Western Economic Diversification Canada
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Appendix A

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Access to Information Policy

Policy Context

Western Economic Diversification Canada (WD) is fully committed to both the spirit and the intent of the Access to Information Act to ensure openness and transparency within the Department. Therefore, WD’s Access to Information Policy ensures that:

  • the Department effectively and consistently administers it responsibilities in accordance with the Act ; and
  • the decision-making process to disclose information or apply specific exemptions or exclusions are limited and specific, and are approved by the Designated Authority as per the Minister’s Delegation of Authority pursuant to the Act.

Policy Statement

This Policy is based on the Access to Information Act, its Regulations and the principles of open government from which it is derived. Specifically, the objectives are to:

  • facilitate statutory and regulatory compliance, and enhance effective application of the Access to Information Act and its Regulations by WD; and
  • ensure consistency in practices and procedures in administering the Act and Regulations so that applicants receive assistance throughout the request process.

The expected results of this Policy are:

  • sound management and decisions in responding to requests from applicants who are exercising their right to access records under the control of WD, regardless of their identity;
  • complete, accurate and timely responses to requests made under the Act;
  • clear responsibilities in WD for decision-making and effective administration of the Access to Information Act and its Regulations; and
  • consistent public reporting on the administration of the Act through WD’s Annual Report to Parliament, annual statistical report, and the submission of departmental chapters to Info Source, which are published by the Treasury Board of Canada Secretariat (TBS).

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Policy Requirements

Chapter 1.1 – TBS Policy on Access to Information (April 1, 2008), and specifically Section 6.1 – Policy Requirements, provides guidance as follows which WD has adopted and incorporated into its Access to Information Procedures Manual:

  • Delegation: The head of the Department (the Minister) is responsible for deciding whether to delegate any of his/her powers, duties and functions under the Act. When the decision is made to delegate responsibilities, WD must have in place a current Delegation Order, signed by the Minister, authorizing which responsibilities may be carried out by particular officials. The powers, duties and functions that may be delegated appear in Chapter 3-1 of the TBS Policy.
  • Exercising Discretion: WD shall exercise discretion under the Act in a fair, reasonable and impartial manner with respect to decisions made in the processing of requests and the resolution of complaints pursuant to the Act, subject to the conditions set out in the Regulations.
  • Access to Information Awareness: WD is responsible for making its employees aware of the policies, procedures and legal responsibilities of the Act.
  • Protecting the Identity of Applicants: WD shall ensure that the applicants’ identities are protected and only disclosed when there is a clear need to know in order to perform duties and functions related to a lawful program or activity.
  • Duty to Assist: WD shall ensure that every reasonable effort is made to help applicants receive complete, accurate and timely responses in the format requested, in accordance with the Regulations and without regard to the applicant’s identity. This includes developing and implementing written procedures and practices that will effectively assist applicants.
  • Processing Access Requests: WD shall establish effective processes and systems to respond to access requests, as well as documenting deliberations and decisions made concerning each request received under the Act. The Department shall also establish procedures to ensure that:
    • the requested records are reviewed to determine if they are subject to the Act, whether any exemptions apply, and exemptions to the right of access are limited and specific;
    • the principle of severability is applied; and
    • any consultations necessary for the processing of requests are undertaken pursuant to the Act.
  • Cabinet Confidences: WD shall follow established procedures concerning consultations with the Privy Council Office prior to excluding Cabinet Confidences.
  • Contracts and Agreements: WD shall establish measures to ensure that it meets the requirements of the Act when contracting with private sector organizations or when entering into agreements or arrangements with public sector institutions.
  • Addressing Obstruction to the Right of Access: WD shall ensure that appropriate procedures align with the Public Servants Disclosure Protection Act are in place in cases of alleged obstruction of the right of access under the Act. Obstructing the right of access is a criminal offence.
  • Monitoring and Reporting Requirements: The ATIP Coordinator is responsible for monitoring compliance of this Policy as it relates to the Act, and ensuring that: an Annual Report to Parliament is prepared and tabled in each House of Parliament, Info Source chapters are updated and submitted, an annual statistical report on the administration of the Act is submitted to TBS, and user fee information input into the WD’s Departmental Performance Report annually.

Departmental Procedures

WD’s ATIP unit has developed an Access to Information Procedures Manual, which summarizes the essential elements of the Access to Information legislation and Regulations, and Treasury Board policies. This manual helps WD meet the requirements of para. 5.1.1 of the Directive on Administration of the Access to Information Act that came into effect on April 1, 2010, which requires the establishment of consistent practices and procedures for the processing of access to information requests, including requirements to make every reasonable effort to assist applicants without regard to their identity.

The Procedures Manual serves as a reference manual and a tool for Regional ATIP Liaison Officers and WD staff that provides a balanced approach to the Department’s procedures and explaining how the legislation permits both the release and withholding of information that has been requested, with the objective to help WD staff better understand the implications of the Access to Information Act and to build a network within WD to ensure quality responses to requests for information.

