Introduction: As a country that was once among the world\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\'s leaders in government openness, it is unfortunate that Canada has dropped so far down the list. Partly, this is the result of global progress, with which Canada has failed to keep pace. Canada\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\'s Access to Information Act, while cutting edge in 1983, has not been significantly updated since then, and reflects many outdated norms. Canada\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\'s lax timelines, imposition of access fees, lack of a proper public interest override, and blanket exemptions for certain political offices all contravene international standards for the right of access. Canada\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\'s antiquated approach to access to information is also the result of a lack of political will to improve the situation. Since the Access to Information Act was first passed there have been several attempts to reform and revamp it, and all have been defeated in one way or another. We hope that Canada\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\'s poor showing here will be a wake up call to the fact that global standards for implementation of the right to information have moved past what the Access to Information Act can provide, and will spur our politicians to act in order to give proper implementation to the right to information.
Right of Access
Indicator
Description
Scoring instructions
MAX score
Findings
Points
Article
Comments
1
The legal framework (including jurisprudence) recognises a fundamental right of access to information.
Score 0 for no constitutional right to information, 1 point for a limited constitutional right, 2 points for full constitutional recognition of a public right of access to information.
2
Partially
Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815 . However, the right to information is only recognized as a limited and derivative right.
Link to the Constitution of Canada (English version):
http://laws.justice.gc.ca/eng/Const/Const_index.html
2
The legal framework creates a specific presumption in favour of access to all information held by public authorities, subject only to limited exceptions.
No=0, Partially=1, Yes=2
2
YES
Article 2.
(1)The purpose of this Act is to extend the present laws of Canada to provide a right of
access to information in records under the control of a government institution in accordance
with the principles that government information
should be available to the public, that necessary exceptions to the right of access should be limi-
ted and specific and that decisions on the disclosure of government information should be reviewed independently of government.
(2)This Act is intended to complement and
not replace existing procedures for access to
government information and is not intended to
limit in any way access to the type of government information that is normally available to the general public
Article 4(1)
Subject to this Act, but notwithstanding any other Act of Parliament, every person who is
(a) a Canadian citizen, or
(b)a permanent resident within the meaning of subsection 2(1)
of the Immigration and Refugee Protection Act,
has a right to and shall, on request, be given access to any record under the control of a government institution.
Art 2 mentions that exceptions should be narrow and limited, Art 4(1) allows access to all documents
3
3.1 The legal framework contains a specific statement of principles calling for a broad interpretation of the RTI law 3.2 The legal framework emphasises the benefits of the right to information?
3.1(Y/N - max 1 point) 3.2 (Y/N - max 1 point)
2
YES
Interim Directive: 3.1 The core principle of the Access to Information Act is that government information should be available to the public, subject only to limited and specific exceptions to protect privacy, confidentiality and security. By providing access to government information, the Act serves the important public interest of enabling public debate on the conduct of government institutions, strengthening the accountability of government to its citizens. The Act should be administered with these core principles in mind. 7.1 7.1.1 Exercising discretion in a fair, reasonable and impartial manner after completing the following steps:
Consideration of the core principle of the Act that government information should be available to the public, subject only to limited and specific exceptions to protect privacy, confidentiality and security;
Consideration of the purpose of the Act: by providing access to government information, the Access to Information Act serves the important public interest of enabling public debate on the conduct of government institutions, strengthening the accountability of government to its citizens;
Consideration of the relevant provisions of the Act, as well as applicable jurisprudence;
Necessary consultations, for the proper exercise of discretion and application of the exemption and exclusion provisions of the Act including consultations with other government institutions and third parties;
Review of the information contained in records; and
Consideration, in a fair and unbiased manner, of all relevant factors.
The above considerations apply to all provisions of the Act for which the head or the delegate exercises discretion.
7.8.1 Invoking exemptions by properly considering the core principle
of the Act that government information should be available to the
public, subject only to limited and specific exceptions to protect
privacy, confidentiality and security, the purpose of the Act and
relevant jurisprudence.
Scope
Indicator
Description
Scoring instructions
MAX score
Findings
Points
Article
Comments
4
Everyone (including non-citizens and legal entities) has the right to file requests for information.
Score 0 point if only residents/citizens; 1 point for all natural persons; 1 point for legal persons.
2
Partially
ARTICLE 4.
(1)Subject to this Act, but notwithstanding any other Act of Parliament, every person who is
(a) a Canadian citizen, or
(b)a permanent resident within the meaning of subsection
2(1) of the
Immigration and
Refugee Protection Act, has a right to and shall, on request, be given access to any record under the control of a government institution.(...)
4 - applies only to citizens and residents, as well as legal entities in Canada
5
The right of access applies to all material held by or on behalf of public authorities which is recorded in any format, regardless of who produced it.
Score 1-3 points if limited definition of information information such as not "internal documents" or databases excluded, 4 points for all information with no exceptions.
4
YES
ARTICLE 4(3).
For the purposes of this Act, any record requested under this Act that does not exist but can, subject to such limitations as may be prescribed by regulation, be produced from a machine readable record under the control of a government institution using computer hardware and software and technical expertise normally used by the government institution shall be deemed to be a record under the control of the government institution.
6
Requesters have a right to access both information and records/documents (i.e. a right both to ask for information and to apply for specific documents).
