A Comprehensive Framework for Access to Information Reform

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Government Views on Legislative Reform

2. Modernizing Exclusions and Exemptions

Access rights are subject to specific and limited exclusions and exemptions, intended to balance freedom of information against other public interests, such as individual privacy, the relationship of the Government with third parties, commercial confidentiality, law enforcement, national security, international affairs and defence, government financial decision making and the frank communications needed within government for effective policy-making.

The Government considers 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 citizen's right to know and the need to protect certain information in the public interest. If the Act is 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. The Government agrees with the Task Force that a certain degree of clarifying and modernizing of the Act is necessary to ensure the Act reflects current realities. This is, for example, true with respect to Cabinet confidences.

2.1 Cabinet Confidences

In order to make decisions on government policy, Ministers meet regularly in Cabinet to exchange views and opinions on policy matters in order to come to a consensus. For this decision-making process to be fully effective and in order to foster Cabinet solidarity, it is essential that ministers be able to have full and frank exchanges between and among themselves, and to have the assurance that these exchanges will be protected. The privacy of these deliberations is protected by the privilege associated with Cabinet confidences. The fact that Ministers take the Privy Councillor's oath, which requires them to maintain the secrecy of the matters they discuss in Council, is a clear indication of the high importance attached to this principle.

The importance of Cabinet confidentiality for the inner workings of government has been widely recognized by Parliament and the courts. In its 2002 decision in Babcock, the Supreme Court of Canada explained the importance attached to Cabinet confidentiality and stated as follows:

"The British democratic tradition which informs the Canadian tradition has long affirmed the confidentiality of what is said in the Cabinet room, and documents and papers prepared for Cabinet discussions. The reasons are obvious. Those charged with the heavy responsibility of making government decisions must be free to discuss all aspects of the problems that come before them and to express all manner of views, without fear that what they read, say or act on will later be subject to public scrutiny[.] (...)"¹

The Court referred to Cabinet confidentiality as "essential" to good government.

The privilege associated with Cabinet confidentiality finds its expression in three statutes: section 69 of the Access to Information Act, section 70 of the Privacy Act, and section 39 of the Canada Evidence Act (CEA).

The Access to Information Act and Privacy Act exclude Cabinet confidences from the class of information to which access can be obtained through their provisions. This means that when the government is preparing documents to disclose in response to an access request made under the Acts, it does not include documents, or portions of documents, that include Cabinet confidences.

For its part, section 39 of the CEA serves a different purpose. In the course of litigation, requests will usually be made, or orders issued, for the disclosure of all documents and information relevant to the issues at play. It often happens that there are, among the relevant documents collected by the government in answer to such requests or orders, Cabinet confidences. Section 39 of the CEA allows the Clerk of the Privy Council to protect Cabinet confidences from disclosure in such circumstances through the issuance of what is referred to as a section 39 certificate.

Recently, two key court decisions have significantly changed the existing regime for the protection of Cabinet confidences. These two decisions are: Babcock and Ethyl ².

Prior to Babcock, when an opposing litigant requested or obtained an order for the disclosure of all relevant documents, the Clerk made an assessment as to whether or not any of the information subject to disclosure fell within the definition of a Cabinet confidence. When this was the case, the Clerk issued a certificate to protect that information from disclosure. In Babcock, the Supreme Court of Canada decided that, under s.39, the Clerk has a discretion, rather than a mandatory duty, to protect Cabinet confidences. The decision to object to the production of documents, the Court held, could be exercised by the Clerk only after weighing the potential harm of disclosing a Cabinet confidence against the benefit to the administration of justice that would flow from its disclosure. This is what has come to be known as "public interest balancing."

All three Acts describe a subset of Cabinet confidences called "discussion papers". These are documents whose purpose is to present to Cabinet background explanations, analyses of problems or policy options. If Cabinet has made a decision on the issue to which a discussion paper pertains, that discussion paper may no longer be protected once the decision has been made public, or after four years, if the decision has not been made public.

