Expanding the scope of the Act


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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.


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.

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Submitted by Anonymous on May 02, 2016 - 11:25 PM

As Toby Mendel of the Centre for Law and Democracy said as witness to the House of Commons Standing Committee on Access to Information, Privacy and Ethics (ETHI) [1]: "Under international standards, exceptions should conform to a three-part test. The first part of the test is that they should protect legitimate interests. We heard from the Swedish ambassador that they have a list of seven principles in their law that responds to seven categories of interests. We have a lot more exceptions in the Canadian law. A better practice around the world is to have a relatively limited number of types of interests that can be protected. Of course, the specific modalities of that protection might be elaborated in another law. For example, the access to information law recognizes privacy as an interest. Then you have the Privacy Act, which protects that in more detail. "The second metric under international law is that it should apply only where disclosure of the information will cause harm to the interest. [...] It's only where harm would be caused by the disclosure of the information that it could be withheld or its disclosure refused. Many of the exceptions in the Canadian act do not correspond to that value. There's no harm required. Cabinet documents are covered, period—no harm, no interest even. If a third party deems information confidential, it is confidential, even though no harm to any legitimate interest would be caused by disclosure of that information. It's kind of a third-party veto. There's a whole list of exceptions in the Canadian act. "Finally, under international standards and better practice, there is a public interest override. Where the overall public interest would be served by disclosure—keeping in mind that the right of access is in most case recognized in Canada as a human right, as part of the right to freedom of expression—the public interest should override the secrecy interest. I may have a minor privacy interest, but information discloses evidence of corruption. The information should still be disclosed. "In many other pieces of legislation—the Swedish act, the Indian Act, the South African act, the Mexican act—their exceptions correspond to those three tests. Ours do not. I think that if were to apply those three principles, we would come up with a very different set of exceptions under our law. I think this would be more logical and easier for civil servants to apply, and less abusive grounds to refuse to provide information for no good reason. I think there's a lot to be done in the area of exceptions." Instead of categorically excluding an institution (like the Prime Minister’s Office) or a kind information (like Cabinet documents), this three-part test – or exceptions that correspond to it – should be used. Suzanne Legault, Information Commissioner of Canada, provides criteria for including an institution in Recommendation 1.1 of her "Striking the Right Balance for Transparency" report [3]. At the ETHI meeting of April 12, Nathaniel Erskine-Smith reports that, upon request for clarification, the Commissioner "suggested that one model might be where an entity receives $5 million or more from the federal government, or where more than 50% of its funding is from the government, or some combination of the two" [3]. I am in favor of expanding the scope of the Act based on the criteria recommended by Suzanne Legault, and later clarified to ETHI, and in the spirit of the three-part test described by Toby Mendel. 1. https://openparliament.ca/committees/ethics/42-1/7/toby-mendel-2/ 2. http://www.oic-ci.gc.ca/eng/rapport-de-modernisation-modernization-report_3.aspx 3. https://openparliament.ca/committees/ethics/42-1/7/nathaniel-erskine-smith-1/