Section 20(2),(5)(6) - Disclosure Authorized in Public Interest

2) Subsection 20(5):

As noted above, when there is a possibility that the third party would consent to disclosure, it is not sufficient for the head of the institution to merely state that they just don't know if the third party would consent. In such a case, he must take positive actions to determine whether the third party would consent: see also X v. Minister of National Defenceand Ruby v. Canada (Solicititor Genral, R.C.M.P.).12

Section 20(2),(5)(6) - Disclosure Authorized in Public Interest

3) Subsection 20(6):

In Canada Packers Inc. v. Minister of Agriculture et al., [1989] 1 F.C. 47 (C.A.) (appl'd Hunter v. Minister of Consumer and Corporate Affairs (1990), 35 F.T.R. 75 (F.C.T.D.)) during a review under s. 44 of a decision to disclose meat audit inspection reports, the trial judge found that even if the records were subject to exemption under subsection 20(1), their disclosure would be justified under subsection 20(6). The Federal Court of Appeal however held that the trial judge had erred in so concluding, noting that since there was nothing in the record to indicate that the head of the government institution had exercised his discretion under subsection 20(6), it would be improper for the Court to exercise this discretion in his stead.

Ontario:

(Order # 12)

  • The section cannot be used by people trying to assert only private interests

(Orders # 47, 55, 68, 123, 196)

  • The party asserting the compelling public interest override bears the burden of proof

(Orders # 24, 61, 68, 72, 123, 124, 149, 159, 164, 180, 183, 196)

  • To invoke the override, there must be a compelling public interest that clearly outweighs the purposes of the exemption, as distinct from the value of disclosure to the requester of the particular record in question. The burden regarding applicability of this section falls on the individual seeking the application

(Orders #123, 124)

  • Where extensive public hearings are held as a result of a Royal Commission of Inquiry, the public's interest in the subject matter of the Commission's review has been adequately served such that s. 23 would not apply.

(Order # 128)

  • The need for public debate in and of itself is not sufficient to outweigh the purpose of the exemption

(Order # P-241)

  • While the burden of establishing the applicability of s. 23 to particular records is on the applicant, this burden is not absolute. Where the applicant is not familiar with the contents of the records, the Commissioner will review them with a view to deciding whether s. 23 applies.

Section 20(2),(5)(6) - Disclosure Authorized in Public Interest

TABLE OF AUTHORITIES

Overrides in general

Canada Packers Inc. v. Minister of Agriculture, [1989] 1 F.C. 47, 53 D.L.R. (4th) 246 (C.A.).

Goguen v. Gibson, [1984] 2 F.C. 463, (January 10, 1984) A-616-83 (F.C.A.).

Information Commissioner v. Minister of Employment and Immigration, [1986] 3 F.C. 63 (T.D.).

Sutherland v. Canada (Minister of Indian and Northern Affairs et al., (May 6, 1994), (T-2573-93) (F.C.T.D.).

X v. Minister of National Defence, [1992] 1 F.C. 77, 46 F.T.R. 206 (T.D.).

Ruby v. Canada (Solicititor General, R.C.M.P.), [2000] F.C.J. No. 779, June 8, 2000, (F.C.A.)

20(2)

Gainers Inc. v. Minister of Agriculture et al. (1987), 14 F.T.R. 133 (F.C.T.D.).

20(5)

X v. Minister of National Defence, [1992] 1 F.C. 77, 46 F.T.R. 206 (T.D.)

20(6)

Canada

Canada Packers Inc. v. Minister of Agriculture et al., [1989] 1 F.C. 47 (C.A.).

Hunter v. Minister of Consumer and Corporate Affairs (1990), 35 F.T.R. 75 (F.C.T.D.).

Ontario

Orders #12, 24, 47, 55, 61, 68, 72, 123, 124, 149, 159, 164, 180, 183, 196, 241.

