Exemption from disclosure: international affairs, national security, defence (section 15)
Contents
- Requirements: subsection 15(1)
- Definitions
- Types of information that might qualify for exemption under subsection 15(1)
- Standard of proof of harm
- Exercise of discretion
- Questions to guide your analysis and points to raise with institutions
- References
Legal Services developed this document to assist investigators in analyzing institutions’ application of section 15 (international affairs, national security and defence) of the Access to Information Act.
Investigators should consult this guide, along with the standard language, writing guides, examples and other tools, when preparing representations requests (particularly when setting out the matters on which you, as an investigator at the Office of the Information Commissioner, require representations), and initial and final reports. Considering each requirement of section 15 in order and based on the guidance presented here will help ensure consistency across investigations.
At the end of this guide, you will find questions to guide your analysis and points to raise with institutions when requesting representations.
Legal Services would be pleased to discuss any questions or concerns you have about section 15, if needed.
Requirements: subsection 15(1)
Subsection 15(1) allows institutions to refuse to disclose information that, if disclosed, could reasonably be expected to harm the conduct of international affairs, defence or national security (for example, information related to military tactics, weapons capabilities or diplomatic correspondence, as set out in paragraphs 15(1)(a) to (i)).
To claim this exemption, the institution must show the following:
- Disclosing the information could harm one of the following interests:
- the conduct of international affairs;
- the defence of Canada or any state with which Canada has an alliance or treaty, or any state with which Canada is linked, as defined in subsection 15(2); or
- the detection, prevention or suppression of subversive or hostile activities, as defined in subsection 15(2)
- There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.
As the Treasury Board of Canada Secretariat notes in the Access to Information Manual, the three interests described above “…are closely and intimately interrelated and frequently overlap.”
Note that subsection 15(1) is an injury-based exemption. This means that the institution must consider whether the disclosure of information could be prejudicial to the interests set out in the exemption.
The onus is on the institution to establish that the exemption applies to the records. During the investigation, you will examine the records at issue and analyze the representations provided by the parties to assess whether the institution properly claimed the exemption.
If the information meets the requirements of the exemption, you must then assess whether the institution reasonably exercised its discretion to decide whether to disclose the information. See Exercise of discretion.
Definitions
Defence of Canada or any state allied or associated with Canada
This phrase is defined in subsection 15(2) to include “the efforts of Canada and of foreign states toward the detection, prevention or suppression of activities of any foreign state directed toward actual or potential attack or other acts of aggression against Canada or any state allied or associated with Canada.”
The definition is open-ended and may include activities that do not fit this description.
Subversive or hostile activities
This phrase is defined in subsection 15(2) to mean the following six activities:
- (a) espionage against Canada or any state allied or associated with Canada
- (b) sabotage
- (c) activities directed toward the commission of terrorist acts, including hijacking, in or against Canada or foreign states
- (d) activities directed toward accomplishing government change within Canada or foreign states by the use of or the encouragement of the use of force, violence or any criminal means
- (e) activities directed toward gathering information used for intelligence purposes that relates to Canada or any state allied or associated with Canada
- (f) activities directed toward threatening the safety of Canadians, employees of the Government of Canada or property of the Government of Canada outside Canada.
In Bronskill, the Federal Court cautioned against using an overly broad definition of “subversive or hostile activities.” The Court pointed to the distinction between expressing, in a democratic process, views that may be considered extreme and carrying out subversive activities.
Types of information that might qualify for exemption under subsection 15(1)
Paragraphs 15(1)(a) to (i) set out nine categories of information that relate to one or more of the interests described in the opening paragraph of subsection 15(1) and might, therefore, qualify for exemption. This list is non-exhaustive.
