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Judy Booth Award

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Proactive Publication Q&A

Please note that some sections are still under review. For more information, please email OCIO-APCDO-BDPI-BPCAP@tbs-sct.gc.ca.

ATIOGPD is part of the Office of the Chief Information Officer of Canada at the Treasury Board of Canada Secretariat (TBS). TBS is a Central Agency of the Government of Canada, alongside the Privy Council Office and the Department of Finance. ATIOGPD’s mandate is to support the President of the Treasury Board as the minister responsible for the government-wide administration of the Access to Information Act (ATIA). Over 260 federal institutions are subject to the ATIA, including departments, agencies, Crown corporations, and statutory bodies.

General Questions

Q1: What is the difference between a government institution and a government entity?

The Access to Information Act differentiates the proactive publication requirements for “government institutions” and “government entities”.

Government institutions are all institutions subject to the Access to Information Act. Proactive publication requirements for government institutions are:

• Travel and hospitality expenses of senior officials
• Reports tabled in Parliament

Government entities are government institutions that are also listed in Schedules I, I.1, or II of the Financial Administration Act. Proactive publication requirements for government entities are:

• Travel and hospitality expenses of senior officials
• Reports tabled in Parliament
• Briefing packages for new deputy heads
• Titles and tracking numbers of briefing notes
• Binders for Parliamentary Committee appearances
• Grants and contributions over $25,000
• Contracts over $10,000

In addition, government institutions for which the Treasury Board is the employer are subject to the requirement of reclassification of positions.

Further details regarding the publication requirements for government institutions and government entities can be found here.

Q2: Who is the "head of the government institution" for my institution?

Section 3 of the Access to Information Act defines the “head of the government institution” as follows:

head, in respect of a government institution, means

(a) in the case of a department or ministry of state, the member of the Queen’s Privy Council for Canada who presides over the department or ministry, or

(b) in any other case, either the person designated under subsection 3.2(2) to be the head of the institution for the purposes of this Act or, if no such person is designated, the chief executive officer of the institution, whatever their title; (responsable d’institution fédérale)

Institutions are encouraged to consult with their legal counsel if there is any uncertainty about how this definition applies in their organization.

This definition applies to both Part 1 (request-based system) and Part 2 (proactive publication) of the Access to Information Act.

Q3: is the "deputy head or person of an equivalent rank" in my institution?

In most departments there is only one deputy head; it is the top public servant appointed to manage the institution. However, there are some exceptions, such as in the case of the Treasury Board of Canada Secretariat which has four deputy heads.

Institutions are encouraged to consult with their legal counsel to determine who would be subject to the requirements for deputy heads within their institution.

TBS considers that a “deputy head or person of an equivalent rank” would include:

A deputy head within the meaning of section 11(1) of the Financial Administration Act or subsection 2(1) of the Public Service Employment Act; Any officer who, by any Act of Parliament, is or is deemed to be a deputy head or who has, or is deemed to have, the rank of a deputy head; and Any other person appointed pursuant to subsection 127.1(1)(b) of the Public Service Employment Act, other than associate deputy heads or persons of a rank equivalent to associate deputy heads.

Q4: How will compliance with the new proactive publication requirements be monitored?

Within government institutions, heads or their delegates are responsible for monitoring compliance with the requirements of the Access to Information Act. Accordingly, each institution is responsible for implementing the appropriate governance and processes for proactive publication within their organization, including monitoring compliance.

As well, since the requirements and timelines are transparent in the legislation, the public will be able to monitor compliance by institutions.

Q5: Can someone make a complaint to the Information Commissioner about information that is proactively published?

The Information Commissioner does not have an oversight role with respect to the proactive publication requirements in Part 2 of the Access to Information Act (see ATIA section 91(1)).

However, an individual can make an access to information request for records that have been proactively published. A requester can make a complaint to the Information Commissioner respecting records released in response to a request.

Q6: Can I request an extension to proactively publish material as I can for responding to an access to information request?

No. There are no provisions under Part 2 that allow institutions to delay proactive publication beyond the timelines set out in the legislation.

Q7: What if there is information in the documents that are to be proactively published that is subject to an exclusion or exemption under the Access to Information Act?

