Canada Gazette, Part I, Volume 156, Number 52: Regulations Amending the Access to Information Regulations

December 24, 2022

Statutory authority
Access to Information Act

Sponsoring department
Treasury Board Secretariat

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

Elimination of fees, other than the one related to the application itself

In June 2019, the Access to Information Act (ATIA) was amended to, among other objectives, eliminate all fees apart from the one related to the access to information application itself. Since then, the Governor in Council can no longer make regulations to set or charge any additional fees, such as fees for processing a request or reproducing documents. As a result, any provision referring to those additional fees within the Access to Information Regulations (ATIR) is now spent.

Identification requirements

The primary regime under which requesters can obtain their personal information held by government institutions is under the Privacy Act. However, many requests made under the ATIA also seek access to personal information. While subsection 8(2) of the Privacy Regulations makes it clear that requesters must provide adequate identification documents to ensure their right to access the information under the Privacy Act, there is no equivalent requirement under the ATIR if the information is requested under the ATIA regime. Whether personal information is sought under the Privacy Act or under the ATIA, institutions must equally protect privacy by subjecting requesters to equivalent regulatory identification requirements.

As well, the 2016 (ARCHIVED) Interim Directive on the Administration of the Access to Information Act, the 2022 Directive on Access to Information Requests and the Access to Information Manual (ATI Manual) specify the need to ensure that an individual making a request under the ATIA has the right to do so. This includes ensuring that the requester is a Canadian citizen, a permanent resident, or a person present in Canada, per section 4 of the ATIA and section 2 of the Access to Information Act Extension Order, No. 1. The current operational practice of institutions is to comply with this requirement and request additional information (e.g. copy of passport, citizenship certificate) confirming the requester’s right of access, when the initial request itself does not contain enough information to establish such a right. However, this requirement is not specified in the ATIR.

Minor changes to the language of the ATIA under Part 1

The ATIR was not amended after the 2019 amendments to the ATIA, and certain provisions in the ATIR still refer to “the Act,” in general, without specifying in which part of the ATIA they relate. This creates a misalignment between the ATIA and the ATIR.

Background

Elimination of fees, other than the one related to the application itself

On March 31, 2015, the Federal Court of Canada released its judgment and reasons in Information Commissioner v. Attorney General of Canada (2015 FC 405). The Court answered “no” to the following question posed by the information commissioner: “Are electronic records non-computerized records for the purpose of the search and preparation fees authorized by subsection 11(2) of the Access to Information Act and subsection 7(2) of the Access to Information Regulations?” In answering “no” to the question, in agreement with the information commissioner’s interpretation, the Court’s decision had the effect of preventing federal institutions from charging search and preparation fees for electronic records in response to access to information requests as had been previous practice.

In May 2016, through section 7.5.1 of the Interim Directive on the Administration of the Access to Information Act, the Government of Canada made a policy decision not to charge search and preparation fees for any type of records requested under the ATIA.

On June 21, 2019, Bill C-58 (An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts) received royal assent, introducing changes to the ATIA. Among the changes and in line with the 2016 policy decision, the Governor in Council’s power to fix search and preparation fees by regulations was repealed.

Identification requirements

Subsection 4(1) of the ATIA provides a right of access to records under the control of a government institution for Canadian citizens and permanent residents within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act. Section 2 of the Access to Information Act Extension Order, No. 1 extends the right of access to include all individuals and all corporations present in Canada.

In the decision Cyanamid Canada Inc. v. Canada (Minister of National Health and Welfare) (1992), 45 C.P.R. (3d) 390 (F.C.A.), the Court ruled that a government institution must receive some evidence to be reasonably satisfied of the requester’s right of access. This requirement was further detailed in section 5.3 of the ATI Manual, a reference tool for government institutions to help them interpret and administer the ATIA. Under section 5.3 of the ATI Manual, “The institution must have sufficient information to be satisfied that the requester meets the requirements of the Act. It must be in possession of sufficient indicators of presence in Canada at the time the request was made, residence in Canada or Canadian citizenship, or proof that the requester is a permanent resident . . . .” The ATI Manual further states that the “institution can rely on the information provided by the requester unless specific facts indicate that the requester was not present in Canada at the time the request was made or that the requester is neither a Canadian citizen nor a permanent resident.”