As a result of administrative reforms that were implemented around 1985, free-standing discussion papers ceased to be produced. Following this change in the Cabinet papers system, the government took the position that the discussion paper provisions no longer applied to information contained in Cabinet papers produced after that date.

In Ethyl, the Federal Court of Appeal held essentially that form could not prevail over substance. It ruled that, the legislation not having been amended, the discussion paper provisions must continue to be given effect. More specifically, the Court decided that those parts of Cabinet documents that are the equivalents of what used to be found in discussion papers (e.g., background explanations, analyses of problems) must be identified and treated in the same manner as if they appeared in a discussion paper. As a result, such information is now disclosed much sooner after the relevant Cabinet decision has been made.

While the Government strongly believes that the Cabinet decision-making process must continue to be protected, it also recognizes that the current regime is twenty years old and needs to be modernized. In particular, it is important that any new legislative scheme should reflect, in as full and appropriate a manner as possible, the recent court decisions. In addition, there are other changes that can be made and should be considered to enhance transparency and to ensure that the overall scheme is fair and balanced, in light of all relevant considerations.

The Government is considering the following changes to the Cabinet confidence regime:

On the scope of protection, the Government would narrow the ambit of Cabinet confidentiality by focusing on its essence in a manner largely similar to what exists in the provinces and in most other Commonwealth countries . The new – and shortened – definition, which would be in keeping with the Task Force's recommendation, would be applicable to the three Acts.

The definition of a Cabinet confidence, more formally referred to as a "Confidence of the Queen's Privy Council for Canada", would essentially focus on information or communications that reveal the substance of Cabinet's deliberations, decisions, and submissions. In addition, the definition should give full effect to the decision of the Federal Court of Appeal in Ethyl. The impact of this new definition would reduce the amount of documents protected as Cabinet confidences and could result in greater accessibility under the Act, and therefore would provide greater transparency.

Cabinet confidences are currently excluded from the application of the Access to Information Act and the Privacy Act, and the Government believes this should continue with one important modification. The Government would enshrine in the legislation the right of the Information Commissioner (and the Privacy Commissioner) to go to court to challenge definitional issues. More specifically, in the access context, the proposal would allow the Information Commissioner to ask the Federal Court to review the government's determination that information sought under an access request, falls within the definition of a Cabinet confidence and, for that reason, is properly not accessible pursuant to the Act. If the Court did not agree with the determination made by the government, then the information would no longer be excluded from the application of the Act.

With respect to the application of Section 39 of the CEA and the manner in which public interest balancing is conducted, the Government proposes the following changes:

Firstly, the Clerk would determine whether or not information falls within the definition of a Cabinet confidence. When that is the case, the Clerk would have to determine whether or not the disclosure of the information would unduly prejudice effective decision-making by Cabinet or undermine the solidarity of Cabinet. If the Clerk was of the view that decision-making would be so prejudiced or that solidarity would be so undermined, the Clerk would issue a certificate objecting to the disclosure of the information. The Government believes that the Clerk, being the custodian of Cabinet confidences, is best placed to make these two initial determinations.

When faced with such a certificate, a litigant could apply to the Federal Court, and seek to obtain the disclosure of the information. If the applicant could show that other public interests (such as, for example, the protection of individual rights under the Charter of Rights and Freedoms) clearly outweigh the public interest in confidentiality, then the judge could order disclosure. If the Court found it necessary, it could examine the Cabinet confidences in question. In addition, either party could appeal the decision of the trial judge made under this new recourse.

In order to ensure that the same interpretation of the law applies throughout the country, the Government is of the view that the Federal Court should be given this role. This, incidentally, is already the case in the context of Section 38 of the CEA and issues of national security issues and the protection of sensitive information.

