Co-authored by Gianrico DePasquale and Roseanna Dat.

In Part 1, we discussed access to information requests in Canada and in Part 2, we discussed freedom of information requests in the United States.

As a follow up to Part 1, we report that the Government of Canada is in the process of amending the Access to Information Act[1] and is considering potential reform which may have an impact on businesses. In its Review of the Access to Information Act, the Standing Committee on Access to Information, Privacy and Ethics recommended, among other things, that the Act should apply to institutions that are publicly funded by the Government of Canada.[2] There are three potential options suggested to determine whether an institution would be subject to the Act under the proposed reform.

Proposed Reform

The Information Commissioner of Canada (Commissioner) has proposed the following three options to determine whether an institution that is funded by the Government of Canada should be subject to the Act under the proposed reform:

  • if the institution receives a loan, grant or contribution of $5 million or more;
  • if the source of 50% of the institution’s funding originates (directly or indirectly) from the Government of Canada, and
  • if the institution’s income from the federal government reaches a certain percentage or an absolute threshold higher than $5 million of public funding.

According to the Commissioner, the criteria in option A is proposed to include expenditures, grants and contributions equal to or in excess of $5 million which are voted on by Parliament as separate line items in the Federal budget.[3] The criteria in option B is proposed as it is the method used in both Denmark and Serbia. The criteria in option C is proposed as it is a middle ground or saving grace between options A and B.[4]

Impact of Potential Reform on Businesses

The potential reform may require Canadian public or private businesses, that receive or are planning to receive government funding, to make publicly available information not subject to one of the Act’s exemptions or privilege. The extent to which businesses would be compelled to cooperate with the potential reform is not known.

If captured under the potential reform, businesses may be required to provide records to the Federal Court which they have previously refused to disclose. Pursuant to section 41 of the Act as-is, any person who has been refused access to a record may appeal to the Federal Court. Pursuant to section 46, the Federal Court may examine any record that is under the control of an institution subject to the Act unless limited by other legislation or privilege. Although, section 47 requires the Federal Court to take precautions against disclosing the content or existence of shared records, once records are shared, the Federal Court is entitled to disclose any information relating to the commission of an offence by a director, officer or employee to the appropriate authority.

Another impact of the potential reform on businesses will be requirements for employees of businesses subject to the Act to deal with access to information requests. Typically, government institutions employ specify individuals to receive and process access to information requests as section 67.1 imposes sanctions on any person who destroys, falsifies, or conceals records and any person who directs, proposes, counsels or causes a person to do so. If convicted, the penalty is up to two years imprisonment and/or a fine of up to $10,000. Employees of the publicly funded businesses would become subject to these sanctions.

The author would like to thank Gianrico DePasquale and Roseanna Dat, students-at-law enrolled under the Law Practice Program of the Law Society of Upper Canada under placement with Fasken Martineau, for their research and contributions to this post.