| Paragraph | Category | Description of information in category |
|---|---|---|
15(1)(a) | Military tactics or strategy | Information relating to military tactics or strategy, or relating to military exercises or operations undertaken in preparation for hostilities or in connection with the detection, prevention or suppression of subversive or hostile activities |
15(1)(b) | Weapons or defence equipment | Information relating to the quantity, characteristics, capabilities or deployment of weapons or other defence equipment or of anything being designed, developed, produced or considered for use as weapons or other defence equipment |
15(1)(c) | Organization responsible for dealing with subversive or hostile activities | Information relating to the characteristics, capabilities, performance, potential, deployment, functions or role of any defence establishment, of any military force, unit or personnel or of any organization or person responsible for the detection, prevention or suppression of subversive or hostile activities |
15(1)(d) | Intelligence for the defence of Canada or for dealing with subversive or hostile activities | Information obtained or prepared for the purpose of intelligence relating to (i) the defence of Canada or any state allied or associated with Canada, or (ii) the detection, prevention or suppression of subversive or hostile activities |
15(1)(e) | Intelligence respecting foreign states | Information obtained or prepared for the purpose of intelligence respecting foreign states, international organizations of states or citizens of foreign states used by the Government of Canada in the process of deliberation and consultation or in the conduct of international affairs |
15(1)(f) | Intelligence-handling methods or sources | Information on methods of, and scientific or technical equipment for, collecting, assessing or handling information referred to in paragraph 15(1)(d) or (e) or on sources of such information |
15(1)(g) | International negotiations | Information on the positions adopted or to be adopted by the Government of Canada, governments of foreign states or international organizations of states for the purpose of present or future international negotiations |
15(1)(h) | Diplomatic correspondence | Information that constitutes diplomatic correspondence exchanged with foreign states or international organizations of states or official correspondence exchanged with Canadian diplomatic missions or consular posts abroad |
15(1)(i) | Communications systems | Information relating to the communications or cryptographic systems of Canada or foreign states used (i) for the conduct of international affairs, (ii) for the defence of Canada or any state allied or associated with Canada, or (iii) in relation to the detection, prevention or suppression of subversive or hostile activities |
If information falls within one of these categories, the institution still must show that disclosing it could result in one of the harms set out in subsection 15(1). However, it is important to note that, if information were to fall within one or more of the categories, this would weigh in favour of the finding that disclosure could result in one of these injuries.
Information that does not fall within any of the categories may still qualify for exemption under subsection 15(1). Institutions relying on subsection 15(1) do not need to refer to any of the categories when responding to access requests. They must, however, explain in their response whether the reason(s) for their refusal is because a disclosure could be one of the following:
- injurious to the conduct of international affairs;
- injurious to the defence of Canada or any state allied or associated with Canada; or
- injurious to the detection, prevention or suppression of subversive or hostile activities (National Defence).
The disclosure of information contained in the Passenger Protect Program data bank, which is a database that identifies persons who may pose a threat to aviation security, is an example of information which, if disclosed, could reasonably be expected be injurious to the detection and prevention of “hostile activities” (see Kandasamy).
Relevant case law
Information about an organization responsible for dealing with subversive or hostile activities (paragraph 15(1)(c))
In Canada (Transport), the Federal Court stated that the aim of paragraph 15(1)(c) is to protect information that would be useful to those wishing to engage in subversive or hostile activities. These activities could include those directed toward the commission of terrorist acts, including hijacking, in or against Canada or foreign states.
Intelligence handling methods or sources (paragraph 15(1)(f))
The Federal Court stated in Bronskill that human sources in intelligence matters should benefit from similar protection as that afforded to police informers and that, in general, the identity of sources of intelligence should be protected. Still, the Court confirmed that the assessment of whether information of this type qualifies for exemption must be done on a case-by-case basis, in light of the evidence of harm from disclosure.
In a case involving a security certificate under the Immigration and Refugee Protection Act, the Federal Court held that disclosing information obtained from a human source that could identify that source could jeopardize the safety of that person. In addition, the Court stated that disclosure could make other human sources or potential human sources hesitant to provide information if they were not assured that their identity would be protected (Harkat).
In Cemerlic, the Federal Court considered the application of section 21 of the Privacy Act (which is analogous to subsection 15(1) of the Access to Information Act) to information about procedures the Canadian Security Intelligence Service (CSIS) used to categorize and assess information (e.g. file numbers, cross-referencing methods and results), as well as information on CSIS’s cryptographic and computer systems. The Court accepted that the disclosure of this information would provide insight into the institution’s functions and hamper its ability to carry out its mandate.
Diplomatic correspondence (paragraph 15(1)(h))
Records that are considered “diplomatic correspondence” may qualify for exemption because the international community generally has a reasonable expectation that they will remain confidential. This is especially true when a foreign country has explicitly requested that the correspondence not be disclosed. Disclosure could constitute a diplomatic breach and could harm Canada’s reputation in the international community as a state that deals fairly with its counterparts. This, in turn, could harm Canada’s ability to operate effectively at the international level (Do-Ky).