Currently, under all three Acts, Cabinet confidences are protected from disclosure for a period of twenty years. In assessing the Task Force's recommendation that the maximum period of protection be reduced to fifteen years, the government reviewed the regimes in place in other jurisdictions which have a scheme similar to the federal one.³ Our review of provincial and foreign statutes disclosed that the twenty-year terms currently provided in the three federal Acts is well within this range, and therefore the Government is not convinced that a change is warranted.

The Government would welcome the Committee's views on whether the proposed changes enhance transparency and the protection of the interests of litigants, while continuing to protect the essential confidentiality of Cabinet deliberation in our system of government.

2.2 Records in Ministers' Offices

The federal government has always taken the position that the Access to Information Act does not apply to records under the control of Ministers' offices, an interpretation that was endorsed by the first Information Commissioner, Ms. Inger Hansen, in her 1989 annual report, in which she indicated that the House of Commons and Ministers'offices are not subject to the Access to Information Act.

The federal government interprets the Act to mean that a Minister's office is separate and apart from the government institution or department over which the Minister presides. The Information Commissioner is currently challenging the Government's interpretation before the Courts. The Task Force suggested that the Government await the court's ruling before considering any amendment to the Act.

The reasons that some twenty years ago motivated the exclusion from the application of the Act to records in Ministers' offices, are still valid today. This exclusion allows for the free and frank debates that are required to ensure the proper functioning of the political process. Our system of democracy depends on electoral, parliamentary and decision-making processes in which political parties and political considerations play vital roles. These processes require confidentiality in order to function effectively and fairly. Further, Ministers, like all Members of Parliament, devote significant time and effort responding to constituents' concerns. Such work requires confidentiality in order to protect the privacy of constituents.

The exclusion of records in Ministers' offices from the Act does not result in the public having absolutely no access to such records. On the contrary, under the current regime, records that a government institution receives from a Minister's office or sends to a Minister's office are covered by the Act. In practice, this means that, where a ministerial record is sent to the department, it comes under the control of the department and the Act applies. Similarly, where records under the control of a government institution are sent to a Minister's office, these records are subject to the Act.

In addition, in accordance with the Government's commitment to promote the values of transparency and accountability, all Ministers and exempt staff have been encouraged by the Prime Minister, since December 12, 2003, to proactively disclose information about their travel and hospitality expenses. There is no intention to move away from this approach.

A Minister's office provides partisan political support to the Minister to assist in the fundamentally political processes of Cabinet decision-making and parliamentary democracy. It is, therefore, distinct in its composition and functions from the relevant government institution, staffed by the non-political, non-partisan, professional, public service. The federal government's approach to the protection of records in Ministers' offices is consistent with the approach of other provincial and Westminster-type jurisdictions, which recognize the need to treat records under the control of a Minister's office differently from those under the control of a government institution.

Thus, while the Government does not favour legislative changes to the treatment of records under the control of a Minister's office, it nonetheless welcomes the views of the Committee on this complex issue.

2.3 Clarifying Existing Exemptions

In its Report, the Task Force recommended a number of changes to existing exemptions that echo proposals made by the Information Commissioner in the Blueprint for Reform set out in his 2000-2001 Annual Report.

The Government considers that the proposals to amend a number of the exemptions provisions and to establish new protections might be beneficial and invites the views of the Committee.

Section 13 – Records obtained from Other Governments

Section 13 of the Act provides mandatory class protection for records "obtained in confidence" from other governments, foreign, provincial and municipal as well as international organizations. The need for such an exemption is compelling since each government should be generally responsible for controlling and releasing its own information. As recommended in the 1986 Parliamentary Committee report, Open and Shut, and in the Task Force report, the Government considers that Section 13 could be amended to extend to the subdivisions of foreign states (e.g. an American state) and to include foreign authorities with which Canada has international and/or commercial relations.