In 2016, the Interim Directive on the Administration of the Access to Information Act specified that heads of government institutions or their delegates must ensure that requesters have the right to make a request under the ATIA. This interim directive was replaced by the Directive on Access to Information Requests on July 13, 2022, which reiterated institutions’ responsibility to confirm the eligibility of requesters. Under the 2022 Directive, heads of government institutions or their delegates must establish procedures to (i) confirm that the requester is a Canadian citizen, permanent resident, an individual present in Canada, or an authorized representative of a corporation present in Canada; and (ii) confirm the identity of the requester when access to records involving their personal information is sought.

Minor changes to the language of the ATIA under Part 1

Bill C-58 introduced the proactive publication of information regime under the new Part 2 of the ATIA. Consequential amendments were made to certain provisions of Part 1 of the ATIA, Access to Government Records, to replace references to “the Act,” for “this Part.” This allowed for the provisions to be accurately located within the appropriate part of the ATIA, and for both parts to be better distinguished.

Objective

Amending the ATIR to remove its provisions referring to any fees, apart from the application fee, would ensure coherence with the regulation-making authority provided under the ATIA.

Amending the ATIR to clarify institutions’ requirement to confirm the right of access to the requested records under section 4 of the ATIA and to the personal information contained in these records would provide greater transparency on the current operational practices. It would also better align the ATIR with the Privacy Regulations, the ATI Manual, and the Directive on Access to Information Requests.

Description

The proposed Regulations Amending the Access to Information Regulations (the proposed Regulations) would

The proposed Regulations would also allow institutions to seek from requesters

Finally, minor amendments would be made to section 4, section 7, and paragraph 8(2)(a) of the ATIR to replace references to “the Act” by “Part 1 of the Act.”

Regulatory development

Consultation

Through previous consultations surrounding Bill C-58, stakeholders indicated support for the elimination of search and preparation fees. No further consultations were deemed to be necessary for the proposed amendments related to fees, as they are consistent with the current practice of not charging any other fees aside the one for the application, informed by the 2019 legislative amendments.

In terms of requiring information, including adequate identification from a requester, institutions already ensure that an individual who makes a request under the ATIA has the right to do so. Institutions also confirm the identity of requesters when access to records involving their personal information is sought. Given the alignment between the current practices and the proposed amendments related to this element of the proposal, no consultations were deemed to be necessary.

Modern treaty obligations and Indigenous engagement and consultation

The proposed Regulations are not expected to impact treaties with the Indigenous peoples of Canada. The Treasury Board of Canada Secretariat conducted an initial assessment that examined the geographical scope and subject matter of the initiative in relation to modern treaties in effect and did not identify any potential modern treaty impacts.

Instrument choice

The option of maintaining a policy approach instead of using a regulatory instrument to address the issues was considered.

With regard to the fees element of the proposal, regulations were chosen as the appropriate instrument as it is good practice to repeal spent provisions that have no current application. Since the coming into force of the 2019 legislative amendments to the ATIA, the Governor-in-Council can no longer set search and preparation fees. The proposed Regulations would therefore align the ATIR with its enabling authority.

With regard to the requirement to request information, including adequate identification, it was determined that enshrining current practices and procedures in the Regulations would provide greater transparency to requesters on the requirements affecting them. Moreover, the ATIR already provides the procedure requesters must follow to submit an access request, and the one institutions are subject to when responding to such a request. The use of a regulatory instrument would therefore allow the “complete” procedure to be located under one comprehensive section, making the information readily accessible and easier to follow for requesters, as compared to a series of policy instruments.

Regulatory analysis

Benefits and costs

The proposed amendments pertaining to fees as well as to the requirement to request information, including adequate identification, are consistent with the current practices informed by the 2019 changes to the ATIA, the former Interim Directive on the Administration of the Access to Information Act and the Directive on Access to Information Requests. As a result, this proposal does not have cost implications. Additionally, as these proposed amendments reflect current practices, most of the relevant material (e.g. policy instruments, websites, ATI manual) is already up-to-date, or is currently in the process of being updated. Therefore, it is not anticipated that the coming into force of these amendments would generate implementation costs.