Targets and status of investigations
In Bronskill, the Federal Court held that information that could identify “current operational interests”—that is, those that are still of concern to CSIS—can reasonably be withheld under this exemption.
In Almalki, a case decided under the Canada Evidence Act, the Federal Court noted that, generally, information about the targets, subjects and status of intelligence investigations should be protected. This is because a “…security agency cannot operate effectively if the subjects of its investigations are able to ascertain that they are persons of interest or the state of the agency’s operational knowledge about them at a particular point in time.”
In Harkat, the Federal Court stated that when security intelligence information is disclosed by a court or other authorities, it must be assumed that the information will reach persons who have knowledge about the subject of an investigation and their activities. In the hands of such an informed reader, seemingly unrelated pieces of information—which, by themselves, may not be particularly sensitive—could provide insight into the scope or progress of an ongoing intelligence operation. For example, apparently innocuous information could alert those who are under investigation to the fact that they are under surveillance or that there is a leak from a source within their organization. This may prompt them to take evasive or other steps to frustrate the investigation.
Standard of proof of harm
The courts have interpreted the words “could reasonably be expected to” as requiring a “reasonable expectation of probable harm” (Merck, Bronskill). The Supreme Court of Canada in Merck said that this requires that a party opposing disclosure demonstrate that “disclosure will result in a risk of harm that is well beyond the merely possible or speculative.” Elsewhere in Merck, the Supreme Court using similar language, stating that the party opposing disclosure must show that “the risk of harm is considerably above a mere possibility.”
However, the party does not need to prove on a balance of probabilities (a greater than 50% chance) that disclosure will, in fact, result in such harm (Merck, Imai).
A reasonable expectation of probable harm requires proof of a “clear and direct connection” between disclosure of specific information and the injury that is alleged (Merck).
Therefore, the party opposing disclosure must show how the harm could reasonably be expected to occur. The evidence of harm must not be speculative and must be considerably above a mere possibility (Imai).
In Bronskill, the Federal Court indicated that an institution should not rely on an “umbrella rationale” to justify the application of section 15—that is, a rationale that does not indicate the specific relation between disclosure of precise documents and the alleged injury. The Court also indicated that the assessment of the reasonable expectation of probable harm must be applied consistently. Inconsistent redactions and assessments of the injury that could result from disclosure could constitute grounds for the Court to order additional disclosure.
Below is a list of factors to consider that may help you when determining whether the institution has met the standard of proof of the harm disclosure could cause.
Age of the information
The fact that a significant period of time has passed between the date the record was created and the current date is a factor that may weigh against the application of the exemption (Bronskill). In the X decision, the Federal Court found it was not reasonable to conclude that documents from 1941 and 1942 (when Canada was engaged in a world war) could reveal anything injurious to the conduct of Canada’s international relations or national defence 50 years after the fact.
Further, Treasury Board’s June 2024 Policy Guidance on the Disclosure of Historical Records under the Access to Information Act states the following:
In the context of historical records, for the exemption to apply to any category of information described in [section 15], the head of an institution or their delegate must be able to demonstrate that there is a current and reasonable expectation of probable harm to one of the three specified public interests flowing from disclosure.
Media coverage
If the record in question has been discussed in the media, this may weigh against the application of the exemption (Bronskill).
Public availability
The fact that the information could be obtained from public sources, or could be obtained by the public through observation or independent study, may weigh against the application of the exemption (Bronskill).
In Prime Minister, the Federal Court concluded that once information is in the public domain, the disclosure of the same or similar information will be less likely to cause harm (see also Attaran).
Nonetheless, information may still qualify for exemption under subsection 15(1) even when some or all of it is in the public domain. In Arar, in the context of the Canada Evidence Act, the Federal Court set out the following factors that may justify withholding information, despite its being in the public domain:
- only a small part of the information was disclosed publicly
- the information is not widely known or accessible
- the authenticity of the information is neither confirmed nor denied
- the information was inadvertently disclosed.
