ACCESS TO INFORMATION AND PRIVACY (ATIP) PROCEDURE MANUAL PACIFIC REGION
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- Emery Lang
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1 ACCESS TO INFORMATION AND PRIVACY (ATIP) PROCEDURE MANUAL PACIFIC REGION 1
2 ACCESS TO INFORMATION AND PRIVACY PROCEDURES MANUAL TABLE OF CONTENTS Title Page Access to Information (What is Access to Information Act (ATI). 4-5 Access to Information Exceptions.. 6 Access to Information Exclusions... 7 Access to Information Act Exemptions Mandatory / Discretionary 8 Access to Information Act Government Information should be available to the public. 9 Access to information Request Form. 10 Access to Information Regional Procedures Quick Guide for Processing Atip Requests.. 13 Quick List of Information for Protection under Atip.. 14 Access to Information Return Memo Definition of a Communications Plan 16 Definitions to Help You 17 Definition of Search Estimate Justification Draft Document 21 Electronic Mail. 22 Quick Reference Retention Policy 28 Extensions. 29 Frequently asked Questions and Answers - ATIP HTML Format Rich Text Records Management Official Records.. 35 Search Estimate Form Transitory Records.. 39 Privacy (What is the Privacy Act) Personal Information Request Form 42 2
3 Info Source Personal Information and Protection of Electronic Documents Act (PIPEDA) Personal Information is defined in the Privacy Act. 48 Privacy Impact Assessment Policy PIA s Frequently Asked Questions and Answers PIA s
4 Access to Information What is Access to Information Act (ATI)? The ATI came into force in 1983 and provides a right of access to records under the control of a government institution except in limited and specific circumstances Who has access? Canadian citizens Permanent residents Persons present in Canada Not intended to replace existing procedures for disclosing information Fundamental Principles: Government information should be available to the public. Exceptions to the right of access should be limited and specific. Decisions on the non-disclosure of information should be reviewed independently of government. What is Accessible? Any record under the control of a government institution Section 3 of the Act defines a record as: any correspondence, memorandum, book, plan, map, drawing, pictorial or graphic work, photograph, film, microfilm, sound recording, videotape, machine readable record, and any other documentary material regardless of the physical form or characteristic and any copy thereof. How is it Accessible? Request must be in writing DFO must respond within 30 calendar days Time limit may be extended (s. 9) volume consultations with other governments consultations with third parties Your Responsibilities under ATI as a DFO Employee: Responsible to ensure that corporate information residing in textual and electronic format is identified, safeguarded and retained. In response to ATI requests, employees are required to provide all relevant information in their possession that responds to the subject matter of the request. Responsible to ensure that deadlines for requests are met. Responsible to ensure that they provide comments and recommendations regarding disclosure of records to ATI. What are the Most Commonly Claimed Exemptions/Exclusions used in DFO: - Federal-provincial affairs (s.14) - Personal information (s.19) - Confidential third party information (s.20) - Internal decision-making processes (s.21) - Solicitor-client privilege (s.23) For further information on ATI: Contact your Atip Advisor, ATIP Telephone: (604) , OR 4
5 FACT: Information under the control of a federal government institution may be sought under the provisions of the Access to Information Act by anyone in Canada. All government employees are responsible for protecting information and releasing information in accordance with the Act(s). Any question or concern about this should be directed to your Atip Advisor, ATIP. (604) All government employees are responsible for following proper records management practices and ensuring that their records are accurate, current and retrievable. FACT: There are 8 mandatory exemptions outlined in the Access to Information Act. Federal government institutions cannot release records in these categories unless certain conditions are met (e.g., consent of the third party affected or if the information is publicly available). This is as close to confidential as we get! Access to Information Act - Mandatory Exemptions Section Subject 13(1) Information obtained in confidence from other governments 16(3) Information obtained or prepared by the RCMP while performing policing services for provinces and municipalities 19(1) Personal Information 20(1)(a) Trade secrets of a third party 20 (1)(b) Financial, commercial, scientific or technical information supplied confidentially to DFO and is treated consistently in a confidential manner. 20(1)(c) Information the disclosure of which could reasonably be expected to result in material financial loss or gain to, or could reasonably be expected to prejudice the competitive position of a third party. 20(1)(d) Information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of a third party. 24(1) Statutory prohibitions (other acts/sections set out in Schedule II) 5
