Strengthening the Access to Information Act
A Discussion of Ideas Intrinsic to the Reform of the Access to Information Act
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.
- 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.
- 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)).
- 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."
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.
- 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.
- 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:
- 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;
- information relating to investigative techniques or plans for
specific lawful investigations;
- 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
- 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.
- Section 18 – Economic Interests of Canada
Section 18 provides discretionary protection for information relating to the "economic
interests of Canada." The exemption protects:
- 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;
- information, which if disclosed, could reasonably be expected
to prejudice the competitive position of a government institution;
- 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
- 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.
- Section 20 – Third Party Information
Subsection 20(1) is a mandatory exemption for :
- trade secrets of a third party;
- 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;
- 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
- 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:
- The records must be financial, commercial, scientific or technical information;
- The information must be "confidential" by some objective standard;
- 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);
- 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. [1]
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.
- 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. [2] In that case, the Court held that the term "advice" includes:
- 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;
- 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);
- inconclusive advice (the advice need not urge a specific course
of action to fall within the exemption); and
- 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. [3] 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.
- 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." [4]
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. [5] Solicitor-client
privilege is considered to be a cornerstone principle of the legal system, whether
in the private sector or within government. [6]
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.
- 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:
- Whether the information referred to in the provision protects
- national security;
- the enforcement of any law of Canada or a province;
- public safety;
- large amounts of personal information the collection of which
is necessary to carry out the mandate of the government institution;
or
- information which is absolutely necessary to the exercise of
the core mandate of the government institution
- Whether any other provision of the Act would be sufficient to
provide the necessary level of protection for that information.
- 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.
- 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.
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.
-
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.
- Extending Current or Creating New Exemptions
- 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.
- 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.
- 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.
[1] Société Gamma Inc.
v. Canada (Secretary of State) (1994), 79 F.T.R. 42.
[2] Canada (Information Commissioner v. Canada
(Minister of Industry) (2001), 14. C.P.R. 449 (F.C.A.).
[3] Telezone (F.C.A.), supra footnote 4,
at para 50.
[4] 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 .
[5] R. v. Campbell [1999] 1 S.C.R.
565, at para. 49.
[6] Pritchard v. Ontario (Human Rights
Commission), [2004] S.C.R. 809.
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