A Comprehensive Framework for Access to Information Reform
Government Views on Legislative Reform
To facilitate future discussions prompted by this paper, the Government's views on possible legislative reforms have been organized under a number of themes: expanding coverage under the Act , modernizing exclusions and exemptions, updating processes, and administrative reform. These themes represent the major areas of the Act in need of modernization.
1. Expanding Coverage under the Act
A number of advocates for reform maintain that the Act should automatically apply to all organizations delivering government programs and services, including all Crown corporations. The Task Force recommended instead that a comprehensive review of such organizations be undertaken first to determine whether they meet certain criteria for coverage. The Government could then, by order-in-council, add any organization meeting the criteria to Schedule I of the Act.
The Task Force also suggested that there may be a need for additional exclusions or exemptions to accommodate the mandates of organizations that otherwise meet the criteria (e.g., to prevent the disclosure of the Canadian Broadcasting Corporation's program materials to its competitors or of a journalist's confidential information).
In addressing the question of expanded coverage under the Act, the Government has focused on five primary areas: Crown corporations; federal interests outside the Government of Canada; Parliament and Officers of Parliament; Agents of Parliament; and Universal Access. Some of these areas lend themselves to straightforward solutions, while others require further study and nuance.
Currently, 28 parent Crown Corporations are subject to the Act, while 18 other parent Crown corporations are not. The Task Force reported that it could not identify an obvious rationale or any apparent criteria that were used in determining which of these organizations should be subject to the Act.
In keeping with the Task Force recommendation, the Government initiated in February 2004 a review of Crown Corporations Governance and considered whether the 18 parent Crown corporations under review should be made subject to the Act . On February 17, 2005, the President of Treasury Board released a report of this review, entitled "Meeting the Expectations of Canadians: Review of the Governance Framework for Canada's Crown Corporations " (which can be accessed at http://www.tbs-sct.gc.ca/report/rev-exa/gfcc-cgse_e.asp).
The Crown Corporations Governance Report concluded that 17 of the 18 parent Crown corporations reviewed should be made subject to the Access to Information Act in order to provide the public with a way of examining information on how these entities fulfil their mandates and, ultimately, to reinforce their accountability regimes.
In the Report, the Government identified 10 parent Crown corporations that could be covered by the Access to Information Act without requiring further reform. It committed to immediately extending the Act to the Canada Development Investment Corporation, Canadian Race Relations Foundation, Cape Breton Development Corporation, Cape Breton Growth Fund Corporation, Enterprise Cape Breton Corporation, Marine Atlantic Inc. Old Port of Montreal Corporation Inc., Parc Downsview Park Inc., Queens Quay West Land Corporation, and Ridley Terminals Inc. As the current exemptions in the Act are considered sufficient to protect the sensitive commercial information of these 10 parent Crowns, the extension of the Act for these 10 Crown corporations can be achieved by Order in Council without reform to the Act. The process for extending the Act to these 10 parent Crowns is underway.
However, seven of the Crown corporations expressed strong concerns that the exemptions in the current Act were not sufficient to protect their commercial competitive information, third party confidential information and other unique interests. In particular, the Canadian Broadcasting Corporation (CBC) has expressed concerns that its journalistic integrity could be compromised by being made subject to the Act. So, although the Government also committed to extend the Act to cover these seven parent Crown corporations (Atomic Energy of Canada Limited, Canada Post Corporation, Canadian Broadcasting Corporation, Export Development Canada, National Arts Centre Corporation, Public Sector Pension Investment Board, and Via Rail Canada Inc.), further amendments may be required to ensure the Act properly addresses their concerns.
The Government would like to determine how the concerns expressed by the seven Crowns can be appropriately addressed taking into account the need for transparency and accountability. For example, a new provision could be added, similar to s. 18, to permit Atomic Energy of Canada Limited, Canada Post Corporation, Export Development Canada, and Via Rail Canada Inc. to refuse to disclose any record that contains trade secrets or financial, commercial, scientific or technical information and that is confidential and is treated consistently in a confidential manner. The new provision would be narrow in scope such that information related to the administration of the corporation or to programs that are funded solely by appropriations (for example, the mail service to Parliament provided by Canada Post or nuclear facilities operated by Atomic Energy Canada Limited that are subject to regulation by the Canadian Nuclear Safety Commission) would not fall within it. In other words, the provision would be targeted to protecting the core sensitive information that is vital to the competitive position of these corporations without subjecting them to the additional costs of having to prove harm.
Another proposal under consideration is to create new provisions to provide mandatory exemptions to protect third party confidential information obtained by the National Arts Centre Corporation, Public Sector Pension Investment Board, Atomic Energy of Canada Limited, and Export Development Corporation. Each provision would be tailored to meet the specific and unique sensitivities of each corporation. A public interest override provision would also be included, similar to subsection 20(6), relating to the records of Atomic Energy of Canada Limited.
