Report 13 - The Access to Information Review Task Force

MAINTAINING THE PUBLIC RIGHT OF ACCESS TO INFORMATION WHEN SERVICE DELIVERY MODELS CHANGE

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

Conclusions

• The new ASD Policy can ensure a consistent approach to ATI in future, as new forms of delivery are developed and approved for government programs and services. Specifically, the Policy provides a definition of the entities that need to be captured, and a rigorous process of approval which should ensure that nothing falls between the cracks.

• Since ASD decisions usually concern government programs and services that are already subject to the Act, the general principle should favour the continued application of the Act to any ASD entity, unless it is determined that there is risk of serious harm to the new entity's mandate. Two basic lines of enquiry are proposed as a basis for determining such harm:

  • Structural changes in governance, ownership and control, and legislative or regulatory regimes that may conflict with the provisions of the Act; and
• Risk of loss of control over information that is critical to the entity's mandate.

• To be truly effective with respect to ATI, the ASD Policy and Guide need to be adjusted so that ATI is specifically addressed as a requirement for any Case Analysis. A proposed set of questions for inclusion are:
  • Will the public right of access to information held by the entity be maintained?
  • Are appropriate systems and procedures in place to ensure compliance with provisions of the Access to Information Act?
  • Is there an overall information regime that provides full, timely and regular disclosure of information to the public, in addition to Access to Information?

• While such administrative measures will be valuable, legislative amendment would ensure that provisions respecting ATI are not adversely impacted by future changes to the ASD Policy. Such legislative amendment should be consistent with the definitions and the approval process of the Policy.

• Accountability for responding to ATI requests should be defined as part of the Case Analysis. In the case of contracting out under the ASD Policy, it is likely that the contracting department would be deemed to have control over documents held and generated by the contractor, for ATI purposes. This provision should be recognized in the contract, along with necessary specifications respecting access to documents and necessary standards for document creation, handling and storage.
  

Annex A – Possible Annex for the ASD Policy

ANNEX X - Access to Information

X.1 Objective

Decision-makers understand the impact that a specific ASD initiative might have on the policies and programs established by the government to support Canadians' right of access to information.

The Access to Information Act (the Act) and associated policies are based on the principles that:

• Information should be made available to the public,
• Exceptions to the right of access should be limited and specific,
• Decisions relating to the disclosure of information should be reviewed independently,
• Heads of government institutions are responsible for ensuring that their institutions comply with the Act and for making any required decisions, and
• Access under the Act is to complement and not replace other ways of providing access to government information.

X.2 Guiding Principles

The government has adopted six guiding principles to support specific objectives that must be addressed in the Case Analysis. The six guiding principles are:

1. When any new entity, partnership, or contract is considered, the public right of access to information should be maintained unless it can be shown that the mandate of the new entity would be placed at significant risk because of the application of the Act. In such cases, a clear justification for the removal of such programs or services from the provisions of the Act should be presented to the public and an alternative disclosure regime should be determined.

2. There is a presumption in favour of the application of the Act, particularly where entities and records are at risk of being removed from its provisions through the proposed ASD initiative.

3. The Act recognizes that certain classes of information require protection, either through exemptions in the Act itself, or through 'carve outs' that may be specific to the requirements of the entity. Only in rare cases would such exemptions and 'carve outs' fail to protect information essential to the entity's mandate.

4. In cases where a less formal disclosure regime is proposed, justification can be provided on two grounds:

• Governance structure and control would conflict with the requirements of the Act; and
• Significant harm to the entity's essential mandate would result from coverage under the Act.

5. Specific questions that must be addressed in the Case Analysis are contained in the Policy Guide.

6. In the event that an alternative to coverage under the Act is proposed, provision must be made for a redress process that effectively safeguards the public right to information held by the new entity.

The Case Analysis should demonstrate that the above principles have been applied in determining whether the Act should apply to records under the control of the new ASD initiative.

The Case Analysis should indicate that all relevant parties have agreed to an alternative disclosure regime when entrusting delivery of programs and services to organizations that it is proposed will not be subject to the Act.

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Annex B – Possible text for the Policy Guide

Access to Information

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 Access to Information?
4. In the event that a proposal is made to remove an entity from the provisions of the Access to Information Act, or to create a new entity outside its provisions, the specific questions in Sections 1 and 2 below, must be addressed.

The Access to Information Act (the Act) and associated policies are based on the principles that:

• Information should be made available to the public,
• Exceptions to the right of access should be limited and specific,
• Decisions relating to the disclosure of information should be reviewed independently, and
• Heads of government institutions are responsible for ensuring that their institutions comply with the Act and for making any required decisions.

The Act also states that it is intended to complement and not replace existing procedures for access to government information and is not intended to limit in any way access to the type of information that is normally available to the public.

When any new entity, partnership, or contract is considered, the public right to access should be maintained unless it can be shown that the mandate of the new entity would be placed at significant risk because of continued application of the Act. In such cases, a clear justification for the removal of such programs or services from the provisions of the Act should be presented to the public. This justification should be based on the following questions.

1. Changes in governance structure and control

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 federal 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 access legislation of any one government. There may be similar constraints respecting shared arrangements with the private or non-profit sector.

Based on this approach, the following questions should be addressed:

• 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?

2. Harm to the new entity's mandate

The ASD proposal may result in a significantly different commercial mandate for the government function, along with ambitious business targets. In rare cases, it is conceivable that there may be a risk of information critical to that mandate becoming accessible under the Act – despite existing exemptions or 'carve outs' that may be specific to the requirements of the entity. Therefore, it is 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.
  

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