 See the Open Government Act, “Strengthening the Access to Information Act to Meet Today’s Imperatives,” Making it Work for Canadians
and Department of Justice Canada. The Offices of the Information and Privacy Commissioners: The Merger and Related Issues (Report of the
Special Advisor to the Minister of Justice) (Ottawa: Minister of Public Works and Government Services Canada, November 15, 2005).
23 The laws of B.C., Alberta, Manitoba, New Brunswick, P.E.I., and Newfoundland and Labrador give the Commissioner advisory authority.
Quebec’s law provides that the Commission must give its opinion on draft regulations submitted to it under that law. In the U.S., the
Office of Government Information Services can review policies and procedures of administrative agencies as they relate to the Freedom
of Information Act.
24 More information about the concept of access by design can be found at: Information and Privacy Commissioner of Ontario. “Introduction
to access by design.” .
25 This requirement would be similar to privacy impact assessments, which help ensure that privacy protection is a core consideration when a
project is planned and implemented. Under the Treasury Board of Canada Secretariat’s Directive on Privacy Impact Assessment, government
departments must conduct a PIA in a manner that is commensurate with the level of privacy risk identified, before establishing any new or
substantially modified program or activity involving personal information. Treasury Board of Canada Secretariat. Directive on Privacy Impact
Assessment, April 1, 2010. .
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77
Recommendation 5.11
The Information Commissioner recommends that institutions be required to submit access to information
impact assessments to the Information Commissioner, in a manner that is commensurate with the level of
risk identified to access to information rights, before establishing any new or substantially modifying any
program or activity involving access to information rights.
Appointment and term of the Commissioner
Under section 54, an Information Commissioner holds office during good behaviour for a term of seven years and may
only be removed with cause. He or she is appointed by the Governor in Council, after consultation with the leader
of every recognized party in the House of Commons and Senate, and after approval by resolution of both houses.
This appointment process in the Act could be amended to reflect model laws and be consistent with the appointment of
the other agents of Parliament.
Model laws provide that the appointment of an Information Commissioner should be approved by a supermajority
of the legislature (i.e. more than two-thirds).26 There should also be eligibility criteria for the position.27
The Auditor General and the Chief Electoral Officer are both appointed for a ten-year term, which is not subject
to renewal.28
Recommendation 5.12
The Information Commissioner recommends:
� that the appointment of the Information Commissioner be approved by more than two-thirds of the
House of Commons and the Senate;
� 10 years relevant experience in order to be eligible for the position of Information Commissioner; and
� a non-renewable, 10-year term for the position of Information Commissioner.
26 The Organization of American States and Article 19 model laws require a super majority to appoint a Commissioner. P.E.I. has adopted
this approach.
27 Jurisdictions that use eligibility criteria include Quebec, Australia, Mexico and Serbia, as well as the model laws of the Organization of
American States and Article 19. Examples of such criteria include that the person have legal or other significant relevant experience, have
not recently held a government or political position, or have no criminal convictions. In Canada, as per section 81 of the Parliament of
Canada Act, RSC, 1985, c P-1, the Conflict of Interest and Ethics Commissioner must be either a former judge, a former member of a federal
or provincial board, commission or tribunal, or a former Senate Ethics Officer or former Ethics Commissioner. Judges of the Federal Court,
as per the Federal Courts Act, RSC, 1985, c F-7 at section 5.3 must also meet eligibility criteria, including 10 years standing at the bar of any
province. (Under section 55(2) of the Act, the Commissioner is to be paid a salary equal to the salary of a judge of the Federal Court, other
than the Chief Justice of that Court.)
28 Auditor General Act, RSC, 1985, c A-17 at section 3; Canada Elections Act, SC 2000, c 9, s 13.
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Chapter 6
Open information
I
n 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.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.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.”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.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.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
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.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.
1 Parliament, House of Commons, Speech from the Throne, 41st Parl, 1st Sess, June 3, 2011.
2 See Open Government (Canada) Canada’s Action Plan on Open Government
and Open Government (Canada), Canada’s Action Plan on Open Government 2014–2016. .
3 Canada’s Action Plan on Open Government 2014–2016 at part A “Open Government Foundation - Open By Default.”
4 Treasury Board of Canada Secretariat. Directive on Open Government. October 9, 2014. .
Section 5.1.
5 Office of the Information Commissioner. “Letter to the President of the Treasury Board on Action Plan 2.0.” November 5, 2014.
.
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.
Information Commissioner of Canada
79
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.
Recommendation 6.1
The Information Commissioner recommends that
institutions be required to proactively publish
information that is clearly of public interest.
Publication schemes
Section 5 of the Act requires institutions to publish
certain information about their organization each year,
including descriptions of:
the institution and its responsibilities;
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).
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.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.8
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 at .
8 Although the information identified in the scheme must also be available in printed format, when possible, for those without Internet access.
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STRIKING THE RIGHT BALANCE FOR TRANSPARENCY
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.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.
Recommendation 6.2
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.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.
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.11
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
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. .
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.
11 In the meantime, the government may wish to consider adding this kind of information to its Directive on Open Government.
Information Commissioner of Canada
81
Recommendation 6.3
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).12
The Act does not require the publication of all records given in response to access requests.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.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.15
Recommendation 6.4
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.
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.
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. Section 7.13. May 5, 2014.
.
14 RSC, 1985, c 31 (4th Supp).
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. .
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STRIKING THE RIGHT BALANCE FOR TRANSPARENCY
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.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.
Recommendation 6.5
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.
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.
Information Commissioner of Canada
83
Chapter 7
Criminal liability
and civil responsibility
A
n important aspect of an access to information law is a comprehensive regime of sanctions to address
actions contrary to the right of access. Sanctions create an incentive to comply with the law. To be
most effective, they must be proportionate to address a range of behaviours, from more serious actions
made in bad faith to less serious actions that result in failing to meet the obligations under the law.
The Act contains two offences. The first (section 67) prohibits the obstruction of the Information Commissioner and
anyone acting on her behalf or under her direction in the performance of their duties and functions under the Act.
In 1999, a second offence was added to the Act (section 67.1).
This offence prohibits all persons from destroying,
mutilating, altering, falsifying or concealing records with
the intent of denying a right of access under the Act. It
also forbids directing, proposing or causing anyone else to
do any of the prohibited acts.