6 Access to Information Exceptions Principle 2 Exceptions to the Right of Access should be limited and Specific Exemptions Mandatory vs. Discretionary Harm Test (Specific, Current, Probable) Severability (s.25 of ATIA) We can protect certain information from being released. Exemptions: are sections of the Act that allows us to protect information. Having said that, it is govt s policy, and in keeping with the spirit and intent of the Act, to release information when there is no need to withhold it. Two types of Exemptions - Mandatory vs. Discretionary: Mandatory means we SHALL withhold the information, and Discretionary means we MAY withhold in the case of MAY we must exercise our discretion as to whether or not the exemption is necessary the weighing or balancing exercise of the harm There are three things to consider in that balancing act - disclosure of the information must: 1. reasonably be expected to prove harmful to the specific public or private interest 2. identify the detrimental effect at the time the exemption is claimed, or in the foreseeable future 3. reasonable likelihood of the injury occurring. The bottom line is: just because there may be an exemption that applies, we must use our discretion, and be capable of defending it. This is why your recommendations and comments on the documents you provide in response to an ATIP request are so vital to our being able to do our job properly. Also important to note that the only person who can apply the law is the A/Coordinator of ATIP Norma McLelland. She has the delegated authority from the Minister to do so. Section 25 of the Act - stipulates that departments shall disclose any part of a record that cannot be protected by an exemption. Therefore, even though part of a document may be not relevant to the subject of the request, unless that portion is sensitive in nature, we must disclose. 6
7 Access to Information Exclusions Excluded from Scope of Act: Published / Purchasable material Public library Museum material Confidences of the Queen s Privy Council Cabinet Confidences 20 years The Act has sections that are called Exclusions. This means there are certain types of records that are considered Outside the scope of the Act. Published material, material available for purchase, and other materials found in a library/museum are exclude from the act. It is DFO s practice to advise requesters of the types of published information that we have relevant to their ATIP request and where they can obtain a copy. Cabinet Confidences, s. 69: In order to preserve our Canadian Cabinet system of government the ability of Ministers to be able to express their views freely during the discussions leading up to Cabinet decisions - subsection 69(1) of the Access to Information Act provides that the Act does not apply to confidences of the Queen s Privy Council for Canada. Examples: Memos to Cabinet, Treasury Board Submissions, Communications between Federal Ministers and Draft Legislation. Even references to these documents may be considered Cabinet Confidences...i.e: Deck with bullet MC on Species at Risk scheduled for presentation to Cabinet - 31 October. 7
8 Access to Information Act Exemptions Mandatory / Discretionary Exemptions Mandatory: MANDATORY s. 13 Information Obtained in Confidence from other Governments s. 19 Personal Information s. 20 Third party information s. 24 Statutory Prohibitions Exemptions Discretionary: s. 14 Federal-provincial affairs s. 15 International affairs and defence s. 16(1) & (2) Law enforcement/investigations s. 17 Safety of individuals s. 18 Economic interests of Canada s. 21 Operations of government s. 22 Tests of audits s. 23 Solicitor-client privilege s. 26 Information to be published within 90 days 13 = eg: a letter sent to DFO by the province, that is classified confidential we MUST consult 19 = eg: race, national or ethnic origin, colour, religion, age or marital status, sin number etc. see the ACT for a more detailed description 20 = eg: catch data from a fisher is considered confidential third party information; per-diems, hourly rates on contracts etc. 24 = Statutory prohibitions are other Acts of parliament that can take precedence over the ATI Act eg: s.241 of the Federal Income Tax Act DISCRETIONARY 14 = eg: strategies of the federal government related to negotiations with a province 16(1)&(2) = eg: investigative report prepared by C & P regarding an ongoing illegal fishing case 17 = eg: violent individual that has access to information about a witness (very difficult section to prove) 18 = Economic Interests of Canada *21 = Advice and recommendations eg: options found in BN whereby a decision is yet to be made 22 = eg: questions on a competition that will be used again in future competitions 23 = eg: advice either sought or received from legal services / Justice 26 = eg: Audit report the department plans to post on the internet * We cannot apply section 21 to a report that was done by a consultant, as s.21 can only be applied to protect information INTERNAL decision making processes. The most commonly used exemptions in DFO are: 13, 14, 15, 16, 19, 20, 21 and 23. 8
9 Access to Information Act - Government Information should be available to the Public Principle 1 Government Info should be available: - This right of access is applicable not just to records created by DFO employees, but also to any record we have in our possession or over which we have control - For example - If we receive an ATIP request for all records on computer purchases, then DFO must provide copies of not just the records we created but also copies of all other information - records, , etc that we received from any other source whether it be from other government departments, the province, third parties, stakeholders, Joe Public, to name a few. -ATIP as last resort : - The Access to Information Act was not created to replace or limit procedures that already exist to provide information to the general public. That is to say - if you have documents that you would readily give copies of - to anyone who asked (i.e. member of MEDIA), then there is no need to refer them to ATIP to obtain the document. Some examples might include minutes of public consultation meetings, notices to fishers, copies of guides or standards, etc. It was intended that ATIP be a last resort to obtain government information - after all other avenues have failed. 9
10 Example of a Request Form 10
