COMPENDIUM OF RECOMMENDATIONS, PROPOSALS AND MEASURES FROM PREVIOUSLY PUBLISHED DOCUMENTS RELATING TO ACCESS INFORMATION

1. Government information should be generated, preserved and administered as a national resource.
2. Government should be obliged to help the public gain access to our national resource.
3. Government information should be readily accessible to all without unreasonable barriers of cost, time, format or rules of secrecy.

The Purpose set out in sect. 2(1) be revised to emphasize that the purpose of the Act is to provide access to government information "because it is the Government of Canada's duty to release information that will assist the public in assessing the Government's management of the country and in monitoring the Government's compliance with the Canadian Charter of Rights and Freedoms".

A subsection be added to sect. 2 specifying that the right of access is to be provided in accordance with specified principles. Two of the principles repeat wording in the current Purpose clause, that is, "necessary exceptions to the right of access should be limited and specific" and "decisions on the disclosure of government information should be reviewed independently of government". A third principle expands on existing wording as indicated: "the information should be available to the public without unreasonable barriers with respect to cost, time or rules of secrecy. The fourth and final principle proposed is new: "the information should be available in the format most useful to the requester whenever the format exists or can be created with a reasonable amount of effort and at reasonable cost".

... An amendment would ... be required to extend the right
of access under the ATIA to unincorporated entities such as associations.

The government will move on these and other amendments by the fall of 1988…

• The Act include a definition of "access to information coordinator" as:
  [see page 64 for proposed definition]
• Section 73 be amended to read as follows:
  [see page 64 for proposed amendment of section 73]
• A new section, 73.1, be added as follows:
  [see page 64 for draft of the proposed new section 73.1]

Each exemption in the ATIA and in the PA be redrafted to contain an injury test and to be discretionary in nature.

Only the exemption in respect of Cabinet records should be relieved of the statutory onus of demonstrating that significant injury to a stated interest would result from disclosure. Otherwise, the government institution may withhold records or personal information only "if disclosure could reasonably be expected to be significantly injurious" to a stated interest.

The exemption in sect. 13(1)(a) for records containing information obtained in confidence from foreign governments be revised as indicated: "the government of a foreign state or of a subdivision of a foreign state, or any institution of that government".

The authorization in sect. 13(2)(b) to disclose confidential information where the government, organization or institution from which it was obtained makes the information public be revised as indicated: "(b) makes the information or the substance of the information public".

Two new subsections be added to sect. 13. The first would require the head of a government institution to seek consent for disclosure of a record received from a government, organization or institution where that other party has already disclosed the government institution's portion of the correspondence. The second new subsection would allow the disclosure of confidential information provided the correspondence is more than 30 years old "unless the record contains information the disclosure of which could reasonably be expected to threaten the safety or mental or physical health of individuals or be injurious to the constitutional integrity of Canada or the current conduct of international affairs, the defence of Canada or any state allied or associated with Canada or the detection, prevention or suppression of subversive or hostile activities".

C-206
Clause 9

The exemption in sect. 14 for records containing "information the disclosure of which could reasonably be expected to be injurious to federal-provincial affairs" be changed to refer to "federal-provincial relations".

A new section be added as sect. 14.1 providing a discretionary exemption for records containing "information on plans, strategies or tactics relating to the possible secession of a part of Canada, including information held or collected for the purpose of developing those plans, strategies or tactics".

The exemption in sect. 18(a) be renumbered as subsection 18(1) and be amended as follows: "(a) trade secrets or financial, commercial, scientific or technical information that belongs to the Government of Canada or a government institution that has substantial monetary value or is reasonably likely to have substantial monetary value and the disclosure of which could reasonably be expected to be materially injurious to the financial interests of the Government of Canada."
A new subsection be added authorizing disclosure of information covered by subsection (1) "if that disclosure would be in the public interest as it relates to public health, public safety, protection of the environment or the governance of corporations and, if the public interest in disclosure clearly outweighs in importance any financial loss, prejudice to the competitive position of or any other injury referred to in this section to the Government of Canada or to a government institution or its officers or employees".

