Report 15 - Access to Information Review Task Force

The Access to Information Review Task Force is currently looking at the components of the Access to Information framework, including the Act, Regulations, policies and procedures. A final report which will analyze the administrative and legislative aspects of Access to Information will be released in the fall of 2001, and provide recommendations for improvement. The Task Force is gathering data, conducting research, and consulting with individuals, organizations, the federal public service, the provinces, and other countries.

The Access to Information Act came into force in 1983, well before electronic means to disseminate government information became available. The objective of this project, therefore, is to determine how best to clarify the meaning of the term "published" in the context of section 26 and section 68 of the Act. Section 68 provides that the Act does not apply to "published materials" while section 26 provides an exemption for material which is to be "published" in 90 days.

The Task Force recommendations must support the principles set out in section 2 of the Access to Information Act:

(1) The purpose of this Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government.

Complementary procedures
(2) This Act 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 government information that is normally available to the general public.

Methodology

The consultant reviewed the use of the terms "published" or "published material" in various laws and policies, including information management policies already in existence and those under development.

The research included a review of related terms used in the National Library Act, the National Archives Act, the Canadian Copyright Act, the Government Communications Policy and the Management of Government Information Holdings Policy. In addition, a number of government officers and educators in the field of information science were consulted.

In reviewing the policy documents for the project, the following terms were identified as being relevant to the review:

In addition to reviewing definitions within the Government of Canada policy framework

the consultant looked at other jurisdictions and definitions in international standards and professional dictionaries, glossaries and thesauri. The Oxford dictionary definition of "published" documents a series of activities which include reviewing, editing, disseminating and making available on an ongoing basis. Several accepted definitions of "published" are included in Appendix "A".

The meaning of "published" and related terminology was also reviewed in reports relating to depository library systems, copyright and electronic publishing initiatives. Appendix "C" provides web-site references to the resources used.

Government Policy Framework and "Published"

One of the key aspects of the purpose clause in Section 2 of the Access to Information Act is the intent to

Within the Government of Canada references to and definitions of "published", "published materials", "publication", etc. can be found in:

Legislative Requirements

Several acts refer to "published", "published materials" and "publishing". Specific references are cited in the following section.

The Access to Information Act

Section 26 of the Act refers to records that are to be "published" and the ability of a head of a government institution to refuse access:

26. The head of a government institution may refuse to disclose any record requested under this Act or any part thereof if the head of the institution believes on reasonable grounds that the material in the record, or part thereof, will be published by a government institution, agent of the Government of Canada or minister of the Crown within ninety days after the request is made or within such further period of time as may be necessary for printing or translating the material for the purpose of printing it.

Section 68 provides that already published materials are excluded from the application of the Act:

(b) Library or museum material preserved solely for public reference or exhibition purposes; or

(c) Material placed in the National Archives of Canada, the National Library, the National Gallery of Canada, the Canadian Museum of Civilization, the Canadian Museum of Nature or the National Museum of Science and Technology by or on behalf of persons or organizations other than government institutions.

The National Library and the National Library Act

The National Library of Canada was established by Parliament in 1953 to acquire, preserve and promote the published heritage of Canada for all Canadians. The National Library Act establishes the roles and responsibilities of the National Library of Canada and includes the following definitions:

The National Library of Canada is the official depository for both government and non-government publications.

The Department of Public Works and Government Services Act

The Minister of Public Works and Government Services is given the authority for publishing government documents under section 6(d) of the Department of Public Works and Government Services Act:

6. The powers, duties and functions of the Minister extend to and include all matters over which Parliament has jurisdiction, not by law assigned to any other department, board or agency of the Government of Canada, relating to…

(d) the acquisition and provision of printing and publishing services for departments.

Policies and Related Guidelines

Several policies and accompanying procedures, developed by the Treasury Board Secretariat provide direction on government publications and the publishing process. These include:

The Government Communications Policy

Within the Government Communications Policy a "publication " is defined as "any product created by the act of publishing". "Publishing" refers to the

Specific sections address the publishing process and articulate the bibliographic details which must be included in the publication. Appendix "C" of the Government Communications Policy outlines the provisions for creating and distributing public documents.

The Common Services Policy

The Common Services Policy outlines the use of common services by Government institutions and covers the publishing function in Appendix "F" section 7 as detailed below:

7.8 Contracting for Printing

Under this heading, PWGSC provides print contracting services to client departments. Services include assisting clients to define their requirements, writing technical specifications, providing advice and estimates, soliciting and assessing bids, and awarding and administering contracts.

7.8.1 Publishing

Departments must negotiate a signed delegation instrument from the Minister of Public Works and Government Services to exercise this authority on an optional basis. Ministers receiving delegated authority for publishing must comply with the conditions of delegation established by the Minister of Public Works and Government Services. Some departments have existing authority to manage publishing directly, i.e. under the Statistics Act, Statistics Canada has the legal

mandate to publish, and therefore does not require delegation from the Minister of Public Works and Government Services.

