The Access to Information Act

Introduction: The updated Access to Information Act

The Access to Information Act (ATIA) provides Canadian citizens, permanent residents, and individuals and corporations present in Canada a right to access records under the control of government institutions, in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific, and that decisions on the disclosure of government information should be reviewed independently of government. There are roughly 260 government institutions currently subject to the ATIA.

Bill C-58, An Act to amend the Access to Information Act and the Privacy Act received royal assent on June 21, 2019 , making important improvements to the openness and transparency of government. These are the most significant amendments to the act since it came into force in 1983.

The new legislation improves the way government information is provided to Canadians by:

• giving the Information Commissioner the power to make binding orders in relation to access to information requests, including the release of government records
• eliminating all fees apart from the $5 application fee
• requiring institutions to proactively publish specific information known to be of interest to the public, without the need for a request
• allowing government institutions within the same ministerial portfolio to work together to process requests more efficiently

The ATIA balances access to government information with exemptions and exclusions that protect other important democratic values, such as the need for the public service to provide full, free and frank advice to ministers, the protection of the confidentiality of Cabinet deliberations, the protection of personal information, and national security considerations.

An institution subject to the ATIA has 30 calendar days to reply to a request and give written notice as to whether or not access to the record requested will be provided. An institution can take an extension under specific circumstances. A requester who is not satisfied with a time extension taken by an institution or with the information an institution releases in response to a request can submit a complaint to the Information Commissioner.

Previously, the Office of the Information Commissioner would investigate, and the Commissioner may have made recommendations. The Information Commissioner now has the legislated ability to order government to release records, as well as make orders concerning time extensions, access in the official language requested and format of release for accessibility purposes.

Access to Information Act statistics

There is continued growth in the number of access to information requests. Since 2015, the number of pages released under the ATIA has increased by more than 260%, from 6,623,001 pages in 2015-16 to 24,143,497 pages in 2017-18.

More information

• The Updated Access to Information Act: What You Need to Know
• A Generational Change to Canada’s Access to Information Law

Overview: Bill C-58

• The Information Commissioner has a much stronger role
• The Prime Minister’s Office, ministers’ offices, senators, members of Parliament and administrative institutions that support Parliament and the courts, government departments and agencies, and Crown corporations are legally required to publish a broad range of information, without the need for a request
• The Access to Information Act would be regularly reviewed
• No fees apart from the $5 application fee
• Institutions will be allowed to seek the Information Commissioner’s approval to decline to act on “bad faith” requests, so that services may be delivered more efficiently
• Improved administration of the Access to Information Act

Bill C-58 received Royal Assent on June 21, 2019 , bringing into force important improvements to the openness and transparency of government. These are the most significant changes to the Act since it came into force in 1983, and represent the first phase of the review of the Access to Information Act. Phase II was a full review of the Act, and began within one year of royal assent of Bill C-58.

Key changes in the new legislation include:

The Information Commissioner has a much stronger role

The Information Commissioner now has the power, following an investigation of a complaint, to make binding orders in relation to access to information requests, including ordering the release of government records.

Orders issued by the Information Commissioner will normally take effect after 30 business days. To preserve the careful balance in the Access to Information Act between the public interest in transparency and accountability, and other important considerations, such as privacy and national security, a government institution that has serious concerns with an order could seek review by the Federal Court within 30 business days of receiving the order. In cases where a third party or the Privacy Commissioner has a right of review, there are an additional 10 business days before the order takes effect to allow these rights to be exercised.

The Prime Minister’s Office, ministers’ offices, senators, members of Parliament and administrative institutions that support Parliament and the courts, government departments and agencies, and Crown corporations are legally required to publish a broad range of information, without the need for a request

Proactive publication by the Prime Minister's Office, ministers' offices, senators, members of Parliament, institutions that support Parliament and the courts, government departments and agencies, and Crown corporations is now entrenched in law. Current and future governments now have an obligation to proactively provide Canadians with a broad range of information, including information about the use of public funds, on a predictable schedule, and without the need to make a request.

