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YOU ARE HERE:
1. Canada.ca
2. Treasury Board of Canada Secretariat
3. Access to information and privacy
4. Reviewing access to information
5. The review process
ACCESS TO INFORMATION REVIEW REPORT TO PARLIAMENT
ON THIS PAGE
* Message from the President of the Treasury Board
* Executive Summary
* Introduction
* Improving Service for Canadians
* Enhancing Trust and Transparency
* Advancing Indigenous Reconciliation
* Access to Information in a Digital Age
* Conclusion
* Annex A – List of conclusions outlined in this Report
* Annex B – Acronyms and Glossary
Access to Information Review Report to Parliament
(PDF, 1,130 KB)
MESSAGE FROM THE PRESIDENT OF THE TREASURY BOARD
I am pleased to present to Parliament the Government of Canada’s report on the
review of Access to Information in Canada.
The Access to Information Act enhances the accountability and transparency of
Canada’s federal institutions. It is in place to create a more open and
democratic society by providing all Canadians with important information and
encouraging public engagement with their government.
In 2019, Parliament passed Bill C-58, an Act to amend the Access to Information
Act and the Privacy Act and to make consequential amendments to other Acts, the
first major reform to this law in over 30 years. Among other improvements, the
amendments gave the Information Commissioner order-making power, entrenched a
system of proactive disclosure and established a regular review of the Act.
This report represents the first of such review. It was informed by an open,
accessible, and inclusive engagement process with feedback from Canadians,
Indigenous governing bodies and organizations, experts, access to information
advocates, provincial and territorial governments, and federal Information and
Privacy Commissioners—all of whom will help shape the next steps.
Through an examination of the legislation, policies, practices, and processes,
the report outlines key areas of focus to achieve 3 main strategic outcomes:
* Improving service to Canadians as it relates to access to information;
* Increasing trust and transparency in institutions; and
* Advancing reconciliation with Indigenous peoples.
The areas covered in the report recognize that openness, transparency, and
accountability are guiding principles of the Government of Canada.
As President of the Treasury Board, I am committed to upholding these principles
and I invite you to read this report.
EXECUTIVE SUMMARY
In 2020, the President of the Treasury Board of Canada Secretariat (TBS)
undertook a comprehensive review of the federal access to information regime
(ATI Review). This review included the Access to Information Act (ATIA), how
information is proactively published, and the way access to information (ATI) is
generally delivered. TBS consulted the public, the Information Commissioner of
Canada and the Privacy Commissioner of Canada, Indigenous peoples and
organizations, federal institutions subject to the ATIA, and the provinces and
territories for input. The ATI Review team then worked with various sectors both
in and outside of TBS to examine ways to improve the ATI regime.
The ATIA regime faces challenges and opportunities similar to other Government
of Canada programs and services. Increasing digital innovation has raised
expectations regarding timely service delivery. The Government of Canada is
committed to addressing these challenges and taking advantage of these
opportunities. Canada’s 2022 Digital Ambition presents a bold vision and
strategy to continue to use digital innovation and data and information
management to improve service delivery and results for Canadians.
In terms of the ATIA, users want to exercise their right of access to receive
high quality information without delays. Federal institutions want the capacity
and tools to respond to user expectations. The ATI Review revealed that the ATIA
is only as good as the operations and information management that support its
administration. The overall administration of the law affects users exercising
their right of access. In the case of Indigenous requesters, access denied can
be justice denied in the context of addressing historical grievances or in
efforts today to assert rights, claims or interests. Whether from ATI users or
federal institutions, the greatest complaint about the ATI regime is poor
compliance with the law. As such, consideration of ATI improvements starts with
opportunities to improve implementation of parts 1 and 2 of the ATIA, as set out
in this report.
These initiatives range from simplifying language and clarifying processes in
the law, to developing more user-centric and equitable practices, and improving
oversight. The Government of Canada’s need to support the implementation of the
United Nations Declaration on the Rights of Indigenous Peoples Act (UN
Declaration Act) will also guide all efforts. The UN Declaration Act, which
received Royal Assent on June 21st, 2021, provides for the Government of Canada,
in consultation and cooperation with Indigenous peoples, to take all measures
necessary to ensure the laws of Canada are consistent with the United Nations
Declaration on the Rights of Indigenous Peoples (UN Declaration). The Government
must prepare and implement an action plan to meet the objectives of the UN
Declaration and to outline progress in annual reports to Parliament. The 2021
mandate letters called upon Ministers to implement the UN Declaration Act and to
work with Indigenous peoples to advance Indigenous rights. TBS has made
concerted efforts to engage Indigenous peoples and reflect Indigenous
perspectives during the ATI Review and will continue to engage on solutions
going forward.
The report focuses on initiatives that will contribute to realizing three goals:
* Improving service to Canadians
* Increasing trust and transparency in institutions
* Advancing reconciliation with Indigenous peoples
The report notes that improvements to the ATI regime need to be accompanied by
broader changes to the ATI system around leadership and culture, technological
innovations, training, and other initiatives. ATI service delivery is impacted
by other, more significant challenges outside the Access to Information and
Privacy (ATIP) office, both within the institution and across government.
The ATI Review has revealed that the stewardship of information and data is the
single greatest pain point for the ATI regime. When information is not managed
well, it is difficult to find, gather and review it in context, as the ATIA
requires.
Importantly, improvements in information and data stewardship support the
ability to automate core business functions. Technological improvements,
however, need to be combined with a focus on service excellence in delivering on
citizens’ right to know and initiatives to build and strengthen the ATIP
community.
INTRODUCTION
The ATIA came into force in 1983 and provides Canadian citizens, permanent
residents, and individuals and corporations present in Canada a right to access
records under the control of government institutions. There are approximately
265 government institutions currently subject to the ATIA. The President of the
Treasury Board is the Minister responsible for supporting the overall
administration of the Act across the federal government, and issuing directives
and guidelines, while the Minister of Justice is responsible for certain
provisions relating to the scope of its application.
The purpose of the ATIA is to enhance the accountability and transparency of
federal institutions. In doing so, the ATIA is intended to promote an open and
democratic society and to enable public debate on the conduct of those
institutions. Policies and procedures that support government transparency and
accountability complement the ATIA. The ATIA is considered to be
quasi-constitutional in nature, enabling the exercise of key rights such as
freedom of expression and democratic participation, which are rights reflected
in Canada’s Charter of Rights and Freedoms. Prior to 2019, the ATIA had not
changed substantially since 2006. In 2016, the government committed to reviewing
the ATIA in two phases. The first phase made targeted amendments to the ATIA,
while phase two was intended to be a comprehensive review of the ATIA.
Phase one was completed in June 2019 with Bill C-58 coming into force. Some of
the key changes brought about by Bill C-58 include:
* the creation of Part 2 of the ATIA, requiring the proactive publication of
certain government information historically requested under the ATIA;
* the Information Commissioner being granted the power to order the disclosure
of records at the conclusion of an investigation; and,
* a requirement to review the ATIA every five years, with the first review to
begin within a year of Bill C-58’s passage, and each concluding with the
tabling of a report in Parliament.
In June 2020, the President of the Treasury Board launched a legislated review,
thereby fulfilling both the new legislated review requirement, and the public
commitment from 2016 to conduct a comprehensive review of the ATI regime. The
Terms of Reference for the ATI Review comprised three major themes including
reviewing the legislative framework; examining opportunities to improve
proactive publication; and exploring ways to improve service and reduce delays.
As part of the review, TBS officials conducted public engagement activities
between March and August 2021, including with public servants and government
institutions subject to the ATIA. An online engagement platform was launched in
March 2021, where the public was able to provide submissions, register for
engagement events and participate in a user experience survey. In addition,
public engagement events organized around key themes were held over Summer 2021.
Overall, TBS received 34 submissions from the public, 294 survey responses, and
heard from 380 participants. Input was used to develop an interim What We Heard
report that was published in December 2021.
At the beginning of the ATI Review process, a separate Indigenous engagement
process was announced to create meaningful opportunities for Indigenous peoples
to engage with the Government of Canada on ATI and share their experiences and
perspectives to improve the ATI regime. Indigenous engagement activities began
in Fall 2021. TBS officials continued outreach with various Indigenous groups
throughout the review period and have reflected their input in an
Indigenous-specific What We Heard report, and in this report. Engagement data
has informed the analysis and opportunities for improvement found in this
report. This data was supplemented by two independent studies: an evaluation
conducted by TBS’s Internal Audit and Evaluation Bureau on proactive
publication, and a commissioned study by Ernst & Young LLP to examine the total
costs of the ATI regime.
The report begins by providing an overview of the current digital context in
which the ATIA regime operates. Then, the report turns its focus to key areas
and potential initiatives that will contribute to realizing three goals:
* Improving service to Canadians
* Enhancing trust and transparency
* Advancing reconciliation with Indigenous peoples
The proposed areas of focus outlined in this report are organized around these
goals. Where there are connections between issues, we have made every effort to
identify those and to speak to issues raised, uncovered, or considered during
the review, at least in broad terms.
IMPROVING SERVICE FOR CANADIANS
Canada’s Digital Ambition recognizes that the Government of Canada must make
concrete efforts to make it easier for Canadians to interact with the
government. This includes making meaningful improvements for Canadians in terms
of services as well as making it easier to exercise their rights in a digital
age. Maintaining outdated systems and approaches is costly in terms of resources
and in terms of trust and confidence in government administration. Effectively
managing information and data assets will be instrumental to realizing the
efficiencies and service improvement possibilities of new digital technologies.
ATI is doubly affected by information management. The ability to find and
retrieve records from various information sources is at the core function of
providing government records to users, whether proactively published or upon
request. Improving information management also enables automation of core
business functions, to drive service improvements and improve accountability and
transparency.
The challenge, however, has been that the responsiveness of that service has
been declining as public expectations for service excellence continue to rise.
Public and Indigenous input highlight worsening challenges for ATI across the
service spectrum. These include challenges related to official languages,
accessibility, and culturally appropriate services for Indigenous requesters.
There is increasing public pressure to bring the ATI regime more in line with
contemporary expectations by making it more responsive, accessible, and
relevant. Service delivery can shift away from a reactive posture using outdated
tools and processes, toward a more proactive, user-centric approach.
This section explores the relationship between information management and the
ATI regime, as well as the expectations of Canadians for inclusive service that
meets diverse needs. It also considers capacity challenges and enhancements in
the ATI community and across the regime, as well as institutional practices
related to extensions and consultations.
INFORMATION MANAGEMENT AND ACCESS TO INFORMATION
Effective information management is foundational, not only to ATI, but to all
aspects of government services, program areas and business practices.
Information management covers a spectrum of the set of activities related to
information governance and planning, storage and organization, and the
disposition of records. The practice of security classification and
declassification of records is part of a lifecycle approach to information
management and is discussed in its own section elsewhere in this report. Digital
tools also increasingly rely on and generate significant volumes of data and
metadata, which need to be considered at all stages of managing information. The
following sections discuss each of these elements.
DATA GOVERNANCE AND PLANNING
The world’s data and information assets are increasingly governed by the FAIR
principles: they should be findable, accessible, interoperable and reusable.
These principles continue to underpin the renewal of the Government of Canada
Data Strategy currently underway.
These are applied to business assets for the purposes of improving internal
processes, corporate knowledge transfer, and systems integration. They are also
increasingly applied to external-facing assets, such as open data and
open-source coding by both government and private sector interests. Where
digital systems can “speak” to one another, and they are deployed ethically and
responsibly, there are universal benefits. There are clear reasons for
institutions to adopt these principles: for themselves, for the benefit of the
Government of Canada, and for the benefit of the public they serve. The
Government of Canada needs to be able to produce authoritative information and
data that is reliable, accurate and usable. To meet this information management
challenge, the government needs to examine systemic solutions.