Score 1 point for only documents, 1 point for information
2
YES
ARTICLE 3(3)
For the purposes of this Act, any record
requested under this Act that does not exist but can, subject to such limitations as may be prescribed by regulation, be produced from a ma-
chine readable record under the control of a
government institution using computer hardware and software and technical expertise normally used by the government institution shall
be deemed to be a record under the control of the government institution.
7
The right of access applies to the executive branch with no bodies or classes of information excluded.This includes executive (cabinet) and adminsitration including all ministries, departments, local government, public schools, public health care bodies, the police, the armed forces, security services, and bodies owned or controlled by the above.
Score 4 points for central government agencies covered: 1 for the head of state, 1 for ministries, 1 for other non-statutory agencies created by the ministries, 1 for state and local government if the government is unitary. If it´s a federalist system, 2 points for the non-statutory agencies. This can be determined by examining the length and thoroughness of the list, if such a schedule exists. Score 1 point for the archives. Add three points and deduct 1 for each exempted central agency (such as the armed forces, police, etc).
8
Partially
ARTICLE 69.
(1)This Act does not apply to confidences of the Queen’s Privy Council for Canada,
including, without restricting the generality of the foregoing,
(a)memoranda the purpose of which is to present proposals or recommendations to
Council;
(b)discussion papers the purpose of which is to present background explanations, analy-
ses of problems or policy options to Council for consideration by Council in making decisions;
(c)agenda of Council or records recording
deliberations or decisions of Council;
(d)records used for or reflecting communications or discussions between ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy;
(e) records the purpose of which is to brief ministers of the Crown in relation to matters
that are before, or are proposed to be brought before, Council or that are the subject of
communications or discussions referred to in
paragraph (d);
(f)draft legislation; and
(g)records that contain information about the contents of any record within a class of
records referred to in paragraphs (a)to (f).
(2)For the purposes of subsection (1),
“Council” means the Queen’s Privy Council for Canada, committees of the Queen’s Privy
Council for Canada, Cabinet and committees of
Cabinet.
(3) Subsection (1) does not apply to
(a)confidences of the Queen’s Privy Council for Canada that have been in existence for more than twenty years; or
(b)discussion papers described in paragraph (1)(b)
(i)if the decisions to which the discussion papers relate have been made public, or
(ii)where the decisions have not been made public, if four years have passed since the decisions were made.
69 - Does not apply to Cabinet or the PM, and only applies to affiliated agencies that are listed in the act. Applies to the Archives. Does not apply to provincial gov\'ts, but they do not lose a point for that as it is a consequence of Canada\'s division of powers.
8
The right of access applies to the legislature, including both administrative and other information, with no bodies excluded.
Score 1 point if the law only applies to administrative documents, 2-3 points if some bodies excluded, 4 points if all legislative branch at all levels of government
4
NO
Schedule 1
9
The right of access applies to the judicial branch, including both administrative and other information, with no bodies excluded.
Score 1 point if the law only applies to administrative documents, 2-3 points if some bodies excluded, 4 points if all judicial branch at all levels of government
4
NO
Schedule 1
10
The right of access applies to State-owned enterprises (commercial entities that are owned or controlled by the State).
Score 1 point if some, 2 points if all
2
Partially
ARTICLE 3.
In this Act,
“alternative format”, with respect to a record,
means a format that allows a person with a sensory disability to read or listen to that record;
“Court” means the Federal Court;
“designated Minister”
means a person who is designated as the Minister under subsection 3.2(1);
“foreign state” means any state other than Canada;
“government institution” means
(a)any department or ministry of state of the Government of Canada, or any body or office, listed in Schedule I, and
(b)any parent Crown corporation, and any
wholly-owned subsidiary of such a corporation, within the meaning of section 83 of the
Financial Administration Act;
“head”, in respect of a government institution,
means
(a)in the case of a department or ministry of
state, the member of the Queen’s Privy
Council for Canada who presides over the department or ministry, or
(b)in any other case, either the person designated under subsection 3.
2(2)to be the
head of the institution for the purposes of this Act or, if no such person is designated, the chief executive officer of the institution,
whatever their title;
“Information Commissioner” means the Commissioner appointed under section 54;
“record” means any documentary material, regardless of medium or form;
“sensory disability”
means a disability that relates to sight or hearing;
“third party”, in respect of a request for access
to a record under this Act, means any person, group of persons or organization other than the person that made the request or a government
institution.
68. This Act does not apply to
(a) published material or material available for purchase by the public;
(b) library or museum material preserved solely for public reference or exhibition purposes; or
(c) material placed in the Library and Archives of Canada, the National Gallery of Canada, the Canadian Museum of History, the Canadian Museum of Nature, the National Museum of Science and Technology, the Canadian Museum for Human Rights or the Canadian Museum of Immigration at Pier 21 by or on behalf of persons or organizations other than government institutions.
3 - definition of government institutions. However, some crown corporations are excluded by section 68.
11
The right of access applies to other public authorities, including constitutional, statutory and oversight bodies (such as an election commission or information commission/er).
Score 1 point if some bodies, 2 points if all
2
Partially
Applies to some bodies as listed in the accompanying schedules.
12
The right of access applies to a) private bodies that perform a public function and b) private bodies that receive significant public funding.
1 point for public functions, 1 point for public funding
2
NO
No mentioned
Requesting Procedures
Indicator
Description
Scoring instructions
MAX score
Findings
Points
Article
Comments
13
Requesters are not required to provide reasons for their requests.