Proactive publication under Part 2 would not require the release of information that would properly be withheld in a response to an access to information request, such as personal information, or Cabinet confidences. The relevant provisions of the Act are:

With respect to proactive publication for Ministers’ Offices:

Publication not required

80 (1) A minister is not required to cause to be published any of the information, any part of the information, any of the materials or any part of the materials referred to in any of sections 74 to 78 if that information, that part of the information, those materials or that part of those materials were set out in a record and, in dealing with a request for access to that record, a head of a government institution could under Part 1 refuse to disclose that record, in whole or in part, for a reason that is set out in that Part.

Publication not permitted

(2) A minister shall not cause to be published any of the information, any part of the information, any of the materials or any part of the materials referred to in any of sections 74 to 78 if that information, that part of the information, those materials or that part of those materials were set out in a record and, in dealing with a request for access to that record, a head of a government institution would be required under Part 1 to refuse to disclose that record, in whole or in part, for a reason that is set out in that Part or because that Part does not apply to the information or materials in question.

With respect to proactive publication by government institutions:

Publication not required

90 (1) A head of a government institution is not required to cause to be published any of the information, any part of the information, any of the materials or any part of the materials referred to in any of sections 82 to 88 if that information, that part of the information, those materials or that part of those materials were set out in a record and, in dealing with a request for access to that record, he or she could under Part 1 refuse to disclose that record, in whole or in part, for a reason that is set out in that Part.

Publication not permitted

(2) A head of a government institution shall not cause to be published any of the information, any part of the information, any of the materials or any part of the materials referred to in any of sections 82 to 88 if that information, that part of the information, those materials or that part of those materials were set out in a record and, in dealing with a request for access to that record, he or she would be required under Part 1 to refuse to disclose that record, in whole or in part, for a reason that is set out in that Part or because that Part does not apply to the information or materials in question.

Q8: Should information that is being proactively published be redrafted or edited with a view to being more transparent instead of redacting so that sensitive information is no longer included?

Documents should not be redrafted or edited for the purposes of proactive publication under Part 2 of the Access to Information Act. Instead, redactions should be applied as appropriate pursuant to sections 80 and 90 of the Act.

It’s important to keep in mind that materials that are proactively published by institutions subject to Part 1 of the Access to Information Act may be requested under the request-based system, so requesters will be able to compare the version provided through the request-based system and the version that is proactively published.

The Information Commissioner has oversight of the documents provided in response to an access to information request.

Q9: What should institutions do with third-party material (such as newspaper articles or non-government reports) for the purposes of proactive publication?

It is the policy and practice of the Crown to respect the private interests of copyright owners as feasible. Consequently, it is recommended, as a best practice, to avoid online publication of third-party copyright works to the extent possible, either by not including such material in the briefing package, or making use of the exceptions from disclosure as applicable.

Under sections 80 and 90 of the Access to Information Act, Ministers and heads of government institutions are not required to proactively publish any information that would not be released in response to an access to information request under Part 1 of the Access to Information Act. This would include applying the paragraph 68(a) exclusions for published material or material available for purchase by the public, where appropriate.

If an institution does not proactively publish the third-party copyright works that are included in a briefing package based on the section 68 exclusion, the titles and publishers could be provided in the spirit of ensuring transparency when the remaining package is proactively published.

The Canadian Style provides instructions on how to document sources of information that were not prepared by an institution.

However, officials are encouraged to consider – at the time of preparing the briefing material – alternatives to using the work itself or limiting use, such as by conveying only the necessary information in a new or original form. This is particularly so in the case of works that are neither published nor available for purchase, or would otherwise not be subject to an exclusion under ATIA.

If an institution decides to proactively publish the third-party copyright works that were in a package of briefing materials, section 32.1 of the Copyright Act may apply. Section 32.1 of the Copyright Act expressly provides that it “is not an infringement of copyright for any person to disclose, pursuant to the Access to Information Act, a record within the meaning of that Act, or to disclose, pursuant to any like Act of the legislature of a province, like material.”

If third party materials (such as newspaper articles or non-government reports) are proactively published, they should be in compliance with the Open Government Licence.

RELEVANT PROVISIONS – ACCESS TO INFORMATION ACT

Act does not apply to certain materials

68 This Act does not apply to

(a) published material or material available for purchase by the public

Publication not required

80(1) A minister is not required to cause to be published any of the information, any part of the information, any of the materials or any part of the materials referred to in any of sections 74 to 78 if that information, that part of the information, those materials or that part of those materials were set out in a record and, in dealing with a request for access to that record, a head of a government institution could under Part 1 refuse to disclose that record, in whole or in part, for a reason that is set out in that Part.