Effective governance, asset standards and stewardship can help business
processes become more seamless and integrated. Data assets can be harnessed for
public good, both economically and socially. While some work has occurred at the
Government of Canada enterprise scale to improve information and data
governance, much remains to be done. Through efficiencies gained using common
business practices, the Government of Canada, and partners free up resources for
critically important challenges. This includes areas such as climate change and
emergency preparedness, for which authoritative data and information are key.
There is an opportunity to harmonize processes and systems within the ATI regime
and to enhance oversight, governance, and security measures. Innovative
technologies can reduce human error in the examination and assessment of records
across the Government of Canada, generating more consistent and timely responses
to system users. Such a regime could be more responsive to emerging trends and
interests. This can reduce burdens on the ATI regime, while improving
transparency and public accountability. Efficiencies could be similarly realized
for dozens of common business lines across the Government of Canada, not only in
ATI.
STORAGE AND ORGANIZATION
Government institutions often use multiple systems to store and manage
information and data assets, many of which are outdated systems. This storage
ecosystem presents challenges for searching and retrieving records and adds to
the cost of managing information not only within ATIP teams but everywhere in
government that information is created, kept and used.
The Policy on Service and Digital requires the Chief Information Officer of
Canada and institutional Chief Information Officers to manage information and
data as strategic assets in support of government operations. The Policy on
Government Security and Directive on Security Management provide direction for
the security of this information and data. In addition, the Government of Canada
Digital Standards also urges employees to improve services with necessary tools,
training and technologies, and good data stewardship.
Though the Government of Canada has established a framework for digital
innovation, it has mostly focused on the institution level. Greater
harmonization across the Government of Canada is required to achieve more
transformative results. For instance, institutions maintain various information
management systems, often implementing new ones without transferring information
and data to new systems and decommissioning the old. In other instances, the
transfer is done from one system to another but with a minimum of curation or
cataloguing of assets. This results in information that does not fit any
existing information and data architecture and lacks corporate context.
Effective information and data stewardship is challenging against this backdrop
of multiple information storage systems, especially where each system must be
searched individually. It can also weaken corporate memory and the degree of
trust in data and information assets, for instance, where there are multiple
versions of an information asset stored in several places. Lastly, it makes
delivery of service more challenging. This is especially true for
information-based services like ATI where retrieval of records involves
searching various systems for relevant records without a clear sense as to where
such records are stored.
Digital approaches can streamline searchability and retrieval, and they can help
public servants perform their jobs more efficiently and be less reliant on the
memory of long-tenured colleagues.
The ability to perform rapid searches for information across institutions also
enables digital innovation. For example, it provides for the longer-term
development of data and information inventories, which supports reusability –
another of the Government of Canada’s Digital Standards. Even a modest
advancement in internal searchability can also enable enterprise searchability
of records. This could dramatically improve collaborative opportunities between
institutions and the ability to share information, while reducing work
duplication. It could also increase the possibility of streamlining common
business processes between institutions.
RETENTION REQUIREMENTS
All government institutions are expected to set retention requirements for their
records – that is, the period a record is to be kept. However, there is still
significant variation in retention periods for similar records between
government institutions and instances where no retention period is set at all.
Government officials do not consistently assess and identify records that are
transitory or no longer have business value. This lack of regular disposition
can in turn contribute to ATI processing volumes.
Library and Archives Canada (LAC) created Generic Valuation Tools to help
institutions identify the kinds of records typical of common government business
processes. The tools suggest retention periods based on legal or regulatory
requirements and best practices, though such tools do not authorize disposal of
information. The consent to dispose of records must be given by the Chief
Librarian and Archivist of Canada, under section 12 of the Library and Archives
Canada Act .
The responsibility for establishing, implementing and maintaining retention
periods for all information and data rests with an institution’s Chief
Information Officer, in accordance with the Directive on Service and Digital.
They must also document their disposition process and perform regular
disposition activities, including seeking the consent of the Chief Librarian and
Archivist to dispose of records. Though intended to support strategic asset
management, including accountability, the directive emphasizes “information of
business value” to the institution and its mandate as a primary focus. In
practice, this can result in many minimum retention periods being set, but no
maximums. However, the Library and Archives Canada Act can compel institutions
to provide LAC with records of archival value for proper safekeeping. The
Government of Canada, in the meantime, has continued to implement digital tools
that create information and data. In so doing, it has run into challenges in how
to classify that information for retention. Many of those commonly used tools,
such as email and other digital messaging tools, default to a transitory status.
It is up to individual employees to use the tools appropriately and properly
store and safeguard that information for an appropriate amount of time, and then
to dispose of it.
At the other end of the spectrum, the blanket application of retention periods
to all records creates a proliferation of legitimately transitory records, such
as draft versions of records. Each time edits are made to a record, the digital
system saves a new version; old versions, however, are not removed
systematically. It is not uncommon to see dozens of versions of a final
document. All these versions are saved, with each successively older version
having rapidly diminishing value over time since the need to return to older
drafts is typically immediate. When drafts of documents are requested, these
must all be retrieved, reviewed, and processed as separate records, since their
content differs slightly.
There are many benefits to adopting clearer standards on retention and
disposition. Firstly, there are digital storage considerations: removing
stale-dated draft documents will dramatically reduce system storage needs. In
fact, removing this transitory information will likely clarify government
decisions for ATI users, rather than requiring them to filter out information
that is not current or of draft quality. Clarifying when and under what
conditions information needs to be retained more universally will also support a
duty to document for the Government of Canada. Secondly, improved standards will
help clarify when records need to be transferred for safekeeping, notably for
records of enduring value. Some of these records may also straddle categories,
having each of ongoing business value and historical value, and clarifying when
records must be transferred will help preserve these high-value records. Even if
they are being preserved by LAC, records of enduring value can still be accessed
by the originating institution.
AUTOMATING METADATA
Metadata is data that allows records to be sortable, manageable, and
understandable, both by human users and, more importantly, by digital
information systems. There are many types of metadata:
* descriptive (e.g., titles, dates, author, IP address);
* structural (e.g., section headings in a document);
* preservation (e.g., access permissions);
* provenance (e.g., versions);
* use (e.g., when and under what conditions a record is downloaded); and,
* administrative (e.g., the rules applied to the data in a file).
When done comprehensively and with standardization, metadata can enable
increasingly complex and highly automated digital services and business
practices, including ATI. Metadata enables automation of aspects of information
management across the information lifecycle, from simple searchability to
declassification and data linking. It can also be used to automate reporting
functions, improving both consistency and real-time capacity to report on
program performance, while enhancing capacity. Reducing the variability of the
current decentralized approach that relies on employee choices in the creation
of metadata can improve the Government of Canada’s ability to sort, find and use
its information and data holdings. As such, an enterprise approach to metadata
tagging could have broad benefits for the ATI regime and for the government’s
overall digital ambitions.
The Government of Canada is revising its Standard on Metadata, which will
provide guidance for its use. Currently, information technology offices both
procure and implement different application functionality that affects the type
of metadata being generated. Also, with digital transformation comes the need
for new digital skills. Creating consistent, coherent metadata within and across
the Government of Canada requires new knowledge, consistent training and an
appreciation of the value of metadata.
CONCLUSION(S)
Effective information management is foundational to digital innovation, and the
reverse is equally true. A more consistent strategic lifecycle management of the
Government of Canada’s information and data assets will require looking at how
centralized frameworks and governance, improved storage and organization,
retention requirements and metadata tagging tools could yield broad improvements
across government in service delivery and program efficiencies.
BUILDING ATI COMMUNITY CAPACITY
ATIP professionals are a long-established community of practice in the
Government of Canada. As noted throughout this report, the concerns of the
community tend to focus on immediate and practical needs. For example, the
community is concerned with having appropriate tools and resources to fulfill
their legislative obligations. The community is supported by a formal ADM-level
committee, and a quarterly meeting open to all community practitioners.
Unlike some other communities of practice such as human resources or information
management communities, the ATI community’s core competencies and roles are not
as well-understood and defined across the community. The ATI Manual defines only
one role, for instance: that of the ATIP coordinator, who is intended to act on
behalf of the head of the institution and the deputy head responsible for ATIA
compliance. The Manual also lists the main responsibilities expected of an ATIP
office, such as processing requests, reporting, and collecting statistics
related to the administration of the ATIA. It does not, however, provide
guidance on best practices in assigning or organizing those responsibilities.
Institutions therefore implement those responsibilities and, importantly, may
expand upon them.
In fact, ATIP offices are increasingly doing work beyond supporting the
administration of the ATIA and its directly related functions. This includes
work such as supporting non-ATI related judicial processes, reviewing other
information and data disclosures, and responding to Parliamentary disclosure
processes. A professional framework for ATIP offices and their staff would help
establish clear responsibilities. Furthermore, this professional framework would
benefit the Government of Canada’s training regime for the ATI community,
allowing for greater centralization and consistency across the Government of
Canada.
The Chief Information Officer of the Government of Canada has established an
Access to Information and Privacy Communities Development Office (the
development office). The development office has crafted an action plan to
address these challenges. The plan includes work to build and strengthen the ATI
community through career and leadership development and community generics such
as refreshing existing and developing generic human resources products (e.g.,
job descriptions and competency profiles) for hiring managers and ATIP
practitioners. There remains, however, ample room to continue advancing related
initiatives, especially in supporting recruitment and retention activities, and
providing ATIP professionals with additional training and development programs.
A stronger community presence can also improve service delivery by increasing
the profile of the ATI community among other communities of practice. A better
integration with relevant stakeholders across the Government of Canada and
facilitating more open dialogue on mutual challenges can provide benefits to the
ATI community.
CONCLUSION(S)
Clarifying roles, responsibilities and training for ATIP officials, with
appropriate centralization of core services to the community, will make ATI
services more consistent and efficient across the Government of Canada.
ATI WORKFORCE PLANNING
Adequate human resources capacity is a precondition for Government of Canada
institutions to be able to successfully deliver ATI services in an efficient and
timely matter. The heads of government institutions are responsible for the
administration of the ATIA within their respective institutions. Pursuant to
section 95 of the ATIA, heads may decide whether and how to delegate their
powers, duties, and functions. In larger institutions, this usually results in
the creation of a dedicated ATIP office, though roles of ATIP officials and the
coordinators who head the office can vary widely. Smaller institutions, which
receive few and sometimes no requests in any given year, may only have one ATI
official on staff and they are likely to be performing those functions alongside
other responsibilities. Each institution head has autonomy over how resources
are allocated to ATIP offices, which can result in significant variation in how
roles are defined and maintained.
Institutions face the challenge of anticipating the number and complexity of
requests they will receive to inform staffing decisions regarding ATI
operations, which can vary year to year due to unexpected major events (e.g.,
natural disasters, terrorism, pandemics, etc.). The COVID‑19 pandemic, for
example, introduced new operational and administrative challenges as ATI
officials adapted to teleworking arrangements. The nature of the pandemic led to
a surge of ATI requests for certain institutions, such as Health Canada and the
Public Health Agency of Canada, which were not equipped to handle the
significant increase in volume.
In a 2008-2009 report by the Information Commissioner, 17 of 24 institutions
surveyed reported shortages of ATIP staff as contributing to access request
delays. In 2012, TBS released a report identifying staff shortages as a
contributing factor to delays in processing information requests. More recently,
the Information Commissioner’s 2020-21 Annual Report asserted the “urgent
government-wide need to adequately invest in human resources in the field of
ATI, by creating pools, hiring sufficiently qualified staff and developing
appropriate ongoing training for employees.” The Interim What We Heard Report
for the ATI Review, released December 2021, echoed these sentiments noting that
ATIP offices could be better resourced.
These reports and statistics indicate that the ATI community could benefit from
a long-term plan and broader coordination of the ATI community’s needs. Such a
plan could assist in building a more sustainable and skilled ATI community,
which is also more responsive to both institutions and the Government of
Canada’s needs overall rather than an institution-by-institution basis.
