Access to Information: Making it Work for Canadians

Report of the Access to Information Review Task Force

Chapter 2 – Revisiting Coverage: Government Institutions

Fundamental to any access to information regime is what institutions are covered by the legislation, and how they become covered.

When the Access to Information Act first came into force in 1983, departments and a few Crown corporations carried out most of the work of government. Since then, the Government of Canada has made changes to the public sector in order to reduce costs and improve efficiency. These changes have included the transfer of functions out of government, the creation of alternative service delivery organizations (some with a partial “for profit” mandate), and partnerships with other levels of government and the private sector. In the future, we will obviously see public functions delivered by more and more varied institutions, many of which will be at arm’s length from the government.

The challenge is to find effective, practical ways to ensure that Canadians’ basic right to be informed is always considered when decisions are taken to establish these institutions. We have concluded that there is no simple approach to determining which institutions should be covered under the Act. We do not advocate simply extending coverage automatically to each new alternative service delivery organization (i.e. Crown corporations, private, not-for-profit corporations, federal-provincial-territorial partnerships, etc.). Moreover, the Act should not be extended to every private sector entity carrying out an activity that may be viewed as having a potential impact on the public interest.

The Act applies to records under the control of government institutions, but does not include a substantive definition of “government institution”. Nor does it set out criteria for identifying such institutions. Section 3 of the Act simply defines a government institution as any department or ministry, body or office listed in Schedule I of the Act. Schedule I lists 19 departments and ministries, and 143 other bodies and offices. These range from the Atlantic Canada Opportunities Agency to the Bank of Canada, the National Parole Board and the Royal Canadian Mint.

Section 77(2) of the Act permits the government to add new institutions to Schedule I by Order in Council. However, deletion requires an Act of Parliament.

Coverage of institutions under the Act has been criticized for several reasons:

• many institutions currently delivering government services are not subject to the Act;
  
  
• there is apparently no logical, consistent rationale as to why some institutions are listed on Schedule I, and others are not;
  
  
• there is apparently no formal process within government for ensuring that the Act’s application is considered when new institutions are created; and
  
  
• Schedule I is limited to institutions that form part of the executive branch of government, and does not cover Parliament or the courts.

Based on studies completed for the Task Force, extensive comparisons with other jurisdictions, and strong messages in public consultations, we have concluded that the scope of the Act needs to be expanded and made more consistent and principled. We will consider coverage of all three branches of government: executive, legislative and judicial.

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The Executive

Government programs and services are delivered by departments, agencies, boards, tribunals, Crown corporations and other organizations which together constitute the executive branch of government. Although alternative service delivery organizations in the private sector are not part of the executive branch, we have included them here because many of them carry out public functions.

The government continues to create organizations intended to achieve a public purpose at some distance from government. The Act may or may not apply to such organizations. At the present time, for example, 25 Crown corporations are subject to the Act and 17 are not. Several other alternative service delivery organizations are not covered by the Act. These include subsidiaries of Crown corporations and private, not-for-profit corporations such as Nav Canada and The Canadian Wheat Board. We could not identify an obvious rationale or any apparent criteria that were used in determining which of these organizations should be subject to the Act.

It is our view that the current approach is unsatisfactory. In designing a solution, we believe that a number of observations are pertinent.

• The scope of the Canadian legislation is more restrictive than most other jurisdictions.
  
  
• There are apparent anomalies in the application of the Act (e.g. the Royal Canadian Mint is subject to the Act, while Canada Post is not, even though both Crown corporations are actively involved in selling products and services in Canada and abroad).
  
  
• There is widespread concern on the part of many Crown corporations not now covered, about how to protect their commercial interests if the Act is extended to them, and how to ensure a level playing field with their non-government competitors since they are expected to make a profit.
  
  
• Some organizations have unique concerns relating to their mandates (e.g. the Canadian Broadcasting Corporation is justifiably concerned about its ability to protect its program material and journalistic sources).
  
  
• Crown corporations’ subsidiaries are enormously diverse and include: companies set up for a particular purpose but which are now dormant; numbered companies that simply hold the shares of other corporate interests; and thriving commercial interests marketing our technological and other expertise abroad.
  
  
• Even though government has transferred certain operations to private, not-for-profit corporations, it continues to be the regulator (e.g. air navigation services were transferred to Nav Canada, but safety information is still available from Transport Canada which regulates air safety and is subject to the Act).
  
