Archived - Access to Information Guidelines - Specific Exemptions

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1. Information obtained "in confidence" (Section 13)

Subsection 13(1) of the Access to Information Act provides that a government institution shall refuse to disclose any record that contains information that was obtained "in confidence" from:

(a) the government of a foreign state or institution thereof;

(b) an international organization of states or an institution thereof;

(c) the government of a province or an institution thereof; or

(d) a municipal or regional government established by, or pursuant to, an Act of the legislature of a province or an institution of such a government.

This is a mandatory class exemption. The term "in confidence" means that the supplier of the information has stipulated that the information is not available for dissemination beyond the government institutions which have a need to know the information. It should be noted that the exemption does not include constituent parts of foreign states (e.g. state governments in the United States).

This exemption protects information provided "in confidence" both formally and informally, by officials of other governments or international organizations and their institutions. In order to ensure that a claim for exemption in this area can be adequately proved, institutions should obtain in writing at the time of receipt of the record concerned notification or a statement from the supplier of the information indicating that it is being supplied "in confidence". Wherever feasible, it is advisable that government institutions have agreements with other governments, international organizations or their institutions stipulating those types of information which are exchanged "in confidence". In the case of oral communications, of which a record is made, the federal government employee making the record should determine whether or not the supplier of the information considered it to have been given "in confidence" and if so, ensure that the record of communication is labelled as such.

Where the status of information provided to a government institution prior to the proclamation of the Act is in doubt, the institution which originally obtained the information should consult the other government or international organization which provided the information, at the time an access request is received, to determine whether or not it considers that the information was provided "in confidence" and retains that status.

Copies of information received "in confidence" by one government institution are often in the files of several other government institutions. Because of the mandatory nature of this exemption, it is important that all copies of such information be protected from disclosure. To ensure such protection, government institutions receiving information "in confidence" from other governments or international organizations should ensure that the information is marked as having been obtained "in confidence" and the source indicated before copying for distribution to other government institutions. Further, government institutions should not disclose information marked in any way as being received "in confidence" that was provided to them by another federal government institution without first consulting with the government institution having provided the information to verify whether or not the "in confidence" status still applies to the information requested.

Where institutions are in receipt of documents which are clearly misclassified (such as thank you notes marked confidential), the supplying government or organization should be contacted and asked to agree to declassification of the document. If declassified, all parties with whom the document has been shared should be so notified. The point to bear in mind in such situations is that the content, not the classification of a document, is the determinant factor when considering disclosure.

Permissible disclosure

Subsection 13(2) of the Access to Information Act provides that the head of a government institution may disclose information obtained "in confidence" from another government or an international organization if the government or organization from which the information was obtained:

(a) consents to the disclosure; or

(b) makes the information public.

This subsection permits some limited discretion to a government institution in dealing with requests for access to information given "in confidence". When an institution has some doubt as to the continuing confidentiality of the information involved, it should contact the government or organization in order to seek its consent to release the information. When dealing with foreign governments or international organizations, such consultation must be carried out in accordance with the guidance covering such circumstances in section 9 of Chapter 2-7. Further, if the government or organization which provided the information takes the initiative and makes such information public, then a government institution may choose to release the information as well.

It should be borne in mind that the disclosure permitted by this subsection is discretionary and that there is no absolute requirement for an institution to release information given "in confidence" by another government or an international organization, even if the conditions set out in subsection 13(2) are met, though in most cases it would do so. When considering how to treat information in such circumstances, it should be kept in mind that although the application of subsection 13(1) may not be considered appropriate, other exemptions may be applicable.

2. Federal-provincial affairs (Section 14)

Section 14 of the Access to Information Act provides that a government institution may refuse to disclose any record that contains information the disclosure of which could reasonably be expected to be injurious to the conduct by the Government of Canada of federal-provincial affairs. Examples given in the Act of types of information which might be covered by this provision are information:

(a) on federal-provincial consultations or deliberations; or

(b) on strategy or tactics adopted or to be adopted by the Government of Canada relating to the conduct of federal-provincial affairs.

This is a discretionary exemption based on an injury test. It is specifically aimed at protecting the role of the federal government in its conduct of federal-provincial affairs. To invoke this exemption, a government institution should be convinced that disclosure of specific information could reasonably be expected to be injurious to its conduct of, or its role in, federal-provincial affairs. The categories of information (i.e. consultations, deliberations, strategy and tactics) are provided to illustrate types of information the release of which might prove injurious. The list is not exhaustive and other types of records relating to the activities of the federal government in federal-provincial affairs may also qualify for exemption. It is equally important to note that these categories of information are illustrative only and the reasonable likelihood of injury must be present before any information may be exempted under this provision.

Generally, injury in regard to federal-provincial affairs is most likely where the federal government is either about to commence or is in the midst of conducting specific negotiations, deliberations or consultations. There are, however, types of information such as negotiating positions, tactics and strategies, the disclosure of which could continue to jeopardize the position of the federal government in conducting federal-provincial affairs in the future or seriously affect its relations with one or more provincial governments. Information which continues to be sensitive should be protected until there is no probability of injury.

Although both paragraph 13(1)(c) and section 14 concern provincial-related information, the interests being protected by these two exemptions are quite different. While section 13 protects as a class all types of information which a province has supplied in confidence to the federal government, the use of section 14 is restricted to specific information, the release of which could be harmful to the federal government's role in the conduct of federal-provincial affairs.

Institutions should consult with the Federal-Provincial Relations Office of the Privy Council Office before disclosing information relating to federal-provincial affairs.

3. International affairs, defence and national security (Section 15)

Section 15 of the Access to Information Act provides that a government institution may refuse to disclose any record that contains information the disclosure of which could reasonably be expected to be injurious to the conduct of international affairs, the defence of Canada or any state allied or associated with Canada, or the detection, prevention or suppression of subversive or hostile activities.

This is a discretionary exemption based on an injury test as applied to three general public interest areas. Access to information requested may be denied if disclosure could reasonably be expected to be injurious to:

(a) "The conduct of international affairs": This includes not only state to state affairs but also commercial, cultural or scientific links established by citizens with counterparts in other countries.

(b) "The defence of Canada or any state allied or associated with Canada": An "allied state" is one with which Canada has concluded formal alliances or treaties. An "associated state" is another state with which Canada may be linked for trade or other purposes outside the scope of a formal alliance.

(c) "The detection, prevention or suppression of subversive or hostile activities": This exemption protects specific types of information relating to the security of Canada.

Subsection 15(2) of the Act defines the terms "defence of Canada or any state allied or associated with Canada" and "subversive or hostile activities".

"Defence of Canada or any state allied or associated with Canada" includes the efforts of Canada and of foreign states toward the detection, prevention or suppression of activities of any foreign state directed toward actual or potential attack or other acts of aggression against Canada or any state allied or associated with Canada.

"Subversive or hostile activities" means:

(a) espionage against Canada or any state allied with or associated with Canada;

(b) sabotage;

(c) activities directed toward the commission of terrorist acts, including hijacking, in or against Canada or foreign states;

(d) activities directed toward accomplishing government change within Canada or foreign states by the use of or encouragement of the use of force, violence or any criminal means;

(e) activities directed toward gathering information used for intelligence purposes that relates to Canada or any state allied or associated with Canada; and

(f) activities directed toward threatening the safety of Canadians, employees of the Government of Canada or property of the Government of Canada outside Canada.

Two of the three public interests mentioned in the introductory paragraph of subsection 15(1) are defined in subsection 15(2). It is important to note that "defence of Canada…" is defined inclusively, meaning that it is described in general terms. The definition does not, therefore, limit the types of information relating to defence which may qualify for the exemption. On the other hand, the phrase "subversive or hostile activities" is defined restrictively. This means that the definition is specific and comprehensive. The exemption may only be invoked for the specific activities listed in the definition. Information relating to other security or intelligence activities such as security screening, immigration and citizenship vetting, domestic vital points and security inspections may only be exempted under this provision where it relates to one of the activities outlined in paragraphs 15(2)(a) to (f) of the Act.

Types of information

Paragraphs (a) through (i) of subsection 15(1) of the Act list specific types of information which are likely to be covered by the exemption. This list of examples is only illustrative of the types of information which could give rise to an injury to one of the three specified interests. It is essential to remember, however, that the types of information listed in these paragraphs cannot be exempted as a class under subsection 15(1). The provision is an injury test exemption and, in order that the exemption apply to any category of information described therein, it is necessary that the head of a government institution be able to demonstrate that disclosure of the information requested could reasonably be expected to result in injury to one of the three public interests specified (i.e. "conduct of international affairs"; "defence of Canada…"; or "detection, prevention or suppression of subversive or hostile activities").

Paragraphs 15(1)(a) to (i) list the types of information as follows:

(a) any such information relating to military tactics or strategy, or relating to military exercises or operations undertaken in preparation for hostilities or in connection with the detection, prevention or suppression of subversive or hostile activities. This provision deals with a range of military plans encompassing both strategy (e.g. plans for intercontinental war) and tactics (e.g. plans for theatre operations) and with the implementation of those plans in exercises or real operations. The paragraph also deals with military exercises or operations undertaken for national security purposes (i.e. "in connection with the detection, prevention or suppression of subversive or hostile activities");

(b) any such information relating to the quantity, characteristics, capabilities or deployment of weapons or other defence equipment or of anything being designed, developed, produced or considered for use as weapons or other defence equipment. This provision deals with information concerning weapons; both those in existence and those being designed.

"Defence equipment" is somewhat distinct from "weapons" in that it refers to equipment held by the Department of National Defence that is sensitive and requires protection;

(c) any such information relating to the characteristics, capabilities, performance, potential, deployment, functions or role of any defence establishment, of any military force, unit or personnel or of any organization or person responsible for the detection, prevention or suppression of subversive or hostile activities. This provision deals with defence establishments and military and national security personnel.

"Defence establishment" is defined in the National Defence Act as meaning "any area or structure under the control of the Minister (of National Defence), and the materiel and other things situated in or on any such area or structure";

(d) any such information obtained or prepared for the purpose of intelligence relating to:

  • the defence of Canada or any state allied or associated with Canada, or
  • the detection, prevention or suppression of subversive or hostile activities.