11 ACCESS TO INFORMATION (ATIP) REGIONAL PROCEDURES The following are basic procedures to be followed by Pacific Region staff when responding to requests made under the Access to Information Act. RECEIPT OF ATIP REQUEST IN OTTAWA: When an Access to Information and Privacy (ATIP) request is received in the ATIP Secretariat in Ottawa, it immediately commences the clock ticking on a legislated thirty (30) calendar day response time. The request is assigned a Departmental Number by the ATIP Officer in Ottawa before being sent to the Pacific Region. Ex.: ATI /mc A identifies that it is an Access Request; 2003 identifies the year in which it is received; 0212 is the sequential number assigned by the officer; mc identifies the officer who is assigned in Ottawa. 1) ATIP requests are sent by notification for retrieval of records to the Atip Advisor who in turn sends it to all program manager/staff who are responsible for the subject matter of the request. 2) ATIP requests must be treated on a priority basis. The Regional ATIP Advisor is responsible for setting the deadline for the program to respond with the relevant records. It is important to note that the Department is responsible for completing the requests within the established deadlines as they are based on statutory requirements. 3) When you receive a request read the wording carefully. If you have any questions, contact the Regional ATIP Advisor immediately to discuss. The 30-day time limit is legislated. 4) The program manager/staff will advise the Regional ATIP Advisor by if he/she has no involvement regarding the request or if another program has the information. If you have no records advise the ATIP Advisor by . 5) It is very important that you read and always complete the Access Request SEARCH FORM attached to all new requests and forward within 48 hours to the Regional ATIP Advisor Muriel Kinnear (see copy of search form attached). Check to see if the request has been sent to more than one OPI (office of primary interest). If so, you must get back to the Atip Advisor as soon as possible with your search fee estimate as the form applies to the entire Region, cumulatively. Please fill in a search estimate form regardless of the time it takes you. Ensure the search form is prepared by someone with knowledge of the subject and the files. A search form should include estimates of the total search time to identify relevant records, number of relevant records and number of offices/files and other records to be searched through. Include an explanation for the number of search hours submitted. This is required in case the requestor complains to the Information Commissioner about the number of search hours he/she has been billed. Your explanation will be used to defend the Department on the number of hours of search billed. Review time and photocopy time are to be excluded from your estimates. The Atip Advisor will collect and tally them up and inform you accordingly. The applicant will have to confirm a willingness to pay for time in excess of 5 hours. The time clock on the 30 days will stop while requestor is being consulted on search fees. Program staff will be notified if and when the records are to be retrieved, copied and forwarded to the Regional ATIP Advisor for review. 6) Once you are directed to go ahead, gather all information. When photocopying documents please do not double side copies. Any double sided copies must be converted to one sided copies only. You are required to submit two duplicate sets of files to the Regional ATIP Advisor for processing. If you are unsure of its relevance, send it anyway. YOU DO NOT HAVE THE LEGAL RIGHT TO SEVER ANY INFORMATION. The ATIP Officer in Ottawa will review all information, referencing the ATIP Act, and he/she will determine if information can or should be removed. The program manager/staff must review the records and cannot withhold documents. For example solicitor-clients or sensitive information must be included in the package, (do not sever any part of the documents). Notify the ATIP secretariat, in writing, (see attached sample return memo) which is attached to all 11
12 new requests and flag (do not write directly on the records) any concerns regarding the disclosure of the information you are providing. If the information is already publicly available notify your superior and the Secretariat of any possible need for communications plans/media lines or briefing material for the possible release of the information. If the information flagged by the OPI is not struck from the final release to the requestor, the ATIP Officer in Ottawa will contact the Atip Advisor and advise that the information was released, and the reason for the release. The Atip Advisor will relay this information back to the relevant OPI(s) and the Regional Director, Communications. 7) You can request an extension to the deadline date for gathering the information requested, only if the documentation requested is voluminous. Inform the Atip Advisor of your needs. Important things to remember when compiling your record response: Check to ensure that all attachments have been provided. Each individual OPI is to provide all of their records in response to a request even when numerous OPIs have identical documents. The Atip Secretariat in Ottawa will determine what constitutes a duplicate. records must be printed separately - there is to be no running on of s. In other words, each individual e- mail should be printed separately on its own page. (Problem are being encountered with different s being printed on the same page that do not necessarily relate to the request.) NOTE: All new ATIP requests received are sent to Terry Davis Regional Director Communications for review to determine if a Communications plan/media lines is required. ATIP information is located Additional ATIP Information is located
13 Quick Guide to Processing ATIP Requests This guide is intended as a quick reference only. 1. Request received from ATIP Advisor. Read the wording of the request carefully. If you have any questions, contact the ATIP Advisor to discuss. 2. Determine whether you have any relevant records. 3. If you have no records relevant to the request, advise the ATIP Advisor Muriel Kinnear by immediately. 4. If you know of another office/directorate/area/source that may have records relevant to the request, advise the ATIP Advisor Muriel Kinnear by If it has been determined that your area does hold records relevant to the request, calculate approximately how much time it will take to do the search. A search estimate must be submitted for each request no matter how little of time you may have. Justification must be provided for the amount of all time submitted. Search estimate form is to be returned with in 48 hours to the Atip Advisor Muriel Kinnear. 