Report 12 - Access to Information Review Task Force

THE SCOPE OF THE ACCESS TO INFORMATION ACT - DEVELOPING CONSISTENT CRITERIA FOR DECISIONS RESPECTING INSTITUTIONS

Published: July 2001

Jerry Bartram

Table of Contents

Executive Summary
Purpose and scope of the study
The scope of the present Act
Views of the Parliamentary committee, 1987
Other Canadian freedom of information regimes
Other regimes
Results of Interviews
Principles for criteria
Suggested criteria
Conclusion
List of persons interviewed
The interview guide

Executive Summary

This study examines the present scope of the Access to Information Act - that is, it reviews the extent of its application to agencies of the federal Crown, compares its application to the freedom of information regimes in some other jurisdictions, and suggests criteria for determining the inclusion or exclusion of entities of the federal Crown under its provisions.

The study is based on a review of the legislation and accompanying regulations of Canada, several provinces of Canada, the United States, Australia, New Zealand, Ireland, and the United Kingdom; and 29 qualitative interviews with officials from a sample of 14 Crown corporations and agencies (seven under the Act, seven outside), the judiciary (four interviews), officials from the office of the Judge Advocate General and an administrative tribunal, three officers of Parliament, the Parliamentary Librarian, the Clerk of the House of Commons, and the Law Clerk of the Senate. In addition, officials of the Canadian Blood Service and three outside experts were interviewed.

The study concludes that Canada's freedom of information regime is more restrictive than most other jurisdictions examined, and that it can be widened, particularly with respect to Crown corporations and other entities established by the executive branch of government, where consistent criteria are presently lacking. The following series of questions is proposed as criteria for determining whether such entities of government should be subject to the Act:

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", ATI is unlikely to apply, unless it is a contractor as specified in question #2.
   If the answer to any of these questions is "yes", ATI 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 well-being 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 ATI 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?
   
   1. Is there reason to believe that this information cannot be protected through exemptions?
   2. Is there reason to believe that the entity's essential mandate would be placed at risk by being made subject to ATI?
   
   
4. Overall disclosure requirements: Are there necessary elements to an ongoing disclosure regime that the entity should be obliged to put in place, regardless of ATI?
   This final question is not intended as a criterion for inclusion or exclusion. Rather, it recognizes that ATI is only one part of an overall disclosure regime, and gives government the opportunity to address that larger picture respecting a particular agency - particularly in cases where, because of answers to questions 1-3, the agency is not subject to the Act.

Finally, while not part of the series of questions proposed for institutions, there is the issue of records under the control of contractors who may, through changes in service delivery, perform functions formerly performed within government (for example, in Australia, the entire human resources and finance functions have been contracted-out):

Contracted functions: Are the records created or managed by a contractor for specific advisory or program delivery services that are an extension of the normal decision-making function of government?
If so, its records with respect to that contract should be considered part of the records of the contracting body.

These questions are not intended to apply to the legislative and judicial functions of government. Rather, the study lays out the basic issues to be considered in deciding the question for those two branches of government, and suggests an approach in each case.

In the case of the judiciary, the core value of judicial independence must be weighed against the possible societal value of information to be obtained from inclusion. The study notes that inclusion of the Office of the Commissioner for Judicial Affairs may provide access to purely administrative records without including court records or processes. However, the study urges caution in including the judiciary at all, particularly since it is not clear where a line can be drawn between the judicial function and administrative matters.

In the case of Parliament, the study proposes principles for a voluntary disclosure regime for classes of administrative records of concern to the public, along with access to the administrative records of Parliamentary officers in a manner consistent with their governing legislation.

The study notes that Canada's Act does not provide protection for the deliberations of administrative tribunals making quasi-judicial decisions, and that the office of the Judge Advocate General should be treated in the same manner as the rest of the judicial function.

The Scope of Access to Information

Purpose and scope of this study

This study examines the present scope of the Access to Information Act by reviewing the extent of its application to agencies of the federal Crown, comparing its application to the freedom of information regimes in some other jurisdictions, and suggesting criteria for determining the inclusion or exclusion of entities of the federal Crown under its provisions.

The study is based on a review of the legislation and accompanying regulations of Canada, the provinces of Canada (particularly British Columbia, Alberta, Manitoba, Ontario and Quebec), the United States, Australia, New Zealand, Ireland, and the United Kingdom, as well as 29¹ qualitative interviews with officials from a sample of 14 Crown corporations and agencies (seven under the Act, seven outside), the judiciary (four interviews), officials from the office of the Judge Advocate General and an administrative tribunal, three officers of Parliament, the Parliamentary Librarian, the Clerk of the House of Commons, and the Law Clerk of the Senate. In addition, officials of the Canadian Blood Service and three outside experts were interviewed. A list of interviewees is attached as Annex A.

The scope of the present Act

The Access to Information Act (ATI) was passed by Parliament in June 1982 and proclaimed in force on July 1, 1983. When Parliament was studying the proposed legislation, the then Minister of Communications, Francis Fox, explained its value in his testimony before the Standing Committee on Justice and Legal Affairs in these words:

The statutory framework for access to information will constitute a significant development for our political institutions. It will create opportunities for a more informed dialogue between public leaders and citizens. It will improve the nature of government decision-making by allowing greater input from the private sector. Finally, it will impose on Ministers and officials a greater degree of accountability and of responsibility for their actions and their decisions.

The Act itself specifies the principles that:

• Government information be available to the public;
  
  
• Necessary exceptions to the right of access should be limited and specific; and that
  
  
• Decisions on disclosure should be reviewed independently of Government.

Under the provisions of the Act, any Canadian citizen, permanent resident or person present in Canada, upon application and payment of appropriate fees and subject to limited and specific exceptions, may have access to records under the control of the particular "government institutions" that are set out in Schedule I of the Act. Schedule I ("Government Institutions") lists 19 "departments and ministries of state" and a further 143 entities characterized as "government agencies". This second category includes many federal Crown corporations and a number of other agencies such as ports, pilotage authorities, various boards and all federal administrative tribunals. Entities not listed in Schedule I are not subject to the Act. No criteria are given for determining which entities should be listed in Schedule I.

A series of exemptions for different classes of records is set out in the Act. Of particular relevance to this study are exemptions for third party information provided to government institutions (section 20), and exemptions for commercially sensitive information belonging to the institution itself (section 18).

Views of the Parliamentary committee, 1987

Both the Access to Information and Privacy Acts provided for a review of their provisions and the operations of the respective Acts by a committee of Parliament, to begin in July of 1986 and be completed within one year. The review was conducted by the Standing Committee on Justice and Solicitor General and a report was published in March 1987, as: "Open and Shut: Enhancing the Right to Know and the Right to Privacy".