This paragraph deals with intelligence concerning defence and national security. Information "obtained or prepared for the purpose of intelligence" encompasses both the raw data collected ("obtained") as well as the refined product or analysis ("prepared");

(e) any such information obtained or prepared for the purpose of intelligence respecting foreign states, international organizations of states or citizens of foreign states used by the Government of Canada in the process of deliberation and consultation or in the conduct of international affairs. This paragraph deals with intelligence concerning international relations. Again, information "obtained or prepared for the purpose of intelligence" encompasses both the raw data collected and the refined product or analysis;

(f) any such information on methods of, and scientific or technical equipment for collecting, assessing or handling information referred to in paragraph (c) or (d) or on sources of such information. This paragraph deals with the collection, assessment and treatment of information obtained or prepared for the purpose of intelligence and matters incidental to intelligence;

(g) any such information on the positions adopted or to be adopted by the Government of Canada, governments of foreign states or international organizations of states for the purpose of present or future international negotiations. This paragraph deals with information relating to international negotiations. The exemption is restricted to present or future negotiations and does not encompass international negotiations which are past and completed (see also the discussion of "negotiations" in respect of paragraph 21(l)(c) of the Act);

(h) any such information that constitutes diplomatic correspondence exchanged with foreign states or international organizations of states or official correspondence exchanged with Canadian diplomatic missions or consular posts abroad. This paragraph covers information that is correspondence between states or governments or official exchanges between Canadian diplomatic and consular posts and Ottawa. The latter category is intended to cover political, military or economic reporting not directly associated with the production of intelligence if injury could reasonably be expected to result from disclosure. Since an injury test is involved, much official correspondence will likely not qualify for exemption. This is particularly true of correspondence relating to internal administration of posts, ministerial visits or cultural and public information programs;

(i) any such information relating to the communications or cryptographic systems of Canada or foreign states used:

  • for the conduct of international affairs,
  • for the defence of Canada or any state allied or associated with Canada, or
  • in relation to the detection, prevention or suppression of subversive or hostile activities.

In this paragraph, which deals with communications systems used for defence, international relations or national security, the term "cryptographic system" means ciphering and de-ciphering systems.

Consultation regarding Section 15

Government institutions are required by policy to consult:

(a) the Department of External Affairs before determining whether to exempt or disclose any information that could reasonably be expected to be injurious to the conduct of international affairs;

(b) the Department of National Defence before determining whether to exempt or disclose any information that could reasonably be expected to be injurious to the defence of Canada or any state allied or associated with Canada:

(c) the government institution having the primary interest (i.e. the Department of the Solicitor General, the Canadian Security Intelligence Service, the R.C.M.P., National Defence or External Affairs) before determining whether to exempt or disclose any information that could reasonably be expected be injurious to the detection, prevention, or suppression of subversive or hostile activities.

4. Law enforcement, Investigations and Security of Penal Institutions (Section 16)

Section 16 of the Access to Information Act is intended to protect:

(a) effective law enforcement, including criminal law enforcement;

(b) the integrity and effectiveness of other types of investigative activities (e.g. investigations in regulatory areas and air accident investigations);

(c) the security of penal institutions.

Paragraph 16(1)(a)

This paragraph provides that a government institution may refuse to disclose a record that contains information obtained or prepared by any government institution, or part of a government institution, that is an investigative body specified in the regulations in the course of lawful investigations pertaining to:

  • the detection, prevention or suppression of crime,
  • the enforcement of any law of Canada or a province, or
  • activities suspected of constituting threats to the security of Canada within the meaning of the Canadian Security Intelligence Service Act. It should be noted that this exemption only applies to records that are less than 20 years old.

This is a discretionary class test exemption which protects the law enforcement records of police forces and investigative bodies akin to police forces, listed in Schedule 1 of the Access to Information Regulations (see Chapter 4-2). This information is protected with a class test because of the difficulty in applying an injury test exemption to law enforcement records where virtually all information is of a sensitive nature.

According to the law, three conditions must all be met before the exemption can be claimed:

(a) It can be claimed only where the information has been obtained or prepared by those limited number of investigative bodies listed in the regulations.

(b) It can apply only to information obtained or prepared by such an investigative body in the course of a lawful investigation. This means that the investigation itself must be authorized or pursuant to law and not be against the law. It does not, however, address the issue of the legality of techniques used during a lawful investigation or the issue as to whether or not evidence has been illegally obtained.

(c) It applies only to information obtained or prepared by such an investigative body in the course of lawful investigations pertaining to:

  • the detection, prevention or suppression of crime,
  • the enforcement of any law of Canada or a province, or
  • activities suspected of constituting threats to the security of Canada.

This latter provision limits the application of the exemption to information obtained during the conduct of investigations relating to crime or law enforcement. Subparagraph 16(1)(a)(i) refers specifically to investigations undertaken for the purposes of enforcing the Criminal Code. It should be noted, however, that not all offences based on the criminal law power are included in the Criminal Code and not all offences in the Criminal Code are based on the criminal law power. Subparagraph 16(1)(a)(ii) refers to investigations directed toward activities which are prohibited under federal or provincial laws. These can, of course, include activities which are crimes and thus there is some overlap between subparagraphs 16(1)(a)(i) and (ii). Primarily, the activities referred to in 16(1)(a)(ii) are those punishable as offences under federal or provincial law. Potentially, however, subparagraph 16(1)(a)(ii) could extend to activities for which a civil law remedy exists. It should be noted that the term "law of a province" includes municipal laws.

Sub-paragraph 16(1)(a)(iii) focuses on activities suspected of constituting threats to the security of Canada within the meaning of the Canadian Security Intelligence Service Act. The exemption is not limited on its face to information collected by CSIS but can be claimed by one of the other investigative bodies listed in Schedule I to the Access to Information Regulations as long as the other criteria set out in paragraph 16(1)(a) are met.

Time Limitation

Paragraph 16(1)(a) applies only to records which are less than twenty years old. This does not mean that records covered by this exemption must automatically be disclosed pursuant to a request under the Access to Information Act once they are twenty years old. Rather, such records automatically fall outside the class test protection of paragraph 16(1)(a) and, if there is still a need to protect them, the injury test exemption in paragraph 16(1)(c) relating to records, the disclosure of which could reasonably be expected to be injurious to the enforcement of any law of Canada or a province, can be applied to them.

Use of Discretion

It should be remembered that, despite its class nature, paragraph 16(1)(a) is a discretionary exemption. Government institutions should, therefore, consider disclosing information covered by this class exemption where they are satisfied that no injury will result from the disclosure.

Consultation regarding Section 16(1)(a)

It is important to note that the exemption under paragraph 16(1)(a) follows the record. Thus, it may be claimed for a record in the hands of a government institution other than an investigative body listed in the regulations as long as the record was prepared by, or at one point came into the hands of such an investigative body in the course of an investigation relating to an activity described in paragraph 16(1)(a). Thus, for example, the Department of National Health and Welfare can claim an exemption under paragraph 16(1)(a) for a report it holds which was originally prepared by the RCMP during a narcotics investigation.

Prior to determining whether to exempt or disclose information under paragraph 16(1)(a), the policy requires that government institutions consult with the investigative body which originally obtained or prepared the information.

Paragraph 16(1)(b)

Paragraph 16(1)(b) provides that a government institution may refuse to disclose information relating to investigative techniques or plans for specific lawful investigations.

This is a discretionary class exemption with no time limit restricting its application. Any information relating to an investigative technique can be protected under this exemption. Plans, however, must relate to a specific lawful investigation. The term "lawful" means that the investigation itself must not be contrary to law. It does not, however, address the issue as to the legality of the investigative techniques used.

The types of investigations for which plans can be exempted is limited by the definition of the term investigation in subsection 16(4). The term is limited to those investigations that:

(a) pertain to the administration or enforcement of an Act of Parliament;

(b) are authorized by or pursuant to an Act of Parliament; or

(c) are within a class of investigations specified in the regulations.

The definition is more fully explained below under the heading "Subsection 16(4)".

Prior to determining whether to exempt or disclose information relating to investigative techniques or plans for specific lawful investigations, according to the policy, government institutions shall consult with the investigative body or other government institution with primary interest in the investigative technique or the specific investigation involved.

Paragraph 16(1)(c)

Paragraph 16(1)(c) provides that a government institution may refuse to disclose a record that contains information the disclosure of which could reasonably be expected to be injurious to the enforcement of any law of Canada or a province or to the conduct of lawful investigations. Examples of the types of information to which this exemption may apply are included in the Act. They are:

  • information relating to the existence or nature of a particular investigation,
  • information that would reveal the identity of a confidential source of information, or
  • information that was obtained or prepared in the course of investigations.

The types of information cited in this provision are illustrative only. Other types of information can qualify for the exemption but for the exemption to apply in any case injury must be proved.

The discretionary injury test exemptions in paragraph 16(1)(c) are of two kinds:

(i) Injury to the enforcement of any law of Canada or a province

This injury test exemption supplements the class test exemption for law enforcement information included in paragraph 16(1)(a). It may be claimed where injury to the enforcement of the law could reasonably be expected to result from the disclosure in situations where paragraph 16(1)(a) does not apply such as in cases where the records were not obtained or prepared by one of the investigative bodies listed in schedule I to the ATI Regulations or where the records are over 20 years old. Thus, it will apply to the enforcement of federal and provincial regulatory legislation prohibiting certain types of activities or behaviour (e.g. information obtained or prepared by inspectors enforcing such legislation as the Hazardous Products Act) and types of investigations such as taxation audits undertaken by Revenue Canada. It can also apply to the enforcement of civil law remedies for prohibited activities or behaviour such as exist under the Canadian Human Rights Act. Finally, the exemption could be applied to information the disclosure of which could reasonably be expected to be injurious to law enforcement but which was obtained or prepared outside the investigative process (e.g. information relating to detecting tax frauds or to computer programs used in law enforcement) and to information which would qualify under paragraph 16(1)(a) except that it came into existence twenty or more years prior to the request.

(ii) Injury to the conduct of lawful investigations

This exemption protects the integrity and effectiveness of those investigations which are not directed to the enforcement of law. Examples are investigations conducted to determine the cause of an accident, but not to lay charges or assess blame for the purposes of a civil remedy, and investigations into whether a person with a criminal record should be granted a pardon. Where, for instance, it can be shown that such investigative processes would be adversely affected by revealing the identity of persons providing information to the investigators on the basis that candour would be impaired, this exemption can be claimed to protect the identity of such persons or information from which their identity could be determined.

The type of investigation to which this exemption can be applied is limited in two ways:

(a) The investigation must be lawful. This means that it must not be contrary to law. It does not, however, address the issue of the legality of techniques used during a lawful investigation or the issue as to whether the evidence has been illegally obtained; and

(b) The investigation must come within the definition of the term in subsection 16(4). Therefore, it must

  • pertain to the administration or enforcement of an Act of Parliament;
  • be authorized by or pursuant to an Act of Parliament; or
  • be within a class of investigations specified in the regulations.

The definition is more fully explained under the heading "Subsection 16(4)". It should be noted, however, that other more general types of investigative activities not specifically authorized by federal law or undertaken for the purposes of administering or enforcing federal law, such as program evaluations, internal audits and other such studies and analyses would not qualify as an investigation under subsection 16(4) and, therefore, could not be exempted under this provision.