Currently, Section 13 (3) defines "aboriginal government" as meaning (a) only the Nisga'a Government as defined in the Nisga'a Final Agreement, and (b) the Council, as defined in the West Bank First Nation Self-Government Agreement. The Government believes that Paragraph 13 (1) (e) should also be amended to accommodate the extension of the Access to Information Act to specified aboriginal governments. As more and more self-government agreements are being concluded and given effect by legislation and where a self-government agrees to be governed by the Act, Paragraph 13(3)(e) has to be re-opened to add a reference to each new aboriginal government. The Government considers that a more practical option could be implemented, such as creating and adding to a Schedule to the Act to list aboriginal governments benefiting from the protection of Section 13 of the Act. The name of the new aboriginal government would be added to Schedule III at the same time that legislation is passed to give effect to the related self-government agreement.

The Government seeks the Committee's views on whether it would be appropriate to amend Section 13 as proposed above.

Section 17 – Health and Safety

Section 17 provides a discretionary, injury-based exemption for information which, if disclosed, could reasonably be expected to threaten the safety of individuals. The current Information Commissioner and his predecessor have both recommended that Section 17 be amended to incorporate the words "mental or physical health" into the threat to an individual's safety, thereby extending protection to information that could reasonably be expected to threaten an individual's mental or physical health.

The Freedom of Information legislation in force in British Columbia has made a useful modification to the concept of "threats to the safety of individuals", by adding "mental or physical health". As suggested by the Task Force, and as proposed in Private Members' Bills C-462 and C-201, the Government considers that Section 17 could be extended to records that, if disclosed, would threaten the physical or mental health of individuals or would offend the dignity of any individual even after that individual is deceased, such as photographs, videos or other depictions of violent crime, crime scenes and victims, which are now protected as "personal information" only for 20 years following the death of a victim.

The Government seeks the Committee's views whether Section 17 should be amended to protect records that, if disclosed, would threaten the physical or mental health of individuals or would offend the dignity of any individual.

Section 18

Section 18 deals with the protection of the economic interests of the Government of Canada. Both the Information Commissioner's 1994 report, entitled "The Access to Information Act: A Critical Review" and the Task Force's report, noted that the government's competitive, business-oriented activities are being carried out increasingly by special operating agencies (SOAs), which are part of or associated with a government department or agency, or by some other form of alternative service delivery. Section 18(b) protects information the disclosure of which could reasonably be expected to prejudice the competitive position of a government institution as a whole. The competitive business activities of these agencies may not be extensive enough to affect the competitive position of a government institution as a whole, and therefore Section 18 would not apply. As a result, many SOAs are expected to compete with the private sector without the protection afforded to competitors under Section 20, which protects third party information. To resolve this problem, Section 18 (b) could be amended so as to include apply to the Special Operating Agencies associated with various departments.

The Government is also considering recommendations made by the 1986 Parliamentary Committee, the Information Commissioner (Annual Report 93-94) and the Task Force, that Section 18 be amended so that it no longer would protect the results of product and environmental testing. The 1986 Parliamentary Committee argued that without such an amendment, government institutions may not have to disclose their own product or environmental testing results, even though the results of testing carried out by, or on behalf of, such institutions on private sector products or activities, are subject to disclosure. Such an amendment would bring Section 18 in line with Section 20, which expressly excludes from protection the results of product or environmental testing done by a company for a government institution.

The Government would welcome the Committee's views on these proposed amendments to Section 18.

Section 20 – Third Party

Whereas Section 18 protects the Government's own commercial information, Section 20 protects confidential commercial information which third parties provide to the Government. This is one of the few areas of the Act where there is a substantial body of case law. The Government considers that the provision is basically sound and that the courts have consistently applied it as originally intended by Parliament.

Subsection 20(6) permits the head of a government institution to disclose information protected by Section 20(1) (except trade secrets) 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.

Both the Information Commissioner and the Task Force have recommended that the override in Section 20(6) be broadened to include consumer protection as an element of the public interest to be considered (along with public health, public safety and protection of the environment) in deciding whether to disclose the information in question. The Government agrees with this recommendation.

