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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

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.

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.

Who 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.

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.

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.

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.

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.

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.

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;

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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

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Contracts over $10,000

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Grants and Contributions

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Ministers' Offices Expenses

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Reports tables in Parliament

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Question Period Notes

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Titles and tracking numbers of memoranda

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Package of briefing materials of new Minister or deputy head

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

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Reclassification of positions

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