Access to Information Implementation Notice 2020-01: Notification and review process for third parties for complaints received by the Information Commissioner prior to June 21, 2019

1. Date of Issue

This Implementation Notice was issued on January 30, 2020.

2. Authorities

This Implementation Notice is issued pursuant to paragraph 70(1)(c) of the Access to Information Act.

3. Purpose

This Implementation Notice is intended to clarify the process of notification and review for third parties in complaints received by the Information Commissioner prior to June 21, 2019, the date on which significant amendments to the Access to Information Act came into force. It does not affect any existing guidance that applies to complaints received on or after June 21, 2019.

4. Context

Some amendments to the Access to Information Act made by Bill C-58 apply only to complaints received on or after June 21 2019, such as the Information Commissioner’s authority to make orders (section 36.1) and to refuse or cease to investigate a complaint (subsection 30(5)); and the government institution’s ability to decline to act on a request with the Information Commissioner’s written approval (section 6.1). However, other changes made to the Access to Information Act apply to all complaints, including those made prior to June 21, 2019. The focus of this Implementation Notice is to highlight procedural changes when a complaint to the Information Commissioner involves third party information.

5. Guidance

These are the key legislative changes that affect the procedure applicable at the report stage of the investigation that government institutions need to be aware of when dealing with complaints received by the Information Commissioner prior to June 21, 2019:

• When the Information Commissioner finds that a complaint is well-founded and makes recommendations, the Commissioner will issue an initial report to the government institution. The initial report contains the Commissioner’s findings, recommendations and the period within which the government institution shall give the Information Commissioner notice of the action taken or to be taken to implement the recommendations (subsection 37(1)).
• The government institution then responds to the Information Commissioner, informing the Commissioner of the action taken or to be taken to implement the recommendation or reasons why no such action has been or is proposed to be taken.
• When the government institution decides to implement the Information Commissioner’s recommendation to disclose the information, it no longer has the obligation to notify the third party of its decision as section 29 is repealed.
• The obligation to notify third parties of the government institution’s decision to disclose the information on the recommendation of the Information Commissioner now rests with the Commissioner. The Information Commissioner fulfills this obligation by providing a final report to the third party.
  • A third party receives the final report from the Information Commissioner if it was entitled to make – and in fact made – representations to the Commissioner in respect of the complaint (subsection 37(2)).
• The Information Commissioner’s final report includes a summary of the government institution’s decision whether or not to follow any recommendations and a statement about the third parties’ right to apply to the Federal Court for a review under section 41 within the specified timelines (subsection 37(3)). Those timelines are as follows.
  • Complainant: within 30 business days after the day on which the head of the government is deemed to have received the final report (subsection 41(1)).
  • Third party: If the complainant applied for a review, a third party cannot itself apply for a review to the Federal Court. But, it has a right to appear as a party to the complainant’s review and to raise for determination by the Court any matter in respect of which it may have made an application under section 41 (subsections 41(3) and 41.2(1) and (2)). If the complainant did not apply for a review, a third party can apply for a review within 10 business days after the expiry of the 30 business day period given to the complainant to apply for a review to the Federal Court (subsection 41(3)).
• If the government institution intends to follow the Information Commissioner’s recommendation to disclose third party information, it can only provide access to the records after the expiry of the timelines for the third party to apply for a review in Federal Court as specified above (subsection 37(4)).
• If a third party applies to the Federal Court for a review, the government institution must wait until the conclusion of any court proceedings and then provides access in accordance with the decision of the Federal Court.

Government institutions that require advice on complaint investigations received before June 21, 2019 are asked to contact their legal services or the Treasury Board of Canada Secretariat's Information and Privacy Policy Division.

6. References

• Access to Information Act

7. Enquiries

Members of the public may contact Treasury Board of Canada Secretariat Public Enquiries for information about this Implementation Notice.

Employees of government institutions may contact their Access to Information and Privacy (ATIP) coordinator for information about this Implementation Notice.

ATIP coordinators may contact the Treasury Board of Canada Secretariat's Information and Privacy Policy Division for information about this Implementation Notice.