6. Gather all records by searching through all record holdings, both electronic (such as and MECTS) and hard copy. All efforts must be made to obtain the signed version of memos, letters and briefing notes. All records with attachments must be included. If unsure about the relevance of a record, send it anyway. The ATIP Officer in Ottawa will determine which records are relevant to the request. (Consultation with the requester may be necessary.) 7. Review all records carefully and identify which records (or parts thereof) you consider to be sensitive. It is not necessary for you to identify which section of the Act may be applied, that is the responsibility of the ATIP Directorate. Please do not write directly on the documents; use sticky flags instead. 8. Any double sided copies must be converted to one sided copies only. Send all records in duplicate sets. 9. Complete the Return memo (attached to the original ATIP tasking ) and provide it to ATIP Advisor, along with the records and your recommendations. It is essential not only to identify sensitive records, but to indicate why the information is sensitive. Do not sever any part of the records. 10. Contact your Atip Advisor or Regional Communications Director when you feel communications material is necessary due to sensitivities regarding the records. 11. Be prepared for ATIP to call for further discussion on review of the records 13
14 Quick List of Information for Protection under ATIP The following is a quick list of information that could possibly be protected under the Access to Information Act, and therefore should be identified when responding to an ATIP request. 1. Information Obtained in Confidence: From the Government of a Foreign State; From an International Organization of States; From the Government of a Province; From a Municipal or Regional Government. 2. Information which could be injurious to the conduct of federal-provincial affairs; 3. Information which could be injurious to the conduct of international affairs; the defense of Canada, or any state allied with Canada. 4. Information relating to law enforcement and investigations; 5. Information which could reasonably be expected to threaten the safety of individuals; 6. Information relating to the economic interests of Canada; 7. Personal information (address, telephone number, SIN numbers, etc.); 8. Third party information (e.g. trade secrets, financial, commercial, scientific or technical information, etc.); 9. Information that contains advice or recommendations; an account of consultations or deliberations; positions or plans developed for the purpose of negotiations; plans relating to the management of personnel or the administration of a government institution. Section 21 of the Access to Information Act which relates to Operations of Government and in particular advice and recommendations. The main purpose of the section 21 exemptions is to protect the internal decision-making processes of government. And yes, section 21 is used a lot on briefing notes because they of course are a primary source of recommendations and advice. See act for more on 21 if required. 10. Information relating to testing or auditing, procedures or techniques. 11. Information that is subject to solicitor-client privilege. 12. Information that the institution believes on reasonable grounds that the material will be published within 90 days of the request. Information which can be excluded is as follows: 1. Information which is publicly available; 2. Confidences of the Queen s Privy Council for Canada. 14
15 Example of Return Memo MEMORANDUM NOTE DE SERVICE Access to Information and Privacy To À Norma McLelland A/Director Coordinator Access to Information and Privacy Security Classification - Classification de sécurité UNCLASSIFIED Our file - Notre référence ATI- Your File - Votre référence From De Date Subject Object REQUEST NUMBER: ATI- I have no objections/concerns with the release of these records. I have no objections/concerns with the release of these records EXCEPT for pages flagged, which should be withheld because: (rationale must be provided to justify recommendation.) I recommend total exemption of all records for the following reasons: Some examples of sensitive records: part of on-going investigation, solicitor-client privilege, scientific research awaiting publication, would affect on-going negotiations, cabinet confidences. Communications plan required? Actual time spent searching. Actual time spent photocopying. Employee Group and level. (Employee Signs) (Date) (Regional or Area Director Signs) (Date) (Employee Prints Name) (Regional or Area Director Prints Name) (Employee Prints Title) (Regional or Area Director Prints Title) 15
16 Definition of a Communications Plan Communications Plan: An ATIP communications plan is needed when an issue is deemed controversial (or when it may lead to a party going to the media because of the ATIP information released). A communications plan helps to ensure that DFO (regionally and nationally) is on the same page about an approach to a specific issue. The plan explains the issue and background information, identifies the key players (audience), outlines the steps or actions that DFO will take to address the issue, contains media lines, and identifies a spokesperson. The plan is a tool that is developed by Communications Branch, and then approved in the region, NHQ and by the Minister's office. 16