Prior to determining whether to exempt or disclose information on the basis of injury to the enforcement of a law of Canada or a province or the conduct of lawful investigations, according to the policy, government institutions must consult with the investigative body or other government institution with primary interest in the law being enforced or specific investigation involved.

Paragraph 16(1)(d)

Paragraph 16(1)(d) of the Act provides that a government institution may refuse to disclose a record that contains information the disclosure of which could reasonably be expected to be injurious to the security of a penal institution.

This is a discretionary exemption based on an injury test designed to protect information relating to the security of penal institutions, such as that which could be useful in an escape attempt or which relates to the location of arms storage facilities in an institution.

Prior to determining whether to exempt or disclose information on the basis of injury to the security of penal institutions, according to the policy, government institutions shall consult with Correctional Service Canada.

Subsection 16(2) – Facilitating the Commission of an Offence

Subsection 16(2) of the Access to Information Act provides that a government institution may refuse to disclose any record that contains information that could reasonably be expected to facilitate the commission of an offence. Examples of the types of information to which this exemption may apply are included in this provision. They are:

(a) any such information on criminal methods or techniques;

(b) any such information that is technical information relating to weapons or potential weapons; or

(c) any such information on the vulnerability of particular buildings or other structures or systems, including computer or communication systems, or methods employed to protect such buildings or other structures or systems.

This is a discretionary injury test exemption that provides specific protection for information that could reasonably be expected to facilitate the commission of an offence.

The list of information cited in the subsection is for illustrative purposes only and is not exhaustive. A government institution must have a reasonable expectation that the release of the specific information requested would facilitate the commission of an offence. Included in the exemption is information on criminal methods and techniques (i.e. the modus operandi of the criminal world). Included as well is information on weapons technology (e.g. how to make a bomb) and information relating to the vulnerability of both public and private sector buildings, structures or systems, including computer and communications systems, and methods employed to protect such buildings, structures and systems. A government institution may, for example, refuse to disclose the security plans or other information on the vulnerable aspects of federal government buildings and other installations that would be of strategic importance in civil emergencies or time of war.

Most of this information could most likely be protected under subsection 16(1) but the provision is intended to make it easier to process specific requests for information of this nature.

Subsection 16(3) – RCMP, Provincial and Municipal Policing Information

Subsection 16(3) provides that a government institution shall refuse to disclose any record that was obtained or prepared by the Royal Canadian Mounted Police while performing policing services for a province or a municipality pursuant to an arrangement made under section 20 of the Royal Canadian Mounted Police Act, where the Government of Canada has, on the request of the province or municipality, agreed not to disclose the information.

This is a mandatory class exemption to protect information obtained or prepared by the RCMP when performing its provincial or municipal policing role. It is included at the request of the provinces who contract with the federal government for provincial and municipal policing services by the RCMP. In order for exemption to be invoked, it is necessary that:

(a) the province or municipality request that the exemption be applied; and

(b) the federal government agree to the request.

It should be noted that the exemption applies not only while such information is held by the RCMP for provincial and municipal policing purposes but also when such information is used by the RCMP for some other purpose or is given to another government institution for another use or purpose. Where information has been obtained or prepared by the RCMP while performing a provincial or municipal policing function and the federal government has, on the request of the province, agreed to not disclose the information, the RCMP should, when sharing this information with another government institution, clearly indicate the origin of the record and the fact that this exemption applies.

Subsection 16(4) – Definition of "Investigation"

Subsection 16(4) of the Access to Information Act provides that for purposes of paragraphs 16(1)(b) and (c) "investigation" means an investigation that:

(a) pertains to the administration or enforcement of an Act of Parliament;

(b) is authorized by or pursuant to an Act of Parliament; or

(c) is within a class of investigation specified in these Regulations.

The definition limits the types of investigations for which the exemptions in paragraphs 16(1)(b) and (c) can be claimed to those specifically authorized by federal law or undertaken for the purposes of administering or enforcing federal law. The vast majority of investigations to which the exemptions can be applied are covered by paragraphs 16(4)(a) and (b). For example, an investigation such as that by the National Parole Board to determine if an individual should be granted a pardon under the Criminal Records Act would be covered by paragraph 16(4)(a). Investigations by safety officers under Part IV of the Canada Labour Code are an example of the types of investigations which would be covered by both paragraphs 16(4)(a) and (b). Paragraph 16(4)(b) would cover investigations of the type conducted by the Appeals and Investigations Branch of the Public Service Commission. Residual classes of investigations are provided for in paragraph 16(4)(c) and are listed in section 10 of the Access to Information Regulations (Chapter 4-2). An example of this class of investigations is an investigation established on an ad hoc basis into the loss of separation by air traffic controllers.

5. Safety of individuals (Section 17)

Section 17 of the Access to Information Act provides that a government institution may refuse to disclose any record that contains information the disclosure of which could reasonably be expected to threaten the safety of individuals.

This is a discretionary injury test exemption which permits a government institution to refuse access to information if it has reasonable grounds to expect that disclosure of the information could threaten the safety of an individual. This exemption will normally apply to information supplied by or about informers, that is individuals who provide information concerning criminal, subversive, or hostile activities but need not be exclusively so applied. It could also, for example, apply to information such as the floor plans of selected government buildings.

Before disclosing information supplied by another institution which could affect the safety of individuals, the policy requires that government institutions consult with the supplying institution to ensure that the disclosure will not physically endanger the individuals involved.

6. Economic interests of the Government of Canada (Section 18)

Section 18 of the Access to Information Act sets out a series of discretionary exemptions aimed at protecting trade secrets, financial, commercial, scientific and technical information belonging to the government; priority of publication of government researchers; the financial interests of the government of Canada and the government's ability to manage the economy of Canada. Each of these exemptions is discussed below.

Paragraph 18(a)

Paragraph 18(a) of the Act provides that a government institution may refuse to disclose any record that contains trade secrets or financial, commercial, scientific or technical information that belongs to the Government of Canada or a government institution and has substantial value or is reasonably likely to have substantial value. This paragraph provides for protection for proprietary information of the Government of Canada. It may include information that is patentable or that the government may want to licence.

This exemption is discretionary and is based upon a class test.

The permissive aspect of this paragraph is intended to temper the class approach to permit the disclosure of records which might technically qualify for an exemption but the release of which would cause no injury or harm, as discussed in Chapter 2-7, of these guidelines (Nature of Exemptions: Discretionary exemptions).

A trade secret is a recognized legal concept based upon case law. For a record to qualify under this paragraph as a trade secret, it must satisfy all of the criteria contained in the following list:

  • it must consist of information;
  • the information must be secret in an absolute or a relative sense (i.e. known only by one or a relatively small number of persons);
  • the possessor of the information must demonstrate that he has acted with the intention of treating the information as secret;
  • the information must be capable of industrial or commercial application; and
  • the possessor must have an interest (e.g. an economic interest) worthy of legal protection.

In addition to trade secrets, the same paragraph also protects financial, commercial, scientific or technical information belonging to the Government of Canada or a government institution listed in Schedule 1 to the Act. (Information belonging to other government institutions not covered by the Act is considered as third party information; see section 8 of this chapter). The information must have "substantial" as opposed to "nominal" value now, or must be reasonably likely to have such value in the future. For the purposes of this paragraph, value is to be interpreted as market value.

Market value of information can be directly established when a market already exists for such information or it is anticipated that it will exist in the future. An obvious example of information that may technically qualify for an exemption under this paragraph is research carried out by the National Research Council to be further developed by the private sector under various licensing arrangements.

Other types of similar information can also be determined to have substantial value in the market context (e.g. software packages) even if the information has not been developed with any immediate idea of developing a product on a commercial basis.

Any portion of the record(s) containing information relating to a third party can only be disclosed if it does not qualify for an exemption under section 20 of the Act.

Under subsection 20(2), an exemption under subsection 20(1) of the Act (Third party information) cannot be claimed for the mandatory disclosure of the results of product and environmental testing carried out by or on behalf of a government institution. Section 18 does not contain a similar provision precluding the application of paragraph 18(a) for the results of product or environmental testing where the information belongs to a government institution. Similarly, in accordance with government policy, results of product and environmental testing conducted by or on behalf of government institutions must not be exempted under paragraph 18(a). This will ensure that product and environmental tests carried out by the government for federal government institutions will be treated in the same way as test results carried out by or on behalf of government institutions on private sector products or activities.

Paragraph 18(b)

Paragraph 18(b) of the Act provides that a government institution may refuse to disclose any record that contains information the disclosure of which could reasonably be expected to prejudice the competitive position of a government institution.

This exemption is discretionary and is based on an injury test of prejudice to the competitive position of a government institution. It is intended to protect information the disclosure of which would weaken the competitive position of those government institutions which are in competition with the private sector. Crown corporations, not listed in Schedule I to the Act, cannot claim protection of paragraph 18(b) because they are not "government institutions" as defined by the Act. They are, however, "third parties" under the Act and their competitive position may be protected under paragraph 20(1)(c).

Paragraph 18(c)

Paragraph 18(c) of the Act provides that a government institution may refuse to disclose any record that contains scientific or technical information obtained through research by an officer or employee of a government institution, the disclosure of which could reasonably be expected to deprive the officer or employee of priority of publication.

This exemption is discretionary and is based upon an injury test. The paragraph recognizes the exclusive rights of officers or employees of a government institution to publish works based on scientific or technical research done by them while employed by the government institution. These rights are temporary because, upon publication, the background data is no longer covered by this exemption.

In order for this exemption to be invoked, the officer or employee must be actively engaged in the research with a reasonable expectation of publication.

This exemption does not extend to scientific or technical information produced from research done by an outside firm that is under a contract for services with a government institution.

Paragraph 18(d)

Paragraph 18(d) of the Act provides that a government institution may refuse to disclose any record that contains information the disclosure of which could reasonably be expected to be materially injurious to the financial interests of the Government of Canada or the ability of the Government of Canada to manage the economy of Canada or could reasonably be expected to result in an undue benefit to any person. This is followed in the Act by a list of illustrative types of information which is set out in full below.

This discretionary exemption, based upon an injury test, seeks to protect two areas of concern:

  1. the financial interests of the Government of Canada, which refers to the government's financial position, its ability to collect taxes and revenues and to protect its own interests in transactions with third parties or other governments; and
  2. the government's ability to manage the economy, whether by means of tax, monetary or fiscal policies and may include, for example, activities to combat inflation or unemployment, regional development, credit, balance of payments, fixing the bank rate or the price of commodities or resources.