Currently, Section 20 does not protect the information provided to the Government about a third party's critical infrastructure vulnerabilities. Taking into account the recommendation of the Task Force and the proposals in Bills C-462 and C-201, the Government considers that an amendment to Section 20 would ensure its application to such information.

The Government would welcome the Committee's views on whether these proposed amendments to Section 20 would be useful.

Section 21 – Advice, Deliberations

Section 21(1)(a) is a discretionary exemption allowing the head of the institution of protect advice or recommendations developed by or for a government institution or a minister of the Crown. This is an important exemption for protecting the development of professional and impartial advice by the bureaucracy on sensitive policy and operational matters. Although the exemption was not intended to protect factual information, statistical surveys, and the results of public opinion polls, the provision appears to be broad enough to allow it. Therefore, it has been proposed on several occasions that the exemption be clarified to ensure that it does not protect such records. This proposal would, in part, codify recent case law that has specified that advice does not include factual information.

Section 21(1)(d) is also a discretionary exemption that protects plans relating to the management of personnel or the administration of a government institution that have not yet been put into operation. If the plans are not implemented, or if no decision relating to them is taken, then the plans can stay protected for the full period specified for the exemption (20 years). According to the Task Force recommendation, the head of a government institution should have the discretion to protect such plans for a reasonable period of time, during which their status may change (e.g. work may cease and recommence a number of times), but that the protection should not exceed five years. The Government is considering an amendment to Section 21 to implement this recommendation.

The Task Force recommended that Section 21 be amended to extend to consultants' advice the protection currently given to advice or recommendations developed by public servants.

The Government seeks the views of the Committee on whether it would be appropriate to apply this exemption to work done by consultants for or on behalf of government institutions.

Section 22 - Audits

Section 22 currently gives the head of a government institution discretion to refuse to disclose information relating to testing or audit procedures or techniques, or details of specific tests to be given or audits to be conducted, if disclosure would prejudice the use of results of particular tests or audits.

The Task Force recommended that Section 22 be amended to give the head of government institutions the discretion to refuse to disclose draft internal audit reports and related audit working papers until the earliest of: the date the report is completed; six months after work on the audit has ceased; or two years following commencement of the internal audit. The Auditor General has expressed concern about the negative impact the release of draft internal audit reports and working papers has on the internal audit process. The Auditor General has argued that the disclosure of internal audit working papers under the Access to Information Act risks compromising the internal auditor's ability to meet professional standards, and could reduce the extent to which the Auditor General could rely on internal audit work.

Given the role of the Auditor General in providing independent and objective examinations of government operations to Parliament, including detecting and exposing improper behaviour through the use of audits, the Government finds her arguments in this area compelling.

The Comptroller General, who has recently been given the task of ensuring that the Government has an effective internal audit function, strongly believes that internal auditing is not and cannot be effectively carried out under the existing provisions of the Act. The Comptroller General is of the view that internal audit working papers and draft reports contain information that has not been validated or verified and may contain errors of fact or erroneous conclusions. The release of such records, even after the audit has been completed and the final report has been issued, could therefore harm individuals or programs and will undermine the credibility of the internal audit function. In addition, the potential of the release of audit working papers has a chilling effect on the candour of individuals in their dealings with auditors.

The Comptroller General is recommending an amendment to Section 22 to add a mandatory 20-year protection for draft internal audit reports and working papers. Final audit reports would not be covered by this protection. If no final audit report is released within two years after the day that the audit was first commenced, then he proposes that the most recent draft of the report not be covered by this protection. In all cases, the Comptroller General recommends that the audit working papers and the earlier drafts of the report would remain protected for a period of 20 years.

The Government would welcome the Committee's views on whether it would be appropriate to amend Section 22, either to require or to permit the head of a government institution to refuse to disclose draft internal audit reports and related audit working papers, and, if so, how long should the period of protection continue.

