Regulations Amending the Access to Information Regulations: SOR/2018-38

Canada Gazette, Part II: Volume 152, Number 6

Registration

March 7, 2018

ACCESS TO INFORMATION ACT

P.C. 2018-200 March 6, 2018

Her Excellency the Governor General in Council, on the recommendation of the Minister of Justice, pursuant to paragraph 77(1)(f) of the Access to Information Act ^{footnote a}, makes the annexed Regulations Amending the Access to Information Regulations.

Regulations Amending the Access to Information Regulations

Amendments

1 The long title of the English version of the Access to Information Regulations^{footnote 1} is replaced by the following:

Access to Information Regulations

2 Section 1 of the Regulations and the heading before it are repealed.

3 Schedule I to the Regulations is amended by adding the following after item 2.1:

• 2.2 Criminal Investigations Directorate, International, Large Business and Investigations Branch, Canada Revenue Agency

4 Item 5 of Schedule I to the Regulations is replaced by the following:

• 5 Preventive Security and Intelligence Branch, Correctional Service of Canada

5 Item 7 of Schedule I to the Regulations is repealed.

Coming into Force

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

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the regulations.)

Issues

Some investigative body designations in the Access to Information Regulations (Schedule I) and the Privacy Regulations (Schedule II, Schedule III and Schedule IV) must be amended because they are outdated, following a name change or a reorganization of the federal institution to which the investigative body belongs.

Furthermore, some entities that are already investigative bodies under their enabling statute must be added to Schedule II of the Privacy Regulations to allow government institutions to disclose personal information to them for the purposes of enforcing the law or for carrying out lawful investigations, in accordance with paragraph 8(2)(e) of the Privacy Act.

Background

In 1983, when the Access to Information Act (ATIA) and the Privacy Act (PA) came into force, several entities within government institutions were designated as investigative bodies for the purposes of the Access to Information Regulations and the Privacy Regulations.

In 2011, a modernization initiative was undertaken in order to update all of the investigative body entity designations that are set out in those regulations. The first step of this initiative, which involved technical changes, was completed in 2013 with the adoption of the Regulations Amending the Access to Information Regulations (SOR/2013-114) and the Regulations Amending the Privacy Regulations (SOR/2013-115). Thus, investigative body designations that no longer existed were revoked, and those that concerned bodies whose names had changed but whose mandate had remained the same were amended. The current regulatory amendments are the second step of this modernization initiative. Aside from a few technical changes, they consist largely of amendments to Schedule II of the Privacy Regulations for which a more in-depth analysis had to be undertaken.

The technical amendments concern designations that have become outdated following a name change or a reorganization of the government institution to which the investigative body belongs. This is the case, for example, of the Preventive Security and Intelligence Branch, Correctional Service of Canada, which is currently designated as Preventive Security, Security Branch, Correctional Service of Canada.

The amendments for which a more in-depth analysis has been undertaken include two types of amendments. First, they include updating the investigative body designations of the Canada Revenue Agency. Those designations, which have not been updated since their adoption in 1983, did not reflect the fact that the Agency’s investigative work is now carried out within several specialized directorates or divisions instead of within two major directorates. These designations are updated to prevent any confusion concerning the identity of the bodies authorized to receive personal information or to refuse to disclose material. Second, the amendments add three new investigative bodies to the regulatory list relating to paragraph 8(2)(e) of the PA. More specifically, they add the Conservation and Protection Directorate of the Department of Fisheries and Oceans, the Investigations Division of the Office of the Commissioner of Canada Elections, and the Review and Analysis Division of the Charities Directorate of the Canada Revenue Agency. These entities, which are already investigative bodies given the mandate and powers conferred on them by statute, are expressly designated in Schedule II of the Privacy Regulations to ensure that government institutions are authorized to disclose personal information to them, for the purpose of enforcing the law or carrying out a lawful investigation, in accordance with paragraph 8(2)(e) of the PA. With this designation, these investigative bodies will be able to collect the personal information that they are already authorized to collect for law enforcement purposes more easily, because the government institutions that hold the personal information would therefore have the discretion to disclose it in accordance with the Privacy Act.

