Access to Information and Privacy - Crown Corporations/FAQs

Proactive Publication: Frequently Asked Questions

Overview

Travel and Hospitality Expenses

Reclassification of Positions

Reports tabled in Parliament

FAQs

General

Q1: What do Crown corporations need to proactively publish?

Crown corporations and wholly-owned subsidiaries must publish the following: Travel expenses Hospitality expenses Reports tabled in Parliament In addition, Crown corporations and wholly-owned subsidiaries listed in Schedule IV of the Financial Administration Act, including the Canadian Dairy Commission, are subject to the requirement of proactive publication of information about reclassification of positions. Crown corporations 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 institutions. It’s important to keep in mind that materials that are proactively published by institutions that are 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. All publications must meet official language and accessibility standards as per the Government’s Policy on Communications and Federal Identity.

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: 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 clearly outlined in the legislation, the public will be able to monitor compliance by institutions.

Q4: 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.

Q5: 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.

Q6: 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: 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.

Q7: 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 section 90 of the Act. It’s important to keep in mind that materials that are proactively published by institutions that are 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 records provided in response to an access to information request.

Q8: 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 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;

Q9: 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.

Publishing Information Online

Q1: Where must Crown corporations proactively publish information?
As set out in the Directive on Proactive Publication under the Access to Information Act, information that is to be proactively published under Part 2 of the Access to Information Act must be published on the Treasury Board of Canada Secretariat’s Open Government Portal - open.canada.ca.

Q2: What information can be posted to the Open Government Portal (open.canada.ca)?

With respect to publishing to the Open Government Portal, there are templates in place for many proactive publication requirements (for example, travel expenses, hospitality expenses, and reclassification of positions). If you are publishing information to open.canada.ca, it does not need to be published on your institutional page, but a link can be provided on your page that redirects users to the publications on open.canada.ca. For proactive publications that do not have a template, such as reports tabled in Parliament, Crown corporations can publish to open.canada.ca as an ‘Open Information’ resource; or publish to their institutional page and create a metadata record on open.canada.ca. This ensures that all proactively published information is searchable on open.canada.ca. Publications must meet official language and accessibility standards as per the Government’s Policy on Communications and Federal Identity. For more information on how to publish data and information to open.canada.ca open.canada.ca, please refer to the Open Government Guidebook. Guidance on specific procedures to publish proactive publications is available on GCWiki.

Q3: How do I publish to the Open Government Portal?
Information about how to publish to the portal is available here.

Q4: What is the format of publication to open.canada.ca for information that does not have a template available?
Resources can be posted in any format, as long as they meet the Standard on Web Accessibility (HTML, PDF-UA, .txt, ePub). For information that is proactively published using the templates available on open.canada.ca, accessibility standards are already built in.

Q5: Is there guidance on accessible formats?

All online government content must meet official language and accessibility standards. As set out in the Standard on Web Accessibility, all government web pages must meet all five Web Content Accessibility Guidelines (WCAG) 2.0 conformance requirements. In particular, section 6.1.1 states that an accessible document needs to be a file type where “Sufficient Techniques specific to each technology (that is relied upon) are used where applicable”. Since WCAG only has Technology Specific Techniques for .PDF, Plain Text, and .HTML, then an accessible document needs to be in one of those file types, and follow the technology specific techniques. For open information resources there needs to be at least one version of the document that is compliant with the Standard on Web Accessibility, but other non-accessible versions can also be added. For example, it would be acceptable for Crown corporations to publish an accessible .pdf of a document and also add a non-accessible Microsoft Word version.

Q6: When proactively publishing to the Open Government Portal, is Chief Information Officer (CIO) approval of metadata elements required?

Yes. Approval from your Chief Information Officer (CIO), or delegate, is required before publishing your briefing material metadata on open.canada.ca. To support institutions and CIOs in managing the risks related to the release of data and information assets, TBS has developed a ‘Open Government Portal Publication Checklist’ that consolidates common release exceptions. It is the responsibility of CIOs to ensure that an answer of ‘True’ can be given for all criteria before any series of data and information resources are published and thereby released under the Open Government Licence.

Q7: If an institution has its own approval processes, is CIO approval required when proactively publishing to the Open Government Portal?

It depends. CIO approval is required when publishing information to open.canada.ca for which there is no template available as “Open Information” such as a report tabled in Parliament. However, CIO approval is not required when publishing information to open.canada.ca for which there is a template available such as for travel expenses, hospitality expenses, and reclassification of positions. For more information on CIO approvals, please refer to our Open Government Guidebook.

Q8: Does proactively published information have to be posted in both official languages?
All proactively published information must meet official language requirements as per the Government’s Policy on Communications and Federal Identity.

Q9: What is the retention schedule for proactively published information?
TBS is currently working with Library and Archives Canada to determine retention and disposition periods for proactively published information.

Q10: How can my institution gain access to the Open Government Registry?
If your institution does not have access to the Open Government Registry please contact the Open Government Portal team at open-ouvert@tbs-sct.gc.ca. They will be happy to facilitate access to the Open Government Registry for your institution.

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 publication 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 senior officer or employee. 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 Crown corporations?
Yes. The Guide to the Proactive Publication of Travel and Hospitality Expenses is available to Crown Corporations.

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 and Crown corporations.

Reports tabled 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.

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