Archived - Access to Information Guidelines - Right of Access

This page has been archived on the Web

Information identified as archived is provided for reference, research or recordkeeping purposes. It is not subject to the Government of Canada Web Standards and has not been altered or updated since it was archived. Please contact us to request a format other than those available.

1. Introduction

Subsection 4(1) of the Act provides a right of access to records under the control of a government institution to Canadian citizens and permanent residents within the meaning of the Immigration Act, 1976.

Extension Order No. 1 (see Appendix A of Chapter 4-1), which became effective April 13, 1989, extends the right of access to include all individuals who are present in Canada (but who are not Canadian citizens or permanent residents) and all corporations present in Canada.

The term "present" denotes a physical presence in a geographic location. Therefore, the appropriate meaning of the phrase "present in Canada" is physically situated in the country.

While the Order does not provide for a minimum time period that an applicant must be present in Canada, requesters who are not Canadian citizens or permanent residents must be physically in the country both at the time that the request is filed and at the time that access is given. This requirement that the applicant must be present in Canada at both times is based on subsection 4(1) of the Access to Information Act which refers to an individual's right to be given access on request.

2. Determination of Presence

Determining whether an individual or corporation is present in Canada is a question of fact. To assist in this determination, a number of factors can be considered such as an address, postmark, telephone number or place of residence, work or education. The status of a requester may be easily determined from the information that has been provided in the applicant identification section of the access request form.

However, making this determination may be difficult if the request form is incomplete (i.e. not all the sections are filled in) or the attestation is not signed by the requester or insufficient information has been provided in the letter requesting access. In circumstances where it is difficult to determine the status of a requester, it will be necessary for institutions to contact the requester.

It is important that an institution satisfy itself that a requester is qualified to make a request and be able to attest to this fact. In the Federal Court case Glaxo Canada Inc. v. Minister of National Health and Welfare, (1990), 31 F.T.A. 286, brought pursuant to section 44 of the Act and upheld on appeal, the Court ordered that information not be released to a requester as there was no evidence that the institution had verified that the requester was properly qualified to apply under section 4. Institutions should therefore keep records regarding any verification exercise undertaken in this regard.

Unless there are indications that the requester was not present in Canada both at the time of filing the request and at the time of being given access, or that the requester is not a Canadian citizen or permanent resident, institutions may rely on the information that has been provided by the applicant.

3. Special Rules Relating to Third Party Objections

Institutions are most likely to deal with the issue of a requester's eligibility under section 4 when a third party puts it in issue in responding to a section 27 notice of intended disclosure of third party information.

Institutions will have to respond to these objections, keeping in mind that an individual requester's name cannot be disclosed to a third party as it constitutes personal information within the meaning of paragraph 3(i) of the Privacy Act. However, this would not apply to requesters which are corporations or to individual requesters which have consented to their name being released.

In responding to this type of objection, institutions should:

  1. satisfy themselves that the requester is entitled to request access under section 4;
  2. inform the objecting third party in its letter of decision issued under paragraph 28(1)(b) that it is satisfied as to the requester's entitlement to apply under section 4. The institution could indicate the reason it is satisfied, i.e. the requester certified in writing either on the standard Access Request Form or otherwise that he or she is eligible under section 4, or that the requester provided a return address in Canada.