Discussion paper for the development of a regulation concerning the format of records provided in response to a request under the Access to Information Act

Introduction

Consistent with its commitment to introduce reforms to improve the accountability of the federal public sector and the federal access regime, the Government introduced the Federal Accountability Act, which became law on December 12, 2006, and includes a number of reforms to the Access to Information Act (ATIA). As stated on several occasions, the Government is committed to consulting with citizens on ongoing policy questions, and as such encourages Canadians to provide their views on developments in the area of access to information.

This paper identifies key issues for further analysis and discussion concerning a regulation relating to the format of records provided in response to a request made under the Access to Information Act. The Government is particularly interested in the views of Canadians who have previously used the Access to Information Act in order to obtain records, but welcomes input from anyone with an interest in the subject.

Provisions in the Federal Accountability Act

The Federal Accountability Act includes a number of amendments to the Access to Information Act. As one of those amendments, section 143 of the Federal Accountability Act adds subsection 4(2.1) to the Access to Information Act, which reads as follows:

The head of a government institution shall, without regard to the identity of a person making a request for access to a record under the control of the institution, make every reasonable effort to assist the person in connection with the request, respond to the request accurately and completely and, subject to the regulations, provide timely access to the record in the format requested.

Subsection 163(1) of the Federal Accountability Act amends subsection 77(1) of the Access to Information Act to include:

77(1) The Governor in Council may make regulations

(a) prescribing limitations in respect of the format in which records are to be provided under subsection 4(2.1);

Considerations

In many ways this legislative amendment codifies existing practice. At present, institutions usually consider the wishes of requesters when determining what form of copies to provide (normally paper or electronic), and wherever possible, institutions act in accordance with the preferences of the requesters.

The objective of this regulation is to establish reasonable expectations for both the requester and the government institutions in requesting and providing records in a specific format.

As stated by the former Information Commissioner, John Reid, in 2005 in his "Access to Information Reform – Notes"[i]:

Currently, the Act and regulations give little guidance on the matter of the format in which information is to be released. While paper copy remains the most commonly requested format, other formats should be available whenever they exist or could be created with a reasonable amount of effort and at reasonable cost.

Proposed Guiding Principles

• The first step for the government institution in providing access is to determine whether access will be given through the provision of copies or through viewing of the original records, in accordance with section 8 of the regulations.
• If it is determined that access will be provided through the provision of copies, then the requester may indicate a choice of format for the copies.
• If the format chosen by the requester already exists within the institution (and can be copied), then copies will be provided in that format.
• If the format chosen by the requester does not exist within the institution (or cannot be copied), then the institution has to determine whether it would be reasonable to convert a copy of the record into that format. If it is determined to be reasonable, then the copy will be converted and provided to the requester.
• If it is determined that it would not be reasonable to convert a copy of the record into the format chosen by the requester, another option would be worked out between the requester and the institution.

Issues for Consideration

1. In your view, what factors should be considered in determining whether conversion to another format is reasonable?
2. In your view, what should be the next step after determination that conversion to the preferred format is not reasonable?  Should the requester be asked to identify their second choice of format, and keep going until a format is found to which the conversion is determined to be reasonable?  Or should the institution provide the requester with a list of the possible existing formats or those to which they would be willing to convert the record? 

You are invited to provide your views on this matter in writing to Jordan Lowry, by e-mail to Lowry.Jordan@tbs-sct.gc.ca, by fax to 613-957-8020 or by regular mail to Jordan Lowry, Information and Privacy Security Policy Division, Treasury Board Secretariat, 14^th floor, 219 Laurier Ave. West, Ottawa, Ontario K1A 0R5, by April 30, 2007.