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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.

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