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Jennifer Stoddart
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Chantal Bernier
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Access to Information and Privacy

Process and Compliance Manual

Requests under the Access to Information Act

Requests under the Privacy Act

Principles on Assistance to Applicants

Directive / Procedures Concerning Section 67.1 of the Access to Information Act

OPC Privacy Policy

Process and Compliance Manual

Prepared by
The ATIP Unit

April 2008

GLOSSARY

Access Request – is a request for access to a record made under the ATIA or for access to personal information made under the PA.

Annual Report – is a report submitted by the head of a government institution to Parliament on the administration of the ATIA and the PA during the financial year.

Administrative Purpose – the use of personal information about an individual “in a decision making process that directly affects that individual” (section 3 of the PA – see Appendix G of this manual). This includes all uses of personal information for confirming identity (ie. authentication and verification purposes) and for determining eligibility of individuals for government programs.

Applicant – a person seeking access to records under the ATIA or to personal information under the PA. Also, a person requesting the correction of his/her personal information under the PA.

ATIP Director – the official delegated by the Privacy Commissioner to coordinate all activities relating to the application of the Acts, their regulations and their guidelines.

Complainant – an individual who makes a complaint to the Information Commissioner on grounds set out in section 30 of the ATIA or to the ad hoc Privacy Commissioner on grounds set out in section 29 of the PA.

Confidential Information – whether information is confidential depends upon its content, its purpose and the circumstances under which it is communicated:

the information is not available from publicly available sources or cannot be obtained by observation or independent study;
the information originated and is communicated in a reasonable expectation of confidence that it will not be disclosed, and;
the information is communicated (whether required by law or supplied gratuitously) in a fiduciary relationship between government and the third party supplying it—a relationship that is not contrary to the public interest, and where there is a public benefit to the confidential communication of information.

Confidentiality – the obligation of the custodian of records and/or personal information to protect those records and/or personal information as required by the ATIA and the PA.

Consistent Use – a use that has a reasonable and direct connection to the original purpose(s) for which the information was obtained or compiled. This means that the original purpose and the proposed purpose are so closely related that the individual would expect that the information would be used for the consistent purpose, even if the use is not spelled out.

Control – physical possession of information by an institution and its officials, consultant or contractors is a clear indicator that the information is under the institution’s control. A record is under the control of a government institution when that institution is authorized to grant or deny access to it, to govern its use and, subject to the approval of the National Archivist, to dispose of it. Records in the physical possession of an institution, whether at headquarters, regional, satellite or other office, either within or outside Canada, are presumed to be under its control. Records held elsewhere on behalf of an institution are also under its control. (NOTE: The definition of ‘control’ is presently under Court review).

Court – the Federal Court.

Data Matching – an activity involving the comparison of personal information from different sources, including sources within the same government institution, for administrative or non-administrative purposes. The data-matching activity that is established can by systematic or recurring. The data-matching activity can also be conducted on a periodic basis when deemed necessary. Data matching includes the disclosure or sharing of personal information with another organization for data-matching purposes.

Excluded Information – information to which the ATIA and the PA do not apply, for example:

published material or material available for purchase by the public;
library or museum material;
material placed in the National Archives, National Library or the National Museums of Canada, and;
Confidences of the Queen’s Privy Council.

Exemption – is a mandatory or discretionary provision under the ATIA and the PA that authorizes the head of the government institution to refuse to disclose information under the ATIA or under the PA in response to an access request under those Acts.

Financial, commercial, scientific or technical information – information relating to material that is commonly referred to as such, in keeping with the ordinary dictionary definition of those terms. It is sufficient that matters relate or pertain to those matters as those terms are commonly understood.

Government Institution – any federal government department, ministry of state, body or office listed in the schedules to the Acts. The term “government institution” does not include Minister’s Offices.

Greater Interest – an institution has greater interest in a record if that record was originally produced in or for the institution, or where the institution was the first to receive the record or a copy of it.

Head – is the Minister in the case of a department or ministry of state. In any other case, it is the person designated by the Access to Information Act Heads of Government Institutions Designation Order or the Privacy Act Heads of Government Institutions Designation Order.

Information Commissioner / Privacy Commissioner – are Officers of Parliament with the powers of ombudsmen who are appointed by Governor in Council.

Info Source – a series of annual Treasury Board of Canada Secretariat publications in which government institutions are required to describe their organizations, program responsibilities and information holdings, including classes of records. The information is to contain sufficient clarity and detail to assist individuals in exercising their rights under the Acts. The publications also provide contact information for government institutions and agencies as well as summaries of court cases and statistics on access requests under the Acts.

Manual – set of directives, instructions, guidelines or procedures used by employees in administering or carrying out operational programs or activities.