The authorization in sect. 20(6) to disclose third party financial, commercial or contractual information where the public interest in disclosure is greater than any loss or prejudice to the third party, be extended to include disclosure of trade secrets of a third party.

A subsection be added to sect. 20 authorizing the disclosure of a record "that is a contract to which a government institution is a party or that is a bid for such a contract".

Sect. 21 of the ATIA be amended not only to contain an injury test but also to clarify that it applies solely to policy advice and minutes at the political level of decision making, not factual information used in the routine decision-making process of government.

This exemption should be considered only in relation to records that came into existence less than 10 years prior to a request.

The exemption in sect. 21(1)(a) be restricted as indicated: "advice or recommendations developed by or for a government institution or a minister of the Crown other than public opinion surveys".

The exemption in sect. 21(1)(d) for yet-to-be implemented personnel management and administrative plans be made subject to an injury test by adding: "the disclosure of which could reasonably be expected to prejudice the operation of that government institution".

... An amended section should emulate the laws of Ontario and British Columbia. Each has a long list of types of information not covered by the exemption - factual material, public opinion polls, statistical surveys, economic forecasts, environmental impact statements and reports of internal task forces.

There should also be an attempt to define the term "advice" in the sensible balanced way currently set out in the Treasury Board policy manual.

The exemption should be clearly limited to communications to and from public servants, ministerial staff and ministers. As well, the provision should be made subject to a public interest override. In sum, these changes will better define what information can be protected to preserve government's need to conduct some deliberations in private.

Finally, paragraph 21(1)(d) should be amended. ... rejected plans should be as open to public scrutiny as plans which are brought into effect.

IC 99/00
Page 76

In the spirit of openness, the government's vast storehouse of legal opinions on every conceivable subject should be made available to interested members of the public.

... unless an injury to the conduct of government affairs could reasonably be said to result from disclosure, legal opinions should be disclosed.

That any Cabinet confidences exemption include an exception for background explanation and analyses as follows:

The Cabinet confidences provision does not apply to information in a record not containing policy options or recommendations but which does contain background explanations or analyses of problems submitted, or prepared for submission, to Council or its committees for their consideration in making a decision if:·

• the decision has been made public;·
• the decision has been implemented;
• or· four years or more have passed since the decision was made or considered…

The exclusion in sect. 69 for confidences of the Queen's Privy Council be revised by deleting the list of categories set out in sect. 69(1)(a) and adding a general definition as follows:"'confidences of the Queen's Privy Council for Canada' means any information that would reveal the substance of deliberations between ministers of the Crown in respect of the making of government decisions or the formulation of government policy, including decisions of Council before they are implemented."

The reference to "discussion papers" in sect. 69(3) be deleted.(Note: Clauses 29, 30 and 33 contain related amendments to the Cabinet confidence provisions of the Canada Evidence Act, the Corrections and Conditional Release Act and Privacy Act.)

… It has been proposed that the IC be authorised to make binding decisions on all issues arising under the legislation other than disclosure. The IC has expressed concern to the Committee about this mediation role if the authority is given to make binding orders on subsidiary issues. The government shares this concern. It believes that the public interest would be better served if the role of the commissioner remained unchanged. This is also the case in respect of the suggestion that the offices of the Commissioners cease to share administrative services.

The Committee also recommended that the IC be authorized to conduct audits on the operation of the Act. The audit power to be expressly conferred on the PC relates to matters such as the collection, use and disclosure of personal information as well as its retention and disposal. The IC has no equivalent responsibility in connection with other types of government information. Furthermore, as the IC has pointed out … , the power to investigate complaints makes it unnecessary to have general audit authority as well. In view of this, the government will not amend the ATIA expressly to authorise the IC to conduct audits.