Y/N answer 0 or 2 points
2
YES
ARTICLE 6
A request for access to a record under this Act shall be made in writing to the government
institution that has control of the record and shall provide sufficient detail to enable an experienced employee of the institution with a
reasonable effort to identify the record.
14
Requesters are only required to provide the details necessary for identifying and delivering the information (i.e. some form of address for delivery).
Score Max 2 points and deduct if requesters are required to give any of the following: ID number, telephone number, residential address, etc.
2
YES
Regs 4(b)
15
There are clear and relatively simple procedures for making requests. Requests may be submitted by any means of communication, with no requirement to use official forms or to state that the information is being requested under the access to information law.
Max 2 points. Considerations include that there is no requirement to state that the request is under the RTI law, nor to use an official form, nor to identify the document being sought.
2
Partially
Procedures for request differ between agencies, though the regs go some way to spelling out procedure.
16
Public officials are required provide assistance to help requesters formulate their requests, or to contact and assist requesters where requests that have been made are vague, unduly broad or otherwise need clarification.
Score 1 point for help in formulation and 1 point for clarification procedures
2
YES
ARTICLE 4(2.1).
The head of a government institution shall, without regard to the identity of a person making a request for access to a record under
the control of the institution, make every reasonable effort to assist the person in connection with the request, respond to the request accurately and completely and, subject to the regu-
lations, provide timely access to the record in
the format requested.
17
Public officials are required to provide assistance to requesters who require it because of special needs, for example because they are illiterate or disabled.
Score Yes=2 point, No=0
2
YES
ARTICLE 12(3).
Where access to a record or a part thereof is to be given under this Act and the person
to whom access is to be given has a sensory disability and requests that access be given in
an alternative format, a copy of the record or part thereof shall be given to the person in an alternative format
(a) forthwith, if the record or part thereof already exists under the control of a govern-
ment institution in an alternative format that is acceptable to that person; or
(b)within a reasonable period of time, if the
head of the government institution that has
control of the record considers the giving of access in an alternative format to be necessary to enable the person to exercise the per-
son’s right of access under this Act and considers it reasonable to cause that record or
part thereof to be converted.
12(3) - Accommodation is also required as a result of the Charter.
18
Requesters are provided with a receipt or acknowledgement upon lodging a request within a reasonable timeframe, which should not exceed 5 working days
Score 1 point for receipt, 1 point for max 5 working days
2
YES
This is standard administrative practice in Canada. Many application forms have a space for your reference number.
19
Clear and appropriate procedures are in place for situations where the authority to which a request is directed does not have the requested information. This includes an obligation to inform the requester that the information is not held and to refer the requester to another institution or to transfer the request where the public authority knows where the information is held.
Score: 1 point for information not held, 1 for referrals or 2 for transfers
2
Partially
ARTICLE 8
(1)Where a government institution receives a request for access to a record under this Act and the head of the institution considers that another government institution has a
greater interest in the record, the head of the in-
stitution may, subject to such conditions as may
be prescribed by regulation, within fifteen days after the request is received, transfer the request and, if necessary, the record to the other government institution, in which case the head of the institution transferring the request shall give written notice of the transfer to the person who made the request.
(2)For the purposes of section 7, where a request is transferred under subsection (1), the
request shall be deemed to have been made to the government institution to which it was
transferred on the day the government institution to which the request was originally made
received it.
(3)For the purpose of subsection (1), a government institution has a greater interest in a record if
(a)the record was originally produced in or for the institution; or
(b)in the case of a record not originally produced in or for a government institution, the
institution was the first government institution to receive the record or a copy thereof.
8 - Allows for direct transfers - but it also allows for transfers where another authority has a greater interest in the record, which costs a point.
20
Public authorities are required to comply with requesters’ preferences regarding how they access information, subject only to clear and limited overrides (e.g. to protect a record).
Score: 2 points for Yes, only 1 point if some limitations
2
YES
ARTICLE 12(3)
Where access to a record or a part thereof is to be given under this Act and the person
to whom access is to be given has a sensory disability and requests that access be given in
an alternative format, a copy of the record or part thereof shall be given to the person in an alternative format
(a)forthwith, if the record or part thereof already exists under the control of a govern-
ment institution in an alternative format that is acceptable to that person; or
(b)within a reasonable period of time, if the
head of the government institution that has
control of the record considers the giving of
access in an alternative format to be necessary to enable the person to exercise the person’s right of access under this Act and considers it reasonable to cause that record or
part thereof to be converted.
12(3) - Allows for alternative formats for disabled persons. 12(3) - Allows for alternative formats for disabled persons only. Interim Directive 7.4.6 When privacy, confidentiality and security considerations would not be compromised and it would not be unreasonable or impracticable to do so, provide records in the format requested by the requester, including machine-readable and reusable formats.
21
Public authorities are required to respond to requests as soon as possible.
Score: No=0, Yes=2 points
2
NO
Not mentioned.
22
There are clear and reasonable maximum timelines (20 working days or less) for responding to requests, regardless of the manner of satisfying the request (including through publication).
Score: 1 point for timeframes of 20 working days (or 1 month, 30 days or 4 weeks). Score 2 points for 10 working days (or 15 days, or two weeks) or less.
2
Partially
ARTICLE 7.
\"Where access to a record is requested under this Act, the head of the government institu-
tion to which the request is made shall, subject
to sections 8, 9 and 11, within thirty days after
the request is received, <...>\"
7.Notice where Access Requested.
30 days
23
There are clear limits on timeline extensions (20 working days or less), including a requirement that requesters be notified and provided with the reasons for the extension.
