Delegation under the Access to Information Act and the Privacy Act

Delegation orders under the Access to Information Act and the Privacy Act vary across government institutions. They are dependent on the size, mandate and culture of institutions. While no one model would work for all, there are some factors that must be respected. The following information has been prepared to assist in the determination of appropriate delegation.

Questions to Consider

  1. Should full authority for the administration of the Access to Information Act and the Privacy Act be delegated to the Access to Information and Privacy (ATIP) Coordinator?
  2. Should more than one person have delegation?
  3. Should Deputy Ministers and senior managers also be named in the delegation order?
  4. Are functions delegated as far down within the ATIP Office as possible? (For example, routine functions such as extension and third party notices can be delegated to ATIP Officers as well as to the Coordinator.)
  5. Has the delegated authority been correctly and clearly enough described or identified in the delegation order?
  6. If a process is in place for resolving disagreements with the Information Commissioner or the Privacy Commissioner, do the responsible officers or employees have delegated authority?
  7. Do the delegates have sufficient knowledge of the Acts to properly exercise the delegated powers?

Legal and Policy Requirements

  1. Section 73 of the Access to Information Act and section 73 of the Privacy Act authorize the head Footnote 1 of a government institution to designate, by order, one or more officers or employees of that institution to exercise or perform any of the powers, duties or functions of the head of the institution that are specified in the order.
  2. Delegation is entirely at the discretion of the head of the institution.
  3. The Policy on Access to Information and the Policy on Privacy Protection require the head of an institution to consider whether delegation is appropriate. The Policy clarifies that, in cases where the head decides to delegate, a delegation order must be signed, and that the delegated officers or employees must be at an appropriate level to be able to fulfill the duty.
  4. The Directive on the Administration of the Access to Information Act and the Directive on Privacy Requests and Correction of Personal Information require the head of a government institution to respect the following legal principles when delegating:
    • Heads of institutions can only designate officers and employees of their government institution in the delegation order – consultants, members of a Minister's exempt staff, or employees of other government institutions or from the private sector cannot be named in the delegation order;
    • Powers, duties and functions are delegated to positions identified by title, not to individuals identified by name;
    • Persons with delegated authorities are to be well informed of their responsibilities;
    • Powers, duties and functions that have been delegated cannot be further delegated by a delegate, though employees and consultants may perform tasks in support of delegates' responsibilities; and
    • The delegation order is to be reviewed when circumstances surrounding the delegations have changed. A delegation order remains in force until such time as it is reviewed and revised by the head of the institution.
  5. Once a delegation order is signed, delegates are accountable to the head of the institution for any decisions they make. Delegates exercise the powers in their own name because they are authorized to act. Ultimate responsibility, however, still rests with the head of the government institution.
  6. After an express delegation has been made, the powers, duties and functions of the head may only be exercised either by the head of the institution or by the delegates. No other officer or employee, from the Deputy Minister or deputy head to ATIP officials, has the legal authority to make determinations. (When the delegate is absent or incapacitated and the delegation passes to another position, the person occupying that position may also make determinations.)
  7. Where the head of the institution is a Minister of the Crown and in the absence of a delegatio order, subsection 24(2) of the Interpretation Act states that:
    • a Deputy Minister can exercise the powers of the Minister;
    • Public Service employees working within the institution can perform the duties outlined in the Access to Information Act. In order to act for a Minister, a person must:
      • be a public servant employed in the department or organization for which the Minister is responsible; and,
      • serve in a capacity within the department such that the person can reasonably be expected to exercise the power of the Minister.
    If there is a delegation order, subsection 24(2) of the Interpretation Act is not applicable.
  8. Even when a delegation has been given, the head of the institution retains the power to make decisions and may do so until the final determination has been communicated to the requester. As a result, it is not interference for the head of an institution to get involved in the processing of requests or the resolution of complaints.
  9. Similarly, it is not interference for senior management to give advice or to raise issues to consider in the request or complaint processes. It would be interference, however, if an official who does not have delegation were to direct an ATIP official (or another delegate) to adopt a particular course of action.
  10. In light of the purpose of the Access to Information Act and Privacy Act, decisions to refuse access to a document may be revisited by the head or the delegate during the processing phase and, if a complaint has been made to the Information or Privacy Commissioner or a request for judicial review presented to the Federal Court, until the end of the independent review process.
  11. In the case of a complaint or a revision by the Federal Court, it is the person who has made the decision to refuse access to a document who must explain the reasons for that decision. This may require the filing of an affidavit or an appearance before the Commissioner or the Court.

