Strengthening the Access to Information Act

4. Exemptions Scheme

4.1 Structure of the Current Exemptions Scheme

As stated in Section 2, the purpose of the Access to Information Act is

"… to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government."

This right of access to records under the control of a government institution is set out in section 4 and the limitations to that right are set out in sections 13 through 24 and 26. The hurdle for supporting an exemption in the course of a Court challenge has been high. A table of exemptions from the Access to Information Review Task Force Report of June, 2002, has been attached as Annex 2 to this paper. The table shows for each exemption whether it is class-based or subject to an injury test, and whether its application is mandatory or discretionary.

a. Class vs. Injury or Harm-Based Exemptions

Exemptions currently fall into two types. Class-based exemptions apply where the information falls within the class of information described in the exemption and there is no reference to any consequence that might result from the release of the information. Injury-based exemptions require that an injury be demonstrated before the exemption can be claimed.

Class-based exemptions presuppose that the information is inherently sensitive and that an injury or prejudice would automatically flow from release. Examples include: section 13, which protects information obtained in confidence from other governments; subsection 16(3), which deals with information obtained or prepared by the Royal Canadian Mounted Police while acting as a municipal or provincial police force; subsection 19(1), which protects personal information; and paragraphs 20(1)(a) and (b), which protect the trade secrets and the confidential financial, commercial, scientific or technical information of third parties. In each of these cases, the information belongs, or is viewed as belonging, to a third party - another government, an individual or a commercial entity. It is not federal government information per se.

Class exemptions also apply in cases where the information has already been classified or identified, through some other mechanism, as requiring protection from disclosure. Examples of exempting provisions which recognize a pre-existing basis for protection are section 23, solicitor and client privilege and section 24, where the need for confidentiality has been identified in some other statutory provision.

The third set of class exemptions focuses on the type of information and the context in which it is generated and is based on the view that release of the information would automatically be contrary to the public interest and that protection from disclosure is therefore necessary. These exemptions are: paragraph 16 (1)(a), information obtained or prepared by specified investigative bodies in the course of lawful investigations - provided the information is less than twenty years old; paragraph 16(1)(b), information relating to investigative techniques or plans for specific lawful investigations; subsection 18(1), government trade secrets or financial, commercial, scientific or technical information that has, or is likely to have, substantial value; and subsection 21(1), advice or recommendations to the government, consultations involving government officials, positions, plans or considerations for government negotiations and plans regarding personnel management or government administration.

Injury exemptions, on the other hand, are based on a determination by the head of the institution that it is reasonable to expect that some injury, harm or prejudice will occur to the government, or to a third party commercial entity, if the information is released. Injury-based exemptions are found in: section 14, injury to federal provincial affairs; section 15, injury to international affairs and defence; paragraph 16(1)(c), injury to the enforcement of any law of Canada or a province or the conduct of lawful investigations; subsection 16(2), information which could reasonably be expected to facilitate the commission of an offence; section 17, safety of individuals; paragraphs 18(b), (c) and (d), injury or prejudice to the economic interests of Canada; paragraphs 20(1)(c) and (d), injury to third party interests; and section 22, prejudice to testing procedures, tests and audits.

b. Mandatory vs. Discretionary Exemptions

The basis upon which the exemptions are applied by the head of a government institution also varies. In some cases, it is mandatory that the exemption be applied. In other cases, the head of the government institution has discretion as to whether or not to apply the exemption.

A mandatory exemption is one where the head of a government institution has no, or a more limited, discretion regarding whether or not to protect the sensitive information. That is, if the information is covered by the exemption and the conditions for the exercise of the discretion do not exist, then it must not be disclosed. Mandatory exemptions can be contrasted with discretionary exemptions, where the head of the government institution must turn his mind actively to the question of whether or not the sensitive information should be protected, or should be released, and then make a decision. A mandatory exemption offers a higher level of protection by allowing a government institution to assure the entities that are providing the sensitive information, sometimes under a statutory obligation, that it will not be released to a requester if it is covered by the exemption.