CONCLUSION(S)
An enterprise-wide ATI workforce strategy would improve composition, competency,
recruitment and retention of ATIP professionals.
ACCESSIBILITY AND OFFICIAL LANGUAGES
Accessibility and official language considerations factor into both request
processing under Part 1 and proactive publications under Part 2 of the ATIA. In
Part 1, subsection 4(2.1), the head of an institution is subject to several
obligations collectively referred to as the “duty to assist.” The duty asserts
that the head must:
* make every reasonable effort to assist the person in connection with the
request,
* respond to the request accurately and completely, and
* provide timely access to the record in the format requested.
Under Part 1, in addition to this general duty to assist, section 12 of the ATIA
requires institutions to provide a requester with records in their preferred
official language if requested and the record already exists in that language,
or if it is in the public interest to translate the record. Also, where
considering it reasonable to do so, institutions may provide an alternative
format to requesters. For example, if the requester has a visual impairment in
the case of accessibility. Unless requested otherwise, most institutions use ATI
processing software to provide requesters with a package responsive to their
request in a pdf format and in the language in which the records exist. Under
Part 2 of the ATIA, institutions must meet the same publication requirements of
all online content published by the Government of Canada, including meeting
accessibility standards and being published in both official languages.
There is now also an opportunity to further enhance accessibility within the
ATIA regime in a manner that supports the mandated commitment under the
Accessible Canada Act for federal government institutions and Crown corporations
to become barrier free by 2040.
One approach to both official language and accessibility checks is to leverage
rapidly improving automated tools to enhance human capacity. While accessibility
tools are still far from meeting all requirements, newly available ATI
processing software holds promise. The performance of AI-assisted contextual
translation tools is tied to the writing quality of the source material. Such
tools crawl authoritative source materials across the web, including the
official translations on Government of Canada web pages and publications to
locate common syntax and expressions. Many now include phrasing options at the
click of a button. The sophistication of these tools is continuing to evolve and
remains subject to scrutiny around the ability of any technological tool to meet
translation quality associated with human expertise.
The steady stream of requests in the current system for the responsive records
to previously completed ATI requests would be unnecessary if all records
disclosed under the ATIA could be made immediately available for access by the
public.
CONCLUSION(S)
Products and services delivered under the ATI regime need to be inclusive of all
those exercising their right of access.
EXTENSIONS
The ATIA does not set specific time limits for extensions, relying instead on
criteria for when an extension may be taken, while the length is determined
based on reasonableness. As government institutions have wrestled with capacity
challenges in ATI, they have trended toward taking increasingly lengthy
extensions. Section 7 of the ATIA requires government institutions to respond to
access requests within 30 calendar days of its receipt. Institutions may extend
the legislated time limit if any of the following circumstances are met under
subsection 9(1):
* request is for a large number of records or necessitates a search through
many records and meeting the original timeline would unreasonably interfere
with the institution’s operations;
* consultations are necessary and cannot be completed within the 30-day time
limit; or,
* if a request requires a notice be sent to third parties of the potential
release of information.
An extension must be for a “reasonable period,” given the specific
circumstances. This is assessed on a case-by-case basis, with additional
guidance offered to institutions in the Access to Information Manual.
Institutions must inform the Information Commissioner of any extension that goes
beyond 30 additional days, pursuant to subsection 9(2) of the ATIA.
A “reasonable period” is not defined in the ATIA. Institutions rely on policies
and guidance developed by TBS to help make that determination, as well as
relevant jurisprudence.Footnote 1 The Directive on Access to Information
Requests directs institutions to ensure that the length of an extension taken is
as short as possible and can be justified. Institutions must also establish a
process that would ensure justifications for extensions are documented and
supported by evidence. During the ATI Review’s engagement process, some
government institutions specifically mentioned the need to have more guidance on
extensions along with clearer requirements for applying them. A lack of clarity
contributes to varied interpretations of what is “reasonable,” which in turn
produces inconsistent service across the Government of Canada. That then leads
to significantly more complaints to the Information Commissioner, with
complaints about extensions forming one of the largest categories of complaints
received.
The ATI and Privacy Statistical Report for 2020-21 shows that in recent years
there has been a government wide annual decline in responding to requests within
the legislated timeframes. Only 51 percent of government institutions in 2020-21
(excluding Immigration, Refugees and Citizenship Canada) were able to complete
at least 90 percent of their ATI requests within those timelines. While this
problem can be attributed to multiple factors, a general lack of understanding
of the extensions provision is a contributing factor. This is also a problem of
non-responsive offices of primary interest and third parties. Recent reports of
the Information Commissioner have shown that deliberations on disclosure of
information within institutions delayed responses and that deadlines for
internal responses were not clearly communicated to offices of primary
interests.
The COVID‑19 pandemic has shone a spotlight on these challenges, as ATIP
employees were teleworking and still relying on records that were sometimes only
accessible from the institution’s main offices. ATIP offices were generally not
included in the business continuity planning or critical services inventories of
institutions, meaning ATIP staff were unable to access their office spaces.
While the COVID‑19 pandemic is unprecedented in the history of the ATIA,
temporary losses of access to ATIP offices are not. Extreme weather events, and
threats of violence or terrorism have and will continue to temporarily close
office buildings, and ATIP offices along with them. The ATIA does not have a
provision that allows institutions to extend or pause the legislated timeframe
in such extraordinary circumstances, even when the safety of employees is at
risk.
Other jurisdictions have capped extensions, including similar international
environments as well as Canadian provinces. For instance, in Quebec, ATI
legislation permits an institution to extend a response by a maximum of 10 days,
except where third party information is involved in a request. Similarly,
British Columbia’s (BC) ATI legislation sets the maximum to 30 days in specific
circumstances and requires the BC Information and Privacy Commissioner’s
permission if an extension is to go longer. In the international context, both
the United States of America and Australia have set maximum times for
extensions. In the USA, it is 10 days, except in certain circumstances, and 30
days in Australia. In Australia, both the Information Commissioner and the
requester must consent to the extension.
ATI operations support a legal right of access. Plans must be in place in case
of disruption to operations and/or to remove any potential barriers to access.
Setting stricter limits on extensions with appropriate consequences for missing
deadlines, while allowing for obvious protections for staff and property, is
becoming more the norm internationally.
CONCLUSION(S)
Exploring ways to reduce the use of lengthy extensions in concert with digital
innovation and ATI capacity improvements, could increase institutional
compliance with legislated deadlines in the ATIA.
CONSULTATIONS
The ATIA allows institutions to consult one another on ATI requests, and to take
extensions for a reasonable period to do so. Consultations between institutions
are sometimes necessary to respond to a request for records. This is
particularly when information held by one institution was created by another,
meaning the subject matter expertise is located elsewhere in the Government of
Canada. There is no hard cap, however, on the number of days allowed to complete
those consultations. Section 4.1.31 of the Directive on Access to Information
Requests states that institutions should undertake inter-institutional
consultations only under two circumstances:
* when the processing institution requires more information for the proper
exercise of discretion to withhold information; or
* when the processing institution intends to disclose potentially sensitive
information.
Section 4.1.32 also states that consultation requests from other government
institutions are to be processed with the same priority as access to information
requests. The President of the Treasury Board issued an implementation notice on
September 27, 2022, to reinforce these matters, while providing additional
guidance.
Section 7 of the ATIA requires that institutions respond to ATI requests within
30 days. However, institutions may extend this time limit when consultations are
necessary, provided the extension is reasonable in the circumstances described
under paragraph 9(1)(b) of the ATIA. The ATIA does not specify a time limit
within which a consulted institution must respond. However, section 4.3.9.6 of
the Policy on Access to Information states that any consultations are to be
undertaken promptly and section 4.1.28 of the Directive on Access to Information
Requests states that any extension taken must be as short as possible and must
be reasonably justified.
Reasonableness is not defined in the ATIA. Additionally, there are no defined
obligations for the recipient of a consultation request in the ATIA. There are
also no consequences for failing to respond since the consulting institution is
responsible for meeting the legislated timelines. This issue is compounded by
the tendency to be deferential to the views of the consulted institution, which
delays decision-making by the consulting institution if deadlines are not met.
As a result, in practice, consultations are often not given the same priority as
ATI requests and contribute to delays in responding to requests. These delays
can be exacerbated should consultations involve multiple institutions.
The Information Commissioner’s recent report to Parliament has identified
inter-institutional consultations as a broad challenge faced by Canada’s ATI
regime. The Information Commissioner has also published other reports
recommending more efficient consultation processes, which would reduce
extensions taken by institutions when there is a need to consult on a request. A
large proportion of all complaints registered annually by the Information
Commissioner relate to time extensions. As the Interim What We Heard Report for
the ATI Review highlighted, the Canadian public is aware of this access barrier
and concerned with the use of lengthy extensions, even years in length.
Capping consultation extensions has become the norm in modern ATI (also known as
Freedom of Information) regimes, using both hard and soft caps. Hard caps set a
strict limit, while soft caps make the extension reviewable by an oversight body
like the Information Commissioner prior to being taken. In Canada, for instance,
section 10 of BC’s Freedom of Information and Protection of Privacy Act sets a
cap of 30 additional days for consultations with other institutions, which may
be extended with permission from BC’s Information and Privacy Commissioner.
As the Government of Canada looks to modernize its service delivery, including
in ATI, the delays associated with consultations also need to be examined in the
context of streamlined digital services and leveraging existing platforms, such
as ATIP Online.
CONCLUSION(S)
Examining policy options that seek to reduce the time taken to consult while
improving necessary inter-institutional consultation capacity, alongside digital
innovation and ATI capacity improvements, could improve institutional compliance
with legislated timelines in the ATIA.
ADMINISTERING COMPLEX REQUESTS
Section 6 of the ATIA sets out the general criteria for submitting a valid
request. Under the ATIA, a request must be made in writing to the institution
that holds the record and that the request must provide sufficient detail to
enable an experienced employee to identify the records with a reasonable effort.
Requesters must also pay an application fee not exceeding $25 per request,
though it is currently set at $5 by regulation. Only a request for access that
is vexatious, made in bad faith, or is otherwise an abuse of the right of access
can be declined, by the head of the government institution, with the Information
Commissioner’s written approval.
Most requesters are quite specific, often identifying a single subject area and
record type, or a date range for records, which can make it easier to process a
request. Not all requesters are as precise, while others may be extremely
precise but are seeking all records on a particular subject, which can make it
difficult to assess records for relevance and slow the processing time. Whether
a request generates 10 or 10 million pages, institutions must respond to the
request unless it is an abuse of the right of access, as described above.
Moreover, certain requests may not produce a voluminous set of records in
response, but they may require specialization – of both tools and training – to
be processed efficiently (e.g., audio-video and photographic records).
Whether requests produce a significant volume of records, or they are of a type
requiring specialized tools and training to process, these types of complex
requests can pose significant challenges to institutions. ATI regimes use
multiple strategies to manage the challenges such requests create. Most
commonly, and used both provincially and internationally, processing fees may be
applied to limit the scope or complexity of a request. Other regimes exclude
draft records or certain types of data, or they apply more specific criteria to
determine what is a valid request.
Requests generating multi-million pages of responsive records have become an
annual occurrence (e.g., 2017-18, 2019-20 and 2020-21), which are a significant
burden on institutions due to the resources required to process them in a timely
fashion. The proliferation of digital records – drafts and multiple versions of
a single document, for instance – can contribute to the complexity of requests.
Technologies producing audio-visual media also have proliferated in recent
years.
While there will always be a need for institutions to work with requesters to
administer complex requests, the tools at their disposal can also play a role.