Publication not required

90(1) A head of a government institution is not required to cause to be published any of the information, any part of the information, any of the materials or any part of the materials referred to in any of sections 82 to 88 if that information, that part of the information, those materials or that part of those materials were set out in a record and, in dealing with a request for access to that record, he or she could under Part 1 refuse to disclose that record, in whole or in part, for a reason that is set out in that Part.

RELEVANT PROVISIONS – COPYRIGHT ACT

No infringement

32.1(1) It is not an infringement of copyright for any person

(a) to disclose, pursuant to the Access to Information Act, a record within the meaning of that Act, or to disclose, pursuant to any like Act of the legislature of a province, like material;

Q10: If a package of briefing materials includes material that has already been published online, do I have to re-code that material when proactively publishing or can I just provide a link to it?

If some information included in a briefing package has been previously posted online, a link to the previously published information can be used for the purpose of proactive publication.                                                                          

If a link is used, then be sure to establish the business processes required to ensure that links within the proactively published package of briefing materials do not break in the event that the content is moved or archived to a different website.

Linking to non-Government of Canada websites must be done in accordance with Canada.ca terms and conditions.

Here are some factors to consider to determine whether providing a link is the appropriate approach include:

• If the material has already been published on a Government of Canada website with an address (URL) that is not expected to be updated (such as departmental content posted on Canada.ca or on an institutional gc.ca domain), an institution could consider using a link, provided that the material is not going to be updated.
• If a PDF version of the information is available on gc.ca, an institution could consider using such link.
• If there is a possibility that the information in the link might be updated in the future (such as organizational charts or biographical information about senior management), institutions should avoid using a link.
• If material is posted on a Government of Canada website that was established for an initiative or campaign with a pre-determined start and end date, linking is not recommended because the link may not work after the end date.

Q11: Are there any best practices institutions could follow in order to streamline their proactive publication processes related to briefing materials?

Within government institutions, heads or their delegates are responsible for monitoring compliance with the requirements of the Access to Information Act. Accordingly, each institution is responsible for implementing the appropriate governance and processes for proactive publication within their organization.

It is important to remember that all proactive publications must be compliant with the Official Languages Act and the Standard on Web Accessibility.

Additionally, proactive publication does not require the release of information that would properly be withheld in response to an access to information request, such as personal information, Cabinet confidences, and solicitor-client privileged information. Institutions should be mindful that materials that are proactively published may still be requested under the request-based system.

As a best practice, in order to streamline proactive publication processes, institutions may wish to have approval authorities in the Office(s) of Primary Interest (those responsible for producing briefing materials) confirm that the briefing materials are bilingual, accessible and pre-reviewed to identify confidential, privileged and personal information that may be subject to valid exceptions to publication at the outset of the process.

Additional guidance and tools, including process map templates, are available in the main Proactive Publication Requirements section of this site.

Publishing Information Online

Where will institutions be required to proactively publish information?

Ministers and government entities must publish the following to open.canada.ca:

• titles and reference numbers of memoranda
• Question Period notes
• travel expenses
• hospitality expenses
• contracts over $10,000
• grants and contributions over $25,000
• reclassification of positions

Ministers and government entities may publish other proactive publication requirements to open.canada.ca as an ‘Open Information’ resource, or to their institutional page along with a metadata record on open.canada.ca. This ensures that all proactive publications are searchable on open.canada.ca. For more information on how to publish data and information to open.canada.ca, please refer to the Open Government Guidebook.

Crown corporations and other government institutions may publish information to their own websites or to open.canada.ca. Wholly-owned subsidiaries publishing to a parent Crown Corporation’s website should publish as clearly identifiable entities.

All publications must meet official language and accessibility standards as per the Government’s Policy on Communications and Federal Identity.

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Travel and Hospitality Expenses

Q1: How can I determine if a senior official or employee in my organization is subject to the proactive publication requirements for travel and hospitality expenses?