Four exemptions are currently mandatory: information received in confidence from another government (section 13), information obtained or prepared by the RCMP about provincial or municipal policing services (subsection 16(3)), personal information (section 19), and information about a third party's financial and commercial interests (subsection 20(1)). In addition, section 24 establishes a range of mandatory exemptions to ensure the confidentiality of specific classes of information in accordance with other federal statutes as listed in Schedule II (discussed in section 4.3 c of this paper)). Three of those exemptions contain a qualified discretion to disclose and only one exemption is purely mandatory: information obtained or prepared by the RCMP about provincial or municipal policing services (subsection 16(3)).

c. Public Interest Override

Currently the Act does not contain a general public interest override which would require that information be disclosed in all cases where the general public interest in disclosure outweighs the specific public interest or other (third party) interest which is intended to be protected by the exempting provision. Rather, the public interest in disclosure is addressed on a case-by-case basis and only in connection with two exemptions in the ATIA. These are limited to situations where the information is that of a third party.

First, paragraph 19(2)(c) incorporates the provisions of section 8 of the Privacy Act which includes, in subparagraph 8(2)(m)(i), a discretionary provision for the release of personal information in circumstances where the head of the institution forms the opinion that "the public interest in disclosure of the personal information in issue clearly outweighs the invasion of privacy."

Second, subsection 20(6) provides for the disclosure of third party information, other than a trade secret, "if that disclosure would be in the public interest as it relates to public health, public safety or protection of the environment and, if the 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."

4.2 Review of Information Commissioner's Proposals for Exemptions

The Information Commissioner proposes three broad, significant changes to the current exemptions scheme: transforming most mandatory exemptions into discretionary ones, adding more injury tests, and adding a broad public interest override test to all exemptions. Since the release of the Commissioner's proposals last autumn, concerns have been raised about the potential impact on relationships between government and its stakeholders, on government's core operations and on third party stakeholders themselves. In particular, concerns have been raised about the combined effect of the shift to injury-based exemptions, the repeal of the s. 24 mandatory exemptions and a general public interest override. This section reviews the key changes to each exemption recommended by the Information Commissioner and highlights the potential impacts.

a. Section 13 – Information Obtained in Confidence from Other Governments

Section 13 is a mandatory exemption that requires the head of a government institution to refuse to disclose a record containing information obtained in confidence from the government of a foreign state, an international organization of states, the government of a province, a regional or municipal government, or an institution of that government or organization. Subsection 13(2) permits disclosure of information if the government, institution or organization from which it was obtained makes the information public, or if it consents to disclosure.

The Information Commissioner first proposes to change this exemption from mandatory to discretionary. He would require the government institution to disclose the information under subsection 13(2) if the government from which it was obtained makes the information public or consents to disclosure.

Finally, the Information Commissioner proposes to add an injury test to section 13. Specifically, he proposes to add that "[d]isclosure of the information would be injurious to relations with the government, institution or organization."

Considerations:

The government receives confidential information from other governments, both domestic (such as provincial and municipal) and foreign. Freedom of information statutes of other Commonwealth countries consistently recognize that the relationship which allows for the candid exchange of information must be fostered. They also recognize that there will be circumstances where the information that is received from third party governments is, in fact, the proprietary information of that third party government. It is generally thought to be to the advantage of the Canadian government to be able to offer these other governments a firm commitment that the information they provide in confidence to the Canadian government will be protected from disclosure. Put differently, there is real concern that other governments might be considerably less willing to provide the Canadian government with information in confidence if the Canadian government were obliged to say that the sensitive information would be protected from an access requester only at the discretion of the head of the government institution.

Converting section 13 to a discretionary, injury-based exemption would set Canada apart from its key partners and would likely have a negative effect on other governments' willingness to share information with Canada. Accordingly, it is suggested that the Committee carefully consider the broad implications of this proposal and, in so doing, that it consult with the federal departments that would be most affected by the change proposed by the Information Commissioner and, in particular, government institutions that deal with international relations, defence, national security, law enforcement and public safety.

b. Section 16 – Law Enforcement and Investigations

Section 16 provides for exemptions related to law enforcement and investigations. Subsection 16(1) is a discretionary exemption that permits the head of a government institution to refuse to disclose:

  1. for up to 20 years, information obtained or prepared by a federal 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;
  2. information relating to investigative techniques or plans for specific lawful investigations;
  3. information the disclosure of which could reasonably be expected to harm the enforcement of any law of Canada or a province or the conduct of lawful investigations; or
  4. information the disclosure of which could reasonably be expected to harm the security of penal institutions.