The Commissioner has found information related to the
possible commission of an offence under section 67.1 on
three occasions.1
The Commissioner has come to the conclusion that the
Act needs a broader range of prohibited actions to cover
all types of behaviours that may hinder the right of access.
The Act also needs a spectrum of sanctions to allow for a
proportionate response to behaviours that are contrary to
the right of access.
Section 67.1 was added to the Act as a result
of a private member’s bill that was drafted in
response to concerns that had been raised
by Commissioner John Grace. In the wake
of various findings that the right of access
to government records had been thwarted
through record destruction, tampering and
cover-up, including incidents linked to the
Somalia Inquiry and the Canadian Blood
Inquiry, Commissioner Grace arrived
at the conclusion that “the time ha[d] come
to consider amending the Access Act to
provide penalties for flagrant violations of
this statute.”1 He echoed this sentiment by
again recommending the next year that there
be “a specific offence in the access act for
acts or omissions intended to thwart the
rights set out in the law.”2
1 1995–1996 Annual Report, p. 11.
2 1996–1997 Annual Report, p. 14.
1 The three occasions where the Commissioner found information related to the possible commission of an offence under section 67.1 are
described in detail in 1) the 2009–2010 Annual Report; 2) Interference with Access to Information: Part 1; and 3) Interference with Access to
Information: Part 2. See Office of the Information Commissioner, “Without a trace”, 2009–2010 Annual Report. ; Office of the Information Commissioner, Interference with Access to
Information: Part 1, March 2011. ; and Office of the Information Commissioner, Interference with Access to Information: Part 2, April 2014.
.
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STRIKING THE RIGHT BALANCE FOR TRANSPARENCY
Obstruction
Section 67 of the Act prohibits obstructing the
Commissioner in the performance of her duties.2 It does
not address obstructing the processing of an access request.
During the investigations that formed the basis of the
Interference with Access to Information: Part 2 special report,
the Commissioner uncovered evidence that the processing
of several access requests had been interfered with.
In order to address instances where the processing of an
access request is obstructed, the Commissioner
recommends that a new offence be added to the Act.
Directing, proposing or causing anyone to do so should
also be an offence under the Act.
Recommendation 7.1
The Information Commissioner recommends that
obstructing the processing of an access request (or
directing, proposing or causing anyone to do so) be
added as an offence under the Act.
Section 67.1 applies to the destruction, mutilation,
alteration, falsification or concealment of a record. To be
consistent throughout the Act, this section should be
amended so that it is an offence to destroy, mutilate, alter,
falsify or conceal any record or part thereof to deny the
right of access.
Recommendation 7.2
The Information Commissioner recommends that
section 67.1 prohibit destroying, mutilating, altering,
falsifying or concealing a record or part thereof
or directing, proposing or causing anyone to do
those actions.
In 2008 the National Gallery of Canada
(NGC) was involved in litigation as a result
of a wrongful dismissal action. During the
litigation it was revealed that documents may
have been destroyed and/or individuals were
counselled to destroy records that may have
been responsive to an access request. Upon
learning this information, the Commissioner
initiated an investigation.
During the investigation, the Commissioner
found as a fact that records responsive
to an access to information request were
destroyed and individuals were counseled
to destroy records during the course of the
processing of the request. As a result, she
referred the matter to the Attorney General.
No charges were laid.
In Interference with Access to Information:
Part 2, the Commissioner concluded that
there was improper interference in the
processing of five access requests at Public
Works and Government Services Canada by
ministerial staff. This interference took the
form of directions to the ATIP Directorate
from the ministerial staff members, who
had no authority under the Act, to sever
or remove information that the delegated
authority had decided to disclose.
2 An example of obstructing the Commissioner in the performance of her duties would include making a false statement to mislead or
attempt to mislead the Commissioner.
Information Commissioner of Canada
85
Failure to document
In light of the Commissioner’s recommendation in Chapter 2 to add to the Act a duty to document, the Act also needs to
prohibit non-compliance with this obligation.
The Commissioner therefore recommends that failing to document or preserve a decision-making process with intent to
deny the right of access be prohibited under the Act. Directing, proposing or causing anyone to do so should also be
prohibited under the Act.
Recommendation 7.3
The Information Commissioner recommends that failing to document or preserve a decision-making process
with intent to deny the right of access (or directing, proposing or causing anyone to do so) be prohibited
under the Act.
Failure to report
In Chapter 2 the Commissioner also recommended establishing a duty to report to Library and Archives Canada the
unauthorised destruction or loss of information, with a mandatory notification to the Commissioner.
In order to ensure compliance, failing to report to Library and Archives Canada and/or notify the Commissioner of
the unauthorised destruction or loss of information should also be prohibited.
Recommendation 7.4
The Information Commissioner recommends that failing to report to Library and Archives Canada and/or
notify the Information Commissioner of the unauthorised destruction or loss of information (or directing,
proposing or causing anyone to do so) be prohibited under the Act.
Spectrum of sanctions
In order to address the broad range of prohibited behaviours discussed above, the Act needs to include a spectrum of
sanctions. At one end of the spectrum are the criminal offences related to obstruction, then administrative monetary
penalties, then, at the other end, disciplinary proceedings.
The Organization of American States model law envisages this approach and makes available criminal sanctions for
certain wilful actions, but also fines and disciplinary proceedings for administrative offences.3
Adding a spectrum of sanctions to the Act has also been mentioned by the Government. In contemplating whether a duty
to document should be added to the Act, the Government noted that “penalties for public servants who fail to create a
record could range from disciplinary measures through an administrative monetary penalty to a criminal offence.”4
3 Organization of American States. “Model Inter-American Law on Access to Public Information and its Implementation Guidelines.” 2012 at
articles 64–65. .
4 Government of Canada, Strengthening the Access to Information Act: A Discussion of Ideas Intrinsic to the Reform of the Access to Information Act
(Ottawa: Government of Canada, 2006) at p. 35 .
