2025 review of the Access to Information Act: Policy approaches

Description

This approach would require institutions subject to the Access to Information Act to publish and regularly update a publication scheme that would communicate what records they will publish, where the records will be made available, and on what schedule. This approach would build on existing Government of Canada policy requirements and practices in other jurisdictions. Outside of the Act, the Treasury Board Directive on Open Government already requires certain institutions to keep inventories of information they hold in order to assess and determine whether they can release information to the public, but they are not required to publish such inventories.

Other jurisdictions such as British Columbia, Australia and the United Kingdom have implemented proactive publication models under which institutions are legally required to develop and publish publication schemes. To support the implementation of this approach, the President of the Treasury Board could be given the authority under the Act to specify in policy what information such publication schemes should include. This approach could also involve further exploring ways to enhance access to records that have already been released publicly by government institutions, including records released in response to an ATI request, in a manner that respects relevant requirements of the Official Languages Act.

Benefit

Mandating publication schemes would require institutions to make information available to the public in a more consistent and systematic manner as part of their normal business activities. Although some types of information could be standard across all institutions, each institution would also identify and publish records specific to its mandate, core responsibilities, and priorities. This approach would increase awareness of what information the public should expect institutions to publish and could reduce the volume of ATI requests.

Description

This approach would create a simpler, more flexible way for the Government of Canada to require new record categories to be published proactively, or to modify existing categories, without requiring legislative change. It would also enable the Government of Canada to respond in a more agile manner to the expectations of Canadians and Indigenous peoples for transparency and accountability.

Since 2019, Part 2 of the Act has listed certain categories of information that institutions must publish because they would be of interest to the public. These categories cannot be changed without amending the Act, a process that can take years. This lack of flexibility limits the Government of Canada’s ability to respond quickly to calls to publish more information on topics of interest to the public. In contrast, British Columbia’s Freedom of Information and Protection of Privacy Act allows the responsible minister to add new categories of records that must be made public through “ministerial directives.”

Benefit

This approach would make it easier for the Government of Canada to change proactive publication requirements in situations where it is clearly in the public interest to require institutions to publish new types of information or to modify existing categories without the need to change the legislation.

Policy approach: Enable fair and equitable access

Policy approach: Establish objective criteria for time extensions

Policy approach: Allow time extensions during emergencies

Policy approach: Provide time for clarifying requests

Policy approach: Establish a public interest override

Policy approach: Establish more time limits on the protection of information

Policy approach: Make government operations more transparent

Description

The Government of Canada’s current legislative and policy framework does not contain mandatory requirements for the proactive and systematic review, downgrading or declassification, and transfer of records into the custody of Library and Archives Canada (LAC) within specific time frames. ATI requests are therefore the principal mechanism for triggering the review and disclosure of classified historical records held by institutions. The result is a growing inventory of historical records that have not been reviewed and transferred to LAC. Even after they are transferred to LAC, classified historical records often remain unavailable to the public.

Key features of declassification and disclosure regimes in other Five Eyes countries include:

• a centralized business model with whole-of-government responsibilities (for example, the United States National Declassification Centre, which is part of the National Archives and Records Administration)
• prescribing the timeframe for reviewing and transferring historical records, accompanied by handling instructions, by institutions to the national archives
• providing for the automatic declassification of historical records after a prescribed timeframe, subject to certain exceptions

Deploying modern digital tools, including artificial intelligence (AI), to help institutions streamline the search, retrieval and review of classified historical records for potential downgrading or declassification would further enable a systematic approach.

Benefit

Establishing a systematic approach to the declassification and disclosure of historical records could bring greater cohesion and consistency across institutions with respect to the management of these records, increase the number of historical records made available to Canadians, reduce pressure on the ATI regime and, in turn, increase compliance with legislated timelines for processing ATI requests.

Description

The public’s ability to exercise its right to access government information depends on institutions documenting their decisions and actions related to such decisions. Currently, there is no legislative framework for information management. Also, only institutions subject to the Financial Administration Act are required, under the Treasury Board Directive on Service and Digital, to document activities that have business value. There is no government-wide direction on what this duty to document means or how it should be applied. As a result, practices vary widely across institutions.