Best practices can be baked into the government’s ATIP Online portal, which will
help requesters with their precision and institutions better interpret their
requests. Optional fillable fields in the request form, for instance, could
produce more consistent results. Automated decision-making, too, can support
search, retrieval and review of records. Request processing fees were also
discussed in ATI Review submissions and during engagement activities. However,
there was no consensus on an approach to use fees as a means of reducing request
volumes or scope.
CONCLUSION(S)
Exploring ways to leverage technology to administer complex ATI requests will be
a net benefit to all ATI requesters and institutions alike.
ENHANCING TRUST AND TRANSPARENCY
The ATIA is recognized by the Supreme Court of Canada as quasi-constitutional in
nature because it is a key enabler of other rights, such as freedom of
expression and democratic participation. Disclosing information, whether through
open government initiatives or through declassifying and eventually disclosing
formerly sensitive information, also contribute to these objectives. Together,
the right of access under the ATIA, proactive publication, lifecycle management
of information and open government serve to enhance the accountability and
transparency of government institutions. They are also intended to contribute to
greater trust in democratic processes.
The ATI Review revealed that the ability of the ATIA to serve its intended
purpose depends on effective and consistent application of the ATIA’s provisions
across the public service. Put another way, the overall administration of the
law can either enable users exercising their right of access or get in their
way. The same is true of trust and transparency: how the ATIA is administered
has a direct impact on both. Across multiple channels of engagement input into
this review, the greatest complaint about the ATI regime is poor compliance with
the law. Conversely then, there are considerable opportunities to improve ATI in
the Government of Canada by better implementing the current regime.
Key to these opportunities is strengthening the proactive publication of
information under Part 2 of the ATIA. As part of this review process, TBS’s
Internal Audit and Evaluation Bureau (IAEB) assessed the efficiency and
effectiveness of proactive publication across the GC. The Evaluation of
Proactive Publication under Part 2 of the ATIA determined that over the first
two years of implementation, institutions showed significant improvements in
efficiency and program delivery, notably, during a global pandemic.
Several areas were identified for improvement. These include, among others, a
need for institutions to be monitoring performance against their obligations and
examining the use and usefulness of proactively published information. TBS has a
role to play in these challenges through improved guidance, policies, and
community support and to foster a culture of transparency and openness.
Alongside the ATIA, Canada’s commitment to Open Government also serves to
enhance transparency and accountability in government.
In 2022, Canada marked a decade of membership in the international Open
Government Partnership and released its 5th National Action Plan on Open
Government. In modern democracies and economies, open data serves as both
information and socio-economic resource. The Action Plan outlines a series of
initiatives to give people access to the information and tools they need to
better understand the impacts of climate change, to protect against
misinformation and disinformation, to advance corporate transparency, to address
their legal problems, and to encourage participation in fair, democratic
processes. Canadians will be able to monitor progress on the commitments and
activities through an online tracker available on open.canada.ca.
Canada is also a member of the Digital Nations, a group of the most digitally
advanced governments in the world that collaborate and share best practices to
improve their digital services. As a member of this forum, Canada has committed
to the Digital Nations Charter which includes commitments on open government,
digital inclusion and accessibility, among others.
This section examines these core elements of Canada’s broader transparency and
accountability practices, from declassification and open government, to the
foundations provided by the ATIA including proactive disclosure.
DECLASSIFICATION
Government officials assign a security rating to records based on the risks
associated with the record being disclosed. These categories range from risks to
an individual’s privacy and personal dignity, to those related to Canada’s
national interests and security. Security categorization is based on the risks
that exist at the time they were applied and dictate how government officials
handle and store the information. As such, maintaining classified records over
the long-term can lead to ongoing financial, technical and physical burdens.
Declassification involves re-assessing the risks that existed when a record was
first created, considering the passage of time and its effect on reducing or
removing those risks. This process may or may not result in downgrading the
security category, but often does.
TBS’s Directive on Security Management requires institutions to define and
document the requirements for protecting government information against threats
throughout its lifecycle (Appendix B.2.2.1.3). This includes assigning the
shortest possible period for the protection of information, taking into account
risk, privacy, legal, or other policy considerations (Appendix E.2.2.2.2). The
Directive does not provide for compulsory declassification. It notes that the
security category applied to records may be downgraded “when the expected injury
is reduced.” This leaves the decision at the discretion of deputy heads
regarding the application of the policy within their respective institutions.
Currently, departments and agencies do not regularly assess their records for
declassification purposes. As a result, records are classified indefinitely at
the security level they were assigned when they were created. In a few
institutions, the only practical trigger for reviewing these records for public
release is an ATI request. Having a large volume of historically classified
information results in lengthy delays in processing ATI requests, and it may
place a substantial burden on the ATI regime. They must then turn to internal
subject matter experts, and often enough, experts in other institutions to
conduct the appropriate risk assessments prior to disclosure. Both steps slow
ATI responses due to the considerable time spent on consultation, research, and
review and the specialized subject matter expertise required in handling this
type of information.
These challenges are acute among Canada’s National Security and Intelligence
institutions. This is due to the common usage of Secret, Top Secret and Special
Intelligence security categories associated with the potential injury to the
national interest if such records are disclosed without authorization. Canada is
the only Five Eyes nation (including the USA, United Kingdom, New Zealand and
Australia) that does not have a systematic, risk-managed approach to
declassification that enables scheduled reviews, downgrading, or declassifying
records. LAC is the repository for millions of pages of historical records that
remain classified indefinitely without a means to proactively review and
downgrade or declassify records that no longer contain sensitivities. The
challenge is compounded by the age of the records. Moreover, the unavailability
of subject matter experts with both historical records and subject matter
expertise is a significant gap within ATI areas across government departments
that limits the capacity to review and address classified records within the
Government of Canada. To assist with the declassification process, some national
programs use a forward marking approach, which is a process of tagging records
with a scheduled or expected review time. This approach to forward marking can
create a foundation for systematic review, while also lowering the risk of
adding to record sets that will need to be reviewed in the future.
In recognition of these challenges, Public Safety Canada has concluded a
collaborative pilot project with LAC, Privy Council Office, and the National
Security and Intelligence community to declassify historical records of the
Joint Intelligence Committee. The pilot was intended to evaluate a national
security and intelligence-specific framework for declassification and
downgrading. The pilot is a first step in determining how a largescale review of
classified historical records might be undertaken, and the manner and extent to
which declassification can be actioned in a meaningful way.
On April 26, 2022, the Information Commissioner released two reports, a systemic
investigation regarding LAC’s delayed responses to access requests and a special
report to Parliament that highlighted this issue along with the need for a
declassification program. The special report highlighted that more rigorous
declassification could play a significant role in reducing LAC’s ATI burden by
allowing for more proactive disclosure of Canada’s National Security and
Intelligence history. The Information Commissioner also noted that LAC and the
National Security and Intelligence institutions’ consultation burden would be
lessened. This is because LAC would not need to consult the National Security
and Intelligence community as frequently on what information could be disclosed
if it were proactively declassified or downgraded. The special report builds on
a theme that has been developing for several years at the Information
Commissioner related to declassification.
CONCLUSION(S)
A systematized approach to declassification supports government transparency and
accountability, enhances access to Canada’s history, and improves the agility of
the ATI regime and security of information systems.
OBLIGATION TO DOCUMENT DECISIONS
Although there are many requirements to create and maintain specific record
types in the Government of Canada, ATI stakeholders have long advocated for a
comprehensive, reviewable, and enforceable “duty to document,” without which the
consistent and thorough recording of decisions cannot be assured. These types of
decision-related records are often sought through access to information
requests.
The Policy and Directive on Service and Digital sets out the requirements of
proper recordkeeping, supported by the Guideline on Service and Digital and
Directive on Security Management. These instruments provide advice, security
considerations and best practices for their implementation for recording
decisions and activities of business value. The Directive on Service and
Digital, for instance, is subject to the TBS Framework for the Management of
Compliance, but information is not collected on compliance. There are neither
clear obligations for institutions to audit and report on their recordkeeping
responsibilities, nor a mechanism in place to measure reporting efficacy. As a
result, there are no consequences for non-compliance and no information on the
issues or problems faced by institutions in fulfilling their obligations. The
instruments also only apply to 78 of the approximately 265 institutions subject
to the ATIA, representing a large policy coverage gap, even if those 78
institutions receive most ATI requests.
Most countries comparable to Canada have a legislated duty to document, as do
some Canadian provinces. These are occasionally articulated in the country’s ATI
legislation; internationally, they are more often found in legislation dealing
explicitly with official records or archives. Canada’s Library and Archives
Canada Act (LACA) is like other official records-type laws. It sets out
requirements for LAC to preserve Canada’s documentary heritage and to help
government institutions manage their information. The ATIA confers a right of
access to records, while also empowering the President of the Treasury Board to
cause to be kept under review the way information under institutions’ control is
maintained in support of that right. Neither the ATIA nor LACA, however, has a
legislated requirement to create records.
The ATIA has compliance mechanisms through both the Information Commissioner’s
investigative and reporting authorities, coupled with the possibility of federal
court review. If a duty to document were considered for either the ATIA or the
LACA, a significant amount of work would be required to identify the scope and
application of a duty to document, consistent with other legislative obligations
to create and maintain specific records (e.g., the register of vessels in the
Canada Shipping Act) and with a view also to developing compliance authorities.
CONCLUSION(S)
There are opportunities to improve the documentation of government decisions,
which is essential to ensuring government accountability and transparency, and
is a core element of strategic information management.
ENHANCING OPEN GOVERNMENT
OPEN DATA
The Government of Canada’s efforts to publish open data and information have
mostly focused on awareness-raising, department support, training and, where
practical, beginning the publication journey with the datasets that are easy to
publish. The Government of Canada needs to mature in that regard, mainstreaming
not only the practice of publishing data, but also engaging more deeply with
data users outside the Government of Canada.
Enhancing training and guidance, for both public data users and data creators,
is a foundational piece of that mainstreaming ambition. Public users need to
better understand how data is collected and used by government institutions, as
well developing better knowledge of federal data holdings. This would allow
external users to link their data with government data, facilitate collaborative
data sharing, hold government better accountable on decisions and further
develop communities of data practitioners across civil society and within the
Government of Canada. On the data creation side, institutions have been provided
with an Open Government Guidebook since 2018 to help them put their open
datasets on the Open Government Portal. The needs of the open data community
continue to grow, such as how to entrench practices at the point of data
creation. Ultimately, this type of enhanced guidance and training can also serve
double duty in improving data literacy both in- and outside the government.
Beyond developing open data skills and knowledge, there is an opportunity for
stronger government requirements for disclosing open data. More recent
initiatives, including from the Organization for Economic Co-operation and
Development and the Open Data Charter, favour “publishing with a purpose.” This
means targeting information and data of high value to the public and ensuring
they receive timely, proactive access to this information and data. Though Part
2 of the ATIA does require the publication of certain information and data, its
scope is limited. The ATIA does not contain any general data publication
requirements; those are found under section 4.3.2.8 of the Policy on Service and
Digital. Guidelines supporting the policy are broad and could benefit from
additional detail to scope or define data. Consideration could be given to
helping institutions assess the public demand for data, to inform prioritizing
what to disclose. This would align with public input received for Canada’s
2018-2020 National Action Plan on Open Government, while developing categories
of high-value datasets would align with international trends (e.g., the European
Data Portal). There is also an opportunity to improve performance measurement in
these areas.
The Open Government Portal plays a critical role in open data initiatives. The
Open Government Portal was created to house all open information and data
published by government institutions, including information published under Part
2 of the ATIA. As of May 2022, the Open Government Portal is comprised of more
than 33,000 datasets and information resources and 1.8 million proactive
publications. It includes ‘suggest a dataset’ functionality for users to request
and upvote data and information they would like to see released, data validation
to automatically review the quality and completeness of datasets prior to
upload, and previews of applicable datasets. With increased capacity, the
platform would have significant potential to expand how it enables access to
open data and information.
