Strengthening the Access to Information Act
5. Administrative Reform
The Information Commissioner has made a number of recommendations for changes to the administrative processes under the ATIA, ranging from fees, to time limits, to the right of access, to general procedures. In this section, the various components of administrative reform are discussed.
Under the current legislation, only Canadian citizens and those present in Canada, including corporations, have a right of access to information contained in records held by the government of Canada.
The Information Commissioner has recommended that any person, regardless of citizenship or place of residence, be extended that same right. This universal right of access would also apply to corporations located anywhere in the world.
The proposed amendment would bring the Canadian legislation in line
with other jurisdictions, such as Australia, Ireland, New Zealand,
the United Kingdom and the United States. Further, in today's global
and electronic environment, it is becoming increasingly difficult to
identify the place of origin of requests. The current methods of using
return mail addresses and postmarks to identify whether a requester
"present in Canada" are ineffective in dealing with electronic
Some have speculated that this proposed change to the ATIA will have little impact on the volume of requests received by the Canadian government, while others have said the contrary. It is, however, agreed that government organizations with an international component, such as Citizenship and Immigration Canada or Foreign Affairs and International Trade Canada, would be the most susceptible to a large volume increase of requests as a result of a universal right of access.
Canadian taxpayers fund the access system and would therefore fund the right of foreign requesters. It is difficult to accurately predict costs, as these would be directly tied to the volume of foreign requests received. However, the cost to taxpayers could be as high as $20 to $25 million over five years. To offset costs, it has been suggested that a varying fee structure be implemented with a full cost recovery scheme for foreign requesters - much as universities charge varying tuitions to domestic and foreign students. Institutions, however, may not be able to differentiate whether a domestic requester is asking for information on his or her own behalf, or seeking access to records on behalf of a foreign requester looking to avoid the higher fees. 
Extending the right of access to any person (regardless of geographic location) may result in the need to broaden the grounds for extending the time limits. A new extension provision may be required to accommodate situations where the requested records are located abroad and the expertise to review the records is in Canada. Simply retrieving records from remote locations may take more than 30 days (see section under the heading "Timeframes").
If the proposal for universal access is accepted, the Privacy Act must be similarly amended, since the trend towards universal access is even greater in the area of privacy. Recently, the Canada Border Services Agency was required to sign a treaty with the European Union (EU), effectively guaranteeing EU travellers a right to request access to their personal information held by the Agency.
The Government does not currently make public the nature of records disclosed under the Access to Information Act. However, the Treasury Board requires, through policy, that all government institutions register their requests in an internal coordination system, known as the Coordination of Access to Information Request System (CAIRS). The summaries of requests logged in CAIRS are disclosed on a monthly basis.
The Information Commissioner has recommended that the ATIA be
amended to provide that
"every government institution shall
maintain a public register containing a description of every record
disclosed in response to an access request." The Commissioner
noted that the register would allow members of the public to see a
cumulative list of records that have been released, and allow government
institutions to keep track of such material.
A public register could be a useful tool with benefits for both the public and the government, fostering greater access and transparency. The register could also help government identify whether a record had been disclosed previously and ensure a consistent application of the legislation.
A requirement for translation is an important consideration with respect to the register. In accordance with the Official Languages Act, information the government makes available to the public must be equally available in English and in French. The Government currently responds to some 25,000 requests under the Access to Information Act each year, some covering hundreds or thousands of records, while others have but a few. Assuming that requests average 100 records, translation costs for the register would be in the area of $250 to $270 million over a five-year period. The management of the register could add another $30 to $40 million or more to the cost.
The costs alone may place this recommendation out of reach. Consultations may be required to determine the willingness of taxpayers to support it. It would also be worth consulting those in the translation field to determine whether the industry could support such a significant increase in work volume.
As an alternative to the register suggested by the Information Commissioner, the current model used by National Defence (ND) could be expanded to all institutions covered by the Act. ND currently posts on its web site a summary of most of the requests it has completed. Only the summary of the request is translated (the records themselves are available in the language requested by the original applicant). Translation costs associated with this type of model are estimated to be in the range of $2 to $3 million over five years.
Under the existing legislation, the 30-day response period can be extended where there is (a) a large volume of records involved in the processing of a particular request; (b) when consultations are required which cannot be completed within the time limits (excluding third parties); or (c) consultations are required with third parties (primarily private industry).
a. Proposed new extensions
The Information Commissioner proposes that the ATIA be amended to allow government institutions to extend the time limit for responding to requests in cases where a requester makes a number of requests on the same subject matter within a 30-day period.
This new extension is intended to provide institutions with greater flexibility. It takes into consideration situations where requesters split requests in order to avoid extension of the timeframe and to take advantage of the five free hours of processing time allotted to each request. Under the proposed amendment, government institutions would be able to aggregate requests made by the same applicant on the same topic and received within a 30-day period.
While applicants may still be able to circumvent the intent of this section by asking another person to act of their behalf, the recommended change is viewed as a positive one.
The Information Commissioner has not proposed any changes in the time limits contained in the ATIA to accommodate the burden of retrieval of records from remote locations.
As referenced under the section on "Universal Access", extending the right of access to any person (regardless of geographic location) may result in the need to broaden the grounds for extending the time limits to accommodate situations where the requested records are located abroad, but the expertise to review the records and the authority to decide on disclosure or the application of exemptions rests with the Access to Information Coordinator in Canada.
b. Clarification of existing wording – government consultations
The Access to Information Act provision regarding consultation
"The head of a government institution may
extend the time limit …if consultations are
necessary to comply with the request that cannot reasonably be completed
within the original time limit" [emphasis added].