The committee recommended repeal of Schedule I, and the alternative approach of including all government institutions, except those explicitly excluded. It recommended two criteria for defining government institutions:

• They are exclusively financed out of the Consolidated Revenue Fund; or, for agencies not exclusively financed in this way, but who can raise funds through public borrowing,
  
• Degree of government control.

The committee recommended that the Act cover all administrative tribunals, the Senate, the House of Commons (but excluding the offices of Senators and Members of the House of Commons), the Library of Parliament, and Parliamentary officers. The committee further recommended that the Act be extended to include all wholly-owned Crown corporations and their wholly-owned subsidiaries. It also recommended that, where the Government of Canada controls a public institution by power of appointment over the majority of its board, that institution should be subject to the Act. With respect to the Canadian Broadcasting Corporation, the committee recommended that it be subject to the Act, with a specific exemption for program material. The committee did not recommend inclusion of the judiciary.

Other Canadian freedom of information regimes

The scope of provincial freedom of information legislation varies. In general, Quebec, Alberta and BC offer examples of regimes that are notably less restrictive than the federal one. Some highlights of provincial treatment of the issues of scope follow:

The judiciary: The Acts of BC, Alberta, Saskatchewan, Manitoba, Quebec and Nova Scotia explicitly exempt courts from their scope, and Ontario, New Brunswick and Newfoundland do not include courts on their schedules of included entities. Further, the Acts of Ontario, BC, Manitoba, and Nova Scotia have specific provisions exempting notes and judicial deliberations. Administrative records of the courts may, however, be accessible through the ministries that provide such support to them. In the case of British Columbia, Alberta, and Nova Scotia, such administrative records are specifically made available. The deliberations of quasi-judicial bodies are specifically exempted by BC, Manitoba, Ontario, and Alberta.

The legislative branch: Where the legislative branch is included in the scope of the relevant act, the offices of members of the legislature are excluded (BC, Alberta, Saskatchewan, Manitoba, and Quebec). BC further excludes officers of the legislative assembly (the Auditor General, Chief Electoral officer, and the Information and Privacy Commissioner) with respect to their statutory functions, although it includes them implicitly with respect to administrative matters.

Crown corporations and other institutions: BC, Alberta, Manitoba, and Ontario list included entities on a schedule; Quebec does not. Alberta includes its criteria for designating "public bodies" in its regulations, which are based on government funding or ownership and government control. BC takes the most inclusive approach to this category of agencies. An entity can be added to its schedule by regulation if (a) any of its members are appointed by government; (b) government or an agency of government owns a controlling interest in its share capital; or (c) it performs public functions by enactment. BC also may add the governing body of a profession to its Schedule 3, provided that any member of that body is appointed by government or an act, or the profession is governed by an act. Its Act now applies to more than 2,000 entities. In Ontario, a 1999 decision of the Ontario Court of Appeal concluded that records held by a contractor performing a government service were under the control of the contracting institution.

Other regimes

Australia

Australia's Freedom of Information Act (1982) creates a broad right of access to documents held by departments of government and "prescribed authorities", which are defined as corporate or unincorporated bodies established for a public purpose or in accordance with an enactment or Order-in-Council. Other bodies may be declared "prescribed authorities" by regulation. Some bodies are specifically excepted from being "prescribed authorities" (territorial legislative assemblies and their officers, members or ministers, for example). Others are considered "prescribed authorities" but only with respect to certain information - for example, courts and specific tribunals respecting administrative matters. Others are considered to be exempt only with respect to documents of a certain type, which is listed in the schedule - for example, the program material of the Australian Broadcasting Corporation, or the commercial activities of the Royal Australian Mint. Commercial activities for such agencies are described as activities being conducted on a commercial basis with persons other than governments or agents of governments.

Ireland

Ireland's Freedom of Information Act (1987) takes a schedule-based approach and includes both legislative houses, officers of the legislature, many but not all agencies and entities owned or mandated by Government. The Act does not apply to court records, but does apply to records relating to the administration of the courts or the offices of the courts. The records of contractors providing services to public bodies are deemed to be held by the public body with respect to that service; this provision is deemed to be part of all contracts between public bodies and contractors. The Schedule may be extended by regulation to include entities established by statute, those that receive public funding, those in which government is a majority shareholder, and those that carry out functions conferred by statute that affect the public or a segment of the public (for example, the Law Society). A number of hospitals run by the voluntary sector are subject to the Act, but only with respect to the provision of narrowly defined mental health services or services provided to persons with mental disabilities. The public broadcasting corporation is subject (with its subsidiaries) but with a double qualification that specifically excludes journalistic, programming and editorial functions, while limiting inclusion to management, administration, finance, commercial, communications and contracting functions. Some state-sponsored bodies (such as Aer Lingus) are excluded.

New Zealand

New Zealand's Official Information Act (1982) is also schedule-based and applies broadly to governmental agencies and state-owned corporations, including New Zealand Post Limited and Radio and Television New Zealand Limited. Courts and tribunals (in relation to their judicial function) are excluded, but the Department of Courts is included; thus, judicial deliberations are protected but access is provided to administrative matters. Information held by contractors as related to a contract with a Minister, department or organization that is under the Act is deemed to be held by the contracting organization. Where an unincorporated body (such as a board or council) is established to assist, advise, or perform functions of an entity subject to the Act, it is deemed to be part of the relevant entity. The Parliamentary Counsel Office (which drafts legislation) is subject to the Act.

United Kingdom

The Freedom of Information Act (2000), is schedule-based and includes the House of Commons, the House of Lords, the Northern Ireland Assembly and the National Assembly for Wales, and a wide array of national and local government authorities and wholly owned companies, including health authorities, the Post Office, and the British Broadcasting Corporation (in the latter case, only for "information held for purposes other than those of journalism, art or literature"). There is provision for designation of further entities on the grounds that they are established by Government, wholly or partly constituted by appointment, and have appointments made by Government. Further, the Secretary of State may designate a person who appears to exercise the functions of a public authority, or who provides a service that is a function of a public authority under contract. However, contractor records are not automatically deemed to belong to the contracting government agency. Courts are not subject to the Act.

USA

The Freedom of Information Act (1966) applies to the executive branch of government, and specifically excludes Congress and the federal courts. (Some congressional agencies such as the Library of Congress and the General Accounting Office follow their own records disclosure rules that are modeled on the Act.) Government owned or controlled corporations such as the US Postal Service or Amtrak are subject to the Act, as are regulatory agencies such as the Environmental Protection Agency and the Federal Trade Commission. Courts have ruled that entities that are neither chartered nor controlled by government are not subject to the Act, even though they may receive federal funds.