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STRIKING THE RIGHT BALANCE FOR TRANSPARENCY
Spectrum of sanctions
Criminal
Administrative
monetary penalties
Disciplinary
proceedings
Obstructing the Commissioner in the performance
of her duties (section 67)
Yes
Yes
Yes
Obstructing the processing of an access request
(new offence)
Yes
Yes
Yes
Destroying, mutilating, altering, falsifying or
concealing information (section 67.1 as amended)
Yes
Yes
Yes
Failure to document
Yes
Yes
Yes
Failure to report and/or notify
No
Yes
Yes
No liability where acting in good faith
The Organization of American States model law also provides that no one will be subject to civil or criminal action or any
employment detriment where they are acting in good faith in the exercise, performance or purported performance of
any power or duty within the model law, as long as they acted reasonably and in good faith.5
This is an important aspect of the model law as it ensures that sanctions are only applied against those who act in bad faith
or are negligent in the performance of their duties. The Commissioner recommends that the Act should make clear that
no one acting reasonably and in good faith in the performance of their duties under the Act will be subject to sanction.
Recommendation 7.5
The Information Commissioner recommends that no one acting reasonably and in good faith in the
performance of their duties under the Act will be subject to sanction.
5 At article 63.
Information Commissioner of Canada
87
Criminal offences – increasing fines
The Commissioner is of the view that the fines under the Act need to be updated to accurately reflect the seriousness of
these violations. The fines that can currently be levied are lower than what can be found in the offences section in other
provincial access laws and in other federal regulatory schemes.6
Sanctions under the Act
Section 67
Section 67.1
Summary Conviction
Up to a $1,000 fine
Up to a $5,000 fine and/or imprisonment for a term not exceeding six months
Indictable offence1
N/A
Up to a $10,000 fine and/or imprisonment for a term not exceeding two years
1. An indictable conviction offence is considered a more serious category of criminal offence. In contrast, a summary conviction offence is
generally a less serious category of offences that carries less severe penalties (in most cases a maximum of six months imprisonment) and
cannot be prosecuted more than six months after the date of the offence.
The Commissioner recommends that the maximum fine for a summary conviction offence under the Act should be
$5,000. This would be consistent with provincial laws and ensure consistency within the Act. For the indictable offence
under section 67.1, the maximum fine should be increased to $25,000 to provide a stronger deterrent than currently
exists against serious violations of the right of access.
Recommendation 7.6
The Information Commissioner recommends increasing the maximum fine for summary convictions under the
Act to $5,000 and to $25,000 for indictable offences.
Administrative monetary penalties
An administrative monetary penalty (AMP) is a compliance mechanism that is used for less serious contraventions of a law
in order to encourage compliance. It also falls outside of the scope of criminal law. AMPs can be graduated based on the
seriousness of the contravention and take various factors into consideration when determining the amount to be imposed.
As part of the spectrum of sanctions available under the Act, the Commissioner should have the authority to levy AMPs
against any individual for breaches of any of the prohibited actions set out in this chapter (as set out in the table
“Spectrum of sanctions”).
As noted above, the Government has mentioned an AMP regime.7 As well, the Organization of American States model
law also provides for an administrative regime of fines.
6 For example, Manitoba’s access law allows for a fine up to $50,000 on summary conviction, New Brunswick up to $10,200, Alberta and P.E.I.
(on summary conviction) up to $10,000 and B.C., Ontario, and Newfoundland and Labrador (on summary conviction) up to $5,000. Under
the Canada Elections Act, SC 2000, c 9 every person who is guilty of an offence under section 495(4) (offences requiring intent, including
willfully transmitting election survey results during blackout period) is liable on summary conviction of a fine not more than $50,000.
Under the Lobbying Act, RSC, 1985, c 44 (4th Supp) every individual who fails to file a return or knowingly makes any false or misleading
statement in any return or other document submitted to the Commissioner of Lobbying is liable on summary conviction to a fine not
exceeding $50,000.
7 See n. 4.
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Including an AMP regime in the Act would allow the Commissioner to proportionately respond to the broad spectrum of
actions she encounters that are not in compliance with the Act and, in so doing, protect the right of access.8
An example of an AMP regime can be found in the Conflict of Interest Act.9 Included in this regime is that all AMPs that
have been levied under this act are required to be published.10 Adding such a regime has also been recommended by a
Parliamentary Committee for the Lobbying Act. 11
The Commissioner recommends that an AMP regime be added to the Act. The regime should also require the publication
of AMPs that have been imposed in order to heighten awareness of the obligations under the Act.
Recommendation 7.7
The Information Commissioner recommends an administrative monetary regime be added to the Act, which
should include a requirement to publish any administrative monetary penalty imposed.
Term and condition of employment for employees, directors and officers
of institutions
As part of the spectrum of possible sanctions, disciplinary proceedings should be an option. In order to put in place this
option, compliance with the Act must be a term and condition of employment.
Currently, employees must abide by the Values and Ethics Code for the Public Sector (the Code). There is a general obligation
on all employees to carry out their duties in accordance with legislation, policies and directives; however, the Code does
not highlight or specifically address employees’ obligations under the Access to Information Act.12
The Commissioner recommends that meeting obligations under the Act should be a term and condition of employment
for employees, directors and officers of institutions.13, 14 Such a condition would make it clear to those that work in
institutions that they have responsibilities under the Act, are accountable for meeting them, and are subject to
disciplinary procedures when these obligations are not met.
8 For example, an AMP may be appropriate where prosecution is not pursued, but the behaviour still merits some form of sanction. According
to the Public Prosecution Service of Canada Deskbook, when deciding whether to initiate and conduct a prosecution on behalf of the federal
Crown, Crown counsel must consider two issues: 1) Is there is a reasonable prospect of conviction based on evidence that is likely to be
available at trial? If there is 2) would a prosecution best serve the public interest? A number of factors are considered in the public interest,
including the nature of the alleged offence, the nature of the harm caused by or the consequences of the alleged offence, the circumstances,
consequences to and attitude of victims, the level of culpability and circumstances of the accused, the need to protect sources of information
and confidence in the administration of justice. Public Prosecution Service of Canada, Public Prosecution Service of Canada Deskbook, March 1, 2014.
.
9 SC 2006, c 9, s 2 at section 52.
10 The Organization of American States model law requires that any sanction ordered under the law be posted on the websites of the oversight
body and respective institution within five days of the sanction being ordered (see article 65(4)).
