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Access to Information: Making it Work for Canadians
Report of the Access to Information Review Task Force
The Access to Information Regime – A Primer
Background
Canada is now one of 46 countries to have access to information (or freedom of information) legislation. Some of these countries have long-established access to information traditions and legislation: Sweden with a first law dating from 1766, Finland with the first modern access to information legislation in 1951 and the United States with the 1966 Freedom of Information Act. The trend in adopting access to information laws has clearly gathered speed in recent years.
In Canada, access to information legislation was not pioneered at the federal level. Nova Scotia was the first government to pass freedom of information legislation in 1977, followed by New Brunswick in 1978, Newfoundland in 1981 and Quebec in 1982. The Canadian Access to Information Act was passed in conjunction with the Privacy Act in June 1982 and came into force July 1, 1983. All of the remaining provincial and territorial jurisdictions have since followed with their own access legislation (See also Annex 8).
In 1986, three years after the Act came into force, an in-depth review was conducted by the House of Commons Standing Committee on Justice and Solicitor General (frequently referred to in our report as “the 1986 Parliamentary Committee”). Its report, “Open and Shut: Enhancing the right to know and the right to privacy”, was issued in March, 1987 and the government’s response: “Access and Privacy: the Steps Ahead” was issued later the same year. While the government implemented most of the administrative changes recommended by the Committee, it did not make the recommended legislative changes.
Since it was first enacted, the Access to Information Act has been amended three times. In 1992, the Act was amended to deal with the provision of records in alternate formats to individuals with sensory disabilities. In 1999, it was amended to make it a criminal offence to intentionally obstruct the right of access by destroying, altering, hiding or falsifying a record, or directing anyone else to do so. In 2001, it was amended by the Anti-terrorism Act which provides that a certificate by the Attorney General prohibiting the disclosure of information for the purpose of protecting national defence or national security will override the provisions of the Access to Information Act.
Return to Table of ContentsThe Access to Information Regime
The Access to Information Act is said to be quasi-constitutional in that it overrides provisions in other federal laws, except those listed in Schedule II of the Act. The Act provides a right of access to general government information, while personal information held by the government is governed by the provisions of the Privacy Act. The Act identifies the institutions it applies to, the types of government information that may or must be protected in response to requests, and the types of information that are excluded entirely from the scope of the Act. The Act also delineates the process for making a request including the timelines and the procedures for notifying third parties; it establishes the Office of the Information Commissioner to receive and investigate complaints; and provides a further right of review by the Federal Court.
The Access to Information Regulations contain more detailed rules relating to the making of a request under the Act, the transfer of requests from one government institution to another, and fees.
The Access to Information Policy8sets out requirements for all government institutions to follow in order to ensure the effective and consistent application of the Act. The Access to Information Guidelines9 provide detailed guidance and best practices, primarily for the use of government officials in the day-to-day administration of the Act.
Two ministers share responsibilities for access to information. The Minister of Justice is responsible for the legislation. The President of the Treasury Board has been designated as the Minister responsible for overseeing the administration of the Act, for the issuance of guidelines and directives to government institutions, and for producing a publication (Info Source) containing information about government institutions and their information holdings to assist individuals in exercising their rights under the legislation. Info Source is available on the Government of Canada Web site.10
Every institution covered by the Access to Information Act is listed in Schedule I. The “head” of the institution (either the Minister or a person designated by Order in Council) is responsible for the administration of the Act in the institution, as is an official who is delegated some or all of these responsibilities (usually referred to as the Access Coordinator).
Requests made under the Act must be made in writing to the Access Coordinator, whose address is listed in Info Source. The Access Coordinator or a member of the Coordinator’s staff contacts the requester, as well as officials in the institution who are likely to have the relevant information and any others who must be contacted (such as third parties). There is usually further contact with the requester about the timing of the release of information and the fees the institution proposes to charge.
There is a two-tiered review process. Requesters have the right to complain to the Information Commissioner about an institution’s handling of their request. Following an investigation and report by the Commissioner to the head of the institution, there is a further right to seek a review of a denial of access in the Federal Court of Canada.
The Treasury Board Secretariat, through its Information and Security Policy Division, is the primary source of expert advice, training and guidance to federal institutions. Institutions receive legal advice on access to information issues from the Department of Justice through in-house legal services units or from its Information Law and Privacy Unit.
Government institutions subject to the Act are required to report to Parliament annually on their administration of the Act. Each year, the President of the Treasury Board tables an aggregate of the statistical data in these reports. Parliament also receives the annual reports of the Information Commissioner, in addition to any special reports the Commissioner may decide to submit.
8Access to Information, Information and Administrative Management, Treasury Board Manual, Public Works and Government Services Canada, 1993.
9Ibid.
10Info Source www.infosource.gc.ca