Results of interviews

The scope of Canada's freedom of information regime is more restrictive than most other jurisdictions surveyed, especially those with more recent legislation such as Ireland, the UK, Alberta, and BC. There is some variation in those other regimes in the treatment of the judicial and legislative functions; of entities that have been created by government through statute or other means but are not fully funded or controlled by it; and of contractors providing a service that is an extension of a government function. In general, entities that are owned, underwritten, or controlled by government are included in the provisions of more recent legislation. Most other regimes offer protection to the deliberations of quasi-judicial bodies - a feature missing in the federal Act.

My interviews revealed considerable complexity, both in the scope of application of Canada's Act at the present time, and in the issues raised. In this section, I lay out the issues, and give the reader a sense of the complexity (and contradictions) in the current application of the Act.

There do not appear to be evaluations of the effects of freedom of information regimes, either in Canada or in other jurisdictions. Thus, while the issues respecting inclusion can be identified with a high degree of confidence, it is more difficult to assess the degree to which they can be addressed through the creation of exemptions or "carve outs". This study is in no sense an evaluation of the effects of ATI. However, on the basis of interviews conducted for this study, it is worth noting that entities not currently subject to the Act expressed significant reservations about the possible effects of the Act and the effectiveness of exemptions. However, those experienced with the Act were less likely to find it a threat to their mandate, although many expressed some degree of frustration with its requirements.

In general, the following major issues were raised in interviews:

• The impact of possible inclusion on the independence of the judiciary;
• The issue of parliamentary privilege;
  
• The issue of commercial confidentiality in competitive markets (the core issue for Crown corporations); and
  
• Each parliamentary officer had special issues.
  

The judiciary

Six of my interviews were with officials who could provide insights on the implications of ATI for the judiciary. Four were from the civilian judiciary:

• The registrars of the Supreme Court and the Tax Court;
  
• The Acting Commissioner of Judicial Affairs, which administers the salaries, benefits, leave, relocations and provides other material support for 1,027 justices appointed by the federal government²; and
  
• The executive director of the Canadian Judicial Council, which provides a complaints process for federally-appointed judges, and serves as a means for judges to develop policy recommendations.

In addition, I interviewed officials from two judicial or quasi-judicial functions that are currently subject to ATI:

• The registrar of the Human Rights Tribunal (all federal administrative tribunals are subject to the Act); and
  
• An official from the office of the Judge Advocate General (JAG), which is included under the Act as part of the Department of National Defence.

Those interviews lead to the following observations:

• The independence of the judiciary is constitutional in nature and includes a right to control its own administration.³ There is no clear delineation between administrative matters that fall constitutionally under the courts and those that do not. Thus, at the federal level in Canada, inclusion of "administrative matters" with respect to the judiciary carries a significant potential for confusion and conflict over what is merely administrative and what constitutes part of the judicial function over which the Act cannot have effect.
  
  
• The judicial process is fundamentally public. The court sits in public. With few exceptions, evidence presented in court is fully disclosed for the public record. Once made, judicial decisions are public, along with their rationale, and become part of a public body of jurisprudence. The public nature of the judicial process is one guarantee of its fairness and its freedom from inappropriate influence. Thus, in considering the possible application of ATI to the judicial function, the first question would be: "What is the nature of the information potentially attainable that is not already in the public domain?"
  
  
• Judicial decisions require finality if they are to carry effective weight - that is, if they are to achieve their purpose. They may be scrutinized and analyzed on the basis of legal merit or legal implications. But they are final, unless overturned by the decision of a higher court, to which an appeal has been made, through a further public process. This observation leads to a second question with respect to the possible application of ATI: "Would information potentially obtained through ATI harm the force and finality of judicial decisions?"⁴
  
  
• The current administrative arrangements that support the judiciary have been designed to ensure that judges remain at arm's length from both the executive and legislative branches of government, and are thus free from potential influence. For this reason, their salaries and benefits are derived in a fashion that prevents them from being in any sense indebted to government; and those salaries and benefits are administered at arm's length from a department of government. In the event of a complaint, their conduct is reviewed by their peers through a separate arms-length body, the Canadian Judicial Council. They do not exercise control over public funds. For example, judges do not have signing authority. They are accountable for their judgments, not for spending or administrative matters. These steps have been taken to create a zone of independence where particular justices can deliberate without distraction upon specific cases and issues of law, and render judgment without fear of any material consequence. This leads to a third question respecting ATI: "Would disclosure of a particular kind of information have an impact on the ability of justices to reach conclusions independently of any material influence?"
  
  
• In the event of a dispute in which a judicial body refused an access request, would a court become subject to investigation by the Information Commissioner? This question involves the principle of judicial independence. Further, in the event of an appeal following a ruling by the Information Commissioner, would a higher court be made subject to a lower court?
  
  
• The Human Rights Tribunal (which receives very few requests under ATI), refused a request for records of the deliberations that led to a decision.⁵ Its refusal was appealed to the Information Commissioner, who was obliged to examine the records in question - precisely the situation feared by the courts. While the Commissioner upheld the grounds on which the Tribunal made its refusal, he determined that some - but not all - of the records should be released. There are no known cases of a request being made for the deliberative records of a judge in a court martial. ⁶
  
  
• The two courts, the Commissioner of Judicial Affairs, and the Canadian Judicial Council have all developed voluntary approaches to requests for information of an administrative nature. They supply such information on request, but aggregated in such a way that the identities of particular justices are protected.
  

The Houses of Parliament

Interviews were conducted with the Clerk of the House of Commons, the Law Clerk of the Senate, and the Parliamentary Librarian. Interviews were also conducted with officials representing three parliamentary officers - namely, the Auditor-General, the Chief Electoral Officer, and the Information Commissioner.

With respect to the Houses of Parliament, the following points were made:

• The Senate and the House of Commons are independent institutions, designed to operate autonomously from Government. No law passed by the House of Commons applies to it unless its application is made explicit when it is passed. Thus, it would be for members and senators to determine whether they wished a form of Access to apply, which did not infringe upon the privileges, immunities and powers of Parliament.
  
  
• Neither House makes decisions of an executive nature. Rather, the business of both Houses is to debate and vote on public issues, in public. Thus, the basic output of both Houses is public debate on the public record; all reports become public as soon as they are tabled in either House. This leads to the question (as with the judiciary): "What is the nature of the information possessed by members, senators and the support services of the Houses that is not already public?"
  
