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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
4. SCOPE OF THE ACT - INFORMATION
Exemptions in General
The current exceptions under the ATIA to gaining access to information of a personal nature, risk to business, or security risks, etc. are acceptable, but even these, apart from personal information, should be examined from time to time to ensure that they are not being used as excuses for withholding access.
Canadian Library Association
In our view, injury-based exemptions lend credibility to an access process and should be a driving factor in any new regime.
Ann Cavoukian, Information & Privacy Commissioner, Ontario
The Access to Information Act should exempt only that information which may lead to an adverse result if it were to be disclosed. Furthermore, the burden of proof must be on the government to demonstrate why and how disclosure of such information might lead to harm.
Robert Bothwell and Patricia McMahon
There is no substantive case to be made for maintaining mandatory exemptions
for information received in confidence from other governments, protected
by other listed statutes or RCMP provincial or municipal policing - all
this information should be subject to the exemption structure only.
Ken Huband
All exemptions in the ATI Act should be discretionary, not mandatory.
Open Government Canada & NGO Working Group
on the Export Development Corporation
The ATI Act should be amended to require the government institution to prove that the withholding of information meets the criteria of any exemption or exclusion.
Open Government Canada & NGO Working Group
on the Export Development Corporation
Exclusions should be applied consistently.
Professional Institute of the Public Service of Canada
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Exemption for Law Enforcement and Investigations
I would remove the exemptions for information protected by other listed statutes or RCMP provincial or municipal policing. The information can be protected from disclosure using other available exemptions.
Ken Huband
Exemption for Personal Information
"Personal information" as a concept should be reviewed, with a view to limiting the information exempted… The mere fact that a name is associated with data should not automatically bring access requests to a halt. The nature of the data must be taken into account, and whole categories of information ought not to raise red flags. Effort should be expended in determining what kind of personal data is problematic, with the understanding that the rest can be released.
Ad IDEM - Advocates In Defence of Expression in the Media
… supports changing the Act so that a person's name, by itself, is not considered to be personal information.
Professional Institute of the Public Service of Canada
Exemption for Confidential Third Party Information
Expand section 20(1) to include the grounds described in sections 16(2) and 17 of the ATI Act.
Greater Toronto Airports Authority
The disclosure of information on public interest grounds should prevail
over corporate interests. Companies always have the option of seeking
private sector financing if they don't like the terms of disclosure of
public agencies.
Probe International
Many institutions engaged in unnecessary formal consultations which created additional work, delayed the final response and gave third parties the ability to delay a response when they had no legal right to do so. For information which the institution can reasonably conclude meets the tests in section 20, no formal consultation should be necessary to invoke the exemption. By the same token, if it is clear during the review that the third party information cannot possibly qualify for an exemption, I think it should be disclosed without giving a formal notice to the third party.
Ken Huband
I was unable to access information held by the Farm Credit Corporation / Agriculture and Agri-Food Canada and now need to sue the company and subpoena the documents via the BC Supreme Court, a time-consuming and costly process.
Douglas M. Brown
The "commercial confidences exemption" of the Act must be clarified so as to specifically describe what type of information can be withheld.
NGO Working Group on the Export Development Corporation
Our members urge the Task Force to consider in their review
a recommendation to strengthen the legislative exemptions or provisions
in order to recognize that certain communications or exchanges of information
between government institutions and third parties are received by such
institutions in confidence and are understood, either expressly or implicitly,
to be held confidentially. We urge the Task Force to appreciate that this
element of confidentiality is essential to a continuing and functional
relationship between government and such parties, and that there is a
strong 'public interest in fostering such confidences, as was articulated
by MacKay J. in Air Atonabee Ltd. v. Canada (Minister of Transport) (1989)
37 Admin. L.R. 245 (Fed. T.D.) at 274:
..,"it is consistent with the public interest, and the relationship [between government and certain third parties] would be fostered for the benefit of the public. ..by treating as confidential those communications which originate with [such third parties] where the [third party] has considered them confidential. ...(The third party would be encouraged to be open and frank with [government officials] if its understanding about the restricted purposes and circulation of its communications is recognized and respected).
