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Don't Forget to Check the Internet

Background

A requester asked Fisheries and Oceans Canada (F&O) for copies of economic analyses covering the period May 12 to September 15, 2004. F&O disclosed some of the requested records but withheld 205 pages in their entirety under section 21 of the Act. Section 21 permits records to be withheld to protect the internal advice-giving and deliberative processes. The complainant was concerned that so much secrecy had been maintained with respect to economic analysis records, especially without any portion having been released.

Legal Issues

The exemption contained in section 21 is discretionary in nature. Did F&O properly exercise discretion in withholding 205 pages in their entirety? Did F&O withhold factual and background information under section 21 and, if so, was it authorized to do so?

With respect to these issues, the Commissioner’s investigator first reviewed whether any of the information withheld was already in the public domain. Many of the records withheld in their entirety were found on F&O websites and had been posted on the web prior to the department’s receipt of the access request and its response to the access request. One 48-page document, which had been withheld, was found on the Organization for Economic Cooperation and Development website.

The investigation also determined that most of the withheld information was purely factual - revealing no advice, recommendations, accounts of consultations/deliberations, negotiation positions, or plans.

The Commissioner took the view that most of the withheld information did not qualify for exemption under section 21 of the Act, and that, even if it did, there was no evidence that F&O had properly exercised its discretion nor made serious effort to determine what portions of the withheld records had already been disclosed to the public.

In response to the Commissioner’s views, most of the 205 withheld pages were disclosed by F&O. The Commissioner agreed that 37 pages could remain withheld in their entirety, and portions of eight pages could remain secret. On that basis, the investigation was concluded and the complaint recorded as resolved.

Lessons Learned

Before withholding records under section 21, to protect the confidentiality of the internal advice-giving and deliberative processes, government institutions must ensure that purely factual and background information is severed and disclosed. Even then, with respect to the non-factual material, the discretion contained in the provision must be properly exercised. One important factor to be considered and weighed, in the exercise of the discretionary power to refuse access, is whether any of the information is already in the public domain. Departments should not ignore this step, or wait to perform it, until after a complaint is made to the Commissioner.

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