These amendments relate to three types of investigative body designations. There are different objectives for these three types of investigative body designations and being designated an investigative body for the purposes of a particular legislative provision does not automatically result in a designation under the other provisions.

An investigative body designation under paragraph 8(2)(e) of the PA makes it possible for government institutions to disclose personal information to investigative bodies so designated, for law enforcement purposes, without having to obtain consent from the concerned individuals. This designation does not force government institutions to disclose personal information, but enables them to exercise their discretion to disclose when all of the other requirements of paragraph 8(2)(e) of the PA have been met.

There is another objective regarding the investigative body designation under paragraph 16(1)(a) of the ATIA and paragraph 22(1)(a) of the PA. It allows investigative bodies to invoke the law enforcement and investigations exemption in response to access requests submitted under either act, without having to demonstrate that the disclosure of the information would be detrimental to the enforcement of law or to the investigation process.

Lastly, section 23 of the PA allows an investigative body listed in the regulations to refuse, in response to an access request submitted in accordance with the PA, to disclose any information obtained for the purpose of determining whether to grant security clearances.

Objectives

These amendments will allow federal departments and agencies to be in a better position to collect and exchange information with other federal entities and to protect this information in the context of access to information requests submitted pursuant to either act.

Description

The regulatory amendments modify Schedule II of the Privacy Regulations as follows:

(1) by revoking the name of the following entity that no longer exists:

• Collections Section of the Compliance Division, Department of National Revenue (Customs and Excise)

(2) by replacing the following designations with those that reflect their new names or the names of the entities that replaced them:

• Personnel Security Service, Department of Foreign Affairs and International Trade is replaced by
  • Personnel Security Service, Department of Foreign Affairs, Trade and Development
• Preventive Security, Security Branch, Correctional Service of Canada is replaced by
  • Preventive Security and Intelligence Branch, Correctional Service of Canada
• Audit Directorate, Department of National Revenue (Taxation) and Verifications and Collections Directorate, Department of National Revenue (Taxation) are replaced by
  • Collections Directorate, Collections and Verification Branch, Canada Revenue Agency
  • Criminal Investigations Directorate, International, Large Business and Investigations Branch, Canada Revenue Agency
  • Non-Filer Programs Division, Debt Management Compliance Directorate, Collections and Verification Branch, Canada Revenue Agency
  • Trust Accounts Programs Division, Debt Management Compliance Directorate, Collections and Verification Branch, Canada Revenue Agency
  • International and Large Business Directorate, International, Large Business and Investigations Branch, Canada Revenue Agency
  • Scientific Research and Experimental Development Directorate, Domestic Compliance Programs Branch, Canada Revenue Agency
  • Small and Medium Enterprises Directorate, Domestic Compliance Programs Branch, Canada Revenue Agency

(3) by adding the following three designations:

• Review and Analysis Division, Charities Directorate, Legislative Policy and Regulatory Affairs Branch, Canada Revenue Agency
• Conservation and Protection Directorate, Department of Fisheries and Oceans
• Investigations Division, Office of the Commissioner of Canada Elections

The regulatory amendments modify Schedule III of the Privacy Regulations as follows:

(1) by replacing the following two designations with ones reflecting their new names:

• Special Investigations Division, Department of National Revenue (Taxation) is replaced by
  • Criminal Investigations Directorate, International, Large Business and Investigations Branch, Canada Revenue Agency
• Preventive Security, Security Branch, Correctional Service of Canada is replaced by
  • Preventive Security and Intelligence Branch, Correctional Service of Canada

The regulatory proposals would modify Schedule IV of the Privacy Regulations as follows:

(1) by replacing the following designation with one reflecting its new name:

• Personnel Security Service, Department of Foreign Affairs and International Trade is replaced by
  • Personnel Security Service, Department of Foreign Affairs, Trade and Development

The regulatory amendments also modify Schedule I of the Access to Information Regulations as follows:

(1) by replacing the following designations with ones reflecting their new names or with the new bodies that replaced them:

• Special Investigations Division, Department of National Revenue (Taxation) is replaced by
  • Criminal Investigations Directorate, International, Large Business and Investigations Branch, Canada Revenue Agency
• Preventive Security, Security Branch, Correctional Service of Canada is replaced by
  • Preventive Security and Intelligence Branch, Correctional Service of Canada.

“One-for-One” Rule

The “One-for-One” Rule does not apply to the amendments, as there is no change in administrative costs to business.

Small business lens

The small business lens does not apply, as this proposal does not have any costs for small businesses.

Consultation

A written consultation was undertaken with the two key stakeholders, namely the Office of the Information Commissioner of Canada and the Office of the Privacy Commissioner of Canada. The Office of the Information Commissioner approved the proposed changes to Schedule I of the Access to Information Regulations. The Office of the Privacy Commissioner expressed concerns only with respect to three amendment proposals, specifically, the addition of three new entities to the list of investigative bodies to which personal information may be disclosed in accordance with paragraph 8(2)(e) of the PA. Its concerns involve the interaction between paragraph 8(2)(e) of the PA and the Canadian Charter of Rights and Freedoms, the type of body that can be designated as an investigative body and the evaluation criteria against which designation requests are weighed. Regarding the designation of the Investigations Directorate of the Office of the Commissioner of Canada Elections, it argues, in particular, that that designation was premature, given that the Office of the Commissioner of Canada Elections has only been an entity separate from Elections Canada for one year and that the Canada Elections Act allows Elections Canada to disclose information to it.

The request for designation of the Investigations Directorate of the Office of the Commissioner of Canada Elections was not only based on its need to receive personal information from Elections Canada. As the three new entities meet the relevant designation criteria and the terms of the paragraph 8(2)(e) of the PA, a letter aiming to address the Office of the Privacy Commissioner’s concerns was sent. Also, a review of the designation questionnaire was carried out and the Office of the Privacy Commissioner was consulted on this point.

The regulatory proposals were published in the Canada Gazette, Part I, on May 13, 2017, and no comments were received.

The regulatory amendments are the same as those pre-published in the Canada Gazette, Part I with two exceptions. First, the proposal to revoke the designation of the Security Bureau, Passport Canada, Department of Foreign Affairs and International Trade on Schedule II of the Privacy Regulations has been withdrawn. It was determined with Immigration, Refugees and Citizenship Canada that this designation should be maintained while the impact on its recent organizational changes is assessed (the passport program is currently under that department). Following this assessment, further amendments may be proposed to update this designation. Second, the proposals concerning the designation of the investigative body of Correctional Service Canada, in Schedule I of the Access to Information Regulations and schedules II and III of the Privacy Regulations, have been modified to reflect a recent change strictly limited to the institution’s reporting structure. Therefore, the Preventive Security and Intelligence Branch is designated instead of the Preventive Security and Intelligence Division.

Rationale

This update to the investigative body designations that became outdated following a name change or a reorganization of the federal institution to which the investigative body belongs prevents any confusion concerning the identity of the authorized bodies to which personal information can be disclosed or to refuse to disclose material.

Regarding the new investigative body designations in Schedule II of the Privacy Regulations, they allow the three entities that are already investigative bodies, given the mandate and powers conferred on them by statute, to collect personal information that they are already authorized to collect for law enforcement purposes more easily because the government institutions that hold the information could exercise their discretion to disclose in accordance with the Privacy Act.

Implementation, enforcement and service standards

The bodies in question already carry out investigations and law enforcement activities. The necessary staff and infrastructure are already in place and new resources are not required.

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