---
2
NO
S. 9 and Interim Reg. 7.6.1 Assessing, without undue delay, all access requests received and, if an extension is needed for processing the request, notifying the requester of the extension within 30 days of the receipt of the request.
9 - There is a requirement for notice, but the extension provision is so vague that it is prone to abuse.
24
It is free to file requests.
Score: No=0, Yes=2 points
2
NO
ARTICLE 11
(1)Subject to this section, a person who
makes a request for access to a record under this Act may be required to pay (...).
25
There are clear rules relating to access fees, which are set centrally, rather than being determined by individual public authorities. These include a requirement that fees be limited to the cost of reproducing and sending the information (so that inspection of documents and electronic copies are free) and a certain initial number of pages (at least 20) are provided for free.
Score 1 point for fees being limited to reproduction and delivery costs and set centrally, 1 point for at least 20 pages free of charge or for fees being optional
2
YES
Interim Reg 7.5.1 Waiving all fees prescribed by the Act and Regulations, other than the application fee set out in section 7(1)(a) of the Regulations.
Regs contain fairly precise rules on fees, but charge for time spent searching and, from the looks of the fee schedule, charges are not limited to direct costs incurred.
26
There are fee waivers for impecunious requesters
---
2
YES
Interim Reg. 7.5.2 Exercising discretion concerning the waiver, reduction or refund of the application fee while taking into account the applicable steps set out in subsection 7.1.1 of this directive.
Not mentioned
27
There are no limitations on or charges for reuse of information received from public bodies, except where a third party (which is not a public authority) holds a legally-protected copyright over the information.
Score: No=0, Yes=2 points
2
YES
The rules of Crown copyright generally permit reproduction.
Exceptions
Indicator
Description
Scoring instructions
MAX score
Findings
Points
Article
Comments
28
The standards in the RTI Law trump restrictions on information disclosure (secrecy provisions) in other legislation to the extent of any conflict.
Score 4 points for a resounding "yes" and 1/2/3 points if only for some classes of information or for some exceptions. If the state secrets law is not trumped by the RTI law max score is 2 points.
4
NO
No - the legislation refers to a number of other laws which have independent provisions.
29
The exceptions to the right of access are consistent with international standards. Permissible exceptions are: national security; international relations; public health and safety; the prevention, investigation and prosecution of legal wrongs; privacy; legitimate commercial and other economic interests; management of the economy; fair administration of justice and legal advice privilege; conservation of the environment; and legitimate policy making and other operations of public authorities. It is also permissible to refer requesters to information which is already publicly available, for example online or in published form.
Score 10 points and then deduct 1 point for each exception which either (a) falls outside of this list and/or (b) is more broadly framed
10
Partially
ARTICLE 16.3
Subject to section 541 of the Canada
Elections Act, the Chief Electoral Officer may refuse to disclose any record requested under this Act that contains information that was obtained or created by or on behalf of a person
who conducts an investigation, examination or
review in the performance of their functions under the Canada Elections Act.
ARTICLE 20.4
The head of the National Arts Centre
Corporation shall refuse to disclose a record requested under this Act if the disclosure would
reveal the terms of a contract for the services of a performing artist or the identity of a donor who has made a donation in confidence and if
the Corporation has consistently treated the information as confidential. 68.1 This Act does not apply to any information that is under the control of the Canadian Broadcasting Corporation that relates to its journalistic, creative or programming activities, other than information that relates to its general administration.
14 - federal provincial relations, 16.1 -16.4 audits by various commissioners (multiple exceptions, but some are covered under law enforcement), 20.4 national arts centre contracts, 68.1 information that is under the control of the Canadian Broadcasting Corporation that relates to its journalistic, creative or programming activities (overbroad),
30
A harm test applies to all exceptions, so that it is only where disclosure poses a risk of actual harm to a protected interest that it may be refused.
Score 4 points and then deduct 1 point for each exception which is not subject to the harm test
4
NO
ARTICLE 15.
(h)that constitutes diplomatic correspondence exchanged with foreign states or international organizations of states or official
correspondence exchanged with Canadian diplomatic missions or consular posts
abroad;
ARTICLE 16(1).
The head of a government institution may refuse to disclose any record requested under this Act that contains
(a)information obtained or prepared by any
government institution, or part of any government institution, that is an investigative
body specified in the regulations in the course of lawful investigations pertaining to (...)
ARTICLE 18.1
(1)The head of a government institution may refuse to disclose a record requested
under this Act that contains trade secrets or financial, commercial, scientific or technical information that belongs to, and has consistently been treated as confidential by,
(a) the Canada Post Corporation;
(b) Export Development Canada;
(c)the Public Sector Pension Investment Board; or
(d) VIA Rail Canada Inc.
(2) However, the head of a government institution shall not refuse under subsection (1) to
disclose a part of a record that contains information that relates to
(a)the general administration of an institution referred to in any of paragraphs (1)(a) to (d); or
(b)any activity of the Canada Post Corporation that is fully funded out of moneys appropriated by Parliament.
s. 13 and 15: foreign relations. s. 16, law enforcement information, s. 18.1 info treated as confidential by crown corps, info treated as confidential by third parties. s. 21(1) - operations of government.
31
There is a mandatory public interest override so that information must be disclosed where this is in the overall public interest, even if this may harm a protected interest. There are ‘hard’ overrides (which apply absolutely), for example for information about human rights, corruption or crimes against humanity.
