Delegation under the Access to Information Act and the Privacy Act
The Access to Information Act (ATIA) and the Privacy Act assign responsibility for numerous sections of both Acts to the head of the institution. While some more sensitive decisions should remain the responsibility of the head, most decisions can be delegated to officials through a delegation order. The delegation can be to officials in the institution or to officials in the provider institution when there is a service‑sharing agreement for provision of services under the Acts.
Delegation orders under the Acts vary across government institutions. They depend on the size, mandate and culture of institutions. While no one model would work for all, there are some factors that must be considered.
The following information will help heads of institutions determine the appropriate delegation for the statutory functions and authorities under each Act.
Delegation orders must be appended to the institution’s annual reports.
More information on delegation and service-sharing agreements is provided in the Access to Information Manual and the Personal Information Request Manual.
The Treasury Board Secretariat (TBS) policy suites also confer responsibilities to heads, delegates, officials and employees. Institutions have the discretion to implement delegations of these responsibilities in the manner that works for them.
Questions to consider
- Should full authority for the administration of the ATIA and the Privacy Act be delegated to the Access to Information and Privacy (ATIP) Coordinator?
- Should more than one person have delegation?
- Should deputy ministers and senior managers also be named in the delegation order?
- Do the delegates have sufficient knowledge of the Acts to properly exercise the delegated powers?
- Should there be a different delegate for access to information requests, for personal information requests, and for personal information banks?
- Has the delegated authority been correctly and clearly enough described or identified in the delegation order?
- Are functions delegated as far down as possible within the hierarchy of the ATIP Office? (For example, routine functions such as extension and third-party notices can be delegated to ATIP officers, as well as to the coordinator.)
- Should any functions be delegated to positions beyond the ATIP Office?
- If a process is in place for resolving complaints submitted to the Information Commissioner or the Privacy Commissioner, do the employees responsible for resolving complaints have sufficient delegated authority?
- The Information Commissioner can issue orders. Are the delegates who may make representations in accordance with subsection 35(2) of the ATIA at the appropriate level?
- Are the delegates who may make representations in accordance with subsection 33(2) of the Privacy Act at the appropriate level?
- Does the proposed delegation relate to an authority or function under the ATIA or Privacy Act, or to a requirement of TBS policy?
- If the proposed delegation relates to a TBS policy requirement, does the requirement in question expand on or otherwise relate to a statutory function or authority?
Legal and policy requirements
- Section 95 of the ATIA and section 73 of the Privacy Act authorize the headFootnote 1 of a government institution to delegate certain powers, duties and functions. This delegation must be done by an order. The head can designate one or more officers or employees from their own institution. They can also designate officials or employees from another government institution within the same ministerial portfolio if there is a service-sharing agreement in place. The order must specify which powers, duties or functions are being delegated.
- In accordance with paragraph 70(1)(c) of the ATIA and paragraph 71(1)(d) of the Privacy Act, the President of Treasury Board issued directives on the administration of both Acts. The Policy on Access to Information and the Policy on Privacy Protection, and their subordinate instruments, define requirements for heads of institutions and their delegates.
- Some policy requirements relate directly to the head of an institution’s powers, duties, or functions under either Act, but some go beyond statutory functions or authorities. Only the powers, duties and functions listed in Appendix B of both policies must be delegated through an order. The non‑statutory requirements can be delegated separately and do not need to be included in a formal delegation order.
- Delegation is entirely at the discretion of the head of the institution.
- The Policy on Access to Information and the Policy on Privacy Protection require the head of a government institution, when signing a delegation order, to give careful consideration to the delegation of any powers, duties or functions pursuant to section 95 of the ATIA or section 73 of the Privacy Act. Both policies require the head of a government institution to respect the following principles when delegating:
- Powers, duties and functions are delegated only to officers and employees of their government institution or to those of another government institution within the same ministerial portfolio when there is a service-sharing agreement between the two government institutions.
- Heads of institutions cannot delegate to consultants, members of a Minister’s exempt staff, employees of other government institutions with which there is no service-sharing agreement, or to individuals from the private sector.
- Powers, duties and functions are delegated to positions identified by title, not to individuals identified by name.
- The delegated people are at the appropriate level to be able to fulfill the duties of their delegated authorities and are well informed of their responsibilities.
- Powers, duties and functions that have been delegated cannot be further delegated by a delegate, but employees and consultants may perform tasks in support of delegates’ responsibilities.
