Strengthening the Access to Information Act
1. Coverage of the Access to Information Act
What institutions should be covered by the Access to Information Act? Answering that question requires an understanding of the reasons why an institution should be covered, the reasons why an institution should not be covered, and whether there are other, more effective alternative mechanisms for achieving the objective pursued by coverage. To date, there has been inconsistency in the types of institutions which have been included on the Schedule of the Act.
The Information Commissioner's proposals under consideration are that:
All departments and ministries of state of the Government of Canada; all bodies or offices funded in whole or in part from Parliamentary appropriations; all bodies or offices wholly- or majority-owned by the Government of Canada; all bodies or offices listed in Schedule I, I.1, II and III of the Financial Administration Act; and all bodies or offices performing functions or providing services in an area of federal jurisdiction that are essential to the public interest as it relates to health, safety or protection of the environment…
[But not] the Supreme Court of Canada, the Federal Court of Canada, the Tax Court of Canada, or any component part of these institutions; or the offices of members of the Senate or the House of Commons.
The Committee is asked to consider the parameters for determining the institutions to be covered by the ATIA.
Why include an institution?
A determination of which institutions should be covered by the ATIA is generally guided by the perceived objective of the ATIA. If the principal purpose of the ATIA is perceived as being to foster public participation in public policy decisions by allowing access to 'unfiltered' information, then the focus of coverage would be those institutions which develop and apply public policy. If the purpose of the ATIA is perceived to be accountability for actions, then the focus of coverage would be those institutions which are considered to be operational. If the purpose of the ATIA is perceived to be accountability for spending money, then the focus would be financial. The broadest approach is to include all institutions considered to be part of, or controlled by, the federal government unless there is a reason not to do so.
Why not include an institution?
It is not as easy as it would at first appear to determine a comprehensive and exhaustive list of federal government institutions. Over the last few years a wide range of institutions have been established with shared governance or with mixed sources of funding. In circumstances where the federal government does not appoint a majority of directors, or does not supply a significant portion of the funding, it may be difficult to argue that the federal Access to Information Act should be applied to that institution.
In cases where entities under provincial jurisdiction receive federal funding, the federal government does not have constitutional jurisdiction to impose the Access to Information Act on those entities. In such instances, an alternative mechanism for ensuring that federal funds are properly spent may be sufficient. This may be achieved through a provision in a funding agreement specifying the information requirements attached to the funding (as is often already the case) or the requirement for acceptance of a regime of proactive disclosure.
For very small institutions it may be that the relatively small amount of information which is needed from the institutions in order to keep them accountable does not justify the cost or the potential administrative burden of processing requests. In such cases alternate mechanisms may also be appropriate.
Some institutions may hold only two types of information: information that would not be disclosed due to its sensitivity or the presumption of harm from its disclosure, and information about the administration of the institution. In those cases, the Government may wish to focus coverage of the ATIA on the information about the administration of the institution. This approach was used with respect to Atomic Energy of Canada Limited in the proposed Federal Accountability Act. This can be done by adding the institution to Schedule I of the ATIA and then by excluding all of the information held by the institution which is not related to the administration of the institution. The same objective might also be reached by stating clearly in Schedule I that the ATIA applies only to the information related to the administration of the institution. Although this method has not been used so far in Canada, it is a method used in some other jurisdictions.
Once a determination is made as to which institutions, or parts of institutions, should be covered by the ATIA, another determination has to be made for each of those institutions whether the existing protections are sufficient and, if not, what new or additional protections would be required. This is why the additional exemptions for the newly added Crown corporations and Agents of Parliament have been introduced in the proposed Federal Accountability Act.
By adding the Agents of Parliament, parent federal Crown corporations and three foundations to the ATIA via the Federal Accountability Act, the government has broadened the coverage of the ATIA. The government is now seeking the advice of the Committee on where to draw the line and why. In another part of the paper you will be asked to consider how/if the ATIA should apply to Parliament itself.
Almost all analysts in this area have used some measures of control and funding as the two basic criteria * then added other means of capturing additional institutions; usually related to the function of the organizations. Similar criteria may be established to determine those institutions that should not be covered by the ATIA. For example, the necessity of avoiding interference with the independence of the judiciary results in a tendency not to cover the courts, although in some jurisdictions their administrative information is covered.
At the same time that consideration is given to including more institutions under the ATIA, there needs to be consideration of any unique characteristics of those institutions and the information they hold. For example, over the years there have been numerous recommendations that the Canadian Broadcasting Corporation be brought under the ATIA, and every recommendation has included a reference to the need to protect information relating to journalistic sources. For every institution added, there is a need to consider whether the current exemption scheme is sufficient or whether additional exemptions or exclusions may be necessary. It is virtually impossible to make such a determination without consulting the institutions themselves, since they know what information they hold and what kind of protection it requires. For that reason the Committee is encouraged to consult the institutions they would like the government to consider covering under the Access to Information Act.
A noticeable situation in the case of the Office of the Information Commissioner being added to the coverage of the ATIA (or the Office of the Privacy Commissioner being added to the coverage of the Privacy Act ), is the need for an alternative mechanism to handle complaints. Since it is unlikely that there would be a high volume of complaints filed against the Office of the Information Commissioner, the complaint resolution would probably not be a full-time function, so the mechanism would have to allow for being dormant for long periods while providing the flexibility to be activated reasonably quickly. The means for making a complaint would have to be perpetually available, and the person or body acting on the complaint would need to have the same authority and obligations as the Information Commissioner has for all other investigations. In some jurisdictions (notably British Columbia and Alberta), a retired judge of the superior court is appointed for this purpose and is activated only as needed. The Government would appreciate the Committee's suggestions on the appropriate design of this alternative oversight mechanism, the appointment process and the qualifications of the selected individual.
An often overlooked factor that any responsible government must also consider when examining the issue of expanding coverage is the probable cost. It goes without saying that the greater the number of institutions covered by the Access to Information Act, the higher the cost. For smaller institutions the cost of processing each request made under the ATIA is a proportionately larger share of their budget. For institutions that deal largely in sensitive information, the cost of processing may also be disproportionate to the amount of information which may be disclosed. These are all factors to consider.
A final point is that institutions which are made subject to the Access to Information Act are also made subject to its companion legislation, the Privacy Act, and that institutions which are subject to either the Access to Information Act or the Privacy Act are automatically covered by the Library and Archives of Canada Act. While in principle the increase in accountability, privacy protection and protection of archival heritage is positive, it has implications for the administration of the institutions, and for the federal government. Making otherwise independent institutions subject to these three pieces of legislation could result in an increase in the federal government's apparent or actual control of the institutions and a fundamental change in their status. Decisions on the governance of institutions and their role in relation to the government must be made in consideration of all relevant factors, not as an unintended consequence of one initiative.
The committee also recommended that the Act cover all administrative tribunals, the Senate, the House of Commons (but excluding the offices of Senators and Members of the House of Commons), the Library of Parliament, and Parliamentary officers; all wholly-owned Crown corporations and their wholly-owned subsidiaries; and where the Government of Canada controls a public institution by power of appointment over the majority of its board. With respect to the Canadian Broadcasting Corporation, the committee recommended that it be subject to the Act, with a specific exemption for program material. The committee did not recommend inclusion of the judiciary.
* In 1987 the Parliamentary Committee studying the Act proposed to use two basic criteria, then added a list of others: It recommended two criteria for defining government institutions:
- exclusively financed out of the Consolidated Revenue Fund; or, for agencies not exclusively financed in this way, but who can raise funds through public borrowing,
- degree of government control.
- Date modified: