Strengthening the Access to Information Act

2. Offices of Ministers, Members of Parliament, the House of Commons, the Senate and the Library of Parliament

Previous Prime Ministers have consistently taken the position that the ATIA does not apply to records held within Ministers' offices. The ATIA was interpreted to treat a Minister's office as being separate and distinct from the government institution or department for which the Minister is responsible. Ms. Inger Hansen, the first Information Commissioner, agreed with this approach in her 1989 annual report, where she stated that the House of Commons and Ministers' offices are not subject to the ATIA. Mr. John Reid, the current Information Commissioner, however, does not agree with his predecessor and has taken the position that some records in a Minister's office are subject to the ATIA. He has proposed, in his explanatory notes that accompany his reform recommendations, that "records held in ministers' offices, relating to departmental matters, will be subject to the reject [sic] of access; the personal and political records of ministers will not".

Considerations:

One option is to adopt the Information Commissioner's proposal to extend coverage of the ATIA to records held in Ministers' departmental offices with the exception of personal and political records of Ministers. One concern with this option is that the Information Commissioner would have access to review the personal and political records of Ministers to determine whether the ATIA would apply.

Another option to promote openness, transparency and accountability is to amend the ATIA to extend its coverage to records held in the offices of all Members of the House of Commons, as well as Ministers' departmental offices, with an exclusion for personal and political records. The Information Commissioner would thus have access to departmental records held in Ministers' offices, but would not have the right to review all records to determine ATIA application. Individual Members and Ministers would certify their personal and political records and these would be excluded from the application of the ATIA.

It is also possible to extend coverage of the ATIA to all Members' offices, but not to Ministers' departmental offices, with an exclusion for personal and political records. The amendment could be drafted to ensure that all records sent to Ministers' departmental offices by the government institution would be required to be maintained under the control of the government institution for the purposes of the ATIA. At the same time, those records sent by the Minister or his or her staff to a government institution would be required under the ATIA to be maintained in the government institution, so that records relating to the operations of the government institution would be under the control of the government institution. Placing this new requirement in the ATIA would meet the underlying purpose of the Information Commissioner's proposal, that is, to give him access to all departmental records.

Full and frank public political debate is essential to a properly functioning political system. At the same time, political parties must be able to discuss and formulate their political views and positions in private. It is possible that providing access to all records in the offices of Members would reduce this full and frank debate. Political parties and political considerations play vital roles in our system of responsible government. Confidentiality is necessary to ensure that this process functions effectively and fairly. The option to exclude personal and political records, therefore, respects the distinction between partisan political records and those records found in government institutions which are departmental, non-political and non-partisan.

Members dedicate much of their time and efforts to their constituents' concerns and issues. In the course of this work, they may receive records containing personal information about their constituents and other Canadians. Members may also keep their own personal records in their offices. Under the proposed amendment, these personal records would be excluded from the ambit of the ATIA, so there would be no review by either the Information Commissioner or the courts of the decisions made by Members to apply exclusions.

Examples of records that may be found in Members' offices could include: letters to Ministers addressing particular issues of concern in their constituency, opinions or research documents, records relating to Members' activities in the House of Commons, speaking notes on particular topics (e.g., for public events), schedules, and documents in relation to Members' expenses. Whether these documents would be covered by the ATIA would be a case by case determination. This may require an access to information coordinator to review the records to determine whether they are personal or political. If the records located are personal or political, they would be excluded from the ATIA.

Extending the ATIA to cover all Members of the House of Commons would ensure that there are not two classes of Members, that is, those who are covered by the ATIA and those who are not. Excluding political records from the ATIA would ensure that all political parties operate on a level playing field in this regard, because the same rules would apply to everyone and everyone would be equally accountable. The ATIA would apply to all relevant records held by Members, apart from the excluded personal and political records.

Another issue that may be addressed by the Committee is whether to extend coverage of the ATIA to the House of Commons, the Senate and the Library of Parliament, in terms of their administration. If the coverage is expanded to include the House of Commons, the Senate and the Library of Parliament, there should also be protection for records protected by parliamentary privilege, political parties' records, as well as personal and political records. However, records in respect of the financial administration of these institutions would be accessible under the ATIA.

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