Consider whether the override is subject to overarching limitations, whether it applies to only some exceptions, and whether it is mandatory.
4
Partially
Override only applies narrowly to a few exceptions.
32
Information must be released as soon as an exception ceases to apply (for example, for after a contract tender process decision has been taken). The law contains a clause stating that exceptions to protect public interests do not apply to information which is over 20 years old.
Score 1 point for each
2
NO
There are a few sunset clauses, but they apply narrowly.
33
Clear and appropriate procedures are in place for consulting with third parties who provided information which is the subject of a request on a confidential basis. Public authorities shall take into account any objections by third parties when considering requests for information, but third parties do not have veto power over the release of information.
Score: 1 point for consultation, 1 further point if original time frames must be respected and the law allows for expedited appeals.
2
Partially
Third party consultations can apply for trade info, but not personal info.
34
There is a severability clause so that where only part of a record is covered by an exception the remainder must be disclosed.
Score 1 point if yes but sometimes can be refused (eg: if deletions render meaningless the document) and 2 points if partial access must always be granted
2
YES
ARTICLE 25.
Notwithstanding any other provision of
this Act, where a request is made to a government institution for access to a record that the head of the institution is authorized torefuse to disclose under this Act by reason of information or other material contained in the record, the head of the institution shall disclose any
part of the record that does not contain, and can
reasonably be severed from any part that contains, any such information or material.
35
When refusing to provide access to information, public authorities must a) state the exact legal grounds and reason(s) for the refusal and b) inform the applicant of the relevant appeals procedures.
Score Y/N: 1 point for a and 1 point for b
2
YES
10 (1) Where the head of a government institution refuses to give access to a record requested under this Act or a part thereof, the head of the institution shall state in the notice given under paragraph 7(a)
(a) that the record does not exist, or
(b) the specific provision of this Act on which the refusal was based or, where the head of the institution does not indicate whether a record exists, the provision on which a refusal could reasonably be expected to be based if the record existed,
and shall state in the notice that the person who made the request has a right to make a complaint to the Information Commissioner about the refusal.
Appeals
Indicator
Description
Scoring instructions
MAX score
Findings
Points
Article
Comments
36
The law offers an internal appeal which is simple, free of charge and completed within clear timelines (20 working days or less).
Score 2 points if the internal appeal fulfills these criteria, 1 point if an appeal is offered that does not fulfill this criteria, 0 for no internal appeals.
2
NO
No internal appeals procedure.
37
Requesters have the right to lodge an (external) appeal with an independent administrative oversight body (e.g. an information commission or ombudsman).
1 for partial, 2 for yes
2
YES
ARTICLE 30
(1)Subject to this Act, the Information
Commissioner shall receive and investigate complaints
(a)from persons who have been refused access to a record requested under this Act or a part thereof;
(b)from persons who have been required to pay an amount under section 11 that they consider unreasonable;
(c)from persons who have requested access to records in respect of which time limits have been extended pursuant to section 9 where they consider the extension unreasonable;
(d)from persons who have not been given
access to a record or a part thereof in the official language requested by the person under
subsection 12(2), or have not been given access in that language within a period of time that they consider appropriate;
(d.1)from persons who have not been given access to a record or a part thereof in an al-
ternative format pursuant to a request made under subsection 12(3), or have not been given such access within a period of time that they consider appropriate;
(e)in respect of any publication or bulletin referred to in section 5; or
(f)in respect of any other matter relating to
requesting or obtaining access to records under this Act.
(2)Nothing in this Act precludes the Information Commissioner from receiving and investigating complaints of a nature described in
subsection (1) that are submitted by a person authorized by the complainant to act on behalf of the complainant, and a reference to a complainant in any other section includes a reference to a person so authorized.
(3)Where the Information Commissioner is
satisfied that there are reasonable grounds to investigate a matter relating to requesting or obtaining access to records under this Act, the Commissioner may initiate a complaint in respect thereof.
38
The member(s) of the oversight body are appointed in a manner that is protected against political interference and have security of tenure so they are protected against arbitrary dismissal (procedurally/substantively) once appointed.
Score: 1 point for appointment procedure, 1 point for security of tenure
2
YES
Appointed by GiC with approval of the House of Commons and the Senate and can be dismissed by GiC only upon address to the House and Senate.
39
The oversight body reports to and has its budget approved by the parliament, or other effective mechanisms are in place to protect its financial independence.
Score 1 point for reports to parliament, 1 point for budget approved by parliament
2
YES
ARTICLE 38
The Information Commissioner shall,
within three months after the termination of each financial year, submit an annual report to Parliament on the activities of the office during that financial year.
40
There are prohibitions on individuals with strong political connections from being appointed to this body and requirements of professional expertise.
Score 1 point for not politically connected, 1 point for professional expertise
2
Partially
The conventions of Canada\'s system suggest that the Information Commissioner will be politically neutral and have appropriate expertise, but the fact that this is a convention (rather than a legal requirement) means they cannot get full points here.
41
The independent oversight body has the necessary mandate and power to perform its functions, including to review classified documents and inspect the premises of public bodies.