Exercise of discretion
Subsection 15(1) is a discretionary exemption. Therefore, in all instances in which information qualifies for exemption under this provision, institutions must reasonably exercise their discretion to decide whether to disclose the information.
It is important to be mindful that the institution must still exercise its discretion despite an alleged injury (Bronskill, para. 211).
Follow Exercising discretion under the Access to Information Act when evaluating the reasonableness of the institution’s exercise of discretion.
Questions to guide your analysis and points to raise with institutions
This section is intended to guide your analysis of institutions’ application of section 15. The left column of the tables below contains questions for you to ask yourself as you carry out your analysis of the various aspects of subsection 15(1). The right column sets out suggested wording for points to raise with institutions when seeking their representations.
When analyzing whether the information meets the requirements of the exemption, go through all the requirements in order. By carrying out your analysis systematically, you can clarify your thinking on whether the requirements of subsection 15(1) are met and then formulate specific points to raise with institutions. Follow the same approach when analyzing whether the institution’s exercise of discretion was reasonable.
The questions cover all the elements of the exemption and will be relevant in most situations. When you need to request representations on matters not covered in this guide, draft other points in the same vein: one topic per point with consistent phrasing that encourages detailed and meaningful, rather than “yes” or “no,” representations.
Consider carefully which points you wish to raise with the institution; not all will be relevant to each investigation. Guide to preparing representations requests (subsection 35(2)) contains instructions on how to prepare representations requests, including how to phrase points related to the various topics on which you seek representations.
Type of information that might qualify for exemption
Military tactics: paragraph 15(1)(a)
| Questions to ask yourself during your analysis | Example of points to raise with the institution |
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Weapons: paragraph 15(1)(b)
| Questions to ask yourself during your analysis | Example of points to raise with the institution |
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Military capabilities: paragraph 15(1)(c)
| Questions to ask yourself during your analysis | Example of points to raise with the institution |
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Intelligence for defence: paragraph 15(1)(d)
| Questions to ask yourself during your analysis | Example of points to raise with the institution |
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Intelligence respecting foreign states: paragraph 15(1)(e)
| Questions to ask yourself during your analysis | Example of points to raise with the institution |
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Intelligence methods or sources: paragraph 15(1)(f)
| Questions to ask yourself during your analysis | Example of points to raise with the institution |
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Positions on negotiations: paragraph 15(1)(g)
| Questions to ask yourself during your analysis | Example of points to raise with the institution |
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Diplomatic correspondence: paragraph 15(1)(h)
| Questions to ask yourself during your analysis | Example of points to raise with the institution |
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Communications or cryptographic systems: paragraph 15(1)(i)
| Questions to ask yourself during your analysis | Example of points to raise with the institution |
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Targets and status of investigations
| Questions to ask yourself during your analysis | Example of points to raise with the institution |
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Harms set out in subsection 15(1)
| Questions to ask yourself during your analysis | Example of points to raise with the institution |
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References
Attaran v. Canada (Foreign Affairs), 2009 FC 339 (CanLII) (Attaran)
Bronskill v. Canada (Canadian Heritage), 2011 FC 983 (CanLII), [2013] 2 FCR 563 (Bronskill)
Canada (Attorney General) v. Almalki, 2010 FC 1106 (CanLII), [2012] 2 FCR 508 (Almalki)
Canada (Information Commissioner) v. Canada (Minister of National Defence), 1990 CanLII 7946 (FC), [1990] 3 FC 22 (National Defence)
Canada (Information Commissioner) v. Canada (Prime Minister), 1992 CanLII 2414, [1993] 1 FC 427 (Prime Minister)
Canada (Information Commissioner) v. Canada (Transport), 2016 FC 448 (CanLII), [2016] 4 FCR 281 (Canada (Transport))
Dzevad Cemerlic MD v. Canada (Solicitor General), 2003 FCT 133 (CanLII) (Cemerlic)
Harkat, Re, 2005 FC 393 (CanLII) (Harkat)
Imai v. Canada (Foreign Affairs), 2021 FC 1479 (CanLII) (Imai)
Kandasamy v. Canada (Public Safety), 2022 FC 1100 (CanLII) (Kandasamy)
Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3 (CanLII), [2012] 1 SCR 23 (Merck)
X v. Canada (Minister of National Defence), 1991 CanLII 13550 (FC), [1992] 1 FC 77 (X)