17 Definitions to Help You DEFINITION OF OUTGOING CORRESPONDENCE Generally, a letter which is leaving the department and going to an outside entity. Often memorandums are use for outgoing correspondence and they would be included in this definition. Any other article that meets the criteria of outgoing or leaving the department and correspondence, which generally means to communicate in writing and often implies a back and forth communication. This would include copies of which are leaving the department and faxes if the fax contains a communication (as opposed to simply transmitting something else). Any attachments or enclosures to the outgoing correspondence would generally form part of the correspondence. DEFINITION OF MEMORANDA Generally, a government memorandum which is being transmitted internally but includes internal and internal faxes. Any other article that meets the criteria of internal communications of a relatively formal nature. For example, a yellow sticky or transmittal slip might not be considered to be a memo but a circular or briefing note would be. Also, any attachments referred to in the memo would be considered part of the memo. DEFINITION OF A RECORD A record is defined by the National Archives Act of Canada and, in addition to the regular paper based records, includes anything that contains information, such as video, audio tapes microfilm computer files and , voice mail, maps photographs, drawing notebooks or diagrams. GENERAL It is also important to ensure that you are reviewing actual correspondence or memos. Sometimes program staff will print the relevant items from their systems and provide them, but since they contain no dates nor signatures they would be considered drafts. It is very important to verify, before processing the records for a request, whether the applicant is seeking outgoing correspondence AND memos or just outgoing correspondence you would provide only with that which is required. 17
18 Definition of search estimate justification, Pacific Region Search time is the actual time it takes an individual to locate and identify a record as being relevant to the request The following may be of some help in clarifying on how to prepare an estimate of search time when estimating the time it will take to retrieve records responsive to a request. When preparing an estimate, take the following into account: 1. When deciding how long it will take to retrieve the relevant records, consider first how many files you have to look/search through, and how many pages (approximately) are in those files. Keep in mind that we can only charge for the search time it takes to locate/identify the relevant records. We cannot include in the search time estimate the time it takes to photocopy the records that charge is built into the photocopying cost of 20 cents per page which is charged to the requestor. At this stage, prior to completing a review for exemptions, we do not know if perhaps half of the records might end up being withheld and thus they would not be photocopied for the requestor. 2. When deciding how long it will take you to retrieve the relevant records, determine how much straight working time it would take to identify and remove the relevant records from the files. This does not mean that you are to work fulltime on the retrieval of the records. If it would take one full day to review the files and identify the relevant records, you do not have to pull the records out and send them to your ATIP Advisor in one day. If the retrieval involves a search for or through a large volume of records, we will take into account a situation where, due to other operational requirements, you cannot work full time only on the retrieval of the records. It is understood that you can only devote one or two hours per day to the retrieval of the records. An extension of time can be given retrieve the records. You must make this request to your Atip Advisor. 3. At this stage, all you should include in the estimate of search time is the number of hours it will take you to identify relevant records and send them to the Atip Advisor. The only amount of time that should be included in the estimate is the time taken to identify that a record is within the scope of the request and the time it takes to remove the records from the files. Do not include photocopying time. A more detailed search estimate justification is now being required. If the justification does not reasonably explain the number of hours being charged, the estimate form will be returned for verification. Examples by record type and filing format, 1) Electronic records the search through these records can be completed using a `key word search`. The estimate for this type of search cannot include the time it takes the computer to search nor the time it takes you to print the records located. 2) records the same `key word search` may be used and the same criteria applies as above. 3) Hardcopy records This type of record can exist in different formats dependant upon the operational requirements of your sector. a) Records filed by subject matter ie) for Habitat Biologists; files are generally by proponent/project. Therefore, if the request is for all records on that particular project, the only search would be the time it takes you to open your filing cabinet and locate the file labelled `project x`. If the request is for portions of that file however, then the search required would be calculated on the basis of how thick the file is. b) Records filed by type of record, ie) Briefing Notes if the request is for particular subject(s) and your file is by date, you would have to search through the entire file to find relevant records. This would result in a search estimate based on the thickness of the file. GUIDELINES: 12 inches or 30 cm of paper contains between 1,500 and 2,500 pages. It is estimated to take about 1 hour to search through 12 inches or (30 cm) of paper in order to determine which records are relevant. 18