The Government is sensitive to the concerns raised by the CBC. Information from journalistic sources and material related to program content are recognized as critical information that requires a high degree of protection. The degree to which the existing exemptions of the Act could protect such information is not clear. The Government is receptive to an exclusion from the Act of records that contain information relating to the journalistic integrity and program or artistic material of CBC. This is consistent with the treatment of government broadcasting corporations in other countries, such as the United Kingdom and Australia. This proposed amendment would also be consistent with the exclusion contained in Subsection 4(2) of the Personal Information Protection and Electronic Documents Act, which currently applies to the CBC.
For those Crown corporations not already subject to the Privacy Act , the extension of the Access to Information Act to those Crown corporations will require extension of the Privacy Act to them as well. The Order in Council granted under the Personal Information Protection and Electronic Documents Act (PIPEDA) to make three of the parent Crown corporations subject to PIPEDA will have to be revoked. The Library and Archives Act will also apply to those Crowns not already subject to the Privacy Act.
Finally, it should be noted that the Government has not recommended inclusion at this time of the 18th parent Crown corporation under review, the Canada Pension Plan Investment Board. Given the federal/provincial nature of the Board, the provinces will be consulted on the Board's inclusion as part of the regular triennial review process.
The Government welcomes the views of the Committee on the proposals under consideration for specific exemptions for the six Crown corporations and the above-described exclusion for the CBC.
Following the Crown Corporations Governance Review, the Government is also prepared to review federal interests outside of the Government of Canada, such as wholly-owned subsidiaries of Crown corporations, collaborative and funding arrangements with organizations not controlled by the Government, and other corporate interests of the federal government (such as shared governance corporations and joint or mixed enterprises), to determine whether they should be covered by the Act. At this stage, the challenge for the Government is to decide on appropriate criteria for this review.
The Task Force recommended criteria to be added to the Act for determining what organizations should be covered. These criteria are based on government ownership and control of an organization, or the fact that public functions relating to health and safety, the environment, or economic security are carried out by the organization. The criteria include an exception where the mandate or structure of a particular organization is incompatible with coverage under the Act. For example, it may not be appropriate for a federal-provincial initiative, or a federal-private sector arrangement, to be subject to the federal access to information legislation.
With respect to the choice of criteria, the Government notes that Bill C-201, introduced by Mr. Pat Martin, M.P., NDP, proposed to expand definition of "government institution" to have the Act apply to other entities, such as subsidiaries of Crown corporations and to organizations that receive more than two-thirds of their funding from federal government appropriations. The amount of government financing provided to organizations could fluctuate from year to year, and, therefore, status of coverage under the Act would also fluctuate.
The Government considers that the criteria to guide this review should be related to stable characteristics of the organization, such as function or controlling interest by the Government, and possibly not to criteria that relate to fluctuating characteristics, such as the level of federal funding.
Currently, the public is made aware of government institutions that are subject to the Act through Schedule I to the Act, where government institutions are listed. If criteria for coverage are chosen that result in fluctuations in status of coverage, a new mechanism may need to be developed to add or delete names in a timely fashion.
The Government seeks the input of the Committee on the appropriate criteria for determining which federal interests outside of the Government of Canada should be covered by the Act, and whether the Task Force criteria should be further refined to assist the Government in its review.
It is possible that the proposal in Bill C-201 was partly to improve the accountability of the government institutions that fund such organizations and that perhaps a more targeted solution than extending the Act to the recipient organizations may be found to address this concern.
The Government is also considering the addition of a provision to the Act requiring it to report to Parliament on the outcome of this initial review, as well as on determinations made each year about whether or not to include any newly-created organizations.
The Government invites the Committee to consider whether a more effective approach would be for the Government to improve the reporting and accountability activities of the funding government institutions, instead of extending the Act to recipient organizations.
The Task Force recommended that coverage under the Act be expanded to include the House of Commons, the Senate and the Library of Parliament. It added, however, that the Act should exclude information protected by parliamentary privilege, political parties' records, and the personal, political and constituency records of individual Senators and Members of Parliament. Since it would be inappropriate for the courts to review a parliamentary decision not to disclose information, the Task Force also recommended that Parliament consider alternative redress processes.
The Government notes that Bill C-462 and Bill C-201 proposed the amendment of the Parliament of Canada Act to provide a right of access to information in records under the control of the Senate, the House of Commons and the Library of Parliament respecting the financial administration of those institutions. The intent of the Private Members' Bills was to include Members of the Senate and the House of Commons.
The Government acknowledges the interest expressed by Parliamentarians in these proposals and invites the Committee's views on whether and how parliamentary institutions and Members, as well as Officers of Parliament, such as the Ethics Commissioner, Speaker and Clerk of the Houses, should be subject to the Act (and Privacy Act), and what special protections they would need if they were covered, as well as on possible redress mechanisms.
The Government is considering extending the Act to the Offices of the following Agents of Parliament: the Information Commissioner, the Privacy Commissioner, the Commissioner of Official Languages, the Chief Electoral Officer (CEO), and the Auditor General. It should be noted that the Privacy Act already applies to the Office of the Auditor General, the Office of the Chief Electoral Officer and the Office of the Commissioner of Official Languages. As a result, those offices have operated under a statutory regime involving some of the same exemptions and exclusions as the Access to Information Act, as well as an identical complaint investigation process.
