Access to Information and Privacy - Crown Corporations/FAQs

 Proactive publication by Crown Corporations: Frequently Asked Questions

Bill C-58

Proactive Publication

Travel and Hospitality

Reports tabled in Parliament

FAQs

Events

General

What is the current status of Bill C-58, an Act to amend the Access to Information Act?

The status of the Bill is available on the Parliamentary website, and the latest version of the Bill can be found Bill C-58 here.

What changes are proposed in Bill C-58?

Bill C-58 creates a new Part 2 of the Access to Information Act that legislates proactive publication and expands coverage of the Act to new institutions not previously covered. The Bill also makes significant changes to the request-based system, including:

• Providing the Information Commissioner with order-making power
• Allowing government institutions to seek the Information Commissioner’s approval to decline to act on requests that are vexatious or made in bad faith
• Facilitating the sharing of access to information and personal information request processing services between institutions within the same Ministerial portfolio

A legislative summary can be found on the Library of Parliament’s website.

When are institutions required to proactively publish information?

For government institutions, proactive publication obligations will come into force upon Royal Assent of Bill C-58. Therefore, institutions are encouraged to prepare now to meet the requirements of Bill C-58.

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 Bill C-58 are:

Section 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.

(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.

Crown Corporations and Bill C-58: Proactive Publication

Will proactive publication requirements of Bill C-58 apply to all Crown corporations?

Bill C-58 proactive publication requirements will apply to Crown corporations and their wholly-owned subsidiaries by virtue of the definition of “government institutions.” Section 3 of the Access to Information Act defines “government institution” as including: “any parent Crown corporation, and any wholly-owned subsidiary of such a corporation, within the meaning of s. 83 of the Financial Administration Act”. Section 83 of the Financial Administration Act defines a Crown corporation as a parent Crown corporation or a wholly-owned subsidiary.

Under Bill C-58, are Crown corporations considered a government institution, a government entity, or both?

The Access to Information Act includes Crown corporations and their wholly-owned subsidiaries within the definition of “government institution”. Accordingly, Crown corporations are subject to the Bill C-58 Part 2 requirements for “government institutions” set out in sections 82, 83 and 84 of Bill C-58.

“Government entities” is defined in section 81 of Bill C-58. The definition does not include Crown corporations or their wholly-owned subsidiaries. Government entities are subject to a wider range of proactive publication obligations such as reclassification of positions; contracts over $10,000; grants and contributions over $25,000; and briefing materials. These requirements do not apply to Crown corporations or their wholly-owned subsidiaries.

What sections of Bill C-58 are particularly relevant for Crown corporations?

Bill C-58 would legislate three proactive publication obligations for Crown corporations and their wholly-owned subsidiaries. These are similar to the existing TBS proactive disclosure requirements that many Crown corporations already voluntarily observe.

Crown corporations and their wholly-owned subsidiaries would be required to proactively publish:

• travel expenses of senior officers or employees within 30 days after the end of the month in which expenses are reimbursed (section 82)
• hospitality expenses of senior officers or employees within 30 days after the end of the month in which expenses are reimbursed (section 83)
• reports tabled in Parliament for example, corporate plans and budgets summaries and annual reports (section 84)

Proactive publication of travel and hospitality expenses will apply to senior officers or employees, as defined in section 81 of Bill C-58.

Note that Bill C-58 would not require the release of information under Part 2 that would be withheld in a response to an access to information request, such as personal information (section 90).

What positions within Crown corporations must proactively publish travel and hospitality expenses?

Crown corporations will be required to proactively publish the information related to travel and hospitality expenses as defined by the legislation for each “senior officer or employee”. Section 81 defines “senior officer or employee” as “any person who exercises the powers or performs the duties and functions of 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”.

As this definition is legislated, there is no flexibility in terms of the classes of officers/employees to whom it applies.

• For Crown corporations, the “vice-president” equivalent would be established by virtue of accountability and reporting relationships and includes executives reporting directly to the President, regardless of title.
• All “members of a board of directors” are also covered, regardless of full or part-time status or rank on the board (that is, both members and chairs are required to meet the obligations).