The Information Commissioner proposes to repeal paragraphs 16(1)(a) and (b). He states that sensitive law enforcement and investigative information would be adequately protected by paragraph 16(1)(c). As such, information related to law enforcement and lawful investigations could only be protected under section 16 if the disclosure of that information "could reasonably be expected to be injurious to the enforcement of any law of Canada or a province."

Considerations:

By deleting paragraphs 16(1)(a) and (b), which are discretionary class exemptions, s. 16 would contain only discretionary injury-based exemptions. This means that the head of the government institution would not be able to protect information unless the head is able to demonstrate, on reasonable and probable grounds, that injury would result from the release of the information. This is a much heavier burden than if the injury is left unexpressed and implicit, as in the current section 16. Concerns may be raised by the security community, such as the Canadian Security Intelligence Service, that the risk of disclosure under a reformed s. 16 would impair the ongoing relationships between Canadian government institutions and their counterparts in other governments.

It should be noted that some other jurisdictions protect this type of information through a discretionary injury test, such as the demonstration of some kind of prejudice, to protect policing information.

The Committee may, however, wish to consider, in the light of increased pressures to protect national security and public safety, whether it is desirable to place a heavier burden of proof on the heads of government institutions in relation to this type of information.

c. Section 18 – Economic Interests of Canada

Section 18 provides discretionary protection for information relating to the "economic interests of Canada." The exemption protects:

  1. trade secrets or financial, commercial, scientific or technical information that belongs to the Government of Canada and has (or is likely to have) substantial value;
  2. information, which if disclosed, could reasonably be expected to prejudice the competitive position of a government institution;
  3. scientific or technical information obtained through research, which could if disclosed, realistically be expected to deprive an officer or employee of priority of publication; or
  4. information the disclosure of which could reasonably be expected to materially injure the financial interests of the Government of Canada, or the government's ability to manage the economy.

The Information Commissioner proposes to amend paragraph 18(a) by deleting references to financial, commercial, scientific or technical information. The Commissioner considers that this information is already captured in paragraph 18(d), which is a discretionary injury-based test. The proposed amendment would reduce the scope of the class exemption in paragraph 18(a).

Considerations:

Requiring a government institution (which will include parent Crown corporations and foundations) to rely solely on the injury test in paragraph 18(d) may not ensure adequate protection for the Government's financial, commercial, scientific or technical information. For example, if the National Research Council made a scientific discovery that had a potential value of two million dollars, this would currently be protected under the existing paragraph 18(a). However, if the Information Commissioner's proposal is adopted and paragraph 18(a) is repealed, it might not be possible to protect that information using paragraph 18(d). That is, the release of information leading to the potential loss of two million dollars might not meet the test of being "materially injurious to the financial interests of the Government of Canada."

The Committee may wish to hear the views of government institutions, such as the Departments of Finance, Industry, National Defence and Public Works and Government Services, that are engaged in activities that could be affected negatively by such amendments.

d. Section 20 – Third Party Information

Subsection 20(1) is a mandatory exemption for :

  1. trade secrets of a third party;
  2. confidential commercial, financial, scientific or technical information that is supplied to the government by a third party and is consistently treated in a confidential manner by the third party;
  3. 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; or
  4. information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of a third party.

The Information Commissioner recommends the repeal of paragraph 20(1)(b), as he considers the current paragraph 20(1)(c) to be adequate to ensure that any legitimate business need for secrecy is served. The Commissioner also recommends that a government institution be required to disclose information contained in a bid or contract with a government institution.

Considerations:

Since the ATIA can be used by an organization to obtain information about its competitors, paragraph 20(1)(b) is claimed frequently by third parties to protect their sensitive information which is under the control of government institutions. The Federal Court has developed a test to limit how paragraph 20(1)(b) is applied. To be applicable, the information must meet the following test:

  1. The records must be financial, commercial, scientific or technical information;
  2. The information must be "confidential" by some objective standard;
  3. The information must be supplied to a government institution by a third party (observations about a third party by a government official do not constitute information which is supplied to the government; likewise negotiated terms of a contract are not normally seen as information supplied to the government);
  4. The information must have been treated consistently in a confidential manner by the third party.

