Federal Government Completes Review of Access to Information Regime

Canada’s federal Access to Information Act (ATIA) provides individuals and corporations present in Canada with a right to access records under the control of 265 government institutions. However, that access is subject to a system of specific and complex exemptions and exclusions to protect information that, if disclosed, could cause harm to the government or third parties.

Operationalizing such a broad right in a complicated system like the federal public service is no small feat. The government and many commentators have for years identified significant strains on the access to information regime resulting from a lack of system resources that have led to increasingly significant delays for requesters and costly complaints to Canada’s Information Commissioner. For example, the Information Commissioner’s last annual report indicated that it received nearly 7,000 complaints in the 2021/22 fiscal year, up from about 4,000 complaints the year before.

This bulletin provides an update on the status of the federal access to information regime. We highlight key findings from the recent legislated review of the ATIA conducted by the Treasury Board Secretariat (TBS), explain new proposed amendments to the Access to Information Regulations and set out tips for businesses who share confidential information with government.

TREASURY BOARD SECRETARIAT REVIEW OF ATIA

To address some of the systemic concerns facing the federal access regime, amendments to the AITA were passed in 2019 to require proactive publication of commonly requested government information, provide the Information Commissioner with powers to order the disclosure of records and require the government to review the ATIA every five years.

In June 2020, the President of the Treasury Board launched the first legislated review of the ATIA, which included several public engagements with public servants and the public. A separate Indigenous engagement process resulted in a report specific to Indigenous concerns.

The TBS report, which was published on December 11, 2022, does not make any recommendations to Parliament for amending the ATIA. Instead, the report identifies several conclusions about the status of the access to information regime. Among the conclusions, TBS identified that:

• The Government of Canada requires a more consistent and strategic lifecycle management of information and data assets system to ensure that records subject to a request can be easily located.

• Government of Canada employees working in access to information roles do not have appropriate training or support and would benefit from centralized and coordinated resources.

• Digital tools have not yet been implemented for reducing the use of lengthy extensions that government institutions take to comply with legislated deadlines and administer complex requests.

• Policy options should be examined to seek to reduce the time taken to consult about requests with other institutions.

• A systematized approach to declassification of government information and increased proactive disclosure would improve the agility of the ATIA regime.

• Access to information is particularly important for Indigenous groups, especially for claims that rely on information obtained through the system.

The report also highlights the complexity of the ATIA’s exemption regime compared to more modern freedom of information laws in other jurisdictions. The report suggests that the ATIA could be amended to remove class-based exemptions from disclosure and replace them with harms-based exemptions.

For example, the ATIA currently includes a class-based exemption for confidential financial, commercial, scientific or technical information that was supplied to a government institution by a third party and is consistently treated in a confidential manner by the third party. Replacing this exemption with one that is harms-based would have a significant impact on how third-party information held by government is disclosed. It would also require a more individualized assessment of the circumstances of each confidentiality claim, likely further increasing the burden on the ATIA system.

Although TBS has not indicated that it intends to introduce a bill to amend the ATIA, businesses should play close attention to any proposed changes to the existing class-based exemption for confidential third-party information.

PROPOSED ATIA REGULATION AMENDMENTS

On December 24, 2022, the Treasury Board Secretariat published a regulatory impact analysis statement for proposed amendments to the Access to Information Regulations made under the ATIA. The proposed changes would eliminate fees apart from the C$5 fee that was introduced in 2019 for making an access to information request. The proposed amendments would also require institutions to ensure that the requester is a Canadian citizen, a permanent resident or a person present in Canada, which would align with current policy and operational practice but make it a formal requirement.

Comments on the regulatory proposal can be made until January 23, 2023.

TIPS FOR BUSINESSES INTERACTING WITH THE GOVERNMENT OF CANADA

The health and functioning of Canada’s access to information system is important to the many different types of businesses (domestic and international) that interact and share confidential information with federal government institutions. It is crucial for businesses to understand how the government handles their informational assets, how they are consulted on potential disclosure of their information and the costs associated with these processes.

As noted above, the ATIA provides a class-based exemption from disclosure for third-party information that is supplied to a government institution in confidence and is treated confidentially by the third party. Being able to demonstrate that the information was provided on a confidential basis, and that your organization takes steps to maintain the confidentiality of its confidential information, will have a material impact on its ability to protect this information from disclosure.

Where it’s not possible to have an appropriate non-disclosure agreement in place to protect confidential informational assets (and even where a non-disclosure agreement is in place), we recommend considering taking the following steps:

• Mark confidential information supplied to government departments and Crown agencies as confidential, and specifically note that the information is exempt from disclosure under the ATIA.  

• Develop internal policies and procedures with respect to maintaining the confidentiality of confidential information.

• Develop incident response policies to ensure that all suspected confidentiality breaches are investigated and remediated.

• Require confidentiality agreements with employees upon hiring and, if appropriate, on an annual basis, and provide regular training on confidentiality and information security.

• Avoid inadvertent public disclosures of confidential information (for example, in academic journals, marketing materials, seminars and conferences, research results, etc.).

For further information, please contact:

Laura Dougan             +1-416-863-2187
Ellie Marshall              +1-416-863-3053

or another member of our Freedom of Information group.