19 RELEVANT RECORDS GUIDE Estimated Number of Relevant Records Guide: Example Approach # 1: To help make a determination on the number of estimated relevant records, the OPI should conduct a sample search. For instance, if you have 10 inches of records, select a sample of one inch. Review records to determine how many in the one inch are relevant. If there is one relevant record in the one inch, based on that ratio in the 10 inches of records there may be 10 relevant records: 1 inch = 1 record 10 inches = 10 records (potentially). Example Approach # 2: If you have one filing cabinet drawer full of memos and you know that there is one memo in the drawer that is relevant, but that you would have to search the 12 inches of records to locate it the number of potential relevant records would be one. Example of Justification which is required: Total search estimate time: 18 hrs. 6 notebooks approx. 2 thick ea. 12 paper (1 hr.) 4 ring binders approx. 3 thick ea. 12 paper (1 hr.) 60 current hard copy files 2 thick total 120 of paper (10 hrs.) 820 s approx. (2 hrs.) 24 of loose filing. (2hrs.) 12 archive files 2 thick ea. 24 inches (2 hrs.) Example of when a search estimate would not apply: If you have a room full of files relating to one topic and a request was received for that specific topic the hours of search would be nil, as you know the location of the files and each file relates to the request. Things to keep in mind when filling out an estimate. Ensure it is prepared by someone with knowledge of the subject and the files. Should include total search time to identify relevant records. Provide an estimate number of relevant records. Number of records (offices/files) to be searched through. Do not include photocopying time in time of search. Do not include driving from one office to another to locate files - the time spent driving cannot be included. Do not include the time needed to ascertain what information is judged to be protected and flagged. Return search estimates within 48 hours to the Atip Advisor in your region. Once all search estimates are received and tallied, the first five free hours are subtracted from the estimate and written notice is then sent to the requestor asking for the amount required for the balance of hours. For every hour in excess of five hours the applicant is charged $10.00 dollars an hour. 19
20 The requestor has a right to complain to the Information Commissioner about the amount he/she is being charged. If and when a complaint is submitted to the office of the Information Commission regarding the amount of fees charged, our HQ ATIP Office needs to be in a position to defend those fees. We require as much justification as possible on the search forms since without this justification we cannot defend the Department s position. If you have any further clarification or wish to discuss this matter, please do not hesitate to contact your ATIP Contact here in the Pacific Region. 20
21 Draft Documents The Treasury Board Guidelines state that draft documents are considered institutional information holdings under the policy on the Management of Government Information Holdings. Draft documents that must be kept - Drafts prepared in the process of making a decision or implementing a policy or other operation before the activity was completed and copies of drafts relating to such activities will be retained and filed where they are annotated or otherwise added to in a fashion which indicates the evolution of the document as it goes through the approval processes. - Drafts can be kept for historical efficiency and other purposes. It is good practice to retain documentation showing how and why the government chose to act in a certain way to show what options were considered and what were rejected and why. Many times the only record of that process and those choices is in the form of various drafts and/or copies of drafts on which handwritten comments have been added. - Retaining these drafts for future reference (when faced with another similar situation of why we choice a particular course of action over all other options). Before destroying any drafts ask yourself the following questions about draft records: Does it involve financial or legal matters or have policy, program procedure implications? Does it provide a record of why or how decisions and actions were taken? Does it provide information needed to account for activities? If the answer to any of the above questions is yes then the document should be retained and disposed of only in accordance with the Policy on the Management of Government Information and the National Archives Act. Transitory - If only you have worked on the document and have not shared it with anyone. - If no significant changes have been made. If you have a draft document that you consider to be transitory in nature, and you are made aware that your department has received a formal Access to Information request, relating to this information, then you must not destroy the draft. Also, keep in mind that you must retain draft versions as official records when they document evidence of approval or the evolution of a document or where they indicate changes in policy, approach or recommendations. 21
22 Electronic Mail Electronic Mail has become a major tool by which Public Service employees communicate among themselves. Once again, it is a technology which allows rapid transmission of information for interpersonal communications. It is used both as a means of formal communication and, in some circumstances, as the equivalent of informal verbal exchange. In this sense, electronic mail is no different than any other piece of information created or obtained by an institution in the carrying out of its business. Much of the information created in this way will have direct impact on the management of the institution and the various activities it carries out. This will vary from the simple call for a meeting with rough agenda to direction to prepare a major policy paper, some initial thoughts on how to proceed, or comments on a completed draft. This type of information should be filed as a record of the institution. Some messages will be ephemeral and may be equated with simple telephone messages. These may be discarded in accordance with appropriate disposal authorities approved by the National Archivist. When electronic mail has been copied to another filing system or forms part of the current directory and file for the actual electronic mail system then it would fall within the scope of a request. If a record exists when an access request is received, it is incumbent upon the institution to take reasonable measures to ensure that records relating to the subject of the request are not destroyed until the request has been completed, including any complaint or appeal process. Dockets transmitting access requests for processing should make clear that records relating to a request cannot be arbitrarily destroyed and that even where they may be scheduled for destruction under an approved schedule they should not be disposed of until the request (and subsequent complaint, if any) is fully processed, as personnel outside the Access Unit may not be aware of the requirement for retention in such circumstances. 22
