Regulations Amending the Access to Information Regulations: SOR/2023-156

Canada Gazette, Part II, Volume 157, Number 14

Registration
SOR/2023-156 June 23, 2023

ACCESS TO INFORMATION ACT

P.C. 2023-661 June 23, 2023

Her Excellency the Governor General in Council, on the recommendation of the President of the Treasury Board, makes the annexed Regulations Amending the Access to Information Regulations under section 71footnote a of the Access to Information Act footnote b.

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(2) Subsection 8(4) of the Regulations is repealed.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

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 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 Canada (Information Commissioner) v. Canada (Attorney General), 2015 FC 405. In line with the Information Commissioner’s interpretation, the Court ruled that electronic records are not considered non-computerized records for the purpose of the search and preparation fees authorized by subsection 11(2) of the ATIA and subsection 7(2) of the ATIR. 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 their provisions referring to any fees, apart from the application, ensures 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 provides greater transparency on the current operational practices. It also better aligns the ATIR with the Privacy Regulations, the ATI Manual, and the Directive on Access to Information Requests.

Description

The Regulations Amending the Access to Information Regulations (the Regulations):

Finally, minor amendments are 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 amendments related to fees, as they are consistent with the current practice of not charging any other fees aside from 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, pursuant to section 4.1.4.1 of the Directive on Access to Information Requests. Institutions also confirm the identity of requesters when access to records involving their personal information is sought, pursuant to section 4.1.4.2 of the aforementioned directive. Given the alignment between the current practices, informed by mandatory policy requirements, and the amendments related to this element of the proposal, no consultations were deemed to be necessary.

The proposed amendments were prepublished in the Canada Gazette, Part I, on December 24, 2022, with a 30-day consultation period. No comments were formally received during that period.

That said, some media outlets reported on the proposed Regulations, raising concerns of potential delays that could result from the implementation of the identity verification requirements by access to information practitioners. The Treasury Board of Canada Secretariat (TBS) noted the reporting but since the Regulations align with current practices, they are not intended, nor expected, to impact current processing times. They simply incorporate existing policy requirements, as prescribed under the above-mentioned Directive on Access to Information Requests, into the regulatory framework.

Modern treaty obligations and Indigenous engagement and consultation

The Regulations are not expected to impact treaties with the Indigenous peoples of Canada. TBS 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 fee 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 Regulations therefore align the ATIR with their enabling authority.

With regard to the requirement to request information, including adequate identification, it was determined that enshrining current practices and procedures in 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 to which institutions are subject when responding to such a request. The use of a regulatory instrument therefore allows 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 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, the amendments do not have cost implications. Additionally, as these 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 generates implementation costs.

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

Small business lens

Analysis under the small business lens concluded that the Regulations do 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 Regulations are not related to a formal regulatory cooperation plan. They are, in part, to align the ATIR with its enabling authority, the Directive on Access to Information Request, as well as the Privacy Regulations.

An assessment was conducted on how the Regulations align with like-minded countries, such as the United Kingdom (U.K.), the United States of America (USA), Australia, New Zealand, and France. Access to information laws from Ontario, Quebec, and British Columbia (B.C.) 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 B.C.), fees are calculated only based on the processing time and/or resources required to deliver the record. For example, the U.K. 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 U.K. 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 amendment that allows additional information to be sought when the request is insufficient to ensure the right of access mostly aligns with New Zealand. New Zealand’s access to information regime allows institutions to make “reasonable enquiries” to ensure requesters’ right to access. Misalignment of these amendments with the remaining assessed countries (U.K., USA, Australia, and France) 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 B.C.) 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 these Regulations.

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 Regulations come into force the day on which they are registered. TBS will issue and publish accompanying guidance, including updates to the ATI Manual, to help access to information practitioners better understand the amendments. Notably, the guidance will reiterate that the requirement to request information is not intended to result in undue barriers to the right of access, nor unnecessarily delay the proper processing of an ATI request.

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