Incorporating a duty to document into law, as British Columbia did in its Information Management Act, would require institutions to document decisions and related information and to set a clear expectation that this is foundational to the public’s right to access records. It would also address the narrow scope and the inconsistent application of the Directive on Service and Digital across institutions to which it applies by establishing a common legal framework for institutions that are subject to the Act. Records that are not in official repositories would be considered transitory records and would be subject to timely disposition based on a standardized, published schedule. A legislated duty to document could be accompanied by a corresponding link to the existing offences framework under section 67.1of the Act.

Benefit

This approach could make institutions more transparent and accountable by setting clear expectations for institutions as it relates to documenting decisions and related information and incentivize behavioural change and improved information management practices across institutions. Linking the duty to document to the existing offences framework could further improve the compliance of institutions and individuals in terms of documenting decisions and disclosing related records as required under the Act, as well as provide for meaningful consequences for individuals failing to do so.

Description

This approach would involve updating the definition of “record” in the Act to mean “official record” that supports transparency and accountability of government decision-making and program administration and that are held in official repositories. This would mean that what institutions search for and retrieve in response to an ATI request are records that have ongoing business value and that are stored in official repositories, which would effectively remove transitory records from the scope of the Act. To mitigate the risk of official records not stored in official repositories being disposed of prematurely and to give institutions an incentive to dispose of legitimate transitory records in a timely manner, a standard timeframe for transitory records being subject to the Act could be defined in law or policy.

When the Act came into force in 1983, it was designed for a pre-digital era. Methods of work and the capacity to produce data and information have changed fundamentally since then. The digitization of work activities has resulted in vast amounts of transitory records, including routine communications, being maintained alongside records that are necessary for accountability purposes. All these records are treated equally under the Act, which creates a significant administrative burden for institutions.

This equal treatment also results in less accountability because official records (that is, records that are necessary for program and decisional accountability) are difficult to locate in institutions that have multiple data and information repositories, all of which officials need to search when responding to an ATI request. This difficulty prevents automation and integration of AI tools because there are no officially designated repositories as it relates to the Act.

Benefit

Updating the definition of “record” as described above would make searches faster and more efficient, exclude irrelevant or duplicate records (like transitory ones), and help provide faster and more useful responses to requesters.

Description

Section 5 of the Act requires institutions to describe the types of records they hold to help people access them. Adding a requirement for institutions to publish how long they keep records and when they dispose of them would make accessing them easier and more transparent. It would also help requesters know if the records they want still exist, have been deleted, or transferred to Library and Archives Canada. Retention and disposition schedules could be one of the basic record categories that must be published under institutions’ publication schemes.

Benefit

By publishing retention and disposition schedules, the location and status of records would be clearer to requesters. It could also result in requests that are simpler and more targeted and in responses from institutions that better meet requesters’ needs.

Description

A purpose clause is an important interpretive tool for the courts and institutions. The current purpose clause in the Act does not contain Indigenous-specific considerations, nor does it reflect the rights of Indigenous peoples of Canada as described in the UN Declaration.

This approach involves:

• recognizing, in the purpose clause of the Act, the right of the Indigenous peoples of Canada to self‑determination
• defining “Indigenous peoples of Canada” as having the same meaning as the term “aboriginal peoples of Canada” in subsection 35(2) of the Constitution Act, 1982

Benefit

Affirming Indigenous peoples’ right to self-determination in the purpose of the Act would:

• recognize the importance of timely access to records held by the Government of Canada that affect Indigenous peoples
• offer clearer guidance for interpreting the Act by courts and institutions
• better align the Act with the UN Declaration, particularly articles 3 and 4^{Footnote 3}

Description

This approach would replace the Act’s outdated definition with the broader and recognized federal definition of “Indigenous governing body” to mean

a council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982.^{Footnote 4}

The Act currently relies on a narrow definition of “aboriginal government” that does not include many Indigenous governments and groups. It therefore does not protect confidential information these groups share with the Government of Canada. The current definition does not reflect the diversity of Indigenous governance and does not align with many other federal, provincial or territorial definitions.

