Canada Gazette, Part I, Volume 146, Number 19: Regulations Amending the Access to Information Regulations

May 12, 2012

Statutory authority

Access to Information Act

Sponsoring department

Department of Justice

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the regulations.)

1. Background

In 1983, when the Access to Information Act (ATIA) and the Privacy Act (PA) came into force, several entities within government institutions were designated as investigative bodies for the purposes of the Access to Information Regulations and the Privacy Regulations.

The legislative framework for “investigative body” designation has been in effect since then, and has rarely been updated. The proposed Regulations represent a modernization of the schedules to the Access to Information Regulations and the Privacy Regulations to ensure that they adequately reflect the Government-wide restructuring of departments that has occurred over the last 29 years.

A designation as an investigative body under the Privacy Act (paragraph 8(2)(e) of the PA) allows government institutions to disclose, for law enforcement purposes, personal information to investigative bodies without the need to seek the consent of the individuals whose personal information is disclosed. A designation under paragraphs 16(1)(a) of the ATIA and 22(1)(a) of the PA entitles investigative bodies to invoke the law enforcement exemption in response to an access request presented under either Act, without the need to demonstrate that the disclosure of the information would cause injury to the investigative process. Finally, a designation under section 23 of the PA allows an investigative body to exempt from disclosure, in response to an access request presented pursuant to the Privacy Act, information relating to the granting of security clearances.

2. Issue

Amendments to the Access to Information Regulations (Schedule I) and the Privacy Regulations (Schedule II, Schedule III and Schedule IV) are necessary to modernize the designation of certain federal entities such as the Bureau of Dangerous Drugs, Department of National Health and Welfare and the Control Branch (Insurance), Canada Employment and Immigration Commission.

These bodies already exist as investigative bodies, having been created pursuant to other legislation. Thus, a designation pursuant to the ATIA and the PA simply allows these entities to use specific provisions of these two Acts that are reserved exclusively to entities listed in the schedules and recognized as investigative bodies.

The current lists of investigative bodies in the schedules to the Access to Information Regulations and the Privacy Regulations have not been amended to reflect organizational changes in Government structures. Amendments are thus needed to reflect these organizational changes.

3. Objectives

These proposed regulatory amendments would strengthen the capacity of federal departments and agencies to collect and share intelligence with other federal institutions and agencies, and to protect certain information in response to an access request presented under either Act.

These proposed regulatory amendments are also consistent with the Treasury Board Secretariat’s ongoing policy renewal exercise related to the operations of the federal access to information and privacy regime and its efforts to modernize administrative practices through existing legislated regimes.

4. Description

The proposed amendments would modify the Regulations as follows:

• Schedule I of the Access to Information Regulations by deleting the names of two investigative bodies which no longer exist (e.g. Canada Ports Corporation Police and Security, Department of Transport) and by replacing the name of one investigative body with its new name (Preventive Security Division, Securities Branch, Correctional Services Canada will be replaced with Preventive Security, Security Branch, Correctional Service Canada).
• Schedule II of the Privacy Regulations by deleting the names of five investigative bodies which no longer exist (e.g. Commission of Inquiry into the Air Ontario Crash at Dryden, Ontario), and replacing the names of six other investigative bodies with their new names (e.g. Bureau of Dangerous Drugs, Department of National Health and Welfare will be replaced with Office of Controlled Substances, Healthy Environments and Consumer Safety Branch, Health Canada).
• Schedule III of the Privacy Regulations by deleting the names of two investigative bodies which no longer exist (e.g. Canada Ports Corporation Police and Security, Department of Transport), and by replacing the name of one investigative body with its new name (Preventive Security Division, Securities Branch, Correctional Services Canada will be replaced with Preventive Security, Security Branch, Correctional Service Canada).
• Schedule IV of the Privacy Regulations by deleting the name of one investigative body which no longer exists (Special Investigation Unit, Department of National Defence) and by replacing the name of one investigative body with its new name (Personnel Security Service, Department of External Affairs will be replaced with Personnel Security Service, Department of Foreign Affairs and International Trade).

5. Consultation

The main stakeholders, the Office of the Privacy Commissioner (OPC) and the Office of the Information Commissioner (OIC), were consulted in writing by the Department of Justice on June 14, 2011. The OPC is satisfied with the proposed changes to remove investigative bodies from the schedules of the Privacy Regulations. The OPC did not take a position regarding the proposed change of names of investigative bodies because it had not been able to independently verify that the new names of the investigative bodies did in fact correspond to the organizational units currently named in the schedules. Overall, the OPC indicated that it had no specific objections to the proposed changes.

The OIC has agreed to the changes being made to modernize Schedule I of the Access to Information Regulations.

The Treasury Board Secretariat, which is responsible for issuing directives and guidelines to government institutions concerning the operations of the ATIA and the PA, was consulted and agrees with the proposed changes.

The investigative bodies affected by the proposed changes to the schedules to the Access to Information Regulations and the Privacy Regulations were also consulted in the preparation of these amendments and they agree with the changes.

6. Rationale

If the changes are not made to the schedules to the Access to Information Regulations and the Privacy Regulations to reflect organizational changes in Government structure affecting investigative bodies currently listed in the schedules, the capacity of those investigative bodies that have been reorganized and renamed to collect law enforcement information from other Government institutions may decline. In addition, these investigative bodies may no longer be able to invoke the exemptions to the right of access to information that are only available to investigative bodies, i.e. to refuse to disclose information in response to an access request presented under either Act.

7. Implementation, enforcement and service standards

These investigative bodies are already involved in investigations and law enforcement, and the necessary infrastructure and personnel are currently in place. This proposal would not require any new resources.

8. Contact

Denis Kratchanov
Director and General Counsel
Information Law and Privacy Section
Department of Justice
East Memorial Building
284 Wellington Street, 3rd Floor
Ottawa, Ontario
K1A 0H8
Telephone: 613-957-4624
Fax: 613-941-2002
Email: denis.kratchanov@justice.gc.ca

PROPOSED REGULATORY TEXT

Notice is hereby given that the Governor in Council, pursuant to paragraph 77(1)(f) of the Access to Information Act (see footnote a), proposes to make the annexed Regulations Amending the Access to Information Regulations.

Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part Ⅰ, and the date of publication of this notice, and be addressed to Denis Kratchanov, Director, General Counsel, Information Law and Privacy Section, Department of Justice, 284 Wellington Street, Ottawa, Ontario K1A 0H8 (tel.: 613-957-4624; fax: 613-941-2002; email: denis.kratchanov@justice.gc.ca).

Ottawa, May 3, 2012

JURICA ČAPKUN
Assistant Clerk of the Privy Council

REGULATIONS AMENDING THE ACCESS TO INFORMATION REGULATIONS

AMENDMENTS

1. Item 1 of Schedule I to the Access to Information Regulations (see footnote 1) is repealed.

2. Item 5 of Schedule I to the Regulations is replaced by the following:

5. Preventive Security, Security Branch, Correctional Service of Canada

3. Item 8 of Schedule I to the Regulations is repealed.

COMING INTO FORCE

4. These Regulations come into force on the day on which they are registered.

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