The paragraph also seeks to avoid the result of an undue benefit accruing to any person through disclosure of information. The person who could reasonably be expected to benefit need not necessarily be the applicant in order for this paragraph to be invoked. "Undue" means more than necessary or improper.

Paragraph 18(d) ends with a list of examples of information the disclosure of which could reasonably be expected to affect one of the two areas of concern or result in an undue benefit to any person. The list includes information regarding:

  • the currency, coinage or legal tender of Canada;
  • a contemplated change in the rate of bank interest or in government borrowing;
  • a contemplated change in tariff rates, taxes, duties or any other revenue services;
  • a contemplated change in the conditions of operation of financial institutions;
  • a contemplated sale or purchase of securities or of foreign or Canadian currency; or
  • a contemplated sale or acquisition of land or property.

This list is not exhaustive. It is provided for illustrative purposes only and other types of similar records may also qualify for exemption. It is important to note, however, that records contained in the above or similar categories, such as, for example, the legal tender of Canada or a contemplated sale of land, are not exempt as a class; government institutions must demonstrate the reasonable likelihood of injury before information can be exempted under this paragraph.

Before invoking the exemption on the basis of financial interests or the ability of the government to manage the economy of Canada, government institutions should consult with the Department of Finance.

7. Personal information (Section 19)

Subsection 19(1) of the Access to Information Act provides that, subject to subsection 19(2), a government institution shall refuse to disclose any record containing personal information as defined in section 3 of the Privacy Act.

This is a mandatory class test exemption that, subject to the exceptions set out in subsection 19(2), prohibits the disclosure of personal information under the Access to Information Act. "Personal information" is defined in section 3 of the Privacy Act.

It should be noted that, despite the length of the definition, it is not comprehensive. The definition is intended, in part, to give examples of the type of information considered to be personal information and to indicate that the term is to be defined very broadly. Thus, information not specifically mentioned in the list, but clearly covered by the opening words, such as information relating to a person's lifestyle, income or sexual preference, is to be considered personal information. The definition of the term is discussed in greater detail in the policy on Privacy and Data Protection in another volume of the Treasury Board Manual.

Limitations on the Definition of Personal Information

Paragraphs (j), (k), (l) and (m) of the definition place certain limitations on the meaning of the term "personal information" when a request for information is made under the Access to Information Act. Paragraph (m) sets a time limitation on the type of information for which an exemption under section 19 can be claimed. Once an individual has been dead for twenty years, information about him or her is no longer considered to be personal information for the purposes of section 19.

Paragraphs (j), (k), and (l) exclude specific types of information, normally considered to be personal information, from the meaning of the term where a request for information is made under the Access to Information Act. Thus, a section 19 exemption cannot be claimed for information relating to the current or past positions or functions of a government employee (see paragraph (j)), information relating to services being performed or performed by an individual contracted by a government institution (see paragraph (k)), or information about a discretionary benefit of a financial nature conferred on an individual (see paragraph (l)).

These exclusions in paragraphs (j), (k) and (l) reflect the fact that there is certain information relating to government employees, persons performing services under contract for a government institution and discretionary benefits which, barring other considerations, the public has a right to know. The exclusions in these paragraphs should, however, be construed narrowly, bearing in mind that these are specific exclusions to the general principle that personal information should be exempt from the right of access under the Access to Information Act. Thus, for example, paragraphs (j) and (k) should be interpreted as applying to information of factual nature only. Personnel assessments and other subjective assessments of a person's job performance, conflict of interest declarations, or reports of disciplinary action taken against an employee or a person under contract, are not to be included. In referring to paragraph 3(k), the court in Information Commissioner of Canada v. Secretary of State for External Affairs (Dagg) (1989), [1990] 1. F.C. 395, 32 F.T.R. 161, found that the security classification on a call-up form relates to the position and not to the individual who filled the position. In paragraph (l), the phrase, "discretionary benefits of a financial nature" modifies the types of benefits to which the paragraph applies. In applying (l) to information relating to a license or permit obtained by an individual, for example, the benefit must be a direct financial benefit which has been conferred on the individual on a discretionary basis.

Permissive Disclosure

Subsection 19(2) of the Act provides that a government institution may disclose any record containing personal information if:

(a) the individual to whom it relates consents to the disclosure;

(b) the information is publicly available; or

(c) the disclosure is in accordance with section 8 of the Privacy Act.

This provision permits the release of personal information in certain circumstances where an individual has consented to waive his or her right to privacy, the information is already publicly known (e.g. the Prime Minister's address is 24 Sussex Drive), or the request would qualify for a permissive disclosure under subsection 8(2) of the Privacy Act. The provision allows institutions discretion to answer some requests for access which they would not otherwise be able to respond to because of the mandatory nature of this exemption.

It should be noted that subsection 19(2) of the Act was interpreted by the Federal Court in Information Commissioner v. Minister of Employment and Immigration (the Goldstein case), [1986] 3 F.C. 63, 5 F.T.R. 287. The issue was whether there was an obligation to disclose the personal information sought where the individual had consented. The Court concluded that while subsection 19(2) was, through the use of the word "may", permissive in nature, it nevertheless imposed a duty on the head of an institution to disclose where the conditions identified therein were fulfilled. The Court stated that:

"The language chosen expresses the intent to establish a discretion to release personal information under certain circumstances. Those conditions having been fulfilled, it becomes tantamount to an obligation upon the head of the government institution to do so, especially where the purpose for which the statute was enacted is, as here, to create a right of access in the public."

In the face of this interpretation the word "may" in subsection 19(2) of the Access to Information Act is to be interpreted as meaning "shall" when one of the conditions in paragraph (a), (b) or (c) is fulfilled, and assuming no other exemptions apply.

Government institutions must refer to policies relating to the obtaining of consent, determining when personal information is publicly available and governing disclosure under section 8 of the Privacy Act, before disclosing any personal information under subsection 19(2).

Where an individual is seeking access to information about himself or herself, he or she should, generally speaking, apply under the Privacy Act.

8. Third party information (Section 20)

Section 20 of the Access to Information Act deals with what is called third party information. As defined in section 3 of the Act, "third party" means, in respect of a request for access to a record under the Act, "any person, group of persons or organization other than the person that made the request or a government institution". The definition of third party, therefore, encompasses federal Crown corporations and other government organizations to which the Act does not apply (e.g. Canadian National Railways). Procedures respecting the notification of third parties where information about them or which would affect their interests is to be disclosed are set out in sections 27, 28 and 29 of the Act and are discussed in detail below.

A flowchart with the decision points required for determining the disclosure of third party information is provided in Chapter 3-5.

Subsection 20(1)

Subsection 20(1) of the Act protects from disclosure, on a mandatory basis, financial, commercial, scientific and technical information received from, pertaining to or affecting third parties. The application of the exemptions set out in paragraphs (a) through (d) of 20(1) may, in some circumstances, be affected by the operation of subsections 20(2), (5) or (6). These subsections are discussed separately below.

Trade secrets: Paragraph 20(1)(a)

Paragraph 20(1)(a) of the Act provides that a government institution shall refuse to disclose any record requested under this Act that contains trade secrets of a third party.

This is a mandatory exemption, based on a class test. A "trade secret" is a recognized legal concept which is chiefly the product of case law. The elements of a trade secret are the following:

  • it consists of information;
  • the information must be secret in an absolute or relative sense (i.e. known only by one or a relatively small number of persons);
  • the possessor of the information must demonstrate that he has acted with the intention to treat the information as secret;
  • the information must be capable of industrial or commercial application; and
  • the possessor must have an interest (e.g. an economic interest) worthy of legal protection.

For a record to qualify for this exemption, the information contained in it will have to satisfy all of the criteria contained in the above list. Research data or abstract ideas not capable of being used industrially or commercially cannot qualify for an exemption as a trade secret, but may qualify for exemption under paragraph 20(1)(b) or (c).

The Federal Court decisions rendered to date on the application of paragraph 20(1)(a) offer little assistance in defining a trade secret for purposes of the ATIA. In Intercontinental Packers Limited v. Minister of Agriculture et al. 1987, 14 F.T.R. 142; Court of Appeal (1988), 87 N.R. 9, both the Trial Division and the Court of Appeal rejected the applicant's contention that certain processes identified in the meat inspection audit team reports were trade secrets. In Merck Frost Canada v. Minister, Department of Health and Welfare, Health Protection Branch et al. (No. T-1442-87, June 21, 1988) the Court concluded on the facts that paragraph 20(1)(a) was unavailable to one particular document as the information had been disclosed elsewhere.

Confidential financial, commercial, scientific or technical information: Paragraph 20(1)(b)

Paragraph 20(1)(b) of the Act provides a mandatory class exemption for any record that contains financial, commercial, scientific or technical information that is confidential information supplied by a third party and is treated consistently in a confidential manner by the third party.

This exemption is intended to protect information of a confidential nature provided by a business or other commercial interest to the government, regardless whether it was provided pursuant to a statutory obligation or on a voluntary basis. Its purpose is to ensure that the obligation of the government to maintain this information on a confidential basis will continue, notwithstanding the Access to Information Act.

There are several elements which must be satisfied before this exemption applies:

(a) The information involved must be financial, commercial, scientific or technical information

This category can include, for example, profit & loss statements, auditors' reports, customer lists, licensing arrangements, formulae, designs, prototypes, production methods, and computer software.

(b) The information must be "confidential information"

The concept of "confidential information" as used in this exemption is a legal one which has been developed in Anglo-Canadian case law relating to actions for breach of confidence. It applies to information which is of value to the possessor of the information and which has been entrusted to another person in circumstances which create an obligation on that person to maintain the information in confidence. This obligation may be based in contract, expressed or implied, or may arise by virtue of the relationship of the parties and the circumstances under which the person to whom the information was provided learned the information.

It should be noted that this concept would certainly cover information which is a trade secret. However, it is a broader notion than a trade secret in that the information need not be capable of industrial or commercial application or use. The only requirement in respect of the secrecy of confidential information is that it not be in the public domain, that is not be generally known or be available for the asking.

(c) The information must have been supplied to the government institution by a "third party"

This exemption, therefore, only applies to information provided to the government and not to information which it generates itself.

(d) The information must be treated consistent]y in a confidential manner by the third party

As can be seen from the description above, the notion of "confidential information" is potentially very broad, as it is based on the relationship established between two parties. However, as a result of the limitation provided in this paragraph, the obligation on a government institution to maintain the information on a confidential basis will only apply vis-à-vis a third party who consistently treats the information involved in a confidential manner.

Government institutions receiving information on a confidential basis from third parties should ensure that the information is designated and labelled as such at the time of receipt. A designation of confidentiality does not of itself ensure that the information is exempt from access; it will still have to be examined on a case by case basis to see if it qualifies as confidential information and is treated consistently in a confidential manner.