  
• Paradoxically, in order to conduct business in public, private research, meetings and deliberations are necessary. The nature and conduct of such pre-public processes are confidential, and are protected by parliamentary privilege. This principle applies to partisan meetings (caucus meetings, for example) and to research requested by members and senators and undertaken by staff of the Library of Parliament. Political parties are private organizations, and are not part of government. Likewise, the dealings of a member or senator with constituents are private.
  
  
• The reputation of politicians is easily damaged by inference, and not easily restored. Thus, there may be a need to protect them from release of partial information that could be misconstrued or misunderstood.
  
  
• With respect to the Library of Parliament: its fundamental purpose is the provision of research services to members, senators and Parliamentary committees. This research is confidential in nature. The Library maintains a specialized collection that is available to the public through the inter-library loan system.⁷
  
  
• Some apparently administrative matters have the potential of giving the requester insights into the private dealings of members and senators. For example, sign-in logs would reveal which members have the habit of working at specific times after hours, and pose a security issue.
  

Parliamentary officers

The issues raised by parliamentary officers were specific to demands of their function. All three expressed willingness to be subject to ATI, with specific provisions to protect their core mandate.

• The Auditor-General had no concern over the release of administrative information, and in fact has a policy for voluntary release at this time. The output of the Auditor-General's work is always public: all reports are tabled in Parliament and are subject to scrutiny by Parliamentary committees, media and others. However, reports cannot be made public in advance of their tabling in Parliament (this is a legislated requirement); and the essential process by which reports are produced is not public. Thus, there are two different concerns over Access: information from departments and third parties that is held by auditors; and the internal analysis conducted by auditors.
  
  Respecting information provided to the Auditor-General by departments:
  
  
  • There are concerns over third party information (for example, an audit of contracting may mean examining commercial information regarding bids, parties, etc.). The Auditor-General clears such information carefully in public reports.
    
    
  • Information provided by departments is considered as being "owned" by the department for Access purposes. Because the Auditor-General is not subject to ATI, departments are confident in supplying information, including third party information. Otherwise, they would be obliged to sever and control such material differently. This would cause delay and result in a different relationship with auditors.
    
    
• The Chief Electoral Officer. The Canada Elections Act contains provisions both defining public information and access to it, and limiting such access. For example, correspondence with Elections officials and other public records can be inspected on site and copies can be made. Currently, the Elections Canada web site is used to enhance public access to information - such as compliance agreements respecting investigations, the posting of financial information from all candidates and parties, and the third party registry of contributions. However, there are specific exemptions in the Act for election documents, the register of voters, investigations (which are secret), and anything that can be used for partisan purposes.
  
  The major concern raised: Elections Canada exists to regulate a political process. During a highly-charged campaign, access requests could be made with the underlying intent to make Elections Canada an issue in the election. Efforts to undermine the integrity of the organization may have a negative impact on the perception of the validity of the election itself. For these reasons, the Chief Electoral Officer advises that if Access is broadened with respect to Elections Canada, it would be appropriate to do it under the Canada Elections Act.
  
  
• The Information Commissioner. The Information Commissioner thinks that he should be subject to the law that he administers. However, two types of records require protection:
  
  
  • Documents in possession of the Commissioner which belong to others (which also concerns the Auditor-General); and
    
    
  • Investigative records (again, there is a parallel with the internal analytical function of the Auditor-General).
  
  In the case of a dispute, provision could be made for direct appeal to court for review, rather than the normal process of appeal to the Information Commissioner.⁸
  

Crown corporations and other entities

The federal government has created a large number of Crown corporations and other types of organizations to achieve a public purpose at some distance from government. The governance and financial arrangements of these organizations vary. For example, "mixed enterprises" comprise entities partly owned by Canada in which private sector parties own the remaining shares; "joint enterprises" comprise entities whose shares are partially owned by Canada where another level of government owns the balance of shares; "shared governance corporations" include entities without share capital for which Canada (either directly or through a Crown corporation) has the right to appoint or nominate a member or members to its governing body.

Eleven Crown corporations were interviewed, along with three entities that are not Crown corporations but, in the case of NavCanada, performs functions that were previously provided by government or, in the case of the Canadian Wheat Board, was formerly a Crown corporation or, in the case of the Canadian Blood Service, provides a function of great interest to the public which has traditionally been delivered by the non-government sector.

Interviews were conducted with five Crown corporations that are not subject to ATI⁹ and with six that are covered.¹⁰ In choosing a sample, care was taken to include all the high-profile corporations presently outside the provisions of the Act. As far as possible, corporations in somewhat similar businesses to those under the Act were interviewed. For example, the Royal Canadian Mint is, like Canada Post Corporation, a commercial Crown Corporation, but unlike Canada Post, it is subject to ATI. Likewise, the Farm Credit Corporation and the Business Development Bank (BDC) provide business loans - as does the Export Development Corporation (EDC); the two former corporations are under the Act, while EDC is not. Like the Canadian Broadcasting Corporation (CBC), the National Capital Commission (NCC) receives appropriations for most of its operations and operates in an intensely competitive commercial market. It is subject to ATI, while the CBC is not.

As has already been stated, there are no public criteria in Canada for determining which of these various agencies of the federal Crown should be subject to ATI. The goal of my interviews was to understand the issues respecting exclusion or inclusion in each case, as a way of developing proposed criteria. These interviews were not designed to evaluate the effects of ATI. Lacking information from an evaluation, issues can be identified and discussed, but the treatment of these issues in developing criteria remains a somewhat conceptual exercise.

Every interview with Crown corporations - both those under and those outside the Act - focused on one basic issue: the need to maintain the confidentiality of commercially sensitive information. There are two aspects to this issue:

• The protection of third party commercial information - that is, commercially sensitive information entrusted to the Crown corporation by its clients or its business partners; and
  
• The protection of the corporation's own deliberations, strategies, market research and analysis, plans, R&D, negotiations, internal advice and other activities which, if disclosed, would provide competitors or other players with an unfair advantage.

Corporations not subject to the Act expressed the view that it would fail to adequately protect these two crucial areas. Corporations subject to the Act were uncomfortable with the degree of protection provided, and concerned that, at a minimum, such protection be strengthened.