Proactive publication requirements include: mandate letters; briefing packages for new ministers; briefing note titles; Question Period notes; and briefing materials prepared for Parliamentary Committee appearances.

In addition, from now on, the fact that an individual is or was a Ministerial staff member, as well as their name and title will no longer be considered personal information for the purposes of administering the Access to Information Act and the Privacy Act. This change applies to records created on or after Royal Assent.

Proactive publication requirements for Senators, Members of Parliament and administrative institutions that support Parliament and the courts will come into force one year after the date of royal assent to ensure adequate time for these institutions to implement the changes effectively.

The Access to Information Act will be regularly reviewed

Under the new Access to Information Act, the government is required to initiate a review of the Act within one year of Royal Assent of Bill C-58, and every five years afterwards. The first full review of the Act will enable the government to build on the targeted changes made in Bill C-58.

Parliamentary committees will also initiate a review of the Act within one year of Royal Assent of Bill C-58 and every five years afterwards, and issue their recommendations for changes.

No fees apart from the $5 application fee

Consistent with the Government’s policy in place since 2016, the updated Access to Information Act eliminates all fees other than the application fee. The government no longer has the authority to set or charge additional fees, such as fees for processing a request or reproduction of documents.

The amount of the application fee is set through regulation and is currently fixed at $5.

Institutions will be allowed to seek the Information Commissioner’s approval to decline to act on “bad faith” requests, so that services may be delivered more efficiently

The number of access to information requests is growing annually, and institutions are struggling to respond in a timely manner. In a small number of cases, requesters use the right to request government information for reasons that may not be consistent with the purpose of the Act.

To help focus resources on requests that are consistent with the purpose of the Act, government institutions may now seek the Information Commissioner’s approval to decline to act on an access to information request that is vexatious, made in bad faith, or is otherwise an abuse of the right of access. Before seeking the Information Commissioner’s approval to decline to act on a request, an institution must make every reasonable effort to assist the person in connection with the request, including working with the requester to clarify the request. If the Information Commissioner approves an institution’s decision to decline to act on a request, the $5 application fee would be refunded.

As well, the Information Commissioner now has the authority to refuse to investigate or cease to investigate a complaint if it is trivial, frivolous or vexatious, or is made in bad faith; or if further investigation is unnecessary in the circumstances.

Improved administration of the Access to Information Act

The Government is taking additional steps to strengthen access to information by improving tools available to institutions and to the public.

In fall 2018, the government launched the ATIP Online Request Service – a simple, centralized website that enables users to make access to information and personal information requests to institutions that are subject to the Access to Information Act and Privacy Act. The ATIP Online Request Service provides an easy way to make requests to over 140 institutions, with more institutions being added regularly. It can also help requesters find summaries of previous requests, so that they might not have to make their own request. It also helps identify which institution may hold the information requesters are seeking.

As well, the Treasury Board of Canada Secretariat is leading efforts to update the electronic processing tools that are used by government institutions to prepare responses to requests for information, enable institutions to give status updates for online requests, and deliver documents electronically in response to a request.

