Information Notice - Access to Information and Privacy

No. 2007-08

July 31, 2007

To: Access to Information and Privacy Coordinators

Subject:  New exemption under the  Access to Information Act

The Emergency Management Act was assented to on June 22, 2007, and will come into force on August 3, 2007.

Section 8 of the Emergency Management Act will add a paragraph to section 20 of the Access to Information Act to exempt information concerning the vulnerability of buildings, networks or systems which is supplied to a government institution in confidence by a third party in relation to an emergency management plan. Related amendments will be made to subsection 20(6), 27(1) and 35(2) of the Access to Information Act.

You will find the text of the new provisions at Appendix A. The link to the Emergency Management Act is:

http://www2.parl.gc.ca/content/hoc/Bills/391/Government/C-12/C-12_4/C-12_4.PDF. 

We are working with our colleagues at Public Safety Canada to prepare detailed guidance for you on the interpretation and application of this provision.  The guidance will be circulated as soon as it has been finalized. 

Donald Lemieux
Executive Director
Information and Privacy Policy Division
Chief Information Officer Branch

Appendix A

 Emergency Management Act

8. (1) Subsection 20(1) of the Access to Information Act is amended by adding the following after paragraph (b):

(b.1) information that is supplied in confidence to a government institution by a third party for the preparation, maintenance, testing or implementation by the government institution of emergency management plans within the meaning of section 2 of the Emergency Management Act and that concerns the vulnerability of the third party's buildings or other structures, its networks or systems, including its computer or communications networks or systems, or the methods used to protect any of those buildings, structures, networks or systems;

(2) Subsection 20(6) of the Act is replaced by the following:

(6) The head of a government institution may disclose all or part of a record requested under this Act that contains information described in any of paragraphs (1)(b) to (d) if

(a) the disclosure would be in the public interest as it relates to public health, public safety or protection of the environment; and

(b) the public interest in disclosure clearly outweighs in importance any financial loss or gain to a third party, any prejudice to the security of its structures, networks or systems, any prejudice to its competitive position or any interference with its contractual or other negotiations.

9. Subsection 27(1) of the Act is replaced by the following:

27.(1) If the head of a government institution intends to disclose a record requested under this Act that contains or that the head has reason to believe might contain trade secrets of a third party, information described in paragraph 20(1)(b) or (b.1) that was supplied by a third party, or information the disclosure of which the head can reasonably foresee might effect a result described in paragraph 20(1)(c) or (d) in respect of a third party, the head shall make every reasonable effort to give the third party written notice of the request and of the head's intention to disclose within 30 days after the request is received.

10. The portion of subsection 35(2) of the Act after paragraph (b) is replaced by the following:

(c) a third party if

(i) the Information Commissioner intends to recommend the disclosure under subsection 37(1) of all or part of a record that contains — or that the Information Commissioner has reason to believe might contain — trade secrets of the third party, information described in paragraph 20(1)(b) or (b.1) that was supplied by the third party or information the disclosure of which the Information Commissioner can reasonably foresee might effect a result described in paragraph 20(1)(c) or (d) in respect of the third party, and

(ii) the third party can reasonably be located.

However no one is entitled as of right to be present during, to have access to or to comment on representations made to the Information Commissioner by any other person.