User-centricity needs to figure prominently in the development of the platform
as user needs around searching, retrieving, using, and understanding information
and data become more sophisticated. Adopting more user-centric designs will
require strengthening the Open Government Portal’s infrastructure to ensure that
all information and data housed on other government platforms are available in
one place. The Open Government Portal would benefit from some additional, more
user-requested design features: data visualization, thematic aggregation,
customizable tagging for users, and developing dataset comparison features are
all user interests. Overall, these features would enhance the Open Government
Portal as an enterprise information and data platform, and help facilitate
greater knowledge and skills development, data literacy, and awareness of
Government of Canada data and information holdings.
Where the Government of Canada began by publishing what was easiest, as all
governments do, there is an opportunity to take a more engagement-forward
approach focused on serving to Canadians information and data that is of most
use and interest to them.
CONCLUSION(S)
Consideration should be given to developing and updating training and guidance
on the value of open data that will improve the usefulness of open data, allow
it to be delivered through a single digital platform, and unlock significant
benefits to data users.
IMPROVING PROACTIVE PUBLICATIONS
The passage of Bill C-58 in 2019 introduced a requirement under Part 2 of the
ATIA to proactively publish specific types of government information drawn from
topics that have been consistently represented in ATI request pipelines. Some
proactive publication requirements apply to all the institutions currently
covered by Part 1 the ATIA. Part 2 legislates specific proactive publication
requirements for the Prime Minister’s and other Ministers’ offices, senators,
members of the House of Commons, and administrative institutions that support
Parliament and the courts. The types of publication, each with defined
publishing timelines. This includes among others:
* ministers’ mandate letters;
* certain briefing materials and memoranda titles and tracking numbers;
* travel and hospitality expenses;
* grants and contributions over a specified amount; and
* contracts over a specified amount.
The objective of Part 2 of the ATIA is to proactively publish information that
is of interest to the public without the need to request it under Part 1. A
recent Evaluation of Proactive Publication conducted by TBS’s Internal Audit and
Evaluation Bureau recommends engaging users to gain insight into the relevance
of proactive publications to users, which in turn aligns with section 4.3.2.9 of
the Policy on Service and Digital , which requires user need to be a primary
determinant in prioritizing proactive disclosures to be published on the Open
Government Portal.
Throughout the engagement process, the public expressed interest in certain
types of materials to expand the current requirements. One suggestion that was
supported by some government institutions, public servants, and the public
alike, was to expand Part 2 of the ATIA to include frequently requested records.
The 2022 update to the Directive on Access to Information Requests, section
4.1.44, speaks to this suggestion: it requires institutions to regularly review
requests received under Part 1 of the ATIA with a view to making frequently
requested information available by other means. This approach mirrors some
international trends, too. For instance, Australia’s Freedom of Information Act
1982 requires institutions to publish information to which the institution
routinely gives access in response to requests. As one sees with open data
advocates, other public interest areas include government research, regulatory
data, surveys, and assessments (e.g., environmental impacts), and other public
health and safety information. Generally, ATI Review participants were
supportive of a far broader, open by default approach to government information
disclosure.
Beyond the content of proactive publications, input received during the ATI
Review noted two other areas for improvement: reporting and independent
oversight of Part 2. At present, there is a lack of reporting on Part 2 of the
ATIA, with a consequent lack of insight into whether government institutions and
entities are meeting their obligations and what resources are required for
institutions to administer their Part 2 responsibilities. Section 94 of the ATIA
requires institutions to report on their administration of the ATIA, including
Part 2 of the ATIA. However, while the President of the Treasury Board has the
legal authority in paragraph 70(1)(d) to cause statistics to be compiled on
compliance with Part 1 of the ATIA, the same authority does not exist for Part
2. TBS is developing a policy framework for Part 2 of the ATIA, following from a
recommendation made by TBS’s Internal Audit and Evaluation Bureau. The benefits
of more comprehensive and structured reporting on Part 2 could help develop
greater monitoring of the usefulness of Part 2, in addition to improving
business processes.
The public also noted that there is no direct independent oversight of Part 2 of
the ATIA by the Information Commissioner, a power sought by the Commissioner.
Currently, oversight is available through the ability to make a request under
Part 1 of the ATIA for the records containing the proactively published
information and to complain about the response to such a request. This process
adds additional steps and administrative costs to both requesters and
institutions, who must submit and process the request, respectively.
CONCLUSION(S)
Examining ways to engage with users to identify high demand and high value
information, as well as developing improved accountability mechanisms would
allow the Government of Canada to improve the quality of proactively published
information under Part 2 of the ATIA and further public trust and government
transparency.
RIGHT OF ACCESS AND EXCEPTION TO THE RIGHT OF ACCESS
The goal of the ATIA is to enhance accountability and transparency of government
institutions by providing access to government records. Institutions must
therefore follow the principle that information should be available to the
public, with necessary exceptions to that right being limited and specific. It
is notable, however, that this right of access is limited to Canadian citizens,
permanent residents, and individuals and corporations present in Canada.
The following sections of this report discuss various aspects of the right of
access, including the exceptions to the right of access, which are intended to
protect certain information from disclosure. These sections also examine the
information institutions publish to support requesters, who can make a request
and, when exceptions are applied, any time limits on when those exceptions may
apply.
INFORMATION ABOUT GOVERNMENT INSTITUTIONS
The President of the Treasury Board must cause to be published information about
government institutions, pursuant to section 5 of the ATIA. Section 5 of the
ATIA ensures that some specific information on government institutions is made
available to the public:
* information about the organization and its responsibilities;
* all classes of records under its control;
* all manuals used by employees in carrying out or administering its
responsibilities; and
* the title and address of the appropriate officer of the institution to whom
access requests should be sent (e.g., the ATIP coordinator).
This is intended to support the right of access by describing institutions’
program areas and their record holdings. In order to aid the President of the
Treasury Board in fulfilling this legislative requirement, TBS provides guidance
to institutions on the information that is required to be published through the
Policy on Access to Information and more specifically through the Info Source
Decentralized Publishing Requirements. The purpose of this annual publication is
to provide a general overview of the information holdings and types of records
available within each institution to aid requesters in crafting targeted and
informed ATI requests. Moreover, members of the public may complain to the
Information Commissioner about any aspect of the publications.
TBS maintains the publication as a single entry-point and index. However, as a
decentralized publication, each section of the information about government
institutions exists as a standalone publication on individual websites, rather
than being linked to other public-facing products such as the institution’s
service inventory or personal information holdings. As governments shift toward
more digital communications approaches, requesters are more likely to use a
search engine, departmental website, or social media to locate information in
support of a request, since that information is more likely to be up to date.
The current approach to information about government institutions as an annual
publication is not well aligned or integrated with these increasingly real-time
tools for publicly sharing information. Users and relevant institutional
representatives, including communications and information management
specialists, will have constructive views on what would be most effective,
useful, and expedient while leveraging and linking authoritative sources of
information rather than seeking to replicate it in a standalone publication.
CONCLUSION(S)
Re-examining the way in which the ATIA’s section 5 obligations are delivered
will improve both the user-centricity of ATI and ability of institutions to
compile and disclose this information while reducing redundant information
sources.
UNIVERSAL ACCESS
Section 4(1) of the ATIA defines who has a right of access to Government of
Canada records. These are currently limited to Canadian citizens and permanent
residents. The Governor in Council has extended access to all individuals and
corporations present in Canada, by order issued pursuant to subsection 4(2) of
the ATIA.
Despite the extension, many persons who have legitimate business with the
Government of Canada cannot directly request records from federal government
institutions. Canada is a significant destination for non-resident and
non-Canadian travelers and migrants, about whom decisions are made every day. As
a result of the COVID‑19 pandemic, Immigration, Refugees and Citizenship Canada
(IRCC) committed to improving in various areas, including its service standards
and transparency for migrants, who frequently use ATI to access their files.
Decisions made by the Government of Canada also have impacts globally in various
sectors, both humanitarian and economic. Those parties must rely on local
intermediaries to assist with their needs (e.g., immigration lawyers), adding
both substantial cost to the individual requester, and reducing the intended
accountability on the conduct of government institutions to those served by
those institutions.
Canada has already decided that universal access is essential when it comes to
personal information requested through the Privacy Act. The Privacy Act
Extension Order, No. 3, has extended the right of access to personal information
to include all individuals outside Canada. Adopting a universal right of access
at the federal level would bring the Government of Canada in line with the rest
of Canada as each provincial and territorial ATI legislation offers universal
access. In addition, by global comparison, 76 countries have universal access
built into their respective ATI laws. Among Canada’s closest international
partners, only New Zealand similarly restricts access.
CONCLUSION(S)
Examining the groundwork completed in the issuance of the Privacy Act Extension
Order can inform a path forward to address legitimate access needs where they
exist.
PUBLIC INTEREST AND THE ATIA
A public interest override provision exists in many jurisdictions. The intent is
to encourage and permit institutions to disclose information considered by the
head of an institution to be of public interest, even if that information would
normally be exempted from disclosure. This pushes information disclosure beyond
the interests of individual requesters, furthering the broader aims of open
government and general accountability.
While Canada’s ATIA has no general public interest override provision, the ATIA
has two provisions that speak to the public interest:
* Paragraph 19(2)(c) allows for the disclosure of personal information in
accordance with s.8(2)(m)(I) of the Privacy Act, where a public interest in
disclosure clearly outweighs any invasion of privacy; and,
* Subsection 20(6) allows for the disclosure of third-party information, where
a public interest in disclosure related only to public health, public safety,
or the protection of the environment exists, or if the public interest in
disclosure clearly outweighs any financial loss or gain to the third party,
or any prejudice to its security, competitive position, or negotiations.
Each of these provisions apply to mandatory exemptions, of which there are
several others that have no public interest provision. These include section 13
(information from other governments), and paragraph 16(1)(a), covering
investigative bodies’ records (e.g., Royal Canadian Mounted Police). Other
exemptions to disclosure are discretionary, meaning the head of the institution
may decide to disclose the information even if it might normally be exempted
from disclosure. When exercising discretion, the institution head must consider
all relevant factors for and against disclosure. Though this may include public
interest as a factor, it is not an explicit requirement to weigh the public
interest. If there were a complaint, the Information Commissioner may raise the
public interest as a factor. For their part, the federal courts have avoided
raising specific factors of discretion for the institution head’s consideration,
beyond generalities.
International jurisdictions vary in terms of legislating the public interest.
Some, such as Ireland and the United Kingdom, use a model where public interest
overrides apply to some, but not all exemptions. Other jurisdictions, including
India and some Canadian provinces, like Alberta and BC, have a public interest
override that applies to all exemptions. In addition, in Ontario (Public Safety
and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, the Supreme Court
of Canada ruled on a public interest override test embedded in discretionary
exemptions in Ontario’s freedom of information legislation. The Court concluded
that the exercise of discretion must consider the public interest in open
government, public debate, and the proper functioning of government
institutions, even if in some instances it may have limited application. During
the ATI Review’s engagement process, a public interest override was identified
as an area in which improvements should be made.
CONCLUSION(S)
The public interest is a critical determinant in deciding what information
should be disclosed, alongside the diminishing risks related to the passage of
time.
EXAMINING THE EXEMPTIONS REGIME
Exemptions in the ATIA are one of two exceptions to the right of access; the
other exception is called an exclusion and is discussed below. Exemptions are a
mainstay of every ATI regime, both internationally and domestically, and they
often cover similar topics, such as defending a nation against hostile
activities, safeguarding the integrity of judicial processes, or protecting
individuals’ safety or privacy, among others. Exemptions are considered to be
significant protections, both in the public and the national interest. In
Canada, exemptions under the ATIA are always a combination of each of the
following categories:
* either class-based or injury-based, with the former requiring that the
information be of a defined type, and the latter requiring that an injury or
prejudice would occur if the information were to be disclosed; and,
* either mandatory or discretionary, with the former requiring that the
information be withheld from disclosure, and the latter requiring a weighing
of factors for and against disclosure prior to the exemption being applied.
