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General
2) 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.
3) 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. For example, institutions can establish business processes and begin to publish briefing note titles and tracking numbers in advance of coming into force. The proactive publication schedule and list of requirements can be found on GCpedia.
4) What is the difference between a government institution and a government entity?
Bill C-58 differentiates the proactive publication requirements for “government institutions” and “government entities”.
Government institutions are all institutions subject to the Access to Information Act.
Government entities are government departments, agencies and other bodies subject to the ATIA and listed in Schedules I, I.1, or II of the Financial Administration Act.
In addition, government institutions for which the Treasury Board is the employer are subject to the requirement of reclassification of positions.
Publication requirements for government institutions and government entities can be found on GCpedia.
5) 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:
With respect to proactive publication for Ministers’ Office: 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.
Implementation 6) Does TBS have any tools that institutions can use to guide this transition process?
This GCpedia 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 over the coming weeks. In addition, TBS will offer workshops on specific issues. 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.
7) 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. TBS has made available on GCpedia guidance and tools such as process maps that institutions can use and adapt to assist with implementation in their respective organizations.
8) Will Bill C-58 change what we are already proactively publishing?
While some proactive publication requirements in Bill C-58 build on existing policy requirements, some of the timing for publication has changed. Other requirements will be new to most institutions.
Institutions are encouraged to compare existing proactive processes against the requirements in Bill C-58. The proactive publication requirements for government institutions are listed here.
9) 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)
10) 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.
11) Do we need delegation authorities for the new Part 2 requirements for the head of the government institution?
There is no need for a delegation in relation to Part 2. The intention of Bill C-58, however, is that there would be consistency between what information is disclosed pursuant to Parts 1 and 2.
12) 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. As an example, for briefing note titles, if Royal Assent were to occur on June 15th, within 30 days after the end of June, an institution will be required to publish titles and tracking numbers of briefing notes that were received by a minister’s office or Deputy Minister’s office between June 15 and the end of June. However, it is important to note that travel and hospitality expenses, contracts, grants and contributions and position reclassification are currently subject to policy requirements for proactive publication. These policy requirements will apply to expenses incurred, contracts or agreements entered into, and position reclassifications that pre-date the coming-into-force of Bill C-58. 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 13) Where will institutions be required to proactively publish information? TBS is currently developing guidance on which of the proactive publication obligations will be mandatory to publish to the Open Government portal. However, functionality to publish to the portal will exist for all publication types, and institutions are encouraged to publish there. Where it is not mandatory, institutions may publish to their institutional page. All publications must meet Official Languages and accessibility standards. We will post further guidance on this site in the coming weeks.
14) What information can be posted to the Open Government portal? With respect to publishing to the Open Government Portal, there are standardized templates in place for many existing proactive disclosure requirements (e.g., contracts, travel and hospitality). TBS will develop a standardized template for Titles and Tracking Numbers of briefing notes to facilitate publication to the Open Government Portal and will also provide training and guidance to support organizations to publish to the Open Government Portal more generally. For proactive publications that are not in standard formats, such as reports tabled in Parliament, Transition binders, Question Period binders, and binders for Parliamentary Committee appearances, institutions may post on departmental websites or on the Open Government Portal. Institutions are encouraged to publish to the Open Government Portal to make the information easily accessible to Canadians. Publications must meet Official Language and Accessibility standards as per the Government’s Policy on Communications and Federal Identity. TBS will also provide tools and guidance to support institutions in meeting the accessibility requirements in multiple file formats (HTML, PDF, EPUB3, ODF).
15) Does proactive publication 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.
16) Will information that has already been released in the public domain need to be republished under this legislation? We do not anticipate that previously released information will need to be republished. Once Bill C-58 comes into force, proactive publication must be in accordance with the requirements of the bill. Prior to that, certain material may be published according to existing policy requirements that may vary somewhat from Bill C-58’s provisions.
17) What is the retention schedule for proactively published information?
Guidance on retention schedules will be posted in the coming weeks.
Travel and hospitality expenses 18) 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 19) 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 must be published electronically within 30 days after the day it is tabled. Reports tabled in Parliament 84 Within 30 days after the day on which it is tabled, the head of a government institution shall cause to be published in electronic form any report of the government institution respecting its activities that, under an Act of Parliament, must be tabled in the Senate or the House of Commons.