September 14, 2021

Katherine Bériault Policy Analyst
Treasury Board of Canada Secretariat 90 Elgin Street
Ottawa, ON K1A 0R5 ippd-dpiprp@tbs-sct.gc.ca

Dear Katherine:
Re: First Nations Financial Management Board’s Input into the Access to Information Act Review – Stage 2 Further to the extension provided on August 25, 2021 by the Information and Privacy Policy Division,
Office of the Chief Information Officer, please find enclosed the First Nations Financial Management Board’s input on the Access to Information Act Review – Stage 2.

Sincerely,

FIRST NATIONS FINANCIAL MANAGEMENT BOARD
Per:	 Scott Munro
Deputy Chief Executive Officer

Enclosure (1)

Call Out for Input into the Access to Information Review – Stage 2
In November 2020, the Treasury Board of Canada Secretariat (TBS) invited institutions to contribute to the Review of Access to Information in two stages. Stage 1, issues identification, concluded in January 2021.
TBS received more than 1800 pieces of discrete feedback from 98 institutions subject to the Access to Information Act (ATIA), which has been summarized in the attached Summary. Due to the many cross- cutting issues received from institutions in response to the three streams of the Review, this summary has organized the input under three overarching themes that more accurately present the complexity of the issues at play:
i.	Increasing operational pressures;
ii.	A desire for greater central support; and
iii.	Updates to the ATIA to keep pace with the present operations of government.
Your input will support the development of the report to the President of the Treasury Board at the conclusion of the Review that will be tabled in Parliament, as well as forward-looking activities in support of the ATIP Community.
Stage 2 – More detailed input on the issues
The objective of Stage 2 is to give institutions an opportunity to review the issues included in the summary, as well as provide elaboration on some targeted issues. The targeted issues were raised by a significant number of institutions, but TBS needs more detail to improve our understanding of them.
•	We are providing the template below to help guide your responses.
o	Please do not repeat any detailed input you provided during Stage 1. Please focus only on the issue(s) that require more substantive input.
o	You do not need to elaborate on all the issues raised in the template; please focus on those that are most relevant or impactful to your institution.
o	Bullet points are preferred, wherever possible.
o	Please provide feedback in the official language of your choice. No translation is required.
•	The completed template must be ADM-approved before sending to TBS. Responses are due to TBS by August 23, 2021.
•	Responses and questions should be sent to: ippd-dpiprp@tbs-sct.gc.ca, to the attention of Katherine Bériault.

Stage 2 – More detailed input on the issues
Name of institution: First Nations Financial Management Board Assistant Deputy Minister approval: N/A
Summary of Stage 1 Input	
1.	We are interested in your feedback on the Summary of Stage 1 Input.
Some questions to consider:
a.	How well does the summary reflect the main issues currently impacting your institutions in relation to the ATIA?
b.	Are there any issues that are missing, have been misunderstood, or are lacking important context or detail (and that you have not already provided)?	
a.	The summary reflects almost all the main issues currently impacting the First Nations Financial Management Board. The FMB would like to see the definition of ‘aboriginal government’ in s. 13(3) be amended to include all First Nations and First Nations organisations with a governmental function (i.e. not just modern treaty nations, but also tribal councils and Indian Act ‘bands’) so that they are exempt.
b.	The one issue that has not been captured is the ability of FMB to claim a statutory prohibition against disclosure articulated in s. 24(1). Specifically, FMB should be included in the list of government institutions set out in Schedule II. Alternatively, the FMB should be specifically referenced, akin to those organizations listed in s. 20.1,
20.2 and 20.4 under the clause titled Third Party Information. FMB can provide supporting rationale for this issue.	

Issues requiring further elaboration	
2.  IM/IT Training
We heard that more IM/IT training is needed to support institutions in meeting their obligations under the ATIA.
Some areas to consider:
a.	What IM/IT training is currently available in your institution?
b.	Are there gaps in the available training?
c.	Who requires training? (E.g. ATIP employees, all employees, new employees)
d.	Are there any further details you can provide to help us understand this issue?	

a.	Little to none. The FMB relies heavily on a third-party independent consultant to periodically deliver this training.
b.	We do not have any current ATIA training material or a training program established in house. We have an IT Manager and an ATIA Officer but our ATIA training is delivered only periodically through an external consultant.
c.	All employees and Board of Directors require general or working knowledge. New employees and new Directors require some induction training. ATIA Officer needs thorough, technical understanding and training.
d.	We need more frequent training to help eliminate misinformation and misunderstanding of the risk that ATIA presents to the FMB. It is the frequent source of document anxiety and creates an overstated level of perceived risk.	
3.	Complex exemptions and exclusions (sections 15, 16, and 69)
We heard that sections 15, 16, and 69 were overly complex, either to interpret or apply correctly.
Some areas to consider:
a.	Can you provide more detail about what aspects of these sections you find to be overly complex (e.g. overlapping provisions)?
b.	How does this complexity affect your application of these sections, or your operations?
c.	Are there any further details you can provide to help us understand this issue?	
N/A	
4.	Third party processes and exemptions
We heard that some institutions find third party processes and exemptions lack clarity and flexibility.
Some areas to consider:
a.	What aspects of section 20 are unclear?
b.	What aspects of the third party consultation process (set out in s. 27 and s. 28) work well? Which do not?
c.	Are there rights and/or obligations of third parties that could be more clearly identified or defined?
d.	Are there any further details you can provide to help us understand this issue?	
The FMB would like to be treated similarly to those entities listed in s. 20.1, 20.2 & 20.3. The FMB has the trust and support of many First Nations’ governments and would like to ensure this remains the case in protecting our clients’ information. Most, if not all, of the	

information provided to FMB can be obtained directly from the First Nation government. First Nation Governments also inform their citizens on a wide variety of matters on a regular basis with the ability to control the release of that information so that it does not inadvertently get released into the ‘public domain’. There is also the principle of data sovereignty for First Nations’ governments and ‘ownership, control, access and possession’ advanced by the First Nations Governance Centre around the ability to inform their membership without the fear of that information being released into the ‘public domain’.	
5.	Vexatious request handling and definitions
We heard that the processes for seeking permission to decline to act on a vexatious request could be streamlined, and that vexatious requests do not address requesters exhibiting harassing or abusive behaviour.
Some areas to consider:
a.	Since June 21, 2019, how many times has your institutions considered seeking approval from the Information Commissioner to decline to act on a request pursuant to s. 6.1?
i.	If you considered seeking approval but decided not to, what were the reasons for this decision?
b.	Has your institution been documenting instances of harassing or abusive behaviour from requesters?
i.	If yes, can you describe the nature of these instances?
c.	Are there any further details you can provide to help us understand this issue?	
a.	Zero
b.	No
c.	N/A	
6.	Duplication of work regarding materials published under Part 2
We heard that institutions were experiencing work duplication due to the requirement to process requests under Part 1 of the ATIA for records published or due to be published under Part 2.
Some questions to consider:
a.	Since June 21, 2019, how many times has your institution processed records under Part 1 which were the same as material published or due to be published under Part 2?
i.	What was duplicative in processing the request(s) for Part 2 publications? Please be as specific as possible.
b.	Are there any further details you can provide to help us understand this issue?	

a.	Zero
b.	N/A	
7.	Judicial Review Process
We heard that the judicial review processes related to complaints submitted to the OIC are unclear and should be reviewed to improve their consistency.
Some areas to consider:
a.	Which aspects of the judicial review process are unclear or inconsistent?
b.	What is the impact of this lack of clarity of inconsistency on your operations?
c.	Are there any further details you can provide to help us understand this issue?	
N/A	
8. Are the any other issues of interest to your institutions, not articulated in the preceding section, which you would like to address?	
The FMB was invited by Émilie Bertrand, A/Assistant Secretary, Digital Policy and Services, on November 18, 2020 to provide feedback and input on provisions of the ATIA related to Indigenous governments, and the treatment of information obtained from Indigenous governments or held by Indigenous institutions. The FMB accepted this invitation. To date this consultation has not occurred and we would like to schedule a time that would allow a more complete discussion to be had in this area.
The FMB is seeking to protect from unauthorized disclosure the confidential information provided to them by their First Nation government and First Nation government organisation clients while engaging with them to provide services or to carry out mandated functions.
Subject to reasonable exceptions, the FMB is requesting a statutory prohibition in the First Nations Fiscal Management Act (“FNFMA”) against disclosure of this confidential information and related communications, as well as the application of section 24(1) of the ATIA to the statutory prohibition through listing of the FNFMA provision in Schedule II of the ATIA.