Institutions are encouraged to consult with their legal counsel to determine whether or not a senior-level employee in their organization would fall under the Access to Information Act’s definition under Section 81:

senior officer or employee means, in respect of a government institution, any person who exercises the powers or performs the duties and functions of a deputy minister, an associate deputy minister, an assistant deputy minister, a deputy head, an assistant deputy head, a president, a vice-president, a chief executive officer or a member of a board of directors, and any person who holds a position of an equivalent rank. (dirigeant ou employé)

Q2: Do the proactive publication requirements for travel and hospitality expenses apply when someone is acting in a senior position?

Yes, the proactive publishing requirements apply to a person acting for a senior officer or employee as defined in section 81 of the Access to Information Act as they are exercising the powers or performing the duties and functions of that senior official or employee.

For example, if a Director General (DG) who is not classified as a “senior officer or employee”, was required to act for an Assistant Deputy Minister (ADM) who is classified as a “senior officer or employee”, the travel and hospitality expenses incurred by the DG as acting ADM would be required to be proactively published.

Q3: If a Deputy Minister also sits on the board of a Crown corporation, which institution is required to publish the DM's travel and hospitality expenses?

The obligation to proactively publish follows the reimbursement of any travel or hospitality expense incurred by a Minister or deputy head. The institution that processes the reimbursement would be required to proactively publish the information.

Q4: Do all hospitality expenses charged to the cost center budget of senior officers or employees need to be proactively published regardless of whether or not they attended the hospitality activity?

Yes, all hospitality expenses charged to the cost center budget of senior officers or employees must be proactively published, even if they did not attend the hospitality activity.

Q5: Is there any guidance available to government institutions?

Yes. The Guide to the Proactive Publication of Travel and Hospitality Expenses is available to government institutions.

Q6: Are there any changes to the reporting requirement of the annual travel, hospitality and conferences expenditures required under the Directive on Travel, Hospitality, Conference and Event Expenditures?

No. The Access to Information Act does not impact the requirement for the annual reporting of travel, hospitality and conferences expenditures as per section 4.1.2 of the Directive on Travel, Hospitality, Conference and Event Expenditures.

Q7: Will there be a requirement to make receipts available within 5 business days upon request?

Such a requirement is not being introduced at this time, given the complexity of operationalizing this for institutions.

Contracts over $10,000

Q1: What are the reporting requirements regarding ministers' office contracts?

As stated in section 77 of the ATIA, ministers’ offices have 30 days after Q1, 2 and 3 and 60 days after Q4 to report on contracts with a value of over $10,000, a contract amendment when it modifies the contract value to exceed $10,000 and amendments to contracts that increase or decrease the value of the contract by more than $10,000.

Q2: Have there been any changes to the Guidelines on the Proactive Disclosure of Contracts regarding Ministers' Office Contracts?

The Guidelines on the Proactive Disclosure of Contracts have been updated to include specific departmental reporting guidance with regard to the proactive publication of Ministers’ Office Contracts (see Appendix A, section 36).

Grants and Contributions

Q1: Are departments still required to report on grants and contributions under $25,000?

Yes. The ATIA applies to grants and contributions over $25,000 (subsection 87 (1)) as well as grants and contributions that are of $25,000 or less but were amended so that their value is of $25,000 or more (subsection 87 (2)). However, the TBS Guidelines on the Reporting of Grants and Contributions still require that departments report on all transfer payments, regardless of value.

Q2: Does the ATIA introduce any additional reporting requirements for grants and contributions?

Subsection 87 (1) outlines what information needs to be published electronically by departments for each grant or contribution. Furthermore, as per paragraph 87 (1) (f) (any other information that, in accordance with Treasury Board policies, must be published), departments are required to abide by the reporting requirements as specified in the Guidelines on the Reporting of Grants and Contributions Awards.

Ministers' Offices Expenses

Q1: What expenses are required to be proactively published under section 78 of the Access to Information Act?

Section 78 of the ATIA requires the proactive publication of a report of all ministers’ offices expenses that were paid out of the Consolidated Revenue Fund, within 120 days after the end of the fiscal year.

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Reports tables in Parliament

Q1: Which reports tabled in Parliament are required to be proactively published?

Section 84 of the Access to Information Act requires that any report of a government institution respecting its activities that must be tabled in the Senate or House of Commons under an Act of Parliament must be published electronically within 30 days after the day it is tabled.

The head of the institution is responsible for proactively publishing the report related to that institution’s activities even if another institution tabled the report in Parliament on its behalf. An example of this is when a minister tables an annual report on behalf of a Crown corporation. The head of the Crown Corporation is responsible for ensuring the annual report is proactively published to the institutional website or to open.canada.ca.

