Are public consultation processes exempt?

Subsection 5(5)(e) of the Regulation of Lobbying Act states that “communications requested by a public service body and published by it” are “excepted” (exempt) communications and are not regarded as lobbying. A submission made as part of a public consultation process would most likely be an exempt communication provided the submission was requested by the public service body and the public service body publishes it.

A relevant communication (lobbying activity) is one which is made personally (directly or indirectly) with a DPO. A call for submissions by a public body will generally establish a process by which submissions may be made. A generic email address, a mailing address or other contact information may be provided that does not include the name of a DPO. A person making a submission in accordance with this process would most likely not be making a "relevant communication" (carrying out a lobbying activity) as the person would not be communicating personally with a DPO.

In other instances, a name may be provided of an employee of the public body as the contact, who may or may not be a DPO. If the submission is made in accordance with the established process and is published by the public body, it would qualify for the exemption.  However, if the person making the submission deviates from the established process and sends it to a DPO instead of, or in addition to, the established process, it would be considered a lobbying activity and would not be exempt.

The submission must be published by the public service body. It is not sufficient for the person making the submission to publish the submission.  If a submission is not published by the public service body, it is not an exempt communication.

The Act does not set out a timeframe within which the public body must publish the submission.  It is important to confirm with the public body what their intention is regarding submissions.  If it is the case that the publication date is likely to extend beyond a second return period the person may wish to consider whether the public interest would be better served by submitting a return of lobbying activity in respect of the submission.

In some cases a public body may not publish the entire submission but may instead publish a summary of the person’s submission.  If the public body is only publishing a summary of the submission then the person making the submission would need to ensure that the information contained in the summary would be similar to that contained on the Register of Lobbying if the person had to submit a return of lobbying activity in respect of the submission i.e. who made the submission; what the submission was about and what outcome the person is seeking to achieve.

If a person is satisfied that a public body intends to publish his/her submission in a timely manner and in a format which will provide information similar to that which would be available in a return of lobbying activity, then the person may properly regard the submission as an excepted communication and not as a lobbying activity which must be included in a return to the Register of Lobbying.

If a person is in doubt, however, as to whether the public body intends publishing the necessary information, then the person may wish to exercise caution and consider including the submission in their return for the relevant period.

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