Section 23 – Solicitor-Client, Other Privileges and Other Issues related to Legal Proceedings

Section 23 permits the head of a government institution to refuse to disclose records containing information subject to solicitor-client privilege. The doctrine of solicitor-client privilege has been recognized as a fundamental principle of our legal system for over 300 years. 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. At the same time, Section 25 states that the head of a government institution shall disclose any part of a record that does not contain, and can reasonably be severed from any part of the record that can be protected using an exemption in the Act. The interplay of these two sections has been somewhat problematic, in that disclosure of parts of a document subject to solicitor-client privilege could constitute waiver of the privilege for the entire record.

The Task Force recommended an amendment to confirm that disclosure of information from a record subject to privilege would not terminate privilege in respect of the rest of the information in that record or in a related record. This proposal was intended to ensure the protection of information where information is severed and disclosed pursuant to Section 25. The Government questions whether such an amendment would be effective in the context of litigation.

The Government is considering what is the best way to clarify the interplay between Sections 23 and 25 and invites the committee's views on this.

Since the passage of the Act in 1983, other privileges have become more developed. For example, mediation is now widely accepted as a faster and less costly alternative to litigation. For mediation to be effective, the parties to the mediation must both be confident that they can freely exchange information with each other, and that this information will remain confidential. This is now described as mediation privilege. This privilege, for example, is not recognized in the Access to Information Act. The Government is considering clarifying the scope of Section 23 to protect information that is subject to privilege between legal counsel and their clients or any privilege under the law of evidence.

The Government would invite the Committee to consider whether other privileges warrant protection in the Act.

During civil litigation proceedings, courts quite commonly order one party to provide the other party with confidential information relevant to the proceedings on the strict understanding and undertaking that the receiving party will not disclose the information. This is often referred to as an implied undertaking and is not recognised in the Act. Where the receiving party is a government institution subject to the Act, an access request would place the government institution in a conflict between its statutory duties and the implied undertaking.

The Task Force considered this problem and recommended that the Act be amended to exclude records obtained by the Government in a civil proceeding under an undertaking of confidentiality, as well as records seized from a third party in the course of a criminal investigation. As an alternative to this recommendation, the Government is also considering whether Section 23 exemption should be extended to protect records given under an undertaking of confidentiality.

The Government seeks the Committee's views whether it would be appropriate to add to Section 23 a discretionary exemption to protect information obtained by a government institution in the course of a civil proceeding and that is subject to an undertaking or a rule of confidentiality.

2.4 Adding New Exemptions

Heritage and Ecological sites

The Act currently does not contain an exemption protecting information where its disclosure could damage or interfere with the preservation, protection or conservation of cultural and natural heritage sites or other sites that have an anthropological or heritage value.

The Task Force noted that access regimes in several jurisdictions do protect this type of information. The Task Force also noted that Canada also accepted the United Nations Convention "concerning the protection of the world cultural and natural heritage". Based on these two points, the Task Force recommended that a new exemption be added to the Act to protect this type of information. This was also proposed in Bills C-462 and C-201.

The Government would consider adding a new discretionary, injury-based exemption to address emerging concerns about the protection of anthropological, cultural and heritage sites. This would include confidential information about a place of spiritual or other cultural value to aboriginal peoples.

Species at Risk

Bills C-462 and C-201 also proposed a new exemption to protect information the disclosure of which could increase the risk of extinction of endangered species. The Government is also willing to consider this amendment.

Records of Members of Administrative Board or Tribunal

The Access to Information Act applies to a record under the control of a government institution. The Task Force recommended that the Act be amended to exclude notes, analyses and draft decisions prepared by or for a person who is acting in a quasi-judicial capacity as a member of an administrative board or tribunal. This would reflect the Federal Court of Appeal decision in Canada (Privacy Commissioner) v. Canada (Labour Relations Board) [2000] FCJ No. 617 (QL) (F.C.A.) that notes taken by members of the Canada Labour Relations Board during its quasi-judicial proceedings are not under the control of the Board itself for the purposes of the Privacy Act.