Section 20(2),(5)(6) - Disclosure Authorized in Public Interest

The Questions

Sections -- 20(2), (3), (4)
Statement of Test to be Met
Mandatory disclosure

Results of product or environmental testing

  • must be product testing
  • must be environmental testing

Must have an environmental purpose [see S. 2 Canadian Environmental Assessment Act definition of 'environment' preamble*

    * This could be added to preamble section
Relevant Questions Departmental Response Assessment

Does any part of the record contain results of product or environmental testing?

What was tested?

If an article was tested, how is the article used/consumed by industry or the public?

If a service was tested, what does the service provide?

  • to whom?

If land, water, air, animals, fish, plants, trees or other matter was tested, or if an activity (as opposed to an article or service) was tested?

  • What was the purpose of the testing?

Was the purpose related to assessing the environmental effects of an activity?

   

Section 20(2),(5)(6) - Disclosure Authorized in Public Interest

Statement of Test to be Met
  • must include the results of the testing
  • includes consequences, qualifications and explanations making results understandable
Relevant Questions Departmental Response Assessment

What portion of the record is being disclosed?

Do portions not being disclosed contain results of the testing?

Do they describe the testing?

Do they explain the results?

Do they qualify the results?

Do they discuss the consequences of the results obtained?

Do they assess the results against regulatory, industry, product and contractual or other standards?

Do they elaborate on the results?

   

Section 20(2),(5)(6) - Disclosure Authorized in Public Interest

Statement of Test to be Met
Carried out or on behalf of a government institution
Relevant Questions Departmental Response Assessment

Who carried out the testing?

Was it a government institution?

  • If not, was the testing done at the request of a government institution?

Why did the government institution request the testing?

As a supplement to its own testing?

  • To carry out statutory, regulatory functions of the institution?
  • To develop product or environmental standards?

Was the arrangement to have the testing done recorded anywhere?

Ask to see it (request for testing and response)?

Was a fee paid by the institution?

   

Section 20(2),(5)(6) - Disclosure Authorized in Public Interest

Statement of Test to be Met
  • Does not include testing done by third parties and provided to government.
  • Unless testing done as a service for a body other than a government institution for a fee.
Relevant Questions Departmental Response Assessment

Were the results given to the government by a third party?

  • for what purpose?
  • to meet a statutory or regulatory requirement?

Did the government request that the testing be done?

  • why?

Was it to enable or direct the third party to comply with a regulation or other government requirement?

Did the government institution ask the third party to do the testing to assist the government?

  • if yes, in what way [relate to points above]

Did the government institution do the testing for another body

  • who?

Is this body a government institution?

Why was the testing done?

What were the arrangements for doing the testing?

Did the institution receive a fee?

   

Section 20(2),(5)(6) - Disclosure Authorized in Public Interest

Statement of Test to be Met
  • Methodology used must be explained
  • Not preliminary tests to develop methods of testing
Relevant Questions Departmental Response Assessment

Has a written explanation of the methods used in conducting the tests been provided?

  • ask to see it

If more than one method was used, have all methods been disclosed?

Were preliminary tests conducted to develop methods of testing?

What part of the records relates to these preliminary tests?

Ask to see description of various methods tested in preliminary tests?

Were additional methods for testing the product used along with the method being disclosed?

Were the results of these tests disclosed?

Were the results of these tests compared in any way to those obtained from the tests that are being disclosed?

  • if so, they qualify as results and should be disclosed
   

Section 20(2),(5)(6) - Disclosure Authorized in Public Interest

Section -- 20(5)
Statement of Test to be Met
Consent of third party to disclosure of section 20(1) information
  • Government institution has duty to inquire
Relevant Questions Departmental Response Assessment

Does the third party to whom the section 20(1) information relates consent to its disclosure?

What portions of the record does the third party consent to release?

Has the third party intentionally put into the public domain any information in the record to which paragraph 20(1)(a) might otherwise apply?

  • is there a qualification to this effect in the document

Did the third party otherwise waive property rights to use of the information when they provided it, i.e., specify the information is for public use or disclosure?

Did the third party provide to the government institution a previous consent to disclosure?

  • was this ever withdrawn?

Did the government institution ask the third party if it consents to disclosure?