An exemption could therefore be a class-based exemption that is mandatory (e.g.,
personal information) or it can be discretionary (e.g., advice to a minister).
Likewise, an injury-based exemption can be either mandatory (e.g., prejudice to
a third party’s competitive position) or discretionary (e.g., injury to the
conduct of an investigation).
The complexity of the ATIA’s exemption regime can take years to learn and apply
properly for ATIP professionals. Public stakeholders have long criticized the
breadth of Canada’s exemption regime, arguing most often that there are many
class-based provisions that do not require institutions to demonstrate any harm
in disclosure. Since the ATIA was created in 1983, the ATIA has added more
categories and sub-categories of exemptions.
There are various ways to approach exemptions, both domestically and
internationally. Some regimes employ a similar approach to Canada’s, but they
have defined when those exemptions do not apply. This can be done in the
legislation, like in Ontario’s Freedom of Information and Privacy Protection
Act, which lists circumstances where exemptions cannot be applied.
Alternatively, this can be done in policy and guidance, or via an Implementation
Notice pursuant to s. 70(1)(c) of the ATIA, in which specific instances of
non-application could be expressed. These approaches do not necessarily resolve
the issue of complexity or breadth. They may even add to those issues, by
requiring multiple parallel readings and considerations.
More recently revised or crafted ATI laws have distilled exemptions down to
simple, injury-based categories. This approach describes all forms of valid
exemptions in broad terms while tying them explicitly to the likelihood of harm
the disclosure could cause. Canada’s regime has many instances where harm must
be considered, but many more where it does not. Exempting information based on
classes or record types assumes harm in every instance. Stakeholders have argued
that adopting sufficiently general, harms-based exemptions would encourage more
disclosure of information when there is no harm in doing so.
TBS is in the process of developing a plain language guide, which is intended to
enhance understanding of the ATIA, including exemptions. Greater knowledge and
understanding of why exemptions exist will better equip those exercising their
right of ATI, while promoting more consistent application of exemptions across
government.
CONCLUSION(S)
Examining options to clarify legitimate sensitivities and risks around the
disclosure of government information could improve understanding of all
transparency and accountability initiatives, including for both ATI users and
practitioners, the public, and Government of Canada writ large.
EXCLUSIONS
The second type of exception to the right of access is called an exclusion.
Unlike exempted information, if information is subject to an exclusion, it is
not subject to disclosure under the ATIA. As excluded records are not subject to
the ATIA, they are equally not subject to the same type of oversight as for
exempted information.
Participants in the engagement process indicated they did not understand the
purpose of exclusions and wanted to see them either removed or converted to
exemptions. Moreover, stakeholders have observed that the exclusions are
sometimes applied differently or not at all. Public stakeholders and the
Information Commissioner have singled out the exclusion of Cabinet confidences,
which they believe to be overly broad. For instance, many stakeholders,
including government institutions, noted that the wording in paragraph 69(1)(g)
can be read to encompass any information put before a Minister as being
“related” to a Cabinet confidence, since a Minister may discuss it with
colleagues.
The Information Commissioner has also suggested that all exclusions should be
reviewable to ensure due diligence and accountability within the process. The
Federal Court has ruled that the Information Commissioner may review whether the
Canadian Broadcasting Corporation’s exclusion has been correctly applied. That
exclusion covers all the Canadian Broadcasting Corporation’s information related
to its journalistic, creative or programming activities, except information
pertaining to general administration. The same review process not been extended
to all exclusions, however, provoking stakeholder complaints of inconsistent
application. For instance, if a requester complains about the application of
Cabinet confidences to the Information Commissioner, the review process by the
institution is for the ATIP coordinator to consult with their departmental legal
services and to confirm to the Information Commissioner that the exclusion was
correctly applied.
Internationally, most Cabinet, or functionally similar bodies are both subject
to their domestic ATI legislation, and independently reviewable. In some rare
instances, like the United Kingdom, the independent review of Parliamentary
privilege, which in the United Kingdom encapsulates Cabinet discussions, can be
subject to ministerial veto. In the United Kingdom, that veto has come under
scrutiny since 2010. In Canada, Cabinet confidences are entrenched across
federal legislation, meaning any review of its application necessarily goes well
beyond the ATIA.
CONCLUSION(S)
There is an opportunity to collaborate with relevant institutions (e.g., Privy
Council Office and the Department of Justice) to explore options that enhance
transparency and accountability with respect to excluded information, while
maintaining necessary protections and safeguards for Cabinet confidences and
ensuring coherence with the broader legal framework governing their protection
in Canada.
SUNSET CLAUSES FOR EXEMPTIONS AND EXCLUSIONS
A “sunset clause” is a provision in legislation that acts as an expiry date for
when a legal matter ceases to apply. In the ATIA, a few exemptions and
exclusions are nullified due to the passage of time. These include:
* Paragraph 16(1)(a) sets 20 years for information obtained or prepared by
specified investigative bodies (e.g., Royal Mounted Canadian Police) during
lawful investigations relating to breaches of law or to threats to the
security of Canada.
* Subsection 21(1) sets 20 years for information that (a) relates to advice or
recommendations, (b) contains an account of consultations or deliberations,
(c) contains positions or plans developed for negotiations, or (d) has plans
relating to the management of personnel or the administration of an
institution that have not yet been implemented.
* Subsection 22.1(1) sets 15 years for drafts or working papers of internal
audits.
* Paragraph 69(3)(a) sets 20 years for Confidences of the King’s Privy Council.
* Subparagraph 69(3)(b)(ii) sets four years from the date a decision was made,
where the decisions have not been made public, on discussion papers related
to background explanations for Cabinet decisions.
The passage of time is assumed to reduce the sensitivity of protected
information, particularly in instances where decisions have been made or where
events have concluded. Lengthy sunset clauses may add to operational burdens in
ATIP offices since exceptions to the right of access must be considered for at
least the duration of the sunset clause.
Throughout the ATI Review engagement process there was broad agreement that
sunset clauses of 20 years for exemptions and exclusions is too long. In some
instances, the sunset clauses are longer than the retention period for the
information itself.
Internationally, there is significant variation in how much time needs to go by
before information can safely be disclosed by default, and variation in the
treatment of different categories of information. For example, in a North
American context, Mexico sets five years as a benchmark for some types of
records, while the USA has up to 25 years for its national security records. In
the latter case, the 25-year sunset clause on national security records is also
linked directly to the USA’s declassification program.
CONCLUSION(S)
Alongside the public interest, the passage of time is a critical determinant in
what information may be publicly disclosed and when. A relationship can be
established between the application of exemptions and the responsibility to
declassify or disclose records that are no longer sensitive.
ADVANCING INDIGENOUS RECONCILIATION
As noted in the recently published Indigenous What We Heard Report, during the
Bill C-58 process, the Government of Canada committed to engaging with
Indigenous peoples through the National Indigenous Organizations; First Nations,
Inuit and Métis organizations; and other interested organizations and groups to
obtain their perspectives with respect to the ATI regime and to consider related
improvements to the regime. Since that time, on June 21st, 2021, the United
Nations Declaration on the Rights of Indigenous Peoples Act (UN Declaration Act)
received Royal Assent and is now the law in Canada. Under the UN Declaration
Act, the Government of Canada must, in consultation and cooperation with
Indigenous peoples:
* Take all measures necessary to ensure the laws of Canada are consistent with
the United Nations Declaration on the Rights of Indigenous Peoples (UN
Declaration);
* Prepare and implement an action plan to achieve the objectives of the UN
Declaration; and
* Report progress on an annual basis to Parliament.
As noted in the inaugural annual report regarding the implementation of the UN
Declaration Act: “Implementation of the UN Declaration also requires
transformative change in the Government of Canada’s relationship with Indigenous
peoples. As part of this transformative change, the federal government is
continuing to accelerate progress on reconciliation and upholding Indigenous
peoples’ right to self-determination. This is truly a whole of government
effort.” All 2021 mandate letters called upon Ministers to support the UN
Declaration Act and to work with Indigenous peoples to advance Indigenous
rights. Rooted in the UN Declaration, the Department of Justice has published
Principles respecting the Government of Canada’s Relationship with Indigenous
peoples which guide the work required to fulfill the Government of Canada’s
commitment to renewed nation-to-nation, government-to-government, and
Inuit-Crown relationships. TBS has made continuous efforts to engage Indigenous
peoples and consider their perspectives. That effort will continue in exploring
avenues for improvements to the ATI regime.
During this review, TBS received input from various Indigenous organizations and
peoples to learn about their usage of the ATI system, as well as unique issues
and concerns they face. TBS also reviewed outstanding input received in
engagement around Bill C-58. Additional input was received through the Privacy
Act Modernization engagement activities led by the Department of Justice, in
which TBS officials participated. More detail on who was engaged and what input
was provided can be found in the Indigenous What We Heard report.
Indigenous peoples use the ATI regime to gather information from the Government
of Canada to advance priorities such as:
* claims related to historical grievances;
* Aboriginal title,Footnote 2 rights and treaty rights litigation;
* to establish status under the Indian Act through genealogical records;
* to foster community health and well-being;
* to inform decision-making on matters related to governance; and,
* to inform Indigenous economic development.
As noted in TBS’s engagement, Indigenous users face many of the same systemic
issues as other users when trying to obtain records, including delays in
receiving requested information, difficulty communicating with ATIP offices, and
observe inconsistent application of exemptions. While these issues are also
reported by non-Indigenous people and organizations, Indigenous organizations
note these issues result in a differential impact for their communities relying
on ATI requests for critical, time-sensitive, and delicate purposes that can
range from accessing infrastructure funding to assessing and monitoring natural
resource development that may affect their rights, interests or claims.
More fundamentally, engagement with Indigenous peoples has deepened our
understanding that the matter of information access for Indigenous peoples is
one of self-determination. Indigenous peoples have long asserted that barriers
to access information are effectively barriers to justice, whether in seeking
redress for historical grievances, access to social services, in pursuit of
economic opportunity or any other right or priority. While nearly all other
governmental bodies and organizations in Canada can exercise a degree of
authority over their records, the colonial history in Canada means the
Government of Canada and its institutions – departments, agencies, the courts
and Parliament – remain the principal arbiters of information disclosed to, and
about Indigenous peoples. As a result, Indigenous peoples may have limited or no
direct access to information and data obtained from their communities, which
limits their use of that same information and data to assert their rights,
claims and interests. As a result, Indigenous peoples have advocated for
Indigenous data sovereignty, seeking repatriation of information that was
collected from, and which relates to them to be able to determine how it may be
accessed, stored, and used.
This section explores ways to support Indigenous authority over Indigenous
information and data and improve the ATI regime to respond to the needs of First
Nations, Inuit and Métis users. It is notable, too, that these opportunities
exist alongside other Government of Canada priorities in these areas, such as
both Indigenous Services Canada’s and Crown-Indigenous Relations and Northern
Affairs Canada’s departmental plan of 2022-23, in addition to the funding
provided in Budget 2021 to support Indigenous-led data strategies and governance
as well as Statistics Canada’s work in support of these efforts.
The following pages examine ways to advance Indigenous reconciliation, through
transition to Indigenous control of Indigenous information and data, culturally
appropriate ATI services, examining the potential for an oversight mechanism for
Indigenous access, and addressing the narrow definition of “aboriginal
government.”
INDIGENOUS CONTROL OF INFORMATION AND DATA
For many years, Indigenous groups and governing bodies have stated that the way
information is managed going forward will play a key role towards Indigenous
self-determination and recognition as nations. This view was advanced by the
Assembly of First Nations, Native Women’s Association of Canada, Congress of
Aboriginal Peoples, the National Claims Research Directors and Union of British
Columbia Indian Chiefs, and the Tsawwassen First Nation prior to the passage of
Bill C-58, and it has been re-stated as a priority during this ATI Review.