Where must Crown corporations publish their information?

Bill C-58 provides the President of the Treasury Board with the authority to specify the form of the proactive publication.

To allow time to adapt their business practices to publication on open.canada.ca, for the present, Crown corporations can continue to publish travel and hospitality expenses to their institutional websites, with the option to publish to open.canada.ca. Wholly-owned subsidiaries could publish information through their parent organization.

Crown corporations choosing to post to open.canada.ca do not need to duplicate the posting of the information on their websites. For questions related to open.canada.ca, please contact the mailto:open-ouvert@tbs-sct.gc.ca.

Implementation

Does TBS have any tools that institutions can use to guide this transition process?

This site provides guidance and tools such as process maps that institutions can use to assist with implementation in their respective organizations. We will continue to add additional tools and information as they become available. With requirements for government institutions coming into force upon Royal Assent of Bill C-58, institutions are encouraged to begin looking at their internal processes to identify areas where adjustments might be needed to deliver on these new obligations and to also consider putting practices into effect before the law comes into force.

What governance is required within my organization to support proactive publication?

Each institution will need to determine the appropriate governance and processes to support publication within their organization.

Will Bill C-58 change what we are already proactively publishing?

Proactive publication requirements in Bill C-58 for Crown corporations build on existing practices, with some changes to the timing for publication. Institutions are encouraged to compare existing proactive processes against the requirements in Bill C-58.

How can I determine if a senior official or employee in my organization is subject to the new proactive publication requirements?

Institutions are encouraged to consult with their legal counsel to determine whether or not a senior-level employee in their organization would fall under Bill C-58’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)

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)

Once Bill C-58 comes into force, this definition will apply to both Part 1 (request-based system) and Part 2 (proactive publication) of the Access to Information Act.

If Royal Assent of Bill C-58 falls during the middle of the month, do I need to proactively publish documents from the entire month or just the period following Royal Assent?

The transition provisions of Bill C-58, set out below, provide that the proactive publication requirements apply to information or materials that were prepared on or after the date of coming into force of the requirements. The requirements will come into force on Royal Assent of the bill.

Non-application of Part 2

46 A provision of Part 2 of the Access to Information Act that requires the publication of any information or any materials does not apply to (a) any expenses or expenditures that were incurred before the coming into force of that provision;

(b) any contract, agreement or arrangement that was entered into before that date;

(c) any letter that, before that date, established the mandate of a minister;

(d) any briefing materials, memoranda or question period notes that were prepared before that date;

(e) any report that was tabled in the Senate or the House of Commons before that date; or

(f) any occupied position in a government institution that was reclassified before that date.

Where to post information

Where will Crown corporations be required to proactively publish information?

Crown corporations and wholly-owned subsidiaries can continue to publish items to their institutional websites, with the option to publish to open.canada.ca. If publishing to open.canada.ca using standardized templates, wholly-owned subsidiaries must publish through the parent organization.

What information can be posted to the Open Government portal?

Crown corporations can publish any standardized information (Travel and Hospitality) to the Open Government portal using standardized templates. Should Crown corporations want to publish non-standardized publications to the Open Government portal (Reports Tabled in Parliament), they will be required to create a metadata record on open.canada.ca that will link back to the publication on their page. This same process applies to all government departments that wish to publish non-standardized information to the Open Government portal. Creating a metadata record on open.canada.ca ensures that all publications are centralized and searchable in one place.

How do I post to the Open Government Portal?

Information about how to post to the portal is available here.

Will information that has already been released in the public domain need to be republished under this legislation?

The transition provisions of Bill C-58 provide that the proactive publication requirements apply to information or materials that were prepared on or after the date of coming into force of the requirements. The requirements will come into force on Royal Assent of the bill.

What is the retention schedule for proactively published information?

Guidance on retention schedules will be posted as it becomes available.

Travel and hospitality expenses

Where can I find the requirement to make receipts available within 5 business days upon request?

This is not a statutory requirement but will be required through policy. This policy requirement is currently in development.

Reports tabled in Parliament

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

Section 84 in Bill C-58 would require 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 be published electronically within 30 days after the day it is tabled.