Proposals of the Information Commissioner to amend the Access to Information Act

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SUMMARY

This document contains the proposals of the Information Commissioner to amend the Access to Information Act. It adds amending clauses to those proposals. It corrects the punctuation and use of conjunctions at the end of paragraphs and subparagraphs, the numbering of provisions, the highlighting of changes to the Act and the proposed references in the schedule. It also makes the proposed references in the schedule bilingual.

  1. Section 1 of the Access to Information Act is replaced by the following:

    1. This Act may be cited as the Open Government Act.

  2. (1) Subsection 2(1) of the Act is replaced by the following:

    2. (1) The purpose of this Act is to make government institutions fully accountable to the public, and to make the records under the control of those institutions fully accessible to the public, by extending the present laws of Canada to provide a right of access to information in records under the control of those institutions in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government.

    (2) Section 2 of the Act is amended by adding the following after subsection (2):

    (3) Every government institution shall make every reasonable effort to assist persons requesting access and to respond to each request openly, accurately and completely and without unreasonable delay.

  3. The Act is amended by adding the following after section 2:

  4. (1) The definitions "government institution" and "record" in section 3 of the Act are replaced by the following:

    "government institution" means any department or ministry of state of the Government of Canada, including the office of the head thereof, listed in Schedule I or any body or office listed in Schedule I;

    "record" includes any correspondence, memorandum, book, plan, map, drawing, diagram, pictorial or graphic work, photograph, film, microform, sound recording, videotape, machine readable record, electronic communication, and any other documentary material, regardless of physical form or characteristics, and any copy thereof;

    (2) Section 3 of the Act is amended by adding the following in alphabetical order:

    "Open Government Coordinator" means the officer of a government institution designated under section 73 to fulfill the duty set out in section 73.1;

    "trade secret" means any information, including a formula, pattern, compilation, program, device, product, method, technique or process,

  5. (1) Subsections 4(1) and (2) of the Act are replaced by the following:

    4. (1) Subject to this Act, but notwithstanding any other Act of Parliament, any person has a right to and shall, on request, be given access to any record under the control of a government institution.

    (2) Section 4 of the Act is amended by adding the following after subsection (3):

    (4) Subject to this Act, access to a record shall be given in any reasonable format specified by the person making the request.

    (5) The identity of a person making a request under subsection (1) may not be disclosed without the consent of the person unless

  6. Paragraph 5(1)(d) of the Act is replaced by the following:

    (d) the title and address of the Open Government Coordinator for each government institution to whom requests for access to records under this Act should be sent.

  7. Paragraphs 9(1)(a) and (b) of the Act are replaced by the following:

  8. Section 10 of the Act is amended by adding the following after subsection (3):

    (4) Where the head of a government institution is deemed to have refused to give access under subsection (3), a notice thereof shall be given to the person who made the request and to the Information Commissioner.

  9. Subsection 11(6) of the Act is replaced by the following:

    (6) The head of a government institution to which a request for access to a record is made under this Act shall waive the requirement to pay a fee or other amount or a part thereof under this section or shall refund a fee or other amount or a part thereof paid under this section, if the request to which the fee or other amount relates is deemed to have been refused pursuant to subsection 10(3).

    (7) The head of a government institution to which a request for access to a record is made under this Act may waive the requirement to pay a fee or other amount or a part thereof under this section or may refund a fee or other amount or a part thereof paid under this section and shall, in deciding whether or not to waive or refund a fee or other amount, take into account the following factors:

  10. (1) Subsection 12(1) of the Act is replaced by the following:

    12. (1) A person who is given access to a record or a part thereof under this Act may, subject to the regulations, choose to examine the record or part thereof or to receive a copy thereof.

    (2) Paragraph 12(2)(b) of the Act is replaced by the following:

    (b) within a reasonable period of time, if it is in the public interest to cause a translation to be prepared.

