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Policies for Ministers' Offices - January 2011

Part 10 — Information Management

10.1 Information management

Ministers will usually have papers in their offices that fall into four general categories: Cabinet documents, institutional records, ministerial records (as defined in section 2 of the National Archives Act), and personal and political records. Each of these categories has its own set of considerations under the Access to Information Act, the Privacy Act, and the Canada Evidence Act.

Ministers should maintain separate information systems for Cabinet documents, institutional records, ministerial records, and personal and political records. Ministerial records must be transferred from the office of the minister to Library and Archives Canada in accordance with schedules approved by the Librarian and Archivist of Canada. Deputy ministers should advise ministers and their staff on these matters. The Treasury Board policy can be accessed at Policy on Information Management. Advice can also be obtained from the Government Records Branch at Library and Archives Canada, which publishes the Guidelines for Managing Recorded Information in a Minister's Office. Library and Archives Canada also publishes Multi-Institutional Disposition Authorities and Retention Guidelines.

Special precautions must be taken to guarantee the security of Cabinet documents, in accordance with procedures established by the Privy Council Office on the Prime Minister's behalf. Most importantly, when a Cabinet item has been dealt with, the associated Cabinet documents must be returned to the Privy Council Office. Successive prime ministers have also agreed that the Clerk of the Privy Council, with deputy ministers, will ensure that Confidences of the Queen's Privy Council for Canada contained in records left in government custody by Cabinet ministers will be protected from access by successive governments.

Ministers and their staff are also advised to refer to Annex C of Accountable Government.

10.1.1 Information technologies

Guidelines for the use of information technologies, such as e‑mail, the Internet, social media and local area networks, are evolving within the Public Service. Ministers and their exempt staff should seek guidance on their use from the appropriate departmental officials. Ministers and their staff should consider electronic recorded information as identical to physical recorded information such as prints, photographs and documents.

In designing information systems, ministers must provide for the proper processing, handling, and storage of classified and other sensitive information. Advice and assistance on meeting government‑wide standards for physical, communications, and electronic data processing security is available from the departmental security officer.

10.1.2 Leaving office

Ministers and their exempt staff have a responsibility to ensure that all Cabinet documents and official records are left in the custody of appropriate authorities. On leaving office, ministers must use the secure storage facilities and archival services offered by Library and Archives Canada for their personal and political papers. They should also take steps to remind individuals leaving their jobs of their continuing responsibilities to maintain the confidentiality of the sensitive information to which they have had access, cancel all their authorities (e.g. access authorities, keys, and locks), and return all sensitive information to the appropriate authority. The designated security official in the minister's office should terminate employment in person, and the process should be formally documented.

10.2 The Access to Information Act and the Privacy Act

10.2.1 Background

The Access to Information Act gives the public the right of access to information in records controlled by government institutions. A minister's office is considered separate and distinct from the government institution; thus, ministers and their exempt staff are not considered employees or officers of the institution. This interpretation is being examined in light of a recent decision by the Federal Court of Canada. The impact of this judgment is still being assessed and the question of whether or not the Act applies to ministerial records has yet to be resolved. Prior to making decisions on the disclosure of any records (including expense claims of ministers and their exempt staff), ministers' offices should consult with their institution's legal services unit.

Access to information is the public's right. Subject to the Access to Information Act, every Canadian citizen and permanent resident "has a right to and shall, on request, be given access to any record under the control of a government institution."

All ministers have delegated their responsibilities under the Access to Information Act to specifically named public servants. These individuals are responsible for all decisions made under the Act. No political staff member has received a delegation of authority under the Act and therefore no political staff member has authority to make access to information decisions.

It is permissible for political staff members to receive advance notice of the release of records so that they can anticipate the disclosure, brief their ministers and prepare for media and Opposition questions, however, it is impermissible to counsel a public servant to delay giving access, to withhold a document or to deny access.

The Access to Information Act is based on two principles:

  • government information should be available to the public; and
  • necessary exceptions should be limited and specified by law.

The Access to Information Act complements the Privacy Act.