11 During a five-year review of the Lobbying Act, the Commissioner of Lobbying recommended to the Standing Committee on Access to
Information, Privacy and Ethics that an administrative monetary penalty regime be added to the Lobbying Act. This recommendation was
supported by the committee, who submitted it to Parliament. See Office of the Commissioner of Lobbying, “Administering the Lobbying
Act Observations and Recommendations Based on the Experience of the Last Five Years,” December 13, 2011. and Parliament, House
of Commons, Standing Committee on Access to Information, Privacy and Ethics, Statutory Review of the Lobbying Act: Its First Five Years,
1st Sess, 41st Parl).
12 By contrast, Expected Behaviour 5.1 of the Values and Ethics Code for the Public Sector specifically highlights the obligations of public servants
to provide fair, timely, efficient and effective services that respect Canada’s official languages. Expected Behaviour 1.1 generally requires public
servants to respect the rule of law and carry out their duties in accordance with legislation, policies and directives in a non-partisan and impartial
manner. Treasury Board of Canada Secretariat, Values and Ethics Code for the Public Sector, December 15, 2011. .
13 This would include ministerial staff if the Act is amended to include ministers’ offices under the coverage of the Act.
14 Similarly, during consultations with the Treasury Board of Canada Secretariat on the Policy on Access to Information, the Commissioner
recommended that compliance with the administration of the Act, including the resolution of complaints, be included in the performance
agreement of the member of the executive responsible for the access functions. She also recommended that compliance with the
administration of the Act, including meeting specific performance indicators, be a part of each institution’s Report on Plans and Priorities.
Information Commissioner of Canada
89
The Commissioner recommends that such a provision resemble section 19 of the Conflict of Interest Act, which provides
that compliance with that law is a condition of a person’s appointment or employment as a public office holder. In this
instance, the recommended provision should be applicable to all employees, directors and officers of all institutions
subject to the Act.
Recommendation 7.8
The Information Commissioner recommends that adherence to the requirements of the Access to Information
Act be made a term and condition of employment for employees, directors and officers of institutions.
Referral of criminal offences
Suspending investigations
Recent enabling legislation of bodies that perform administrative investigations provide that administrative
investigations must be immediately suspended where the investigative authority believes on reasonable grounds that a
criminal offence on the same subject-matter of the administrative investigation has occurred. The investigative authority
is then required to notify the relevant authorities.15
The Act contains no such provision to suspend investigations when the Commissioner has reasonable grounds to believe
that a criminal offence has been committed.16 The Commissioner therefore recommends that the Act be amended to
require the suspension of investigations in such situations.
Recommendation 7.9
The Information Commissioner recommends that an investigation under the Act must be suspended when
the Information Commissioner believes on reasonable grounds that a criminal offence on the same subjectmatter of the investigation has occurred.
Notifying authorities
The Act imposes strict confidentiality obligations on the Commissioner (see Chapter 5), with few exceptions. Section 63(2)
of the Act allows the Commissioner to disclose information to the Attorney General of Canada when she is of the view
that she has evidence of an offence against a law of Canada or a province by a director, officer or employee of an institution.
The interaction between the Commissioner’s strict confidentiality obligations, the exemption in the Act for investigations
of the Commissioner (section 16.1), and section 63(2) raises issues.
First, although section 63(2) of the Act sets out that the Commissioner is able to provide information when she is of the
view that she has evidence of an offence, it doesn’t set out what information she can provide.
15 For example, see section 10.4 of the Lobbying Act or section 49 of the Conflict of Interest Act. The provisions in these laws require the
suspension of an investigation where there are reasonable grounds to believe that a criminal offence on the same subject-matter of the
administrative investigation has occurred. As well, in R v Jarvis, 2002 SCC 73 and R v Ling, 2002 SCC 74, the Supreme Court of Canada
held that Charter protections for life, liberty and security of person (section 7) and against unreasonable search and seizure (section 8) are
violated when testimony on documents provided in an administrative investigation are used in a criminal investigation. At the heart of the
issue was the principle against self-incrimination. The Court held that once the predominant purpose of an investigation becomes one of
criminal liability, Charter rights are engaged. Although these decisions were made in the context of income tax law and involved the dual
function of the Canada Revenue Agency, who performs both administrative investigations and investigations of criminal offences under the
Income Tax Act, RSC, 1985, c 1 (5th Supp), the principles established remain important in the context of an administrative investigation that
may uncover criminal actions.
16 Instead, section 63(2) of the Act simply gives the Commissioner permission to disclose information relating to the commission of an
offence to the Attorney General of Canada.
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STRIKING THE RIGHT BALANCE FOR TRANSPARENCY
Second, section 63(2) is limited to directors, officers
or employees. This means the Commissioner may
report on the conduct of those individuals only, and
she may not report on the conduct of, for example,
current and former consultants, contractors, or
ministers and their exempt staff.17
Finally, section 63(2) permits the Commissioner to
report to the Attorney General of Canada, who is not
charged with conducting criminal investigations.18
This places the Attorney General in the unusual
position of acting as a courier between the
Commissioner and the appropriate criminal
investigative authority. By contrast, the Federal
Court has the discretion under the Act to provide
information to an “appropriate authority” to conduct
the relevant criminal investigation.19 The enabling
legislation of some of the agents of Parliament
include similar provisions, but authorize the Agent of
Parliament to provide the information to either the
“relevant authority” or a peace officer having
jurisdiction to investigate the alleged contravention.20
As reported in both the Interference with
Access to Information: Part 1 and Part 2
special reports, the responses available to
the Commissioner to sanction the actions
that were the subject of the complaint were
limited because many of the actions were
undertaken by ministerial staff.
The Information Commissioner was not able
to disclose information in relation to the
actions of the ministerial staff because they
were not officers, directors or employees of
a government institution. This is so despite
the wording of the offences to the Act, which
prohibit every person from engaging in the
offensive conduct.
In order to address these issues, the Act must be amended to make clear that, despite her confidentiality obligations, the
Commissioner is permitted to share information where she is of the view that a referral is warranted. The Act must also
be amended to allow the Commissioner to share this information about anyone’s conduct to the appropriate authority.
Recommendation 7.10
The Information Commissioner recommends that the Information Commissioner be permitted to share
any information to the appropriate authority where the Information Commissioner believes a referral is
warranted about anyone’s conduct related to a criminal offence.
17 This issue would be resolved by expanding coverage of the Act to include ministers’ offices.
18 Nor is the Director of Public Prosecutions, who is the delegated authority to prosecute non-Criminal Code federal offences on behalf of the
Attorney General (as per section 3(3) of the Director of Public Prosecutions Act, SC 2006, c 9, s 121).