  
• Some organizations singled out by commentators for possible coverage are carrying out functions that are not now, and have never been, carried out by the federal government (e.g. the private, not-for-profit Canadian Blood Services which took over the operation of the national blood system from the Canadian Red Cross).

The Task Force believes that there is a need for a principled approach to coverage under the Act, which would provide transparency and consistency in determining the organizations to be added to Schedule I. These principles for coverage should allow a degree of flexibility to accommodate the diverse mandates and operations of possible additions to the Schedule, and to accommodate changes in the future as governments develop innovative ways of achieving public policy purposes.

It is our view that the best way to ensure appropriate coverage in a principled and pragmatic way is to determine whether a particular organization should be subject to the Act by applying criteria based on ownership and control and whether a public function is carried out.¹ Most jurisdictions already include have included ownership and control criteria in their freedom of information legislation. This presumes a right to examine information held by organizations owned or controlled by government. More recent freedom of information statutes often include the public function criteria as well, which begin with the premise that entities performing government services should, in the interest of transparency and accountability, be open to public scrutiny.

We believe the combined criteria better meets the challenge of ever-changing alternative service delivery initiatives. These should include:

• ownership and control: government appoints a majority of the members of the organization’s governing body, provides all the organization’s financing through appropriations, or owns a controlling interest in the organization; and
  
  
• public functions: the organization performs functions in an area of federal jurisdiction with respect to health and safety, the environment, or economic security.
  

Any organization meeting either the ownership and control or the public function criteria could be added to Schedule I unless coverage is incompatible with either its:

• governance structure (e.g. an arrangement where provinces are responsible along with the federal government for a particular function, making it difficult or inappropriate to apply the federal Act to the new structure); or
  
  
• mandate (e.g. information critical to the mandate of the enterprise could not be protected by exemptions or exclusions under the Act).
  

It is our view that these criteria should be applied to existing and proposed alternative service delivery organizations. A preliminary analysis indicates that this approach could bring all Crown corporations under the access regime. However, the coverage of Crown corporations, their subsidiaries, and other alternative service delivery organizations, should be determined on a case-by-case basis, following a more comprehensive review.

If it is determined that an existing organization meets the criteria, we also believe that it should not be added to Schedule I until it has been given sufficient time to prepare its new access to information regime.

Many organizations not presently subject to the Act have mandates that may be partially at odds with coverage. However, we believe that information critical to the mandates of these organizations can be protected in most instances by specifically excluding it from the Act while maintaining general coverage of the entity. This targeted approach is taken in many jurisdictions. One example of critical information, recognized by the 1986 Parliamentary Committee, is the Canadian Broadcasting Corporation’s program material. Another is information about the competitive commercial activities of Crown corporations such as Canada Post (e.g. courier business) and the Mint (e.g. jewellery sales). These activities are clearly distinguishable from the corporations’ public policy functions. It is the view of the Task Force that information of this nature should be specifically excluded where the organization is otherwise covered by the Act.

To ensure that a principled approach to coverage will work, it is important that the question of the application of the Act be considered very early and in a consistent way when decisions are being made to create new organizations. This does not seem to have always been the case in the past. However, the government’s new Policy on Alternative Service Delivery² (ASD Policy) offers an opportunity to do so. It requires that all proposed ASD initiatives be subject to a case analysis that involves, among other things, a number of “public interest” tests including whether the Access to Information Act should apply. This approach has the potential to ensure that the issue of coverage is considered early in the process and in a rigorous manner. However, it should be strengthened to match the principled approach proposed by the Task Force.

In addition to criteria being included in the Act, therefore, we believe that the criteria and several guiding principles should be included in the ASD Policy and Policy Guide, to be used in determining whether the Act should apply to a new organization.³

Where, in applying the criteria, it is determined that it would not be appropriate for the new organization to be covered by the Act, the ASD Policy should require that the organization establish an alternate disclosure regime in order to ensure public access to information.

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¹Jerry Bartram, The Scope of The Access to Information Act: Developing consistent criteria for decisions respecting institutions, Research Report 12.

²Treasury Board Secretariat, Policy on Alternative Service Delivery, February 2002 (http://www.tbs-sct.gc.ca/Pubs_pol/opepubs/TB_B4/asd-dmps_e.html)

³For a fuller discussion, see Jerry Bartram, Maintaining the public right of access to information when service delivery models change, Research Report 13.