Access to Information Reforms Expand Powers of Information Commissioner

Canada's Access to Information Act (the Act) grants Canadians, permanent residents and corporations present in Canada the right to access the records of government bodies for a $5 processing fee.¹ Long criticized and outdated, the federal government recently proposed a number of reforms to the legislation which would include expanding the powers of the Information Commissioner, providing for the proactive disclosure of information across government and administrative offices and requiring regular review of the Act.

What You Need To Know

Order-making power to the Information Commissioner

• Under the current regime, if a requestor is not satisfied with how a request was handled, they can complain to the Commissioner, who can only provide a recommendation to the applicable government institution regarding the release of the records. The government institution can still decline to release the records and the requestor's recourse is accessible only through judicial review in the courts.
• The amendments reverse the onus by giving the Commissioner order-making power. The government institution would have to release the disputed records—or else challenge the order in the Federal Court.
• If the records contain information of a third party, the amendments would require that the third party be notified of the order and provided with 10 business days to apply to the court to challenge the order.

Ability to decline requests

• The amendments would allow government institutions to refuse to fulfill a record access request if the request is overly broad, the records are already available, the request unreasonably interferes with the operations of the institution, or is believed to be vexatious or made in bad faith.
• The individual whose request has been declined would have the right to file a complaint with the Information Commissioner. However, the Information Commissioner would have the authority to refuse to investigate or discontinue an investigation into a complaint that is, in the opinion of the Commissioner, trivial, frivolous, vexatious or made in bad faith.
• It is hoped that these changes will help to focus government resources on requests that are consistent with the spirit of the Act in promoting accountability and transparency.

Proactive disclosure

• Institutions, as well as the Prime Minister's Office, Ministers' offices, Senators and Members of Parliament will be required to proactively publish information such as mandate letters to Ministers, question period notes, certain briefing materials, travel and hospitality expenses and contracts over $10,000.

What's Next?

While the amendments are intended to promote transparency in government, these changes may also impact companies (third parties) that must submit confidential information to government institutions in various contexts, such as regulatory approvals. Third parties are provided with an opportunity under the Act to oppose the disclosure of documents to a requestor by arguing that the documents include the company's confidential information. Under the new regime, government institutions may be more inclined to decide to disclose records rather than potentially being subject to an order from the Commissioner.

The ability to oppose a request made in bad faith is likely to be helpful in reducing the burden on government institutions and third parties that must manage these requests. It is not clear from the Act how an institution will determine whether a request is made in bad faith, or when a third party can challenge disclosure on this basis.

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¹ R.S.C., 1985, c. A-1.

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