19 See section 47(2).
20 The Conflict of Interest Act allows the Conflict of Interest and Ethics Commissioner to make such disclosures to the “relevant authority.”
The Public Servants Disclosure Protection Act, SC 2005, c 46 and the Lobbying Act generally allow the respective commissioners to make such
disclosures to a peace officer having jurisdiction to investigate the alleged contravention.
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Chapter 8
Mandatory periodic review
of the Act
T
he Access to Information Act has not been comprehensively updated since its enactment over
30 years ago. The Act has fallen behind modern standards. The result is that Canadians’ information
rights are not adequately protected.
Periodic, comprehensive reviews by either a legislative committee or commission are built into the access laws of several
provinces, with five years being the most common time frame.1
The Act needs to be strengthened to meet the information realities of the 21st century and ensure that Canadians benefit
from the modern, effective law they expect and deserve. Mandatory, periodic parliamentary review of the Act, particularly
when coupled with the requirement to table a report in Parliament within a year of undertaking the review, would ensure
the Act remains up to date and provide a scheduled opportunity to:
quickly fill gaps in legislative coverage identified in the Commissioner’s orders;
harmonize the Act with progressive national and international standards; and
ensure Canada is a global leader in protecting the right of access and in being accountable to its citizens.
Recommendation 8.1
The Information Commissioner recommends a mandatory parliamentary review of the Act every five years,
with a report tabled in Parliament.
1 The laws of B.C., Quebec, and Newfoundland and Labrador all contain such a provision. Federal commissioners have recommended including
such a provision in the Act on a number of occasions. See Office of the Information Commissioner. Open Government Act. October 25,
2005. and Office of the Information Commissioner.
“Strengthening the Access to Information Act to Meet Today’s Imperatives.” March 9, 2009. .
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List of recommendations
Chapter 1: Extending coverage
Recommendation 1.1
The Information Commissioner recommends including in the Act criteria for determining which institutions would be
subject to the Act. The criteria should include all of the following:
institutions publicly funded in whole or in part by the Government of Canada (including those with the ability to
raise funds through public borrowing) (this would include traditional departments but also other organizations
such as publicly funded research institutions);
institutions publicly controlled in whole or in part by the Government of Canada, including those for which the government
appoints a majority of the members of the governing body (such as Crown corporations and their subsidiaries);
institutions that perform a public function, including those in the areas of health and safety, the environment, and
economic security (such as NAV CANADA, which is Canada’s civil air navigation service provider);
institutions established by statute (such as airport authorities); and
all institutions covered by the Financial Administration Act.
Recommendation 1.2
The Information Commissioner recommends extending coverage of the Act to the Prime Minister’s Office, offices of
ministers and ministers of State, and parliamentary secretaries.
Recommendation 1.3
The Information Commissioner recommends creating an exemption in the Act for information related to the parliamentary
functions of ministers and ministers of State, and parliamentary secretaries as members of Parliament.
Recommendation 1.4
The Information Commissioner recommends extending coverage of the Act to the bodies that support Parliament, such
as the Board of Internal Economy, the Library of Parliament, the Conflict of Interest and Ethics Commissioner and the
Senate Ethics Commissioner.
Recommendation 1.5
The Information Commissioner recommends creating a provision in the Act to protect against an infringement of
parliamentary privilege.
Recommendation 1.6
The Information Commissioner recommends extending coverage of the Act to the bodies that provide administrative
support to the courts, such as the Registry of the Supreme Court, the Courts Administration Service, the Office of the
Commissioner for Federal Judicial Affairs and the Canadian Judicial Council.
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Recommendation 1.7
The Information Commissioner recommends that the Act exclude records in court files, the records and personal notes
of judges, and communications or draft decisions prepared by or for persons acting in a judicial or quasi-judicial capacity.
Chapter 2: The right of access
Recommendation 2.1
The Information Commissioner recommends establishing a comprehensive legal duty to document, with appropriate
sanctions for non-compliance.
Recommendation 2.2
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.
Recommendation 2.3
The Information Commissioner recommends extending the right of access to all persons.
Recommendation 2.4
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.
Recommendation 2.5
The Information Commissioner recommends that institutions’ decision to refuse to process an access request be subject
to appeal to the Information Commissioner.
Recommendation 2.6
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.
Recommendation 2.7
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.
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Recommendation 2.8
The Information Commissioner recommends eliminating all fees related to access requests.
Chapter 3: Timeliness
Recommendation 3.1
The Information Commissioner recommends that extensions be limited to the extent strictly necessary, to a maximum
of 60 days, and calculated with sufficient rigour, logic and support to meet a reasonableness review.
Recommendation 3.2
The Information Commissioner recommends that extensions longer than 60 days be available with the permission of the
Information Commissioner where reasonable or justified in the circumstances and where the requested extension is
calculated with sufficient rigour, logic and support to meet a reasonableness review.
Recommendation 3.3
The Information Commissioner recommends allowing institutions, with the Commissioner’s permission, to take an
extension when they receive multiple requests from one requester within a period of 30 days, and when processing these
requests would unreasonably interfere with the operations of the institution.
Recommendation 3.4
The Information Commissioner recommends the Act make explicit that extensions for consultations (as per section 9(1)(b)
may only be taken to consult other government institutions or affected parties, other than third parties who already have
consultation rights under section 9(1)(c), and only where it is necessary to process the request.
Recommendation 3.5
The Information Commissioner recommends that, in cases where a consulted party fails to respond to a consultation
request, the consulting institution must respond to the request within the time limits in the Act.
Recommendation 3.6
The Information Commissioner recommends that a third party is deemed to consent to disclosing its information when
it fails to respond within appropriate timelines to a notice that an institution intends to disclose its information.
Recommendation 3.7
The Information Commissioner recommends allowing an extension when the requested information is to be made
available to the public, rather than claiming an exemption.
Recommendation 3.8
The Information Commissioner recommends that if an extension is taken because the information is to be made available
to the public, the institution should be required to disclose the information if it is not published by the time the extension
expires.
Recommendation 3.9
The Information Commissioner recommends repealing the exemption for information to be published (section 26).