Question Period Notes

Q1: What Question Period notes are required to be published?

Question Period notes that were prepared by the institution and were in use (that is, were available to the Minister for use in Question Period) on the last sitting day in June and December are required to be proactively published.

All Question Period notes as prepared by the institution would be released as they appeared at the end of each sitting of the House of Commons, within 30 calendar days following the last sitting day in June and December. The publication deadlines would be extended to July 31 if the House is not sitting in June, and January 31 if it is not sitting in December.

The question period notes would be the final notes as prepared by the institution and would be published regardless of whether or not the Minister actually attended the last sitting day. This could include Question Period notes that were prepared in any month of the year, provided they were actually in use (available to the minister) on the last sitting day of the month in question. It is understood that some Question Period notes that were used in February, for example, may no longer be part of the Question Period package in June and therefore, would not be required to be proactively published.

The package of notes should be treated as independent disclosures to be proactively published twice a year, regardless of whether some of the notes (or versions of the notes) were published as part of a previous publication. Each proactive publication should reflect the package of notes in use at the time.

Briefing materials

74 A minister shall cause to be published in electronic form

(c) within 30 days after the last sitting day of the House of Commons in June and December or, respectively, no later than July 31 or January 31 if the House of Commons is not sitting in June or December, the package of question period notes that were prepared by a government institution for the minister and that were in use on the last sitting day of the month in question;

Q2: Are written questions posed in the House of Commons and the Senate required to be proactively published?

There are no provisions in the ATIA that require the proactive publication of written questions posed in the House of Commons and the Senate.

Q3: What is meant by "in use"?

“In use” refers to Question Period notes that were prepared by an institution and were part of the minister’s Question Period package for the last sitting day in June and December.

This could include Question Period notes that were prepared in any month of the year, provided they were in use on the last sitting day of the month in question. It is understood that some Question Period notes that were provided to the minister’s office in February, for example, may no longer be part of the Question Period package in June and therefore, would not be required to be proactively published.

Q4: How do I know which Question Period notes were "in use"?

We recommend that institutions work with their ministers’ offices to establish a business process for identifying which Question Period notes were in use on the last sitting day.

Q5: What if the minister did not attend Question Period on the last sitting day?

The Question Period notes must be published regardless of whether or not the minister actually attended the last sitting day.

Q6: What is the deadline for proactive publication if the House does not sit in June and/or December?

The publication deadline is extended to July 31 if the House is not sitting in June; and January 31 if it is not sitting in December.

Q7: How much time do I have to upload my Question Period notes to the Open Government Portal?

The Act requires the proactive publication of Question Period notes within 30 days after the last sitting day in June and December. Institutions will be able to upload their Question Period notes until midnight on the day before the proactive publication deadline.

Question Period notes that are uploaded to the Portal can be updated or edited at any time before midnight on the 29th day after the last sitting day.

Q8: The Question Period note that was provided to the minister's office contains information that was provided by another institution. Who is responsible for proactively publishing the information?

In situations where one institution provides information or a Question Period note to another institution (for example, a portfolio partner provided input on a Question Period note or a draft Question Period note to a lead department), the lead institution who provided the Question Period note to the minister’s office would be responsible for publishing it.

Q9: What should I do if there is information in a Question Period note that must be withheld because of an exemption or exclusion in the Act?

Information published through proactive publication should mirror what would be released if information were released in response to a request. In other words, if an institution received an access to information request for a Question Period note and would apply redactions because of exemptions or exclusions in the Act, the same redactions should apply when the note is proactively published.

Q10: How do I show that information has been withheld?

If redaction is required (in part or in whole), indicate: *redacted* in place of the withheld material.

Q11: What do I do if I receive an access to information request for a Question Period note before I have a chance to proactively publish it?

The request-based system and the proactive publication provisions of the ATIA operate in tandem, with a common goal of making government information more open and transparent.

Canadians can still make a request for Question Period notes, even though these are scheduled to be proactively published. Institutions must, within legislated deadlines, process access to information requests for Question Period notes, even though the notes will be ultimately proactively published.

Section 26 (Refusal of access if information to be published) does not apply if the publication is pursuant to a requirement in Part 2 of the Act.

Q12: What happens if the last sitting day is a "deemed" sitting day?