The minor changes to align the language of the ATIR with the ATIA are not of a substantive nature and would not impact requesters or the Government of Canada. Consequently, the cost impact of these amendments would also be nil.

Small business lens

Analysis under the small business lens concluded that the proposed Regulations would not impact Canadian small businesses, as the amendments do not deviate from existing operational practices.

One-for-one rule

The one-for-one rule does not apply as there is no incremental impact on business.

Regulatory cooperation and alignment

The proposed Regulations are not related to a formal regulatory cooperation plan. They are proposed, in part, to align the ATIR with its enabling authority, the Directive on Access to Information Request, as well as the Privacy Regulations.

A preliminary assessment was conducted on how this regulatory proposal aligns with like-minded countries, such as the United Kingdom, the United States of America, Australia, New Zealand, and France. Access to information laws from Ontario, Quebec, and British Columbia (BC) were also assessed.

With regard to fees, Canada’s enabling authority and fee structure differ from the assessed countries and provinces, which explains why regulatory alignment cannot be achieved. Under the ATIA, it is only possible to charge fees on the application itself, up to $25. Canada has adopted, under the ATIR, a flat fee of $5. In most of the above-mentioned jurisdictions (all except BC), fees are calculated only based on the processing time and/or resources required to deliver the record. For example, the United Kingdom charges for search, retrieval, and processing of records at a rate of £25 per person per hour. Fees are capped at £450 per request. However, the application itself is free in the United Kingdom. Ontario also charges processing fees, specifically, the costs of every hour of manual search required to locate a record; the costs of preparing the record for disclosure; computer and other costs incurred in locating, retrieving, processing, and copying a record; shipping costs; and any other costs incurred in responding to a request for access to a record.

The proposed amendment that allows information, including adequate identification to be requested, mostly aligns with France and New Zealand. France allows institutions to request identification when they have reasonable doubts about the identity of the requester. Similarly, New Zealand’s access to information regime allows institutions to make “reasonable enquiries” to ensure requesters’ right to access. Misalignment of this proposed amendment with the remaining assessed countries (the United Kingdom, the United States of America and Australia) is likely due to these countries offering a universal right of access to government records, contrary to Canada. As well, the aforementioned Canadian provinces (Ontario, Quebec and British Columbia) also provide for a universal right of access to government records.

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.

Gender-based analysis plus

No gender-based analysis plus (GBA+) impacts have been identified for this proposal.

Eliminating fees, other than the one related to the application itself, improves accessibility for people with lower socioeconomic status. However, this amendment does not deviate from existing operational practices, as search and preparation fees have not been charged since 2016.

Implementation, compliance and enforcement, and service standards

The proposed Regulations would come into force the day on which they are registered. The Treasury Board of Canada Secretariat would then communicate the amendments via an email to federal Access to Information and Privacy Offices and Coordinators.

Contact

Natalie Acres
Director, Access to Information Policy
Office of the Chief Information Officer
Treasury Board of Canada Secretariat
Email: ippd-dpiprp@tbs-sct.gc.ca

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council proposes to make the annexed Regulations Amending the Access to Information Regulations under section 71footnote a of the Access to Information Act footnote b.

Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. They are strongly encouraged to use the online commenting feature that is available on the Canada Gazette website but if they use email, mail or any other means, the representations should cite the Canada Gazette, Part I, and the date of publication of this notice, and be sent to Natalie Acres, Director, Access to Information Policy, Office of the Chief Information Officer, Treasury Board of Canada Secretariat, 90 Elgin Street, Ottawa, Ontario K1A 0R5 (email: ippd-dpiprp@tbs-sct.gc.ca).