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Recommendation 3.10
The Information Commissioner recommends that extension notices should contain the following information:
the section being relied on for the extension and the reasons why that section is applicable;
the length of the extension (regardless of what section the extension was taken under);
the date upon which the institution will be in deemed refusal if it fails to respond;
a statement that the requester has the right to file a complaint to the Information Commissioner about the
extension within 60 days following receipt of the extension notice; and
a statement that the requester has the right to file a complaint to the Information Commissioner within 60 days of
the date of deemed refusal if the institution does not respond to the request by the date of the expiry of the
extension.
Chapter 4: Maximizing disclosure
Recommendation 4.1
The Information Commissioner recommends that the Act include a general public interest override, applicable to all
exemptions, with a requirement to consider the following, non-exhaustive list of factors:
open government objectives;
environmental, health or public safety implications; and
whether the information reveals human rights abuses or would safeguard the right to life, liberty or security of
the person.
Recommendation 4.2
The Information Commissioner recommends that all exclusions from the Act should be repealed and replaced with
exemptions where necessary.
Recommendation 4.3
The Information Commissioner recommends requiring institutions to seek consent to disclose confidential information
from the provincial, municipal, regional or Aboriginal government to whom the confidential information at issue belongs.
Recommendation 4.4
The Information Commissioner recommends requiring institutions to seek consent to disclose confidential information
of the foreign government or international organization of states to which the confidential information at issue belongs,
when it is reasonable to do so.
Recommendation 4.5
The Information Commissioner recommends that, where consultation has been undertaken, consent be deemed to have
been given if the consulted government does not respond to a request for consent within 60 days.
Recommendation 4.6
The Information Commissioner recommends requiring institutions to disclose information when the originating
government consents to disclosure, or where the originating government makes the information publicly available.
Recommendation 4.7
The Information Commissioner recommends replacing international and federal-provincial “affairs” with international
and federal-provincial “negotiations” and “relations.”
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Recommendation 4.8
The Information Commissioner recommends combining the intergovernmental relations exemptions currently found in
sections 14 and 15 into a single exemption.
Recommendation 4.9
The Information Commissioner recommends a statutory obligation to declassify information on a routine basis.
Recommendation 4.10
The Information Commissioner recommends repealing the exemption for information certified by the Attorney General
(section 69.1).
Recommendation 4.11
The Information Commissioner recommends repealing the exemptions for information obtained or prepared for
specified investigative bodies (section 16(1)(a)), information relating to various components of investigations,
investigative techniques or plans for specific lawful investigations (section 16(1)(b)) and confidentiality agreements
applicable to the RCMP while performing policing services for a province or municipality (section 16(3)).
Recommendation 4.12
The Information Commissioner recommends amending the exemption for personal information to allow disclosure of
personal information in circumstances in which there would be no unjustified invasion of privacy.
Recommendation 4.13
The Information Commissioner recommends that the definition of personal information should exclude workplace
contact information of non-government employees.
Recommendation 4.14
The Information Commissioner recommends including a provision in the Act that allows institutions to disclose personal
information to the spouses or relatives of deceased individuals on compassionate grounds, as long as the disclosure is
not an unreasonable invasion of the deceased’s privacy.
Recommendation 4.15
The Information Commissioner recommends requiring institutions to seek the consent of the individual to whom the
personal information relates, wherever it is reasonable to do so.
Recommendation 4.16
The Information Commissioner recommends requiring institutions to disclose personal information where the individual
to whom the information relates has consented to its disclosure.
Recommendation 4.17
The Information Commissioner recommends a mandatory exemption to protect third-party trade secrets or scientific,
technical, commercial or financial information, supplied in confidence, when the disclosure could reasonably be expected to:
significantly prejudice the competitive position or interfere significantly with the contractual or other negotiations
of a person, group of persons, or organization;
result in similar information no longer being supplied voluntarily to the institution when it is in the public interest
that this type of information continue to be supplied; or
result in undue loss or gain to any person, group, committee or financial institution or agency.
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Recommendation 4.18
The Information Commissioner recommends requiring institutions to disclose information when the third party
consents to disclosure.
Recommendation 4.19
The Information Commissioner recommends that the limited public interest override in the third party exemption be
repealed in light of the general public interest override recommended at Recommendation 4.1.
Recommendation 4.20
The Information Commissioner recommends that the third party exemptions may not be applied to information about
grants, loans and contributions given by government institutions to third parties.
Recommendation 4.21
The Information Commissioner recommends adding a reasonable expectation of injury test to the exemption for advice
and recommendations.
Recommendation 4.22
The Information Commissioner recommends explicitly removing factual materials, public opinion polls, statistical
surveys, appraisals, economic forecasts, and instructions or guidelines for employees of a public institution from the
scope of the exemption for advice and recommendations.
Recommendation 4.23
The Information Commissioner recommends reducing the time limit of the exemption for advice and recommendations
to five years or once a decision has been made, whichever comes first.
Recommendation 4.24
The Information Commissioner recommends imposing a 12-year time limit from the last administrative action on a file
on the exemption for solicitor-client privilege, but only as the exemption applies to legal advice privilege.
Recommendation 4.25
The Information Commissioner recommends that the solicitor-client exemption may not be applied to aggregate total
amounts of legal fees.
Recommendation 4.26
The Information Commissioner recommends a mandatory exemption for Cabinet confidences when disclosure would
reveal the substance of deliberations of Cabinet.
Recommendation 4.27
The Information Commissioner recommends that the exemption for Cabinet confidences should not apply:
to purely factual or background information;
to analyses of problems and policy options to Cabinet’s consideration;
to information in a record of a decision made by Cabinet or any of its committees on an appeal under an Act;
to information in a record that has been in existence for 15 or more years; and
where consent is obtained to disclose the information.
Recommendation 4.28
The Information Commissioner recommends that investigations of refusals to disclose pursuant to the exemption for
Cabinet confidences be delegated to a limited number of designated officers or employees within her office.
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Recommendation 4.29
The Information Commissioner recommends a comprehensive review, made in consultation with the Information
Commissioner, of all of the provisions listed in Schedule II and any legislation that otherwise limits the right of access.
Any provision covered by the general exemptions in the Act should be repealed.
Recommendation 4.30
The Information Commissioner recommends that new exemptions be added to the Act, in consultation with the
Information Commissioner, where the information would not be protected by a general exemption that already exists in
the Act.
Recommendation 4.31
The Information Commissioner recommends that section 24 and Schedule II be repealed.
