Notice to the reader: This document is no longer in effect. It has been archived online and is kept purely for historical purposes.
Ministers and Ministers of State will usually have papers in their offices
that fall into four general categories: Cabinet documents, institutional
records, ministerial records, (as defined in section 2 of the National
Archives Act) and personal and political records. Each of these categories
has its own set of considerations under the Access to Information Act,
the Privacy Act and the Canada Evidence Act.
Ministers and Ministers of State should maintain separate information systems
for Cabinet documents, institutional records, ministerial records, and personal
and political records. Ministerial records must be transferred from the office
of the Minister or Minister of State to the Library and Archives of Canada in
accordance with schedules approved by the Librarian and Archivist of Canada.
Deputy Ministers should advise Ministers, Ministers of State and their staff on
these matters. The Treasury Board Policy on Management of Government Information
can be accessed at the following web-site: http://www.tbs-sct.gc.ca/pubs_pol/ciopubs/TB_GIH/mgih-grdg_e.asp.
Advice can also be obtained from the Government Records Branch at Library and
Archives Canada, which publishes Guidelines for Managing Recorded Information in
a Minister's office available at: http://www.collectionscanada.ca/obj/007/f10/007-1016-e.doc.
Library and Archives Canada Multi-Institutional Disposition Authorities and
Retention Guidelines may be accessed at the following web-site: http://www.collectionscanada.ca/.
Special precautions must be taken to guarantee the security of Cabinet
documents, in accordance with procedures established by the Privy Council Office
on the Prime Minister's behalf. Most importantly, when a Cabinet item has
been dealt with, the associated Cabinet documents must be returned to the Privy
Council Office. Successive Prime Ministers have also agreed that the Clerk of
the Privy Council, with Deputy Ministers, will ensure that Confidences of the
Queen's PrivyCouncil for Canada contained in records left in government custody
by Cabinet, Ministers and Ministers of State will be protected from access by
successive governments.
Guidelines for the use of new technologies, such as e-mail, the internet and
local area networks, are evolving within the Public Service. Ministers and
Ministers of State, and their exempt staff, should seek guidance on their use
from the appropriate departmental officials. Ministers, Ministers of State and
their staff should consider electronic recorded information as identical to
physical (e.g. print, photographs, documents etc.) recorded information.
In designing information systems, Ministers and Ministers of State must
provide for the proper processing, handling and storage of classified and other
sensitive information. Advice and assistance on meeting government-wide
standards for physical, communications and electronic data processing security
is available from the Departmental Security Officer.
Ministers, Ministers of State and their exempt staff have a responsibility to
ensure that all Cabinet documents and official records are left in the custody
of appropriate authorities. On leaving office, Ministers and Ministers of State
must use the secure storage facilities and archival services offered by Library
and Archives Canada for their personal and political papers. They should also
take steps to remind individuals leaving their jobs of their continuing
responsibilities to maintain the confidentiality of the sensitive information to
which they have had access, to cancel all their authorities (e.g. access
authorities, keys and locks) and to return all sensitive information to the
appropriate authority. The designated security official in the Minister's office
should terminate employment in person, and the process should be formally
documented.
The Access to Information Act (ATIA) gives the public the right of
access to information in records controlled by government institutions. A
Minister's or Minister's of State office is considered separate and distinct
from the government institution thus, Ministers, Ministers of State, and exempt
staff are not considered to be employees or officers of the institution. This
interpretation is being examined in light of a recent decision by the Federal
Court of Canada. The impact of this judgment is still being assessed and the
question of whether or not the ATIA applies to ministerial records has yet to be
resolved. Prior to making decisions on the disclosure of any records (including
expense claims of Ministers and exempt staff), Minister's and Minister's of
State offices should consult with their institution's legal services unit.
The Access to Information Act is based on two principles:
- government information should be available to the public; and
- necessary exceptions should be limited and specified by law.
The Access to Information Act complements the Privacy Act. The
Privacy Act governs the use, disclosure, collection, retention and disposal
of personal information and expands previous statutory protection of personal
information held by a government institution. The Privacy Act gives
individuals the right of access to information about themselves which is held by
the federal government.
Records relating to Ministers, Ministers of State and exempt staff that are
located in an institution may contain personal information that must be
protected under the Access to Information Act and the Privacy Act.
Such records should not be disclosed unless in accordance with these Acts.