Need to Know – an information handling principle that limits access to information to only those employees whose duties require access to the information. Employees are not entitled to access information simply because of their status or rank within an organization.

New Consistent Use – a consistent use that was not originally identified in the appropriate Personal Information Bank (PIB) description in the government institution’s chapter in Info Source.

Non-Administrative Purpose – is the use of personal information for a purpose that is not related to any decision-making process that directly affects the individual. This includes the use of personal information for research, statistical, audit and evaluation purposes.

Office of Primary Interest (OPI) – the branch, program area or individual which holds the records or information that has been requested under the ATIA or the PA. In the case of the OPC, the OPI is usually a branch.

Personal Information – “information about an identifiable individual that is recorded in any form” (section 3 of the PA – see Appendix G of this manual).

Privacy – the fundamental right to control the collection, retention, use and disclosure of our own personal information.

Privacy Protocol – a set of documented procedures to be followed when using personal information for non-administrative purposes including research, statistical, audit and evaluation purposes. These procedures are to ensure that the individual's personal information is handled in a manner that is consistent with the principles of the PA.

Program or activity – is, for the purposes of the appropriate collection, use or disclosure of personal information by government institutions, a program or activity authorized or approved by Parliament. Parliamentary authority is usually contained in an Act of Parliament or subsequent Regulations. Parliamentary authority can also be in the form of approval of expenditures proposed in the Estimates and as authorized by an appropriation Act. Also included in this definition are any activities conducted as part of the administration of the program.

Record – “any documentary material regardless of medium or form” (section 3 of the ATIA – see Appendix F of this manual).

Representative – a person authorized by an applicant or complainant to act on his or her behalf with respect to requests or complaints under the Acts.

Request – a request to obtain records under the ATIA or to obtain personal information under the PA. Also, a request for the correction of personal information under the PA.

Requester – a person seeking access to records under the ATIA or to personal information under the PA. Also, a person requesting the correction of his/her personal information under the PA.

Retention and Disposal Standards – a timetable for the length of time institutional records are maintained within an institution—when they are no longer required to meet operational, legal or other requirements.

Severability – relates to the ATIA principle in which the protection of information from disclosure must be limited to the portions of information or material that the head of the government institutions is authorized or obligated to refuse to disclose under the ATIA. The principle applies to records that are the subject of an access request under the ATIA. (see section 25 of the ATIA)

Third Party – any person, group of persons or organization other than the person that made the request or a government institution (see section 3 of the ATIA – see Appendix F of this manual).

Appendix A – Access to Information Act Request Form

Instructions

http://www.tbs-sct.gc.ca/tbsf-fsct/350-57_e.cfm

Forms

Appendix B – Privacy Act Request Form

Instructions

http://www.tbs-sct.gc.ca/tbsf-fsct/350-58_e.cfm

Forms

Appendix C – Tasking Memorandum

The ATIP Office has received a request under the *Access to Information Act*.	Le Bureau de l’AIPRP a reçu une demande en vertu de la *Loi sur l’accès à l’information*.
[TEXT]
Our file: Source : OPI :	Notre dossier : Provenance : BPR :
Note to OPI	Note au bureau de première responsabilité
Please compile the information relevant to the request, review for sensitivity and provide your recommendations concerning exemptions you consider applicable. Should you consider the information sensitive, please ensure Q’s and A’s are drafted.	Auriez-vous l’obligeance de me faire parvenir tous les documents pertinents à la demande. De plus, il vous incombe d’examiner les documents afin d’identifier les parties sensibles et le cas échéant, de nous fournir une recommandation quant aux exceptions à invoquer. Si vous êtes d’avis que les renseignements visés par la demande revêtent d’une sensibilité, vous êtes priés de fournir une fiche de questions / réponses.
In order to meet the due date, your response is required by close of business [Give 5 DAYS].	Afin que nous puissions répondre dans les délais prévus par la Loi, votre réponse est due au plus tard le [Donnez 5 jours].
If more than five (5) hours of search time is required to compile the records, please provide a time estimate rather than continuing the search.	Si plus de cinq (5) heures sont nécessaires pour effectuer la recherche des documents, je vous saurais gré de cesser la recherche et de me faire parvenir un estimé du temps requis pour identifier tous les documents pertinents.
Should you have any questions or concerns with the above, please contact me immediately.	Si vous avez des questions, communiquer avec moi immédiatement.
Thank you for your co-operation.	Merci de votre collaboration.
Jan Peszat Director, ATIP 995-3503

Appendix D – Fee and Fee Waiver Policy

The Access to Information Act (ATIA) authorizes fees for certain activities related to the processing of formal requests under the ATIA. The fee structure is outlined in section 11 of the ATIA and section 7 of the Regulations. The ATIA permits the waiving of fees when the head of the institution decides that it is in the public interest to do so. This policy provides guidance to the OPC in ensuring a consistent approach in charging fees under the ATIA.