One interviewee (from a Corporation subject to ATI) called the situation "a double-edged sword": on the one hand, cuts in government spending force Crown agencies to be more businesslike; while on the other, Access asks them to be more open, so that their business dealings are subject to a level of scrutiny different from their partners or competitors. Most interviewees referred to the need for "a level playing field" respecting the market: their competitors could use Access to gain sensitive information from them, and had no fear of such disclosure on their side. Some also referred to the administrative cost of Access in this connection, as a real or potential overhead that other companies do not have to bear. ¹¹ Some expressed the further concern over the fact that material provided to the departments through whose ministers the entities report to Parliament becomes subject to ATI once it enters departmental files. This causes administrative problems both for the Crown corporation and the department.

Other issues were raised that were more specific to the nature of individual Crown corporations. For example, in addition to the commercial concerns summarized above, the CBC raised concerns about the need to (a) be perceived as separate from government (a feature of its mandate specified in The Broadcasting Act), and (b) protect journalistic and artistic research, drafts, and sources. The Export Development Corporation's concerns about commercial confidentiality were especially strong, in that its banking operations involve offshore clients who (despite the protection of section 20) may be deterred by the possibility of disclosure. It also insures Canadian businesses against various types of risks abroad. Disclosure of particulars respecting the nature of insurance and identity of the insured can contribute to creating the conditions against which one is insured and thus constitutes a moral hazard. A recent independent review of its operations recommended the creation of a thorough voluntary disclosure regime, rather than making EDC subject to ATI.¹²

A number of anomalies emerged during interviews. As has already been stated, the Royal Canadian Mint is classed as a commercial Crown corporation, receives no appropriations, and competes nationally and internationally in a tough market - yet, unlike Canada Post Corporation (also listed in Schedule III, Part II of the Financial Administration Act as a commercial Crown corporation¹³ ) and some Crown corporations that receive appropriations (AECL or the CBC, for example) it is subject to the Act. It views ATI as having a negative impact on its mandate, while providing no positive value with respect to accountability. The Canada Lands Company, alone among the Crown corporations interviewed, is not an agent of her Majesty.¹⁴ Yet it is subject to ATI; its two subsidiaries, however, are not. Enterprise Cape Breton Corporation is not subject to ATI, although ACOA, a department of government that performs a very similar function and whose president chairs the board of ECBC, is subject.¹⁵ The CBC is an exempt Crown corporation - a measure taken to ensure the Corporation's journalistic and artistic freedom: Government has no power of direction over it. However, the Bank of Canada is also exempt from government direction - and yet it is subject to ATI, while the CBC is not.

Interviews with The Canadian Wheat Board and NavCanada afforded useful contrasts with the Crown corporations. Both these companies share the same issues as the Crown corporations respecting a commercial mandate and the need to protect strategic plans, market information, internal deliberations and third party information. However, in both cases the governance of the corporation reflects a reality that is different from the Crown corporations.

NavCanada is a regulated private sector (non-profit) monopoly performing a service that was once performed by public servants. Its assets were purchased from the federal Crown; it receives no public subsidies; its disclosure procedures are consistent with a company regulated by both securities legislation and federal transportation authorities; and its governance and accountability structures are consistent with the private sector. The Canadian Wheat Board, once a Crown corporation, was reconstituted in 1999 to serve a specific membership as a marketing instrument (albeit one with a monopoly), with accountability structures and board elections that reflect that fact. Policy decisions that once would have been matters for government are now a matter for board and members. In both the NavCanada and Wheat Board examples, government appoints a minority of board members. Neither is subject to ATI because neither company remains part of the executive branch of government - although some might argue that both serve a public function.

The Canadian Blood Service is a private, non-profit corporation regulated by Health Canada and funded by provinces; members of the board are appointed by provincial Ministers of Health. It is not subject to any freedom of information regime, but has created voluntary policies that are modeled on federal and provincial Access legislation, along with an extensive program of disclosure. For example, the Service holds one public board meeting per year, and posts minutes of all board meetings on its web site; further, an interest group may make a public presentation at any regular board meeting. Committee reports (but not drafts) are placed on the web site, as are all audit reports by the regulator (information provided to the regulator is subject to ATI). In addition, there are specific information programs for sensitive issues, such as the "Look back" and "Trace back" service which has been used by thousands of Canadians infected with HIV, Hepatitis B or C to trace all transfusions received. It works closely with key stakeholder groups (such as the Canadian Hemophilia Society) and has a number of consumer and scientific advisory committees. Its voluntary Access program is still under development, but will include a formal appeal process which begins with an in-house ombudsman and allows for appeal to an external authority, including court challenge.

It is interesting to note that the Canadian Blood Service does not appear to be the target of the kind of investigative information requests of which Crown agencies complain - the "fishing expeditions" in search of stories, the requests that appear aimed at securing commercial information. This is somewhat surprising, in view of the tainted blood scandal that led to its formation. Its robust disclosure regime may be a factor in this phenomenon.

In general, the Crown corporations interviewed have not invested in such full disclosure programs, although all respond to inquiries, provide required annual reports, comply with regulatory requirements and have put measures in place to communicate with the public on sensitive issues, such as the ongoing operation of AECL's Chalk River facility (which is under the regulation of the Canadian Nuclear Safety Commission). Canada Post offers services to the public for responding to service problems and providing routine information such as postal codes. It also has an ombudsman for complaints. With respect to corporate information, it seeks to provide a level of corporate disclosure similar to that provided by a publicly traded company. Its annual report includes a Management Disclosure and Analysis section. Since competitors are concerned that it may cross-subsidize to their disadvantage, the Government has required that its annual report include an auditor's opinion that it is not doing so. A summary of its approved corporate strategic plan is also tabled in Parliament. It has already been noted that EDC is currently implementing, on a consultative basis, a disclosure regime that does not involve ATI.

The accountability of Crown corporations is achieved by several means. All are required to produce annual reports, which are tabled in Parliament through the responsible minister and may be called to testify before a parliamentary committee. Many are subject to audit by the Auditor General. Some (CBC, AECL, Canada Post) are subject to a regulator with investigative powers; in the case of the CBC that regulator holds public hearings at which officers are questioned and receives complaints which it may investigate.

Principles for criteria

Access is one element in an overall program of transparency and public disclosure. The special characteristic of Access is loss of control on the part of the organization over (a) the timing of release and (b) the degree of aggregation of the accessed material. This means that generally speaking, Access will be more useful to expert enquirers who are searching for the material behind official reports and decisions, and who are able to supply context for the raw information that Access provides. Thus, it is not surprising that the principal users of Access are business, the media, politicians, and professional researchers. Access tends to be a means of sleuthing; of uncovering material that would otherwise be buried in aggregated information or the notes and considerations leading up to decisions. This means that Access is unlikely ever to be popular among organizations subject to it. However, entities that fail to create robust programs of transparency and disclosure are more vulnerable to the misinterpretation of information gained through Access.