The provision in sect. 30(1)(b) for receipt and investigation of complaints by the Information Commissioner in respect of fees be revised as indicated: "from persons who have been required to pay an amount under section 11 that they consider unreasonable or that they consider should have been waived".

A new ground of complaint be added as sect. 30(1)(d.2):"from persons who have been refused access to a record or part thereof by reason of paragraph 68(a) because it is published material or material available for purchase by the public and they consider the material to be not reasonably priced or not reasonably accessible to the public".

… It is currently recognised by the court that it cannot exercise the discretion to disclose or withhold information vested in the heads of gov't institutions by the discretionary exemptions. If these recommendations were adopted, this would no longer be the case.

These recommendations could have significant implications for the traditional principles of ministerial responsibility and accountability. These implications lead the government to conclude that the current balance between the role of Ministers and the courts is more compatible with these principles. It will not therefore move to implement these recommendations.

A fee waiver policy be enacted so that a consistent standard is applied across the Government of Canada, with consideration to the following criteria:

1. Whether there will be benefit to a population group of some size, which is distinct from the benefit to the applicant;
2. Whether in the judgement of the applicant there is an academic or public policy value of the subject of the research in question;
3. Whether the info. released contributes to public development or understanding of the subject at issue;
4. Whether the info. has already been made public, either in a reading room or by means of publication;
5. Whether the applicant can show that the research is likely to be disseminated to the public and that the applicant has the qualifications and ability to disseminate the info.

The amount of the fees collected appears inconsequential compared to the real cost of processing requests and could be used to argue that fees should not be collected at all; however, there remains an important principle that a fair proportion of the costs incurred be passed along to the user.

The government is in agreement with the Committee's observations that some changes are clearly required to the current fee structure. The government will therefore base the assessment of photocopying fees and other reproduction services on market-rate criteria, as the Committee recommends.The government also agrees to establish criteria for the waiver of fees which can be applied in a fair and consistent manner by all government institutions. These will be set out in the Policy Guide and will take into account matters such as whether the dissemination of the record will benefit public health, safety or the protection of the environment.

The government also recognises the principle that it should not collect fees from applicants where the cost of collection exceeds the revenues derived. This will be reflected in the new fee policy which the government will be developing. This policy will be based on the following:·

• the application fee will be eliminated;
• free service for each request for search and prep time or equivalent services within the zone where it is not economical for the gov't to recover a fee. Otherwise, fees will be assessed;
• there will continue to be no charge for reviewing material for exemptions or for shipping; and
• subject to the above, fees will be assessed on the basis of the real costs of processing requests.

The requirement in sect. 11(1)(a) and (b) to pay application fees and fees for the cost of reproductions be replaced by wording differentiating regular users as follows:

"(a) before any copies are made, such fee as may be prescribed by regulation and calculated in the manner prescribed by regulation reflecting

1. in the case of a request from a person who makes regular requests to the same government institution for similar records, the actual cost of preparation and reproduction plus 10 per cent of that cost, and
2. in any other case, the cost of reproduction; and"

Any decision to waive or refund fees as provided for in sect. 11(6) take into account the following criteria:

(a) whether there would be a benefit, distinct from the benefit to the person who made the request, to a substantial population group,
(b) whether there is an academic value to research that is the basis of the request,
(c) whether the release of the information would meaningfully contribute to current public debate of a national issue,
(d) whether the information has already been made public, either in a reading room or by means of publication, and
(e) whether the person who made the request has demonstrated that the research is likely to be published or widely distributed in another manner to the public."A subsection be added to sect. 11 providing for a deemed waiver of fees "where the head of a government institution fails to give access to a record requested under this Act or a part thereof within the time limits set out in this Act".

The legislation prescribes time limits for certain activities. … The government believes that these time limits are reasonable and should not be changed without evidence that the administration of the legislation would be improved.