Association of International Automobile Manufacturers
of Canada and the Canadian Vehicle Manufacturers' Association
Our members also submit that, in addition to the exemptions already provided for under the Act, there may be circumstances where certain confidential information ought properly to be exempt from disclosure where disclosure is likely to impair government's ability to obtain necessary information in the future or where disclosure may impair a confidential relationship between government and a third party. Indeed, the inability of government to secure useful information from external sources may impair or reduce the efficacy of government. Information subject to such an exemption may include information received by a government institution in accordance with a third party's regulatory obligations, but should also properly contemplate and include circumstances where government actively seeks the assistance of individuals or industry, such as described above in relation to fuel additives. In brief, our members believe that the protection of their confidential information under the legislation should be clear, unambiguous and complete.
Association of International Automobile Manufacturers of Canada and the Canadian Vehicle Manufacturers' Association
When releasing any draft material into the public domain through ATIP, that draft material must be confirmed as empirically correct. Any unconfirmed data should be exempted from release. This will prevent the dissemination of misinformation to the public.
Canadian Bankers Association
The government should develop a "threshold test" to determine whether groupings of confidential information are suitable for release into the public domain. This would ensure that industries in Canada, such as the banking community and the steel industry, which have a limited number of dominant players, have their legal privacy rights safeguarded.
Canadian Bankers Association
As a "third party" we would also recommend being given the courtesy of notification when such reports are being considered for release to the public under ATIP provisions. The government should develop a formal process to ensure that the banks have the opportunity to review any subsequent drafts of this report and object to the inclusion of any information which they regard as confidential or misleading.
Canadian Bankers Association
Exemption for Advice and Recommendations to Government
Although section 21 of the federal Act contains two exceptions, section 13(2) of Ontario's Act provides a more comprehensive list of 12 categories of records which do not qualify for exemption as advice or recommendations to government. These exceptions include: factual material, statistical surveys, environmental impact statements and various types of reports. We have found that subsection 13(2) of the Act provides guidance in applying section 13, and encourage the Task Force to consider a provision of this nature.
Ann Cavoukian, Information & Privacy Commissioner, Ontario
I would restrict application exclusively to information that was prepared for or used in a decision-making process but that was not followed by the decision-maker. If the advisory process has led to a decision, the advice and recommendations supporting the decision should no longer qualify for exemption as advice. However, advice and recommendations not followed by the decision-maker should still be subject to exemption but on discretionary, injury test basis.
Ken Huband
Exemption for Solicitor-Client Privilege
As regards the discretionary class exemptions, these should all be converted to injury test exemptions, with the possible exception of solicitor-client privilege - a class of information in which the timelines for sensitivity are often so long that it is difficult to make an informed judgement about injury.
Ken Huband
Statutory Prohibitions Against Disclosure (Section
24)
Remove section 17 of the Statistics Act from Schedule II of the ATI Act and allow the transfer of control of Historic Census Records to the National Archivist.
Derek Chase
Remove section 17 of the Statistics Act from Schedule II of the ATI Act.
G. John Garner
Requests that census information be released to the National Archives to permit genealogists to research old information for details of their ancestors.
Stanley A. Wickman
Section 17 of the Statistics Act should be removed from Schedule II of the ATI Act to allow for the transfer of the contents of historic census records to the National Archives.
Anna Mae Miller
The combination of section 24 and Schedule II naming section 17 of the Statistics Act operate in direct conflict with the ATI Act and [I]recommend that both section 24 and Schedule II be repealed.
Lyndall H. Winters
Requests release of 1901 census information. (Relates to s. 17 of Statistics Act as part of Schedule II of the ATI Act.)
Frank M. McKerry
The government should make the records from the 1901 census public. (Relates to s. 17 of Statistics Act as part of Schedule II of the ATI Act.)
Margaret Anthony
Section 24 and Schedule II must be removed from the Access to Information Act. If they are to remain, then those Acts, or Sections of Acts, that remain in Schedule II, must be subject to justification for the exclusion they enjoy. There must be some discretion allowed. There must be an injury test, and there must be some time limitations in place after which the restrictions of Section 24 no longer apply.
Gordon A. Watts
Given that the ATI Act contains more than adequate exemptions and exclusions, section 24 of the law should be repealed.
Open Government Canada & NGO Working Group
on the Export Development Corporation
Exclusion of Published Material / Price Barrier
Work both published and to be published should be covered by the Access Act, not exempted, although the provisions for its release may continue to be different from those provided for works which are not either published or to be published.