In many areas, the Government of Canada depends on the willingness of third parties to voluntarily provide it with confidential, commercial information. If paragraph 20(1)(b) were repealed, third parties might be less willing to deal with the Government, because they would fear that their sensitive commercial information may be released under the Act if they could not meet the injury tests set out in the other paragraphs. The uncertainty of the protection of such information could have a negative impact on the operations of the Government.

In certain circumstances, a third party may be required to provide its information to the Government. For example, a company in the health sector that wishes to market a new drug that it has developed must have the drug approved by Health Canada. This necessitates the provision of confidential, commercial information about the new drug. Currently, this information would be protected by paragraph 20(1)(b). If the provision were repealed, it could be more difficult to protect this type of information. The company may not be able to demonstrate that the release of this information would cause a material financial loss, given that the drug has not even been approved yet or tested on the market. Similarly, the company might not be able to demonstrate that the release of the information could reasonably be expected to prejudice its competitive position.

The Information Commissioner proposes that government institutions not be able to use section 20 whatsoever to protect "details of a contract or a bid for a contract with a government institution." The Committee may wish to consider the following two issues: first, the proposal makes no distinction between successful and unsuccessful bids, and second, the proposal makes no reference to whether or not the contract has been awarded.

This proposal could lead to a situation where, for example, a government institution that has received a request under the ATIA for the bids for a government contract that has not been awarded yet would be unable to protect this information. Further, even after a contract has been awarded, the government institution would be unable to protect the details of unsuccessful bids, despite the fact that the release of this information could prejudice the competitive position of an unsuccessful bidder.

In this regard, the Information Commissioner's proposal goes considerably farther than current practice and case law, which has established the principle that there is no reasonable expectation of confidentiality in relation to a successful bid once the contract has been awarded. [3]

It is possible that some third parties may feel that section 20 does not offer enough protection. The Federal Court has been very careful to allow this exemption to be applied only in limited circumstances. Third parties may wish to express concerns about the repeal of paragraph 20(1)(b) and the proposed amendment to paragraph 20(2)(b). The Committee may wish to hear the views of third party organizations that provide commercial, financial, scientific and technical information to government institutions on the Information Commissioner's proposed amendments to Section 20.

e. Section 21 – Advice, Deliberations, etc.

Subsection 21(1) is a discretionary, class exemption that allows the head of a government institution to refuse to disclose records containing: advice or recommendations to the government; an account of consultations or deliberations; government negotiation plans; or government personnel or administrative plans that have not yet been put into operation, if the record came into existence less than 20 years prior to the request.

The Information Commissioner proposes to add injury tests to the exemptions in paragraphs 21(1)(a) to (c). In addition, he proposes to reduce the scope of Section 21 so that only advice and deliberations are protected, not factual information and other materials. The period of protection would be limited to 5 years. Finally, the Commissioner proposes to define narrowly the term "advice" for the purposes of section 21.

Considerations:

Section 21 protects the development of professional and impartial advice by the public service on sensitive policy and operational matters. Section 21, in effect, preserves the full and frank flow of ideas among public officials participating in the decision-making process. Adding an injury test to section 21 could endanger the unimpeded flow of discussion within government that is essential to effective decision-making, and could erode the ability of government to govern.

The proposal to narrow the scope of the section by listing categories of information that would not be protected may be a useful approach to encourage the release of information that is not advice or deliberations. This proposal could help to strike a more appropriate balance between disclosure and the exemption of information that still merits protection.

The Committee may wish to consider the proposal to reduce the timeframe for this protection in connection with the periods of protection for other types of information (such as Cabinet confidences) and to consider whether reducing the protective period from 20 to 5 years, as suggested by the Information Commissioner, could compromise the frankness or candour of advice being provided to the government.