The Privacy Act governs the use, disclosure, collection, retention, and disposal of personal information and expands previous statutory protection of personal information held by a government institution. The Privacy Act gives individuals the right of access to information about themselves that is held by a government institution. While the offices of ministers are not considered to be part of a "government institution" for the purposes of the Privacy Act, the following principles should nevertheless govern those offices:

  1. information should be used or disclosed only for a purpose consistent with the purpose for which it was obtained, unless the individual concerned consents to the new use or disclosure, or the disclosure is required by law;
  2. to personal information should be strictly limited to individuals who have a legitimate need to know;
  3. security safeguards shall be put in place and maintained to protect personal information from unauthorized disclosure; and
  4. information that is no longer needed should be disposed of unless its retention is required by law.

Records relating to ministers and exempt staff that are located in an institution may contain personal information that must be protected under the Access to Information Act and the Privacy Act. Such records should not be disclosed unless in accordance with these acts.

Expense claim records about ministers and exempt staff

All travel and hospitality expenses for ministers, parliamentary secretaries, and exempt staff are to be published on institutional websites to promote transparency and to facilitate public access.

Ministers' offices are required to disclose hospitality and travel expenses publicly, through departmental websites. Reports cover a 90‑day period, and ministers and their offices must report within 30 days of the end of the period being reported. This policy also applies to parliamentary secretaries.

Other records about expense claims of ministers and their exempt staff may contain personal information that must be protected under the Access to Information Act, unless consent to disclose is received from the individual(s). In view of jurisprudence that supports this position, the Secretariat issued Implementation Report No. 78, dated March 30, 2001 and Information Notice No. 2002-2004, dated March 18, 2002 to provide guidance concerning this matter. Copies of these archived documents can be obtained by contacting Treasury Board Secretariat's Information and Privacy Directorate at ippd-dpiprp@tbs-sct.gc.ca or 613 946-4945. As well, in March 2002, the Secretary of the Treasury Board wrote concerning this matter to his counterparts at all institutions subject to the Access to Information Act. All three documents outline the government's position on records relating to ministers and their exempt staff and inform institutions that records relating to expense claims of ministers and their exempt staff may contain personal information, as well as that other information might require protection under another exemption provision, and recommend that institutions take reasonable steps to seek consent for the disclosure of such records directly from the individual concerned.

Canada Evidence Act

The amendments to the Canada Evidence Act, known as Specified Public Interest rules, apply to the disclosure of records in instances where a court of law seeks information from the government that is relevant to a case.

10.2.2 Monitoring disclosure

Decisions on disclosing government information under the Access to Information Act and the Privacy Act can be reviewed independently of the government. Depending upon the applicable legislation, either the Information Commissioner or the Privacy Commissioner conducts the first level of review. The Federal Court, Trial Division, conducts the next level of review, and cases can be brought before the Federal Court of Appeal and, ultimately, the Supreme Court of Canada.

Within a department or an agency subject to the legislation, a designated departmental co‑ordinator administers one or both acts. This officer receives requests from the public, advises the minister and departmental officials about what should or should not be released, and ensures that a response is prepared. The co-ordinator also ensures that personal information is protected, as required by the Privacy Act. In addition, departmental legal services provide legal expertise on access and
privacy matters.

Both acts specifically recognize the rights of access of individuals with sensory disabilities.

The following suggestions are designed to help ministers meet the requirements of this legislation:

  • assign a single senior contact within the minister's office who is knowledgeable about the acts and their impact on departmental operations, and who can deal directly with the departmental co-ordinator regarding ministerial records;
  • keep institutional records segregated from personal and political records and put in place the conventions set out in this document, especially the accounting procedures;
  • review delegation orders under the acts to ensure that the specific powers, duties, and functions are set out and delegated to the appropriate level;
  • ensure that appropriate reporting on the nature and progress of access requests is in place in the department; and
  • support sound departmental information management practices.

10.2.3 Cabinet confidences

The Access to Information Act and the Privacy Act do not apply to records that fall under the category of Confidences of the Queen's Privy Council for Canada. Confidences of the Queen's Privy Council for Canada are generally excluded for 20 years, while discussion papers are excluded for up to four years. When an access request involves Cabinet confidences, ministers must consult the Privy Council Office before responding. The deputy minister or access to information co-ordinator in each department can arrange this consultation.

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