  • in its notice under section 27
  • in other communications
   

Section 20(2),(5)(6) - Disclosure Authorized in Public Interest

Section -- 20(6)
Statement of Test to be Met
Record must contain information relating to public health, public safety or protection of the environment.
Relevant Questions Departmental Response Assessment

Does the record contain 20(1)(a) information?

  • if yes, 20(6) is inapplicable to that information?

Does the record contain information in paragraphs 20(1)(b), (c) or (d)?

  • if yes, does subsection 20(2), (3) (4) or 20(5) apply to allow disclosure
    • if yes, 20(6) investigation unnecessary
    • if no, 20(6) investigation may be necessary

What does the 20(1)(b), (c) or (d) information relate to?

Is it information which concerns?

  • public health
  • public safety
  • protection of the environment

For what purpose did the government institution obtain the information?

Is this purpose related to public health, public safety or protection of the environment?

Was there a specific incident, event or activity which gave rise to the collection of the information from the third party?

  • what was it?

Did this event have any impact or potential impact on public health, public safety or protection of the environment?

   

Section 20(2),(5)(6) - Disclosure Authorized in Public Interest

Statement of Test to be Met
  • There must be a public interest in disclosure of the information for these purposes
  • Must be a public, not private interest
Relevant Questions Departmental Response Assessment

Whose interests would be affected by disclosure other than the third party?

  • individual
  • general
  • describe affected group

Does the information concern an event/proposal/incident/ condition involving health, safety or protection of the environment?

  • If so, what group in the public is affected by the event/ proposal/incident/condition?

Is the event/proposal/incident/condition one which requires government approval?

Did it result in government enforcement activity or investigation?

Did it involve contravention of standards in health, safety and environmental protection?

Does the information describe a danger or risk in the areas of health, safety or protection of the environment?

  • describe the extent of the danger or risk
  • who is affected by the danger or risk

Has the danger or risk been alleviated?

  • to what extent?
  • when?
  • what was the degree of exposure to the danger or risk before it was alleviated?
  • for how long?

What was the impact of any past event, incident described in the record

  • describe degree or extent

What are the remaining effects or impacts?

Are people, animals or environment currently exposed to the dangers or risks arising from the event described in the information?

  • to what degree?

Have the issues described in the information sought been publicly examined elsewhere?

  • in an ongoing process

Will that process likely result in disclosure of the information to the public or in public discussion of the information?

What are the dangers, if any, that would be caused by disclosure (aside from 20(1)(b), (c) and(d) harm?

  • what are they?
  • why would they arise?
   

Section 20(2),(5)(6) - Disclosure Authorized in Public Interest

Statement of Test to be Met
  • Public interest in disclosure must clearly outweigh in importance the financial loss or gain, competitive prejudice, interference in negotiations of third party
  • Assess degree of s. 20(1)(b), (c) and(d) events on third party
  • Interest in public health, safety, protection of the environment must clearly outweigh importance of s. 20(1)(b), (c) and (d) event
Relevant Questions Departmental Response Assessment

Quantify the financial loss or gain, prejudice to the competitive position or degree of interference in negotiations of third party.

In the case information described in s. 20(1)(b), what degree of importance attaches to keeping the information confidential?

What is the nature of the relationship between the government institution and the third party, i.e., why did the third party supply the information to the government?

  • voluntary?
  • If so, what were the circumstances ?
  • mandatory?

Describe chilling effect of disclosure, if any.

Describe any impact on government relationship or duty to third party to maintain information in a confidential fashion.

What factors did the government institution consider in assessing whether s. 20(6) applies?

Ask for an explanation of the relevance of any non-obvious factors to s. 20(6).

   

Section 20(2),(5)(6) - Disclosure Authorized in Public Interest

Statement of Test to be Met
  • Weigh the competing third party interest against the public interest
  • Ensure that the factors taken into account are relevant to s. 20 (6)
  • Assess whether any relevant considerations were omitted
Relevant Questions Departmental Response Assessment

Why did the institution decide not to disclose under s. 20(6)?