- The delegation order must be reviewed when the circumstances surrounding the delegation have changed. These circumstances could include appointment of a new head of an institution, the restructuring of the organization, transfers of programs or portions of programs, and changes in the institution’s mandate. A delegation order remains in force until it is replaced.
- Once a delegation order is signed, delegates are accountable to the head of the institution for any decisions they make. Delegates exercise the powers, duties and functions in their own name because they are authorized to act. Ultimate responsibility, however, still rests with the head of the government institution.
- 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 head to ATIP officials, has the legal authority to make decisions. When the person occupying the position that has been given the delegation is absent or incapacitated, a person occupying the position of the delegate on an interim basis may make decisions.
- When a new head is appointed, the existing delegation order remains in force until the new head signs a new delegation order.
- When the head of the institution is a Minister of the Crown and in the absence of a delegation 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 ATIAand Privacy 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
- 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 does not apply.
- 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.
- 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, for an official who does not have delegation to direct an ATIP official (or another delegate) to take a particular course of action.
- In light of the purpose of the ATIA and the Privacy Act, the head or the delegate may revisit decisions to refuse access to a document if a complaint has been made to the Information or Privacy Commissioner or if a request for judicial review has been presented to the Federal Court, until the end of the independent review process.
- In the case of a complaint or a review 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.
- Under the ATIA, the Information Commissioner has the power to make orders following a well‑founded complaint investigation. An institution’s representations to the Information Commissioner should be provided during the investigation process, not after the receipt of the initial report that sets out any order that the Commissioner intends to make. Care should be taken to make sure the delegates are at the appropriate level to fulfill their delegated authorities.
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 95 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 these 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.
| 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 [city name], this [day] day of [month], 20[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 95 of the Access to Information Act, hereby designates the persons holding the positions set out in the schedule hereto, or the persons occupying these positions on an acting basis, 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.
[Place an X in the table below for each provision for which the position has been granted the delegation.]
| Provision | Description | [Title of position(s)] | [Title of position(s)] | [Title of position(s)] |
|---|---|---|---|---|
| 4(2.1) | Responsibility of head of institution | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 6.1(1) | Reasons for declining to act on request | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 6.1(1.3) | Notice — suspension | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 6(1.4) | Notice — end of suspension | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 6(2) | Notice | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 7 | Notice where access requested | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 8(1) | Transfer of request to another government institution | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 9 | Extension of time limits | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 10 | Where access is refused | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 11(2) | Application fee waiver | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 12(2)(b) | Language of access | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 12(3)(b) | Access to record in an alternative format | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| Provision | Description | [Title of position(s)] | [Title of position(s)] | [Title of position(s)] |
|---|---|---|---|---|
| 13 | Information obtained in confidence | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 14 | Federal-provincial affairs | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 15 | International affairs and defence | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 16 | Law enforcement and investigations | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| Footnote *16.1 | Footnote *Records relating to investigations, examinations or audits of four Agents of Parliament | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| Footnote *16.2 | Footnote *Records relating to investigations by the Commissioner of Lobbying | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| Footnote *16.3 | Footnote *Investigations, examinations and reviews under the Canada Elections Act | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| Footnote *16.4 | Footnote *Public Sector Integrity Commissioner | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 16.5 | Public Servants Disclosure Protection Act | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| Footnote *16.6 | Footnote *Secretariat of National Security and Intelligence Committee of Parliamentarians | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 17 | Safety of individuals | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 18 | Economic interests of Canada | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 18.1 | Economic interest of certain government institutions | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 19 | Personal information | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 20 | Third‑party information | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| Footnote *20.1 | Footnote *Public Sector Pension Investment Board | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| Footnote *20.2 | Footnote *Canada Pension Plan Investment Board | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| Footnote *20.4 | Footnote *National Arts Centre Corporation | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 21 | Operations of government | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 22 | Testing procedures, tests and audits | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 22.1 | Internal audits | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 23 | Solicitor-client privilege | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 23.1 | Protected information — patents and trademarks | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 24 | Statutory prohibitions | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| Provision | Description | [Title of position(s)] | [Title of position(s)] | [Title of position(s)] |
|---|---|---|---|---|
| 25 | Severability | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 26 | Refusal of access if information is to be published | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 27(1), 27(4) | Notice to third parties | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 28(1)(b), 28(2), 28(4) |
Representations of third party and decision | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 33 | Notice to Information Commissioner of notices to third parties | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 35(2)(b) | Right to make representations | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 37(1)(c) | Notice of action taken or proposed to be taken to implement the order or recommendations of Commissioner | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 37(4) | Access to be given to complainant | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 41(2) | Review by the Federal Court - government institutions | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 43(2) | Service or notice | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 44(2) | Notice to person who requested record | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 52(2)(b), 52(3) |
Special rules for hearings | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 94(1), 94(4) |
Annual report – government institutions | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| Provision | Description | [Title of position(s)] | [Title of position(s)] | [Title of position(s)] |
|---|---|---|---|---|
| 6(1) | Transfer of request | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 8 | Method of access | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 8.1 | Limitations in respect of format | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
Dated, at the city of [city name], this [day] day of [month], 20[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.