Example #1 – Access to Information Act and Privacy Act Delegation Order

The [title of the head of the institution and, if needed, name of the government institution], pursuant to section 73 of the Access to Information Act and section 73 of the Privacy Act, hereby designates the persons holding the positions set out in the schedule hereto, or the persons occupying on an acting basis those positions, to exercise the powers, duties and functions of the [title of the head] as the head of [name of the institution], under the provisions of the Act and related regulations set out in the schedule opposite each position. This designation replaces all previous delegation orders.

Schedule
Position Access to Information Act and Regulations Privacy Act and Regulations
[Title of position(s)] Full authority Full authority
[Title of position(s)] Full authority Full authority
[Title of position(s)] [List provisions of the Act or Regulations being delegated] [List provisions of the Act or Regulations being delegated]
[Title of position(s)] [List provisions of the Act or Regulations being delegated] [List provisions of the Act or Regulations being delegated]
[Title of position(s)] [List provisions of the Act or Regulations being delegated] [List provisions of the Act or Regulations being delegated]
[Title of position(s)] [List provisions of the Act or Regulations being delegated] [List provisions of the Act or Regulations being delegated]

Dated, at the City of [Enter city name], this [Enter day] day of [Enter month], 20[Enter year]

[Name and title of head of institution]

Example #2 – Access to Information Act and Access to Information Regulations Delegation Order

The [title of the head of the institution and, if needed, name of the government institution], pursuant to section 73 of the Access to Information Act, hereby designates the persons holding the positions set out in the schedule hereto, or the persons occupying on an acting basis those positions, to exercise the powers, duties and functions of the [title of the head] as the head of [name of the institution], under the provisions of the Act and related regulations set out in the schedule opposite each position. This designation replaces all previous delegation orders.

Access to Information Act
Provision Description [Title of position(s)] [Title of position(s)] [Title of position(s)]
4(2.1) Responsibility of head of institution      
7(a) Notice when access requested      
7(b) Giving access to the record      
8(1) Transfer of request      
9 Extension of time limits      
11(2)(3)
(4)(5)(6)
Additional Fees      
12(2)(b) Language of access      
12(3)(b) Access in an alternative format      
Exemption Provisions of the Access to Information Act
Provision Description [Title of position(s)] [Title of position(s)] [Title of position(s)]

Table 1 Notes

Note *

Note: The provisions highlighted in yellow and identified with an asterisk may only be claimed by the institutions named in the provision.

Return to first note * referrer

13 Information obtained in confidence      
14 Federal-provincial affairs      
15 International affairs and defence      
16 Law enforcement and investigations      
Note *16.1 Note *Records relating to investigations, examinations or audits of four Agents of Parliament      
Note *16.2 Note *Records relating to investigations by the Commissioner of Lobbying      
Note *16.3 Note *Investigations, examinations and reviews under the Canada Elections Act      
Note *16.4 Note *Public Sector Integrity Commissioner      
16.5 Public Servants Disclosure Protection Act      
17 Safety of individuals      
18 Economic interests of Canada      
18.1 Economic interest of certain government institutions      
19 Personal information      
20 Third party information      
Note *20.1 Note *Public Sector Pension Investment Board      
Note *20.2 Note *Canada Pension Plan Investment Board      
Note *20.4 Note *National Arts Centre Corporation      
21 Operations of Government      
22 Testing procedures, tests and audits      
22.1 Internal Audits      
23 Solicitor-client privilege      
24 Statutory prohibitions      
Other Provisions of the Access to Information Act
Provision Description [Title of position(s)] [Title of position(s)] [Title of position(s)]
25 Severability      
26 Refusal of access where information is to be published      
27(1), (4) Third party notification      
28(1)(b),
(2), (4)
Third party notification      
29(1) Notice of decision to disclose      
33 Notice to Information Commissioner of notices to third parties      
35(2)(b) Right to make representations      
37(1) Notice of actions to implement recommendations of Commissioner      
37(4) Access to be given to complainant      
43(1) Notice to third party of application to Federal Court for review      
44(2) Notice to requester of application for review by third party      
52(2)(b),
52(3)
Special rules for hearings      
71(1) Facilities for inspection of manuals      
72 Annual report to Parliament      
Access to Information Regulations
Provision Description [Title of position(s)] [Title of position(s)] [Title of position(s)]
6(1) Transfer of request      
7(2) Search and preparation fees      
7(3) Production and programming fees      
8 Method of access      
8.1 Limitations in respect of format      