A stronger role for the Information Commissioner

• What is in the new legislation? The Information Commissioner now has the power to make binding orders to government institutions. This transforms the Commissioner’s role from an ombudsperson to a powerful authority with the legislated ability to order government to release records as well as make orders concerning time extensions, access in the official language requested and format of release for accessibility purposes.
• How does the new order-making power work? The Information Commissioner now has the power, following an investigation of a complaint, to make binding orders in relation to access to information requests, including ordering the release of government records. Orders issued by the Information Commissioner will normally take effect after 30 business days. To preserve the careful balance in the Access to Information Act between the public interest in transparency and accountability, and other important considerations, such as privacy and national security, a government institution that has serious concerns with an order could seek review by the Federal Court within 30 business days of receiving the order. In cases where a third party or the Privacy Commissioner has a right of review, there are an additional 10 business days before the order takes effect to allow these rights to be exercised.
• How is this different from the previous system? Previously, if a requester was dissatisfied with the records they received or the way their request was handled, they could complain to the Information Commissioner. The Information Commissioner’s office would investigate, and the Commissioner may have recommended the release of material. If the government institution did not follow the recommendation, the Information Commissioner or a complainant could seek the court’s review of the institution’s decision. Now, if the Commissioner finds a complaint well-founded, he or she could make an order and the government institution is required to comply with the order, unless it applies to the Federal Court for review. If the government believes it must challenge the order, it has 30 business days to apply to the Federal Court for review. The government institution will have the burden of demonstrating that the order should be set aside (that is, that the institution is authorized to refuse to follow the order). Similarly, the complainant can apply to the Federal Court for a review of the matter that is subject of the complaint within 30 business days of the Information Commissioner’s report. The Privacy Commissioner, and third parties whose information is implicated in the order, will also be able to seek review in Federal Court if they have concerns with an order. They will have an additional 10 business days after the initial 30-day period in which to initiate a review.
• Why doesn’t an order take effect immediately? The Act provides 30 business days for the government to weigh all considerations before seeking review. In instances where a government institution believes the Commissioner’s order has been wrongly issued, this allows the government to ask the Federal Court to review the matter when it believes information should be protected. Similarly, the additional 10-business day delay allows for the Privacy Commissioner, and third parties whose information is implicated in the order, to challenge the order. The Information Commissioner’s Departmental Results Reports between 2013-2014 and 2017-2018 show that institutions adopted the Commissioner’s recommendations 99% of the time. This indicates that only in exceptional circumstances have government institutions not voluntarily accepted the Information Commissioner’s recommendations, and it is anticipated that the same will be true for orders made under the new legislation.
• How will the public know what the Information Commissioner has ordered? The Information Commissioner will now have the authority to publish reports of his or her findings, including any orders made. This will establish a public body of precedents and make institutions aware of the Information Commissioner’s position on their obligations under the Act. It will also help avoid the Commissioner needing to reinvestigate the same issues.
• How will personal information be protected? The order-making model includes checks and balances to ensure the Privacy Commissioner has an opportunity to provide input regarding the protection of personal information and to intervene if he or she considers it necessary. During the investigation of an access complaint, the Information Commissioner may consult the Privacy Commissioner concerning questions about personal information. If the Information Commissioner intends to make an order for the release of information that was exempted under the personal information exemption, then the Act requires the Information Commissioner to consult the Privacy Commissioner and to provide a copy of her report to the Privacy Commissioner when the order is made. While government institutions and complainants have 30 business days to apply for review of an order, the Privacy Commissioner (and third parties) have 10 additional business days following the initial 30 business days to apply to the Federal Court to have their respective interests in the matter reviewed. The Privacy Commissioner also has standing to be added as a party to a Federal Court review started by any other party (a government institution, the complainant, or any third parties).
• How will confidential commercial information of third parties be protected? The order-making model also provides for checks and balances when it comes to the protection of third party information, such as trade secrets or confidential financial or commercial information. Third parties will be given written notice by the Information Commissioner before she or he makes an order for the release of information to which the exemption for third party information had been applied, and will have an opportunity to make representations to the Commissioner. Third parties will also be provided with a copy of the final report with the order and the government institution’s response. While government institutions and complainants have 30 business days to apply for review of an order, third parties (and the Privacy Commissioner) have an additional 10 business days after the initial 30-day period to initiate a review.