The Act requires the proactive publication of the package of Question Period notes that was in use on the last sitting day in June and December (in other words, when the House adjourns). It is understood that the House may have a special or unusual sitting after adjourning, such as sitting for the purpose of royal assent. In such situations, the package of Question Period notes that was in use for the last Question Period before adjournment would be proactively published

Titles and tracking numbers of memoranda

Q1: In sections 74 and 88 of the ATIA, what is considered a "Memorandum"?

“Memorandum” refers to a formal memorandum or briefing note seeking a decision, signature, or providing information to the Minister or deputy head.

Q2: Does the requirement to proactively publish titles and tracking numbers of briefing notes mean I have to adapt titles to protect sensitive information?

Institutions are encouraged to use titles that provide the recipient with sufficient information as to the content of the note. The intent of the proactive publication requirements is to increase the openness of government.

Keep in mind that proactive publication under Part 2 would not require the release of information that would properly be withheld in response to an access to information request, such as personal information, Cabinet confidences, and solicitor-client privileged information.

The relevant provisions of the Act are sections 80 and 90.

Q3: Does the title and tracking number of a briefing note that is prepared for a Minister but that is stopped before reaching their office need to be published?

No. The ATIA requires the proactive publication of titles and tracking numbers of briefing notes received by a Minister or deputy head’s office (see subsections 74(b) and 88(b)). Consequently, a memorandum to a Minister that is prepared but is not received by his or her office (for example, it does not proceed beyond the Deputy Minister’s office) would not need to be proactively published.

The same would apply to a briefing note that is prepared for a DM but does not proceed beyond an ADM’s office.

Package of briefing materials of new Minister or deputy head

Q1: Does the "appointment" correspond to the date of the announcement of the appointment, or when the Minister or deputy head starts in his or her new role?

The appointment corresponds to the date the Minister or deputy head starts in his or her new role.

Sections 74(a) and 88(a) of the ATIA require the proactive publication of briefing materials prepared for the Minister or deputy head, within 120 days after their appointment.

The purpose of these provisions is to make publicly available the briefing materials used to enable the Minister or Deputy Minister to assume their new responsibilities. The date on which they assume those responsibilities is the appointment date.

For example, on March 1st 2018 the Prime Minister announces the appointment of J. Doe as Deputy Minister effective June 15, 2018. In this case, the briefing material prepared for the Deputy Minister would be required to be proactively published within 120 days after June 15, 2018.

Briefing materials

74 A minister shall cause to be published in electronic form

(a) within 120 days after the appointment of the minister, the package of briefing materials that is prepared for the minister by a government institution for the purpose of enabling the minister to assume the powers, duties and functions of his or her office;

Briefing materials

88 The head of a government entity shall cause to be published in electronic form

(a) within 120 days after the appointment of a deputy head or a person to a position of an equivalent rank, the package of briefing materials that is prepared for the deputy head or the person for the purpose of enabling him or her to assume the powers, duties and functions of his or her office;

Q2: What should be proactively published if a minister does not change portfolio when the new Cabinet is appointed?

The Access to Information Act requires, within 120 days after the appointment of the minister, the proactive publication of the package of briefing materials that is prepared for the minister to enable them to assume the powers, duties and functions of their office.

Ministers, once appointed, remain in office until they resign, die, or are dismissed or replaced. So, technically, the proactive publication requirements would not apply to a minister who continues in the same office following an election.

However, we encourage institutions to proactively publish, in the spirit of openness and transparency, the package of briefing material prepared for a minister, even if the minister continues in the same office following an election.

Q3: What is required to be published if the Minister or deputy head requests that material be added to their briefing package after it was provided by the institution?

It is understood that, in the course of briefing a new Minister or deputy head, new materials might be subsequently requested by the Minister or deputy head after they become more familiar with the files. However, this additional material would not be subject to the proactive publication requirement.

Q4: Do transition binders for new Parliamentary Secretaries need to be proactively published?

No. Sections 74(a) and 88(a) of the ATIA introduce requirements for the proactive publication of the package of briefing materials prepared for a new Minister or deputy head. These requirements do not apply to Parliamentary Secretaries.