Recommendation 4.32
The Information Commissioner recommends a comprehensive review, made in consultation with the Information
Commissioner, of the exemptions and exclusions for institutions brought under the coverage of the Act as a result of the
Federal Accountability Act.
Chapter 5: Strengthening oversight
Recommendation 5.1
The Information Commissioner recommends strengthening oversight of the right of access by adopting an
order-making model.
Recommendation 5.2
The Information Commissioner recommends providing the Information Commissioner with the discretion to
adjudicate appeals.
Recommendation 5.3
The Information Commissioner recommends that the Act provide for the explicit authority to resolve appeals by mediation.
Recommendation 5.4
The Information Commissioner recommends that any order of the Information Commissioner can be certified as an
order of the Federal Court.
Recommendation 5.5
The Information Commissioner recommends that the Act maintain the existing power to initiate investigations related
to information rights.
Recommendation 5.6
The Information Commissioner recommends that the Act provide for the power to audit institutions’ compliance with
the Act.
Recommendation 5.7
The Information Commissioner recommends that the Act maintain the existing investigative powers of the
Information Commissioner.
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Recommendation 5.8
The Information Commissioner recommends that the Act provide for the power to carry out education activities.
Recommendation 5.9
The Information Commissioner recommends that the Act provide for the power to conduct or fund research.
Recommendation 5.10
The Information Commissioner recommends that the government be required to consult with the Information
Commissioner on all proposed legislation that potentially impacts access to information.
Recommendation 5.11
The Information Commissioner recommends that institutions be required to submit access to information impact
assessments to the Information Commissioner, in a manner that is commensurate with the level of risk identified to access
to information rights, before establishing any new or substantially modifying any program or activity involving access to
information rights.
Recommendation 5.12
The Information Commissioner recommends:
that the appointment of the Information Commissioner be approved by more than two-thirds of the House of
Commons and the Senate;
10 years relevant experience in order to be eligible for the position of Information Commissioner; and
a non-renewable, 10-year term for the position of Information Commissioner.
Chapter 6: Open information
Recommendation 6.1
The Information Commissioner recommends that institutions be required to proactively publish information that is
clearly of public interest.
Recommendation 6.2
The Information Commissioner recommends requiring institutions to adopt publication schemes in line with the
Directive on Open Government.
Recommendation 6.3
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.
Recommendation 6.4
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.
Recommendation 6.5
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.
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Chapter 7: Consequences for non-compliance
Recommendation 7.1
The Information Commissioner recommends that obstructing the processing of an access request (or directing, proposing
or causing anyone to do so) be added as an offence under the Act.
Recommendation 7.2
The Information Commissioner recommends that section 67.1 prohibit destroying, mutilating, altering, falsifying or
concealing a record or part thereof or directing, proposing or causing anyone to do those actions.
Recommendation 7.3
The Information Commissioner recommends that failing to document or preserve a decision-making process with intent
to deny the right of access (or directing, proposing or causing anyone to do so) be prohibited under the Act.
Recommendation 7.4
The Information Commissioner recommends that failing to report to Library and Archives Canada and/or notify the
Information Commissioner of the unauthorised destruction or loss of information (or directing, proposing or causing
anyone to do so) be prohibited under the Act.
Recommendation 7.5
The Information Commissioner recommends that no one acting reasonably and in good faith in the performance of their
duties under the Act will be subject to sanction.
Recommendation 7.6
The Information Commissioner recommends increasing the maximum fine for summary convictions under the Act to
$5,000 and to $25,000 for indictable offences.
Recommendation 7.7
The Information Commissioner recommends an administrative monetary regime be added to the Act, which should
include a requirement to publish any administrative monetary penalty imposed.
Recommendation 7.8
The Information Commissioner recommends that adherence to the requirements of the Access to Information Act be
made a term and condition of employment for employees, directors and officers of institutions.
Recommendation 7.9
The Information Commissioner recommends that an investigation under the Act must be suspended when the Information
Commissioner believes on reasonable grounds that a criminal offence on the same subject-matter of the investigation
has occurred.
Recommendation 7.10
The Information Commissioner recommends that the Information Commissioner be permitted to share any information
to the appropriate authority where the Information Commissioner believes a referral is warranted about anyone’s conduct
related to a criminal offence.
Chapter 8: Mandatory period review of the Act
Recommendation 8.1
The Information Commissioner recommends a mandatory parliamentary review of the Act every five years, with a report
tabled in Parliament.
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Annex: Sources
Access to information laws of other jurisdictions
Comparing elements of the Act to aspects of the laws found elsewhere highlighted what has become standard in the
legislation in Commonwealth jurisdictions (such as the Canadian provinces, as well as the United Kingdom, Australia
and New Zealand), in other democracies (such as the United States, Mexico and India) and also in those countries whose
access laws have been singled out as being particularly strong. These include the 10 laws that received the highest scores
on the Global Right to Information Rating (discussed on page 104).1
Model laws and guides
Model laws and guides on access to information reflect the highest standards and best practices for access to information
legislation. They also provide a framework for enacting or amending legislation. The following were particularly considered:
Model Inter-American Law on Access to Public Information: Drafted by the Organization of American States
(of which Canada is a member), in consultation with high-level public officials, experts, academics, and private
sector and civil society representatives, this model law provides for the broadest possible right of access to public
information among member countries. The law received 142 out of a possible 150 points on the Global Right to
Information Rating—the highest score to date.2
Open Government Guide: The Transparency and Accountability Initiative, with the support of the Open
Government Partnership (OGP), developed this guide to help governments develop the action plans required as
part of their membership in the OGP. The guide includes a chapter on the right to information.3
The Global Principles on National Security and the Right to Information (Tshwane Principles): Published
in 2013, these principles are the most current guidelines on how to balance access to information with other
interests. They are intended for those engaged in drafting, revising, or implementing laws or provisions relating to
the state’s authority to withhold information on national security grounds. However, the general principles are
relevant for all aspects of an access law. The principles are based on international and national law, standards, good
practices and expert opinions. They were drafted by representatives from 22 organizations and academic centres,
in consultation with more than 500 experts from more than 70 countries.4
A Model Freedom of Information Law: This model law, developed by the civil society group named Article 19
sets out standards for national and international freedom of information legislation, based on international and
regional laws and norms, evolving state practice (as reflected in national laws and the judgments of national courts)
and the general principles of law recognized by the community of nations. The United Nations and the Organization
of American States have both endorsed this model law.5
1 These are the laws of Serbia, India, Slovenia, Liberia, El Salvador, Sierra Leone, Mexico, Antigua, Azerbaijan and Ukraine.
