Assistant Deputy Ministers Advisory Committee - Highlights of Meetings

May 25, 2001

• Scope ATIA

Jerry Bartram, a consultant conducting research for the Task Force on the scope of the Access to Information Act updated the Committee on his work to propose consistent criteria for determining the coverage of entities under the Act. He reviewed acts, regulations and policies from other jurisdictions and concluded 28 interviews with a sample of entities including some currently under the Act and some that are not.

He observed that Canada has one of the most restricted regimes of the jurisdictions surveyed. Several high-profile crown entities are not covered by the Act, for example: CBC, AECL, Canada Post, Canadian Wheat Board, Entreprise Cape Breton. There seems to be no cogent criteria for the current coverage by the Act. He suggested using the following principles in setting the criteria: high standards of openness and transparency; clarity on what entities are covered by the Act; consistency, so the decision to include is coherent and defensible; balance of the public's right to know and the risk to entity's mandate;, flexibility and sustainability.

Members of the Committee agreed that a principled approach to coverage under the Act was required and to the need for consistent criteria. They were of the view that there should be a rebuttable presumption of coverage of entities of the government.

It was agreed that Courts need protection for their deliberative and judicial processes and that, if they were covered, a carve-out of the coverage would be required for those areas. It was acknowledged that in practice it may be difficult to make the distinction between administrative matters and Court processes. Investigation by the Information Commissioner of complaints against the Courts would also be problematic, since he applies to the Courts for review of decision he does not accept. Given the independence of the judiciary and the fact that the work of the Court is for the most part carried out in public, the Committee was not convinced on the whole that the coverage of Courts would yield a substantially greater level of transparency. They recommended, however, that the Courts adopt a robust voluntary regime.

The potential coverage of Parliament raised a number of issues, especially on parliamentary privilege and on the role of Parliament vis-à-vis the Information Commissioner, but members agreed that it could send a strong signal of openness. There would need to be a substantial carve-out for member's political business.

The Committee discussed coverage of the offices of Parliamentary Officers such as the Auditor General, the Chief Electoral Officer and the Information Commissioner. After discussing if Parliamentary Officers were accountable or part of the accountability oversight structure, the Committee was of the view that, on balance, they should be covered with appropriate carve-outs for their statutory functions.

The Committee discussed the changing role of public versus private activities - functions that used to be exclusively within the mandate of the government, now reside in the private sector. Should the fact that they deliver a public service bring a private entity under the Act? They also recognized the difficulty in setting the right parameters in light of the fact that some of these functions had been performed in the private sector before they were performed by government, that some of the functions performed in the private sector were of the nature of a public service and that Parliament had made a clear decision in setting some of these functions in a private sector structure.

The Committee discussed a number of entities ranging from those with a fully commercial mandate such as NAVCAN and the Canadian Wheat Board to those with a non-commercial mandate such as the Canadian Blood Agency. Members discussed possible structural and functional criteria for coverage of the entities: for example, ownership or control by government, public financing, and exercise of a significant public function. It was recognized that the risk of harm to the fundamental mandate of the entity was to be considered in the criteria but that for the most part carve-outs and exemptions should ensure sufficient protection. The Committee agreed with Dr. Bartram's proposed approach and conclusion that there were good reasons to widen the current scope of the Act.

• Third Party Regime

The Committee discussed the current third party regime under the Act and in other jurisdictions. Members were informed that research was being conducted on this issue. Members noted that there were increasing requests to departments for third party information and a growing interest in transparency in this regard. Consultations with third parties are burdensome on departments. Departments are understandably very cautious in order not to injure the relationship with the third party by wrongly disclosing confidential information

There is a need to balance the public interest in release and the public interest in not creating a chill that could affect the supply of third party information needed by the government including to ensure the health and safety of Canadians.

The time sensitivity of some information was stressed: trade secrets or information concerning negotiations could be sensitive for very long periods of time.

There was also a brief discussion of information provided by aboriginal bands and the impact, if any, of the fiduciary role of the Crown.

On the whole the Committee was of the view that the third party regime under the Act was working well and that improvements were more likely to come from better informing third parties of the obligations of government and the protection afforded to their information under the Act.

• Redress Process - Principles

There was a preliminary discussion of the important traits or attributes for a redress/complaints model. Preliminary advice from Committee members included the possibility of formalizing an "audit" role on systemic issues and a public education role for the Information Commissioner.

There was a discussion comparing the use of the subpoena power by the Information Commissioner to that of the Auditor General, which has never been invoked. Other preliminary advice for consideration in reviewing the redress/complaints model included the importance of due process, natural justice, the right to counsel, facilitation of dispute resolution, strengthening public confidence, cost-effectiveness and the need to maximize the opportunities to create trust and a collaborative relationship between government and the Information Commissioner, and to minimize the adversarial nature of the relationship. There was a call to reintroduce civility and mutual respect between the parties.

Assistant Deputy Ministers Advisory Committee - Highlights of Meetings