It is not clear what the advantage would be in defining the term "advice" as suggested by the Information Commissioner. The Committee may wish to consider how the Federal Court of Appeal dealt with the meaning of "advice" in the Telezone case. [4] In that case, the Court held that the term "advice" includes:

  1. an expression of opinion on policy matters, but excludes information of a largely factual nature, unless it is so intertwined with the advice that severance is precluded;
  2. uncommunicated advice developed by or for a government institution or a minister of the Crown (e.g., personal notes created in preparation of a meeting);
  3. inconclusive advice (the advice need not urge a specific course of action to fall within the exemption); and
  4. advice that has been approved.

The Court further held that "advice" should be given a broader interpretation than "recommendation" otherwise the latter term would be redundant. [5] The Court stated that the exemption must be interpreted in light of its purposes, namely removing impediments to the free and frank flow of communications within government departments, and ensuring that the decision-making process is not subject to the kind of intense outside scrutiny that would undermine the ability of government to discharge its essential functions.

The Committee may wish to consider the views of current and former senior managers of government institutions.

f. Section 23 – Solicitor-Client Privilege

Section 23 is a discretionary, class exemption. Section 23 permits the head of a government institution to refuse to disclose records containing information subject to solicitor-client privilege.

Solicitor-client privilege describes the privilege that exists between a client and his or her lawyer. Solicitor-client privilege is a class privilege based on a presumption that disclosure of the communications between a client and his or her lawyer would erode the candour necessary to a relationship between solicitor and client. The doctrine of solicitor-client privilege has been recognized as a principle of our legal system for over 300 years. The Supreme Court of Canada has described the privilege as "nearly absolute". [6]

The common law recognises the relationship between lawyers advising government and their government clients as one attracting solicitor-client privilege to the same degree as those between private sector actors and their counsel. [7] Solicitor-client privilege is considered to be a cornerstone principle of the legal system, whether in the private sector or within government. [8]

It is important to note that solicitor-client privilege does not cover merely the opinions provided by counsel, but also applies to all the communications made to counsel by the client to obtain that advice, as well as advice given in the course of drafting of legislation, the preparation of litigation, advising on individual rights, the functioning of government programs, investigations, and government transactions.

The exemption in section 23 ensures that the government has the same protection for its legal documents as persons in the private sector. The exemption was made discretionary to parallel the common law rule that the privilege belongs to the client, who is free to waive it.

The Information Commissioner proposes to add an injury test to section 23. The section would state that information subject to solicitor-client privilege could only be protected if the disclosure of that information "could reasonably be expected to be injurious to the interests of the Crown."

Considerations:

The impact of the amendment proposed by the Information Commissioner is much broader than the impact suggested in the explanatory notes that accompany his legislative proposals. The proposed amendment opens to potential disclosure all information provided to or communicated by the Attorney General and his agents in conducting the legal business of the government.

The Committee is therefore encouraged to consider whether the introduction of an injury test would result in the stifling of communication between government lawyers and the Ministers, officers and public servants who are the "clients" of those lawyers.

It is suggested that the addition of an injury test to section 23 could lead to greater risk of disclosure, given the difficulty of proving injury that could arise by releasing a particular document. This may also have some impact on the ability of government to confide in its legal agents, and may affect the willingness of some private sector counsel to take on work on behalf of the government.

By affecting the willingness of government players to confide in the representatives of the Attorney General, the proposed amendment could compromise the ability of the Attorney General to represent the legal interests of Canada and so undermine the contribution of the Attorney General to the effective functioning of Canada's legal system.

The proposed amendment would change materially the present state of the law, in which the privilege between the government institutions and their counsel is a class privilege, and is on the same legal footing as solicitor-client communications in the private sector. With the addition of an injury test, solicitor-client privilege within the context of the federal government would be transformed into a case-by-case privilege. This would be a significant change in the current law, and would overturn what the Supreme Court of Canada has recognised as a principle of substantive law and part of the fundamental law of Canada.

It should also be noted that no provincial freedom of information act in Canada applies an injury test to the solicitor-client privilege exemption. The same can be said for the federal freedom of information acts found in the United Kingdom, Australia, Ireland and New Zealand.

In its study of solicitor-client privilege, the Committee may also wish to consider the Information Commissioner's proposal to amend section 25 to add the following:

Where, under subsection (1), a part of a record is, for the purpose of being disclosed, severed from a record that is otherwise subject to solicitor-client privilege, the remaining part of the record continues to be subject to that privilege.