To remove any doubt about the treatment of such records, the Government is considering amending the Access to Information Act to expressly exclude notes taken by members of administrative boards and tribunals during quasi-judicial proceedings. This protection should also extend to the notes of judges and presiding officers acting in a judicial or quasi-judicial capacity in the military justice system.

The Government seeks the Committee's views on these issues.

2.5 Review of Section 24/Schedule II – Statutory Prohibitions against Disclosure

Section 24 provides that government institutions must not release records containing information governed by confidentiality provisions in other statutes that are listed in Schedule II to the Act. It is current practice for Parliament to review both the proposed statutory prohibition and its proposed inclusion in Schedule II when the relevant bill is being considered.

A number of calls for reform have maintained that this exemption is not necessary since the types of information protected by the provisions listed in the Schedule could also be protected by the exemptions for personal information and third party commercial information. More specifically, t he Information Commissioner has recommended that the government eliminate Section 24 and the list in Schedule II of approximately 70 confidentiality provisions. Bills C-462 and C-201 also proposed that Section 24 and Schedule II be eliminated. On the other hand, the Task Force took the view that an exemption for statutory prohibitions was necessary, but that the standard to be met for such protection should be high. The Task Force recommended that the list of provisions on Schedule II be reduced and that criteria be established to define and control the confidentiality provisions that should be added to Schedule II. The Task Force also recommended that the Act be amended to authorize the Governor-in-Council to add provisions to Schedule II only if they meet the established criteria.

The Government supports the Task Force's recommendation because of the crucial importance to government operations of some of the confidentiality provisions listed in Schedule II. The most cogent examples of these statutory prohibitions are: tax payer information, census data information, information in the DNA databank, records subject to a court-ordered sealing order, and information about security measures developed under the Aeronautics Act.

The Government suggests that the review and reform of Section 24 and Schedule II could be approached from two angles: the first regarding confidentiality clauses already listed in Schedule II; the second regarding the future addition of clauses to Schedule II. Criteria could be established and applied to clauses currently listed to assess whether they should remain in Schedule II. These criteria could include how recently and frequently the Section 24 exemption has been used; the extent to which the information could be protected by other exemptions; whether the information continues to be highly sensitive; whether the confidentiality clause listed is mandatory or discretionary. It is important for the Government to understand whether the other exemptions of the Act are sufficient to protect the information covered under the statutory prohibition. To that end, departments are being asked about the possible i mpact on their operations if they were required to rely on other mandatory or discretionary exemptions instead of Section 24.

In relation to the second issue, that of future additions to Schedule II, the Government believes that criteria should also be adopted. These could include: whether the Government institution has a demonstrable and justifiable need to provide an iron clad guarantee that the information will not be disclosed. This criterion would cover records such as tax payer information and census data. The Government shares the opinion of the Task Force that the standard to be met for Section 24 protection should be very high. In addition to meeting the criteria, therefore, the government institution seeking to add a confidentiality provision to Schedule II should be required to justify why the information in question cannot be adequately protected by the other exemptions in the Act.

The Government wishes to bring these matters to the attention of the Committee for further consideration and discussion on the development of appropriate criteria for the Section 24 mandatory exemption.

¹ Babcock v. Canada (Attorney General), [2002] 3 S.C.R. 3 [Babcock], at para. 18.

² Canada (Minister of Environment) v. Canada (Information Commissioner), [2003] F.C.A. 68 [Ethyl].

³ In Canadian provinces, the period ranges considerably: for example, from 15 years in British Columbia, to 20 years in Ontario, to 25 in Quebec.  At the international level, the period of protection in Australia is 20 years and in the U.K. 30 years.

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