Archived - Privacy and Data Protection Guidelines - Excluded Information
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Confidences of the Queen's Privy Council for Canada
In order to preserve the confidentiality essential to the effective functioning of a Cabinet system of government, subsection 70(1) provides that the Privacy Act does not apply to confidences of the Queen's Privy Council for Canada. The Act does not give an exhaustive definition of what constitutes confidences of the Queen's Privy Council for Canada. However, the subsection does list some specific types of records without restricting the general definition. Government policy requires that government institutions consult with Legal Counsel, Privy Council Office, in all instances where information which may qualify as a Cabinet confidence has been identified in response to a request for access under the Act. Such consultation should be initiated by the legal counsel for the institution and involves transmittal to Privy Council Office of copies of the information, along with sufficient background material to enable a determination to be made (in accordance with the procedures set out in Appendix A).
Information which is excluded from the coverage of the Act should be distinguished from information which is exempted from disclosure under the Act. Exempted information is subject to review by the Privacy Commissioner and the Federal Court. Excluded information is not subject to review by either the Privacy Commissioner or the Federal Court.
In order to assist the Privacy Commissioner in conducting investigations, government institutions are required, upon request of the Commissioner, to certify that information is a confidence of the Queen's Privy Council for Canada within the meaning of section 70 of the Act. This is done through the departmental legal counsel in consultation with Counsel of the Privy Council Office.
Although the Privacy Act does not apply to information which is a confidence of the Queen's Privy Council for Canada, it is government policy that an individual's request for such information must be answered. The institution's response to the requestor should make reference to excluded information as well as exempted information (see Model Letters in Chapter 3-6).
Since requests are seldom received for personal information contained in confidences of the Queen's Privy Council, this issue is not discussed here at length. More detailed guidance on the principles and application of the exclusion for confidences of the Queen's Privy Council may be found in Chapter 2-6 of the Access to Information Volume. If, while reviewing documents in response to a request for access to personal information under the Privacy Act, information is found which may be a confidence of the Queen's Privy Council, that information should be sent to the institutional legal counsel for review and advice.
Other excluded information
Subsection 69(1) provides that the Act does not apply to:
- library or museum material made or acquired and preserved solely for public reference or exhibition purposes; or
- material placed in the National Archives, the National Library or the National Gallery of Canada, the Canadian Museum of Civilization, the Canadian Museum of Nature or the National Museum of Science and Technology by or on behalf of persons or organizations other than government institutions.
This means that personal information which falls into these categories is not protected by the provisions of the Privacy Act; nor is it accessible under the Act. As with Cabinet confidences, this information is simply not covered by the Act. Any request for access to such information should be answered, however, and in many cases the requestor may be informed of an alternate method of obtaining the information.
Appendix A - Cabinet Confidences
Procedure for the processing of Cabinet confidences
1. Review by Departmental Privacy Officials and Officials with Expertise in the Subject Area
Once the records relevant to the request for access have been identified, they are reviewed either by officials in the Access to Information and Privacy Office or by officials with subject area expertise, or both. If they consider any of the records or portions of any of the records to contain Cabinet confidences, they should indicate which records or portions of records are involved, and which paragraph under Section 70 they believe applies. For example, if one of the documents is a Memorandum to Cabinet, it should be marked "EXCLUDE - 70(1)(a)".
2. Consultation Required
Once the review process is completed, all records that may be Cabinet confidences or that may contain portions revealing the contents of Cabinet confidences must be sent to departmental legal counsel for review. Those records which legal counsel agrees may be or may contain Cabinet confidences must be sent to the Office of Counsel at the Privy Council Office. An explanation of why each record or portion of a record should be excluded must be sent along with the records. This information should preferably be presented in the form of a chart with a section for a description of the document, a section specifying the portion under review, the paragraph proposed for application, the reasons for proposing exclusion and a section where PCO Counsel may enter approval of the exclusion and/or comments.
3. Investigation of a Complaint
If the applicant complains about the refusal of access to requested records, an investigator from the Office of the Privacy Commissioner will ask to see all records to which the applicant was refused access. The investigator cannot have access to those records or portions of records for which an exclusion under section 70 was claimed. Only records from which Cabinet confidences have already been severed can be made available to the investigator or the Privacy Commissioner. The Commissioner may, however, request certification that records or parts of records are Cabinet confidences. Procedures for preparation of a certificate for the Privacy Commissioner are identical to the procedures for preparing a certificate for the Information Commissioner, as outlined in the Access to Information Volume, Chapter 3-4