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 on the Management of
Government Information can be accessed at http://www.tbs-sct.gc.ca/pubs_pol/ciopubs/TB_GIH/mgih-grdg_e.asp.
Advice can also be obtained from the Government Records Branch at Library and
Archives Canada, which publishes Guidelines for Managing Recorded
Information in a Minister's Office, available at http://www.collectionscanada.ca/06/docs/minister_e.doc.
Library and Archives Canada Multi-Institutional Disposition Authorities and
Retention Guidelines may be accessed at http://www.collectionscanada.ca/information-management/007/007007-1008_e.html.
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.
Guidelines for the use of new technologies, such as e-mail, the Internet, 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, documents, etc.
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.
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.
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.
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:
- personal 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;
- access to personal information should be strictly limited to individuals
who have a legitimate need to know;
- appropriate security safeguards shall be put in place and maintained to
protect personal information from unauthorized disclosure; and
- personal 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 Web sites to promote
transparency and to facilitate public access.
Ministers' offices are required to disclose hospitality and travel expenses
publicly, through departmental Web sites. 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 (see http://www.tbs-sct.gc.ca/gos-sog/impl-rep/impl-rep2001/Imp.Report78_e.htm)
and Information Notice No. 2002-2004, dated March 18, 2002 (see http://www.tbs-sct.gc.ca/gos-sog/atip-aiprp/in-ai/in-ai2002/2002-04_e.asp)
to provide guidance concerning this matter. 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.
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.
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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