23 IMRC - FMI: Quick Reference Cards - Questions And Answers This draft guidance in the form of Quick Reference Cards (Q's &A's) was developed by an interdepartmental working group. Various TBS policy centres have provided feedback and legal opinion is now being sought. The Q's &A's are generic, a quick "rule of thumb". Institutions may need to modify answers for their own specific situations. As this is an evolving guidance, we are seeking your feedback and additional Q's &A's that are non-institutional specific What is ? What do I need to know about sending an message? In which official language must s be sent for Service to the public? In which official language must s be sent within the federal government? What s should I keep? Where should I file ? Who is responsible for saving Institutional ? Do I need to file my ? Where should contractors/consultants working for the GoC file their ? 10. Which may I delete? 11. What should I consider about attachments to ? 12. Does Access to Information legislation apply to deleted that has been copied to backup tapes? 13. Does Access to Information legislation apply to created on a personal Internet account, e.g., Hotmail, Yahoo, using GoC equipment? 14. Are GoC consultants/contractors' accounts subject to a GoC ATI request? 15. Who owns the information ed by a consultant/contractor working for the GoC? 1. What is ? Any message, including attachments, sent or received electronically Includes the "envelope" or mail header and the message content Includes messages containing correspondence, meeting notices, tasks, etc. Includes messages in text, voice files, pictures, spreadsheets, executable files, etc. 23
24 Includes messages sent or received in desktop systems, chat rooms, web sites, personal digital assistants (PDA's) etc. 2. What do I need to know about sending an message? All messages must include: The sender's name, Institution, Telephone and fax numbers with area code and extension numbers, Postal and addresses. Where an address serves a program or service rather than an individual, contact information must include: The institution's name, Postal and address, Telephone and fax numbers, and teletypewriter (TTY) number when applicable. All messages must include the "Canada" word mark and institutional signature. In general, should be sent in both official languages when the official language of recipient(s) is not known. Depending on your security, in general "Protected C" and above should not be sent via . Example: Cabinet documents must not be sent via In which official language must s be sent for Service to the public? A. If the office must serve the public in both official languages: Sending if the official language of the addressee(s) is known, in that official language, or otherwise in both official languages; Responding to in the official language(s) of the addressee(s). B. If the office serves the public in only one official language: Sending if sending messages to its normal clientele use the official language which is the official language of the majority population of the province in which the office is located Responding to if the message received is not in the official language in which the office serves the public, apply procedures used by the institution for replying to correspondence of this kind, whether received as or as a letter if a unilingual office sends an on behalf of a bilingual office the official languages obligations of the latter must be respected 24
25 4. In which official language must s be sent within the federal government? A. Initiating or responding to s, from head office or an office from the NCR: 1. To all employees or to groups of employees in bilingual regions in language of work: in both official languages 2. To individual employees or an office in a bilingual region for language or work: in the official language of the actual addressee, if known, or otherwise in both official languages 3. To an employee or groups of employees in a unilingual region: in the language of work of that region if the head office of an institution, or any of its other offices in the NCR, adopts the approach of going beyond this requirement and sends s in both official languages to one unilingual region, it must treat the other unilingual regions the same way B. Special duties of offices of institutions having authority to direct, or provide services to, other institutions (e.g., TBS, PWGSC, Justice): 1. Initiating s to, or responding to s from, any employee or office: in the official language of the correspondent, if known, or in both official languages. C. Supervisors in bilingual regions for language of work sending s: 1. General requirements in a bilingual position or in an either/or position in the official language of choice of the person supervised in the official language required by the position, if person supervised is in a unilingual position; 2. When sending s to supervised employees whose required official language of work differs: must respect the above as a minimum may send s in both official languages to everyone in work unit. D. Persons in unilingual regions for language of work who supervise employees working in bilingual positions in bilingual regions: send in the official language chosen by the person(s) supervised. E. Persons supervising employees in a unilingual region for language of work: send s in the language of work of that region. F. Initiating or responding to s between persons working in unilingual regions whose language of work differs: both sender and receiver have choice of official language in which to exchange messages. 25
