In Chapter 1 of her report, the Commissioner stressed that, although the Act applies to some 250 institutions, not all entities “that spend taxpayers’ money or perform public functions” are subject to it.[16]

2.1 Criteria for adding institutions

The Commissioner stated that “[t]he use of criteria as a way to determine which entities should be subject to the Act is a rational approach to coverage, as it promotes predictability with respect to which entities are subject to the Act.”[17] Moreover, it guarantees that institutions performing similar functions are also subject to the Act.[18] The Commissioner made the following recommendation:

Recommendation 1.1

The Information Commissioner recommends including in the Act criteria for determining which institutions would be subject to the Act. The criteria should include all of the following:

• institutions publicly funded in whole or in part by the Government of Canada (including those with the ability to raise funds through public borrowing) (this would include traditional departments but also other organizations such as publicly funded research institutions);
• institutions publicly controlled in whole or in part by the Government of Canada, including those for which the government appoints a majority of the members of the governing body (such as Crown corporations and their subsidiaries);
• institutions that perform a public function, including those in the areas of health and safety, the environment, and economic security (such as NAV CANADA, which is Canada’s civil air navigation service provider);
• institutions established by statute (such as airport authorities); and
• all institutions covered by the Financial Administration Act.[19]

The Commissioner also provided further details to the Committee regarding her Recommendation 1.1, specifically regarding the funding criteria for institutions and institutions that perform a public function.[20]

2.1.1 Institutions that are publicly funded in part by the Government of Canada

First of all, with respect to institutions that are publicly funded in part by the Government of Canada, the Commissioner set out three options for determining whether an institution would be subject to the Act.

Option A: the institution receives a loan, grant or contribution of $5 million or more: The threshold of $5 million or more was based in particular on the fact that, “[i]n the Main Estimates, expenditures, grants and contributions equal to or in excess of five million dollars are voted on as separate line items.”[21]

Option B: 50% or more of an institution’s funding comes directly or indirectly from the federal government: this is the approach used in Denmark and Serbia.

Option C: a combination of a percentage of funding and an absolute threshold:[22] Under this option, an institution would be subject to the Act if:

• Either the entity receives a certain percentage of its funding from the federal government; or
• An absolute threshold, higher than five million dollars, of public funding is met.[23]

According to the Commissioner, this option “would be suitable if the committee believes that five million dollars as proposed under Option A is too low a threshold”[24] and “[t]his option would also address one of the drawbacks of Option B, which is that there are some circumstances where the 50% threshold of funding would not be met, even though substantial sums of public funding are provided to an entity by the federal government.”[25]

With respect to the application of the Act to Aboriginal groups, the Commissioner argued that specific consultations should be held with these groups pursuant to section 35 of the Canadian Charter of Rights and Freedoms.[26]

2.1.2 Institutions that perform a public function

According to the Commissioner, the criterion applicable for institutions that perform a public function is intended “to ensure that the way in which an entity is constituted or funded does not preclude it from coverage under the Act, especially when its function is, for all intents and purposes, public in nature”[27] and “ensures that entities that act for the benefit of the public interest are subject to appropriate transparency and accountability mechanisms,”[28] even if certain services are privatized.

To determine whether an institution performs a public function, the Commissioner recommends “looking at the nature of the operations undertaken by the entity,” while bearing in mind a number of factors, including the following:

• Is the entity performing a public function on behalf of the federal government within one of its areas of responsibility, such as health and safety, the environment and economic security?
• Does the entity have the authority to regulate or set standards within a sphere of federal responsibility?
• Is the entity tasked with executing a public policy on behalf of the federal government?[29]

2.1.3 Views of witnesses who appeared before the Committee

A number of the witnesses who appeared before the Committee supported the Commissioner’s Recommendation 1.1. First, Mr. Marleau, former information commissioner and former clerk of the House of Commons, and Mr. Wudrick stated that, when taxpayers’ money is spent, the information should be accessible, in the interest of government transparency.[30]

Mr. Conacher added that the Act should automatically apply to all institutions receiving public funding or that serve a public function, and that they should not have to be added in a schedule. Mr. Mendel also expressed concern about “the limited nature of the schedule 1 list of public bodies that is not regularly updated as the nature of those public bodies change.”[31] Finally, Vincent Gogolek of the B.C. Freedom of Information and Privacy Association also noted that, in many countries, organizations subject to access to information laws are not listed in schedules and that those laws instead stipulate the criteria for determining the types of organizations subject to them.[32]

Mr. Mendel also added with respect to access to information legislation that “a lot of countries cover publicly funded bodies and bodies that perform a public function” and that this does not pose a problem for bodies in those countries.[33] He stated nonetheless that the Act should only apply to those functions “that were performed under that public funding.”[34] Similarly, Mr. Wudrick stated that organizations that receive a substantial contribution “should be treated more and more like a regular government body”[35] as regards access to information.