The Commissioner recommends inserting the words
government institutions" after the word
This wording proposed by the Commissioner is intended to clarify that
extensions cannot be taken for intradepartmental consultations. Such
an amendment would be consistent with Treasury Board guidelines and
interpretation, as well as current practices. The precise wording proposed,
however, would not allow for consultations with other entities such
as individuals or businesses that are not government institutions.
For that reason it is suggested that the wording be adjusted to
consultations outside the government institution are necessary…".
Requests are considered to fall into a deemed refusal status when they have not been answered within the deadlines (either the original 30-day period or within an extended period).
The Information Commissioner recommends that the ATIA be amended to require government institutions to notify the requester and the Commissioner when there has been a deemed refusal. The Commissioner has indicated that he would use the notices to monitor performance and identify which institutions are chronically late.
Many institutions already contact requesters informally when they are late. The proposed change would make such notification mandatory and would also require notification of the Information Commissioner.
Notice to requesters is fully supported, thus allowing applicants to make an informed choice whether to lodge a complaint with the Information Commissioner or not (many choose not to do so for a variety of reasons). Many applicants are content or even prefer to wait to allow institutions the time required to respond to their requests (even though the requests are technically in deemed refusal status).
Taking into consideration the Commissioner's authority to self-initiate complaints and to launch investigations, the proposed amendment could remove the requester's ability to control the processing of his or her request, as well as the government's ability to manage its deemed refusals and effectively interact with the applicant.
This proposed monitoring role would be a new duty for the Commissioner, and one that would overlap with the role of the Treasury Board President. The Commissioner's mandate and that of the designated Minister may therefore also require review.
The fees for access requests are set out in the Regulations. The Access to Information Act Regulations were established 22 years ago when the Act first came into effect. Most commonly used fees are:
- $5.00 application fee (includes five free hours of search and 125
- $10.00 per hour for every hour of search beyond the five free hours
- $0.20 per page reproduction fee for requests above 125 pages
The legislation also states that government institutions may waive the requirement to pay a fee or may refund a fee.
The Information Commissioner recommends amendments to the fee structure. He argues that requesters should not have to pay any fees when a government institution fails to meet a deadline. The Commissioner also sets out four criteria to be taken into account by institutions in the consideration of fee waivers (for reasons other than deemed refusals). The criteria touch primarily on the public's interest in the information to be released.
Further, the Commissioner's proposal to aggregate requests for the purpose of invoking time extensions (see section above on "Timeframes") should be considered for the application of fees.
The Access to Information Act does not, and was never intended to, operate on a cost recovery basis. Fees paid by applicants are very modest, particularly when compared to the costs of administering the ATIA.
Amendments to the Access to Information Act's fee structure would trigger the application of the User Fees Act. In accordance with the User Fees Act, before any changes to the schedule of fees are made, extensive consultations would be required with stakeholders, such as applicants, provincial counterparts, foreign states, etc. The change would also trigger the introduction of a sliding scale for performance. Where a government institution's performance in a particular fiscal year did not meet the standards (namely time delays) by a percentage greater than 10 per cent, the user fee would be reduced by a percentage equivalent to the unachieved performance, to a maximum of 50 per cent of the user fee. The reduced user fee would apply for the whole of the following fiscal year. For example, if an institution were late 25 per cent of the time, then it could only charge an application fee of $3.75. The same reduction would apply to search and reproduction fees. Requesters would quickly become confused and frustrated with a fee structure that would vary from institution to institution and from year to year.
Further, making the requirement to waive fees mandatory, as recommended by the Information Commissioner in cases of deemed refusals, could inadvertently penalize taxpayers, as often it is the fees which encourage the focusing of requests to manageable sizes. In addition, requests can be late for a variety of reasons, some of which are outside the control of the institution processing the request. Notwithstanding, many institutions voluntarily waive fees when they are late in responding.
With respect to aggregate requests as explained under the section for "Timeframes", clear direction would be required to ensure that fees would be similarly applied. Time extensions and fees are generally applied in conjunction. In other words, if multiple requests on a similar topic by the same applicant were aggregated as one for the purpose of a time extension, then the applicant would similarly only be required to pay one application fee of $5.00, which would entitle him or her to only five free hours of search and 125 pages at no charge.
Finally, with reference to
"Universal Access", as mentioned
previously, a varying fee structure, with a full cost recovery scheme
for foreign requesters, may be considered. Immigration files would
be particularly susceptible to situations where a domestic immigration
information broker could pay $5.00 to a department, but charge fees
of $1,000.00 or more to immigration applicants. This could redirect
moneys intended to offset the cost to taxpayers of universal access
into the hands of information brokers.
Section 12 of the Access to Information Act gives applicants a right to examine records or to receive a copy thereof. The Access to Information Act Regulations further clarify that the head of the government has the authority to decide whether the requester be given an opportunity to examine the record or be provided with a copy of the record depending on:
- the length of the record(s);
- whether the format lends itself to reproduction;
- whether the reproduction of the requested information is prohibited
by or under another Act of Parliament; and
- whether information would be disclosed where otherwise it would be refused under the ATIA.
The Commissioner recommends changes to the section to give applicants the right to choose the format in which to receive their records, provided the choice is reasonable.
The amendment is intended to cement existing practices. At present, institutions consider the wishes of requesters when deciding whether to give copies (paper or electronic) or allow applicants to view the records. Wherever possible, institutions act in accordance with the preferences of the requesters. Electronic records are becoming increasingly popular with requesters, as the $0.20 per page reproduction fee is not applied.
The regulations would need to be modified to clarify what constitutes a "reasonable choice."
 While a varying fee structure may have some advantages, any change to the current Access to Information fee structure would trigger the application of the User Fees Act (see section on "Fees" further in this document).
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