2015 Chapter 7: Criminal liability and civil responsibility

An important aspect of an access to information law is a comprehensive regime of sanctions to address actions contrary to the right of access. Sanctions create an incentive to comply with the law. To be most effective, they must be proportionate to address a range of behaviours, from more serious actions made in bad faith to less serious actions that result in failing to meet the obligations under the law.

The Act contains two offences. The first (section 67) prohibits the obstruction of the Information Commissioner and anyone acting on her behalf or under her direction in the performance of their duties and functions under the Act.

In 1999, a second offence was added to the Act (section 67.1). This offence prohibits all persons from destroying, mutilating, altering, falsifying or concealing records with the intent of denying a right of access under the Act. It also forbids directing, proposing or causing anyone else to do any of the prohibited acts.

The Commissioner has found information related to the possible commission of an offence under section 67.1 on three occasions.^{Footnote 1}

The Commissioner has come to the conclusion that the Act needs a broader range of prohibited actions to cover all types of behaviours that may hinder the right of access. The Act also needs a spectrum of sanctions to allow for a proportionate response to behaviours that are contrary to the right of access.  

Obstruction

Section 67 of the Act prohibits obstructing the Commissioner in the performance of her duties.^{Footnote 2} It does not address obstructing the processing of an access request.

During the investigations that formed the basis of the Interference with Access to Information: Part 2 special report, the Commissioner uncovered evidence that the processing of several access requests had been interfered with.  

In order to address instances where the processing of an access request is obstructed, the Commissioner recommends that a new offence be added to the Act. Directing, proposing or causing anyone to do so should also be an offence under the Act.

Recommendation 7.1

The Information Commissioner recommends that obstructing the processing of an access request (or directing, proposing or causing anyone to do so) be added as an offence under the Act.

Section 67.1 applies to the destruction, mutilation, alteration, falsification or concealment of a record.  To be consistent throughout the Act, this section should be amended so that it is an offence to destroy, mutilate, alter, falsify or conceal any record or part thereof to deny the right of access.

Recommendation 7.2

The Information Commissioner recommends that section 67.1 prohibit destroying, mutilating, altering, falsifying or concealing a record or part thereof or directing, proposing or causing anyone to do those actions.

Failure to document

In light of the Commissioner’s recommendation in Chapter 2 to add to the Act a duty to document, the Act also needs to prohibit non-compliance with this obligation.

The Commissioner therefore recommends that failing to document or preserve a decision-making process with intent to deny the right of access be prohibited under the Act. Directing, proposing or causing anyone to do so should also be prohibited under the Act.

Recommendation 7.3

The Information Commissioner recommends that failing to document or preserve a decision-making process with intent to deny the right of access (or directing, proposing or causing anyone to do so) be prohibited under the Act.

Failure to report

In Chapter 2 the Commissioner also recommended establishing a duty to report to Library and Archives Canada the unauthorised destruction or loss of information, with a mandatory notification to the Commissioner.

In order to ensure compliance, failing to report to Library and Archives Canada and/or notify the Commissioner of the unauthorised destruction or loss of information should also be prohibited.

Recommendation 7.4

The Information Commissioner recommends that failing to report to Library and Archives Canada and/or notify the Information Commissioner of the unauthorised destruction or loss of information (or directing, proposing or causing anyone to do so) be prohibited under the Act.

Spectrum of sanctions

In order to address the broad range of prohibited behaviours discussed above, the Act needs to include a spectrum of sanctions. At one end of the spectrum are the criminal offences related to obstruction, then administrative monetary penalties, then, at the other end, disciplinary proceedings.

The Organization of American States model law envisages this approach and makes available criminal sanctions for certain wilful actions, but also fines and disciplinary proceedings for administrative offences.^{Footnote 3}

Adding a spectrum of sanctions to the Act has also been mentioned by the Government. In contemplating whether a duty to document should be added to the Act, the Government noted that “penalties for public servants who fail to create a record could range from disciplinary measures through an administrative monetary penalty to a criminal offence.”^{Footnote 4}

Spectrum of sanctions
	Criminal	Administrative monetary penalties	Disciplinary proceedings
Obstructing the Commissioner in the performance of her duties (section 67)	Yes	Yes	Yes
Obstructing the processing of an access request (new offence)	Yes	Yes	Yes
Destroying, mutilating, altering, falsifying or concealing information (section 67.1 as amended)	Yes	Yes	Yes
Failure to document	Yes	Yes	Yes
Failure to report and/or notify	No	Yes	Yes

No liability where acting in good faith

The Organization of American States model law also provides that no one will be subject to civil or criminal action or any employment detriment where they are acting in good faith in the exercise, performance or purported performance of any power or duty within the model law, as long as they acted reasonably and in good faith.^{Footnote 5}

This is an important aspect of the model law as it ensures that sanctions are only applied against those who act in bad faith or are negligent in the performance of their duties. The Commissioner recommends that the Act should make clear that no one acting reasonably and in good faith in the performance of their duties under the Act will be subject to sanction.

Recommendation 7.5

The Information Commissioner recommends that no one acting reasonably and in good faith in the performance of their duties under the Act will be subject to sanction.

Criminal offences – increasing fines

The Commissioner is of the view that the fines under the Act need to be updated to accurately reflect the seriousness of these violations. The fines that can currently be levied are lower than what can be found in the offences section in other provincial access laws and in other federal regulatory schemes.^{Footnote 6}

Sanctions under the Act
	Section 67	Section 67.1
Summary Conviction	Up to a $1,000 fine	Up to a $5,000 fine and/or imprisonment for a term not exceeding six months
Indictable offenceFootnote 1b	N/A	Up to a $10,000 fine and/or imprisonment for a term not exceeding two years

The Commissioner recommends that the maximum fine for a summary conviction offence under the Act should be $5,000. This would be consistent with provincial laws and ensure consistency within the Act. For the indictable offence under section 67.1, the maximum fine should be increased to $25,000 to provide a stronger deterrent than currently exists against serious violations of the right of access. 

