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Report 13 - The Access to Information Review Task Force
MAINTAINING THE PUBLIC RIGHT OF ACCESS TO INFORMATION WHEN SERVICE DELIVERY
MODELS CHANGE
Published: 2002
Table of Contents
The issue
Alternative Service Delivery policy
Discussion and options
Conclusions
Annex A – Possible Annex
for the ASD Policy
Annex B – Possible text for
the Policy Guide
The issue
In its ongoing effort to improve program and service delivery to Canadians, the Government of Canada continues to create a large number of Alternative Service Delivery (ASD) organizations that perform government functions in different ways, including partnership arrangements with other levels of government and the private sector.
This trend poses a significant issue with respect to the Access to Information Act (the Act), since there is potential for loss of access to existing government records, and future records may be inaccessible in the event that the new ASD entity is not subject to the Act. Further, there is potential for inconsistency, if one such entity remains subject to the Act and another does not, for reasons that are not clear and public. However, in my previous study of Crown corporations and other entities, there was no easy way of defining this large group of potential organizations that are not necessarily Crown corporations but which perform government functions.
Alternative Service Delivery policy
Treasury Board Secretariat issued the government's Policy on Alternative Service Delivery1 in February 2002. This policy encourages government to pursue results in the delivery of programs and services, and recognizes that in pursuing performance, innovative organizational approaches and forms may be developed. The policy insists that such initiatives:
- Deliver sustainable results for Canadians, and
- Be guided by a "government as a whole" perspective to ensure they reflect the public interest.
The policy will apply in general to all organizations named in Schedules I, I.1 and II of the Financial Administration Act that deliver programs and services, and specifically to new or renewed transformations in program or service delivery. It explicitly applies to the creation of new organizations, including:
- Service Agencies (Special Operating Agencies, departmental service agencies, departmental corporations, branches or divisions of the public service similar to those listed under the FAA, col. I, Schedule I.1);
- Crown corporations;
- Administrative tribunals;
- Shared governance corporations;
- Partnership and collaboration with other sectors and levels of government for the delivery of programs and services; and
- The contracting-out of federal programs and services to the private and not-for-profit sector.
Under the new policy, ASD proponents are required to complete a Case Analysis. In the case of major initiatives, the approval of Treasury Board ministers may be required. The Case Analysis follows a standard template, and includes the application of an extensive Public Interest Test, which is part of the Policy. A Policy Guide has been developed in consultation with relevant central agency policy authorities and provides detailed questions and guidance in creating an ASD arrangement.
The Public Interest Test contains a clear question respecting access to information and privacy:
- "Is there appropriate provision for access to information, preservation of government memory and the privacy of Canadian citizens?"
In the Policy Guide, the relevant question is: "Will there be openness that is conducive to disseminating information to the public either formally through the Access to Information Act or routinely through informal channels?" This question focuses on the dissemination of information without distinguishing between the specific nature of access under the Act – which compels subject organizations to release raw information without control over timing and aggregation - and more managed forms of public information, in which the organization retains such control. In fact, both types of disclosure are encouraged by government, and by the Act. They are not interchangeable, with one being a replacement for the other. However, the question as it presently exists may give the impression that what it terms 'routine' disclosure through 'informal channels' is a substitute for access under the Act.
In the case of the Privacy Act, there are two much more specific questions in the Guide: "Are there appropriate provisions to ensure the privacy of Canadian citizens?" and "Will there be a regime in place that protects personal information from unauthorized collection, use or disclosure?" In the case of Official Languages, the test is even more detailed and specific and is outlined in an Annex to the policy itself.
Discussion and options
The introduction of the Policy on Alternative Service Delivery will greatly simplify the challenge of ensuring that future changes to governmental machinery do not weaken the right of public access to information. The new policy clearly defines ASD entities, thus permitting government to direct Access to Information (ATI) at that group without further delineation; and it requires a specific and rigorous approval process for every potential entity belonging to that group, thus providing a means for government to ensure that none fall through the cracks respecting ATI.
Thus, the basic approach is clear: all entities subject to the new Policy on Alternative Service Delivery should also be subject to consistent ATI requirements. The only questions are:
- What those requirements should be, and
- How they should be implemented.
What the requirements should be
The first principle favours the Act: when any such new entity, partnership, or contract is considered, the public right to ATI should be maintained unless there are significant reasons for ending it. In my recent paper, "The Scope of Access", I enunciated a similar principle respecting existing entities of the federal Crown, particularly Crown corporations. In the case of ASD initiatives, the presumption in favour of the Act is strong because those functions are generally now performed within government, and they are thus currently subject to the Act. Therefore the argument for removing that function and its records from the ambit of the Access to Information Act must be even stronger.
For this reason, I would suggest that all organizations subject to the ASD Policy should continue to be subject to the Act, and should be added to the list of government institutions subject to the Act set out in Schedule I to the Act, except where government specifically directs otherwise. I would further suggest that consistent criteria be used in determining such exceptions, and that the ones developed in my earlier study can be adapted in these cases.
In that earlier study, the following three criteria were proposed:
1. Ownership and control: Does government appoint more than 50% of the governing body? Does government provide financing through appropriations? Does government own the entity or underwrite shares?
If the answers to all these questions are "no", the Act should not likely apply.
If the answer to any of these questions is "yes", the Act should normally apply.
2. Public functions: Is the entity created by statute to exercise a public function with respect to health and safety, the environment, or the economic security of Canadians?