Kirsti Nilsen & Margaret Ann Wilkinson
The government should continue to provide, in appropriate cases, access through the Access Act to government information contained in databases that have been licensed to database vendors (and hence "published" under the Act).
Kirsti Nilsen & Margaret Ann Wilkinson
Published documents should not be exempted from the Act.
Kirsti Nilsen & Margaret Ann Wilkinson
Section 26 should at least be amended to state that the requirement to process an access request is only obviated where the government or its assignee or licensed vendor is publishing the information at no cost, marginal cost, or reasonable cost. The onus should be on the government agency or organization delivering government services to demonstrate the reasonableness of its publication costs to the Information Commissioner where a request is being denied.
Kirsti Nilsen & Margaret Ann Wilkinson
The federal government should not sell government databases or other data or information assembled or compiled in a particular format but instead should provide a reasonable number of copies of such records to any requester for free.
Open Government Canada
Exclusion of Cabinet Confidences
We are of the view that making Cabinet records an exemption would accord a higher level of scrutiny to this category of records.
Ann Cavoukian, Information & Privacy Commissioner, Ontario
Section 69 [is] much too wide some narrowing is required - why not delegation to departments? The approval process is too long.
Canadian Access & Privacy Association
Cabinet documents be subject to disclosure where the records are of a factual nature.
National Council of Women in Canada
We recommend that cabinet records should be treated at the federal level as they are under provincial regimes: that is, they should be included in the scope of the act, although they may well receive an exempt status in certain circumstances (specific instances of exemption would therefore be reviewable by the Commissioner).
Kirsti Nilsen & Margaret Ann Wilkinson
The cabinet confidence exclusion should be eliminated.
Ken Huband
The section 69 exclusion that prevents the release of Cabinet confidences for 20 years should be changed to an exemption, as in Ontario, that applies only to defined records that "reveal the substance of deliberations of Cabinet" and ensures all other Cabinet-related records (including many records currently withheld under the section 21 (advice and recommendations) exemption) are explicitly subject to the right of access.
Open Government Canada
The time period during which Cabinet confidences cannot be disclosed should be reduced from 20 years to 15 years, as in B.C. and Alberta, or even further to 10 years, as in Nova Scotia.
Open Government Canada
Information in Cabinet Ministers' Offices
The ATI Act should be amended to explicitly cover records held in the offices of Ministers and the Prime Minister which relate to their functions as public officials or their departments.
Open Government Canada
Ombudsman
Recommend an exemption to ATI legislation be created to protect complaint files maintained by Ombudsman from disclosure. Such an exemption is justified both by the high public interest function which is fulfilled by the Ombudsman role and the need to be able to offer adequate protection of complaint files from disclosure, so as to convince would-be whistleblowers and complainants that they can bring their complaints forward in confidence without fear of reprisal and retaliation.
Andre Marin, Ombudsman
Disclosure in the Public Interest / Public Interest
Override
It is important for any access scheme to provide government with the ability to consider the public interest when applying the legislation. Consideration of the public interest enhances the underlying principles of the Act and promotes open and accountable government.
Ann Cavoukian, Information & Privacy Commissioner, Ontario
There ought to be a public interest test that governs all access to information under the Act, applicable to all provisions of the Act, not simply those pertaining to certain types of third party information.
Robert Bothwell & Patricia McMahon
There may be a case for an override for information received in confidence from other governments as it is conceivable that it would be in the public interest to disclose information from such a source (e.g., for public health or safety reasons) even if the originating government refused to consent. Most of the other exemptions deal with the government's own information and this information could, by eliminating some mandatory exemptions, be released on a discretionary basis by an institution without reference to an override. It may be worth considering a general public interest override as a residual power for unanticipated situations in which there is clearly a public interest in disclosure but which do not fit the existing criteria.
Ken Huband
A proof-of-harm test and public interest override (as in B.C. and Alberta) should limit the discretion, under all exemptions, to withhold a record.
Open Government Canada & NGO Working Group on
the Export Development Corporation
There should not be categories of information that are per se exempt from access. There should be a public interest override on all exemptions. There should be greater use of an injury test for determining the release of information.
Ad IDEM - Advocates In Defence of Expression in the Media
