Access to Information: Making it Work for Canadians

Report of the Access to Information Review Task Force

Chapter 3 – Looking at Scope: Records Covered by the Act

The Access to Information Act applies to a record under the control of a government institution. What is a “record” for the purposes of the Act? What information should be considered to be “under the control” of a government institution?

Definition of a Record

Section 3 of the Act defines “record” as follows:

“record” includes any correspondence, memorandum, book, plan, map, drawing, diagram, pictorial or graphic work, photograph, film, microform, sound recording, videotape, machine readable record, and any other documentary material, regardless of physical form or characteristics, and any copy thereof.

There have been several recommendations over the years to add to the definition of “record” specific types of recorded information such as voice mail, electronic mail, electronic data interchange, computer conferencing and other electronically-stored communications. However, the Task Force is of the view that the current definition already includes all those types of records, regardless of the medium. The current definition also mirrors the broad definition of “record” in the National Archives of Canada Act. We believe that nothing would be gained by amending the definition.

The concerns expressed to the Task Force, however, seem to point to a lack of understanding of the definition of “record,” and its application in practice. Public servants who create, maintain and dispose of records should have a clear understanding of what records are covered by the Act. We will return to the issues of information management, and training and tools for public servants, in Chapter 9.

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Under the Control of a Government Institution

To be covered by the Act, a record must be “under the control of a government institution.” Does this mean that all information a government institution possesses should be considered to be under its control? Conversely, should information not in the possession of a government institution nonetheless be considered to be under its control? If so, in what circumstances?

The Act does not define “control.” The Treasury Board guidelines make it clear that a record in the physical possession of an institution, whether inside or outside Canada, is presumed to be under its control unless there is evidence to the contrary. The leading Canadian case on the issue is Canada Post Corp. v. Canada (Minister of Public Works).¹ The Federal Court of Appeal held that the notion of control was not limited to the power to dispose of a record. The Court found there was nothing in the Act that indicated that the word “control” should not be given a broad interpretation, and that a narrow interpretation would deprive citizens of a meaningful right of access under the Act.

Other jurisdictions have developed more explicit guidelines on the meaning of control which are helpful for both public servants and requesters. The Alberta guidelines, for example, indicate that a record is under the control of a public body when the public body has the authority to manage the record, including restricting, regulating and administering its use, disclosure or disposition. The guidelines set out a number of indicators that a record may be under the control (or in the custody of) a public body. These include: the record was created by or on behalf of a public body; the record is specified in a contract as being under the control of a public body; the record is in the possession of the public body; and the public body has the authority to regulate the record’s use and disposition.

In our consultations, federal Access Coordinators made the point that government institutions currently have no clear understanding of what is “under the control.” The Coordinators told us that the lack of clear guidelines in this regard has led to divergent opinions and formal complaints. The Task Force agrees that more guidance on this issue is required.

We also agree with the view of the former Ontario Information and Privacy Commissioner² that it is not possible to establish a precise definition of the word “control” and simply apply the definition in each case. As the Commissioner suggested, it is necessary to consider all aspects of the creation, maintenance and use of particular records, and to decide whether control has been established, looking at the particular circumstances.

Guidelines can help provide this kind of practical, detailed direction to those responsible for implementing the Act. There are several provincial examples that the federal government could emulate. Clearer guidelines, combined with training for access to information officials on this issue, should help to solve most cases readily and avoid needless disputes.

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Contractors’ Records Related to the Delivery of Government Programs and Services

There has been an increase in recent years in the contracting-out of federal programs and services to the private sector. These are not normal contracts to obtain goods and services for government use, but contracts or arrangements involving the transfer of the delivery of a program or service, previously delivered by the government, to a contractor for a specified period. For example, an institution could contract out its entire information technology function to a private enterprise, or pay a private company to perform technical inspections on its behalf. However, the accountability for the functions

remains with the government. It should also be noted that the performance of these functions may be a relatively small part of the private sector contractor’s activities.

In Chapter 2, we discussed the government’s Policy on Alternative Service Delivery (ASD). The ASD Policy also applies to the contracting-out of federal programs and services. Like other ASD initiatives, the Policy for these situations requires institutions proposing to contract out programs or services to prepare a case analysis. Among other things, this analysis involves several “public interest” tests, including how the access to information rights of Canadians will be maintained.

The Task Force concluded that the government’s ASD Policy should be amended to apply the proposed criteria for coverage under the Act to new ASD organizations. For “contracting out” initiatives, the approach should not be to bring private sector companies under the Act because they are delivering government programs or services for a time under contract. Rather, it should be to ensure that Canadians continue to have access to records relevant to the government’s accountability for the program or service.

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Records in Ministers’ Offices

The Act states that it applies to records “under the control of a government institution.” It makes no special provision for Ministers’ offices, but does distinguish, in other contexts, between government institutions and Ministers and their exempt staff. The government has consistently interpreted the relevant provisions of the Act as meaning that a Minister’s office is separate and apart from the “government institution” or department over which the Minister presides, so the Act does not apply to records held exclusively in a Minister’s office.

The Information Commissioner does not agree with this interpretation. His view is that the Minister, as head of the government institution, is part of the department, and the Act should apply to records in a Minister’s office other than those of a personal or political nature. At the time of writing this report, the issue was before the courts.

Other jurisdictions’ legislation is generally more explicit. Two approaches are used to exclude records in Ministers’ offices. Under the first approach, records in Ministers’ offices are generally excluded unless they are connected to the institution because the records either came from the department or were sent to the department by the Minister’s office. Under the second approach, the legislation covers Ministers’ offices, but excludes specific kinds of records.

The Access to Information Act is legislation intended for the use of all Canadians, and the plainer its rules the better. Therefore, we believe a more explicit approach would be preferable.

It is the view of the Task Force that the application of the Act to records in Ministers’ offices should be elaborated upon in the Act. Since the matter is currently before the courts, however, there may be some benefit to awaiting the courts’ substantive ruling before proposing any amendment to the Act.

We also believe that the staff in Ministers’ offices should receive training so they are better aware of institutions’ obligations under the Act (this is a recommendation we make again in Chapter 11), and of the National Archives of Canada guidelines³ for the proper and separate management of ministerial and institutional records.

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¹Canada Post Corp. v. Canada (Minister of Public Works), [1995] 2 F.C. 110 (C.A.).
²Commissioner Sidney B. Linden, Order 120, November 22, 1989, at 6.
³National Archives of Canada, Guidelines for Managing Recorded Information in a Minister’s Office, (Minister of Supply and Services Canada, 1992). (http://www.archives.ca/06/0603_e.html)