An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts (S.C. 2019, c. 18)

• Marginal note:Reference to Parliamentary committee

  (2) Every report referred to in subsection (1) shall, after it is transmitted for tabling under that subsection, be referred to the committee designated or established by Parliament for the purpose of section 99.

Marginal note:Review by Federal Court — complainant

• 41 (1) A person who makes a complaint described in any of paragraphs 30(1)(a) to (e) and who receives a report under subsection 37(2) in respect of the complaint may, within 30 business days after the day on which the head of the government institution receives the report, apply to the Court for a review of the matter that is the subject of the complaint.

• Marginal note:Review by Federal Court — government institution

  (2) The head of a government institution who receives a report under subsection 37(2) may, within 30 business days after the day on which they receive it, apply to the Court for a review of any matter that is the subject of an order set out in the report.

• Marginal note:Review by Federal Court — third parties

  (3) If neither the person who made the complaint nor the head of the government institution makes an application under this section within the period for doing so, a third party who receives a report under subsection 37(2) may, within 10 business days after the expiry of the period referred to in subsection (1), apply to the Court for a review of the application of any exemption provided for under this Part that may apply to a record that might contain information described in subsection 20(1) and that is the subject of the complaint in respect of which the report is made.

• Marginal note:Review by Federal Court — Privacy Commissioner

  (4) If neither the person who made the complaint nor the head of the institution makes an application under this section within the period for doing so, the Privacy Commissioner, if he or she receives a report under subsection 37(2), may, within 10 business days after the expiry of the period referred to in subsection (1), apply to the Court for a review of any matter in relation to the disclosure of a record that might contain personal information and that is the subject of the complaint in respect of which the report is made.

• Marginal note:Respondents

  (5) The person who applies for a review under subsection (1), (3) or (4) may name only the head of the government institution concerned as the respondent to the proceedings. The head of the government institution who applies for a review under subsection (2) may name only the Information Commissioner as the respondent to the proceedings.

• Marginal note:Deemed date of receipt

  (6) For the purposes of this section, the head of the government institution is deemed to have received the report on the fifth business day after the date of the report.

Marginal note:Operation of order stayed

• 41.1 (1) Subject to subsection (2), the making of an application under section 41 operates as a stay of any order set out in a report received under subsection 37(2) by the person who made the application until the proceedings are finally concluded.

• Marginal note:Part of order operative

  (2) If all of the persons who received the report agree in writing, any part of the order that relates to a matter that is not the subject of the proceedings becomes operative.

Marginal note:Parties to review

• 41.2 (1) If a person who receives a report under subsection 37(2) applies to the Court for a review under section 41, any other person who received the report under that subsection has the right to appear as a party to the review.

• Marginal note:Scope of proceedings

  (2) If a complainant, a third party or the Privacy Commissioner files notice of their intention to appear as a party to a review with the Court within 10 business days after the expiry of the period referred to in subsection 41(1), they may raise for determination by the Court any matter in respect of which they may make an application under section 41.

• Marginal note:Burden of proof – party

  (3) If a third party or the Privacy Commissioner raises a matter for determination by the court under subsection (2), the burden of establishing that the disclosure of a record requested under this Part or a part of such a record is not authorized is on the person who raises the matter.

Marginal note:Information Commissioner may appear

42 The Information Commissioner may

• (a) appear before the Court on behalf of a complainant; or

• (b) appear as a party to any review applied for under section 41 or, with leave of the Court, as a party to any review applied for under section 44.

Marginal note:Service on head of government institution

• 43 (1) If a complainant, a third party or the Privacy Commissioner makes an application for a review under section 41, he or she shall immediately serve a copy of the originating document on the head of the government institution who received the report under subsection 37(2).

• Marginal note:Service or notice

  (2) If the head of a government institution makes an application for a review under section 41, he or she shall immediately serve a copy of the originating document on the persons who are entitled to be provided a report under subsection 37(2) and on the Information Commissioner. However, if the head of the institution is served with a copy of an originating document under subsection (1), he or she shall, as soon as possible after being served, give written notice of the application to those persons and to the Information Commissioner, unless any of those persons or the Commissioner has already been served with a copy of the document.

Marginal note:Third party may apply for review

• 44 (1) Any third party to whom the head of a government institution is required under paragraph 28(1)(b) to give notice of a decision to disclose a record or a part of a record under this Part may, within 20 days after the notice is given, apply to the Court for a review of the matter.

• Marginal note:Notice to person who requested record

  (2) The head of a government institution who has given notice under paragraph 28(1)(b) that a record requested under this Part or a part of such a record will be disclosed shall, on being given notice of an application made under subsection (1) in respect of the disclosure, give written notice of the application to the person who requested access to the record.

Marginal note:De novo review

44.1 For greater certainty, an application under section 41 or 44 is to be heard and determined as a new proceeding.

Marginal note:Hearing in summary way

45 An application made under section 41 or 44 is to be heard and determined in a summary way in accordance with any special rules made in respect of such applications under section 46 of the Federal Courts Act.

Marginal note:Access to records

46 Despite any other Act of Parliament, any privilege under the law of evidence, solicitor-client privilege or the professional secrecy of advocates and notaries and litigation privilege, the Court may, in the course of any proceedings before it arising from an application under section 41 or 44, examine any record to which this Part applies that is under the control of a government institution, and no such record may be withheld from the Court on any grounds.

