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Submissions to the Access to Information Review Task Force
SYNOPSIS OF RECOMMENDATIONS / PROPOSALS / COMMENTS FROM WRITTEN SUBMISSIONS SENT TO THE ACCESS TO INFORMATION REVIEW TASK FORCE
The following contains the recommendations, proposals and input received from individuals and organizations who responded to the request by the Access to Information Review Task Force (ATIRTF) to provide written submissions on issues related to the access to information framework. The individuals or organizations who are identified have given the ATIRTF permission to post/publish their names or titles.1
PART I - PROPOSED CHANGES TO LEGISLATION
1. ACCESS TO INFORMATION CONTEXT
Essential Principles
The purpose clause expresses a noble intent that is unfulfillable in practice and is in fact contradicted by the details of the Act.
Robert Bothwell & Patricia McMahon
The principal concern we have is that the Act does not achieve its original promise. Canadians are entitled to timely access to information generated by their government at their expense. For a variety of structural and practical reasons, the system does not facilitate this timely access. In fact, it inhibits it. This appears to be especially so in the case of information which the media has already identified through its sources as existing, interesting, and important to public debate.
Ad IDEM - Advocates In Defence of Expression in the Media
Definition and Format
Make the language of the Access Act consistent with the Personal Information Protection and Electronic Documents Act and frame it in terms of "information" rather than "records".
Kirsti Nilsen & Margaret Ann Wilkinson
Use wording analogous to that used in the Personal Information Protection and Electronic Documents Act such as "This Act applies to all information held for the public by or on behalf of government".
Kirsti Nilsen & Margaret Ann Wilkinson
There needs to be more specific criteria in the legislation that would enable access officers to make more informed decisions about the disclosure of information.
Robert Bothwell & Patricia McMahon
I believe that the right of access should be to "information" under the control of the government, not to "information in records".
Ken Huband
The ATI Act should be amended to include electronically stored information (e.g. voice-mail, E-mail, computer conferencing etc.) explicitly in the definition of recorded information, and to give requesters the right to request a record in a particular format if it exists in various formats.
Open Government Canada
Overall Time Limits to Exemptions
We think that we should revert to a version of the thirty-year rule. We think a twenty-five year limit would be a good one.
Robert Bothwell & Patricia McMahon
We strongly recommend the introduction of a passage of time clause, requiring that all government records should be released by their creating department or the National Archives twenty-five (25) years after their creation. If there are rare exceptions, e.g. aspects of national security records, and even rarer commercial confidential information and personal privacy records, these should be justified for continued closure on a case-by-case basis made before the Information Commissioner, who would rule on their validity, subject to appeal to the courts. The CHA would strongly oppose continuing, open-ended, blanket exemptions to such a clause.
Canadian Historical Association
[The Association of Canadian Archivists] urges very strongly the Task Force to introduce a passage of time clause, requiring that all government records should be released by their creating department or by the National Archives twenty-five (25) years after their creation … If there are rare exceptions to this blanket release date, save only for sensitive personal information that has longer passage-of-time release dates already, these should be justified for continued closure only on a case-by-case basis made before the Information Commissioner, who would rule on their validity, subject to appeal to the courts. This places the burden rightly on government to demonstrate why records should remain closed rather than on citizens to request (at their time and expense) that they be opened.
Association of Canadian Archivists
Reports to Parliament
The ATI Act should be amended to require government institutions to report annually the percentage of requests received which were not responded to within the response time limits in the law, and to provide reasons for the delays.
Open Government Canada
Return to Table of Contents
2. SCOPE OF THE ACCESS TO INFORMATION ACT - INSTITUTIONS
Extending Coverage of the Act
The scope of the Access to Information Act should be reviewed.
National Council of Women in Canada
The Export Development Corporation must immediately be made subject to the Access to Information Act.
Probe International
Agencies outside government should be included in the regime where they deliver services to the public on behalf of the government.
- Alternative: we recommend that s 77(2) of the Access Act - which currently allows the government only to add by regulation bodies "of the government of Canada" - be amended to enable Government to include other agencies on a case by case basis.
- Second alternative: we recommend that the Act be re-drafted so that Schedule 1 is those agencies NOT covered by the Act, rather than the current reverse situation.
Kirsti Nilsen & Margaret Ann Wilkinson
[The CJFE] calls for the ATIA's scope to be broadened to cover areas and entities that it currently does not cover, but which, in many instances, were created by federal legislation (e.g., Canadian Blood Services).
CJFE - Canadian Journalists for Free Expression
[The CJFE] further asks that administrative actions in which the federal government transfers responsibilities without any legislative action at all (e.g., the Greater Toronto Airport Authority) be covered.
CJFE - Canadian Journalists for Free Expression
There should be very few agencies, regardless of their status, federal department, special operating agency, Crown corporation, etc., that are exempted under the Act. Any of those applying to be exempted should provide overwhelming proof for this special status.
