Over the past several years Privacy Commissioners across Canada have been recommending that public bodies subject to Freedom of Information legislation, which includes local governments, adopt a system of proactive disclosure. The impetus behind the recommendation is to promote open government and, in part, the inability of some public bodies to meet the timelines required for disclosure under the Freedom of Information and Protection of Privacy Act (the “Act”).
In August 2010, Commissioner Denham issued her timeliness report with one of her key recommendations being that public bodies adopt a system of proactive disclosure. Again, in April 2011, she recommended that public bodies adopt proactive disclosure systems and noted she would be issuing a report in the coming weeks specifically on proactive disclosure intended to inform future government strategy on this topic.
One of the benefits noted for adopting a system of proactive disclosure is to reduce formal access requests made under the Act. Reports show that public bodies that have adopted proactive disclosure programs report reduced access requests.
Access requests are reduced when pubic bodies proactively disclose information because access requests are handled in established informal processes outside the Act. Under a system of proactive disclosure an applicant who makes a request for information subject to proactive disclosure is redirected to the appropriate department for handling or referred to a record repository. The department of record processes the request informally outside of the Act.
An applicant still has recourse to the formal processes under the Act if a department fails to release the information requested. Where this occurs, upon receiving the access request, the FOI coordinator would evaluate whether section 20 of the Act applies. A request for access can be refused under section 20 where the information is (a) available for purchase by the public, or (b) where the information will be released within 60 days. The 30-day time period under the Act would not be triggered until the 60 days has passed if the applicant is refused access under subsection 20 (b) and only if the department fails to release the information within the 60-day time period.
Commissioner Denham provided that, as a method of establishing a proactive disclosure system, public bodies establish a plan. The first step is to identify records commonly attracting access requests, followed by the development of a policy and procedure to guide departments in identifying records that can be released informally under the system. As a second step of the plan, she recommends that once the system is in place, new record categories can be created based on new access requests. Then general records released under the Act become part of the system. As the third step in the plan, she recommends public bodies create an electronic reading room where the records can be accessed by the pubic.
Developing a system of proactive disclosure will take time and resources to initiate. Local governments will need to assess the benefits of adopting such a system against the costs of establishing it. It is recommended that local governments at least begin thinking about their ability to proactively disclose information in recognition that proactive disclosure may become a legislated requirement. In a report issue by the all-party Special Committee reviewing the Act in May 2010, the committee recommended the Act be amended to require proactive disclosure. In Quebec, certain data sets of public bodies are subject to proactive disclosure by Regulation. Given the promotion across Canada by Privacy Commissioners for proactive disclosure, it is likely only a matter of time before we begin seeing legislated proactive disclosure requirements.