Notice to the reader: This document is no longer in effect. It has been archived online and is kept purely for historical purposes.
Ministers 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 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 to Library and Archives Canada in accordance with schedules approved by the Librarian and Archivist
of Canada. Deputy ministers should advise ministers and their staff on these matters. The Treasury Board Policy on the Management of Government Information can be
accessed at 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://amicus.collectionscanada.ca/aaweb-bin/aamain/itemdisp?sessionKey=999999999_142&l=0&d=2&v=0&lvl=1&itm=11328798. Library and Archives
Canada Multi-Institutional Disposition Authorities and Retention Guidelines may be accessed at
http://www.collectionscanada.ca/information-management/002/007002-3011-e.html. 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 Privy Council for Canada contained in records left in
government custody by Cabinet ministers 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 their
exempt staff should seek guidance on their use from the appropriate departmental officials. Ministers and their staff should consider electronic recorded information as
identical to physical recorded information such as prints, photographs, documents, etc.
In designing information systems, ministers 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 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 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, cancel all their authorities (e.g. access authorities, keys, and locks), and 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 gives the public the right of access to information in records controlled by government institutions. A minister's office is
considered separate and distinct from the government institution; thus, ministers and their exempt staff are not considered 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 Act 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 their exempt staff), ministers' 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 that is held by a government
institution. While the offices of ministers are not considered to be part of a "government institution" for the purposes of the Privacy Act, the following
principles should nevertheless govern those offices:
- personal information should be used or disclosed only for a purpose consistent with the purpose for which it was obtained, unless the individual concerned consents
to the new use or disclosure, or the disclosure is required by law;
- access to personal information should be strictly limited to individuals who have a legitimate need to know;
- appropriate security safeguards shall be put in place and maintained to protect personal information from unauthorized disclosure; and
- personal information that is no longer needed should be disposed of unless its retention is required by law.
Records relating to ministers 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
All travel and hospitality expenses for ministers, parliamentary secretaries, and exempt staff are to be published on institutional Web sites to promote transparency
and to facilitate public access.
Ministers' offices are required to disclose hospitality and travel expenses publicly, through departmental Web sites. Reports cover a 90‑day period, and ministers
and their offices must report within 30 days of the end of the period being reported. This policy also applies to parliamentary secretaries.
Other records about expense claims of ministers and their 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 jurisprudence that supports this position,
the Secretariat issued Implementation Report No. 78, dated March 30, 2001 and Information Notice No. 2002-2004, dated March 18, 2002 (see 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 wrote concerning this matter to his counterparts at all institutions subject
to the Access to Information Act. All three documents outline the government's position on records relating to ministers and their exempt staff and inform
institutions that records relating to expense claims of ministers and their exempt staff may contain personal information, as well as that other information might require
protection under another exemption provision, and recommend that institutions take reasonable steps to seek consent for the disclosure of such records directly from the
individual concerned.
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
information from the government 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 the Federal Court of Appeal and, ultimately, the Supreme Court of Canada.
Within a department or an agency subject to the legislation, a designated departmental co‑ordinator administers one or both acts. This officer receives requests
from the public, advises the minister and departmental officials about what should or should not be released, and ensures that a response is prepared. The co-ordinator
also ensures 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 recognize the rights of access of individuals with sensory disabilities.
The following suggestions are designed to help ministers meet the requirements of this legislation:
- assign a single senior contact within the minister's office who is knowledgeable about the acts and their impact on departmental operations, and who can deal
directly with the departmental co-ordinator regarding 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 are generally excluded for 20 years, while discussion papers are excluded for up to four years. When
an access request involves Cabinet confidences, ministers 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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