Background Note
Standing Committee On Access To Information, Privacy And Ethics

Bill C-461, An Act to amend the Access to Information Act and the Privacy Act
(disclosure of information)

Wednesday, May 29, 2013

This background note is intended to assist members of the Standing Committee on Access to Information, Privacy and Ethics in their review of Bill C-461.

Limitations on the general right of access

The Access to Information Act(Act) recognizes a right of access to all records under the control of government institutions that are subject to the Act, save for where an exception to the right of access set out in the Act applies. At the federal level, exceptions to the right of access come in the form of exemptions and exclusions.

Exclusions

The exclusions provide that the Act does not apply to certain records or information. For example, there are exclusions for cabinet confidences, some information from the Canadian Broadcasting Corporation (CBC), as well as published materials, and library or museum material preserved solely for public reference or exhibition purposes.

Exemptions

The exemptions can be broken down into different categories:

  1. Mandatory and discretionary exemptions. With mandatory exemptions, heads are bound to refuse to disclose the information once it has been determined that the exemption applies. With discretionary exemptions, there is a two-step process. First, the head must determine if the exemption applies and then the head must exercise discretion, as to whether the exemption should apply.  Therefore, the head has the option of disclosing the information upon considering all relevant factors.
  2. Class-based exemptions and injury test exemptions.  Class-based exemptions require heads to determine whether information fits within certain categories of information capable of being exempted, whereas injury test exemptions require heads to determine whether the disclosure of information could reasonably be expected to be injurious to a specified interest.

In addition, some exemptions can be relied upon by any institution, whereas others can only be relied upon by specific institutions. For example, section 16 protects certain types of information relating to investigations and can be invoked by any government institution, whereas subsection 16.1 protects certain types of information relating to investigations but can only be relied upon by certain Agents of Parliament listed in this section.

In some cases, information falling within the scope of an exemption may be disclosed if a given condition is met, for example, in the case of personal information, by obtaining the person’s consent. The Act also provides public-interest override provisions, which permit the disclosure of certain exempted information where disclosure is in the public interest (see, for example, subsection 20(6)).

Furthermore, the application of some exemption provisions is time-limited (for example, advice and recommendations are only protected for a period of twenty years – section 21).

It is also important to note that exemptions apply to information contained in records and not necessarily records in their entirety. The head of a government institution is required to disclose any portion of a requested record that does not contain exempted information that can reasonably be severed from the part that does.

The Act provides that:

36. (1) The Information Commissioner has, in relation to the carrying out of the investigation of any complaint under this Act, power:

a) to summon and enforce the appearance of persons before the Information Commissioner and compel them to give oral or written evidence on oath and to produce such documents and things as the Commissioner deems requisite to the full investigation and consideration of the complaint, in the same manner and to the same extent as a superiorcourt of record;
[...]

36(2) Notwithstanding any other Act of Parliament or any privilege under the law of evidence, the Information Commissioner may, during the investigation of any complaint under this Act, examine any record to which this Act applies that is under the control of a government institution, and no such record may be withheld from the Commissioner on any grounds. (Emphasis added)

When an exemption is invoked, it is clear that the Commissioner has access to all records pursuant to paragraph 36(1)(a) and subsection 36(2).

When it comes to exclusions, the situation is more complex. Exclusions differ from one to another. No two exclusions have the same wording or produce the same effects. Determining what the Commissioner may obtain must be assessed on a case-by-case basis.

For example, the Commissioner does not have access to cabinet confidences because they are subject to an exclusion and the CanadaEvidence Act provides for the issuance of a certificate (excluding disclosure for 20 years).

Published materials and library or museum material are subject to an exclusion because they are publicly available.