The Information Commissioner states that this amendment would settle the issue of whether the disclosure of a portion of a record protected by solicitor-client privilege would jeopardize the privilege for the remaining, non-disclosed portion. Solicitor-client privilege could be undermined, however, by this proposed amendment because parties such as the Information Commissioner could bring enormous pressure on government to release supposedly innocuous portions of protected documents.

The Committee may wish to invite the views of the Canadian Bar Association and members of law societies on matters relating to solicitor-client privilege.

g. Section 24 / Schedule II – Statutory Prohibitions

Section 24 sets out a mandatory, class exemption from disclosure. It 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 ATIA. It is viewed by many institutions as the strongest guarantee against disclosure an exemption can provide.

The Information Commissioner proposes to repeal section 24 and Schedule II. He states that there is adequate protection elsewhere in the Act for the documents protected under the mandatory section 24, and that this "secrecy" provision undermines the efficiency of the Act.

Considerations:

The inclusion and use of section 24 has been debated almost since its inception. Some believe that section 24 and Schedule II are necessary to protect valid confidentiality regimes, while others believe that this type of provision detracts from the principles and goals of open and accountable governance that underlie access to information regimes. Many stakeholders who provide information pursuant to provisions listed on Schedule II are reassured by the mandatory exemption under section 24, as they view it as clear and unequivocal. The freedom of information statutes of Australia and the United Kingdom have similar exemptions for documents that are covered by the confidentiality provisions of other statutes.

It is suggested that there is merit in retaining this exemption in the ATIA to safeguard information requiring a very high degree of protection not afforded by the other exemptions, such as income tax information and census data. Canadians provide such information to the Government on the understanding that it will be treated as absolutely confidential. Further, the current protections for information collected pursuant to the Canadian Security Intelligence Service Act, the Criminal Code of Canada, and for sensitive aeronautic, marine and other transport information, are consistent with the government's commitments to national security, public safety and law enforcement. The repeal of this mandatory protection could cause international allies to lose confidence in the ability of the Government to protect sensitive information which could, in turn, put the Government's relationships with its international allies at risk.

In considering the Information Commissioner's proposal, the Committee may wish to study the impact that the loss of the protection of section 24 would have on the information protected in the provisions, and consider whether the sensitive information currently covered under section 24 would be adequately protected elsewhere in the Act. In particular, the Committee may wish to invite the views of government institutions that benefit from the mandatory exemption under section 24 (such as the Canadian Security Intelligence Service, Canadian International Trade Tribunal, Statistics Canada, Canada Revenue Agency, Canada Border Services Agency, Public Security Canada, and the Business Development Bank of Canada).

Instead of repealing section 24, the Committee may wish to consider adding criteria and a review process to section 24 to govern the addition of provisions to Schedule II. This approach would ensure that only specified classes of sensitive information benefit from the clear protection provided by section 24. These criteria could capture only those confidentiality provisions that prohibit disclosure to the public in absolute terms, or set out clearly-defined limits on any discretion to disclose. The Committee could also consider amending the Act to allow the Governor-in-Council to add a confidentiality provision to the Schedule only if it meets such strict criteria.

In doing this, the Committee could consider the following criteria:

  1. Whether the information referred to in the provision protects
    1. national security;
    2. the enforcement of any law of Canada or a province;
    3. public safety;
    4. large amounts of personal information the collection of which is necessary to carry out the mandate of the government institution; or
    5. information which is absolutely necessary to the exercise of the core mandate of the government institution
  2. Whether any other provision of the Act would be sufficient to provide the necessary level of protection for that information.
  3. Whether the provision in question is carefully drafted, so as to protect only the information that is absolutely necessary.

Examples of the types of information currently protected under section 24 that would meet the above criteria and should therefore maintain their section 24 protection include tax payer information, census data information, information in the DNA databank, records subject to a court-ordered sealing order, and information about security measures.

h. General Public Interest Override

The Information Commissioner proposes that the following section be added to the Act:

Notwithstanding any other provision of this Act, the head of a government institution shall disclose a record or part thereof requested under this Act, if the public interest in disclosure clearly outweighs in importance the need for secrecy.