Canadian Library Association
We believe that the scope of the Act should be expanded to include all or most federal departments, crown corporations and agencies. At present some agencies are exempted, while others are not; there seems no clear rationale for why this should be the case. It is our view that the attached schedule of departments and agencies subject to the Act should be the same as that for the Privacy Act (which is much broader) and the National Archives Act. Given their inter-relatedness we believe that the three Acts should have the exact breadth of coverage.
Canadian Historical Association
A major shortcoming of the current Access to Information Act is its narrow approach to institutional coverage. The current list freezes access to institutions in a particular moment in time. Instead of providing an exhaustive list of covered institutions, the Act ought to provide a general test for coverage: does the institution perform a government function? This would mean that any institution, tribunal, or agency that performs what can be considered a "government function" would be covered by the Access to Information Act.
Robert Bothwell & Patricia McMahon
We oppose efforts to itemize which institutions are covered by the Act. Indeed, given that there is a presumption that individuals have access to government information, perhaps a better approach is for the government o specify which institutions are not covered by the Act. Any list must be included in the regulations rather than legislation given that regulations are far less difficult to amend and update than legislation.
Robert Bothwell & Patricia McMahon
[The Association of Canadian Archivists] urges the Task Force to expand the scope of the Act, so that the schedule of departments and agencies subject to the Act is made identical with those of the Privacy Act and the National Archives of Canada Act with which they are related.
Association of Canadian Archivists
Portions of important public institutions, such as the House of Commons and the judicial system, are conspicuously absent - there may be others. It would be appropriate to review them all for suitability of coverage. Another extremely important area is that of the new organizations emerging e.g., NavCan, the Canadian Institute for Health Information (CHI). Generally speaking, the transfer of certain government functions to hybrid public/private organizations should be carefully reviewed using criteria to ensure that public accountability and transparency is not sacrificed in the process.
Ken Huband
Any institution which receives significant public monies for its operation or which functions as a monopoly or quasi-monopoly in the private sector by virtue of its legal status should be subject to the Act.
Ken Huband
Institutions should be added or removed from the list of those subject to the Act by some means whereby any newly created institution would automatically be made subject to the ATI legislation. Any exceptions should be made via a Notice published in the Canada Gazette with the reasons for the exception and a period for public comment followed by publication in Part 2 if the exception is successful.
Ken Huband
As in the United Kingdom, the ATI Act should be amended to require Cabinet to add an institution to the list of institutions covered by the law if the institution (or information it maintains):
- is funded in whole or in part by the federal government;
- is an administrative part of the institution of Parliament (including
Minister's offices);
- is wholly or majority owned by the federal government;
- is owned by a parent institution which is wholly or majority-owned
by the federal government;
- it or its parent institution managed by one or more people appointed
under federal law;
- performs functions governed by federal law; or
- performs essential public interest functions (i.e.. in the areas of
health, safety, environmental protection, economic security).
Open Government Canada & NGO Working Group
on the Export Development Corporation
The ATI Act should be amended to require that all contracts entered into by institutions covered by the law include a clause that ensures records generated during the contract remain in the control of the institution and covered by the access law.
Open Government Canada & NGO Working Group
on the Export Development Corporation
All Crown corporations should be covered by the legislation. By way of example, the Atomic Energy Control Board is now subject to the Act, while the Atomic Energy of Canada is not.
Professional Institute of the Public Service of Canada
Organizations created by government which disburse public funds should be subject to the legislation. An example, the Canadian Foundation for Innovation is not covered. We note that the Natural Sciences and Engineering Research Council of Canada, with a comparable role, is now covered.
Professional Institute of the Public Service of Canada
The IPC recommended a government framework which would include the requirement for a written contract between the institution and private service provider explicitly maintaining the application of the Acts to records necessary for the performance of the service. Access, security and record retention are additional details to be specified in these contracts. We encourage the Task Force to consider statutory provisions or a framework of this nature.
Ann Cavoukian, Information & Privacy Commissioner, Ontario
The Canadian Broadcasting Corporation expresses concerns about possibly being brought under the coverage of the Access to Information Act. The primary concerns expressed by the CBC relate to protecting freedom of the press, journalistic integrity, independence from government and the Corporation's competitive position.
Canadian Broadcasting Corporation
3. SCOPE OF ACCESS TO INFORMATION ACT - RIGHT OF
ACCESS
Access Rights
Restriction of the right of access to Canadians and persons resident in Canada is one clause that should go, and not before its time.
Robert Bothwell & Patricia McMahon
The Act is primarily intended as a tool to assist the citizens of Canada. However, there may be value in giving institutions the discretion to accept requests from those outside of Canada. The question is somewhat moot inasmuch as anyone outside the country can obtain or retain an eligible person to make the request on their behalf if they so wish.
Ken Huband
Footnotes
- Specific recommendations have, for the most part, been transposed as drafted in the original submission. Views, proposals, comments, etc. have been summarized or paraphrased as accurately as possible by the Access to Information Review Task Force.