    (3) Paragraph 12(3)(b) of the Act is replaced by the following:

    (b) within a reasonable period of time, if the giving of access in an alternative format is necessary to enable the person to exercise the person's right of access under this Act and it is reasonable to cause that record or part thereof to be converted.

  11. Section 13 of the Act is replaced by the following:

    13. (1) Subject to subsection (2), the head of a government institution may refuse to disclose any record requested under this Act if

    (3) The expression "aboriginal government" in subparagraph (1)(a)(v) means

  12. Paragraph 14(b) of the Act is replaced by the following:

    (b) on strategy or tactics adopted or to be adopted by the Government of Canada relating to the conduct of federal-provincial negotiations.

  13. (1) Paragraphs 16(1)(a) and (b) of the Act are repealed.

    (2) Subsections 16(3) and (4) of the Act are replaced by the following:

    (3) An officer or agent of Parliament listed in Schedule II shall refuse to disclose any record requested under this Act that contains information obtained from another government institution in the course of a lawful investigation.

    (3.1) The head of the Canadian Broadcasting Corporation may refuse to disclose any record requested under this Act that contains information the disclosure of which could reasonably be expected to be injurious to the integrity or independence of the institution's newsgathering or programming activities.

    (4) For the purposes of paragraph (1)(c) and subsection (3), "investigation" means an investigation or audit that

  14. Section 17 of the Act is replaced by the following:

    17. The head of a government institution may refuse to disclose any record requested under this Act that contains information the disclosure of which could reasonably be expected to threaten the safety or mental or physical health of individuals, or that could reasonably be expected to increase the risk of extinction of an endangered species or increase the risk of damage to a sensitive ecological or historic site.

  15. (1) Paragraphs 18(a) and (b) of the Act are replaced by the following:

    (2) The portion of paragraph 18(d) of the Act before subparagraph (i) is replaced by the following:

    (d) information the disclosure of which could reasonably be expected to be materially injurious to the financial interests of a government institution or the ability of the Government of Canada to manage the economy of Canada or could reasonably be expected to result in an undue benefit to any person, including, without restricting the generality of the foregoing, any such information relating to

  16. (1) Paragraph 20(1)(b) of the Act is repealed.

    (2) Subsection 20(2) of the Act is replaced by the following:

    (2) The head of a government institution shall not, pursuant to subsection (1), refuse to disclose a record or a part thereof if that record or part contains

    (3) Subsection 20(6) of the Act is repealed.

  17. Section 21 of the Act is replaced by the following:

    21. (1) Subject to subsection (2), the head of a government institution may refuse to disclose any record requested under this Act that came into existence less than five years prior to the request if the record contains

    (2) Subsection (1) does not apply in respect of a record that contains

    (3) For the purpose of this section, "advice" is an opinion, proposal or reasoned analysis offered, implicitly or explicitly, as to action.

  18. Section 23 of the Act is replaced by the following:

    23. The head of a government institution may refuse to disclose any record requested under this Act if

  19. Section 24 of the Act is repealed.

  20. Section 25 of the Act is renumbered as subsection 25(1) and is amended by adding the following:

    (2) Where, under subsection (1), a part of a record is, for the purpose of being disclosed, severed from a record that is otherwise subject to solicitor-client privilege, the remaining part of the record continues to be subject to that privilege.

  21. Section 26 of the Act is replaced by the following:

    26. The head of a government institution may refuse to disclose any record requested under this Act or any part thereof if the head of the institution believes on reasonable grounds that the material in the record or part thereof will be published in any form by a government institution, agent of the Government of Canada or minister of the Crown within sixty days after the request is made or within such further period of time as may be necessary for printing or translating the material for the purpose of printing it.

    26.1 The head of a government institution may, if the Information Commissioner so recommends after the investigation of a complaint under paragraph 30(1)(d.2), disregard an access request that is contrary to the purposes of this Act.

  22. Subsection 27(1) of the Act is amended by adding the word "or" at the end of paragraph (a) and by repealing paragraph (b).

