Revitalizing access to information: Factsheets

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ATI Infographic (PDF Document - 160KB)

 

Order-Making Power for the Information Commissioner

  • How does the new order-making power work?

    The Government committed to empowering the Information Commissioner to order the release of government information.

    This Bill amends the Access to Information Act to give the Information Commissioner the power, following an investigation of a complaint, to order the release of government records.

    The new power also includes the authority to give orders related to fees, access in the official language requested, format of release for accessibility purposes, time extensions, and decisions by government institutions to decline to process requests.

    Orders issued by the Information Commissioner would normally take effect after 30 business days. In cases where a third party or the Privacy Commissioner has a right of review, there would be an additional ten business days before the order takes effect to allow these rights to be exercised.

    A government institution that believes it must challenge an order could seek judicial review by the Federal Court within 30 business days of receiving the order. The new power preserves the careful balance in the Access to Information Act between the public interest in transparency and accountability, and important considerations, such as privacy and national security.

    The order-making power would not apply to the new part of the Act setting out proactive publication measures.

  • How is this different from the current system?

    Currently, if a requester is dissatisfied with the records they receive or the way their request was handled, they may complain to the Information Commissioner.

    The Information Commissioner's office will investigate, and may recommend the release of material. If the government institution does not follow the recommendation, the Information Commissioner or a complainant can challenge the institution's decision in court.

    Providing the Information Commissioner with order-making power would reverse the onus: if the Information Commissioner finds a complaint well-founded, the Information Commissioner could make an order.

    If the Government believes it must challenge the order, it would have 30 business days to apply to the Federal Court for review of the matter that is the subject of the order; the Federal Court would consider the issue anew. The government institution would have the burden of proof to demonstrate that the order should be set aside (authorized to refuse to follow the order).

    Similarly, the complainant could apply to the Federal Court for a review of the matter that is subject of the complaint.

    The Privacy Commissioner and third parties, whose information is implicated in the order, would also be able to seek review of the matter in Federal Court. They would have an additional 10 days after the initial 30-day period in which to file their review.

  • Why doesn't the order take effect immediately?

    This new model provides 30 business days for the Government to weigh all considerations before seeking judicial review of an order of the Information Commissioner. It provides a meaningful remedy for the Government in instances where it believes the Information Commissioner's order has been wrongly issued and allows the Government to ask the Federal Court to review the order when it believes information should be protected.

    This new model maintains Ministerial accountability for the release of government information.

    Similarly, the additional 10-business day delay allows for the Privacy Commissioner and third parties, whose information is implicated in the order, to challenge the order.

  • How would personal information be protected?

    The order-making model includes checks and balances to ensure the Privacy Commissioner has an opportunity to intervene if an order is made for the release of personal information. The Information Commissioner would have discretion to consult the Privacy Commissioner when considering making an order for the release of personal information and would be required to notify the Privacy Commissioner when such an order is made. Government institutions would also have discretion to engage the Privacy Commissioner in the investigation process.

    While government institutions and complainants would have 30 business days to apply for review of an order, the Privacy Commissioner (and third parties) would have 10 additional business days following the expiry of the initial 30 business days to apply to the Federal Court to have their respective interests in the matter reviewed.

    The Privacy Commissioner would also have standing to be added as a party to a Federal Court review started by any other party (a government institution, the complainant, or any third parties).

  • How would confidential commercial information of third parties be protected?

    The order-making model also provides for checks and balances when it comes to the release of third party information or trade secrets.

    Third parties would be given written notice by the Information Commissioner before she or he makes an order for the release of third party information, and would have an opportunity to make submissions. Third parties would also be provided with a copy of the final report with the order and the government institution's response.

    As noted, while government institutions and complainants would have 30 business days to apply for review of an order, third parties (and the Privacy Commissioner) would have 10 additional business days following the expiry of the first 30 business days to apply to the Federal Court.

Improving the Way Access Requests Are Processed

  • How would Government improve the administration of the Access to Information Act?

    The Access to Information Act has not been significantly updated since its implementation in 1983, when government records were predominantly paper-based. This Bill would improve the way government information is provided to Canadians by: 

    • Requiring the proactive publication of information that is of interest to Canadians
    • Improving annual reporting, and
    • Allowing government institutions to work together to process requests more efficiently
    • In addition, through policy changes, the government institutions would provide written explanations when information is not disclosed to requesters.
  • How would government institutions provide written explanations when information is not disclosed?

    Government institutions would provide requesters with a copy of or link to a plain-language guide that would explain in easy-to-understand terms why exempted or excluded information has been withheld.

  • Weren't fees already eliminated? Why does the Bill contain provisions to charge fees?

    The Interim Directive of May 2016 eliminated all fees, except the initial $5 filing fee, consistent with the Government's commitment.

    The Government will continue to charge only the $5 application fee, and is not introducing other charges. The Access to Information Act, however, would continue to provide the Government the legal authority to charge fees. This would provide the flexibility to monitor trends in requests and make adjustments if appropriate in the future.