Improving the way access requests are processed

• What is in the new legislation? The Access to Information Act has not been significantly updated since its implementation in 1983, when government records were predominantly paper-based. The updated Act will improve the way government information is provided to Canadians by:
  • giving the Information Commissioner the power, following an investigation of a complaint, to make binding orders in relation to access to information requests, including ordering the release of government records
  • eliminating all fees for access to information requests, apart from the $5 application fee
  • requiring institutions to proactively publish specific information known to be of interest to the public, and which provides greater transparency and accountability for the use of public funds, without the need for a request
  • allowing government institutions within the same Ministerial portfolio to work together to process requests more efficiently, allowing small institutions to take advantage of larger departments’ expertise

  Declining to act on bad faith requests

  • What is in the new legislation? The purpose of the Access to Information Act is to enhance the accountability and transparency of federal institutions in order to promote an open and democratic society and to enable public debate on the conduct of those institutions. To help focus resources on requests that are consistent with the purpose of the Act, institutions may now seek the approval of the Information Commissioner to decline to act on requests that are vexatious, made in bad faith, or are otherwise an abuse of the right of access. Similarly, the Information Commissioner may now refuse or cease to investigate a complaint if it is trivial, frivolous or vexatious, or made in bad faith; or if further investigation is unnecessary given the circumstances.
  • How will this improve the delivery of the Access to Information program? There are examples of individuals making hundreds of requests in a year to the same operational area of a government institution, or requesting all emails of a certain government employee for a period of several years. While bad-faith requests only represent a small number of the total requests received by government institutions, these requests can interfere with an institution’s ability to do its mandated work and hinder its ability to respond to access requests from other requesters.
  • How will I know if an institution has declined to act on my request? Before seeking the Information Commissioner’s approval to decline to act on a request, an institution must make every reasonable effort to assist the person in connection with the request, including working with the requester to clarify the request. If a government institution decides to seek the Information Commissioner’s approval to decline to act on your request, you will receive written notice to that effect from the institution. The institution will need to demonstrate to the Office of the Information Commissioner that the request is vexatious, made in bad faith, or is an abuse of the right of access. The deadline for responding to your request will be suspended while the Information Commissioner considers the institution’s request to decline to act on your request. During this period, the Office of the Information Commissioner will contact you to give you an opportunity to respond to the institution’s request. If the Information Commissioner approves the institution’s request to decline to act on your request, you will receive written notice of the decision and the reasons for it. Your $5 application fee will be refunded. If the Information Commissioner refuses to allow the institution to decline to act on your request, you will receive written notice to that effect and that the response period for your request has resumed.
  • What if the request is actually made in good faith? Institutions may not decline to act on a request without the Information Commissioner’s prior approval. Before seeking the Information Commissioner’s approval to decline to act on a request, an institution must make every reasonable effort to assist the person in connection with the request, including working with the requester to clarify the request. In responding to a request, institutions will be guided by policies that will make it clear that many broad requests are legitimate and consistent with the purpose of the Act. For example, institutions will be required to administer the Access to Information Act in a manner that fully respects the government’s obligation to assist Indigenous groups in furthering their claims.

  No fees apart from the $5 application fee

  • What is in the new legislation? Consistent with the Government’s policy since 2016, the updated Access to Information Act eliminates all fees other than the application fee. The government no longer has the authority to set or charge additional fees, such as fees for processing a request or reproduction of documents. The amount of the application fee is set through regulation and is currently fixed at $5. In 2016, the Government issued the Interim Directive on the Administration of the Access to Information Act, which directed institutions to charge only the $5 application fee and to waive all other fees for access to information requests.

  Proactive Publication: Making key information available without the need for a request