Under this heading, services offered include selecting, commissioning and preparing information that will be distributed to the public through priced products such as books, periodicals, brochures, microfilms, microfiches, discs, videocassettes, audiotapes and machine readable tapes. Publishing also includes promoting, facilitating the distribution of or selling these priced products to the public (for the duration of the PAA (privileged administrative arrangement) neither PWGSC nor any other government department will provide or procure common distribution services).

The Depository Services Program: Supporting the Government Publishing Program

A 1999 position paper which looked at the future role of the Canadian Government Publishing and Depository Services Program in the context of the changing technology and service environment states that:

The Government Communications Policy provides the policy basis for the Canadian Government Publishing and Depository Services Program. It establishes their responsibility for the coordination of publishing activities across government and for ensuring that copies of published material are made available to Canadians. It also stipulates that authors of government publications are required to deposit copies with the Depository Services Program.

The Government established the Depository Services Program to support the ongoing distribution and ensure that "published" material is available to the public. The Depository Services Program produces the Weekly Checklist which includes a listing of book and serial titles that have been released during the week by the Parliament of Canada, federal departments, and Statistics Canada. A complete listing of those publications is available on an ongoing basis both through the Depository Services Program and from the National Library of Canada.

In his paper "Accessing Canadian Federal Information: A Depository Program for the Twenty-First Century", presented at the 1999 International Federation of Library Associations Annual Meeting, Bruno Gnassi wrote:

"The Canadian Federal DSP readily reinforces the purpose section of Canada's Access to Information Act in that it clearly enhances the means by which government information is "normally available to the general public". It is not inconceivable that the availability of government information through the Depository Services Program's network could be used as the litmus test in Canada for what constitutes "published" information under the Act."

Recent studies have been undertaken in Australia, the U.S. and Europe with regard to the role of the library deposit process in ensuring the preservation of government publications in the era of the World Wide Web and Internet dissemination.

The Management of Government Information Holdings (MGIH) Policy

The Management of Government Information Holdings Policy encourages departments to retain and manage information and recommends that it be systematically organized to be accessible. It requires departments to "maintain an index of published material…and ensure that published material is available for examination by the public".

"published material refers to an information product which has been created and edited for the purpose of distribution or sale. Material published by or for Federal Institutions is deposited in federal library collections."

This definition implies that copies have been made available through the formal depository services process and deposited in the National Library of Canada.

A study undertaken by the National Library of Canada in 1998 identified the fact that government institutions are not meeting the Management of Government Information Holdings Policy requirement to deposit copies of publications with the National Library of Canada. The policies and guidelines which support a centralized process to make government publications widely accessible to the public are not being applied. The Depository Library System and the National Library of Canada are key elements of public access to "published" materials.

The MGIH Policy is currently under review as are the definitions within it. For purposes of the report, National Library representatives provided information on the proposed definitions:

"Publication" means published material of every kind, nature and description and includes material such as books, maps, periodicals, documents, working and discussion papers, videotapes and sound recordings. Publications can be in any format on, or in which information is written, recorded, stored or reproduced, and include such products as print publications, or dynamic electronic publications. Anything published by a federal department or agency is an official government publication. Material published by or for federal government institutions is deposited in federal library collections.

"Publishing" refers to activities involved in selecting, commissioning and preparing information for distribution to the public by means of products such as books, periodicals, brochures, computer files, microfilms, microfiches, CDs, video-cassettes and sound recordings. Publishing also includes the subsequent promotion of these products for distribution or sale to the public by various means including federal government web-sites. Anything that is a product of this process is therefore a publication. (Developed from the definition of publishing in Communications Policy, July 1988.)

Impact of the Internet on the Concept of "Publishing"

The use of the terms "Internet", "Intranet" and the "World Wide Web" are often used interchangeably but relate to different elements of electronic communications. The Internet was created in the 1960's and was based on an infrastructure of computers that were all equally capable of sending and receiving information. Its application within the public domain began with the advent of personal computers in the late 1980s and early 1990s.

Over the past ten years, the Internet has influenced the way in which information is created, distributed, accessed and retrieved. The World Wide Web, defined as "an application which runs on the Internet," was created in 1990.

In the past three to four years, Intranets have become more widely applied within organizations for internal communication. JBS Computer Systems describes an intranet application as "the implementation of Internet technologies within a corporate organization, rather than for external connection to the global Internet". Intranets lie behind firewalls and are accessible by employees and often by suppliers and customers who are password protected.

Report 15 - Access to Information Review Task Force

THE MEANING OF "PUBLISHED" FOR PURPOSES OF THE ACCESS TO INFORMATION ACT

Report

Background

Methodology

Government Policy Framework and "Published"

Legislative Requirements

The Access to Information Act

The National Library and the National Library Act

The Department of Public Works and Government Services Act

Policies and Related Guidelines

The Government Communications Policy

The Common Services Policy

The Depository Services Program: Supporting the Government Publishing Program

The Management of Government Information Holdings (MGIH) Policy

Impact of the Internet on the Concept of "Publishing"