Recommendation 7.6

The Information Commissioner recommends increasing the maximum fine for summary convictions under the Act to $5,000 and to $25,000 for indictable offences.

Administrative monetary penalties

An administrative monetary penalty (AMP) is a compliance mechanism that is used for less serious contraventions of a law in order to encourage compliance. It also falls outside of the scope of criminal law. AMPs can be graduated based on the seriousness of the contravention and take various factors into consideration when determining the amount to be imposed.

As part of the spectrum of sanctions available under the Act, the Commissioner should have the authority to levy AMPs against any individual for breaches of any of the prohibited actions set out in this chapter (as set out in the table “Spectrum of sanctions”).

As noted above, the Government has mentioned an AMP regime.^{Footnote 7} As well, the Organization of American States model law also provides for an administrative regime of fines.

Including an AMP regime in the Act would allow the Commissioner to proportionately respond to the broad spectrum of actions she encounters that are not in compliance with the Act and, in so doing, protect the right of access.^{Footnote 8}

An example of an AMP regime can be found in the Conflict of Interest Act.^{Footnote 9} Included in this regime is that all AMPs that have been levied under this act are required to be published.^{Footnote 10} Adding such a regime has also been recommended by a Parliamentary Committee for the Lobbying Act. ^{Footnote 11}

The Commissioner recommends that an AMP regime be added to the Act. The regime should also require the publication of AMPs that have been imposed in order to heighten awareness of the obligations under the Act.

Recommendation 7.7

The Information Commissioner recommends an administrative monetary regime be added to the Act, which should include a requirement to publish any administrative monetary penalty imposed. 

Term and condition of employment for employees, directors and officers of institutions

As part of the spectrum of possible sanctions, disciplinary proceedings should be an option. In order to put in place this option, compliance with the Act must be a term and condition of employment.

Currently, employees must abide by the Values and Ethics Code for the Public Sector (the Code). There is a general obligation on all employees to carry out their duties in accordance with legislation, policies and directives; however, the Code does not highlight or specifically address employees’ obligations under the Access to Information Act.^{Footnote 12}

The Commissioner recommends that meeting obligations under the Act should be a term and condition of employment for employees, directors and officers of institutions. ^{Footnote 13}, ^{Footnote 14} Such a condition would make it clear to those that work in institutions that they have responsibilities under the Act, are accountable for meeting them, and are subject to disciplinary procedures when these obligations are not met.

The Commissioner recommends that such a provision resemble section 19 of the Conflict of Interest Act, which provides that compliance with that law is a condition of a person’s appointment or employment as a public office holder. In this instance, the recommended provision should be applicable to all employees, directors and officers of all institutions subject to the Act.

Recommendation 7.8

The Information Commissioner recommends that adherence to the requirements of the Access to Information Act be made a term and condition of employment for employees, directors and officers of institutions.

Referral of criminal offences

Suspending investigations

Recent enabling legislation of bodies that perform administrative investigationsprovide that administrative investigations must be immediately suspended where the investigative authority believes on reasonable grounds that a criminal offence on the same subject-matter of the administrative investigation has occurred. The investigative authority is then required to notify the relevant authorities.^{Footnote 15}

The Act contains no such provision to suspend investigations when the Commissioner has reasonable grounds to believe that a criminal offence has been committed.^{Footnote 16} The Commissioner therefore recommends that the Act be amended to require the suspension of investigations in such situations.

Recommendation 7.9

The Information Commissioner recommends that an investigation under the Act must be suspended when the Information Commissioner believes on reasonable grounds that a criminal offence on the same subject-matter of the investigation has occurred.

Notifying authorities

The Act imposes strict confidentiality obligations on the Commissioner (see Chapter 5), with few exceptions. Section 63(2) of the Act allows the Commissioner to disclose information to the Attorney General of Canada when she is of the view that she has evidence of an offence against a law of Canada or a province by a director, officer or employee of an institution.

The interaction between the Commissioner’s strict confidentiality obligations, the exemption in the Act for investigations of the Commissioner (section 16.1), and section 63(2) raises issues.

First, although section 63(2) of the Act sets out that the Commissioner is able to provide information when she is of the view that she has evidence of an offence, it doesn’t set out what information she can provide. 

Second, section 63(2) is limited to directors, officers or employees. This means the Commissioner may report on the conduct of those individuals only, and she may not report on the conduct of, for example, current and former consultants, contractors, or ministers and their exempt staff. ^{Footnote 17}

Finally, section 63(2) permits the Commissioner to report to the Attorney General of Canada, who is not charged with conducting criminal investigations.^{Footnote 18} This places the Attorney General in the unusual position of acting as a courier between the Commissioner and the appropriate criminal investigative authority. By contrast, the Federal Court has the discretion under the Act to provide information to an “appropriate authority” to conduct the relevant criminal investigation.^{Footnote 19} The enabling legislation of some of the agents of Parliament include similar provisions, but authorize the Agent of Parliament to provide the information to either the “relevant authority” or a peace officer having jurisdiction to investigate the alleged contravention.^{Footnote 20}

In order to address these issues, the Act must be amended to make clear that, despite her confidentiality obligations, the Commissioner is permitted to share information where she is of the view that a referral is warranted. The Act must also be amended to allow the Commissioner to share this information about anyone’s conduct to the appropriate authority.

Recommendation 7.10

The Information Commissioner recommends that the Information Commissioner be permitted to share any information to the appropriate authority where the Information Commissioner believes a referral is warranted about anyone’s conduct related to a criminal offence.