These Guidelines assist in the interpretation of the Access to Information Act and the Access Regulations and provide the comprehensive framework under which government institutions administer this legislation. They describe legal and policy requirements and more detailed guidance and best practices for day-to-day administration of the Access to Information process. When Federal Court decisions have a bearing on how the Act should be administered, they are indicated in the text.
These Guidelines are intended primarily for use by Public Service employees administering the legislation. This should not, however, be viewed as a handbook for finding ways to refuse access to records. The Guidelines take a balanced approach in explaining how the legislation permits both the release and the denial of access to information which has been requested.
The Act clearly places the onus on government institutions to justify why particular records should not be disclosed. Only information which qualifies either as a Confidence of the Queen's Privy Council for Canada or falls within the limited and specific exemption criteria of the Act may be refused. While information may technically be in an exemptible category, it is government policy to release it when there is no need to withhold it. Canadians require access to a wide range of information about government. There is a compelling public interest in openness, to ensure that the government is fully accountable for its goals and that its performance can be measured against these goals. This renders the government more accountable to the electorate and facilitates informed public participation in the formulation of public policy. It ensures fairness in government decision-making and permits the airing and reconciliation of divergent views across the country. The Guidelines provide a basis for balancing this principle of openness with the need to protect particular state and private interests expressed in the exclusion and exemption provisions of the legislation.
The Access to Information Act is an act of general application which was passed in June 1982 and proclaimed in force on July 1, 1983. All institutions listed in Schedule I to the Act are subject to its provisions. It prevails over other statutes, unless there is a statutory provision to the contrary. (An example of the latter are the overriding provisions of the Workplace Hazardous Materials Information System (WHMIS) Act). The Access to Information Act and Regulations are set out in Part 4.
Subsection 2(1) of the Access to Information Act creates an enforceable right of access to records under the control of a government institution in accordance with the principles that
In administering this legislation it is very important to bear in mind these governing principles. In interpreting the Act, the Federal Court has stressed these principles, most notably in Maislin Industries Ltd. v. The Minister of Industry, Trade and Commerce et al [1984] 1 F.C. 939 at 942-943 where Jerome A.C.J. stated that "since the basic principle of these statutes is to codify the right of public access to Government information ... such public access ought not be frustrated by the courts except upon the clearest grounds so that doubt ought to be resolved in favour of disclosure".
Subsection 2(2) of the Access to Information Act states that the Act is intended to complement and not replace existing procedures for obtaining government information and is not to limit in any way the type of information that is normally available to the general public.
Article 4.1 of the "Government Communications Policy", Communications Volume, Information and Administrative Management, Treasury Board Manual explicitly states that institutions should respond to public enquiries outside the Access to Information Act whenever it is possible to do so (i.e. no exemptions apply or only a cursory review of the records is required).
Section 68 of the Access to Information Act reinforces this statement by excluding published material, material available for purchase and other reference materials from the formal right of access on the expectation that this type of information will be made available by other means.
In this context "published" connotes a wide and general distribution of information so that it is made generally accessible or available to the public at large and not only to a special restricted segment of the public.
In order to facilitate the public in using or obtaining this material, institutions should ensure that adequate means of reference, such as catalogues and indexes of library, museum and non-governmental archival materials, and detailed listings of publications are available to the public as well as institutional guides and inventories of information holdings, where this is appropriate.
When an Access to Information request is for material which may be provided without recourse to the Act, the applicant should be informed that an Access request is not required and that the information is being provided in accordance with normal government practice. This means that the application fee is refunded and no access to information fees under the Access to Information Act are levied. However any other charges normally payable at the discretion of the institution would still apply.
Institutions should not refer applicants to the Access to Information Act for obtaining information solely on the basis that it provides the only means of assessing fees. Where there is significant demand for information which does not contain exempt material, such information should be made available for purchase in accordance with fee schedules established pursuant to other legal authorities (for guidance consult the Communications Volume , Information and Administrative Management, Treasury Board Manual).