In addition, as required in the Directive, WD must ensure that its employees understand their duty to assist (see Appendix A, Duty to Assist) and has established internal procedures to address suspected obstructions of the right of access, which are defined in section 67.1 of the Act and section 6.2.10 of the Policy on Access to Information (see Appendix B, WD Procedures for Suspected Obstruction of the Right of Access).

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Authorities

The Access to Information Act is supported by a number of legislative, regulatory, policy and procedural instruments that reinforce certain provisions of the Act, as well as provide interpretation and practical guidance of specific sections. These documents include:

Department of Justice Canada

  • Access to Information Act: http://laws.justice.gc.ca/en/A-1/8.html
  • Access to Information Regulations: http://laws.justice.gc.ca/en/A-1/SOR-83-507/45.html
  • Access to Information Act Heads of Government Institutions Designation Order:
    http://laws.justice.gc.ca/en/showtdm/cr/SI-83-113
  • Library and Archives of Canada Act:
    http://laws.justice.gc.ca/en/showdoc/cs/L-7.7/20081010/en?command=searchadvanced&caller=AD&fragment=Archives&search_type=all&day=10&month=10&year=2008&search_domain=cs&showall=L&statuteyear=all&lengthannual=50&length=50
  • Privacy Act: http://laws.justice.gc.ca/en/P-21/index.html
  • Privacy Regulations: http://laws.justice.gc.ca/en/showtdm/cr/SOR-83-508
  • Public Servants Disclosure Protection Act: http://laws.justice.gc.ca/en/showtdm/cs/P-31.9

Treasury Board of Canada Secretariat

  • Access to Information – Policies and Publications:
    http://publiservice.tbs-sct.gc.ca/pubs_pol/gospubs/tbm_121/siglist_e.asp
  • Communications Policy of the Government of Canada:
    http://publiservice.tbs-sct.gc.ca/pubs_pol/sipubs/comm/comm_e.asp
  • Directive on the Administration of the Access to Information Act (April 1, 2010):
    http://www.tbs-sct.gc.ca/pol/doc-eng.aspx?section=text&id=18310
  • Directive on Privacy Impact Assessment (April 1, 2010):
    http://www.tbs-sct.gc.ca/pol/doc-eng.aspx?id=18308
  • Policy on Access to Information (April 1, 2008)
    http://publiservice.tbs-sct.gc.ca/pol/doc-eng.aspx?id=12453
  • Policy on Government Security (July 1, 2009)
    http://www.tbs-sct.gc.ca/pol/doc-eng.aspx?id=16578
  • Policy on the Use of Electronic Networks:
    http://www.tbs-sct.gc.ca/pol/doc-eng.aspx?id=12419
  • Management of Government Information – Policies and Publications:
    http://www.tbs-sct.gc.ca/pubs_pol/ciopubs/TB_GIH/siglist-eng.asp

Western Economic Diversification Canada

  • Access to Information Procedures Manual

In the event of a discrepancy, the Access to Information Act and its Regulations, Orders in Council, the Minister’s Delegation of Authority, directives and official Treasury Board policies shall take precedence over this Policy and WD’s procedures.

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Date of Application

This Policy was adopted at a Management Accountability Committee meeting of Western Economic Diversification Canada on November 19, 2008, as part of its Policy Suite. It was revised and approved by Executive Committee on January 19, 2011, and shall apply to all programs services of the Department.

Policy Change Control

Revision Number Date Issued Author Brief Description of Change
v1.0 November 19, 2008 ATIP Officer Policy based on the April 2008 updated TBS Access to Information Policy. (Replaces the ATI Policy – WD Financial Policies, dated December 5, 2005).
v2.0 January 19, 2011 ATIP Officer General update and addition of Appendix A, Duty to Assist, and Appendix B, WD Procedures for Suspected Obstruction of the Right of Access

Appendix A - Duty to Assist

Principles for Assisting Applicants

  1. WD will process access requests without regard to the identity of the requestor.
  2. WD will offer reasonable assistance throughout the request process.
  3. WD will provide information on the Access to Information Act, including information on the processing of an access request to the requestor and their right to complain to the Information Commissioner of Canada.
  4. WD will inform the requestor as appropriate and without undue delay when a request requires clarification.
  5. WD will make every effort to locate and retrieve the requested records under the control of the Department.
  6. WD will apply limited and specific exemptions to the requested records.
  7. WD will provide accurate and complete responses.
  8. WD will provide timely access to the requested information.
  9. WD will provide records in the format and official language requested, as appropriate.
  10. WD will provide an appropriate location within the Department for requestors to examine the requested information.