Benefit

The new definition would be culturally appropriate, promote legislative consistency across federal statutes, and support Indigenous self‑determination by protecting confidential information for more than the current list of “aboriginal governments,” thereby aligning more closely with articles 3, 4 and 5 of the UN Declaration.^{Footnote 5}

Description

In recent years, more federal laws have added specific protections for “Indigenous knowledge” provided in confidence to the Government of Canada; however, the Act does not specifically protect Indigenous knowledge from disclosure under the Act. This approach would involve creating a new exemption that would protect such knowledge from disclosure, subject to few exceptions (such as if the information is publicly available or if written consent to disclose is provided). It would also require defining “Indigenous knowledge” in the Act to align with other federal acts.

Benefit

This change would reassure Indigenous peoples that “Indigenous knowledge” they share with institutions is protected and that the concept is defined in law. It also supports article 31 of the UN Declaration and helps align the Act with other federal laws and policy frameworks.^{Footnote 6}

Description

This approach would involve adding a new provision to the Act that excludes from disclosure third‑party information that is under the control of Indigenous-affiliated institutions listed in Schedule I (for example, First Nations Financial Management Board, First Nations Tax Commission, First Nations Infrastructure Institute). Previous feedback provided by Indigenous partners highlighted that the Act does not adequately protect information provided in confidence by the clients of Indigenous-affiliated institutions listed under Schedule I of the Act. This could lead to the release of sensitive information and could negatively impact the services these Indigenous-affiliated institutions provide to Indigenous governments and organizations. Such a provision would not apply to Crown-Indigenous Relations and Northern Affairs Canada or to Indigenous Services Canada.

Benefit

Protecting third-party information provided in confidence by Indigenous governments or organizations to Indigenous-affiliated institutions would enable Indigenous peoples to have more control over their own economic development and self-determination generally and would align the Act more closely with articles 5, 20 and 23 of the UN Declaration.^{Footnote 7} An appropriate degree of transparency and accountability would be maintained because other types of records generated by these federal Indigenous-affiliated institutions would remain subject to the Act.

Description

Recognizing the collective rights of Indigenous peoples of Canada within the Act would establish a framework through which records related to decisions affecting their collective rights and interests could be made accessible to their representative Indigenous governing bodies on request. This approach would extend similar rights provided to persons under the Act.

Benefit

Adopting this change would bring the Act into closer alignment with articles 1, 19 and 40 of the UN Declaration and would reinforce what is already reflected in common law and in treaties.^{Footnote 8}

Description

Indigenous partners have shared feedback that the current individual request-based ATI system that is overseen by the Information Commissioner may not meet Indigenous peoples’ cultural and governance needs. This approach would provide a distinct, no-cost process under the Act that would enable Indigenous governing bodies or their representatives to access records through an alternative mechanism. Through this mechanism, they would request records using a prescribed form that includes a mutually agreed disclosure schedule. If the terms in the prescribed form are not respected and if informal good‑faith resolution between parties is not possible, Indigenous governing bodies could seek redress from the Federal Court, after notifying the head of the institution and providing them with an opportunity to intervene.

Benefit

This alternative pathway for accessing records would:

• recognize the collective rights and needs of Indigenous governing bodies as distinct from individual requesters
• provide a more culturally appropriate and potentially more responsive means for Indigenous governing bodies to obtain the records they need for critical purposes

Description

The Access to Information Act establishes a $5 application fee to request records from institutions. This fee can present an administrative and financial barrier for some First Nations, Inuit and Métis requesters. Although guidance on waiving fees has been provided to institutions, it is optional and is applied inconsistently. To reduce these barriers, the $5 fee could be waived permanently in law or in policy for Indigenous peoples of Canada and their representatives.

Benefit

This change would remove any remaining financial barriers to access and bring consistency to the application of existing guidance.

Description

The President lacks clear authority under the Act to collect statistics to assess institutions’ compliance with Part 2 of the Act. This approach would give the President explicit authority to monitor and report publicly on Part 2 of the Act, thereby addressing a gap in the compliance monitoring and reporting framework. It would also lay the foundation for the development of a comprehensive performance measurement framework.