[Place an X in the table below for each provision for which the position has been granted the delegation.]
| Provision | Description | [Title of position(s)] | [Title of position(s)] | [Title of position(s)] |
|---|---|---|---|---|
| 8(2)(j) | Disclosure for research or statistical purposes | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 8(2)(m) | Disclosure in the public interest or in the interest of the individual | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 8(4) | Copies of requests under paragraph 8(2)(e) | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 8(5) | Notice of disclosure under paragraph 8(2)(m) | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 9(1) | Record of disclosures | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 9(4) | Consistent uses | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 10 | Personal information banks | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 14(a) | Notice when access requested | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 14(b) | Giving access to the record | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 15 | Extension of time limits | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 16 | Where access is refused | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 17(2)(b) | Language of access | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 17(3)(b) | Access in an alternative format | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| Provision | Description | [Title of position(s)] | [Title of position(s)] | [Title of position(s)] |
|---|---|---|---|---|
| 18(2) | Exempt banks | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 19 | Information obtained in confidence | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 20 | Federal-provincial affairs | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 21 | International affairs and defence | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 22 | Law enforcement and investigations | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| Footnote *22.1 | Footnote *Information obtained or created by the Privacy Commissioner during investigations | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| Footnote *22.2 | Footnote *Public Sector Integrity Commissioner | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 22.3 | Public Servants Disclosure Protection Act | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| Footnote *22.4 | Footnote *Secretariat of National Security and Intelligence Committee of Parliamentarians | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 23 | Security clearances | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 24 | Individuals sentenced for an offence | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 25 | Safety of individuals | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 26 | Information about another individual | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 27 | Solicitor-client privilege | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 27.1 | Protected information — patents and trademarks | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 28 | Medical records | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| Provision | Description | [Title of position(s)] | [Title of position(s)] | [Title of position(s)] |
|---|---|---|---|---|
| 33(2) | Right to make representations | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 35(1)(b) | Notice of actions to implement recommendations of Commissioner | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 35(4) | Access to be given | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 36(3)(b) | Notice of actions to implement recommendations of Commissioner concerning exempt banks | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 51(2)(b), 51(3) |
Special rules for hearings | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 72 | Annual report to Parliament | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 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) | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 9 | Examination of information | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 11(2), 11(4) | Notification concerning corrections | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 13(1) | Disclosure of personal information relating to physical or mental health | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
| 14 | Examination in presence of medical practitioner or psychologist | [insert X if applicable] | [insert X if applicable] | [insert X if applicable] |
Dated, at the city of [city name], this [day] day of [month], 20[year]
[Name and title of head of institution]
Example 4: Service-sharing agreement
Institutions may want to use this sample service-sharing agreement as a model for how to meet certain statutory and policy requirements.
This sample service-sharing agreement is provided as an example only. It is not a template or a set of requirements. Section 96 of the Access to Information Act (ATIA) and section 73.1 of the Privacy Act contain no requirements for the format of any written agreement on shared ATIP services. However, under subsection 96(3) of the ATIA and section 4.2.4 of the Policy on Access to Information, certain notification requirements apply. Similar requirements exist under subsection 73.1(3) of the Privacy Act and section 4.2.18 of the Policy on Privacy Protection. The head of the institution that receives the services must provide a copy of any new service-sharing agreement to the President of the Treasury Board and to the Information Commissioner and Privacy Commissioner, as applicable. They must similarly notify the President and the Commissioners of any material changes to an existing service‑sharing agreement. The notification must be submitted as soon as possible after entering into the agreement or after any material changes arise.
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