Score 1 point for reviewing classified documents, 1 point for inspection powers
2
YES
ARTICLE 36
(1)The Information Commissioner has,
in relation to the carrying out of the investigation of any complaint under this Act, power
(a)to summon and enforce the appearance of persons before the Information Commissioner and compel them to give oral or written evidence on oath and to produce such
documents and things as the Commissioner deems requisite to the full investigation and consideration of the complaint, in the same manner and to the same extent as a superior
court of record;
(b) to administer oaths;
(c)to receive and accept such evidence and other information, whether on oath or by affidavit or otherwise, as the Information Commissioner sees fit, whether or not the evidence or information is or would be admissible in a court of law;
(d)to enter any premises occupied by any government institution on satisfying any security requirements of the institution relating
to the premises;
(e) to converse in private with any person in any premises entered pursuant to paragraph
(d) and otherwise carry out therein such inquiries within the authority of the Information Commissioner under this Act as the
Commissioner sees fit; and
(f)to examine or obtain copies of or extracts from books or other records found in any premises entered pursuant to paragraph (d) containing any matter relevant to the investigation.
(2)Notwithstanding any other Act of Parliament or any privilege under the law of evidence, the Information Commissioner may,
during the investigation of any complaint under
this Act, examine any record to which this Act applies that is under the control of a government institution, and no such record may be
withheld from the Commissioner on any
grounds.
(3)Except in a prosecution of a person for an offence under section 131 of the
Criminal Code (perjury) in respect of a statement made under this Act, in a prosecution for an offence under section 67, in a review before the Court under this Act or in an appeal from such proceedings, evidence given by a person in proceedings under this Act and evidence of the ex-
istence of the proceedings is inadmissible
against that person in a court or in any other
proceedings.
(4)Any person summoned to appear before the Information Commissioner pursuant to this
section is entitled in the discretion of the Commissioner to receive the like fees and allowan-
ces for so doing as if summoned to attend before the Federal Court.
(5)Any document or thing produced pur-
suant to this section by any person or government institution shall be returned by the Information Commissioner within ten days after a
request is made to the Commissioner by that person or government institution, but nothing in this subsection precludes the Commissioner
from again requiring its production in accordance with this section.
42
The decisions of the independent oversight body are binding.
Score N=0, Y=2 points
2
NO
ARTICLE 37(4)
(4)Where, pursuant to a request under paragraph (1)(b), the head of a government institution gives notice to the Information Commissioner that access to a record or a part thereof
will be given to a complainant, the head of the
institution shall give the complainant access to the record or part thereof
(a)forthwith on giving the notice if no notice is given to a third party under paragraph
29(1)(b) in the matter; or
(b)forthwith on completion of twenty days after notice is given to a third party under
paragraph 29(1)(b), if that notice is given, unless a review of the matter is requested under section 44.
43
In deciding an appeal, the independent oversight body has the power to order appropriate remedies for the requester, including the declassification of information.
1 for partial, 2 for fully
2
YES
ARTICLE 37
(1)If, on investigating a complaint in respect of a record under this Act, the Information Commissioner finds that the complaint is well-founded, the Commissioner shall provide the head of the government institution that has
control of the record with a report containing
(a)the findings of the investigation and any recommendations that the Commissioner
considers appropriate; and
(b)where appropriate, a request that, within
a time specified in the report, notice be given to the Commissioner of any action taken or
proposed to be taken to implement the recommendations contained in the report or reasons why no such action has been or is proposed to be taken.
(2)The Information Commissioner shall, after investigating a complaint under this Act, report to the complainant and any third party that
was entitled under subsection 35(2) to make and that made representations to the Commissioner in respect of the complaint the results of the investigation, but where a notice has been requested under paragraph (1)(b) no report
shall be made under this subsection until the expiration of the time within which the notice is to be given to the Commissioner.
(3)Where a notice has been requested under paragraph (1)(b) but no such notice is received
by the Commissioner within the time specified therefor or the action described in the notice is, in the opinion of the Commissioner, inadequate or inappropriate or will not be taken in a reasonable time, the Commissioner shall so advise the complainant in his report under subsection (2) and may include in the report such comments on the matter as he thinks fit.
(4)Where, pursuant to a request under paragraph (1)(b), the head of a government institution gives notice to the Information Commissioner that access to a record or a part thereof
will be given to a complainant, the head of the
institution shall give the complainant access to the record or part thereof
(a)forthwith on giving the notice if no notice is given to a third party under paragraph 29(1)(b) in the matter; or
(b)forthwith on completion of twenty days after notice is given to a third party under
paragraph 29(1)(b), if that notice is given, unless a review of the matter is requested under section 44.
(5)Where, following the investigation of a complaint relating to a refusal to give access to a record requested under this Act or a part
thereof, the head of a government institution does not give notice to the Information Commissioner that access to the record will be given, the Information Commissioner shall inform the complainant that the complainant has the right to apply to the Court for a review of the
matter investigated.
37 - Can recommend disclosure. 37(1)(a) allows recommendations considered appropriate.
44
Requesters have the right to lodge a judicial appeal.
1 for partially, 2 for fully.
2
YES
ARTICLE 41
Any person who has been refused access
to a record requested under this Act or a part
thereof may, if a complaint has been made to the Information Commissioner in respect of the
refusal, apply to the Court for a review of the matter within forty-five days after the time the
results of an investigation of the complaint by
the Information Commissioner are reported to the complainant under subsection 37(2)
or within such further time as the Court may, either before or after the expiration of those forty-five days, fix or allow.
41 - also implicit in Canada\'s system of adminstrative law
45
Appeals to the oversight body (where applicable, or to the judiciary if no such body exists) are free of charge and do not require legal assistance.
1 for free, 1 for no lawyer required.
2
YES
ARTICLE 30(1)
Subject to this Act, the Information
Commissioner shall receive and investigate
complaints (...)