Expense Claim Records about Ministers and Exempt Staff
On December 12, 2003, the government released Governing Responsibly:
A Guide for Ministers and Ministers of State and Guidelines for
Ministers' Offices-Administrative Practices, which stipulate that all
travel and hospitality expenses for Ministers, Ministers of State, Parliamentary
Secretaries, and their exempt staff will be provided on institutional web sites
(refer to section VI.5 of Governing Responsibly: A Guide for Ministers and
Ministers of State at http://www.pco-bcp.gc.ca/default.asp?Language=E&Page=Publications&doc=guidemin/guidemin_e.htm
). The document provides direction to institutions to help ensure that expense
information is collected and presented consistently across government and in a
manner that promotes transparency and facilitates public access.
Beginning on March 31, 2004, Ministers' and Ministers' of State offices are
required to disclose publicly, through departmental web-sites, hospitality and
travel expenses. Reports will cover a 90-day period, and Ministers, Ministers of
State and their offices must report within 30 days of the end of the period
being reported. This policy will also apply to Parliamentary Secretaries. A
guidance document for posting the information on an institution's web-site can
be found at: http://publiservice.tbs-sct.gc.ca/pd-cp/dthe-dfva/guidance-orientation_e.asp.
Other records about expense claims of Ministers, Ministers of State, and
exempt staff may contain personal information that must be protected under the Access
to Information Act, unless consent to disclose is received from the
individual(s). In view of court precedence that support this position, TBS
issued an Implementation Report No. 78 dated March 30, 2001 (http://www.tbs-sct.gc.ca/atip-aiprp/impl-rep/impl-rep2001/78-imp-mise_e.asp)
and an Information Notice No. 2002-2004 dated March 18, 2002 (http://www.tbs-sct.gc.ca/atip-aiprp/in-ai/in-ai2002/2002-04-in-ai_e.asp),
to provide guidance concerning this matter. As well, in March 2002, the
Secretary of the Treasury Board of Canada Secretariat wrote concerning this
matter to his counterparts at all institutions subject to the Access to
Information Act (Appendix H). All three documents outline the government's
position on records relating to Ministers, Ministers of State, and exempt staff,
inform institutions that records relating to expense claims of Ministers,
Ministers of State, and their exempt staff may contain personal information and
that other information might require protection under another exemption
provision, and recommend that institutions should take reasonable steps to seek
consent for the disclosure of such records directly from the individual about
whom they relate.
Canada Evidence Act
The amendments to the Canada Evidence Act, known as Specified Public
Interest rules, apply to the disclosure of records in instances where a court of
law seeks from the government information that is relevant to a case.
Decisions on disclosing government information under the Access to
Information Act and the Privacy Act can be reviewed independently
of the government. Depending upon the applicable legislation, either the
Information Commissioner or the Privacy Commissioner conducts the first level of
review. The Federal Court, Trial Division, conducts the next level of review and
cases can be brought before Federal Court of Appeal, and ultimately, the Supreme
Court.
Within a department or an agency subject to the legislation, a designated
departmental co-ordinator administers one of, or both Acts. This officer
receives requests from the public, advises the Minister or Minister of State and
departmental officials on what should and should not be released, and ensures
that a response is prepared. The co-ordinator must also ensure that personal
information is protected, as required by the Privacy Act. In addition,
departmental legal services provide legal expertise on access and privacy
matters.
Both Acts specifically recognise the rights of access of individuals
with sensory disabilities.
The following suggestions are designed to help Ministers and Ministers of
State meet the requirements of this legislation:
- assign a single senior contact point within the Minister's or, Minister's
of State office who is knowledgeable about the Acts and their impact on
departmental operations, and who can deal directly with the departmental
co-ordinator on ministerial records;
- keep institutional records segregated from personal and political records,
and put in place the conventions set out in this document, especially the
accounting procedures;
- review delegation orders under the Acts to ensure that the specific
powers, duties and functions are set out and delegated to the appropriate
level;
- ensure that appropriate reporting on the nature and progress of access
requests is in place in the department ; and
- support sound departmental information management practices.
The Access to Information Act and the Privacy Act do not
apply to records that fall under the category of Confidences of the Queen's
Privy Council for Canada. Confidences of the Queen's Privy Council for Canada in
general are excluded for 20 years, while discussion papers are excluded for
up to 4 years. When an access request involves Cabinet confidences,
Ministers and Ministers of State must consult the Privy Council Office before
responding. The Deputy Minister or Access to Information Co-ordinator in each
department can arrange this consultation.
The Access to Information Act and the Privacy Act do not
apply to records that fall under the category of Confidences of the Queen's
Privy Council for Canada. Confidences of the Queen's Privy Council for Canada in
general are excluded for 20 years, while discussion papers are excluded for
up to 4 years. When an access request involves Cabinet confidences,
Ministers and Ministers of State must consult the Privy Council Office before
responding. The Deputy Minister or Access to Information Co-ordinator in each
department can arrange this consultation.
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