Dated, at the City of [Enter city name], this [Enter day] day of [Enter month], 20[Enter year]

[Name and title of head of institution]

Example #3 – Privacy Act and Privacy Regulations Delegation Order

The [title of the head of the institution and, if needed, name of the government institution], pursuant to section 73 of the Privacy Act, hereby designates the persons holding the positions set out in the schedule hereto, or the persons occupying on an acting basis those positions, to exercise the powers, duties and functions of the [title of the head] as the head of [name of the institution], under the provisions of the Act and related regulations set out in the schedule opposite each position. This designation replaces all previous delegation orders.

Privacy Act
Provision Description [Title of position(s)] [Title of position(s)] [Title of position(s)]
8(2)(j) Disclosure for research or statistical purposes      
8(2)(m) Disclosure in the public interest or in the interest of the individual      
8(4) Copies of requests under paragraph 8(2)(e)      
8(5) Notice of disclosure under paragraph 8(2)(m)      
9(1) Record of disclosures      
9(4) Consistent uses      
10 Personal information banks      
14(a) Notice when access requested      
14(b) Giving access to the record      
15 Extension of time limits      
17(2)(b) Language of access      
17(3)(b) Access in an alternative format      
Exemption Provisions of the Privacy Act
Provision Description [Title of position(s)] [Title of position(s)] [Title of position(s)]

Table 2 Notes

Note *

Note: The provisions highlighted in yellow and identified with an asterisk may only be claimed by the institutions named in the provision.

Return to table 2 note * referrer

18(2) Exempt banks      
19 Information obtained in confidence      
20 Federal-provincial affairs      
21 International affairs and defence      
22 Law enforcement and investigations      
table 2 note *22.1 table 2 note *Information obtained or created by the Privacy Commissioner during investigations      
table 2 note *22.2 table 2 note *Public Sector Integrity Commissioner      
22.3 Public Servants Disclosure Protection Act      
23 Security clearances      
24 Individuals sentenced for an offence      
25 Safety of individuals      
26 Information about another individual      
27 Solicitor-client privilege      
28 Medical records      
Other Provisions of the Privacy Act
Provision Description [Title of position(s)] [Title of position(s)] [Title of position(s)]
33(2) Right to make representations      
35(1)(b) Notice of actions to implement recommendations of Commissioner      
35(4) Access to be given to complainant      
36(3)(b) Notice of actions to implement recommendations of Commissioner concerning exempt banks      
51(2)(b),
51(3)
Special rules for hearings      
70 Cabinet confidences      
72 Annual report to Parliament      
Privacy Regulations
Provision Description [Title of position(s)] [Title of position(s)] [Title of position(s)]
7 Retention of personal information requested under paragraph 8(2)(e)      
9 Examination of information      
11(2),11(4) Notification concerning corrections      
13(1) Disclosure of personal information relating to physical or mental health      
14 Examination in presence of medical practitioner or psychologist      

Dated, at the City of [Enter city name], this [Enter day] day of [Enter month], 20[Enter year]

[Name and title of head of institution]

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