Court decisions rendered to date illustrate that an objective test must be applied in determining whether information provided to the government by a third party is confidential information for purposes of paragraph 20(1)(b). The jurisprudence indicates that when applying this objective test, the institution or third party claiming the exemption must demonstrate that the information is confidential in nature and that the third party has consistently treated this information as confidential.

The requirement in paragraph 20(1)(b) that the information must have been supplied to a government institution by a third party was confirmed by the Court of Appeal in Canada Packers v. Minister of Agriculture et al. (1988), [1989] 1 F.C. 47, 53 D.L.R. (4th) 246.

Determining whether third party information is "confidential information" for purposes of paragraph 20(1)(b) was examined in Maislin Industries Limited v. Honourable Minister of Industry, Trade and Commerce et al., [1984] 1 F.C. 939, (1984) 10 D.L.R. (4th) 417, the first case to be decided under the Act. The Court concluded that information must be determined to be confidential by some objective standard rather than on the basis of the subjective considerations of the third party. The Court applied a two-fold objective test outlined above.

The objective test enunciated in Maislin was applied by the Court in DMR and Associates v. Minister of Supply and Services (1984), 11 C.P.R. (3d) 87 and again in Canadian Football League v. Minister of Fitness and Amateur Sports et al. (1989), 23 C.P.R. (3d) 297, 24 F.T.R. 62.

In the decision of Air Atonabee, c.o.b. under the firm name and style of City Express v. Minister of Transport (1989), 27 F.T.R. 194, Mr. Justice MacKay elaborated on the Maislin objective test in identifying three requirements for information to qualify as confidential:

  1. the information must not be available from sources otherwise accessible by the public nor obtainable by observation or independent study by a member of the public acting on his own;
  2. the information must originate and be communicated in circumstances giving rise to a reasonable expectation of confidence that it will not be disclosed; and
  3. the information, whether required by law or supplied gratuitously, must be communicated in the context of a relationship which is either fiduciary or not contrary to the public interest and which will be fostered "for public benefit by confidential communication".

However, the court in Information Commissioner v. Minister of External Affairs (McKinnon) (1990), 35 F.T.R. 177, characterized the three requirements identified in Air Atonabee as indicators, and not conditions, which help determine the confidential nature of information.

The nature of confidential financial information was considered by the Federal Court in a series of judgments involving various Indian bands, including Montana Band of Indians v. Minister of Indian and Northern Affairs (1988), 18 F.T.R. 15, 59 Alta. C.R.(2d) 373, 31 Admin. L.R. 241.

In Noël v. Great Lakes Pilotage Authority Ltd. et al. (1987), [1988] 2 F.C. 77, 45 B.C.R. (4th) 127, 20 F.T.R. 257, the Court listed several decisions, both Canadian and foreign, including the United States decision of National Parks Commission v. Morton et al, which case was referred to in Maislin. The Court also referred to Yar Slaviutych v. T.D. Baker et al in which the Supreme Court of Canada incorporated from Wigmore on Evidence four essential conditions with respect to confidentiality:

  1. The communications must originate in a confidence that they will not be disclosed.
  2. This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.
  3. The relation must be one which in the opinion of the community ought to be sedulously fostered.
  4. The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

All copies of information received on a confidential basis must receive equal protection from disclosure. Where government departments and agencies transmit copies of such information to other federal government institutions, the receiving institution shall not disclose information which it believes may have been received on a confidential basis without first consulting with the government institution that provided the information.

Material financial loss or gain or prejudice to the competitive position of the third party: Paragraph 20(1)(c)

Paragraph 20(1)(c) of the Act provides that government institutions shall refuse to disclose any record requested under the Act that contains 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 (Saint John Shipbuilding Limited v. Minister of Supply and Services (1988), 24 F.T.R. 32, affirmed on appeal, January 30, 1990, No. A-1094-88).

This is a mandatory exemption, based on an injury test. The paragraph applies to the disclosure of information supplied by or pertaining to a third party or which could reasonably be expected to affect any third party in the ways set out in the paragraph. In order to exempt the information, the law requires that the government institution have a reasonable expectation of (1) material financial loss to a third party, (2) material financial gain to a third party or (3) prejudice to the competitive position of a third party. None of these terms is defined in the Act but the word "material" has the meaning of "substantial" or "important".

Here, as in paragraph (d), the number of third parties potentially affected by any one disclosure of information could be large. The information in the record itself should be the basis to determine which are the third parties likely to be directly affected by the disclosure and this paragraph should be construed only to apply to them.

The following are some examples of types of information which might qualify for an exemption under this paragraph if the injuries specified in the exemption could reasonably be expected to result in harm:

  • information relating to the resource potential of a particular corporation;
  • confidential economic evaluations of a corporation such as those which are filed with regulatory bodies;
  • reports required to be filed with the government by manufacturers, for example those relating to design problems leading to automobile recalls.

Contractual or other negotiations: Paragraph 20(1)(d)

Paragraph 20(1)(d) of the Act provides that a government institution shall refuse to disclose any record requested under the Act that contains information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of a third party.

This is a mandatory exemption, based on an injury test, applied to any third party who could reasonably be expected to be prejudiced by the disclosure. The nature of the injury is self-explanatory. In applying the injury test, government institutions must determine whether disclosure of the record(s) requested could reasonably be expected to impair the ability of any third party likely to be directly affected by the disclosure to negotiate in a non-prejudicial environment whether or not the party is the submitter of the information.

The Courts have examined the evidence of harm required to meet the injury test of paragraphs 20(1)(c) and (d) by giving special attention to the meaning of the words "could reasonably be expected to". In Piller Sausages v. Minister of Agriculture et al. (1987), 14 F.T.R. 118, Justice Jerome concluded that "the evidence of harm must be detailed, convincing and describe a direct causation between disclosure and harm and must not merely provide grounds for speculation as to possible harm". However, the Court of Appeal in Canada Packers v. Minister of Agriculture rejected the test in Piller and concluded that paragraphs 20(1)(c) and (d) required a "reasonable expectation of probable harm". The Court of Appeal also noted that the words "could reasonably be expected to" did not imply a distinction between direct and indirect causality but only of what is reasonably to be expected and what is not. The reasonable expectation of probable harm test was also applied in the Canadian Football League, Air Atonabee and Saint John Shipbuilding cases. In Saint John Shipbuilding v. Minister of Supply and Services (1988), 24 F.T.R. 32; affirmed by the Federal Court of Appeal (January 30, 1990), No. A-1094-88, the court stated that the threshold of injury must be that of probability and not mere possibility or speculation.

The burden of proving injury to the financial interests of a third party can be an onerous one. See Gainers v. Minister of Agriculture et al. (1987), 14 F.T.R. 133; Court of Appeal (1988), 87 N.R. 94.

Environmental and product testing: Subsections 20(2), (3) and (4)

Under subsection 20(2) a government institution shall not, pursuant to subsection 20(1), refuse to disclose a part of a record if that part contains the results of product or environmental testing carried out by or on behalf of a government institution. So even if a record would be exempt from disclosure under subsection (1), a government institution is not permitted to claim exemption under subsection 20(1) for any part of the record which contains the results of product or environmental testing carried out by or on behalf of a government institution.

However, if the testing was done as a service to a person, a group of persons or an organization other than a government institution and for a fee, subsection 20(2) does not apply. Thus, for example, the provision does not apply to product testing done by the National Research Council on a commercial basis. The provision also does not apply to testing done by a third party and submitted to a government institution, either on a voluntary or mandatory basis.

Government institutions should note that it is only that part of the record dealing with the test results which is subject to this subsection and the part of the record containing the results will have to be severed from the rest of the record.

Subsection 20(4) provides that the results of product or environmental testing do not include the results of preliminary testing conducted for the purpose of developing test methods.

When the results of product and environmental testing are disclosed pursuant to subsection (2), under subsection 20(3), the government institution is required to provide the applicant with a written explanation of the methods used in conducting the tests. The requirement to create a new record is provided in order to ensure that test results, which could be misleading if released on their own, are understood.

Disclosure in accordance with subsection 20(2) is subject to third party notification procedures (see 8.1). It should be noted, however, that third party representations subsequent to notice of intended disclosure of testing results are limited to the issue of whether or not the information in question constitutes test results carried out by or on behalf of a government institution, which was not done as a service to person, group of persons or an organization other than a government institution and for a fee.

Permissive disclosure

(a) Consent: Subsection 20(5)

Release of information described in subsection 20(1) may be permitted, if the third party to whom the information relates consents to its disclosure, as provided in subsection 20(5). Such consent is deemed a waiver of the requirement that a third party be notified of intended disclosure pursuant to subsection 27(2).

This provision is intended to prevent situations where the institution would be under an obligation not to disclose a record even if the third party agreed to disclosure. Consent of the third party may be obtained at the time of submission, during informal consultation or in response to the notification of the intent to disclose by the government institution (section 27). Third party consent to disclose information described in subsection 20(1) shall be obtained by government institutions in writing.

(b) Disclosure in the Public Interest: Subsection 20(6)

Subsection 20(6) of the Access to Information Act provides that the head of a government institution may disclose any record requested under this Act, or any part thereof, that contains information described in paragraph (1)(b), (c) or (d) if such disclosure would be in the public interest as it relates to public health, public safety or protection of the environment and, if such public interest in disclosure clearly outweighs in importance any financial loss or gain to, prejudice to the competitive position of or interference with contractual or other negotiations of a third party.

Subsection 20(6) of the Access to Information Act is one of the most difficult provisions to apply. The difficulty derives from the discretion it bestows on heads of government institutions to disclose third party information that must otherwise be exempt on a mandatory basis by invoking a public interest "override". This test requires a balancing between the public interest as it relates to the important issues of public health, public safety or protection of the environment and the particular prejudice or injury which could occur to the third party as spelled out in paragraphs 20(1)(b), (c) or (d) of the Act. There is a fairly rigorous qualification that the public interest, as set out above, must "clearly outweigh in importance" the prejudice or injury to the third party. To apply the provision properly, it is necessary to understand its various components.

Discretion

Subsection 20(6) is discretionary but it makes heads of institutions responsible to form an opinion about the possibility of disclosing in the public interest information relating to public health, public safety or protection of the environment. It permits a government institution to disclose information otherwise protected under section 20 where the public interest test is satisfied. The subsection must, therefore, be read in conjunction with the purpose statement in the Act. Subsection 2(1) of the Access to Information Act sets out that one purpose of the Act is to extend the present laws of Canada to provide a right of access to information in accordance with the principle that government information should be available to the public.