  23. The portion of subsection 29(1) of the Act before paragraph (a) is replaced by the following:

    29. (1) Where, during the course of an investigation by the Information Commissioner, the head of a government institution decides to disclose a record requested under this Act or a part thereof, the head of the institution shall give written notice of the decision to

  24. (1) Subsection 30(1) of the Act is amended by adding the following after paragraph (d.1):

    (d.2) from heads of government institutions who believe that an access request should be disregarded as being contrary to the purposes of this Act;

    (2) Subsection 30(1) of the Act is amended by striking out the word "or" at the end of paragraph (e) and by adding the following after that paragraph:

    (e.1) in respect of the addition of, or failure to add, any department, ministry of state, body or office to Schedule I pursuant to subsection 77(2); or

    (3) Subsection 30(3) of the Act is replaced by the following:

    (3) The Information Commissioner may initiate a complaint into any matter relating to requesting or obtaining access to records under this Act.

    (4) An investigation into a complaint under this section shall be completed, and any report required under section 37 shall be made, within 120 days after the complaint is received or initiated by the Information Commissioner unless the Commissioner

    (5) A complaint made under this section in respect of a request made to the Office of the Information Commissioner or in respect of any other matter concerning that office shall be made to and investigated in accordance with this Act by an independent person authorized under section 59.

  25. Section 31 of the Act is replaced by the following:

    31. (1) A complaint under this Act shall be made to the Information Commissioner in writing unless the Commissioner authorizes otherwise.

    (2) A complaint under this Act that relates to a request for access to a record shall be made within 60 days after the request was answered.

  26. Subsection 35(2) of the Act is replaced by the following:

    (2) In the course of an investigation of a complaint under this Act by the Information Commissioner, a reasonable opportunity to make representations shall be given to

    the third party, if the third party can reasonably be located,

    but, unless authorized by the Information Commissioner, and subject to section 64, no one is entitled as of right to be present during, to have access to or to comment on representations made to the Commissioner by any other person.

  27. (1) Subsections 36(2) and (3) of the Act are replaced by the following:

    (2) Notwithstanding any other Act of Parliament or any privilege under the law of evidence, or solicitor-client privilege, the Information Commissioner may, during the investigation of any complaint under this Act, examine any record to which this Act applies that is under the control of a government institution, and no such record may be withheld from the Commissioner on any grounds.

    (3) Except in a prosecution of a person for an offence under section 131 of the Criminal Code (perjury) in respect of a statement made under this Act, in a prosecution for an offence under section 67 (obstruction) or in a review before the Court under this Act or an appeal therefrom, evidence given by a person in proceedings under this Act and evidence of the existence of the proceedings is inadmissible against that person in a court or in any other proceedings.

    (2) Subsection 36(5) of the Act is replaced by the following:

    (5) Any original document or thing produced pursuant to this section by any person or government institution shall be returned by the Information Commissioner within ten days after a request is made to the Commissioner by that person or government institution, but nothing in this subsection precludes the Commissioner from again requiring its production in accordance with this section or from making and retaining copies of any document or thing.

  28. Subsection 37(2) of the Act is replaced by the following:

    (2) The Information Commissioner shall, after investigating a complaint under this Act, report to any person or third party entitled under subsection 35(2) to make and that made representations to the Commissioner in respect of the complaint the results of the investigation, but where a notice has been requested under paragraph (1)(b) no report shall be made under this subsection until the expiration of the time within which the notice is to be given to the Commissioner.

  29. The Act is amended by adding the following after section 37:

    37.1 Notwithstanding any other Act of Parliament, a person does not commit an offence or other wrongdoing by disclosing, in good faith to the Information Commissioner, information or records relating to a complaint under this Act.

  30. Section 38 of the Act is renumbered as subsection 38(1) and is amended by adding the following:

    (2) If, in the opinion of the Information Commissioner, the head of a government institution failed, without valid reason, to take any action required by this Act, the Information Commissioner shall include the name of the institution and the particulars of the failure in the annual report that relates to the financial year in which the failure occurred.

