Factsheets: Revitalizing access to information

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

Bill C-58 would amend the Access to Information Act to give the Information Commissioner the power, following an investigation of a complaint, to make binding orders in relation to access to information requests, including ordering the release of government records.

If passed, the bill would transform the Information Commissioner’s role from ombudsperson to an authority with a legislated ability to order the release of records, as well as make orders concerning time extensions, access in the official language requested, and format of release for accessibility purposes.

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 10 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

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 Commissioner finds a complaint well-founded, he or she could make an order and the government institution would be required to comply with the order, unless it applies to the Federal Court for review.

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 demonstrating that the order should be set aside (that is, that the institution is 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.

Bill C-58 would give the Information Commissioner clear authority to publish reports of findings, including any orders made. This will establish a public body of precedents and make institutions aware of the Information Commissioner’s position on their obligations under the act. It would also help avoid the Commissioner needing to reinvestigate the same issues.

The 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 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.

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).

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.

The Access to Information Act has not been significantly updated since its implementation in 1983, when government records were predominantly paper-based. Bill C-58 would improve the way government information is provided to Canadians by:

• requiring the proactive publication of information that is of interest to Canadians
• 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.

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.

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 application fee. The government continues in its commitment to eliminate all fees, other than the $5 application fee. The authority to prescribe fees by regulation would be retained to allow flexibility if a future review of the act determines that adjustments are required.

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.

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.

The bill would allow federal institutions within the same Ministerial portfolio for example, 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.

To help focus resources on requests that are consistent with the spirit of the Access to Information Act, Bill C-58 would allow institutions to seek the approval of the Information Commissioner to decline to act on a request that is made in bad faith, when the information is already easily available, or when responding would unreasonably interfere with government operations. Before seeking to decline to act on a request, an institution would be required to work with the requester to focus their request, consistent with institutions’ duty to assist requesters.

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.

Currently, there are no limits on the number of requests that an individual can submit, or how broad a request can be. In a small number of cases, requesters may use the right to request government information to achieve goals that might not be consistent with the purpose of the Access to Information Act, 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 period of several years. These types of duplicative and vexatious requests can 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 Access to Information Act.

The Information Commissioner’s prior written approval would be needed before an institution could decline to act on a request. Before seeking the Commissioner’s approval to decline to act on a request, institutions would be required to make every reasonable effort to help requesters, and to work with them to better focus requests, consistent with institutions’ existing duty to assist requesters.

In addition, policies and guidance would make it clear that many broad requests are legitimate and consistent with the spirit of the act. For example, institutions will be required to administer the Access to Information Act in a manner that fully respects the government’s obligation to assist First Nations in furthering their claims. Government institutions would continue to respond to such requests.

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 application fee.

The bill proposes to retain, but modernize the wording, 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 in its commitment to eliminate all fees other than the $5 application fee.

The government has committed not to charge any fees apart from the $5 application fee. However, the authority to prescribe fees by regulation would be retained to allow flexibility if a future review of the act determines that adjustments are required.

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

The bill modernizes the wording of the provisions that allow the Governor in Council to make regulations regarding fees to eliminate outdated wording (for example, the text makes reference to charging fees to provide microfiche).

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, Bill C-58 would add a new part to the Access to Information Act that requires institutions to proactively publish specific information 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, and introduce important new disclosure requirements that would apply the Access to Information Act to a wider range of organizations.

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.

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 (within 30 days of being issued)
• Briefing packages for new ministers (within 120 calendar days of appointment)
• Titles and tracking numbers of briefing notes (within 30 days after the end of the month in which they were received by the minister’s office)
• 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 (within 30 days of the end of the month in which expenses are reimbursed)
• Contracts over $10,000 (within 30 days after the end of the quarter)
• 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 and agencies:

• Travel and hospitality expenses of senior officials (within 30 calendar days after the end of the month in which expenses are reimbursed)
• 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 to deputy heads (within 30 calendar days after the end of month received)
• Briefing materials for Parliamentary Committee appearances (within 120 calendar days after appearance)
• Contracts over $10,000 (within 30 calendar days after the end of the quarter for Q1–3, and within 60 calendar days after the end of Q4)
• Grants and contributions over $25,000 (within 30 days after the end of the quarter in which the agreement is entered into)
• Reclassification of positions (within 30 calendar days after the end of the quarter )

The following requirements would apply to Crown corporations, their wholly‑owned subsidiaries, and other government institutions subject to the ATIA:

• Travel and hospitality expenses of senior officials (within 30 calendar days after the end of the month in which expenses are reimbursed)
• Reports tabled in Parliament (within 30 calendar days after tabling)

Proactive publication requirements for senators and members of Parliament would include:

• Travel and hospitality expenses (within 90 days after the end of the quarter in which any travel expenses incurred are reimbursed)
• Service contracts: all amounts (within 90 days after the end of the quarter in which a contract is entered into)

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 current practices, and require additional details on the travel expenses and the service contracts awarded by members of Parliament.

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
• The administration of the Senate and the House of Commons.

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 (within 60 days after the end of the quarter in which any travel expenses incurred are reimbursed)
• Contracts over $10,000 (within 60 days after the end of the quarter in which a contract is entered into)

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 this important principle, Bill C-58 would not apply to information where disclosure could infringe on parliamentary privilege.

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

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 (within 30 days after the end of the quarter in which any travel expenses incurred are reimbursed)
• Contracts over $10,000 (within 30 days after the end of the quarter in which a contract is entered into)

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 (within 30 days after the end of the quarter in which any expenses incurred are reimbursed)

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 Commissioner for Federal Judicial Affairs would be required to disclose of the superior 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 bill does not apply to information which, if disclosed, could interfere with judicial independence. Other necessary restrictions would also apply, for example 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.

On December 6, 2017, the House of Commons passed Bill C-58 as amended by the Standing Committee on Access to Information, Privacy and Ethics (ETHI). The amendments passed by the House of Commons make several important changes to the Bill.

Yes, but in very limited situations. Institutions would require the Information Commissioner’s prior approval before declining to act on a request. This amendment provides greater assurance to Canadians that legitimate requests would not be declined.

In addition, an amendment to Clause 6 of the bill clarifies that institutions would not be able to decline to act on a request on the sole basis that it did not meet the requirements to provide a specific subject matter, type of record, and period or date of the records sought. This amendment addresses concerns raised by some stakeholders that these requirements could act as a barrier to accessing government records.

The amended bill clarifies that Canadians will be able to request the original versions of records that are proactively released under Part 2 to validate the information that has been published. For example, requesters could make an access to information request for receipts and supporting documentation for travel and hospitality expense information published proactively under the new Part 2 of the Access to Information Act. The Information Commissioner would have oversight of the records released in response to the access to information request.  

An amendment to Clause 17 of Bill C-58 made by the House of Commons would give the Information Commissioner clear authority to publish reports of findings, including any orders made. This would establish a public body of precedents and make institutions aware of the Information Commissioner’s position on their obligations under the act. It would also help avoid the Information Commissioner having to re-investigate the same issues.

The House of Commons amended the proactive publication requirements to ensure that, in the future, mandate letters must be disclosed within 30 days of being issued. Bill C-58, as introduced, did not set a timeframe for the release of mandate letters.

There were also a number of changes to correct or clarify the wording of certain provisions.

The Privacy Act amendment changing the treatment of names and titles of Ministerial staff so that this information could be consistently released has been modified to avoid retroactive application of new rules. This is in line with best practices in legislative drafting. The effect of this amendment is that the release of names and titles of Ministerial staff would apply to records created on or after coming into force of the provision.