The federal government’s plan to revitalize the access to information framework has commenced. The first phase, Bill C-58: An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts, has received royal assent. The second phase entails a full review of the Access to Information Act (ATIA) one year after the amendments come into force and every five years following.
What you need to know
The key changes to the access to information framework provided by the amendments to ATIA include:
- Proactive publication. The Senate, the House of Commons, parliamentary entities, minister’s offices, government institutions (including Crown corporations) and the courts are required to electronically publish information specified in the amended ATIA. The information required to be published varies by government institution but generally covers details of travel and hospitality expenses, certain contracts, grants and contributions and Ministerial mandate letters. This is new to the access to information legal framework and will likely increase the administrative burden on the required parties.
- Vexatious requests and complaints. Government institutions may refuse to act on access requests and complaints that are vexatious or made in bad faith, among other reasons, with the Information Commissioner’s approval. Further, the Information Commissioner may refuse to investigate complaints that are trivial, frivolous, vexatious or made in bad faith. These changes are intended to help focus government resources on requests that are consistent with the spirit of the ATIA in promoting accountability and transparency.
- Order-making power. Under the amended ATIA, the Information Commissioner has the power to order government institutions to release requested records. This effectively shifts the burden of challenging disclosure decisions from the requestor to the government institutions and third parties whose information is contained in disputed records.
- Privileged documents. While the Information Commissioner has the power to examine any records protected by privilege (e.g., solicitor-client or litigation privilege) during an investigation of a complaint, this does not constitute a waiver of those privileges.
- Transition. The amendments do not apply to requests, complaints and information that is required to be proactively published before the coming into force of the relevant provisions.
Refusing to act or investigate
The amended ATIA authorizes government institutions, with the approval of the Information Commissioner, to refuse to act on a record access request if: the records are already available or can be reasonably accessed by other means; the request involves a large number of records and unreasonably interferes with the operations of the government institution; or the request is vexatious or made in bad faith.
The person whose request has been refused may file a complaint with the Information Commissioner. However, the amendments also authorize the Information Commissioner to refuse to investigate a complaint if it’s trivial, frivolous, vexatious or made in bad faith, or if an investigation is unnecessary considering the circumstances of the complaint (e.g., if the complaint is already the subject of an investigation).
Power to make orders
A person who is unsatisfied with how a request is handled may file a complaint with the Information Commissioner. Under the current access to information framework, the Commissioner can only provide a recommendation to the applicable government institution regarding the release of the records. The government institution may continue to decline the release of the requested records, leaving judicial review as the requestor's only recourse.
Under the amended ATIA, the Commissioner has the power to make orders requiring the applicable government institution to disclose the record or reconsider the decision to refuse access to the record. If the record in question contains information of a third party, the Commissioner must make every reasonable effort to notify the third party of such intentions before making an order to disclose the record.
Concluding an investigation, the Commissioner will provide a final report to the complainant, the applicable government institution and any third parties whose information is included in the disputed records. The complainant and the government institution have 30 business days after the government institution receives the report to challenge the conclusion in Court. If neither the complainant nor the government institution applies to the Court, the third party involved has 10 business days after the expiry of the 30 business days to ask the Court to review any disclosure exemption that may apply with respect to the third-party information.
A new feature of the amended access to information framework is the proactive publication requirement. The new regime imposes legal obligations on the Senate, the House of Commons, parliamentary entities, minister’s offices, government institutions (including Crown corporations) and the courts to proactively publish a range of information. This information includes mandate letters to Ministers, question period notes, certain briefing materials, travel and hospitality expenses, certain contracts, grants and contributions. In the case of Crown corporations, the proactive disclosure requirement is limited to travel and hospitality disclosure of senior officers and employees (which includes members of boards of directors) and disclosure of any reports of the Crown corporation’s activities that must be tabled in the Senate or House of Commons. Reporting deadlines vary depending on the nature of the institution and the type of disclosure, but in most cases the disclosure is required on a quarterly basis.
The amendments have received royal assent and are now law. The proactive publication requirements for the Senate, the House of Commons, parliamentary entities and the courts do not come into force until June 21, 2020. The amended ATIA contains detailed and nuanced requirements and procedures for the revised federal access to information framework. Government institutions, Crown corporations, and third-party organizations should review these new requirements and procedures carefully to prepare for and adapt to the changes. The amended ATIA will be reviewed after one year and every five years after that.
To discuss these issues, please contact the author(s).
This publication is a general discussion of certain legal and related developments and should not be relied upon as legal advice. If you require legal advice, we would be pleased to discuss the issues in this publication with you, in the context of your particular circumstances.
For permission to republish this or any other publication, contact Janelle Weed.
© 2021 by Torys LLP.
All rights reserved.