(b)
from persons who have been required to pay an amount under section 11 that they
consider unreasonable;
46
The grounds for appeal to the oversight body (where applicable, or to the judiciary if no such body exists) are broad (including not only refusals to provide information but also refusals to provide information in the form requested, administrative silence and other breach of timelines, charging excessive fees, etc.).
Score 1 point for appealing refusals, additional points for appealing other violations.
4
YES
ARTICLE 30
(1)Subject to this Act, the Information
Commissioner shall receive and investigate
complaints
(a)from persons who have been refused access to a record requested under this Act or a part thereof;
(b)from persons who have been required to pay an amount under section 11 that they consider unreasonable;
(c)from persons who have requested access to records in respect of which time limits have been extended pursuant to section 9 where they consider the extension unreason-
able;
(d)from persons who have not been given
access to a record or a part thereof in the official language requested by the person under
subsection 12(2), or have not been given access in that language within a period of time that they consider appropriate;
(d.1)from persons who have not been given access to a record or a part thereof in an alternative format pursuant to a request made under subsection 12(3), or have not been given such access within a period of time that they consider appropriate;
(e)in respect of any publication or bulletin referred to in section 5; or
(f)in respect of any other matter relating to
requesting or obtaining access to records under this Act.
(2)Nothing in this Act precludes the Information Commissioner from receiving and in-
vestigating complaints of a nature described in
subsection (1) that are submitted by a person authorized by the complainant to act on behalf
of the complainant, and a reference to a complainant in any other section includes a refer-
ence to a person so authorized.
(3)Where the Information Commissioner is
satisfied that there are reasonable grounds to investigate a matter relating to requesting or ob-
taining access to records under this Act, the
Commissioner may initiate a complaint in respect thereof.
47
Clear procedures, including timelines, are in place for dealing with external appeals (oversight/judicial).
Score 1 point for clear procedures, 1 point for timelines.
2
Partially
Clear procedure spelled out here: http://www.oic-ci.gc.ca/eng/investigations-enquetes.aspx but no timelines.
48
In the appeal process (oversight/judicial/) the government bears the burden of demonstrating that it did not operate in breach of the rules.
Score Y/N and award 2 points for yes.
2
YES
This isn\'t stated explicitly, but is implicit in Canada\'s system of administrative law, and in the fucntioning of the Information Commission as an investigative office.
49
The external appellate body has the power to impose appropriate structural measures on the public authority (e.g. to conduct more training or to engage in better record management)
1 for partial, 2 for fully.
2
Partially
ARTICLE 37
(1) If, on investigating a complaint in respect of a record under this Act, the Information Commissioner finds that the complaint is well-founded, the Commissioner shall provide the head of the government institution that has
control of the record with a report containing
(a)the findings of the investigation and any
recommendations that the Commissioner
considers appropriate; and
(b)where appropriate, a request that, within
a time specified in the report, notice be given to the Commissioner of any action taken or
proposed to be taken to implement the recommendations contained in the report or reasons why no such action has been or is proposed to be taken.
(2)The Information Commissioner shall, after investigating a complaint under this Act, report to the complainant and any third party that
was entitled under subsection 35(2) to make and that made representations to the Commissioner in respect of the complaint the results of the investigation, but where a notice has been requested under paragraph (1)(b) no report
shall be made under this subsection until the expiration of the time within which the notice is to be given to the Commissioner.
(3)Where a notice has been requested under paragraph (1)(b) but no such notice is received
by the Commissioner within the time specified
therefor or the action described in the notice is, in the opinion of the Commissioner, inadequate or inappropriate or will not be taken in a reasonable time, the Commissioner shall so advise the complainant in his report under subsection (2) and may include in the report such comments on the matter as he thinks fit.
(4) Where, pursuant to a request under paragraph (1)(b), the head of a government institution gives notice to the Information Commissioner that access to a record or a part thereof
will be given to a complainant, the head of the
institution shall give the complainant access to the record or part thereof
(a)forthwith on giving the notice if no notice is given to a third party under paragraph
29(1)(b) in the matter; or
(b)forthwith on completion of twenty days
after notice is given to a third party under
paragraph
29(1)(b), if that notice is given,
unless a review of the matter is requested under section 44.
(5)Where, following the investigation of a complaint relating to a refusal to give access to a record requested under this Act or a part
thereof, the head of a government institution does not give notice to the Information Commissioner that access to the record will be given, the Information Commissioner shall inform the complainant that the complainant has the right to apply to the Court for a review of the matter investigated.
37 - Can recommend changes.
Sanctions & Proteccions
Indicator
Description
Scoring instructions
MAX score
Findings
Points
Article
Comments
50
Sanctions may be imposed on those who wilfully act to undermine the right to information, including through the unauthorised destruction of information.
Score 1 point for sanctions for underming right, 1 point for destruction of documents
2
YES
ARTICLE 67
(1)No person shall obstruct the Infor-
mation Commissioner or any person acting on behalf or under the direction of the Commissioner in the performance of the Commissioner’s duties and functions under this Act.
(2)
Every person who contravenes this sec-
tion is guilty of an offence and liable on sum-
mary conviction to a fine not exceeding one
thousand dollars.
51
There is a system for redressing the problem of public authorities which systematically fail to disclose information or underperform (either through imposing sanctions on them or requiring remedial actions of them).