There may be cases in future where government, in transforming a function previously delivered by government, or in addressing a new need, creates a special kind of organization that it does not own or control. However, the question of the application of the Act should be debated and determined at the time the entity is created.
3. What needs protection? What are the characteristics of information that must be protected to avoid harm to the entity's mandate?
- Is there reason to believe that this information cannot be protected through exemptions?
- Is there reason to believe that the entity's essential mandate would be placed at risk by being made subject to the Act?
These criteria begin with structural questions respecting government ownership and control of the entity, then ask whether the entity performs a public function, and finally assess the nature of the information that would require protection and possible harm to the entity's mandate.
In the case of most potential entities covered by the ASD Policy, the function is already performed by government and the attendant records are already subject to the Act, so it would no longer be necessary to ask question #2. However, the other two questions remain useful.
- The first question focuses attention on the risk to continued public access to information posed by the ASD proposal; and
- The second question focuses attention on the risk to the proposed new entity if it was subject to the Act.
Risk to the right of access
Partnerships may mean a major change in government ownership and control through the sharing of program and service responsibilities with other governments, the private or the non-profit sector. Such shared responsibility may create conditions under which the continued application of the Act may be impractical or open to question. If, for example, a new shared governance structure means that provinces and territories are jointly responsible, with the federal Crown, for a particular function it may become difficult or inappropriate to apply the ATI provisions of any one government. There may be similar constraints respecting shared arrangements with the private or non-profit sector.
Based on this approach, the first question in the case of a potential ASD becomes:
- Will proposed changes in governance structure, ownership and/or control pose difficulties in the application of the Act? Further, will the proposed legislative or regulatory regime be in conflict with the Act?
- If so, what measures are proposed to counteract or compensate for this adverse effect?
Risk to the new entity
The ASD proposal may result in a significantly different commercial mandate for the government function, along with ambitious business targets. The existing third question focuses on the nature of the information that needs to be protected from the right of access and seeks to define possible harm to the entity's mandate. On the basis of this question, Government can assess (a) the degree to which existing exemptions will be effective in protecting this information, (b) the need for 'carve-outs' specific to the particular needs of the entity, and (c) in rare cases, the case for removing the entity from the provisions of the Act.
The nature and application of this question do not appear to change for an ASD assessment; it is still appropriate to ask:
- What are the characteristics of information that must be protected to avoid harm to the entity's mandate?
- Is there reason to believe that this information cannot be protected through exemptions and 'carve outs'?
- Is there reason to believe that the entity's essential mandate would be placed at risk by being made subject to the Act, with appropriate exemptions and 'carve outs'?
- If so, what remedial or compensatory measures does the proposal contain?
Based on these questions, in the event that a program or service may no longer be subject to the provisions of the Act, government can then:
- Fully assess the public good in the ASD proposal, particularly respecting the potential loss of public accountability for the function;
- Adjust the proposal, if desired; and
- Impose remedial or compensatory disclosure requirements, particularly in the event that a previously accessible function is removed from the application of the Act. Such remedial requirements would also address provisions to maintain the right of access to records already under the control of the federal government.
Options for implementation
There are two options for implementing this approach to ASD proposals. One is administrative in nature, and the other, legislative. These two options are not mutually exclusive.
Option #1: ATI principles included in ASD Policy.
Consistent with the position laid out above, the ASD Policy and/or accompanying Guide should require that ATI be part of any Case Analysis that must be done when undertaking an alternative service delivery initiative. In particular, more focused questions respecting ATI could be included in the public interest tests as follows:
1. Will the public right of access to information held by the entity
be maintained?
2. Are appropriate systems and procedures in place to ensure compliance
with provisions of the Access to Information Act?
3. Is there an overall information regime that provides full, timely and
regular disclosure of information to the public, in addition to the Act?
For entities proposing to be removed from the provisions of the Act, direction could be provided in both the Policy and the Guide that places the onus on the responsible deputy head to show why the mandate of the entity will be significantly impaired if the Act continues to apply. Criteria for such justification should be those discussed above, which could be simplified as follows:
- Is the new governance structure, ownership/ control, and/or legislative/ regulatory regime in conflict with the requirements of the Act? and
- Is there reason to believe that information critical to the mandate of the enterprise cannot be protected by exemptions and 'carve outs'?
The annex attached to this report provides possible text both for the ASD Policy (in the form of an Annex to that Policy), and the Guide.
Option #2: Legislation supported by regulation and policies specific to ATI.
The government's ASD Policy offers both a convenient and effective way of capturing these proposed entities early in the process, and consistently, through administrative means. However, amendments to the Act may provide a complementary means of ensuring the appropriate debate takes place in each case. Such a legislative measure would guard against future changes to the ASD Policy having unintended impacts on ATI. On the other hand, there is always a potential downside to such legislative provisions, since future interpretations of such clauses cannot be entirely predicted and may themselves have unintended consequences. The legislative tool is therefore best used with caution, and only when absolutely necessary. In this case, the instrument of the ASD Policy may well be sufficient, particularly if both the Policy and the Guide are adjusted as suggested in this report.
In the event that the legislative tool is also chosen, the reference
would not need to be detailed. It would merely specify that in cases where
the mode of delivering an existing service or program of government is
changed through some form of Alternate Service Delivery, partnership,
or contract, the records of that entity shall continue to be subject to
the public right of access unless it is determined that, even with appropriate
exemptions and carve outs, coverage under the Access to Information
Act will significantly harm the entity's ability to discharge its
given mandate.
Footnotes:
