Access to information and records management

The Access to Information Act provides Canadians with the right of access to information in records under the control of a government institution. The guiding principles of the Act are that government information should be available to the public, that exceptions to the right of access should be limited and specific, and that decisions on the non-disclosure of information should be reviewed independently of government.

The Privacy Act provides for access to one’s own personal information held by government institutions and governs the rules for collection, use, disclosure and disposal of personal information.

The Acts are used for information which is not generally available to the public. The Acts require that a response be provided within 30 calendar days from receipt of the request. Extensions can only be given in limited circumstances.

Environment and Climate Change Canada (ECCC) is among the ten federal departments receiving the most Access to Information requests. In 2018/2019, ECCC received 1794 requests under the Access to Information Act. ECCC, however, receives relatively few requests under the Privacy Act, with 62 requests received last fiscal year.

Within ECCC, the Access to Information Act and Privacy Act are administered by the Access to Information and Privacy (ATIP) Division which is part of the Corporate Secretariat. The Deputy Minister; the Associate Deputy Minister; the Director General, Corporate Secretariat; the Director, ATIP; and the Manager, ATIP all have full delegated authority under the Acts.

The ATIP Division prepares a weekly Access to Information report detailing the new requests received. The ATIP Division will circulate copies of proposed responses, which may require media products, to the Minister’s office and the Communications Directorate for communications purposes.

As most of the records found in the Minister’s office are not under the control of the Department, there are a number of considerations related to the Access to Information and Privacy Acts which must be taken into account when organizing files.

There are four categories of records (including e-mail) which are found in the Canadian federal system of government. Each category of records must be treated separately within a Minister’s office.

Institutional Records

Institutional Records are records pertaining to ECCC's mandate that have been received or created by the Department and are under the control of the Department. They reflect the continuing business of the Department, its policies, programs and services. These records are subject to the provisions of Access to Information and Privacy legislation. With the exception of information which meets one or more of the exemption or exclusion provisions of these Acts, such information must be disclosed (subject to a case-by-case review) when requested. In addition, in records under the control of the Department that were created on or after June 21, 2019, the names and titles of Ministerial staff are no longer considered personal information for the purposes of the Acts. A federal Department must retain a copy of any document under its control that it sends to the Minister’s office and common practice is for the Minister’s office to return these records to the Department once the item of business has been completed. This practice encourages the Minister’s office to store only such information as is truly important to its operations.

The Supreme Court of Canada has clarified the notion of control for records held in a Minister’s office in the decision Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25, [2011] 2 S.C.R. 306 (commonly known as the “PM agenda” case).

The office of a Minister is not part of the Department over which the Minister presides and, generally, records held exclusively in a Minister’s office are not subject to the Acts.

However, a document held exclusively in a Minister’s office could be deemed to be under the control of a government institution if the following two-step test is satisfied:

• Do the contents of the record relate to a departmental matter?
• If so, could a senior official of the government institution reasonably expect to obtain a copy of the record upon request?

Minister's Personal or Political Records

Minister's Personal or Political Records are records related to matters such as constituency business, party politics, and the private life and personal interest of the Minister both during and after their term of office. Such records require separate storage from institutional and other records in the filing system of the Minister's office. They are not subject to Access to Information and Privacy legislation and are only disclosed at the Minister's discretion.

Ministerial Records

Ministerial Records are records pertaining to a Minister's position as a Minister and a member of the Queen's Privy Council for Canada. These records relate to Ministerial and Cabinet matters that do not pertain to the Department and have not been referred to federal public servants for advice or action. These records must be kept separate from institutional records and from personal and political records in the filing system of the Minister's Office. They are not subject to Access to Information and Privacy legislation and are only disclosed at the Minister's discretion.

Cabinet Confidences

Cabinet Confidences refer to Cabinet documents such as Memorandum to Cabinet, Cabinet committee reports and records of Cabinet decisions. Appropriate measures should be taken to identify and protect these documents within the filing systems containing Ministerial or institutional records. While in the Minister’s office, these documents are to be made available only to those persons who need to have access to them and have the appropriate security clearance. Advice prepared for the Minister on an issue that is or will be brought before Cabinet or a Committee of Cabinet is also a Cabinet confidence. After consultation with the Department of Justice, information deemed to be a Cabinet confidence is excluded from disclosure under Access to Information and Privacy legislation for a period of 20 years.