    (3) Before naming a government institution under subsection (2), the Information Commissioner shall provide the head of the institution with an opportunity to make representations in respect of the failure to take the required action.

  31. Section 41 of the Act is replaced by the following:

    41. (1) Any person who believes that the Governor in Council has failed to make an addition to Schedule I that is required by subsection 77(2), whose access request has been disregarded pursuant to section 26.1, who has been refused access to a record requested under this Act or a part thereof, or who has received a notice under subsection 9(1) or 11(5), may, if a complaint has been made to the Information Commissioner in respect of any such matter, apply to the Court for a review of the matter within 45 days after the results of an investigation of the complaint by the Information Commissioner are reported to the complainant under subsection 37(2).

    (2) If a person has made a complaint to the Information Commissioner in respect of a matter referred to in subsection (1) and has not received a report from the Information Commissioner by the expiration of the time limit for making the report under subsection 30(4), the person may apply to the Court for a review of the matter within 45 days after the day on which the time limit expired.

    (3) A person referred to in subsection (1) or (2) may, either before or after the expiration of the applicable 45 day period, apply to the Court for an extension of that period.

    (4) For the purposes of subsection (1), the words "refused access to a record" include being denied access to a record, or a part thereof, by

  32. (1) Paragraph 42(1)(a) of the Act is replaced by the following:

    (a) apply to the Court, within the time limits prescribed by section 41, for a review of any matter in respect of which an investigation has been carried out by the Information Commissioner under this Act;

    (2) Subsection 42(2) of the Act is replaced by the following:

    (2) Where the Information Commissioner makes an application under paragraph (1)(a), the person who made the complaint that gave rise to the investigation may appear as a party to the review.

  33. Section 46 of the Act is replaced by the following:

    46. Notwithstanding any other Act of Parliament or any privilege under the law of evidence, or solicitor-client privilege, the Court may, in the course of any proceedings before the Court arising from an application under section 41, 42 or 44, examine any record to which this Act applies that is under the control of a government institution, and no such record may be withheld from the Court on any grounds.

  34. (1) Subsections 54(1) and (2) of the Act are replaced by the following:

    54. (1) The Governor in Council shall, by commission under the Great Seal, appoint an Information Commissioner after approval, by a two-thirds majority, of the appointment by resolution of the Senate and House of Commons.

    (2) Subject to this section, the Information Commissioner holds office during good behaviour for a term of seven years, but may be removed by the Governor in Council at any time by resolution, passed by a two-thirds majority, of the Senate and House of Commons.

    (2) Section 54 of the Act is amended by adding the following after subsection (4):

    (5) A person appointed under subsection (4) may not be appointed as Information Commissioner under subsection (1).

  35. Subsection 58(2) of the Act is replaced by the following:

    (2) The Information Commissioner may engage on a temporary basis the services of persons having technical or specialized knowledge of any matter relating to the work of the Commissioner to advise and assist the Commissioner in the performance of the duties and functions of the Commissioner under this or any other Act of Parliament and may fix and pay the remuneration and expenses of those persons.

  36. Subsection 59(2) of the Act is replaced by the following:

    (2) The Information Commissioner may not, nor may an Assistant Information Commissioner, delegate the investigation of any complaint resulting from a refusal by the head of a government institution to disclose a record or a part of a record by reason of paragraph 13(1)(a) or (b) or section 15 except to one of a maximum of

  37. The Act is amended by adding the following after section 60:

    60.1 The Information Commissioner is generally responsible for monitoring the administration of this Act to ensure that its purposes are achieved. Accordingly, the Information Commissioner may

  38. Paragraph 63(1)(a) of the Act is amended by striking out the word "or" at the end of subparagraph (i) and by replacing subparagraph (ii) with the following:

  39. The portion of section 64 of the Act before paragraph (a) is replaced by the following:

    64. In carrying out an investigation under this Act and in any report made to Parliament under section 38 or 39, or in any communication to the public, the Information Commissioner and any person acting on behalf or under the direction of the Information Commissioner shall take every reasonable precaution to avoid the disclosure of, and shall not disclose,

  40. Subsection 67.1(1) of the Act is amended by striking out the word "or" at the end of paragraph (c) and by replacing paragraph (d) with the following:

    (c.1) fail to create a record in accordance with section 2.1; or

    (d) direct, propose, counsel or cause any person in any manner to do anything mentioned in any of paragraphs (a) to (c.1).