Benefit

Collecting statistics on Part 2 would enable the Government of Canada to:

• better understand challenges
• find opportunities to improve institutional performance related to proactive publication
• provide evidence-informed direction and guidance to institutions

Description

This approach would involve amending the Information Commissioner’s order-making powers so that orders, once registered with the Federal Court, are enforceable as court orders. This would give the orders more weight, where necessary, as originally intended. It would also simplify and reduce the administrative burden of the current order-making model for the Information Commissioner, for institutions and for the judicial system, as well as minimize delays for requesters. This approach is like those already in place for information commissioners in Alberta, British Columbia, Newfoundland and Labrador, the Northwest Territories, Quebec, and Prince Edward Island. Given the increasing number of orders, this power would need to be balanced with a more systematic approach to, and standardized requirements for, order‑making.

Benefit

This approach would strengthen the Information Commissioner’s order-making power and reduce the administrative burden on all parties involved in this process.

Description

This approach would enable the Information Commissioner to order an institution to publish an action plan in response to investigations that reveal broader, systemic compliance challenges. This includes situations where a single institution is facing multiple orders of a similar nature. This approach would allow an institution to demonstrate a commitment to addressing the Information Commissioner’s concerns through clearly defined actions and through transparent timelines that better reflect its capacity to respond to the Commissioner’s findings and recommendations. Institutions would also be required to publish periodic progress reports and a final report on their websites.

Benefit

This approach would enable the Information Commissioner to work with an institution to address broader, systemic compliance issues in a manner that considers the institution’s capacity to respond, particularly when facing multiple orders of a similar nature. Publishing action plans on institutions’ websites would ensure transparency and accountability in addressing compliance issues.

Description

The Information Commissioner’s orders are meant to be a measure of last resort, but their use has steadily increased since being added to the Act in 2019. In 2024–25, the Information Commissioner issued orders for over half of all well-founded complaints. The increase of orders is becoming challenging for institutions to manage. Also, because orders are legally binding, institutions must often prioritize these cases over other requests, which can further impact compliance with legislated timelines to respond to requests.

Information commissioners in Alberta, British Columbia, Ontario and Prince Edward Island have both order-making and mediation powers. When former Information Commissioner of Canada Suzanne Legault proposed order-making powers in 2015, she emphasized that successful models rely on strong mediation first. Ms. Legault also led a pilot project during her time in office that resolved 70% of cases by mediation.^{Footnote 9} Adopting this approach would give the Information Commissioner more flexible tools to resolve complaints and would provide a middle ground between proactive intervention and formal orders.

Benefit

Mediation could provide the Information Commissioner with a wider range of escalating enforcement measures other than recommendations and orders. It could also lead to better outcomes for requesters, as demonstrated by the 2015 pilot project.

Description

Institutions have raised concerns about the absence of a clear and transparent rationale supporting the Information Commissioner’s decisions to issue orders. Currently, the Information Commissioner is not required to explain their decisions. Requiring the Information Commissioner to publish rationales for decisions would make their work more transparent. Investigations would still be conducted in private. This approach would also help institutions understand and implement the Information Commissioner’s decisions.

There are no standard criteria the Information Commissioner must consider and document when making a decision. This makes it difficult for institutions to justify their decisions and to understand how their actions are being evaluated. It also limits public insight into the reasons for decisions by the Information Commissioner. This approach would require the Information Commissioner to publish clear explanations for their decisions, demonstrating how a standard set of factors was considered. These factors could include:

• the nature and scope of the complaint
• the institution’s history of compliance with the Act
• the size and complexity of the request
• the capacity of the institution to meet the order
• any evidence that the institution did its best to respond to the request, including fulfilling their duty to assist the requestor
• whether the institution was provided with a reasonable opportunity to make representations
• whether the Information Commissioner undertook a mediation process before issuing an order

Benefit

Publishing rationales for decisions and requiring that these be based on standard criteria would help institutions better understand and comply with the Information Commissioner’s decisions and enable a more transparent, objective, and consistent assessment of complaints and basis upon which orders are issued.