ETHI Committee Report

Government Response to the Second Report of the Standing Committee on Access to Information, Privacy and Ethics

Issues Related to the Alleged Disclosure of the Names of Access to Information Applicants

1. Protection of the Identity of All Access Requesters

   The Privacy Act contains a definition of what constitutes personal information, which covers the name of an individual making a request for information under the Access to Information Act. Sections 7 and 8 of the Privacy Act prohibit the use or disclosure of personal information outside the circumstances listed in those sections of the Act. Further, the Access to Information Act currently contains a mandatory exemption for personal information, and therefore the name of the requester is also protected under the Access to Information Act.

   In practice, this means that great care is taken to ensure that the identity of a requester is not disclosed outside the ATIP Coordinator’s office. In fact, the practice extends beyond protecting just the name of a requester; it includes other potential identifiers, such as the name of the organization the requester may represent, the city and province in which the requester is located, and so on.

   There are, however, limited circumstances where disclosure may be necessary in order to facilitate the processing of a request. The ATIP office may disclose the name of a requester to a departmental official, where it is required in order to properly process a request. It is at times appropriate, for example, for an official and a requester to speak directly in order to clarify particularly complex points relating to a request. It is also appropriate in certain circumstances for an official to know the identity of a requester when being asked to search for records about the requester.

   When the allegations of disclosure of personal information were brought to the attention of the Government last September, the Treasury Board Secretariat immediately sent notices to officials to remind them that the name of an individual who has made a request under the Access to Information Act or the Privacy Act is personal information and can only be disclosed in conformity with the Privacy Act.

   At this time, it is the Government’s view that the current protection is sufficient, and no amendment is required to either Act in order to protect the names of requesters. As the Committee notes, however, the Office of the Privacy Commissioner is currently investigating whether personal information was improperly disclosed under the Privacy Act in the matter raised with the Committee. Once the Commissioner has concluded her investigation and has issued her findings, the Government will reconsider its position, if necessary.

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2. Categorizing and Tracking Access to Information Requesters

   The Committee heard testimony from witnesses regarding the categorization of access requests.

   Government institutions are required to include in their Annual Reports to Parliament aggregate data pertaining to requests received or processed during a reporting year. This includes identifying users of the legislation by grouping them under five broad categories: academia, business, organizations, media, and public. Collecting this data enables government institutions to gather useful statistics. To date, for example, statistics indicate that businesses are currently the biggest users of the Act, while academics file the fewest requests. However, there is a perception that this categorization results in delays in the processing of certain access requests and that some requesters may be treated differently.

   With respect to these concerns, the Government believes that this issue has been satisfactorily addressed by an amendment made to the Access to Information Act through the Federal Accountability Act.

   Clause 143 of the Federal Accountability Act adds a new subsection 4(2.1) to the ATIA. The new “duty to assist” subsection states that:

   [t]he head of a government institution shall, without regard to the identity of a person making a request for access to a record under the control of the institution, make every reasonable effort to assist the person in connection with the request, respond to the request accurately and completely and, subject to the regulations, provide timely access to the record in the format requested.

   In the Government’s view, this new provision ensures that institutions will assist requesters and respond to them completely and accurately without regard to the identity of the person who made the request. While the Government believes that this simply codifies what is the normal practice in government institutions, this provision should reassure requesters concerning equality of treatment. This provision further strengthens the obligations on institutions to answer access requests in a timely manner.

   In this regard, the Treasury Board Secretariat has reissued guidelines and is developing educational tools to train government institutions and the ATIP community in their duties arising from the recent amendments to the Access to Information Act, including the new “duty to assist” provision.

   Finally, the Committee was advised that the Office of the Information Commissioner is currently conducting an investigation, at the request of the Canadian Newspaper Association, on alleged systemic governmental discrimination in the treatment of access requests from members of the media. The Office of the Information Commissioner has not yet concluded its investigation.

   Again, the Government wishes to thank the members of the Committee for their continued interest as we work towards a strong access regime for all Canadians.