Organizations like the First Nations Information and Governance Centre, who were
funded in 2018 to develop a framework for First Nations information and data
sovereignty, have asserted that self-determination cannot be achieved without
control over First Nations communities’ own data. The Inuit Tapiriit Kanatami is
similarly undertaking a broad information and data access, ownership and
dissemination strategy.
Indigenous claims of many types rely on information that are regularly obtained
through ATI requests, often within the constraints of legal or government
process timelines. Alternative processes to acquire records have similar
constraints according to researchers. First Nations claims researchers, for
example, report that key dates in claims processes are missed because of delays,
and time-limited research funding runs out, which can impose significant
financial hardship on both researchers and the organizations they support. The
National Claims Research Directors and Union of British Columbia Indian Chiefs
state that this is out of step with the UN Declaration, which they interpret as
ensuring access to redress of historical grievances. The National Claims
Research Directors have advanced specific recommendations, noting that these
“rely on Canada upholding the honour of the Crown and acting on its
reconciliatory mandate by recognizing its conflict of interest in controlling
information held by government institutions that First Nations require to
proceed with historical claims against the Crown, and taking immediate steps to
eliminate it.” The First Nations Information and Governance Centre as well as
other Indigenous organizations and governments like the Manitoba Métis
Federation have echoed this view, noting that there is a conflict of interest
for the Government of Canada in managing Indigenous efforts to access these
records.
This conflict is asserted in several areas, both in terms of ownership, access
to and control of information, as well as the competing responsibilities of
federal institution heads. Firstly, Indigenous peoples assert that the records
they need ought to belong to and be under the control of Indigenous peoples
instead of the Crown. Secondly, the institution head responsible for processing
access to information requests in support of Indigenous claims or requests is
also responsible for supporting the Crown’s position in response to these claims
or requests.
Indigenous organizations participating in this review acknowledge that
significant time and resources are required for the transfer of Indigenous data
and information to Indigenous control. Engagement input included a variety of
approaches, including interim solutions such as shifting the decision-making
authority to Indigenous peoples for the records they require, while maintaining
the present custodianship of the Government of Canada. They may also better
advance distinctions-based approaches to information management between the
First Nations, Inuit and Métis peoples.
Indigenous organizations also recognize that the ATI regime is a component of
the Government of Canada’s broader information management framework. There are
opportunities to advance Indigenous information and data ownership, control and
access beyond the ATIA.
CONCLUSION(S)
The Government of Canada is committed to respecting and supporting Indigenous
self-determination in Canada, including facilitating and supporting
Indigenous-led information and data strategies.
CULTURALLY APPROPRIATE SERVICES
Fulfilling the purposes of the ATIA for Indigenous requesters requires an
understanding that the Government of Canada recognizes First Nations, Inuit and
Métis as the Indigenous peoples of Canada, consisting of distinct,
rights-bearing communities with their own histories, including with the Crown.
It also means understanding that a distinctions-based approach is needed to
ensure that the unique rights, interests and circumstances of the First Nations,
Inuit and Métis are acknowledged, affirmed, and implemented. However, Indigenous
individuals and organizations participating in this review have reported a lack
of this understanding in their interactions with government officials.
Indigenous requesters express considerable frustration at receiving incorrect
responses or responses that apply to Indigenous people other than themselves
because they were dealing with individuals who did not understand what
information they were looking for or why.
During the ATI Review’s engagement process, Indigenous users of the ATI regime
identified issues with the process of submitting a request. Many records under
the control of government institutions relating to Indigenous matters have been
improperly stored which results in records of poor quality that are sometimes
unreadable, missing, or difficult to identify, leading to gaps in information.
Information is not always available or provided as a digital record in
machine-readable and searchable format, making it difficult or impossible to use
for research or analysis. Indigenous users also report barriers to technology,
which can make it harder to submit requests electronically, especially in remote
areas lacking stable internet service. Additionally, requesters may have
difficulty paying the application fee, which requires access to banking services
at a minimum, and often credit cards.
For Indigenous requesters who are seeking information on estranged, missing, or
deceased loved ones, dealing with the bureaucracy can be especially challenging.
Informal processes have sometimes enabled Indigenous requesters to pursue access
to information in a way that facilitates personal contact and enables
collaborative problem-solving and discussion between requesters and ATIP
professionals. At the same time, Indigenous requesters report that informal
requests can also be an experience of non-cooperation and long delays, which
pushes them to rely on formal ATI requests that are equally unresponsive to
their needs.
To advance reconciliation efforts, there is a need for the co-development of
practices between Indigenous peoples and the Government of Canada to ensure
Indigenous peoples are receiving culturally appropriate services with no
barriers to access. The Manitoba Métis Federation states, “it is important that
personnel handling Access to Information requests are well trained in access
standards, and experienced in distinguishing between Métis, First Nation, and
Inuit organizations, groups and governments.” Increased training and awareness
across federal institutions can contribute to addressing this gap.
CONCLUSION(S)
The Government of Canada is committed to removing Indigenous peoples’ barriers
to access information from government institutions, in concert with furthering
Indigenous-led information and data strategies.
INDEPENDENT OVERSIGHT
This report presents three key themes in relation to accessing and asserting
control over information relevant to, or about Indigenous peoples: the
definition of “aboriginal government” in the ATIA, Indigenous control of data
and information, and developing culturally appropriate services to support
Indigenous access to information. The latter two themes include the view that an
independent, Indigenous-specific oversight mechanism is essential to achieve
greater equity for Indigenous requesters and greater control over information
and data. The First Nations Information and Governance Centre, the National
Claims Research Directors and the Union of British Columbia Indian Chiefs, among
other Indigenous stakeholders, recommend a mechanism that the Government of
Canada is not in a conflict of interest while resolving claims against
themselves, as indicated in a preceding section of this report. It has been
recommended that this mechanism go beyond the ATIA, and this issue has been
similarly raised during engagement on the Privacy Act Modernization initiative
led by the Department of Justice. For example, some organizations have long
advocated for a wholly independent claims resolution process, which would be a
significant element of a broad independent oversight mechanism. Oversight and
accountability are critical components of the First Nations Information and
Governance Centre’s framework on First Nations information and data governance.
Within that framework, an oversight mechanism would be responsible for reviewing
decisions of institutions where First Nations requesters, or First Nations data
and information control are at issue, as well as having the ability to make
recommendations on how to improve access for First Nations users.
The Information Commissioner currently serves as the oversight mechanism for ATI
practices of the Government of Canada. Through subsection 30(1) of the ATIA, the
Information Commissioner has the obligation to investigate many issues across
the ATI regime, including those commonly experienced by Indigenous requesters.
These include when requesters are refused access to records, face administrative
delays or time extensions, receive incomplete responses, or any other matter
related to requesting or obtaining records.
Further engagement with First Nations, Inuit and Métis peoples will be needed,
in collaboration with the Information Commissioner as an independent agent of
Parliament, to propose a longer-term way to address questions of oversight and
accountability.
CONCLUSION(S)
The Government of Canada is committed to supporting Indigenous
self-determination in Canada, including examining the best mechanisms to achieve
this outcome, such as independent review.
DEFINITION OF “ABORIGINAL GOVERNMENT” IN THE ATIA
Section 13 of the ATIA requires the head of a government institution to refuse
to disclose information obtained in confidence from:
* a government of a foreign state;
* international organizations of states (e.g., the European Union);
* provincial and municipal governments and their institutions; and certain
specifically named “aboriginal” governments.
Indigenous peoples have pointed out that “aboriginal government,” in the English
version of the law, is outdated and non-inclusive of First Nations, Inuit and
Métis governments and governing bodies. The definition only lists nine First
Nations governments and councils, as well as band councils as defined in the
Indian Act. Many have also requested that the word “aboriginal” in the English
version of the ATIA be replaced by “Indigenous.”
The limited definition means Indigenous peoples lack the ability to
appropriately safeguard information of a social, political, cultural, spiritual,
environmental, or traditional nature. Currently Indigenous governments and other
governing bodies are sometimes required to share certain information with the
Government of Canada to receive services for their peoples. Other governments
usually control their data and can share it with the assurance of
confidentiality, but ownership, control and authority are not currently extended
to all Indigenous governments or governing bodies.
In the absence of such authority, however, many Indigenous governments must
instead rely on other provisions for confidentiality, such as the third-party
provisions under section 20 of the ATIA. Third party protections, however, are
intended to protect commercial or other proprietary information; those
provisions do not cover the full spectrum of information shared with or by
Indigenous governments and other governing bodies.
Three provinces (Ontario, British Columbia, and Alberta) and two territories
(the Northwest Territories and Nunavut) have more expansive definitions of their
equivalents of “aboriginal government” in their ATI legislation. Federally,
since 2017, Parliament has been updating this language in numerous statutes,
moving away from “aboriginal government” and adopting “Indigenous governing
body.” This is found in, among several others, the Fisheries Act, the Indigenous
Languages Act and An Act respecting First Nations, Inuit and Métis children,
youth and families. The term “Indigenous governing body” is defined in these
statutes as any council or other authorized entity that acts on behalf of an
Indigenous community, group, or people that holds rights recognized and affirmed
by section 35 of the Constitution Act, 1982. The Fisheries Act also notably
includes a section on Indigenous Knowledge and requires the Government of Canada
to receive written consent to disclose or make public any Indigenous knowledge
shared in confidence. Canada’s adoption of the UN Declaration Act will require
that Canadian laws are consistent on these matters relating to Indigenous
rights.
CONCLUSION(S)
The Government of Canada is committed to implementing the UN Declaration Act,
updating and aligning language used in laws of Canada related to Indigenous
peoples and communities, including the definition of “aboriginal government” in
the ATIA.
ACCESS TO INFORMATION IN A DIGITAL AGE
In this constantly evolving digital age, the ATI regime will continue to be
challenged to be more responsive to those that rely on it. Technology will
continue to play a central enabling role in this effort.
The Government of Canada has published its 2022 Digital Ambition, which provides
a clear, long-term vision for the integrated management of service, information,
data, information technology and cyber security. There are four strategic themes
that form the Government of Canada’s Digital Ambition: (1) excellence in
technology and operations; (2) data-enabled digital services and programs; (3)
action-ready digital strategy and policy; (4) structural evolution in funding,
talent and culture. Each of these themes is reflected in this report, and the
ATI regime is an ideal testing ground ripe for advancement in these areas.
Open Government efforts have long focused on the adoption of digital
technologies to make as much information available to as many people as
possible. The Open Government Portal is a one stop shop for external users to
access open data and information, including proactively published information
pursuant to Part 2 of the ATIA.
More recently, the ATIP Online platform was launched in 2018 as an enterprise
platform for requesters to submit ATI or personal information requests through a
single door. The platform is enhanced by artificial intelligence to help
requesters find previously requested information, and to help better direct
requests to the appropriate institution. It now serves more than 220 of the
approximately 265 institutions covered by the ATIA but not yet the largest
institutions with the most volume of ATI requests. The latest version of the
platform now includes secure user accounts and dashboards, as well as electronic
delivery of responses. This functionality lays the groundwork for secure
messaging and consultations, and greater interoperability. There is an urgent
opportunity for the Government of Canada to continue to build on the successes
of the ATIP Online platform to date, while reducing costs of running multiple,
similar systems.
Another opportunity for innovation is in updating ATI request processing tools.
New procurement vehicles exist for “Commercial Off-the-Shelf” ATI request
processing software, intended to replace the varied and generally outdated
software applications currently being used across the government.
Digital innovation can strengthen public trust and government transparency.
Alongside Open Government commitments, bolstering the capacity of Canada’s ATI
regime can play an integral role in mitigating against the proliferation of
misinformation, disinformation and malinformation that can harm public trust in
institutions.