Ottawa, December 14, 2022

Wendy Nixon
Assistant Clerk of the Privy Council

Regulations Amending the Access to Information Regulations

Amendments

1 (1) The portion of section 4 of the Access to Information Regulations footnote 1 before paragraph (a) is replaced by the following:

4 (1) A request for access to a record under Part 1 of the Act must be made by forwarding to the appropriate officer of the government institution that has control of the record, together with the required application fee,

(2) Section 4 of the Regulations is amended by adding the following after subsection (1):

(2) If the information contained in the request is insufficient to establish that the person making the request has a right of access under section 4 of the Act, the government institution must request additional information from the person in order to confirm their right of access.

2 Section 5 of the Regulations is replaced by the following:

5 If access is to be given to a record that contains personal information about the person who requested access, the government institution must require the person to provide adequate identification before the personal information is disclosed unless the person’s identity has already been confirmed.

3 Section 7 of the Regulations is replaced by the following:

7 A person who makes a request for access to a record under Part 1 of the Act must pay an application fee of $5 at the time the request is made.

4 (1) Paragraph 8(2)(a) of the Regulations is replaced by the following:

(2) Subsection 8(4) of the Regulations is repealed.

Coming into Force

5 These Regulations come into force on the day on which they are registered.

Terms of use and Privacy notice

Terms of use

It is your responsibility to ensure that the comments you provide do not:

  • contain personal information
  • contain protected or classified information of the Government of Canada
  • express or incite discrimination on the basis of race, sex, religion, sexual orientation or against any other group protected under the Canadian Human Rights Act or the Canadian Charter of Rights and Freedoms
  • contain hateful, defamatory, or obscene language
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  • contain language contrary to any federal, provincial or territorial laws of Canada
  • constitute impersonation, advertising or spam
  • encourage or incite any criminal activity
  • contain a language other than English or French
  • otherwise violate this notice

The federal institution managing the proposed regulatory change retains the right to review and remove personal information, hate speech, or other information deemed inappropriate for public posting as listed above.

Confidential Business Information should only be posted in the specific Confidential Business Information text box. In general, Confidential Business Information includes information that (i) is not publicly available, (ii) is treated in a confidential manner by the person to whose business the information relates, and (iii) has actual or potential economic value to the person or their competitors because it is not publicly available and whose disclosure would result in financial loss to the person or a material gain to their competitors. Comments that you provide in the Confidential Business Information section that satisfy this description will not be made publicly available. The federal institution managing the proposed regulatory change retains the right to post the comment publicly if it is not deemed to be Confidential Business Information.

Your comments will be posted on the Canada Gazette website for public review. However, you have the right to submit your comments anonymously. If you choose to remain anonymous, your comments will be made public and attributed to an anonymous individual. No other information about you will be made publicly available.

Comments will remain posted on the Canada Gazette website for at least 10 years.

Please note that public email is not secure, if the attachment you wish to send contains sensitive information, please contact the departmental email to discuss ways in which you can transmit sensitive information.

Privacy notice

The information you provide is collected under the authority of the Financial Administration Act, the Department of Public Works and Government Services Act, the Canada–United States–Mexico Agreement Implementation Act,and applicable regulators’ enabling statutes for the purpose of collecting comments related to the proposed regulatory changes. Your comments and documents are collected for the purpose of increasing transparency in the regulatory process and making Government more accessible to Canadians.

Personal information submitted is collected, used, disclosed, retained, and protected from unauthorized persons and/or agencies pursuant to the provisions of the Privacy Act and the Privacy Regulations. Individual names that are submitted will not be posted online but will be kept for contact if needed. The names of organizations that submit comments will be posted online.

Submitted information, including personal information, will be accessible to Public Services and Procurement Canada, who is responsible for the Canada Gazette webpage, and the federal institution managing the proposed regulatory change.

You have the right of access to and correction of your personal information. To seek access or correction of your personal information, contact the Access to Information and Privacy (ATIP) Office of the federal institution managing the proposed regulatory change.

You have the right to file a complaint to the Privacy Commission of Canada regarding any federal institution’s handling of your personal information.

The personal information provided is included in Personal Information Bank PSU 938 Outreach Activities. Individuals requesting access to their personal information under the Privacy Act should submit their request to the appropriate regulator with sufficient information for that federal institution to retrieve their personal information. For individuals who choose to submit comments anonymously, requests for their information may not be reasonably retrievable by the government institution.