Since the basic principle of the Act is to codify the public's right of access to government information, and given the significant and serious nature of the interests that must be considered for disclosure in the public interest, there is an onus on heads of institutions to consider seriously whether disclosure in the public interest clearly outweighs in importance the injury involved when exemptible third party information relates to public health, public safety or protection of the environment.

In instances involving denial of access under paragraphs 20(1)(b), (c) or (d) where the public interest override may apply and has not been considered, the Information Commissioner may examine the institution's mandate and, if it relates to one or more of the defined public interests, recommend to the head of the institution that subsection 20(6) be considered. Because of the relationship that exists between subsection 20(6) and paragraphs 20(1)(b), (c) or (d), institutions have a responsibility during the initial processing of a request to weigh the merit of arguments both for and against disclosure in the public interest.

Determination of Exemption

The public interest "override" comes into play only when records or parts of records are actually exempt under one or more of paragraphs 20(1)(b), (c) or (d). This may seem like an obvious statement, but whether particular documents qualify for such exemption is crucial in dealing with access requests that may involve a public interest disclosure. The most usual situation involves notifying a third party when an institution intends to disclose a record or part of a record unless the third party can present persuasive arguments as to why disclosure should not occur. In these instances it is extremely important that institutions consider carefully the possibility of disclosure in the public interest. If the records relate to public health, public safety or protection of the environment, institutions should ask third parties to furnish not only representations as to why they consider the information should be exempted but also reasons why disclosure in the public interest should not outweigh in importance the injury involved. A Model Letter, Notice to Third Party Regarding Justification of Exemption and Refusal of Public Interest Disclosure, is provided for this purpose (see Appendix P of Chapter 3-5).

Once the representations have been received, it is important that government institutions first thoroughly analyze the arguments presented by third parties to justify subsection 20(1) exemptions. It is essential before consideration is given to arguments for and against disclosure in the public interest. Where there is substantive doubt involving the validity of third party exemptions and the public interest "override" may become involved, institutions should seek advice from their legal counsel before proceeding with the requests and, if doubt remains, the legal counsel should consult with the Information Law and Privacy Section, Department of Justice.

If the third party fails to make representations, or their arguments for exemption under paragraphs 20(1)(b), (c) or (d) do not meet the test for exemption in the opinion of the head, then he or she should opt for disclosure, provided no other exemption applies. In both cases, the notification procedures set out in section 28 of the Act and 8.1 of this Chapter should be applied. According to these procedures, the notice issued under section 27 (Notice of Intention to Disclosure) should be followed by the section 28 (Notice of Decision to Disclose/Exempt), in all cases. (See Appendix E, Chapter 3-5). Costs permitting, all third party notices should be sent by double-registered mail.

If the institution accepts a third party's representations as substantiating an exemption under paragraphs 20(1)(b), (c) or (d), it must then consider the representations made against disclosure in the public interest and should notify the third party that it is doing so. In some instances, the possibility of release in the public interest will come to the attention of the institution only after third party representations on exemptions have been made. In such cases, it is important that the third party be given an opportunity to present written argument as to why release in the public interest should not apply. The same is true if the head of an institution accepts the recommendation of the Information Commissioner to consider a public interest "override". The third party must be notified and given the opportunity to make representations. The balancing test is identical, taking into account all relevant information both for and against disclosure. (See appendix D, Chapter 3-5).

Subsection 20(6) may also apply when the institution is already convinced, without consulting the third party involved, that the information qualifies for exemption under any one of paragraphs 20(1)(b), (c) or (d). If a substantive public interest as set out in subsection 20(6) is involved, whether the public interest "override" may justify disclosure must be carefully considered. Third parties must be notified to ask for additional facts to support reasons why the record should not be disclosed in the public interest. The model letter (see Chapter 3-5) has been prepared for such cases to ensure that third parties are fully aware of the type of representation required of them.

Scope of Application

The public interest "override" in subsection 20(6) applies only to the third party interests set out in paragraphs 20(1)(b), (c) or (d). It does not apply to trade secrets of a third party as set out in paragraph 20(1)(a).

Nature of Public Interest Test

The public interest relating to public health, public safety or protection of the environment must "clearly outweigh" in importance the prejudice or injury to third parties. Black's Law Dictionary, (Revised Fourth Edition), defines "clearly" as "visible, unmistakable, in words of no uncertain meaning". Thus the test is rigorous, narrowing the applicability of the public interest "override" set out in subsection 20(6).

Paragraph 20(1)(b)

Paragraph 20(1)(b) relates to financial, commercial, scientific or technical information given to a government institution by third party. The important point is that the information is supplied by the third party, afforded mandatory protection in those cases where one of the four criteria (financial, commercial, scientific or technical) are met, it qualifies as confidential information and, as such, is treated consistently in a confidential manner by that party.

In the instance of paragraph 20(1)(b), the records remain proprietary information of the third party that has supplied them with an understanding of confidence. To break that confidence is a serious matter which should involve a substantial and specific threat to public health, public safety or the environment. It is not enough that the information relates to a matter "of public interest" but rather there must be a specific and identifiable threat to the public interest which clearly overcomes the breach of confidence involved in releasing paragraph 20(1)(b) material.

In such instances, the conduct of the third party must be taken into account. Is there evidence of illegality, breach of a statutory authority or wilful misconduct? Is there a legal compulsion outside the Access to Information Act which leans toward disclosure" Such evidence greatly reduces the weight of harm that could result to the third party. What is the responsibility and mandate of the government institution controlling the information toward regulating threats to public health, safety or the environment? These are only some of the more general questions which should be taken into account.

Paragraphs 20(1)(c) and (d)

Paragraph 20(1)(c) provides mandatory protection for 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.

Paragraph 20(1)(d) provides similar protection for information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of a third party.

Paragraph 20(1)(c) has become the most common area for considering the "override" and is more likely to involve the public interest than paragraph 20(1)(d). Documentation often considered for exemption under 20(1)(c) includes inspection reports and audits relating to various aspects of health and safety and to regulatory and research reports connected with the approval of drugs, pesticides and other such substances. The information itself is often not created by a third party, rather, it is compiled by a government institution in carrying out a regulatory or enforcement activity.

Paragraph 20(1)(c) refers to injury that would result in material financial loss or gain to, or could reasonably be expected to prejudice the competitive position of, a third party. "Material" is interpreted in this context as "significant" or "important" and is considered to be measurable by actual evidence or data. In regard to competitive position, the injury or prejudice must reasonably be expected to occur. That is, the injury or prejudice must be found to be specific, current and probable and thus can be proven by actual evidence (see the discussion of "injury" in Chapter 2-7). In both cases, the test for exemption under 20(1)(c) is fairly rigorous and information that actually does qualify for the exemption, while not sharing the stronger protection of proprietary information, still requires a clear and compelling public interest in disclosure to meet the requirements in subsection 20(6).

There is, however, flexibility in considering the public interest "override" for records protected under paragraph 20(1)(c). In many instances, the institution may have created or compiled the information under a regulatory or enforcement mandate specifically relating to public health, public safety or protection of the environment. Also, in some cases, the injury or prejudice itself, while considerable, can be argued to be more remote or less directly attached to the third party. The question, then, is whether the public interest in the proper administration of government programs directly related to the public interests specified in subsection 20(6) clearly overcomes the obligation to protect the third party or its information. In such instances, the issues of magnitude and continuity come into play. Are the difficulties or infractions minor irritants found in most similar operations or cases or are they specific major difficulties that pose a specific threat to public health, public safety or the environment? Have the difficulties or infractions been corrected in an efficient and forthright manner? Has a product been withdrawn willingly as a result of research or inspection? Or has the third party not acted on the regulatory or enforcement notice allowing the danger to continue?

The answers to these questions must be carefully balanced against the third party's arguments for protection. Obviously, if the irritants are minor and have been corrected or even if they are major and have been corrected or a product withdrawn, then the public interest in disclosure is much less persuasive than if there are substantive and continuing problems or dangers. In some instances, in regard to information qualifying for exemption under paragraph 20(1)(c), there will be a public interest in disclosure which is serious but does not quite meet the factors set out above. Institutions mandated to protect public health, public safety or the environment may control information concerning a specific health hazard or safety problem relating either to a group of individuals or to the public as a whole (for example the long-term effects of a product that has been withdrawn) for which their regulatory obligation or the need to maintain public confidence in that system overrides any injury or prejudice to a third party. In such instances, the mandate of the institution itself may dictate disclosure in the public interest. Once again, in such cases, it is not enough that the information simply be "of interest to the public" but rather that a specifically identifiable and substantial danger exists that the continued protection of the information will directly result in some harmful short- or long-term effect on public health, public safety or the environment. Where such conditions exist, the head of an institution has an obligation to consider seriously a disclosure in the public interest under subsection 20(6).

In Canada Packers v. The Minister of Agriculture et al. (1988), [1989] 1 F.C. 47, 53 D.L.R. (4th) 246, the Federal Court of Appeal dealt with the issue of the applicability of subsection 20(6). The trial judge in Piller Sausages, Justice Jerome, had indicated that the information at issue did not fall within paragraph 20(1)(c) or (d) of the Act, and that even if it did, it should nonetheless be disclosed pursuant to subsection 20(6), because the public interest in disclosure clearly outweighed any risk of harm to the applicant. The Court of Appeal held that the trial judge erred in so concluding as there was nothing in the record to indicate that the respondent minister had exercised this discretion. The Court of Appeal then stated that:

"It is one thing for a Court to review a discretion which a Minister of the Crown has exercised. It would be quite another thing, and in my view would be entirely improper, for the Court in the first instance to exercise the Minister's discretion in his/her stead. Even on an application for mandamus, a Court can only order a Minister to act, not act for him/her."

Procedural Matters

It is important to bear in mind that the public interest, as defined in subsection 20(6), is not qualified by the phrase "in the opinion of the head of the institution". (By contrast see paragraph 8(2) of the Privacy Act.) This means that decisions in regard to this provision should be fully and objectively documented in preparation for any review that may take place.

In any review of whether the head of an institution is authorized to disclose records exemptible under paragraphs 20(1)(b), (c) or (d) by the application of subsection 20(6) of the Act, it is important to show that the head decided to disclose:

  • after considering all relevant factors;
  • without considering any irrelevant factors;
  • in a fair and unbiased manner;
  • after individual consideration of the various records and the information provided by the third party;
  • after having consulted all third parties involved.

A few procedural steps can ensure that these conditions are met.

(a) When undertaking the initial review of records, all or part of which may qualify for exemption under paragraphs 20(1)(b), (c) or (d), consider immediately whether a public interest override may come into play.