Did the institution consider the purpose of the Access to Information Act in its decision?

  • extend the laws of Canada to provide a right of access to information
  • government information should be available to the public
  • necessary exceptions should be limited and specific

Did the government institution consider:

  • the value of public education with respect to the subject matter of the information
  • public confidence in regulatory, enforcement or investigatory systems
  • need for public awareness of successes or failures of regulatory enforcement or investigatory systems
  • need for public awareness of legislative or regulatory gaps or inadequacies in the areas of public health, safety, environmental protection

Were the interests of all groups interested in disclosure of the information taken into account?

   

Section 20(2),(5)(6) - Disclosure Authorized in Public Interest

  • how?

    Does this information differ in any way from this response?

    Does the information confirm the allegations?

    What is the danger of further disclosure?

    Was the decision not to apply s. 20(6) based in part on a fear of public confusion?

    What would give rise to the confusion?

    Would the institution be able to take measures to avoid confusion

    • other disclosure
    • other explanations
    • why could no measures be taken

    Could the government institution take measures to reduce or eliminate the dangers?

    • public relations measures
    • explanations

    Why could no other measures be taken?

    Could the third party take measures (with respect to s. 20(1)(b) and (d) information that would reduce the impact on them of disclosure?

    • what measures?
    • why could no measures be taken?
  • Statement of Test to be Met
    Ensure no irrelevant considerations taken into account

    Was the government's own performance an issue in the consideration leading to a decision not to apply s. 20(6)?

    Have there been any allegations of impropriety, negligence, cover-up or inadequacy about the government institution arising from the matters described in the records?

    Has the institution responded to these allegations?

       

    Section 20(2),(5)(6) - Disclosure Authorized in Public Interest

    Endnotes

    1. [1992] 1 F.C. 77; 46 F.T.R. 206 (T.D.). In this case, Mr. Justice Denault stated:

    "With the above in mind, information must clearly fit within and not be exempted by the relevant paragraphs of section 3 of the Privacy Act or subsection 19(2) of the Act before it can be withheld. In fact, subsection 19(1) provides that in such circumstances, it 'shall' be withheld. The Act does not provide for a discretion to release information on the basis of how long ago it was obtained. It does not say that a document ought to be revealed after 30 years or if the applicant has a good reason for requesting the information. The fact that Yardley has been dead now for 35 years and the circumstances of his dismissal almost 50 years ago are simply not relevant to the question of whether personal information concerning individuals other than Yardley should be disclosed unless that individual has been dead for more than twenty years or has consented to the release of the information. I recognize the difficulty that may be presented in attempting to ascertain whether these exceptions apply. However, in my opinion, it would not be sufficient for the head of a government institution to simply state that they are unaware or that they do not know if the exceptions apply. Rather, they should be in a position to state what activities and initiatives were undertaken in this regard." [Emphasis added].

    2 Ibid

    3. Competition Act, R.S.C. 1985, c. C-34, s. 2(1).

    4. Consumer Packaging and Labelling Act R.S.C. 1985, c. C-38, s.2.

    5. See for example Air Atonabee v. Canada (Minister of Transport) (1989), 27 F.T.R. 194 (F.C.T.D.). See also Canada Post Corporation v. Minister of Public Works et al., (June 3, 1993), no. T-2059-91; confirmed by F.C.A. February 10, 1995), A-372-93.

    6. Société de transport de la Communauté urbaine de Montréal v. Minister of Environment, [1987] 1 F.C. 610 (T.D.).

    7. Ruby v. Canada (Solicitor General R.C.M.P.), [2000] F.C.J. No. 779, June 8, 2000 (F.C.A.).

    8. Ibid.

    9. Ibid

    10. Gainers Inc. v. Minister of Agriculture et al. (1987), 14 F.T.R. 133 (F.C.T.D.).

    11. Gainers Inc. v. Minister of Agriculture et al. (1987), 14 F.T.R. 133 (F.C.T.D.).

    12. [1992] 1 F.C. 77, 46 F.T.R. 206 (T.D.).