Access can reinforce the accountability regimes of government entities by providing the public (or, more realistically, public groups) with a way of getting behind packaged information. It has the potential of supplementing normal accountability mechanisms, such as annual reports to Parliament, appearances before Parliamentary committees, and regulatory hearings.

The following principles are based on the view that Access is fundamentally a supplementary mechanism to enhance the public accountability of government entities.

1. The most fundamental principle favors access: where the public, through government, owns and controls an entity, the public expects high standards of openness and transparency. Therefore, where there is doubt, the bias should favor inclusion.
   
   
2. There needs to be clarity on what entities are covered by the Act, and why.
   
   
3. There needs to be consistency so that government can decide on inclusion in a coherent fashion, and explain and defend its decisions in public.
   
   
4. There needs to be a balance between the public "right to know" and risk to the mandate of the entity.
   
   
5. Much has changed in public governance since the introduction of ATI, and much will change in the next 20 years as government works out different ways of achieving public purposes through innovative means. There needs to be sufficient flexibility for government to be able to treat Access as part of an overall approach to disclosure and accountability.

Suggested criteria

There are two general approaches to criteria:

• A functional approach, which begins with the premise that entities performing public services should, in the interest of transparency, be open to public scrutiny; and
• A structural approach, which assumes that the taxpayer has a right to examine the information held by entities owned or controlled by government on his/her behalf.

Using the functional approach, the basic questions to determine inclusion or exclusion from the provisions of ATI might be:

1. Does the entity perform a significant public function? For example, is it responsible for public health and safety? The protection of the environment? Economic security?
   
   
2. Will lack of access curtail public discussion/ debate? ¹⁶
   
   
3. If the answers to these questions are "yes", include the entity, with provisions to protect certain areas - such as third party information.

The advantage of this approach lies in its insistence that no matter how government may restructure, certain functions remain "public" in nature. The problem of the approach is reaching societal agreement on what these functions are. For example, a decade ago, most people would have assumed that air navigation services were a basic public function; and most countries continue to treat such services as part of government. But what is the public function in that example - the actual service delivery, or the setting of policies, standards, and the effective regulation of the service? And what about services traditionally provided by the private sector, such as banking - where the public interest is recognized by the provision of regulators? It would be difficult to reach finality on such questions.

A purely structural approach would avoid these problems by focusing on public ownership and control, posing questions like these:

1. Is the entity funded by government or more than 50% owned or underwritten by government?
   
   
2. Does government appoint more than 50% of its governing body?
   
   
3. If the answer to either question is "yes", it is included - again, with a limited number of provisions to protect certain classes of information.¹⁷

Such an approach has the advantages of clarity, consistency and simplicity. Above all, it recognizes the basic reality that contemporary society demands high degrees of public transparency and accountability for entities owned and controlled by the public through government. There are disadvantages to this approach. It does not address the issue of the public function that is conferred on a type of organization that may be developed in future, which government may not control (NavCanada and the Canadian Wheat Board, for example, are different kinds of entities, but they perform functions that many would regard as "public"). It does not address the issue of government functions that are provided to government by contractors. It may not sufficiently address the increased importance of commercial mandates for many Crown corporations, and the increased intensity of commercial competition. It may also imply that ATI is fundamental to a disclosure regime when in fact, once "carve outs" are assessed, its value may be more apparent than real (this is the point that Gowlings makes with respect to the Export Development Corporation and the Business Development Bank). Further, a purely structural approach would treat the judicial and legislative branches in the same way as the executive branch. However, public ownership and control remain fundamental to any approach to ATI - and this simple structural approach recognizes that fact.

In the sections that follow I suggest a mixed approach to criteria that gives primacy to the facts of government ownership and control, while leaving some room for exceptions. I also include provision for contractor records and consideration of different types of entities in the future. I approach the agencies of the executive branch differently from the judicial and legislative branches.

The judiciary

The independence of the judiciary is a core democratic principle that is constitutional in nature. The processes and structures that safeguard it have been developed over many years, with considerable care. In the event that government determined to extend the provisions of Access to the judiciary, such extension would have to be carefully crafted to avoid any negative impact on its independence. Any matters touching judicial notes and deliberations, staff advice, court schedules and processes, committee notes, complaints processes and reviews would need to be protected. This means exempting everything except basic administrative matters such as details of how particular judges spent their annual allowance, or what conference they attended (aggregated information of this nature is already available). In fact, including the office of the Commissioner of Judicial Affairs, while excluding all other judicial functions, would largely achieve this purpose.¹⁸ This would be similar to the Alberta and BC approach.

However, the potential societal value of such a measure is not clear. As has been noted above, the salaries and allowances of justices are all governed by the Judges Act, and aggregated figures on such expenditures are public. What is not available at present are - for example - how a particular justice spent his or her annual allowance (was it on books, computers or court robes?), or the cost of a particular judge's relocation. In the event that such information was publicized about a particular judge - perhaps in a distorted or incomplete fashion - the judge in question would not be able to comment publicly to explain or correct the public record. There is no question of impropriety in such expenditures, since they are limited by the Act and controlled by a third party, who is accountable for such control. It is more likely that such information would feed a certain kind of curiosity. The question is: can the reputation of a particular judge, and the finality of his or her decision, be undermined by such information being made public? Further, as has been pointed out above, the line is not clear between administrative matters to which the Act might apply, and information that is part of the constitutionally protected judicial function.

Under the circumstances, there do not appear to be advantages in attempting to include the judiciary under ATI. Judges may wish to formalize a voluntary disclosure code for federal courts and the Office of the Commissioner of Federal Judicial Affairs.

Irrespective of a decision on this matter, the office of the Judge Advocate General should be treated in the same way as the rest of the judiciary with respect to Access; and that administrative tribunals need specific protection for their deliberations (which some other jurisdictions afford).

The Houses of Parliament

The general line of reasoning applied to the judicial function also applies to the Houses of Parliament respecting the substance of their deliberations and the importance of the reputation of members and senators. Like the judiciary, they are not part of the decision-making power of government; and Parliamentary privilege, like judicial independence, is constitutionally protected.

There is, however, a huge difference: on a sensitive issue such as Access, does the public expect Parliament to subject itself to the same standards that it imposes on the executive branch? From the point of view of the public, the issues are likely to be matters like the expense allowances of members and senators rather than accounts of meetings held and research undertaken. Thus, Parliament may wish to consider either extending the Act to include provision for access to administrative matters, or undertaking an active parallel program of disclosure that would provide such information in a rigorous and timely fashion.