(b) In notifying third parties under sections 27 and 28 of the Access to Information Act, be very clear about the nature of the information that is needed from them to make a decision as to whether particular records qualify for exemption. As well, if you are considering the possibility of a disclosure of all or part of the records in the public interest, ask for arguments from the third party as to why it does not believe such a disclosure should take place. This is extremely important in supporting the fairness of the final decision, since this is really the only point in the notification process where the third party has the opportunity to be advised that a disclosure in the public interest is a possibility and to make representations as to why subsection 20(6) should not apply. The Form letter in Appendix P of Chapter 3-5 is an example of this type of notification to third parties. In some instances, it will be possible to consider disclosure in the public interest only after representations for exemptions have been received and analyzed. In such cases, it is important that an institution notify a third party of its intention to disclose and give the third party the opportunity to present written representations. A similar situation will apply when the institution has accepted the representations of the third party and has not considered disclosure in the public interest but the applicant complains to the Information Commissioner who recommends that disclosure should be considered. Once again, the third party must be given full opportunity to argue as to why disclosure in the public interest should not apply.

(c) On receiving representations from third parties be extremely careful in determining whether the institution is applying the particular exemption in paragraphs 20(1)(b), (c) or (d) in an appropriate manner. Proper decision-making at this initial stage is crucial in dealing with an access request that may potentially involve consideration of a public interest disclosure. Where a public interest disclosure may become involved, it is essential that the records truly qualify for exemption.

(d) If it is decided that the records or part of them qualify for an exemption under paragraphs 20(1)(b), (c) or (d) but that a public interest clearly outweighs in importance any prejudice or injury to a third party, then it is essential that this decision be fully documented. A memorandum should be prepared for the head or deputy head setting out which portions of the documents are being considered for disclosure under subsection 20(6) and clearly outlining why disclosure would be in the public interest as balanced against the interest in exempting the information. This memorandum should be notated to the effect that the head or deputy head concurs with those reasons. By proceeding in this manner, the head or deputy head will have detailed evidence respecting the reasons for the decision, especially that it was lawfully reached, and thus be fully prepared for any review of the matter.

8.1 Third party intervention (Sections 27, 28, 29, 33, Paragraph 35(2)(c), Sections 43 and 44)

The Access to Information Act includes a procedure which:

  • requires government institutions to notify third parties about whom they hold information prior to the release of any such information under the Act; and
  • provides such third parties with a right to make representations to the government institution, the Information Commissioner and the courts as to the reasons such information should not be disclosed.

The above procedures must be followed:

  1. when a government institution intends to disclose a record which may contain information described in subsection 20(1) pursuant to a request under the Act,
  2. when the Information Commissioner intends to make a recommendation that such information be disclosed; or
  3. when such information is the subject of proceedings instituted under the Act before the courts.

The procedures which must be followed by a government institution, and the rights accorded to the third party, at each of these stages are discussed below.

Under subsection 27(1), the third party notification and intervention rights set out in the Act apply whenever a record containing information described in subsection 20(1) may be disclosed under the Act. These rights, therefore, apply where the disclosure of such information is to be made pursuant to subsection 20(2) or 20(6). The only exception to the notification requirements is when the disclosure is being made pursuant to subsection 20(5) (i.e. where the third party has previously consented to the disclosure (subsection 27(2))), or where the information is not of the type described in section 20. Institutions should bear in mind the possibility that in some cases personal information may be mixed with subsection 20(1) information. In such cases section 19 of the Act would apply to that portion of the information that is personal.

Government institutions are encouraged to contact the third party informally, if during the initial review of the record(s) requested they are uncertain whether or not subsection 20(1) applies.

A flow chart illustrating the notification and intervention process and detailed procedures to carry out these activities is contained in Chapter 3-5.

9. Advice (Section 21)

Subsection 21(1) of the Access to Information Act sets out a discretionary class test exemption which protects certain classes of information relating to the internal decision-making processes of government the disclosure of which would interfere with the operations of government institutions. The exemption can only be invoked if a record came into existence less than twenty years prior to the request for the information.

As a class exemption, section 21 may be applied when a record falls within one of the classes of documents referred to in the provision. However, section 21 is also a discretionary exemption in the sense that its use of the word "may" permits the head of the government institution or the head's delegate to decide whether or not to withhold what is sought by invoking the exemption. This flexibility is meant to temper the broad nature of the class test and recognize the principle that the public has a right of access to government records, even those which may technically be exempted. It is essential to note that the decision-making process followed by an institution in deciding whether or not to disclose information where discretion applies is important in claiming and successfully sustaining this exemption since the manner in which the head of the institution has exercised discretion in this regard is reviewable by the Information Commissioner and the Federal Court.

Scope

The exemption is intended to protect the internal decision-making process of government. Much advice and many recommendations, consultations and deliberations are of such a nature that release of this type of information can cause great damage to the on-going internal processes necessary for effective government.

Such release can have a chilling effect on the candidness of the advice, recommendations, consultations and deliberations, and can lead to a reluctance to deal with difficult questions in as frank a fashion as possible. Paragraphs 21(1)(a) and (b), however, are not solely intended to protect the advisory function of Public Service employees. They are also intended to protect the constitutional convention of individual ministerial accountability for the actions of their institutions and its corollary of public service anonymity. Within the government there are internal and external processes for arriving at policy and other significant decisions which involve the proffering of advice, the making of recommendations, as well as, consultations and deliberations culminating with decisions by a minister or other executive officers. It is understood in this process that the advice and recommendations offered will not necessarily be accepted. There are established processes within government institutions where officials give advice and make recommendations according to their best judgement and those in senior positions are free to follow or reject them. It is the integrity of this internal process which is being protected by this exemption and which should be considered when exercising discretion to release or refuse to release this type of information.

Discretion

The fact that section 21 is discretionary in nature indicates that Parliament was of the view that there would be cases where information relating to the internal processes of government would be released. Thus to properly invoke this exemption, the policy requires that institutions undertake a two-step process:

(a) review each separate document to determine whether parts of the record requested qualify as one of the classes of information described in the exemption; and

(b) if it does so, exercise discretion as to whether or not disclosure of the information will result in injury or harm to the processes for providing advice or recommendations or carrying on consultations and deliberations.

Records must be reviewed and only that material which qualifies for exemption be removed from each document. Determination of injury or harm within the advice exemption should be judged on the basis of the impact disclosure will have on the institution's and the government's ability to carry on similar internal decision-making processes in the future; to consult and deliberate in a confidential manner and give frank, candid advice. Basic questions which should be asked are: Could disclosure make advice or recommendations less candid and comprehensive; consultations or deliberations less frank; hamper the ability of the government to develop and maintain strategies and tactics for present or future negotiations; or affect the institution's ability to undertake personnel or administrative planning? Such determinations can only be based on the specific content of the advice, recommendations, account, position or plan that has been requested; the procedures involved in the decision-making process; and the sensitivity of the information requested. Institutions should take into account the effect disclosure will have on all steps in the decision-making process, including its impact on government decision-making and not just the immediate interests involved with the information itself.

Some helpful guidelines in dealing with these types of questions follow:

(a) Type of advice, recommendations, consultation or deliberation: Does the decision-making process involve policy or administrative, technical or routine matters? There is, for instance, considerable difference between advice, recommendation, consultation or deliberation about a major new government initiative and the purchase of office equipment.

(b) Circumstances in which advice, recommendations, consultations or deliberations take place: Is there a strong, traditional expectation of, or reliance on, confidentiality in the relevant process? Sometimes much of the information is already publicly known. Such processes differ in context and nature of confidentiality. Who is involved? In some instances persons who are independent of the decision-maker or are his or her peers will not expect the protection given to immediate assistants.

(c) Impact of disclosure: Would disclosure weaken the convention of ministerial accountability or its corollary of public service anonymity? Would disclosure impair an institution's ability to operate or develop a program or activity? Would disclosure distort the decision-making process of government regarding issues of continuing significance or fail to fairly set out reasons for a decision or lead to the release of inaccurate information.

(d) Sensitivity: Has the information immediate prospect of causing injury to the decision-making process or does it relate to an issue which is more routine or technical and has little possibility of causing injury? How old is the record in question? Usually, the greater its age, the more likely that the release of information will cause less damage to a decision-making process. There is no set formula for this. The exemption itself has a twenty-year time limit but even non-current records can, from time to time, still have a very significant effect.

This guidance should not be viewed as exhaustive. The best guide to exercising discretion remains common sense, good judgment and experience.

Each of the paragraphs of the section will now be dealt with in turn.

Advice and Recommendations (paragraph 21(1)(a))

The exemption provided by paragraph 21(1)(a) relates to advice or recommendations developed by or for a government institution or a Minister of the Crown.

Its focus is on "advice" and "recommendations". For purposes of the Act, the verb "to recommend" is defined as the act of bringing someone or something forward as worthy of notice or favour. "Advice" is defined as an opinion, view or judgement based on the knowledge, training and experience of an individual or individuals expressed to assist the recipient to decide whether to act and, if so, how.

Two things should be noted about the definition of advice. Firstly, the definition requires an opinion be given either explicitly or implicitly. Secondly, it requires that the opinion be given or offered as to action. What is meant by the term "opinion" is what one thinks about a particular thing, subject, or point; a judgement formed; a belief, view, notion.

The second requirement - i.e. that the opinion be given or offered as to action - is particularly important. Unless an opinion is tied to some action, it cannot generally be considered advice. However, there may be cases where it would be possible to argue that an opinion which is not expressly tied to action is still advice. This could occur because of the context in which such an opinion was given. For example, an opinion may be sought on the viability of two courses of action. The person whose opinion is sought could reply "In my opinion the first option would not succeed". The author of that opinion does not expressly state that the second option should be pursued. Nonetheless, in the context, this is implicitly what the author of the opinion is saying. However, as this example indicates, unless evidence of the appropriate context can be provided, it could be very difficult to consider as advice an opinion which was not tied to action.

The last point to note about paragraph 21(1)(a) concerns the type of advice or recommendations covered. The exemption provided by this paragraph applies to advice and recommendations developed:

(a) by a government institution (i.e. by officials);

(b) by a Minister of the Crown (it is generally conceded that a minister is not technically part of a government institution);

(c) for a government institution, (i.e. from outside sources but so long as the advice and recommendations are not contained in a report prepared by a consultant or adviser, e.g. company or association views sent to department of National Health and Welfare expressing views and perceived implications of regulatory proposals initiated by the department); and

(d) for a minister (i.e. by his staff, officials or outside sources).

Consultations and Deliberations (Paragraph 21(1)(b)

The exemption provided by paragraph 21(1)(b) relates to an account of consultations or deliberations involving officials or employees of government institutions, a Minister of the Crown or the staff of a Minister of the Crown.