The Committee also recommended that a time limit be imposed on the length of investigations conducted by the OIC… . The IC indicated that these time limits might create practical difficulties for complainants who wish to go to court before an investigation is completed. The government believes that these implications outweigh any benefit to be derived from the implementation of this recommendation.

Departments take the following approach to determine "reasonable period of time" under the act:

1. If the extension is claimed under paragraph 9(1)(c), an extension of 60 days will be considered reasonable because the statute sets out specific times for 3rd party consultations which enable the consultations to be completed within 60 days;
2. f the extension is claimed under paragraphs 9(1)(a) or (b), the duration of extensions should be consistent with historical experience in the institution in processing similar requests;
3. If the extension is claimed under paragraph 9(1)(b), the duration of the extension should ordinarily not be more than 30 days (which would be the response period if the consulted institution had received the request directly) and rarely, if ever, should such an extension be more than 60 days, taking into account the fact that third parties have a maximum of 60 days to make their views known. In other words, unless a compelling case can be made, other institutions should not be given longer to express their views concerning a request than are third parties; and
4. In deciding what is a reasonable period of time for an extension, the institution should calculate the time needed to process the request using the available resources in ATIP and in the relevant OPI(s). Extensions are not appropriate, however, to compensate for inadequate resourcing to meet the institution's ordinary ATI workload.

If an institution wishes to make a case for an extension based on a large number of records, it should take into account the following factors:

1. Are the records easily reviewed, despite the number of pages, due to their homogeneity (e.g. a large computer printout where review of one or two pages results in a uniform approach to be applied to all pages);
2. Have the records been reviewed in response to a previous request;
3. Does the number of records exceed the average number of records requested per request in the institution;
4. Does the number of records exceed the number which, historically, the institution has been able to process in 30 days; or
5. Would processing the request in 30 days unreasonably interfere with the operations of the institution?

For the processing of 9(1)(a), the processing of an access request may be considered to unreasonably interfere with the institution's operations if processing the request within 30 days would require:

1. Transferring resources to ATIP from other operational areas;
2. Diverting OPI subject matter expertise to the detriment of the OPI's core functions; or
3. Devoting such a high proportion of ATIP resources to responding that the processing of other requests is negatively affected.

The government will develop a training package for the coordinators and their staff, to provide the detailed and current knowledge they need … . This package will be publicly available. The government will also take steps to enhance the guidance and support given to coordinators to help them deal effectively with … the legislation.

This will include the continuance of the publication of the Dept. of Justice's Communiqué and the TB's Implementation Reports.

As well, the requirements and duties of the coordinator's position will be updated, and emphasis will be placed on the need for direct access to the deputy minister or other senior official to ensure that responsibilities under the legislation are fully discharged… .

The government … will develop a package to train and educate government employees on their responsibilities under the ATIA and the PA by the spring of 1988.

The government … will conduct an ongoing program of workshops for the coordinators to address problems arising under the legislation and will

1. complete the revised statement of requirements and duties for coordinators by the end of the year,
   
2. complete the specialised training package for coordinators by the spring of 1988, and
   
3. transform the Interim Policy Guide into a complete and permanent guide by the winter of 1988.

The government believes that certain actions could be taken to facilitate access to information under the legislation. …it has already done away with the need to use a particular form when making a … request under the ATIA.

It will also explore the establishment of a single data base capable of producing a variety of publications about government organizations, programs, services and information holdings geared to different audiences. … the government will publish an Index of Information Sources as well as the Personal Information Index and, in addition, would make the data base itself accessible to the public. The publications would be reconstituted to help the public make informal requests… as well as formal requests… .

Finally, the government will take steps to make lists of records which have been disclosed under the ATIA available to users to help them to identify the records they want.

… the government will issue its policy on the management of government information holdings by the spring of 1988;

… the government will issue directives by the spring of 1988 concerning:

• the availability of lists of records formerly disclosed under the ATIA
• notification of applicants where a government institution fails to meet the disclosure deadlines set by the legislation to advise them of their right of complaint