(NOTE: this Policy does not apply to requests made under the Privacy Act (PA) as no fees of any kind are chargeable under that Act).

Chargeable / Non-Chargeable Fees

The OPC cannot charge fees for:

reviewing documents to determine whether they are exempt or excluded;
maintaining statistics or documentation relating to the administration of the ATIA;
filing documents (including filing requests and re-filing records);
providing facilities for processing requests or for public access to records;
shipping requested information (including the cost of normal and first class mailing).

The OPC will charge the following fees:

Application:

$5.00 at the time the request is made.

Search:

$2.50 per person per every ¼ hour in excess of 5 hours where an employee(s) must search for the information requested.

Preparation:

$2.50 per person per every ¼ hour in excess of 5 hours for time spent physically marking exemptions/exclusions or using ATIP redaction software to do so. This includes situations where ATIP is applying exemptions and/or exclusions recommended by other institutions.

Reproduction:

$0.20 per page of photocopying (not more than 21.5 cm by 35.5 cm);
$0.40 per fiche for microfiche duplication, non-silver;
$12.00 per 30.5m roll for 16 mm microfilm duplication, non-silver;
$14.00 per 30.5m roll for 35 mm microfilm duplication, non-silver;
$0.25 per page for microform (microfilm and microfiches) to paper duplication;
$25.00 per 731.5 m reel for magnetic tape-to-tape duplication;
$0.05 per page of Braille, on paper (not more than 21.5 cm by 35.5 cm);
$0.05 per page of large print, on paper (not more than 21.5 cm by 35.5 cm);
$2.50 onto (per) audiocassette;
$2.00 onto (per) 3” microcomputer diskette;
$16.50 per minute for the cost of the central processor and all locally attached devices, and/or;
$5.00 per person per every ¼ hour for time spent on programming a computer.

Fees Procedure

The first five hours of search time will always be borne by the OPC. However, search fees will be assed in all cases where the search is more than 5 hours.

If more than 5 hours is required, the search itself will be halted and the applicant will be given a written estimate of the total amount of time required to locate the requested information and of the fee that must be paid before the search will continue. Dependent upon the amount of the fee assessed, the applicant may be asked to pay a deposit (by certified cheque or money order) which is usually half of the estimated fee. The applicant will be given a date by which the fee or deposit must be paid and he/she will be advised that the request will be considered to have been abandoned if the sum is not paid by that date. The applicant will also be notified of his/her right to file a complaint with the Information Commissioner concerning the fees assessed.

Once the fee estimate letter has been sent, the time limit for the processing of the request will stop-clock and will not re-start until the fee or the deposit is paid. If the required fee is not received by the date indicated in the fee assessment letter, the request will be abandoned.

If the applicant has paid the fee, the search has resumed and the records are ready for release, a final written notice will be sent to the applicant requesting the remainder of the fees. Again, a date will be provided by which the remaining fee must be received and he/she will be advised that the request will be considered to have been abandoned if the final sum is not paid by that date. The time limit for processing the request will stop until the balance is paid.

All fees must be paid by the applicant before access will be given.

If in the end the deposit paid by the applicant exceeds the actual final cost of providing access, ATIP will refund the excess portion that the applicant paid.

Fee Waivers

Subsection 11(6) of the Act provides that the head of a government institution may waive, reduce or refund any fees payable under the Act and the Regulations. The decision to waive, reduce or refund fees will be made by ATIP on a case-by-case basis by assessing:

whether the information is normally made available without a charge;
the degree to which a general public benefit is obtained through the release of the information;
whether an applicant is requesting access to his/hers own investigation file(s).

It should be noted that the requester’s circumstances reasons for seeking access to information may be taken into consideration in a fee waiver decision, even though those same reasons cannot be taken into consideration when deciding whether to grant access to information.

Access Requests

The OPC ATIP Unit’s policy is to:

refund the $5.00 application fee if the requested information is available in another process which would provide full access ie. during an ongoing harassment investigation, or under compassionate grounds;
waive search, preparation and reproduction fees where the recoverable amount is less than $25.00 ie. where the only applicable fee is $2.00 for a CD-Rom, where the photocopies are less than 125 pages, or where the search and preparation fees are negligible;
waive the search, preparation and/or reproductions fees if ATIP has not given the requester proper written notice of such fees within 30-calendar days;
consider waiving all fees associated with preparing the records in a format that allows a person with a sensory disability to read or listen to the records, and;
consider waiving all fees if the OPC is late in responding to the requester and finds itself in a “deemed refusal” situation.