A voluntary disclosure regime would require certain core elements:

• Definitions of what is to be disclosed need to be clear, public and rigorous respecting classes of information, levels of disaggregation, timeliness and the locale and format of publication.
  
  
• Processes, roles and responsibilities for responding to questions should also be defined, and should be consistent across the organization.
  
  
• Verification. There should be provision for independent verification of the completeness, accuracy and timeliness of material that is disclosed. For example, there could be an annual assurance report by an outside firm on the basis of a random sample. (Putting the Information Commissioner in this role would create a conflict of interest.)
  
  
• Review. There would have to be provision for review of complaints from the public - possibly by a committee of peers. The same committee might have responsibility for ensuring that the annual verification was conducted, and for assessing its results.

The issue of Parliamentary privilege should not apply in the case of the officers of Parliament. It is difficult to understand how the Information Commissioner could not (as he himself says) be subject to the Act that he administers, with defined exemptions for the investigative process and departmental information provided to him, along with an amended appeal process. However, in fact, there is little or no information of substance that is not already disclosed by these officers within certain constraints of timing and presentation. These constraints would require careful protection (particularly in the case of the Chief Electoral Officer, where parallel amendments to the Elections Act may be appropriate) were the various officers brought under the Act. Once those exemptions were defined, the information that would be subject to the Act would be administrative in nature, and requests are unlikely to be frequent. In the case of complaints, there is the possibility of some officers investigating each other.

Crown corporations and other entities of the executive branch

It must be said that the current situation is confusing, in that no discernable rationale governs the inclusion or exclusion of Crown corporations and other entities of the executive branch.

There should be a list of entities subject to the Act, for clarity and certainty. Further, the criteria by which entities are placed on the list should be public, and the application of the criteria for a particular entity should be published, possibly with a challenge period during which both the entity and critics could react to the determination.

The following sequence of questions is suggested to determine whether entities should be subject to ATI:

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", ATI is unlikely to apply.
   If the answer to any of these questions is "yes", ATI 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 well-being 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 ATI 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?
   
   1. Is there reason to believe that this information cannot be protected through exemptions?
      
   2. Is there reason to believe that the entity's essential mandate would be placed at risk by being made subject to ATI?
   
   
4. Overall disclosure requirements: Are there necessary elements to an ongoing disclosure regime that the entity should be obliged to put in place, regardless of ATI?
   This final question is not intended as a criterion for inclusion or exclusion. Rather, it recognizes that ATI is only one part of an overall disclosure regime, and gives government the opportunity to address that larger picture respecting a particular agency - particularly in cases where, because of answers to questions 1-3, the agency is not subject to the Act.

Finally, while not part of the series of questions proposed for institutions, there is the issue of records under the control of contractors who may, through changes in service delivery, perform functions now performed within government (for example, in Australia, the entire human resources and finance functions have been contracted-out):

Contracted functions: Are the records created or managed by a contractor for specific advisory or program delivery services that are an extension of the normal decision-making function of government?
If so, its records with respect to that contract should be considered part of the records of the contracting body.

With respect to the subsidiaries of Crown entities, a principled approach should apply:

1. Where the parent corporation is subject to the Act, the test for the subsidiary should be one of commercial harm to both the subsidiary and the parent: where there is no risk of harm, the subsidiary should be covered.
   
   
2. Where the parent corporation is not subject to ATI, there is unlikely to be any reason for making the subsidiary subject; however, it should be part of the parent corporation's voluntary disclosure regime.

Conclusion

There is room to widen the scope of the Access to Information Act with respect to entities of the executive branch - which should remain the major focus of freedom of information measures, since they exercise the decision-making power of government.

By their nature, Crown corporations and similar entities have a somewhat contradictory mandate. They are created as instruments of public policy, but are at the same time asked to compete like private sector entities in the marketplace. There is a serious cultural issue here: organizations seized with the desire to succeed in a business environment must behave and think like businesses. ATI is a reminder that they are to some degree constrained from acting and thinking in such fashion. This may create a cultural conflict, or the perception of one. Cultural issues are not trivial for organizations: they go a long way to determining the success or failure of the corporate enterprise. For this reason, model corporations in the private sector invest considerable amounts of time and money in communicating and implementing their core corporate values. The challenge that ATI imposes on management is creating a culture that is both commercially competitive and demonstrably worthy of public trust. An active and robust disclosure regime is a key tool in creating such a culture.

In the view of this writer, it would be a mistake to over-emphasize the value of Access for Parliament and the judiciary. This study suggests ways of approaching the issue in both cases. However, with respect to the judicial function, a cautious approach would seem appropriate - coupled with clearer protection for the deliberations of administrative tribunals, and an approach to the Office of the Judge Advocate General that is consistent with that adopted for the federal judiciary as a whole.

Annex A

List of persons interviewed

Parliament and Parliamentary Officers

The Judiciary

Administrative Tribunals

Crowns Corporations

Other Entities

External Authorities

Annex B

The interview guide

Introduction

One rationale for legislated access to information is to create a means of ensuring public accountability for government agencies and functions. As part of the current review of the Access to Information Act and its administration, I have been asked to look at the scope of the Act, and develop draft criteria for deciding which public entities should be included under its provisions.

Questions

1. What issues should be considered in assessing the pros and cons of including a particular corporation, agency, or other body under the provisions of the Access to Information Act?
   
   
2. For interviewees whose agency is not subject to the Act: Would you have specific concerns respecting your own organization, were it subject to the Access to Information Act?
   
   1. Do you think that inclusion would have an impact on your ability to fulfill your mandate? In what way? Can you provide me with examples?
      
   2. Do you think that inclusion would pose difficulties or create disadvantages either for you or other interested parties?
      
   3. Is there any type of specific sensitive information that you are concerned would not be adequately protected under the Act?
      
   4. Are there other concerns you wish to mention?
   
   
3. Alternative to question #2, for interviewees whose agency is already subject to the Act: Based on your experience of the Access to Information Act, please comment on the effects of its provisions on your organization - specifically:
   
   1. Its impact on your ability to carry out your mandate.
      
   2. Has it changed the way decisions are made? Can you provide me with examples?
      
   3. Has it affected - negatively or positively - your relationship with your clients? Your stakeholders? Other parties? Can you provide me with examples?
      
   4. What administrative impact has it had?
      
   5. Do you think that there has been an impact on the overall accountability of your agency to the public?
   
   
4. What policies and procedures do you have in place at the present time, to provide information to the public?
   
   1. Are written guidelines available?
      
   2. Do you maintain statistics respecting requests for information?
   
   
5. In some jurisdictions, a wide range of public and semi-public bodies is included in the scope of Access legislation, but certain classes of information held by these bodies are explicitly excluded.
   