26 5. What s should I keep? s and/or attachments pertaining to the Institution's business, programs and services delivery activities, transactions and decision-making processes. For example: Information that Provides information about or evidence of what you and the institution have done, why it was done, who did it and what resulted. Reflects the position or business of the institution Initiates, authorizes or completes a business activity/ transaction Documents/records a decision or action Controls, supports, or documents program delivery 6. Where should I file ? should be filed in your institution's records, document, and information management system upon creation or receipt. 7. Who is responsible for saving Institutional ? The sender/originator - In the instance where you are the originator and you have created an message for response from one or several recipients, you must ensure that the original text and all responses that form the complete record are retained. An recipient must retain any received from an external source that contains information that does not exist elsewhere in the institution. This also applies if the recipient is only cc'ed Institutional contains information such as that pertaining to the institutes business, programs and services delivery activities, transactions and decision-making processes 8. Do I need to file my ? Yes. Messages that contain information created, received, acquired by or for the GoC in the course of doing business, program, and service delivery must be managed Information in the GoC is subject to legislation, regulations and policies. These include, but not limited to, access to information, privacy, security, archival, library, official languages, internet and intranet management, and institutional legislation, regulation and policy. 9. Where should contractors/consultants working for the GoC file their ? and attachments produced and/or collected under contract should be filed in the institution's electronic information management system and in keeping with the organization's established processes and procedures. Institutions need to ensure contractor/consultants working both off-site and on-site are aware of their responsibility to file and attachments produced and/or collected under contract. 26
27 Institutions need to make arrangements with the contractor for the handover and filing of the 10. Which may I delete? and attachments which are not related to the business, program and service delivery of the GoC -- related to views and opinions not reflected in the course of employment not pertaining to business activities, transactions and decision-making processes, e.g. duplicates, casual communications, information from automated distribution services, current awareness information received by from external sources e.g. media clips, information from listservs, and updates from personalized WebSites, commercial messages, spam etc. NOTE: You must not delete any or documents once an access to information (ATIP) request relating to the subject is received. 11. What should I consider about attachments to ? Does the recipient have the software to read the attachment? Is the size of the attachment reasonable? Restrictions on attaching security classified documents. Security classified documents must not be sent over the Internet i.e. Cabinet documents. 12. Does Access to Information legislation apply to deleted that has been copied to backup tapes? Yes. But, departments as a rule do not search their backup tapes for records unless specifically requested to do so, or required to do so by the Information Commissioner as part of a complaint investigation. Depending on the department, deleted items may reside on backup tapes, which are retained for different periods of time. In most cases, backup tapes are re-used or erased and then the information may not be available. 13. Does Access to Information legislation apply to created on a personal Internet account, e.g., Hotmail, Yahoo, using GoC equipment? Yes. However, certain personal messages may be exempted from access. Your Institutional Access to Information and Privacy Office will provide guidance. 14. Are GoC consultants/contractors' accounts subject to a GoC ATI request? Yes, for the information relating to or produced in accord with the terms of the contract or MOU with the GoC. 15. Who owns the information ed by a consultant/contractor working for the GoC? Ownership of the information will be defined in the MOU or contract agreement between the contractor and GoC. 27
28 Retention Policy Can we delete s? No, under section 67.1 of the Access to Information Act, it is a criminal offence to conceal, falsify alter or destroy government records. In all government operations there are a variety of records that are transitory in the sense that they are required only for a short period of time to ensure the completion of a routine action or the preparation of a subsequent record. These shortlived records are not essential in documenting the conduct of a department s business and they can therefore be destroyed this includes messages. However, before destroying any record including , ask yourself the following questions: Does it involve financial or legal matters or have policy, program or procedure implications? Does it provide a record of why or how decisions and actions were taken? Does it provide information needed to account for activities? If the answer to any of these is yes, then you are not dealing with a transitory record. The information must be retained and only disposed of in accordance with the Management of Government Information Policy and the National Archives Act. Remember, however, that once an ATIP request has been received, records usually considered transitory must not be deleted -- they then become records relevant to the request and must be provided to the ATIP office. The short answer to the question is that it depends if the answer to the above three questions was no then there should be no problem with the destruction of that . It is only when the is considered to be an official record (the answer to any one of the questions was yes) that the must be kept and only disposed of in accordance with the proper records management practices. In addition, please note that section 67.1 only applies if there is a deliberate intention to thwart access to records. The offence cannot be committed however when an employee is simply following the rules pertaining to proper records management and disposal. 28
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