2 Organization of American States. “Model Inter-American Law on Access to Public Information and its Implementation Guidelines.” 2012.
.
3 Open Government Guide. “Welcome to the Open Gov Guide.” 2013. . The chapter on right to information
can be found at .
4 Open Society Foundations, “The Global Principles on National Security and the Right to Information (Tshwane Principles).” 2013.
.
5 Article 19. “A Model Freedom of Information Law.” 2006. . United Nations, “Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion
and expression, Mr. Abid Hussain.” 2000. .
Organization of American States, “Report of the Inter-American Commission on Human Rights to the OAS.” 1999 (Vol. III).
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High-level Canadian reports on access reform
Canadian parliamentary committees, a special task force and the Department of Justice Canada have all studied the Act
with a view to reform. The following were among the reports whose analysis and recommendations the Commissioner
considered in the drafting of her report:
Open and Shut: Enhancing the Right to Know and the Right to Privacy: Section 75(2) of the Act required a
parliamentary committee to conduct a comprehensive review of the provisions and operations of the Act no later
than July 1, 1986 (three years after the Act came into force). Published in 1987, the report of the House of Commons
Standing Committee on Justice and Solicitor General concluded that the Act had “major shortcomings and
weaknesses.”6
Access to Information: Making it Work for Canadians: In 2002, the Access to Information Review Task Force,
composed of public servants and advised by two advisory committees,7 was mandated with reviewing the Act. The
task force also assessed the appropriateness and adequacy of the legislation, regulations and policies that related
to the Act, and examined how they were being interpreted and applied within the federal government. The resulting
report contained nearly 140 recommendations to improve access to information at the federal level.8
Government and private members’ bills
The Act has not been comprehensively amended since it was enacted, although Parliament has passed a number of
piecemeal amendments.9 In addition, some private members’ bills have unsuccessfully tried to reform or otherwise
change the Act.10 The Commissioner considered this legislative activity when formulating her recommendations.
Policy instruments from the Treasury Board of Canada Secretariat
The President of the Treasury Board is the designated minister responsible for administering the Access to Information
Act. In this capacity, the Treasury Board of Canada Secretariat has published a number of policy instruments, best
practices, manuals, guidelines and tools to support the administration of the Act. It also collects and publishes statistics
each year on individual institutions’ access to information operations. The Commissioner took these and the various
policies and related guidance into consideration when formulating her recommendations.
6 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), p. xiii.
7 One made up of individuals outside of government and the other of senior government officials.
8 Canada, Access to Information Task Force, Access to Information: Making it Work for Canadians (Ottawa: Public Works and Government
Services Canada, 2002).
9 Notable among these amendments are An Act to Amend the Access to Information Act, SC 1999, c 16, which made it an offence to obstruct
the right of access; the Anti-Terrorism Act, SC 2001, c 41, which added section 69.1 to the Access to Information Act, whereby records could be
excluded from the Act upon the issuance of a certificate by the Attorney General; and the Federal Accountability Act, SC 2006, c 9, which codified
the duty to assist requesters and increased the number of institutions covered by the Act, while at the same time adding institution-specific
exemptions and exclusions.
10 For example, Bill C-201, Open Government Act, 1st Sess, 38th Parl; Bill C-556, An Act to Amend the Access to Information Act (Improved
Access), 2nd Sess, 39th Parl, 2008; Bill C-554, An Act to amend the Access to Information Act (Open Government Act), 2nd Sess, 39th Parl,
2008; Bill C-461, an Act to amend the Access to Information Act and the Privacy Act (Disclosure of Information), 2nd Sess, 41st Parl, 2013;
Bill C-567, An Act to Amend the Access to Information Act (Transparency and Duty to Document), 2nd Sess, 41st Parl, 2014; Bill C-613,
An Act to amend the Parliament of Canada Act and the Access to Information Act (transparency), 2nd Sess, 41st Parl, 2014.
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Rating tool
The Global Right to Information Rating was particularly useful in drafting this report. This is a tool for assessing the
overall strength of a country’s access to information law. The rating indicates the strengths and weaknesses of laws in
seven categories: right of access, scope, requesting procedures, exceptions and refusals, appeals, sanctions and
protections, and promotional measures. The tool was launched in 2011 and updated in 2013 by Access Info Europe
(Spain) and the Centre for Law and Democracy (Canada), two civil society organizations with expertise on access
to information.11
Consultations
During a four-month consultation starting in Fall 2012, the Commissioner asked the public for advice and input on a
broad range of issues related to the Act. Her questions encompassed all aspects of the current access to information
regime, such as the coverage of the Act, exemptions and exclusions, and the powers of the Information Commissioner.12
In response, the Commissioner received submissions from 44 groups and individuals—including two petitions totalling
more than 2,300 signatures—representing a broad spectrum of opinions, both from Canada and internationally. This
report draws on those submissions, a summary of which may be found on the Commissioner’s website.13
Commissioner’s reform proposals
This report took into account a number of reform proposals and supporting materials prepared by previous information
commissioners. These include Commissioner John Reid’s 2006 draft bill, entitled the Open Government Act, and 2009
reform proposals by Commissioner Robert Marleau.14
In addition, the commissioners’ annual and special reports to Parliament, as well as investigation findings, advisory
notices and joint resolutions with provincial and territorial commissioners have all informed the recommendations in
this report.15
11 Access Info Europe and Centre for Law and Democracy. “Global Right to Information Rating.” 2013. . The rating
scheme only measures quality of the legal framework and not the implementation of that framework.
12 Office of the Information Commissioner. “How to get involved.” 2012. .
13 Office of the Information Commissioner. “Summary of submissions.” September 2013. .
14 Office of the Information Commissioner. Open Government Act. October 25, 2005. ; Office of the Information Commissioner. “Strengthening the Access to Information Act to Meet
Today’s Imperatives.” March 9, 2009. .
15 See, for example, the 2013 joint resolution of all of Canada’s information and privacy commissioners and ombudspersons: Office of the
Information Commissioner. “Modernizing access and privacy laws for the 21st century.” 2013. .
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