In addition, in accordance with the Federal Court of Appeal’s decision in Canadian Broadcasting Corporation v. Information Commissioner of Canada,Footnote 1 the Commissioner has access to CBC records that are claimed to be excluded in order to determine whether the exception to the exclusion applies; however, in the case of a record that would reveal a journalistic source, the Appeal Court explained that:

74 [...] The identity of journalistic sources cannot clash with the exception relating to general administration, regardless of the scope attributed to this exception. In these circumstances, the only conclusion possible if one gives effect to the Federal Court judge’s reasoning is that the exclusion for journalistic sources, like the exclusions provided in Sections 69 and 69.1, is absolute. It follows that in the event that a request seeking the disclosure of journalistic sources was made, a record – or part thereof – revealing this type of information would be exempt from the Commissioner’s power of examination.

Relevant decision

As a result of the Federal Accountability Act,Footnote 2 a number of additional government institutions became subject to the Act, including the CBC in September 2007.

We have investigated numerous complaints about the application by the CBC of section 68.1 of the Act. This section provides that the Act does not apply to CBC information that relates to its journalistic, creative or programming activities, other than information that relates to its general administration.

During our investigations, following the CBC’s refusal to provide us with the records that were claimed to be excluded, the Commissioner ordered that these records be produced. The CBC then requested a judicial review, challenging the Commissioner’s power to compel these records’ production.

Issue

Does the Commissioner have the power to order the CBC to produce records that, in the CBC’s opinion, relates to its journalistic, creative or programming activities within the meaning of section 68.1 of the Act?

Federal Court decision (Canadian Broadcasting Corporationv. Information Commissioner of Canada, 2010 FC 954):

The Federal Court found that the Commissioner had the authority to order the CBC to produce these records for the purposes of her investigation.

The CBC appealed this decision.

Federal Court of Appeal decision (Canadian Broadcasting Corporationv. Information Commissioner of Canada, 2011 FCA 326):

The Court dismissed the CBC’s appeal, noting that the exclusion for information related to journalistic, creative or programming activities found in section 68.1 of the Act is subject to an exception for information that relates to CBC’s general administration. As a result, the Commissioner must be able to review records subject to a complaint in order to determine whether the exception applies and the information can be disclosed. It is the Commissioner’s responsibility to make a finding on the application of the exception and exercise her recommendation power.

The Court also indicated that it did not share CBC’s concern about the injury that would result to the CBC if the Commissioner were to review the records.
 
However, according to the Court, the identity of journalistic sources could not fit within the scope of the exception. The Court stated that, in the case of records containing a journalistic source, the record, or a part thereof that would reveal a source, would not be subject to the Commissioner’s power of examination.

The decision of the Federal Court of Appeal confirms the Commissioner's power to view the records exempted under section 68.1, except for information that would reveal a journalistic source. The Court did not rule on the following matters, which could give rise to litigation:

  • what is the scope of the exception
  • what is encompassed by “information that is related to general administration”
  • is the “absolute exclusion” for journalistic sources limited to the identity of the source, details that could identify the source or something broader still (it is possible that the Commissioner and the CBC will disagree regarding the scope of the exclusion).

General remarks

Powers/investigations

The Commissioner’s powers enable her to obtain and review all the records required for her investigation (with some exceptions, as explained above).

The Commissioner obtains records for the sole purpose of her investigations. The Commissioner does not have the power to order disclosure; she only has the power to make recommendations at the end of her investigation. Meanwhile, the Act imposes strict confidentiality obligations on the Commissioner and does not permit her to disclose information that she obtains during an investigation. Thus, the production of records to the Commissioner during an investigation conducted under the Act does not amount to disclosure. Only the Court may order the disclosure of records under the Act.

Pursuant to the current legislative scheme, the Commissioner is entrusted with access to very sensitive information.  This includes information related to national security and Canada's involvement in armed conflict.  It also includes access to information about the identity of human sources recruited by CSIS, the identity of police informants and information about the Witness Protection Program. None of these types of information are subject to exclusion provisions. Instead, these types of information are protected by a discretionary injury-based exemption, as well as the mandatory exemption for personal information (section 19).