WD employees are responsible for:

  1. Limiting, on a need-to-know basis, the disclosure of information that could directly or indirectly lead to the identification of an applicant, unless the applicant consents to the disclosure.
  2. Adopting a board interpretation of an access request, yet communicating with the applicant to clarify the request if it is unclear or to general so as to understand what information is requested by the applicant without necessarily delaying processing of the request.
  3. Recommending to the ATIP Unit that the requested information be disclosed informally.
  4. Making every reasonable effort to locate records under the control of the Department that are responsive to the request.
  5. Providing a realistic estimate of search time or other fees, and its rationale to the ATIP Unit when required.
  6. Providing valid recommendations on the disclosure of the records requested, as well as contextual information when appropriate.
  7. Ensuring, if involved in contracting activities, that contracts and agreements do not weaken the right of public access to information.
  8. Contacting the ATIP Unit at any time to improve their awareness and obtain advice, guidance and/or training on the processing of an access request or the application of the Access to Information

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Appendix B - WD Procedures for Suspected Obstruction of the Right of Access

Preface

This document is intended to provide guidance to Western Economic Diversification Canada (WD) employees to ensure that appropriate procedures are in place in cases of an alleged obstruction of the right of access under the Access to Information Act.

These procedures deal with general requirements under section 67.1 of the Access to Information Act, section 6.2.10 of the Policy on Access to Information, para. 6.2.28 of the Directive on the Administration of the Access to Information Act, and align with the Public Servants Disclosure Protection Act. Obstructing the right of access is a criminal offence.

Questions pertaining to the proper application of these guidelines may be directed to the following WD officials:

ATIP Coordinator 1-780-495-4301
Deputy ATIP Coordinator/
Departmental Security Officer
1-780-495-6057
ATIP Officer 1-780-495-4982
Chief Information Officer 1-780-495-3549
Manager, Technology Services 1-780-495-5354

Legislation

Through Bill C-208, which was proclaimed on March 25, 1999, section 67.1 was added to the Access to Information Act (ATIA) to provide sanctions for any person who destroys, alters, falsifies or conceals a record, or directs anyone to do so, with the intent of obstructing the right of access that is provided by the ATIA.

The purpose of this document is to provide clear direction to staff as to the steps that must be followed with respect to any violation or suspected violation of section 67.1.

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What is obstruction to the right of access?

The Access to Information Act defines obstruction as follows (also identifies the offence and punishment for obstruction):

Obstructing right of access

67.1(1) No person shall, with intent to deny a right of access under this Act,

(a) destroy, mutilate or alter a record;
(b) falsify a record or make a false record;
(c) conceal a record; or
(d) direct, propose, counsel or cause any person in any manner to do anything mentioned in any of paragraphs (a) to (c).

Offence and punishment

(2) Every person who contravenes subsection (1) is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding two years or to a fine not exceeding $10,000, or to both; or
(b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding six months or to a fine not exceeding $5,000, or to both.

This section states that there must be intent to deny a right of access for an offence to be committed. Under the law, the term “intent” generally implies a situation where a person knows and desires the consequences of their act at the time the offence is committed. An example of intent to deny a right of access would be destroying records knowing that an access request for these has been received or is anticipated.

The offence under section 67.1 should not be viewed as inhibiting the application of proper, reasonable retention periods established by government institutions. The Library and Archives of Canada Act still enables government institutions to dispose of records which no longer have operational value. Section 67.1 prohibits the destruction of records in anticipation of a request under the Access to Information Act. Employees must not destroy any records, including transitory records, whether or not they qualify for destruction under a disposal schedule, if they are aware that an access request for them has been received or is anticipated.

Employees who require further information concerning federal government records management, retention and disposal practices, as well as the requirements of the National Archives of Canada Act, should contact the Chief Information Officer. The ATIP Unit should be consulted for any questions or concerns pertaining to these procedures or the Access to Information Act.

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Procedures / Responsibilities

Note: The Public Servants Disclosure Protection Act gives federal public sector employees and others a secure and confidential process for disclosing serious wrongdoing in the workplace, such as obstruction of the right of access.

The following procedures/responsibilities are provided for a rapid response to halt any suspected destruction or alteration activity intent on obstructing the right of access by any WD employee:

  1. WD Employees:
    • Employees must immediately report any suspected or known activities described in section 67.1 of the ATIA to the Departmental Security Officer or the WD Senior Officer for Internal Disclosure.
    • All employees involved in witnessing, reporting or investigating a violation or suspected violation of section 67.1 of the ATIA must provide a written account of the incident and cooperate with any inquiry or investigation being conducted.
  2. Departmental Security Officer (DSO) or Senior Officer for Internal Disclosure must:
    • Take immediate action to stop the activity and to secure the affected records or systems.
    • Notify the ATIP Coordinator in order to confirm that the activity does contravene the ATIA.
    • Document the suspected destruction or alteration activity.
      • Document in detail the circumstances that gave rise to the activity.
      • Take inventory of the information that was or may have been destroyed or altered.
      • Include other relevant information.
    • Report the incident to the Manager, Technology Services, if it involves electronic data.
    • Investigate security breaches within WD. Possible contraventions of section 67.1 of the ATIA will be treated by the department in the same manner as a suspected theft, destruction of property or other security breaches which may involve criminal activity in accordance with the Treasury Board Policy on Government Security.
    • Consult legal counsel prior to reporting the suspected obstruction of access to law enforcement agencies.
  3. ATIP Coordinator must:
    • Determine if the activity contravenes the ATIA.
    • Notify the Deputy Minister of the incident.