  • Updating tools available to institutions

    The Treasury Board of Canada Secretariat would also lead efforts to update the electronic processing tools that are used by government institutions to prepare responses to requests for information.

  • How does the Bill improve performance reporting?

    The Bill includes clarifications on the tabling and publication of annual reports to Parliament on the administration of the Act, specifying that all reports would cover the fiscal year, would be tabled in the first 15 days that the House is sitting in the fall, and would be published online within 30 days of tabling.

  • How would institutions share processing services?

    The Bill would allow federal institutions within the same Ministerial portfolio (e.g., Health Canada and the Public Health Agency of Canada) to enter into an agreement to share the work in processing both access to information and personal information requests, through a single team that supports multiple institutions.

Authority to Decline to Act on Requests

  • What is in the new legislation?

    This Bill would give government institutions the authority to decline to act on requests that are overly broad, for which information is already available, when responding would unreasonably interfere with the operations of a government institution, and are vexatious, made in bad faith or are an abuse of the right to make a request for the access of records. Requesters can challenge a decision not to act on a request by making a complaint to the Information Commissioner.

    The Bill would also give the Information Commissioner authority to refuse to investigate a complaint if it is trivial, frivolous, vexatious, or is made in bad faith.

  • How will this improve the delivery of the Access to Information program?

    Currently, there are no limits on the number of requests that an individual can submit or on how broad a request can be. The result is that in some cases requesters, for a variety of reasons, use the right to request government information to achieve goals that may not be consistent with the purpose of the Access to Information Act (ATIA), which is to enhance the accountability and transparency of federal institutions in order to promote an open and democratic society and to enable public debate on the conduct of those institutions.

    There are examples of individuals making hundreds of requests in a year to the same operational area of a government institution, or requesting all emails of a certain government employee for a number of years. These types of duplicative and overbroad requests interfere with an institution’s ability to do its other work. They can also hinder an institution’s ability to respond to requests from other requesters.

    The intention of the new authorities is to help focus limited Government resources on requests and complaints that are consistent with the spirit of the ATIA.

  • What if the request is actually made in good faith?

    A decision by an institution to decline to act on a request would be subject to the Information Commissioner’s proposed order-making power. The Information Commissioner, following the investigation of a complaint, could order the release of government records.

    The new authority would also be supported by policy and guidance, requiring institutions to work with a requester (the “duty to assist”) to focus the request before exercising this authority.

    In addition, policies would also make it clear that many broad requests are legitimate and consistent with the spirit of the Act (for example, requests for historical records in order to substantiate Indigenous claims). Government institutions would continue to respond to such requests and retain the ability to extend the time limit, if necessary, to respond in certain circumstances.

Fees

  • What is in the new legislation?

    Currently, the Access to Information Act allows the Government to set an application fee of up to $25, and to set other types of fees by regulation.

    In May 2016 the Government issued the Interim Directive on the Administration of the Access to Information Act.The Directive waived all access to information fees apart from the $5 filing fee.

    The Bill proposes to retain some of the current provisions of the Access to Information Act, which allow the Government to set an application fee of up to $25, and to set other types of fees by regulation. This would provide flexibility in the Act to continue to monitor trends in requests and make adjustments as appropriate if a future review of the Act determines this is required. Also, as before, the Act will allow the head of an institution to waive fees.

    The Government continues to fulfill its commitment to eliminate all fees other than the $5 filing fee.

  • Why does the new Bill include amendments regarding regulations for fees?

    The specific provisions that allowed the Governor in Council to make regulations regarding fees were based on old technology and are out of date. They, for example, made reference to charging fees to provide microfiche. The amendments introduce language that is more flexible.  The Government has committed not to charge any fees apart from the $5 filing fee, however the authority to prescribe fees by regulation would be retained.

    This would allow a further study of fees in Phase II, the first full review of the updated Act, once the impacts of eliminating fees are better understood.

Proactive Publication Requirements under the Access to Information Act for the Prime Minister's Office, Ministers’ offices, government institutions, Senators, Members of Parliament and administrative institutions that support Parliament and the courts

  • What is in the new legislation?

    The government committed to raise the bar for openness and transparency and is taking steps to become “open by default,” by sharing an ever increasing amount of government data and information with Canadians.

    To accomplish this, a new Part would be added to the Access to Information Act that requires institutions to proactively publish specific information that is known to be of interest to the public, and which provides greater transparency and accountability for the use of public funds. More specifically, the proposed amendments to the Access to Information Act would put into law proactive disclosure practices previously only covered by federal policy, introduce new areas of disclosure, and overall, the Access to Information Act would apply to a wider range of organizations.

  • Who, specifically, do the new proactive publication requirements apply to?

    The new proactive publication requirements would apply to all the institutions currently covered by the Access to Information Act, including departments, agencies, administrative tribunals and boards, Crown corporations, and other institutions such as Port Authorities. The Prime Minister’s Office, Ministers’ offices, Senators and Members of Parliament and administrative institutions that support Parliament and the courts would also be subject to these requirements.

  • What kind of information would be published by Ministers’ offices and government institutions?

