Delegation under the Access to Information Act and the Privacy Act

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.

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.

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.

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]