Marginal note:Court to take precautions against disclosing

• 47 (1) In any proceedings before the Court arising from an application under section 41 or 44, the Court shall take every reasonable precaution, including, when appropriate, receiving representations ex parte and conducting hearings in camera, to avoid the disclosure by the Court or any person of

Marginal note:Burden of proof — subsection 41(1) or (2)

• 48 (1) In any proceedings before the Court arising from an application under subsection 41(1) or (2), the burden of establishing that the head of a government institution is authorized to refuse to disclose a record requested under this Part or a part of such a record or to make the decision or take the action that is the subject of the proceedings is on the government institution concerned.

• Marginal note:Burden of proof — subsection 41(3) or (4)

  (2) In any proceedings before the Court arising from an application under subsection 41(3) or (4), the burden of establishing that the head of a government institution is not authorized to disclose a record that is described in that subsection and requested under this Part or a part of such a record is on the person who made that application.

Marginal note:Order of Court if authorization to refuse disclosure found

50.1 The Court shall, if it determines that the head of a government institution is authorized to refuse to disclose a record or a part of a record on the basis of a provision of this Part not referred to in section 50 or that the head of the institution has reasonable grounds on which to refuse to disclose a record or a part of a record on the basis of section 14 or 15 or paragraph 16(1)(c) or (d) or 18(d), make an order declaring that the head of the institution is not required to comply with the provisions of the Information Commissioner’s order that relate to the matter that is the subject of the proceedings, or shall make any other order that it considers appropriate.

Marginal note:Order of Court — other decisions or actions

50.2 If the subject matter of the proceedings before the Court is the decision or action of the head of a government institution, other than a decision or action referred to in any of sections 49 to 50.1, the Court shall,

• (a) if it determines that the head of the institution is not authorized to make that decision or to take that action, make an order declaring that the head of the institution is required to comply with the provisions of the Information Commissioner’s order that relate to that matter, or make any other order that it considers appropriate; or

• (b) if it determines that the head of the institution is authorized to make that decision or to take that action, make an order declaring that the head of the institution is not required to comply with the provisions of the Information Commissioner’s order that relate to that matter, or make any other order that it considers appropriate.

Marginal note:Incompatible provisions

50.3 An order of the Court made under any of sections 49 to 50.2 has the effect of rescinding the provisions of the Information Commissioner’s order relating to any matter that is the subject of the proceedings that are incompatible with the Court’s order.

Marginal note:Court to specify rescinded provisions

50.4 The Court must specify in any order that it makes under any of sections 49 to 50.2 the provisions of the Information Commissioner’s order relating to any matter that is the subject of the proceedings that are rescinded under section 50.3.

Marginal note:Applications relating to international affairs or defence

• 52 (1) An application under section 41 relating to a record or a part of a record that the head of a government institution has refused to disclose by reason of paragraph 13(1)(a) or (b) or section 15 shall be heard and determined by the Chief Justice of the Federal Court or by any other judge of that Court that the Chief Justice may designate to hear those applications.

• Marginal note:Costs — important new principle

  (2) If the Court is of the opinion that an application for review under section 41 has raised an important new principle in relation to this Part, the Court shall order that costs be awarded to the applicant even if the applicant has not been successful in the result.

Marginal note:Duties generally

• 57 (1) An Assistant Information Commissioner shall engage exclusively in such duties or functions of the office of the Information Commissioner under this Part or under any other Act of Parliament as are delegated by the Information Commissioner to that Assistant Information Commissioner and shall not hold any other office under Her Majesty for reward or engage in any other employment for reward.

• (b) in any case, the powers, duties or functions set out in sections 36.1, 38 and 39.

• (ii) establish the grounds for findings, recommendations and orders set out in any report under this Part; or

Marginal note:Information not to be disclosed

64 In carrying out an investigation under this Act and in any report published under subsection 37(3.1) or made to Parliament under section 38 or 39, the Information Commissioner and any person acting on behalf or under the direction of the Information Commissioner shall take every reasonable precaution to avoid the disclosure of, and shall not disclose,

Marginal note:Part 1 does not apply to certain materials

68 This Part does not apply to

• (a) published material, other than material published under Part 2, or material available for purchase by the public;

Designated Minister’s Duties and Functions

• (b) prescribe any forms that may be required for the operation of this Part and the regulations made under this Part;

• (c) cause to be prepared and distributed to government institutions directives and guidelines concerning the operation of this Part and the regulations made under this Part; and

• (d) cause statistics to be collected on an annual basis for the purpose of assessing the compliance of government institutions with the provisions of this Part and the regulations relating to access to records and cause to be published on an annual basis a report containing a summary of those statistics.

Regulations

Marginal note:Governor in Council

71 The Governor in Council may make regulations

• (a) prescribing limitations in respect of the format in which records are to be provided under subsection 4(2.1);

• (b) prescribing limitations in respect of records that can be produced from machine readable records for the purpose of subsection 4(3);

• (c) prescribing the procedure to be followed in making and responding to a request for access to a record under this Part;

• (d) prescribing, for the purpose of subsection 8(1), the conditions under which a request may be transferred from one government institution to another;

• (e) prescribing a fee for the purposes of subsection 11(1);

• (f) prescribing, for the purpose of subsection 12(1), the manner or place in which access to a record or a part of a record shall be given;

• (g) specifying investigative bodies for the purpose of paragraph 16(1)(a);

• (h) specifying classes of investigations for the purpose of paragraph 16(4)(c); and

• (i) prescribing the procedures to be followed by the Information Commissioner and any person acting on behalf or under the direction of the Information Commissioner in examining or obtaining copies of records relevant to an investigation of a complaint in respect of a refusal to disclose a record or a part of a record under paragraph 13(1)(a) or (b) or section 15.

PART 2Proactive Publication of Information