    The Government has made progress regarding the proactive disclosure of frequently requested information related to Ministers’ offices and government institutions. Establishing a legal requirement for these practices would create more consistency in the release of this information.

    The Access to Information Act would require that Ministers’ offices, including the Prime Minister’s Office, proactively publish:

    • Mandate letters
    • Briefing packages for new Ministers (within 120 calendar days of appointment)
    • Titles and tracking numbers of briefing notes (monthly)
    • Question Period notes (within 30 calendar days following last sitting day in June and December)
    • Briefing materials for Parliamentary Committee appearances (within 120 calendar days after appearance)
    • Travel and hospitality expenses (monthly)
    • Contracts over $10,000 (quarterly)
    • Annual report of all expenses incurred by a Minister’s office (within 120 days of the end of the fiscal year)

    Similar requirements would exist in the Act for government departments, agencies and bodies listed in Schedule I of the Access to Information Act (as applicable):

    • Travel and hospitality expenses (monthly)
    • Reports tabled in Parliament (within 30 calendar days after tabling)
    • Briefing packages for new deputy heads (within 120 calendar days of appointment)
    • Titles and tracking numbers of briefing notes (monthly)
    • Briefing materials for Parliamentary Committee appearances (within 120 calendar days after appearance)
    • Contracts over $10,000 (quarterly)
    • Grants and contributions over $25,000 (quarterly)
    • Reclassification of positions (quarterly)

    The following requirements would apply to Crown Corporations:

    • Travel and hospitality expenses (monthly)
    • Reports tabled in Parliament (within 30 calendar days after tabling)
  • What kind of information would be published by Senators and Members of Parliament?

    Proactive publication requirements for Senators and Members of Parliament would include:

    • Travel and hospitality expenses (quarterly)
    • Service contracts – all amounts (quarterly)
  • What are the differences between what Members of Parliament and Senators are currently publishing versus what they would be required to publish?

    Pursuant to their internal rules, Senators and Members of Parliament currently publish information on their travel and hospitality expenses. Senators disclose information on all service contracts they award, while Members of Parliament publish the total cost of service contracts they award. 

    The new legislative requirements would enshrine the current practice, and require additional details on the travel expenses and the service contracts awarded by Members of Parliament.

  • Which institutions that support Parliament would be subject to the new proactive publication requirements?

    The following administrative institutions that support Parliament would be subject to the new proactive publication requirements:

    • The Library of Parliament
    • The Parliamentary Budget Officer
    • The Parliamentary Protective Service
    • The Office of the Conflict of Interest and Ethics Commissioner
    • The Office of the Senate Ethics Officer, and
    • The administration of the Senate and the House of Commons.
  • What kind of information would be published by institutions that support Parliament?

    Administrative institutions that support Parliament may at their discretion, proactively disclose additional information, but under the Access to Information Act, they would be required to publish:

    • Travel and hospitality expenses (quarterly)
    • Contracts over $10,000 (quarterly)
  • Are there any circumstances under which information would not be released under the proactive disclosure requirements for MPS, Senators and administrative institutions that support Parliament?‎.

    Parliamentary privilege is a core value of our parliamentary system. It affords Parliament and its individual members a measure of autonomy to perform their legislative work effectively and without interference. To protect the important principle of parliamentary privilege, the bill does not apply to information, the disclosure of which could infringe on parliamentary privilege.

    In addition, the new disclosure obligations do not require the disclosure of information which could raise security concerns. In both cases, the Speakers of the House of Commons or Senate would determine the appropriate application of protections for parliamentary privilege and security concerns.

  • What kind of information would be published by the administrative institutions that support the courts?

    The Office of the Registrar of the Supreme Court of Canada, the Courts Administration Service, and the Office of the Commissioner for Federal Judicial Affairs may at their discretion publish additional information, but under the Access to Information Act they would be required to proactively publish:

    • Travel and hospitality expenses of senior level officials (quarterly)
    • Contracts over $10,000 (quarterly)

    The Office of the Commissioner for Federal Judicial Affairs, would be required to publish the expenses of the judges of the superior courts (other than the Supreme Court of Canada) including:

    • Expenses reimbursed as part of travel, conference, incidental and representational allowances (quarterly).

    The Office of the Registrar of the Supreme Court of Canada would have the obligation to proactively disclose the same information for judges of the Supreme Court of Canada as the Office of the Commissioner for Federal Judicial Affairs would be required to disclose for other judges of the superior courts.

  • Are there any circumstances under which information would not be released under the proactive disclosure requirements for administrative institutions that support the courts??

    The administrative institutions that support the courts have a critical role in maintaining the independence of the judiciary. To ensure that this fundamental constitutional principle is not undermined, the proactive publication requirements in the bill do not require the publication of information if the publication of that information could interfere with judicial independence. In addition, publication is not required if the publication of the information could compromise the security of persons, infrastructure or goods or with respect to information that is subject to solicitor-client privilege. The Registrar, Chief Administrator or the Commissioner for Federal Judicial Affairs would determine the appropriate application of these protections.

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