  • What are the new requirements? The government is committed to raising the bar for openness and transparency and is taking steps to become “open by default,” by sharing an ever increasing amount of government data and information with Canadians. To support that commitment, a new part of the Access to Information Act requires institutions to proactively publish specific information known to be of interest to the public, to provide greater transparency and accountability for the use of public funds. These changes put into law proactive disclosure practices previously only covered by federal policy, and introduce important new publication requirements that apply the Access to Information Act to a wider range of organizations.
  • To whom, specifically, do the new proactive publication requirements apply? The new proactive publication requirements apply to all the institutions currently covered by the Access to Information Act, including departments, agencies, administrative tribunals and boards, Crown corporations, and other institutions, such as Port Authorities. The Prime Minister’s Office, ministers’ offices, senators and members of Parliament, and administrative institutions that support Parliament and the courts are also subject to these requirements. Proactive publication requirements for Senators, members of Parliament and administrative institutions that support Parliament and the courts come into force one year after the date of Royal Assent to ensure adequate time for these institutions to implement the changes effectively.
  • Information proactively published by the Prime Minister’s Office:
    • Mandate letters (within 30 calendar days after being issued or revised)
    • Briefing packages for new ministers (within 120 calendar days after appointment)
    • Titles and tracking numbers of briefing notes (within 30 calendar days after the end of the month)
    • Question Period notes (within 30 calendar days after the last sitting day in June and December)
    • Briefing materials for Parliamentary Committee appearances (within 120 calendar days after appearance)
    • Travel and hospitality expenses (within 30 calendar days after the end of the month in which expenses are reimbursed)
    • Contracts over $10,000, amendments over $10,000 and amendments that increase the total contract value to above $10,000 (within 30 calendar days after the end of the quarter for Q1–3, and within 60 calendar days after the end of Q4)
    • Annual report of all expenses incurred by a minister’s office (within 120 calendar days after the end of the fiscal year, to be posted on open.canada.ca)
    • Travel and hospitality expenses of senior officials (within 30 calendar days after the end of the month in which expenses are reimbursed)
    • Reports tabled in Parliament (within 30 calendar days after tabling)
    • Briefing packages for new deputy heads (within 120 calendar days after appointment)
    • Titles and tracking numbers of briefing notes to deputy heads (within 30 calendar days after the end of month)
    • Briefing materials for Parliamentary Committee appearances (within 120 calendar days after appearance)
    • Contracts over $10,000, amendments over $10,000 and amendments that increase the total contract value to above $10,000 (within 30 calendar days after the end of the quarter for Q1–3, and within 60 calendar days after the end of Q4)
    • Grants and contributions over $25,000, amendments that increase the total value to above $25,000 and any other amendments (within 30 calendar days after the end of the quarter)
    • Reclassification of positions (within 30 calendar days after the end of the quarter)
    • Travel and hospitality expenses of senior officials (within 30 calendar days after the end of the month in which expenses are reimbursed)
    • Reports tabled in Parliament (within 30 calendar days after tabling)
    • Travel and hospitality expenses (within 90 calendar days after the end of the quarter in which expenses are reimbursed)
    • Service contracts: all amounts (within 90 calendar days after the end of the quarter)
    • Travel and hospitality expenses of senior level officials (within 30 calendar days after the end of the quarter in which expenses are reimbursed)
    • Contracts over $10,000 (within 30 calendar days after the end of the quarter)

    The Office of the Registrar of the Supreme Court of Canada is also required to publish, with respect to the judges of the Supreme Court of Canada including:

    • Aggregated expenses reimbursed as part of travel, conference, incidental and representational allowances (within 30 calendar days after the end of the quarter in which expenses are reimbursed)
    • Applicable guidelines for the reimbursement of such expenses

    As well, the Office of the Commissioner for Federal Judicial Affairs is required to publish the same expense information for all judges of the superior courts (other than the Supreme Court of Canada) in the aggregate, by court, as well as the applicable guidelines for the reimbursement of such expenses.

    • Travel and hospitality expenses (within 60 calendar days after the end of the quarter in which expenses are reimbursed)
    • Contracts over $10,000 (within 60 calendar days after the end of the quarter)

    Administrative institutions that support Parliament that are subject to proactive publication:

    • The Library of Parliament
    • The Parliamentary Budget Officer
    • The Parliamentary Protective Service
    • The Office of the Conflict of Interest and Ethics Commissioner
    • The Office of the Senate Ethics Officer
    • The administration of the Senate and the House of Commons.

    Learn more about the development of Bill C-58: Revitalizing access to information