Considerations:

As drafted, this proposed provision is very broadly worded. The practical result of this amendment would be that the head of any entity covered by the Act would be required to disclose any document that could normally be protected using one of the exemptions, if the public interest in disclosing the document were stronger than the need to keep the document confidential.

A public interest override as broad and as general as what the Information Commissioner is proposing is not without precedent in Canada. The freedom of information statutes in British Columbia, Alberta, and Nova Scotia contain public interest overrides that are as broad. Furthermore, in these provinces and in Ontario and Newfoundland there is also a public interest override that is connected to protection of the environment, public health or public safety.

Looking internationally, the United Kingdom is a country that passed freedom of information legislation quite recently. In that Act, the public interest override is broad in scope (that is, not restricted to public safety, for example). In that legislation, the public interest override applies only to discretionary exemptions; it does not apply to the mandatory exemptions that protect the most sensitive information including, for example, personal information and parliamentary privilege.

There are several key issues that the Committee may wish to consider in relation to a public interest override. First, the Committee could consider how broad the override should be, both in scope and in application. Here, scope refers to the breadth of the override itself – that is, whether it is general or restricted to, for example, public safety or health or the protection of the environment. Application refers to whether the public interest override should apply to all exemptions (including, for example, those that protect the confidential information of commercial third parties or foreign governments) or whether it should be limited in its application to exemptions that protect less sensitive information. It is suggested that the public interest override should not undermine the mandatory exemptions in the public interest (that is, section 13, subsection 16(3), section 19, section 24, as well as the mandatory exemptions provided to Agents of Parliament in the proposed Federal Accountability Act ). Again, with reference to information obtained in confidence from other governments, it should be noted that a public interest override applied to information protected by mandatory exemptions could undermine the confidence of the Government's international allies and affect the Government's relationships with other governments.

As was stated previously, most of the exemptions in the Act are currently discretionary. In essence, this means that the head of a government institution must exercise this discretion before withholding specific information. Part of the exercise of the discretion in the Act comprises an assessment of whether the public interest would clearly be in favour of disclosing the information. A possible approach, therefore, could be to include a provision that when the head of the institution exercises discretion in applying an exemption, the head must weigh the interest of the government institution against public interest.

As stated earlier, public interest override provisions currently exist in two sections of the Act – section 19 and subsection 20(6). In its analysis of a general public interest override, the committee may wish to take into account the public interest override found in the other provisions of the ATIA.

4.3 Approaches to Reform of Exemptions Scheme

In its Report of June 2002, the Access to Information Review Task Force suggested that the overall structure of the Access to Information Act is sound, and that the current exclusions and exemptions strike the right balance between the public interest in disclosure and the need to protect certain information in the public interest. Instead of reforming the scheme in the manner proposed by the Information Commissioner, we believe that it would be useful to focus on each exemption, so that each one may be clarified or modernized in a way that ensures they continue to fulfil their purpose and, at the same time, reflect new realities. Also, since the ATIA may be extended to apply to other entities, some of the exclusions and exemptions may need to be reviewed to ensure they are appropriate and effective for the new entities.

a. Clarifying Existing Protections

To this end, the Government seeks the views of the Committee on a number of proposals that could improve the current exemptions scheme, many of which were suggested by the Information Commissioner:

  • Clarifying that the expression "foreign state" in the section 13 exemption for information obtained in confidence from other governments includes subdivisions of foreign states (e.g., a state in the United States of America); and further, that it may be appropriate to include in this expression an entity outside Canada that exercises functions of a government but that Canada does not recognize as a state;
  • Creating a new schedule to list aboriginal governments for the purpose of section 13, to facilitate additions of future aboriginal governments;
  • Replacing the word "affairs" in subsection 14(b) with the word "negotiations", to narrow the exemption if that does not damage the interest involved;
  • Clarifying that an audit falls within the definition of investigation for the purposes of section 16;
  • Extending the section 17 exemption for information the disclosure of which could reasonably be expected to threaten the safety of individuals to include threats to an individual's mental or physical health; and further to extend the exemption to protect the human dignity of an individual, even if that individual is dead;
  • Creating an exemption to protect endangered species and sensitive ecological or historical sites; this exemption could also be amended to include sacred aboriginal sites;
  • Clarifying that the subsection 18(b) exemption for information the disclosure of which could reasonably be expected to prejudice the competitive position of a government institution includes part of an institution;
  • Clarifying that the subsection 18(d) exemption for information the disclosure of which could reasonably be expected to be materially injurious to the financial interests of the Government of Canada includes all or part of a government institution (this proposal will be implemented through the adoption of the FAA );
  • Providing that the section 18 protection of the government's economic interests does not cover the results of product or environmental testing;
  • Providing that the section 20 protection of third parties' economic interests does not cover the results of product or environmental testing; however, the Committee may want to further study the Information Commissioner's proposal to extend the subsection 20(2) exception to details of a contract or a bid;
  • Clarifying that subsection 20(2) also applies to part of a record (though the Committee may wish to consider whether this amendment is superfluous, as section 25 applies);
  • Clarifying the scope of the section 21 exemption for advice or recommendations by including a list of types of information not covered by the exemption (e.g., factual information, public opinion polls, statistical surveys, etc.); and
  • Limiting the protection in section 21 for personnel management or administrative plans not yet in operation to five years from the date of rejection or the date on which work was last done on the plan.

b. Extending Current or Creating New Exemptions

i) Critical Infrastructure Information

In its Report of June 2002, the Access to Information Review Task Force recommended a clarification concerning the application of the section 20 exemption for third party information to information about critical infrastructure vulnerabilities that a third party provides to the Government. The specific exemption in paragraph 20(1)(b) for "financial, commercial, scientific or technical information that is confidential information" could be interpreted as including information about critical infrastructure vulnerabilities, such as details of communications and other systems used by airports.

An added measure of reassurance could be provided to third parties operating critical infrastructure, such as airports, by amending Section 20 to clarify that it extends to such information.

ii) Draft Audit Reports

Currently, it is unclear whether draft reports of internal audits or related working papers are exempt from disclosure in all circumstances. Internal audit records should be protected for a period of time that is sufficient to allow internal auditors to effectively carry out their function. Internal audit working papers and draft reports require protection for a reasonable period of time. To avoid any possible abuse of such a provision by keeping reports in draft form indefinitely, unfinished draft reports could be disclosed within a certain time period, if no final report is delivered. Without such an exemption, the ability of internal auditors to meet professional standards could be compromised. This is why this exemption was introduced in the proposed Federal Accountability Act.

iii) Settlement or "Without Prejudice" Privilege

Another exemption the Committee may wish to consider relates to the protection of information related to the settlement of legal disputes. Settlement privilege is a rule of admissibility of evidence, and is meant to encourage settlement of disputes without recourse to litigation. It does so by precluding the admission into evidence of certain settlement communications, where the communication is being introduced to establish it as evidence of liability or a weak cause of action, or to "embarrass" the other party before the court. Although by definition both sides are aware of the contents of the settlement communication, the rule states that it cannot be put before the judge.

Settlement privilege (also known as "without prejudice" privilege) is not part of solicitor-client privilege, and therefore records protected by settlement privilege may not be protected from disclosure in response to an access request under section 23. The addition of an exemption for settlement privilege would ensure that the government has the same protection as persons in the private sector. This would also provide certainty that parties engaged in settlement negotiations with the government would not be vulnerable to the disclosure of their settlement records. The Government welcomes the view of the Committee on this particular issue.


  • [3] Société Gamma Inc. v. Canada (Secretary of State) (1994), 79 F.T.R. 42.
  • [4] Canada (Information Commissioner v. Canada (Minister of Industry) (2001), 14. C.P.R. 449 (F.C.A.).
  • [5] Telezone (F.C.A.), supra footnote 4, at para 50.
  • [6] Lavallee, Rackel and Heintz v. Canada [2002] 3 S.C.R. 209, at para. 36 citing with approval the decision of Dickson, J. in Hunter v. Southam Inc. [1984] 2 S.C.R. 145.
  • [7] R. v. Campbell [1999] 1 S.C.R. 565, at para. 49.
  • [8] Pritchard v. Ontario (Human Rights Commission), [2004] S.C.R. 809.
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