Briefing materials

74 A minister shall cause to be published in electronic form

(a) within 120 days after the appointment of the minister, the package of briefing materials that is prepared for the minister by a government institution for the purpose of enabling the minister to assume the powers, duties and functions of his or her office;

Briefing materials

88 The head of a government entity shall cause to be published in electronic form

(a) within 120 days after the appointment of a deputy head or a person to a position of an equivalent rank, the package of briefing materials that is prepared for the deputy head or the person for the purpose of enabling him or her to assume the powers, duties and functions of his or her office;

Q5: Should institutions proactively publish transition materials for interim deputy heads?

Subsection 88(a) requires the publication of the package of briefing materials prepared for a deputy head or person of equivalent rank for the purposes of enabling them to assume the functions of their office “within 120 after the appointment of a deputy head or a person to a position of an equivalent rank”.  (emphasis added)

Consequently, the answer as to whether or not the provision applies to someone who is in the position on an interim basis depends upon whether or not there is a Governor in Council appointment of a deputy head on an interim basis. If there is a Governor in Council appointment, then the proactive publication requirement applies. Here is an example of an interim appointment.

However, in cases where there is an ADM acting as deputy minister but there is no Governor in Council appointment, the proactive publication requirements would not be triggered.

Q6: In sections 74 and 88, what is considered "the package of briefing materials"?

Sections 74(a) and 88(a) of the ATIA require, within 120 days after the appointment, the proactive publication of the package of briefing materials prepared by an institution for the Minister or deputy head for the purpose of enabling them to assume the powers, duties and functions of their office.

In anticipation of the appointment of a minister or deputy head, it is routine for the department to prepare an initial foundational package of briefing materials to assist them in assuming their powers, duties and functions. The intention of the proactive publication requirement is to increase the openness of government by making this initial package of briefing materials publicly available by publishing it online.

While this initial package is typically shared on the date of appointment, it is possible it could be provided over the course of several days.

Only the initial package that was prepared by an institution to enable the Minister or deputy head to assume their new responsibilities would be subject to proactive publication. It is understood that, in the course of briefing a new Minister or deputy head, supplemental materials might be subsequently requested by the Minister or deputy head after they become more familiar with the files. This secondary briefing would not be subject to the proactive publication requirement. As well, the foundational briefing may be followed by more detailed file-specific briefings that would not be subject to the proactive publication requirement.

Remember that proactive publication does not require the release of information that would properly be withheld in response to an access to information request, such as personal information, Cabinet confidences, and solicitor-client privileged information. Institutions should be mindful that materials that are proactively published may still be requested under the request-based system.

Package of briefing materials for Parliamentary Committee appearances of Ministers and deputy heads

Q1: Do we need to publish Committee binders when an Assistant Deputy Minister attends instead of a Deputy Minister?

It will depend on the circumstances: if a deputy head, or person in a position of equivalent rank, is invited to appear and plans to appear and materials are prepared for them, but for some reason is unable to appear and an ADM appears in their place, then the materials would need to be proactively published because it was prepared for the appearance of a deputy head or a person in a position of equivalent rank.

In contrast, if an ADM is invited to appear before a committee of Parliament in their own right, the requirement does not apply.

Briefing materials

88 The head of a government entity shall cause to be published in electronic form

(c) within 120 days after an appearance before a committee of Parliament, the package of briefing materials that is prepared for the deputy head or the person for the purpose of that appearance.

Q2: Would briefing material prepared for an appearance before the Senate need to be proactively published?

The section 88(c) requirement applies to appearances before a committee of either of the two Houses of Parliament: the House of Commons or the Senate.

Reclassification of positions

Q1: Are both upward and downward reclassification of positions part of the new proactive publication requirements?

Section 85 of the Access to Information Act requires institutions for which Treasury Board is the employer to publish information about all reclassification of positions within 30 calendar days after the end of the quarter in which there is a reclassification of an occupied position.

Reclassification of positions

85 Within 30 days after the end of the quarter in which there is a reclassification of an occupied position in a government institution that is a department named in Schedule I to the Financial Administration Act or a portion of the core public administration named in Schedule IV to that Act, the head of the government institution shall cause to be published in electronic form the following information:

(a) the organizational unit in question;

(b) the number and title of the reclassified position;

(c) the previous classification and the new classification;

(d) the purpose of the reclassification;

(e) the effective date of the reclassification; and

(f) any other information that, in accordance with Treasury Board policies, must be published.

This publication requirement is consistent with current Treasury Board policies and guidelines.