Score 1 point for either remedial action or sanctions, 2 points for both
2
NO
No mentioned
52
The independent oversight body and its staff are granted legal immunity for acts undertaken in good faith in the exercise or performance of any power, duty or function under the RTI Law. Others are granted similar immunity for the good faith release of information pursuant to the RTI Law.
Score 1 for oversight body, 1 for immunity for others
2
YES
ARTICLE 65
The Information Commissioner or any
person acting on behalf or under the direction of the Commissioner is not a competent or
compellable witness, in respect of any matter
coming to the knowledge of the Commissioner or that person as a result of performing any duties or functions under this Act during an investigation, in any proceedings other than a prose-
cution for an offence under this Act, a
prosecution for an offence under section 131 of
the Criminal Code
(perjury) in respect of a
statement made under this Act, a review before the Court under this Act or an appeal therefrom.
53
There are legal protections against imposing sanctions on those who, in good faith, release information which discloses wrongdoing (i.e. whistleblowers).
Score 2 for strong protections, 1 for moderate protections
2
YES
Yes - this is done through a separate law.
Promotional measures
Indicator
Description
Scoring instructions
MAX score
Findings
Points
Article
Comments
54
Public authorities are required to appoint dedicated officials (information officers) or units with a responsibility for ensuring that they comply with their information disclosure obligations.
Score Y/N, Y=2 points
2
YES
Interim Directive: 3.4 The administration of the Act is the responsibility of the heads of government institutions. Heads (or their delegates) process requests for access to information in accordance with the provisions of the Act and the Access to Information Regulations (Regulations), which include the duty to assist applicants. The Act and the Regulations also spell out parameters relating to the transfer of access requests, the extension of time limits, the charging of fees, the grounds for exemptions and exclusions, the process for giving notice to third parties, and the language, format and method of access. This directive is intended to support heads (and their delegates) in the administration of the Act by providing specific direction for responding to requests under the Act and by establishing principles for assisting applicants.
55
A central body, such as an information commission(er) or government department, is given overall responsibility for promoting the right to information.
Score Y/N, Y=2 points
2
NO
Canada\'s Information Commissioner does not have this mandate.
56
Public awareness-raising efforts (e.g. producing a guide for the public or introducing RTI awareness into schools) are required to be undertaken by law.
Score Y/N, Y=2 points
2
NO
Canada\'s Information Commissioner does not have this mandate.
57
A system is in place whereby minimum standards regarding the management of records are set and applied.
Score Y/N, Y=2 points
2
NO
Not listed in the law.
58
Public authorities are required to create and update lists or registers of the documents in their possession, and to make these public.
Score Y/N, Y=2 points
2
Partially
ARTICLE 5
(1) The designated Minister shall cause
to be published, on a periodic basis not less frequently than once each year, a publication containing
(a)a description of the organization and responsibilities of each government institution,
including details on the programs and functions of each division or branch of each government institution;
(b)a description of all classes of records under the control of each government institution in sufficient detail to facilitate the exercise of the right of access under this Act;
(c)a description of all manuals used by employees of each government institution in administering or carrying out any of the programs or activities of the government
institution; and
(d)the title and address of the appropriate officer for each government institution to
whom requests for access to records under this Act should be sent.
59
Training programs for officials are required
Score Y/N, Y=2 points
2
YES
Appendix B of the Interim Directive: Information for all employees
All employees of government institutions should receive training in the application of the Act. The training should cover the following:
The purpose of the Act;
The applicable definitions;
Their responsibilities under the Act, including the principles for assisting applicants;
Delegation, exemption decisions and the exercise of discretion;
The requirement to provide complete, accurate and timely responses;
The complaint process and reviews by the courts;
Section 67.1 of the Act, which makes it an offence to obstruct the right of access and which provides for criminal sanctions;
The requirements found in Treasury Board policy instruments relating to the responsibilities described above; and
Specific institutional policies and processes relating to the administration of the Act, including policies on information management.
Information for practitioners in the field of Access to Information
All employees of government institutions who have functional responsibility for the administration of the Act and the Regulations should receive training that covers the items listed above and the following:
The provisions concerning the extension of time limits, fees, exemptions and exclusions, the third-party notification process, and the language, format and method of access;
Reporting requirements, including annual reports to Parliament; and
Information on the activities and operations of standing committees relating to the Act.
60
Public authorities are required to report annually on the actions they have taken to implement their disclosure obligations. This includes statistics on requests received and how they were dealt with.
Score Y/N, Y=2 points
2
YES
ARTICLE 72.
(1)The head of every government institution shall prepare for submission to Parliament an annual report on the administration of this Act within the institution during each financial year.
(2)Every report prepared under subsection (1) shall be laid before each House of Parliament within three months after the financial
year in respect of which it is made or, if that House is not then sitting, on any of the first fifteen days next thereafter that it is sitting.
(3)Every report prepared under subsection (1) shall, after it is laid before the Senate and the House of Commons under subsection (2),be referred to the committee designated or established by Parliament for the purpose of subsection 75(1).
ARTICLE 72.1
The head of a department or a ministry of state of the Government of Canada shall
publish an annual report of all expenses incurred by his or her office and paid out of the Consolidated Revenue Fund.
61
A central body, such as an information commission(er) or government department, has an obligation to present a consolidated report to the legislature on implementation of the law.
Score Y/N, Y=2 points
2
YES
ARTICLE 38.
The Information Commissioner shall,
within three months after the termination of each financial year, submit an annual report to
Parliament on the activities of the office during that financial year.