  41. Paragraph 68(a) of the Act is replaced by the following:

    (a) published material or material available for purchase by the public if such material is available at a reasonable price and in a format that is reasonably accessible;

  42. Section 69 of the Act is replaced by the following:

    69. (1) The head of a government institution shall refuse to disclose any record requested under this Act that contains confidences of the Queen's Privy Council for Canada.

    (2) In this section,

    "confidences of the Queen's Privy Council for Canada" means information which, if disclosed, would reveal the substance of deliberations of Council or the substance of deliberations between or among ministers;

    "Council" means the Queen's Privy Council for Canada, committees of the Queen's Privy Council for Canada, Cabinet and committees of Cabinet.

    (3) Subsection (1) does not apply to

  43. Paragraph 69.1(2)(a) of the Act is replaced by the following:

    (a) all proceedings under this Act in respect of the information, including an investigation, appeal or judicial review, are discontinued;

  44. Subsection 70(1) of the Act is amended by striking out the word "and" at the end of paragraph (c), by adding the word "and" at the end of paragraph (d) and by adding the following after paragraph (d):

  45. Subsection 71(1) of the Act is replaced by the following:

    71. (1) The head of every government institution shall provide public access, at the locations set out below, to any manuals used by employees of the institution in administering or carrying out programs or activities of the institution that affect the public:

  46. Subsection 72(1) of the Act is replaced by the following:

    72. (1) The designated minister shall prepare for submission to Parliament an annual report on the administration of this Act by government institutions and on the discharge of the obligations set out in subsection 70(1).

  47. Section 73 of the Act is replaced by the following:

    72.1 Where it is not reasonably practicable to give notice to a person in the manner specified by a provision of this Act, notice may be given in a substitute manner if it is reasonable to expect that the contents of the notice will thereby be brought to the attention of that person.

    73. The head of a government institution shall, by order, designate an Open Government Coordinator for that institution to exercise or perform any of the powers, duties or functions of the head of the institution under this Act that are specified in the order and may, by order, delegate to other officers or employees of the institution the powers necessary to assist the Open Government Coordinator.

    73.1 It is the duty of the head, deputy head and Open Government Coordinator of a government institution to ensure, to the extent reasonably possible, that the rights and obligations set out in this Act are respected and discharged by the institution.

  48. Section 75 of the Act is replaced by the following:

    75. (1) The administration of this Act shall be reviewed every five years by such committee of the House of Commons, of the Senate or of both Houses of Parliament as may be designated or established by Parliament for that purpose.

    (2) The committee designated or established by Parliament for the purpose of subsection (1) shall, within one year after each review is undertaken or within such further time as the House of Commons may authorize, submit a report to Parliament thereon, including a statement of any changes the committee would recommend.

  49. (1) Paragraph 77(1)(f) of the Act is repealed.

    (2) Subsection 77(1) of the Act is amended by striking out the word "and" at the end of paragraph (g) and by adding the following after paragraph (h):

    (3) Subsection 77(2) of the Act is replaced by the following:

    (2) Subject to subsection (3), the Governor in Council shall, by order, amend Schedule I so that it includes

    (3) The Governor in Council may not add to Schedule I

  50. Schedule II to the Act is replaced by the Schedule II set out in the schedule to this Act.

Proposals of the Information Commissioner to amend the Access to Information Act — Schedule

SCHEDULE
(Section 50)

SCHEDULE II
(Subsection 16(3))

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