This provision has certain key components. The first is the term "account". As this term is not defined in the Act, it is given its ordinary meaning as a "particular statement or narrative of an event or thing; a relation, report or description". The term "account" encompasses an exchange of views. These may be expressed orally and then reduced to writing (e.g. parts of minutes of meetings recording an exchange) or written, but the term also includes unsolicited views where there exists an implicit understanding that the sender will provide those to the recipient as and when necessary and on such subjects as the sender deems appropriate.

Furthermore, an unsolicited memorandum to a minister or any other official of the institution setting out the views of another official on a particular subject could also constitute an account of consultations, as long as there existed the implicit understanding between the recipient and the sender.

It is important in this context, however, to bear in mind that the existence of an account is not sufficient. It must be an account of "consultations or deliberations". As these words are not defined for the purposes of the Access to Information Act, they would be given their ordinary and usual meaning. "Consultation" is defined as "the action of consulting or taking counsel together;…" The term "consult" is defined as "to ask advice of, seek counsel from; to have recourse to for instruction or professional advice…" "Deliberation" is defined as "…careful consideration with a view to decision or the consideration and discussion of the reasons for and against a measure by a number of councillors".

Based on these definitions, only that information describing the advice provided, the consultations undertaken or the exchange of views leading to a particular decision would qualify as an account exemptible under paragraph 21(1)(b).

The intent is to protect the exchange of views in order that these continue to be expressed frankly and candidly. Most important here is that an exchange of memoranda between a departmental official and a minister or deputy minister setting out the views of either or both, as well as a memorandum to a minister or deputy minister requesting the minister's reaction to certain views contained in it and on which the minister has made written comments, constitutes a report, description or narrative of a consultation.

The final component of paragraph 21(1)(b) concerns the identity of the individuals who must be involved in the consultations or deliberations if the exemption is to apply. Any such activity which involved any of the following is covered:

(a) officials or employees of a government institution;

(b) a minister; or

(c) the staff of a minister.

It is sufficient if one individual from this group is involved.

Constraints on Paragraphs 21(1)(a) and (b)

Paragraphs 21(1)(a) and (b) are broad exemptions. In order to meet the spirit and intent of the Act, it is important to keep in mind that the exemptions do not apply to:

  • guidelines to assist officials of government institutions in interpreting or administering legislation or applying discretion provided to them under an Act of Parliament. For example, the exemption would not apply to Treasury Board directives and guidelines or to the manual prepared by the Department of Justice to assist its lawyers in interpreting the Charter of Rights and Freedoms;
  • factual information, unless in those rare instances where the facts themselves reveal the advice, recommendations etc. expressed; and
  • subject headings of records such as memoranda which have passed to a minister whether standing alone or set out in a list, unless the heading would also, in such cases, reveal the advice, recommendations etc. expressed.

Negotiations (paragraph 21(1)(c))

Paragraph 21(1)(c) provides that a government institution may refuse to disclose any record that contains positions or plans developed for the purpose of negotiations carried on or to be carried on by or on behalf of the Government of Canada and considerations relating thereto.

This discretionary exemption protects as a class the strategies and tactics employed or contemplated by government institutions for the purpose of negotiations. Such information can be protected from disclosure even after the particular negotiations have been completed.

"Positions and plans" refers to information which may be used in the course of negotiations. "Considerations" is somewhat broader in nature, covering information relating to the factors involved in developing a particular negotiating position or plan. Examples of the type of information which could be covered by this exemption are the mandate and fall-back positions developed by government negotiators for the purposes of bargaining in relation to labour, financial and commercial contracts. However, the exemption covers only negotiations with parties outside the federal government and does not apply to such activities when carried on amongst government institutions.

Personnel and administration plans (paragraph 21(1)(d))

Paragraph 21(1)(d) provides that a government institution may refuse to disclose any record that contains plans relating to the management of personnel or the administration of a government institution that have not yet been put into full operation.

This part of the exemption protects as a class plans relating to the internal management of government institutions, including such documents as plans relating to the relocation or reorganization of government institutions. The protection is temporary. Once a plan is fully operational, the information relating to it can no longer be protected under this exemption. It should be noted, however, that although the final plan must be released, the options which were considered before deciding on the plan need not be disclosed. Plans which are never implemented can be protected for the twenty-year period provided for in subsection 21(1).

Limitations on exemption

Paragraph 21(2)(a) of the Access to Information Act provides that subsection 21(1) does not apply in respect of a record that contains an account of, or a statement of reasons for, a decision that is made in the exercise of a discretionary power or an adjudicative function and that affects the rights of a person.

This paragraph excludes from the advice exemption, in certain circumstances, the text of decisions and the account or statement of reasons supporting those decisions. The decisions involved are of two kinds. First, there are those decisions made in the exercise of a discretionary power. Examples of such decisions are the awarding of a grant of the funding of a project by the government. Second, there are decisions made in the exercise of an adjudicative function such as tax and unemployment insurance appeals or a personnel grievance. In both types of decisions, the exercise of discretionary power must affect the rights of a person. The exclusion applies only to the actual decision itself and the statement or account of reasons supporting it but not to information relating to the process or to the considerations which formed the basis of the reasons supporting the decision.

Paragraph 21(2)(b) of the Access to Information Act provides that subsection 21(1) does not apply in respect of a record that contains a report prepared by a consultant or adviser who was not, at the time the report was prepared, an officer or employee of a government institution or a member of the staff of a Minister of the Crown. This does not preclude however the application of other exemptions to records prepared under such circumstances, where warranted.

10. Testing procedures (Section 22)

Section 22 of the Access to Information Act provides that a government institution may refuse to disclose any record that contains information relating to testing or auditing procedures or techniques or details of specific tests to be given or audits to be conducted if such disclosure would prejudice the use or results of particular tests or audits.

This is a discretionary exemption which provides protection for procedures and techniques involved in testing and auditing, and for details relating to specific tests or audits about to be given or conducted when an injury to these operations is involved. Injury is based on prejudice to the use or results of a particular test or audit. In other words, the information is protected where the disclosure poses a danger to the employing of similar tests or audits in the future or makes possible the invalidation of the results of specific tests about to be given or audits about to be conducted.

The terms "test" and "audit" cover a wide variety of activities undertaken by the federal government in regard both to its own institutions and in the private sector (e.g. environmental testing, language testing, personnel audits, financial audits etc.). The exemption applies to testing and auditing carried out by both federal institutions and consultants and contractors. This section does not, however, provide an exemption for the results of tests or audits. Government institutions cannot exempt information on previous tests or audits unless the same procedures are to be used in future operations where disclosure would consequently cause the injury described in this section. Additional guidance as to the release of the results of environmental and product testing is provided in section 8, Third party information.

11. Solicitor-client privilege (Section 23)

Section 23 of the Access to Information Act provides that a government institution may refuse to disclose any record that contains information that is subject to solicitor-client privilege.

This discretionary exemption ensures that communications between a government institution and its solicitors are protected to the same extent as is legal advice in the private sector. The privilege also extends to materials prepared by or for the solicitor expressly for the purpose of providing advice or presenting a case in court.

The decision to invoke solicitor-client privilege is the responsibility of the client. However, government institutions should consult their legal advisor prior to invoking solicitor-client privilege in order to determine if the information is in fact privileged and also before disclosing such information in order to ascertain if the disclosure could injure the government's legal procedures or positions. Institutions should be aware that waiver for part of the section 23 information may result in waiver for all of the related information that is subject to the privilege. This exemption should be used when the disclosure of information could:

(a) circumvent the normal process of discovery in cases presently before the courts; or

(b) prejudice the government's legal position in present or future litigation or negotiations; or

(c) impede the ability of government institutions to communicate fully and frankly with their legal advisors.

In Solosky v. the Queen, [1980] 1 S.C.R. 821, the Supreme Court of Canada identified three criteria required for the privilege to exist:

  1. the communication must be between a solicitor and client;
  2. it must entail the seeking or giving of legal advice; and
  3. it must be intended to be confidential by the parties.

In addition, the Solosky decision confirmed that any consultation for legal advice, whether litigation is involved (or foreseen) or not, is protected by the privilege.

12. Statutory prohibitions (Section 24)

Subsection 24(1) of the Access to Information Act provides that a government institution shall refuse to disclose any record that contains information the disclosure of which is restricted by or pursuant to any provision set out in Schedule II of the Act.

This is a mandatory exemption which incorporates within the Access to Information Act those specific prohibitions against disclosure included in other statutes. These are listed in Schedule II of the Act. When a government institution is invoking the section 24 exemption, it will have to make a determination as to whether the information being requested is the same information protected by the statutory provision.

The Access to Information Act takes precedence over all other prohibitions against the disclosure of information which exist in federal statutes or regulations other than those listed in Schedule II of the Act. Thus, if the information protected under some other statutory prohibition is to be protected pursuant to a request under the Access to Information Act, it must be brought within one of the other exemptions in the Act. This interpretation is based on the fact that the Access to Information Act is a statute of general application.

It applies regardless of whether the provision containing the prohibition was enacted prior or subsequent to the Access to Information Act. If legislation listed in Schedule II of the Act allows some discretion regarding disclosure or sets out some criteria test, these factors must be considered before invoking section 24 of the Access to Information Act.

13. Information to be published (Section 26)

Section 26 of the Access to Information Act provides that a government institution may refuse to disclose any record or any part thereof if the head of the institution believes on reasonable grounds that the material in the record or part thereof will be published by a government institution, agent of the Government of Canada or Minister of the Crown within ninety days after the request is made or within such further period of time as may be necessary for printing or translating the material for the purpose of printing it.

This is a discretionary exemption which permits government institutions to retain some control over manuscripts and other materials which are to be published, and to ensure that the public or Parliament are treated fairly in being accorded an opportunity to view the material at the same point in time. The provision simply defers release of the information until publication occurs. The exemption is also intended to deal with those types of government documents which are required to be published and tabled in Parliament. It protects Parliament's right to be made aware of certain matters first and ensures that information which must be published in the public interest will be made available to all at the same time and in both official languages.

In order for a record to qualify for this exemption, the head of an institution must "believe on reasonable grounds" that the particular material which has been requested will be published within ninety days or such further time as will facilitate translation and printing. Such "reasonable grounds" would normally be a legal requirement to publish the record or a publication plan with target dates prepared prior to the receipt of the relevant access request. Publication must be by a government institution or by an agent acting on behalf of the government under a contract, or by a Minister of the Crown.

The provision is intended only to provide protection on a short-term basis and is based on normal and reasonable time limits for the publication process. If there is no certainty that the material will be published within a reasonable time beyond the ninety day limit, institutions shall make the information available to the applicant.

If the information has not been published within the stated time limits then it is eligible for release. As well, severability would apply. The refusal can bear only on that part of the record(s) containing the information which will be published.