Implementation Report No. 74 - Ministerial Records and the Access to Information Act

NO.:	74
DATE:	September 8, 2000
TO:	Access to Information and Privacy Coordinators
SUBJECT:	Ministerial Records and the Access to Information Act

The purpose of this Implementation Report is to remind you of the definition and status of Ministerial records and of policy advice related to this issue.

"Ministerial record" is defined in section 2 of the National Archives Act as "a record of a member of the Queen's Privy Council for Canada who holds the office of a minister and that pertains to that office, other than a record that is of a personal or political nature or that is under the control of a government institution."

By virtue of the fact that Ministerial records are not "under the control of a government institution", it is important to note that they would not be subject to the Access to Information Act. Procedures should be in place to ensure that Ministerial records are properly segregated from institutional records systems. This is generally accomplished by creating and maintaining a separate series of Ministerial records files.

The following are policy references and guidelines pertaining to Ministerial records:

• Access to Information Policy (Treasury Board): Note references in the section entitled, "Definition of record". It also includes the concept of "under the control of".
• Management of Government Information Holdings Policy (Treasury Board): Note the section on "Ministers' offices".
• Implementation Report No. 49 (Treasury Board Secretariat): "Correspondence from one Minister to another".
• Guidelines for Managing Recorded Information in a Minister's Office (National Archives).
• Administrative Practices: Guidelines for Ministers' Offices (Treasury Board): Note sections on the "Access to Information and Privacy Acts" and "Information management".
• Access to Information Act: Common Types of Ministerial Records (Treasury Board Secretariat): The chart (attached) lists various types of Ministerial records and their status under the Access to Information Act. It represents guidelines only and interpretation may be required on a case-by-case basis.

Should you require further advice on this matter or should you receive a request specifically for Ministerial records, please contact your portfolio officer at the Treasury Board Secretariat.

Jaime W. Pitfield
Director
Information and Security Policy Division
Government Operations Sector

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ACCESS TO INFORMATION ACT Common Types of Ministerial Records
			ATI Act
Type of Record	Responsibility	Cabinet Confidences	Applies	Exempt
Cabinet Memos, agenda, records of deliberation and decision (less than 20 years)	PCO	Yes, only Prime Minister can recommend release to GIC	No	N/A
Cabinet Memos, agenda, records of deliberation and decision (more than 20 years)	PCO	No	Yes	Accessible, but all or part may be exempted under specific provision of the Act if it applies
Discussion Papers	Originating departments	Yes, unless decision made public or 4 years elapsed	Yes, if decision made public or 4 years elapsed	Accessible, but all or part may be exempted under specific provision of the Act if it applies
Prime Minister to Ministers - Respecting ministerial mandates (less than 20 years)	Prime Minister	Yes	No	N/A
- Same (more than 20 years)	Prime Minister	No	Yes	Accessible, but all or part may be exempted under specific provision of the Act if it applies
- Political Matters	Prime Minister	No	No	N/A
- Departmental programs and operations where no Cabinet Confidence involved	Department	No	Yes	Accessible, but all or part may be exempted under specific provision of the Act if it applies
Minister to Minister Correspondence - Government decisions or policy (less 20 years)	Originating Ministers	Yes, can only be released by Order in Council	No	N/A
- Government decisions or policy (more than 20 years)	Originating Minister	No	Yes	Accessible, but all or part may be exempted under specific provision of the Act if it applies
- Political party matters	Minister	No	No, excluded as part of departmental records	N/A
- Departmental programs and operations where no Cabinet Confidence involved	Department, both departments may have interest in the case	No	Yes	Accessible, but all or part may be exempted under specific provision of the Act if it applies
Minister from/to Public - Constituent, M.P. or interest group on constituency or political matters	Minister, because does not concern departmental business	No	No, excluded as not part of departmental records	N/A
- Individual expressing personal views or opinions about departmental matters: including correspondence marked "Confidential"	Department	No	Yes	If requested by anyone other than the individual concerned. Information must be exempted, along with reply, as personal information. May be released if individual consents
- Representation from interested group/ institution/corporation on matters within Minister's portfolio (departmental programs and operations)	Department	No	Yes	Accessible, but all or part may be exempted under specific provision of the Act if it applies
- Correspondence with MP regarding assistance to an individual in resolving a problem involving department	Department	No	Yes	If requested by anyone other than the individual concerned. Information must be exempted, along with reply, as personal information. May be released if individual consents
Department to Minister - Draft Memo to Cabinet	Department	Yes	No, unless than 20 years old (See Cabinet Memos)	See Cabinet Memos more than 20 years old
- Discussion Paper	Originating department	Yes, unless decision made public or 4 years elapsed	Yes, if decision made public or 4 years elapsed	Accessible, but all or part may be exempted under specific provision of the Act if it applies
Briefing Notes Making of government decision or policy	Department	Yes	No	N/A
Other matters not involving Cabinet Confidences	Department	No	Yes	Accessible, but all or part may be exempted under specific provision of the Act if it applies
Minister to Department - Information regarding decisions and deliberations of Cabinet	Department	Yes	No	N/A
- Direction on departmental matters	Department	No	Yes	Accessible, unless all or part may be exempted under specific provision of the Act. Normally does not qualify for advice, consultations or deliberations exemption
Advice and Consultations - Advice or recommendations developed by or for a Minister on departmental matters	Department	No	Yes	All or part may be exempted under advice exemption in Act. This exemption does not apply to factual information or to information relating to the rights of an individual. No explicit protection is given from a Deputy to the Minister. Exemption at Minister's discretion
- Consultations or deliberations involving officials, Minister and/or staff	Department	No, unless the discussions related to Cabinet Confidences	Yes	Same as above
- Negotiating positions or plans of government	Department	No	Yes	Same as above
- Account of or statement of reasons for a decision make in exercise of discretionary power or an adjudicative function affecting rights of an individual	Department	Many such cases are handled by Treasury Board or by Order in Council. These are Cabinet Confidences	Yes, if not TB decision or Order in Council	If not a Confidence, accessible. Not included in advice exemption
Consultant's Material - Material prepared under contract to the department	Department	No	Yes	Accessible, except in some very limited circumstances when an exemption under the Act may apply
Public Opinion Polls - Material prepared under contract to department	Department	No	Yes	Accessible, but all or part may be exempted under exceptional circumstances where an exemption may apply
- Records retained by pollster	Department	No	Yes	Same as above