In 1983, this country was one of the first nations to adopt an Access to Information Act (ATIA). The ATIA is not a freedom of information law (FOI) but an access to information law. The access regime chosen created an individual’s right to a procedural request to information.
The ATIA sets out clear and defined procedures which allow Canadians access to information held by the central government and, amended in 2006, to include crown corporations.
During its three decade history the ATIA as not been the target of any major reform by the legislator, aside the 2006 minor tweaks, the ATIA was molded and its procedures were defined by jurisprudence and policy instruments set forth by Treasury Board Secretariat (TBS).
Paragraph 70(1) (c) of the Act requires TBS to develop directives and guidelines that pertain to the operation of the Act and the Access to Information Regulations. Directives and guidelines are then circulated to government institutions as well as crown corporations.
Policy instruments are comprised of two directives that spell out mandatory requirements.
- Policy on Access to Information, establishes specific obligations on heads of institutions or their delegates;
- Directive on the Administration of the Access to Information Act, institutes practices and procedures for processing access to information requests.
The processing of an Access to Information request and the end product resulting thereof as evolved during the thirty years by the influence of jurisprudence forcing changes onto the TBS policy instruments. Although the legislator as not made any efforts to revamp the ATIA, it remains that the inner workings of the Act have considerably evolved by regulations and directives.
As an example; two court decisions have contributed to change significantly the processing of request more specifically regarding Cabinet confidences, the Babcock and Ethyl decisions.
Before Babcock, a certificate was issued to protect the information from disclosure. Babcock introduced “Public interest balancing disclosure”.
In Ethyl, the court ruled that a review of the documents was necessary to determine whether there exists, within or appended to records, a body of words falling within the purview of s.69, that can be reasonably severed from the documents pursuant to s. 25 ATIA and in the affirmative, that such information be severed and released to the requester subject to any exemption under the ATIA.
Another ruling which changed greatly the processing of a request was the recent Supreme Court decision in Merck Frost v. Health Canada concerning s.20 of the ATIA. For the first time in the ATIA’s history the Supreme Court tackled an exemption of the Act. This decision prompts a thorough review of the records for the consideration of disclosure of third party information under the Act.
Although the Access to Information Act was not significantly amended or updated, since 1983, the guidelines and directives emanating from TBS and push from the Courts have greatly changed the interpretation and the application of exemptions and exclusions. The general administration of the Act has substantially evolved.