Proposal
Ensure that the Access to Information Act applies appropriately to the Prime Minister's and Ministers' Offices, as well as administrative institutions that support Parliament and the courts.
Background
Currently, the Access to Information Actapplies to about 240 institutions, including government departments and agencies and Crown Corporations and their wholly-owned subsidiaries.
The Prime Minister's Office, Ministers' Offices, and administrative bodies that support Parliament and the courts are not presently covered by the Act.
The Prime Minister's and Minister's Offices
In only certain instances can Canadians use the Act to access information in Ministers' Offices. This was confirmed by the Supreme Court of Canada in Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011. It ruled that information in a Minister's Office can be accessed if: (1) it relates to a departmental matter; and (2) a senior official in the department could obtain a copy of the information upon request.
Open and Accountable Government, a guide to the roles and responsibilities of Ministers, explains that records kept in the offices of Ministers are in four categories: Cabinet documents, institutional records, ministerial records, and personal and political records.
A right of access to information in the Prime Minister's and Ministers' offices would need to be accompanied by appropriate protections. This includes protections for Cabinet documents in line with Section 69 of the Access to Information Act as well as records not related to a Minister's departmental responsibilities, including political matters, parliamentary activities or a Minister's personal life.
Legislation in Alberta, Manitoba and New Brunswick explicitly covers information contained in Minister's offices that relate to departmental matters. The same applies in Australia and New Zealand.
Administrative bodies that support Parliament
The Act does not currently cover administrative 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).
A right of access to information held by administrative bodies that support Parliament would need to protect parliamentary privilege, which is protected by the Constitution. Additional resources would also be required.
Administrative bodies that support the courts
The Access to Information Act also does not currently apply to administrative bodies that support the courts (such as the Office of the Registrar of the Supreme Court of Canada, the Courts Administration Service, the Office of the Federal Commissioner for Judicial Affairs, and the Canadian Judicial Council).
The constitutional principle of judicial independence must be paramount when considering how the Act might apply appropriately to those bodies. One aspect of judicial independence is that courts must control the administrative decisions that bear directly and immediately on the exercise of the judicial function.