Assistant Deputy Ministers Advisory Committee - Highlights of Meetings

April 6, 2001

INTRODUCTION:

The meeting began with a discussion of how the Committee could most effectively contribute to the work of the Task Force. Members were of the view that their role should be to work with the Task Force on the development of guiding principles or overall approaches to change as opposed to debating the details of a particular change. By way of example, their focus should be on a principled approach to an access fee structure as opposed to the specifics of fee provisions. Members also advised that the Task Force should focus on future-oriented recommendations or changes that will be sustainable for a period of time, and not on short term or quick fix solutions.

Members also suggested that public service reforms such as government on-line and management of electronic records should be carefully considered by the Task Force for opportunities and leverage. Finally, members expressed their hope that revising the Act and its administration will create an access regime that responds to both current and future developments and needs.

Scope - Institutions:
Dr. Jerry Bartram reported his preliminary research findings on 'Scope of the Access to Information Act: Issues and Criteria'. The Task Force has contracted with Dr. Bartram to complete a comprehensive study of the scope of the application of the Act and to develop possible criteria for including institutions under the Act. The study involves a comparison with other jurisdictions, as well as interviews with representatives of a number of institutions such as Crown corporations, other federal government corporate interests, courts, boards, tribunals, Parliament and parliamentary officers.

Committee members recognized that it may be necessary to modernize the Act to reflect changes in government structures and the public service environment since the Act was first designed 17 years ago. New agencies, alternative service delivery, contracting out, delivering government services horizontally and in partnership with the private and volunteer sectors, were cited as examples in this regard. The Committee agreed that a principled approach to coverage is required.

Dr. Bartram referred to the two approaches to determining whether or not an institution should be covered by freedom of information legislation that are discussed by Professor Alasdair Roberts in his paper entitled "Structural Pluralism and the Right to Information". The structural approach is used by most jurisdictions and focuses on whether the institution is owned and/or controlled by government. The functional approach, on the other hand, looks at whether the function performed by the institution is one that previously fell within the domain of government. Dr. Bartram also discussed the possibility of borrowing from both the structural and functional approaches. Members saw this mixed approach as the most promising.

The Committee concluded by acknowledging a need for further discussion after Dr. Bartram has completed his interviews.

Statutory Prohibitions - Section 24:
Section 24 provides that the head of a government institution shall refuse to disclose any record containing information the disclosure of which is restricted by a provision set out in Schedule II (e.g., section 241 of the Income Tax Act). At issue is whether the exemption should be changed in any way. Background was provided on previous proposals and recommendations, as well as on the approaches taken in other jurisdictions, and possible options were discussed.

The Committee concluded that a principled approach should be taken to determining whether the section should be amended or repealed. They discussed whether the underlying principle for section 24 should be to ensure absolute confidentiality in those few situations where even potential disclosure would undermine a particular program (e.g., income tax, census). Without coming to a final conclusion, the Committee was leaning toward the view that there is a need for some statutory prohibitions in a schedule.

However, the Committee agreed that departments and agencies responsible for the statutes listed on Schedule II should have the burden of justifying why it is absolutely necessary that they appear on Schedule II, and why the institution cannot rely on other exemptions in the Act to protect their confidential information.

The Committee was also of the view that it is important to articulate the principles applicable to Schedule II for the sake of clarity, and so that the policy is clearly understood and appreciated as good public policy.

Time Limits for Exemptions/Exclusions:
The discussion was about a general right to public records after a period of years and time limitations on the application of specific exemptions and exclusions. At issue is what time limitations should be specified in the Act. Background was provided on previous proposals and recommendations, as well as the approaches taken in other jurisdictions, and possible options were discussed.

The discussion focused on whether additional time limitations should be added to specific exemptions in the Act. The Committee was of the view that it is important to stress that the release of information is not limited by any time period for application of a discretionary exemption, i.e., records can always be released at an earlier date. They also stressed that since the sensitivity of information declines over time, there should be incentives for records to be disclosed as soon as possible. However, the Committee noted that the continual assessment of the sensitivity of information over time would be a very labour intensive activity.

NEXT STEPS/FOLLOW UP:

• Committee members stressed the importance of ensuring that their individual departments have an opportunity to raise their specific issues with respect to access in their particular line of business since this was not the role of the ADMC. It was agreed that the Task Force would develop a mechanism to ensure that departments have an opportunity to raise their specific concerns;
• Dr. Jerry Bartram will return to the Committee once he has completed his interviews and there will be further discussion of what institutions should be covered by the Act at that time.

The next meeting is scheduled for April 27, 2001.

Assistant Deputy Ministers Advisory Committee - Highlights of Meetings