Clyde Wells, who was a member of the Independent Statutory Review Committee in Newfoundland and Labrador, noted that when institutions are funded in part by the government, the government “would require that organization to report to government exactly what it did with the money and government would report to the public.” [36] He said that citizens should be able to request such information from the government.[37]

2.1.4 The Committee’s recommendation

The Committee agrees that the Act should include criteria for determining whether institutions should be subject to it. The Committee therefore recommends:

RECOMMENDATION 1

That in the first phase of the reform of the Access to Information Act, the Act be amended in order to identify the institutions subject to the Act according to criteria, which shall include the following:

• institutions that are publicly controlled in whole or in part by the Government of Canada, including those for which the government appoints a majority of the members of the governing body (such as Crown corporations and their subsidiaries);
• institutions that perform a public function, including those that meet one of the following criteria:
  1. The institution performs a public function for the federal government in one of its areas of jurisdiction, such as health and safety, the environment and economic security;
  2. The institution has the power to establish regulations or standards in an area of federal jurisdiction;
  3. The institution is responsible for carrying out a public policy on behalf of the federal government;
• institutions established by statute (such as airport authorities);
• all institutions covered by the Financial Administration Act.

However, the Committee did not hear sufficient evidence to be able to form an opinion regarding the criteria that should apply to publicly funded institutions. It therefore recommends:

RECOMMENDATION 2

That in the second phase of the reform of the Access to Information Act, further consideration be given as to how the Act should apply to institutions that are publicly funded by the Government of Canada.

2.2 Ministers’ offices

Appearing before the Committee, the Commissioner stated that in 2011 “the Supreme Court of Canada determined that ministers' offices are not institutions covered by the Act.”[38] The Commissioner pointed out, however, that decisions by ministers can have significant impacts on Canadians and that they should be accountable to the public.[39] In her report, the Commissioner made the following recommendations:

Recommendation 1.2

The Information Commissioner recommends extending coverage of the Act to the Prime Minister’s Office, offices of ministers and ministers of State, and parliamentary secretaries.[40]

Recommendation 1.3

The Information Commissioner recommends creating an exemption in the Act for information related to the parliamentary functions of ministers and ministers of State, and parliamentary secretaries as members of Parliament.[41]

Before the Committee, the Commissioner spoke about the scope of Recommendations 1.2 and 1.3 and made several links to her Recommendations 4.26 and 4.27, which pertain to the mandatory exemption of Cabinet confidences from the Act when disclosure would reveal the substance of Cabinet deliberations. This topic is covered in Chapter 5 of this report.

Finally, with respect to Recommendation 1.3, the Commissioner noted in her report that the Board of Internal Economy’s Members’ By-Laws define parliamentary functions as follows:

“parliamentary functions” in relation to a Member, means the duties and activities that relate to the position of Member, wherever performed and whether or not performed in a partisan manner, namely, participation in activities relating to the proceedings and work of the House of Commons and activities undertaken in representing his or her constituency or constituents.[42]

Mr. Marleau, Mr. Holman, Mr. Gogolek, Mr. Aylwin and Mr. Rubin maintained that the Act should apply to ministers’ offices, as the Commissioner recommended.[43]

The Committee also agrees that the Act should apply to the Prime Minister’s Office, to offices of ministers and ministers of State, and parliamentary secretaries. The Committee therefore recommends:

RECOMMENDATION 3

That in the first phase of the reform of the Access to Information Act, the Act be extended to include the Prime Minister’s Office, offices of ministers and ministers of State, and parliamentary secretaries, except in regards to their parliamentary functions.

2.3 Parliament

In her report and appearing before the Committee, the Commissioner pointed out that Parliament is not subject to the Act even though the combined budget of the House of Commons, the Senate and the Library of Parliament was over $500 million, according to the 2014—2015 Main Estimates.[44] The Commissioner therefore made the following recommendations:

Recommendation 1.4

The Information Commissioner recommends extending coverage of the Act to the bodies that support Parliament, such as the Board of Internal Economy, the Library of Parliament, the Conflict of Interest and Ethics Commissioner and the Senate Ethics Commissioner.[45]

Recommendation 1.5

The Information Commissioner recommends creating a provision in the Act to protect against an infringement of parliamentary privilege.[46]

Appearing before the Committee, the Commissioner stressed the importance of protecting parliamentary privilege and preventing any infringement of it. She stated that the Act does not currently provide any such protection.[47] The Commissioner stated that consultations with parliamentary officials who are specialists in their field would be necessary in order to develop a provision covering Parliament.[48]

In her report, the Commissioner states that “[p]arliamentary privilege is the collective and individual rights accorded to parliamentarians to ensure they are able to carry out their functions and perform their duties without obstruction. The privilege is protected by the Constitution and extends to all matters relating to parliamentary proceedings.”[49] The Commissioner’s report also notes that the access to information laws of Newfoundland and Labrador, the United Kingdom and India include protection of parliamentary privilege.[50]

With respect to the Board of Internal Economy of the House of Commons, the Commissioner noted further that the Parliament of Canada Act includes some protection and that those provisions should be addressed when a new provision for the Act is developed.[51] During the Committee’s study, the Commissioner did not comment further on how the Act should apply to the Board of Internal Economy.

A number of witnesses, including Mr. Wudrick, Mr. Rubin, Mr. Drapeau, Mr. Marleau and Mr. Conacher, supported the Commissioner’s recommendation that Parliament should be subject to the Act.[52] Mr. Marleau stressed the importance of protecting parliamentary privilege in a separate part of the Act : “I think it has to be articulated fairly carefully in terms of protecting parliamentary privilege, your legislative function, your function as a member in the constituency documents, that sort of thing has to be included.”[53]

Moreover, Mr. Marleau expressed some concern about the Commissioner being able to make orders that are binding on Parliament, if she is granted such powers:

I have some concerns about order-making powers by the commissioner to Parliament. You have a creature of Parliament now ordering Parliament. I think you'd have to set up in a separate part of the statute an independent review outside of Federal Court for parliamentary privilege. I would suggest at the outset appoint a retired Supreme Court judge who would be there to review any order he or she may make that might contravene the intention for parliamentary privilege.[54]

The Committee is also in favour of expanding the scope of the Act to include Parliament. The Committee therefore recommends:

RECOMMENDATION 4

That in the first phase of the reform of the Access to Information Act, the scope of the Act be extended to include organizations that support Parliament, such as the Board of Internal Economy, the Library of Parliament, the Conflict of Interest and Ethics Commissioner and the Senate Ethics Officer.

RECOMMENDATION 5

1. That a new provision be created in the Act in order to prevent any infringement of parliamentary privilege.
2. That the Government of Canada consult the organizations that support Parliament, specifically, the Clerk of the Senate, the Clerk of the House of Commons and the Parliamentary Librarian, in order to determine the content of the new provision protecting parliamentary privilege and to ensure that this new provision effectively protects parliamentary privilege.

RECOMMENDATION 6

That a separate and specific part of the Act be created pertaining to the application of the Act to organizations that support Parliament.

RECOMMENDATION 7

That the Government of Canada consult the organizations that support Parliament, specifically, the Clerk of the House of Commons, to determine the extent to which the Act should apply to the Board of Internal Economy.

RECOMMENDATION 8

That Parliament determine the appropriate process for the independent review of the application of the provisions protecting parliamentary privilege.

2.4 Courts

The Commissioner told the Committee that the bodies that provide administrative support to the courts are not subject to the Act even though they have substantial budgets.[55] In her report, the Commissioner therefore made the following recommendations:

Recommendation 1.6

The Information Commissioner recommends extending coverage of the Act to the bodies that provide administrative support to the courts, such as the Registry of the Supreme Court, the Courts Administration Service, the Office of the Commissioner for Federal Judicial Affairs and the Canadian Judicial Council.[56]

Recommendation 1.7

The Information Commissioner recommends that the Act exclude records in court files, the records and personal notes of judges, and communications or draft decisions prepared by or for persons acting in a judicial or quasi-judicial capacity.[57]

While a number of witnesses were in favour of expanding the application of the Act, few of them commented specifically on the Commissioner’s recommendation to expand the application of the Act to include bodies that provide administrative support to the courts. Mr. Drapeau did, however, support this recommendation[58] and Mr. Marleau pointed out that the Committee had embraced this recommendation in 2009.[59]

The Committee supports this recommendation by the Commissioner and therefore recommends:

RECOMMENDATION 9

That in the first phase of the reform of the Access to Information Act, the application of the Act be extended to include bodies providing administrative support to the courts, such as the Registrar of the Supreme Court of Canada, the Courts Administration Service, the Office of the Commissioner for Federal Judicial Affairs Canada and the Canadian Judicial Council, except in regards to court files, the records and personal notes of judges, as well as communications or draft decisions prepared by or for persons acting in a judicial or quasi-judicial capacity.

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