Implementation Report

A number of government institutions have raised questions of interpretation and sought clarification in connection with a series of access to information requests for records relating to Ministers' staff and the operations of ministerial offices. As similar requests have been received by several institutions, the following guidance is provided to assist institutions in addressing questions of policy. While responses may vary from institution to institution depending on record holdings and other administrative practices, certain aspects of the requests and their processing may remain standard.

The Access to Information Act and the Privacy Act do not deal specifically with information about Ministerial Exempt Staff. The Acts are clear with respect to government employees, contractors and discretionary benefits which fall within the exceptions to the definition of personal information. A review of the relevant case law as it relates to those exceptions follows.

In 1997, the Supreme Court of Canada held in Dagg v. Canada (Minister of Finance [1997] 2 S.C.R. 403, that the definition of 'personal information' was expansive and should be interpreted with the broadest possible application. The exceptions to the definition of personal information protected under the Privacy Act are found in subsections 3(j), (k), (l) and (m). Of particular interest to the subject at hand are subsection 3(j) and 3(k) of the Privacy Act, a discussion of which follows.

In responding to these access to information requests, government institutions should ensure that all Ministerial exempt staff positions have been accounted for, including those that have been filled by individuals on contract. With respect to subsection 3(j), Ministers and their exempt staff are not deemed to be 'officers or employees' of government institutions and, as such, are not covered by subsection 3(j). Moreover, they do not fall, for the most part, within the scope of the provisions of subsection 3(k), as they are not normally individuals performing services under contract. However, if an exempt staff member is employed under contract, the specific provisions of the contract would need to be carefully reviewed. The provisions of subsection 3(k) would only apply to individuals who are or were performing services under contract for a government institution. If in the final analysis, the information is deemed to fall outside the scope of the application of subsections 3(j) and 3(k) of the Privacy Act, the exceptions to the definition of personal information, consideration must then be given to subsection 19(2) of the Access to Information Act.

In Ruby v. Canada (Royal Canadian Mounted Police) [2000] F.C. 589, the Federal Court of Appeal concluded that before claiming a mandatory exemption that gives the discretionary power to disclose information with consent, the head of an institution must make a "reasonable effort" to seek such a consent. While the Ruby decision dealt, amongst other things, with the interpretation of section 19 of the Privacy Act [personal information obtained in confidence], section 19 of the Access to Information Act is worded and structured in a fashion sufficiently similar for the decision to apply to the latter provision. Note that failure to seek consent could mean that the Court could order the head to do so and to exercise his or her discretion in accordance with the Act's principle if consent is provided.

Although not squarely on point, the Federal Court of Appeal certainly supports the idea it would be appropriate in reasonable circumstances to seek consent pursuant to paragraph 19(2)(a) of the Access to Information Act. Government institutions should also bear in mind paragraphs 19(2)(b) and (c) of the Act that respectively authorize the disclosure of personal information if the information is publicly available or if the disclosure is in accordance with section 8 of the Privacy Act. With respect to disclosures pursuant to section 8 of the Privacy Act, government institutions are reminded to review Chapter 2-4, TBS Guidelines – Privacy and Data Protection.

You should also be aware of TBS Guidelines for Minister's Offices (January 2001). Section 3.2.5 of the Guidelines state that: "Exempt Staff's names and the positions they hold are not considered as confidential and could be released under any Access to Information request." Therefore, institutions are encouraged to review their holdings, take into consideration their particular circumstances and proceed with the course of action that would best meet their particular situation in order to achieve maximum disclosure, keeping in mind the requirements of the legislation and the Court decisions outlined above.

ATIP officials should be in a position to seek consent from exempt staff within the original 30-day receipt period. However, it may be possible, under certain circumstances, to invoke paragraph 9(1)(b) of the ATIA for the purpose of seeking such consent. One important consideration is that it be for a "reasonable period of time" as stated in subs. 9(1). What may be considered "reasonable" in this context "will depend on the circumstances of the request and the judgement of the head of the institution or his/her delegate" (see extract from Implementation Report No 67, September 17, 1999).

2. Creation of Records

The Access to Information Act provides a right of access to information in records under the control of government institutions. This is interpreted as access to existing records that answer wholly, or in part, to the information requested. While there is no legal obligation to create a record to comply with a particular request, subject to subsection 4(3) of the Access to Information Act, there is also no legal impediment to doing so. Thus, from time to time, institutions may find it preferable to create a particular record to satisfy a request. However, as stated in the TBS Guidelines (section 10, Chapter 2-4 of the Treasury Board Manual – Access to Information) due regard should be given to the precedent set by providing this service. Further, it is important to note that the Access to Information Act provides access to machine-readable records, on condition that the production of the record does not unreasonably interfere with the operations of the institution (see section 3 of the ATIA regulations).

3. Clarifying Requests

Section 6 of the Access to Information Act specifies that a request for access to a record under the Act shall be made in writing, … and shall provide sufficient detail to enable an experienced employee of the institution with a reasonable effort to identify the record [i.e, that is requested]. Institutions should contact applicants in cases where clarification is required and are encouraged to provide assistance to the applicant to help the requester understand any of the difficulties that may be encountered in processing the request. It is important that the institution confirm in writing, its understanding of the revised request in all cases where a request is clarified or altered.

Government institutions are responsible for obtaining clarification of requests from applicants. However, to assist institutions, the Information and Security Policy Division at TBS has conducted inquiries for a possible interpretation of "sole source contracts issued by institutions under Ministerial exemptions". Treasury Board Procurement Policy officials have advised that the requester may be referring to the "Exceptional Contracting Limits" detailed in Part II of Appendix C of the Contracting Policy. It should be noted that these "Exceptional Contracting Limits" only apply to those institutions listed in Part II of Appendix C, and are limited to the circumstances specified in the contracting policy. Responding institutions should refer to the contracting policy found at http://www.tbs-sct.gc.ca/pubs_pol/dcgpubs/Contracting/contractingpol_c_e.html to determine whether the policy applies to their institution.

4. Under the Control

Some government institutions have raised the issue of whether records related to Ministerial Exempt Staff are records under the control of the institution for the purposes of the Access to Information Act and the Privacy Act. Section 6, Chapter 2-4 of the TBS Guidelines – Access to Information, provides a definition of "under the control".

For the purposes of the Access to Information Act, records held exclusively in a Minister's Office are not deemed to be under the control of the institution. Such records, however, should be properly segregated from institutional information holdings.

The fact that ministerial staff might be the subject of an access request does not necessarily mean that the records that are relevant to the access request are ministerial records. For example, travel claims for ministerial staff would normally be departmental records. If so, then these records are subject to the Access to Information Act. ATIP officials should consult the appropriate officials within their institution to determine if the records they are seeking are under the control of their institution or whether they are ministerial records. They may also wish to review Implementation Report No. 74, of September, 2000, and the relevant TBS Guidelines which deal more generally with ministerial records.

In closing, government institutions are reminded that, fee or extension notices must be communicated to the applicant within the original 30-day receipt period. Extensions and fees should be geared to the amount of work required in processing the request.

Should you require further clarification or policy interpretation, please contact your Treasury Board Secretariat Portfolio Officer. Matters of legal interpretation should be directed to your Departmental Legal Services Units.

Anne Brennan

Director
Information and Security Policy Division
Government Operations Sector