Access to Information: Making it Work for Canadians

Report of the Access to Information Review Task Force

The Legislature

Parliament

The view of the 1986 Parliamentary Committee was that access to information legislation should apply to public institutions that the general public perceives to be part of the institutional machinery of government, including the Senate, the House of Commons (except for the offices of Senators and Members of the House of Commons), and the Library of Parliament. This recommendation was supported by successive Information Commissioners.

The Parliamentary Committee also referred to the need to protect parliamentary privilege. Parliamentary privilege is the collective and individual rights accorded to parliamentarians to ensure they are able to carry out their functions and perform their duties without obstruction. The privilege is protected by the Constitution and extends to all matters relating to parliamentary proceedings. This includes a Member’s right to freedom of speech, the House’s entitlement to regulate its own internal affairs and a Committee’s right to call witnesses.

We believe that the Act should apply to information about the administrative operation of the institutions of Parliament, namely, the House of Commons, the Senate and the Library of Parliament. However, we also believe that exceptions should be made for information that would be protected by parliamentary privilege. It is our view that this protection is necessary to ensure that the Senate and House of Commons function independently and effectively. Nor should the Act apply to the information of political parties or their caucuses, or to the personal, political and constituency records of individual Senators and Members of the House of Commons.

To ensure its autonomy from the executive and the courts, and to protect its immunities and privileges, Parliament may wish to consider a modified redress process to resolve complaints about the handling of requests for its records. Should Parliament be of the view that judicial review by the Federal Court would be incompatible with its independence, a second tier review following the complaint stage could be undertaken by Parliament itself. In other words, the first stage of the usual redress process could apply -- a requester would have the right to complain to the Information Commissioner, and the Commissioner would be able to investigate the complaint and make recommendations to the appropriate parliamentary institution. Any second tier review, however, could be done by Parliament - for example, by a “blue ribbon” panel of current or former parliamentarians appointed jointly by the two Houses of Parliament. The panel, in turn, could make recommendations to the Speakers of each House who are the recognized authorities on parliamentary privilege.

Return to Table of Contents

Officers of Parliament

An officer of Parliament is responsible to the House of Commons, the Senate, or both Houses of Parliament, for carrying out certain statutory duties. Parliamentary Officers include the Chief Electoral Officer, the Auditor General, the Commissioner of Official Languages, the Information Commissioner and the Privacy Commissioner.

The Auditor General, the Information Commissioner and the Privacy Commissioner all expressed concern about the possibility that coverage would require them to disclose information provided to them by other institutions in the course of their audits or investigations, or information generated internally in the course of those audits or investigations.

The Task Force is of the view that the Act should apply to the Auditor General, the Commissioner of Official Languages, and the Information and Privacy Commissioners. We also believe that their concerns about coverage should be addressed in the Act.

The Chief Electoral Officer’s mandate differs in that he does not oversee the activities of the executive in the way that other parliamentary officers do. To the contrary, the Chief Electoral Officer oversees Elections Canada, which is the non-partisan agency responsible for the federal electoral system. The Canada Elections Act already governs disclosure and non-disclosure of election documents and information relating to investigations. Coverage under the Access to Information Act could lead to conflicting provisions. The Task Force concluded, therefore, that the Chief Electoral Officer should not be covered by the Act. However, we believe that provision for access to information about the administration of the Office of the Chief Electoral Officer, and a mechanism to resolve any related disputes, should be added to the existing disclosure regime in the Canada Elections Act.

The question has also arisen about how complaints lodged under the Act against the Office of the Information Commissioner should be handled. In both Alberta and British Columbia, for example, the legislation provides for a judge to be designated to investigate any complaint made against the Commissioner. The alternative is a one-step redress process where the requester would bypass the investigative stage and go directly to court for judicial review of the Information Commissioner’s decision not to disclose records, to charge fees, etc. It is our view that this formal approach would cost the requester much more in both time and money.

We believe that an approach similar to that in the provinces would be appropriate at the federal level. However, to minimize any perceived or real conflict of interest where the same Federal Court judge could investigate a complaint against the Office of the Information Commissioner and conduct judicial reviews under the Act, we concluded that a retired judge could be designated to investigate such complaints. We expect these cases to be rare.

Return to Table of Contents

The Courts and the Judiciary

The Supreme Court of Canada, the Federal Court of Canada and the Tax Court of Canada are constituted by Act of Parliament. The federal government appoints judges to these courts and to the superior courts of the provinces and territories. There are, in addition, two related institutions. The Canadian Judicial Council, composed of the Chief Justices and Associate Chief Justices of the federal courts and the superior courts of the provinces and territories, is concerned, among other matters, with judicial discipline. The Office of the Commissioner for Federal Judicial Affairs is responsible for administering the salaries and benefits of federally-appointed judges across Canada (apart from the judges of the Supreme Court), and provides administrative support for the appointments process.

The 1986 Parliamentary Committee recommended that the Act not be extended to the three federally-constituted courts. In his latest annual report, the Information Commissioner has taken the same position, noting that the courts, which must adjudicate complaints under the Act, should not themselves be subject to it or to investigation by his Office. He further notes that court proceedings are already open to the public to a much greater degree than the activities of other institutions.

The Task Force agrees with this assessment. Coverage of the courts and the judiciary under the Act would not be appropriate. To further ensure judicial independence, the Act should not apply to the Canadian Judicial Council or the Office of the Commissioner for Federal Judicial Affairs. However, the courts and related institutions should be made more transparent than they are now by disclosing administrative records, as a matter of course, as well as on request.

Return to Table of Contents

Conclusion

The structure of government institutions has changed a great deal since the Act was passed. Coverage under the Access to Information Act is now narrower than in most other jurisdictions. Moreover, there is no clear public policy rationale, nor any criteria, for including or excluding existing and new institutions. The Task Force is of the view that most institutions in the executive branch should be included, unless coverage is inappropriate given their structure, or there is a risk of harm to their mandate that cannot be avoided by applying exemptions or exclusions. Toward this end, criteria should be set out in the Act so that organizations meeting the criteria may be added to Schedule I.

We believe that coverage should also be extended, along with appropriate protections, to the Senate, the House of Commons, the Library of Parliament, and parliamentary officers such as the Auditor General, the Commissioner of Official Languages, and the Information and Privacy Commissioners.

Finally, it is our view that institutions which are not made subject to the Act, including the courts, should nevertheless be encouraged to adopt alternate, comprehensive disclosure regimes. These regimes should aim to ensure the highest possible degree of transparency.

Next Page

Return to Table of Contents