   1. What do you think of this approach?
      
   2. If this approach was put in place in the Access to Information Act, what type of information does your organization hold that you think should be explicitly excluded?
   
   
6. What criteria would you suggest for determining whether or not an entity should be subject to the Access to Information Act?
   
   
7. Do you have other comments, or advice?
   
   1. Is there someone whom you would advise me to interview in the course of this research?
   
   
8. Thank you for this interview.

ABOUT THE AUTHOR Jerry Bartram Jerry Bartram holds a doctorate in English Literature from the University of London, England (1974), and a BA and MA from the University of Toronto (1968 and 1969). Currently, he provides strategic and advisory services to a range of government clients. Mr. Bartram served as an executive at the Director General and Director level in the Department of Natural Resources from 1980-1996 in a variety of positions, both in regions and in headquarters. As a consultant, his recent assignments have included the production of a far-reaching study (1999) on demand for legal services and related practice management issues at Justice Canada. He subsequently developed a number of think pieces, analytical reports and frameworks for the department. Other assignments have included the development of a strategic planning process for the Public Complaints Commission of the RCMP (1999-2000), a review of the Canadian Coast Guard's Operator Competency Regime (2000), and resolution of the governance and stakeholder issues that were crippling Canada's privatized Oil Spill Preparedness Regime (1997-1999).

footnotes:

1. An interview with the President of the Atlantic Canada Opportunities Agency also dealt with Enterprise Cape Breton, a Crown Corporation not under ATI whose Board he chairs.

2.The federal government appoints judges of Federal Court, the Tax Court, the Appeal Trials Division, and all superior court judges in Canada. The federal government also appoints the nine Supreme Court justices, but they are administratively separate from the Commissioner of Judicial Affairs.

3.The Supreme Court (Valente) has determined that independence with respect to matters of administration that bear directly on the exercise of its judicial function is the third essential condition of judicial independence (the other two being security of tenure and financial security of justices).

4.Interviewees were unanimous in the view that the finality of judicial decisions could be undermined through the disclosure of drafts, notes, staff advice from the deliberative process. It could also be undermined by information that damaged the reputation of a particular justice, even if the basis for that damage turned out to be trivial or without foundation.

5.Clear grounds for such a refusal on the part of administrative tribunals are lacking in the present Act. There is a precedent in which Federal Court dismissed the application of the Privacy Commissioner for review of the Canada Labour Relations Board's refusal to disclose notes taken by its members during a hearing (August 12, 1996), on the grounds that the notes were not under the control of the CLRB, and that disclosure would interfere with the independence and intellectual freedom of quasi-judicial decision-makers. However, the fact remains that the Act does not provide clear ground for refusal.

6.Serious offences are tried by courts martial. A large number of minor offences against military law are tried by 'summary trial' by officers acting in the capacity of justices. It is not known whether the Act has been used to gain access to the deliberations of these officers in any of these cases. A different, additional issue was raised by JAG, respecting solicitor-client privilege: that Access officers and potentially the Information Commissioner have power to review records of consultations between military personnel and their defence counsel - whether such counsel are in the employ of Canada or not. This is seen as a violation of privilege.

7.The Library of Parliament is different from the Library of Congress - mentioned above as having adopted a voluntary code modelled on Freedom of Information legislation. The Library of Congress (like Canada's National Library) is a repository for books published in the United States. A separate Congressional research function more closely resembles the Library of Parliament, and is not subject to such a voluntary code.

8.Other solutions to this problem may be possible. For example, both BC and Alberta provide for the appointment of an adjudicator to investigate complaints against the Commissioner as head of a public body. However, such a mechanism would have to be consistent with the way the Commissioner's powers are delineated, and with the fact that the normal appeal procedure is to federal court.

9.Atomic Energy of Canada Ltd., Canada Post Corporation, Canadian Broadcasting Corporation, Enterprise Cape Breton Corporation, and Export Development Corporation. An interview was also conducted with the Canadian Wheat Board.

10.Business Development Bank, Canada Lands Company Ltd., Farm Credit Corporation, National Capital Commission, the National Gallery, the Royal Canadian Mint. In addition, the interview with the Atlantic Canada Opportunities Agency (a federal department that is under the Act) served both as a source of information on that agency and Enterprise Cape Breton Corporation.

11.Their competition might counter this argument by reference to the fact that the financial assets of the Crowns are provided without charge, and in most cases their potential liabilities are underwritten by the government.

12.The external review (a legislative requirement) was conducted by Gowlings and involved extensive consultation with EDC stakeholders. Its findings, including those respecting EDC and ATI were reviewed by the Joint Standing Committee on Foreign Affairs and International Trade, and this particular recommendation was accepted, first by the Committee, and then by Government. Gowlings noted that EDC's public disclosure obligations under its current legislation were "almost non-existent", since it is neither subject to ATI nor to provincial securities legislation that applies to publicly traded companies such as banks. This was the basis of its recommendation for a far-reaching voluntary disclosure program, which EDC is now implementing. With respect to ATI, Gowlings looked at the Business Development Bank and concluded that the specific exemption within its legislation for third party material meant that it could withhold precisely the material that requesters were most likely to seek. Therefore, it had the disadvantages of ATI without the advantage of greater transparency. For this reason, Gowlings recommended a different model of disclosure for EDC.

13.There are four criteria for listing in this schedule of commercial Crown corporations: they must operate in a competitive environment, not ordinarily be dependent on appropriations for operating purposes, ordinarily provide a return on equity, and there must be a reasonable expectation that they will pay dividends.

14.An agent of her Majesty enjoys the immunities, privileges and prerogatives of the Crown and can bind the Crown by its acts. Thus, an agent can enter into contracts in the name of the Crown or in the name of the corporation, and property held in the name of an agent is the property of the Crown. An agent Crown corporation cannot be sued in its own right.

15.The President of ACOA takes the view that ECBC should, in fact, be subject to ATI - as long as existing provisions for protecting third party information are maintained, and with two further caveats: some protection for the deliberations of the board (in small communities, it would be difficult to attract members to serve on such a board if the way individuals voted on precise projects were known), and protection against retroactive application of the Act.

16.This question is drawn from the thinking of Alasdair Roberts, Associate Professor, School of Policy Studies at Queen's University.

17.The criteria established by regulation in Alberta are similar to these questions.

18.The nine justices of the Supreme Court are separate from the Commissioner's office.