A next frontier for the adaptation and evolution of the ATI regime is in the
realm of artificial intelligence and machine-learning. This technology uses
intelligent computer programs (learning algorithms) to find complex patterns in
data to make predictions or classifications. Machine learning is a subset of
artificial intelligence which allows a machine to automatically learn from past
data by identifying patterns. The Government of Canada is investing in the
adoption of artificial intelligence both internally, and across Canada’s economy
and society. These efforts are dependent on high quality and standardized data
to derive accurate insights from artificial intelligence and machine learning,
while respecting guiding principles on responsible use.
Across the federal government, departments and agencies are utilizing automated
systems, including AI, to make or support administrative decisions in various
domains, including border services, employment insurance and immigration. Such
systems are subject to the Directive on Automated Decision-Making, which seeks
to ensure transparency, accountability, and procedural fairness in automated
decision-making. Prior to their launch, automation projects are assessed using
the Algorithmic Impact Assessment, to evaluate the risks of a system and
determine applicable measures under the directive. Detailed Algorithmic Impact
Assessment results for Government of Canada initiatives are made publicly
available on the Open Government Portal. Lessons learned on existing automation
projects will inform the approach to using artificial intelligence technologies
within the ATI domain.
AI will both accelerate digital service transformation and force the
re-examination of such fundamental tenets of the ATI regime as “what is a
record” and who “owns” it.
CONCLUSION
Recognizing the critical role that the ATIA plays in government transparency and
accountability, it was important for the first legislated review to make every
effort to identify and analyze the barriers to the regime while building a
strong foundation for future ATI Review processes. The review team consulted
with the public, Canada’s Information Commissioner and the Privacy Commissioner,
Indigenous peoples and organizations, government institutions subject to the
ATIA, and other Canadian jurisdictions to aid in this objective. Input from
these stakeholders was essential in producing this report and will be critical
to continuing to modernize the ATI regime.
As this report demonstrates, the need to have government information readily
available and easily accessible while ensuring that any exceptions to the right
of access remain limited and specific is fundamental to ensuring government
transparency and accountability. This principle should continue to guide
modernization efforts in a digital age.
Modernization will require sustained effort. The government must continue to
maintain and improve upon the relationships it cultivated during this first
review and ensure that there is a mechanism in place for ongoing engagement that
is not time restricted. It will also be essential to monitor the implementation
of actions following from this report to assess how they perform against their
intended objectives. The Privacy Act and the ATIA share many similar features
and the trajectory of the ongoing Privacy Act Modernization will continue to
require coordination of work under the two regimes.
A prevailing theme of this report is the need for the Government of Canada to
update its digital systems, improve information management, and become more
user-centric in its digital service delivery. ATI is only as good as the systems
that support it, and those systems must be adopted by a skilled and adequate
workforce for the tasks. These matters align with many years of digital ambition
for the Government of Canada, and they will continue to be priorities in years
to come. Among the most pressing challenges to address, however, is advancing
reconciliation with Indigenous peoples. What was once a responsibility of each
Minister is now enshrined in law through the UN Declaration Act. This commitment
was also reflected by the Governor General of Canada in the 2022 Speech from the
Throne. Modernizing the ATI regime to reflect the principles and rights set out
in the UN Declaration Act responds to this commitment.
Going forward, informed by the outcome of this review, the ATIA can shift away
from being seen as the sole option for those seeking government information to
an effective avenue for transparency and accountability among others that
support the public’s right to know.
ANNEX A – LIST OF CONCLUSIONS OUTLINED IN THIS REPORT
Improving Service for Canadians Information Management and Access to Information
Effective information management is foundational to digital innovation, and the
reverse is equally true. A more consistent strategic lifecycle management of the
Government of Canada’s information and data assets will require looking at how
centralized frameworks and governance, improved storage and organization,
retention requirements and metadata tagging tools could yield broad improvements
across government in service delivery and program efficiencies. Building ATI
Community Capacity Clarifying roles, responsibilities and training for ATIP
officials, with appropriate centralization of core services to the community,
will make ATI services more consistent and efficient across the Government of
Canada. ATI Workforce Planning An enterprise-wide ATI workforce strategy would
improve composition, competency, recruitment and retention of ATIP
professionals. Accessibility and Official Languages Products and services
delivered under the ATI regime need to be inclusive of all those exercising
their right of access. Extensions Exploring ways to reduce the use of lengthy
extensions in concert with digital innovation and ATI capacity improvements,
could increase institutional compliance with legislated deadlines in the ATIA.
Consultations Examining policy options that seek to reduce the time taken to
consult while improving necessary inter-institutional consultation capacity,
alongside digital innovation and ATI capacity improvements, could improve
institutional compliance with legislated timelines in the ATIA. Administering
Complex Requests Exploring ways to leverage technology to administer complex ATI
requests will be a net benefit to all ATI requesters and institutions alike.
Enhancing Trust and Transparency Declassification A systematized approach to
declassification supports government transparency and accountability, enhances
access to Canada’s history, and improves the agility of the ATI regime and
security of information systems. Obligation to Document Decisions There are
opportunities to improve the documentation of government decisions, which is
essential to ensuring government accountability and transparency, and it is a
core element of strategic information management.
Enhancing Open Government Open Data Developing and updating training and
guidance on the value of open data will improve the usefulness of open data,
allow it to be delivered through a single digital platform, and unlock
significant benefits to data users. Improving Proactive Publications The
Government of Canada is committed to examining ways to improve proactively
published information under Part 2 of the ATIA, including engaging with users to
identify high demand and high value information, as well as developing improved
accountability mechanisms in support of public trust and government
transparency.
Right of access and exception to the right of access Information about
Government Institutions Re-examining the way in which the ATIA’s section 5
obligations are delivered will improve both the user-centricity of ATI and
ability of institutions to compile and disclose this information while reducing
redundant information sources. Universal Access Examining the groundwork
completed in the issuance of the Privacy Act Extension Order can inform a path
forward to address legitimate access needs where they exist. Public Interest and
the ATIA The public interest is a critical determinant in deciding what
information should be disclosed, alongside the diminishing risks related to the
passage of time. Examining the Exemptions Regime Examining options to clarify
legitimate sensitivities and risks around the disclosure of government
information could improve understanding of all transparency and accountability
initiatives, including for both ATI users and practitioners, the public, and
Government of Canada writ large. Exclusions Collaborating with relevant offices
(e.g., Privy Council Office and the Department of Justice) to explore policy
options that enhance transparency and accountability with respect to excluded
information, while maintaining necessary protections and safeguards for Cabinet
confidences and ensuring coherence with the broader legal framework governing
their protection in Canada Sunset Clauses for Exemptions and Exclusions
Alongside the public interest, the passage of time is a critical determinant in
what information may be publicly disclosed and when. A relationship can be
established between the application of exemptions and the responsibility to
declassify or disclose records that are no longer sensitive.
Advancing Indigenous Reconciliation Indigenous Control of Information and Data
The Government of Canada is committed to respecting and supporting Indigenous
self-determination in Canada, including facilitating and supporting
Indigenous-led information and data strategies. Culturally Appropriate Services
The Government of Canada is committed to removing Indigenous peoples’ barriers
to access information from government institutions, in concert with furthering
Indigenous-led information and data strategies. Independent Oversight The
Government of Canada is committed to supporting Indigenous self-determination in
Canada, including examining the best mechanisms to achieve this outcome, such as
independent review. Definition of “aboriginal government” in the ATIA The
Government of Canada is committed to implementing the UN Declaration Act,
updating and aligning language used in laws of Canada related to Indigenous
peoples and communities, including the definition of “aboriginal government” in
the ATIA.
ATI IN THE DIGITAL AGE
This section examines several digital innovations, or opportunities for further
innovation in a succinct format without drawing conclusions in the same way as
previous sections:
* ATIP Online platform
* Request Processing Software Solution
* Misinformation, disinformation and malinformation
* Artificial intelligence and machine learning
ANNEX B – ACRONYMS AND GLOSSARY
Acronyms ATI Access to Information ATIA Access to Information Act ATIP Access to
Information and Privacy LAC Library and Archives Canada LACA Library and
Archives Canada Act TBS Treasury Board of Canada Secretariat
Glossary Access to information request A request for one or more records that is
made under the Access to Information Act. Source. Access to Information Act
Legislation that provides for a right of access to records under the control of
a government institution according to principles that government information
should be available to the public, necessary exceptions to the right of access
should be limited and specific, and decisions on the disclosure of government
information should be reviewed independently of government. It also sets out
requirements for the proactive publication of information. Source. ATIP An
acronym for “access to information and privacy.” Source. Declassify An
administrative process to remove classification markings, security designations,
and handling conditions when information is no longer considered to be
sensitive. Source. Digitalization The use of digital technologies to change a
business model and provide new revenue and value-producing opportunities; it is
the process of moving to a digital business. Source. Digitization The process of
converting analog records into digital format. The process broadly includes:
selection, assessment, prioritization, project management and tracking,
preparation of originals for digitization, metadata creation, collection and
management, digitizing (the creation of digital objects from physical
originals), quality management, submission of digital resources to delivery
systems and into a repository environment, and assessment and evaluation of the
digitization effort. Source. Exclusion A provision of the Access to Information
Act or the Privacy Act that establishes that certain types of information are
outside the application of the legislation. Source. Exemption A provision of the
Access to Information Act or the Privacy Act that authorizes the head of a
government institution to refuse to disclose records that contain certain types
of information. Exemptions may be mandatory or discretionary. Source. Office of
primary interest An office of primary interest is the federal government
institution -- department, agency, board, office or commission -- to which the
authority, responsibility and accountability to perform a particular function on
behalf of the Government of Canada has been specifically assigned by
legislation, regulation, policy or mandate. In the context of ATI, offices of
primary interest refer to a sector, division or office within an institution
that holds records responsive to a request or has subject matter expertise
related to the request. Source. Open data Open data is machine readable data
that can be freely used, re-used and redistributed by anyone – subject only, at
most, to the requirement to attribute and share alike. Source. Open Government
For the Government of Canada, Open Government means a governing culture that
fosters greater openness and accountability, enhances citizen participation in
policymaking and service design, and creates a more efficient and responsive
government. Source. Interoperability Interoperability is a property of a product
or system, whose interfaces are completely understood, to work with other
products or systems, present or future, without any restricted access or
implementation. Source. Record Any documentary material, regardless of medium,
under the control of a government institution. Source. Transitory Record Records
that are not of business value. They may include records that serve solely as
convenience copies of records held in a government institution repository, but
do not include any records that are required to control, support, or document
the delivery of programs, to carry out operations, to make decisions, or to
provide evidence to account for the activities of government at any time.
Source.
FOOTNOTES
Footnote 1
Note: In Canada (Information Commissioner) v. Canada (Minister of National
Defence), 2015 FCA 56, the Federal Court of Appeal addressed considerations
related to extensions and noted, “a government institution confronted with a
request involving a great number of documents and/or necessitating broad
consultation must make a serious effort to assess the required duration, and
that the estimated calculation be sufficiently rigorous, logical and supportable
to pass muster under reasonableness review.” (emphasis added)
Return to footnote 1 referrer
Footnote 2
“Aboriginal title” is a unique legal concept, affirmed and its content defined
by a landmark 1997 Supreme Court of Canada ruling. It gives the holder the right
to use, control, and manage the land and the right to the economic benefits of
the land and its resources. While the term “Aboriginal” appears in various
places in Canadian jurisprudence and legal concepts, this report generally
adopts the preferred term of “Indigenous” wherever possible.
Return to footnote 2 referrer
© His Majesty the King in Right of Canada, represented by the President of the
Treasury Board, 2022,
Catalogue No.BT1-51E-PDF, ISSN: 2561-4290
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