The Government of Canada has proposed amendments to the federal Access to Information Act (ATIA) with the stated goal of improving public access to government records. Access to Information advocates have been calling for an overhaul of the ATIA for some time.
The ATIA grants members of the Canadian public the right to request access to records held by federal government institutions subject to the Act. Currently, if an access applicant is dissatisfied with how the request has been handled by the government institution, they may file a complaint with the Information Commissioner. The Information Commissioner’s office may recommend the release of records upon investigation, but the Commissioner does not currently have the authority to order the release of such records.
Broadened powers proposed for the Information Commissioner
Under Bill C-58, the Information Commissioner will gain new order-making power to compel the disclosure of a government record (or part of a record) following a Commissioner’s investigation.
The Bill also gives government institutions the authority to decline to act on an access request for various reasons, including because the request is overly broad, vexatious or made in bad faith. However, an institution’s decision, if challenged by the access applicant, will be subject to the proposed order-making power of the Information Commissioner.
At the same time, under the Bill, the Information Commissioner would be able to refuse or cease to investigate a complaint if the complaint is deemed trivial, frivolous, vexatious or made in bad faith.
The Bill further purports to provide explicit authority for the Information Commissioner to examine records over which solicitor-client privilege has been claimed, in order to evaluate whether the claim is valid. The ability of a commissioner to do so has been put into question in the past through court decisions, such as the Supreme Court of Canada decision in Alberta (Information and Privacy Commissioner) v. University of Calgary 2016 SCC 53, which was argued successfully on behalf of the University of Calgary by Robert Calvert, Q.C., Michael Ford, Q.C., and Monika Gehlen of DLA Piper (Canada) LLP.
Available remedies
Under Bill C-58, if a government institution (or an affected third party) believes the information ordered to be released by the Information Commissioner should be protected, it may ask the Federal Court to review the decision. If a court application is made, this will act as a stay on the Information Commissioner’s order until judicial review has been completed.
An interesting aspect of Bill C-58 is that if the Court is of the opinion that the application for court review has raised an important legal principle under the ATIA, the Court may award costs to the applicant, even if the applicant’s court case is not successful.
Proactive publication requirements for government institutions
The proposed amendments to the ATIA require government institutions to proactively publish a range of information known to be of interest to the public, with the stated purpose of providing greater accountability for the use of public funds. This includes travel and hospitality expenses of senior government officers or employees (and, to some extent, judges).
While Bill C-58 includes new provisions addressing proactive publication of certain records by government institutions, it does not go as far as the recently enacted British Columbia Information Management (Documenting Government Decisions) Amendment Act,1 which directs the heads of British Columbia government bodies to ensure an appropriate system is in place for creating and maintaining an adequate record of the government body’s decisions. Some stakeholders and commentators have raised concerns about an apparent absence of government records relating to controversial government decisions, which tends to decrease the effectiveness of access to information legislation. British Columbia’s recent legislation was intended to address that issue. Bill C-58 does not obligate federal government institutions to create records reflecting government decision-making.
Bill C-58 has currently passed First Reading, and it remains to be seen whether it will become law. If you would like further information on this topic, please contact Tamara Hunter or your DLA Piper lawyer.
[1] Bill 6, Information Management (Documenting Government Decisions) Amendment Act, 2017, 6th Sess, 40th Parl, British Columbia, 2017 (assented to 16 March 2017), S.B.C. 2017, c. 7.