In 1986, the Standing Committee on Justice and Solicitor General reviewed the Access to Information Act pursuant to Subsection 75(2) of the Act and in its report, "Open and Shut: Enhancing the Right to Know and the Right of Privacy", the Committee recommended that all Agents of Parliament be covered, including the CEO. The Task Force recommended that the Information and Privacy Commissioners, the Commissioner of Official Languages, and the Auditor General be covered by the Act, except for records relating to their audit or investigation processes. However, the Task Force suggested that a separate disclosure regime be established for the Office of the Chief Electoral Officer under the Canada Elections Act which already contains disclosure provisions. The Task Force also noted that, unlike other Agents of Parliament, the Chief Electoral Officer does not oversee government operations. Finally, the Government notes that Bills C-462 and C-201 proposed to cover the five Agents of Parliament.
Government officials have consulted with the offices of the five Agents of Parliament to discuss various approaches for coverage and specific needs for protection of records. The proposed application of the Act to these Agents raises a number of complex issues that would benefit from study by the Committee before any policy decisions are made. In particular, the specific nature of the information or records received or generated by these Agents should be considered in order to assess whether the Act would provide sufficient protection if applied, and more basically, whether, on balance, extension of the Act would be beneficial.
The Government has identified four possible approaches deserving of further study. First, the Act could apply to all activities of the Agents, but exemptions could be developed to protect from disclosure records pertaining to their investigative or audit activities and their policy advisory activities.
A second approach would be to cover all activities but exclude from the application of the Act records pertaining to the Agents' investigative or audit activities, to avoid potential conflicts of interpretation between the Act and the Agents' enabling statutes.
A third approach could be to extend the Act to apply only to records detailing the provision of goods and services or the travel and hospitality expenditures, allowances and benefits reimbursed to the Offices of the Privacy Commissioner, Information Commissioner, Auditor General, the Commissioner of Official Languages and the Chief Electoral Officer and their senior staff in the administration of their mandate.
A fourth approach would be to simply continue to have the Agents routinely disclose their administrative records in full. Currently, the five Agents voluntarily conform to the proactive disclosure policies issued by the Government in 2003 and 2004 with respect to travel and hospitality, contracts over $10,000 and reclassification. Although these institutions would continue to protect their investigatory and audit records, key records concerning the staffing and management of their support services would be open to public scrutiny.
The provisions of the Access to Information Act and Privacy Act could be further amended by adding an additional complaint mechanism and oversight provisions for the complaints and investigations involving the Offices of the Information Commissioner and Privacy Commissioner. As an example of one possible scheme, a retired Federal Court judge could review complaints under Section 12 of the Privacy Act with respect to requests for personal information made to the Office of the Privacy Commissioner (OPC) by the OPC's employees and officers to avoid conflicts of interest. Similarly, a retired Federal Court judge could review complaints made in connection to requests made under the Access to Information Act to access records under the control of the Office of the Information Commissioner (OIC) to avoid conflicts of interest. All other complaints arising under the Access to Information Act and Privacy Act would be handled by the Information Commissioner and Privacy Commissioner respectively, as usual.
An alternative oversight scheme under consideration would involve the delegation of the duties of investigation to a person independent of the parties. Such a scheme is currently in place for investigations of the Office of Official Languages under the Official Languages Act.
The Government invites the views of the Committee on whether some or all Agents of Parliament should be made subject to the Act and, if so, how this should be accomplished.
The Access to Information Act currently provides a right of access to records under the control of a government institution to: Canadian citizens, permanent residents within the meaning of the Immigration Refugee Protection Act, and individuals and corporations present in Canada.
The Task Force recommended that the Act be amended to provide that any person has a right of access, as is the case in many other jurisdictions. The Task Force added the caveat that this should only be done following discussions with those departments most likely to be affected about the impact on costs and how to manage any increase in requests that may result.
The departments that are most likely to receive requests from persons located in another country (e.g., Citizenship and Immigration Canada, Foreign Affairs Canada and Department of International Trade) have considered the possible impact of creating a universal right of access, and whether such a change could be implemented in a way that minimizes risks to existing programs. For example, extending the right of access to all persons may only be practical if the Act is amended to broaden the grounds for extending the time limit for processing requests. This would accommodate the situation where both the requester and the records subject to the request are located abroad, the expertise to review the records is situated in Canada, and it will take more than 30 days simply to deal with the logistics of transferring the records back and forth.
The Government is of the view that no amendment to the Act is required to create a universal right of access. The Act already contains a provision authorizing the Governor-in-Council to extend the right of access by order, subject to any conditions it deems appropriate. Before any decision is taken by the Government to extend the right of access, the Government needs to assess the cost and ensure that any proposed extension would not threaten the delivery of existing programs.
The Government seeks the opinion of the Committee on whether and under what circumstances it would be appropriate for the Government to consider broadening the right of access.
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