The Act has specific provisions for investigations involving information about international affairs and defence. Only a small group of appointed investigators (in total, eight (8)) may investigate these complaints. Furthermore, when investigating some of these complaints, investigators go to the institution’s premises to review records and no copies are provided or kept at the Commissioner’s office.

Exemption versus exclusion

In general, the Commissioner, like previous Commissioners, favours discretionary exemptions with an injury test. Furthermore, an independent review must be possible in all cases.

It may be that journalistic sources are sufficiently protected by the exemption under section 19. However, if additional protection is required, anexemption provision would be sufficient.

The Supreme Court has pointed out that there is no constitutional or quasi-constitutional “class” privilege for the confidentiality of journalistic sources. Instead, the Wigmore test must be used to assess privilege on a case-by-case basis.

The Wigmore test involves the following four criteria:

  1. “First, the communication must originate in a confidence that the identity of the   informant will not be disclosed.
  2. Second, the confidence must be essential to the relationship in which the   communication arises.
  3. Third, the relationship must be one which should be "sedulously fostered" in the public good, (...)
  4. Finally, if all of these requirements are met, the court must consider whether in the instant case the public interest served by protecting the identity of the   informant from disclosure outweighs the public interest in getting at the truth [...]”.Footnote 3

According to the Supreme Court, the fourth criterion “…does most of the work”Footnote 4 and the “[p]ublic interest in free expression will always weigh heavily in the balance.”Footnote 5 Further, “[The] Court ultimately concluded that every claim to journalist-source privilege – be it in the face of testimonial compulsion or the production of documents – is situation specific, with the public’s interest in the freedom of expression always weighing heavily in the court’s balancing exercise.”Footnote 6

This possibility of privilege does not justify the creation of an exclusion. Under the Act, even records subject to solicitor-client privilege, which the Supreme Court of Canada has recognized as a privilege that is quasi-absolute, are protected by a discretionary exemption (section 23), as opposed to an exclusion provision.

Since there is no general or “class” privilege for journalistic sources and since privilegemust be determined on a case-by-case basis by a court, journalists are never able to provide their sources with assurances of absolute protection.

Transitory issues for ongoing cases

We have to consider what happens to pending requests and ongoing investigations if there is a modification to the protection afforded to CBC information.

The Commissioner is currently investigating more than 200 files that involve the application of the exclusion set out in section 68.1. If section 68.1 were to be repealed and replaced by a new provision, it would be less than ideal for the repealed provision to continue to apply to current requests and complaints subject to ongoing investigations.  The disclosure of different information in response to requests for the same records, based on the timing of the requests, should be avoided. A requester would need to file a new request to benefit from a new provision, unless the Act provides otherwise.  This would result in more work and expense to everyone involved.

It would be preferable for a new provision to apply to pending requests and complaints currently under investigation.

Conclusion

The challenges related to access to information are complex. They demand thoughtful, unified action and are not amenable to a "piecemeal" solution.

The Commissioner and her predecessors have more than once observed that the Act requires modernization to bring it in line with more progressive national and international models.  While it is true that the Act was considered state of the art legislation when it received Royal Assent in 1982, it is now significantly outdated.

The Act should not be amended in a disjointed manner since this would result in a fragmented scheme and would erode the Act’s status as a law of general application.

At the very least, the structure of the Act as a whole must be considered when amendments are proposed. We must examine not only the specific interests to be protected by changes or additions to the law but also the spirit of the law, the way in which it is structured and its general framework. The chosen approach must preserve the law’s character as one of general application.

The amendments proposed by Bill C-461 in relation to the CBC reflect what the Commissioner suggested when she appeared before this committee in October 2011.

Footnotes

Footnote 1

2011 FCA 326.

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Footnote 2

S.C. 2006, ch. 9.

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Footnote 3

R. v. National Post, 2010 SCC 16, para. 53.

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Footnote 4

Ibid., para. 58

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Footnote 5

Ibid., para. 64

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Footnote 6

Globe and Mail v. Canada (Attorney General), 2010 SCC 41, para. 24

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