Section 14: Federal-provincial affairs
- 14) The head of a government institution may refuse to disclose any record requested under this Act that contains information the disclosure of which could reasonably be expected to be injurious to the conduct by the Government of Canada of federal-provincial affairs , including, without restricting the generality of the foregoing, any such information
- on federal-provincial consultations or deliberations ; or
- on strategy or tactics adopted or to be adopted by the Government of Canada relating to the conduct of federal-provincial affairs.
The Access to Information Act, R.S.C. 1985, c. A-1, (the Act) gives any Canadian citizen or permanent resident within the meaning of the Immigration Act and any individual or any corporation present in Canada, a right (of access) to most records under the control of the federal government. More specifically, our Act provides for access to all information in records controlled by government institutions listed in Schedule I of the Act unless there is a specific provision in the Act that permits or requires the head of the government institution to refuse to disclose the information, or unless the records (or parts thereof) are excluded under section 68 or 69.
Section 14 is a discretionary exemption which is based on an injury test to a particular class of records. But it is also one of a handful of exemptions (the others are section 15, paragraphs 16(1)(c) or (d) and 18(d)) where the scope of review conducted by the court under section 50 is different from the scope of review carried out under section 49 for all of the remaining exemptions. However, there is no difference in the power of the court to make an order. In either case - i.e. under section 49 or 50 - the court has the power to order records disclosed (or withheld). The difference is in the test - i.e. the extent that the court needs to be satisfied.
In section 50, the bottom line is that if the head has reasonable grounds to believe that a record, or a part thereof contains certain information of the type referred to in the exemption he may then determine, by exercising his discretion, whether to disclose the information.
Notwithstanding the higher standard for interference with a head's decision under section 50, it is very much part of the role of our office to determine the reasonableness of the head's conclusion that disclosure would lead to the injury set out in the exemptions subject to section 50 review. Ruby v. Canada (Solicitor General, R.C.M.P.),  F.C.J. No. 779, June 8, 2000, was a case concerning paragraph 22(1)(b) of the Privacy Act, (the parallel provision to paragraph 16(1)(c) of the Access to Information Act), which is in turn subject to review under section 49 of the Privacy Act (section 50 Access to Information Act). In the Ruby case the Federal Court of Appeal overturned the Trial Judge's conclusion that he could not substitute his views on injury for the decision of the institution head and instead directed a closer scrutiny of the reasonableness of the institution's determination that the injury described in the exemption would be caused by disclosure:
Furthermore, the reviewing judge concluded at page 36 of his decision that "the Court cannot substitute its views for that of CSIS, or the Solicitor General, about the assessment of the reasonable expectation of probable injury." We would add, however, that it is very much part of the Court's role under section 49 [section 50 Access to Information Act] to determine the reasonableness of the grounds on which disclosure was refused by CSIS. That being the case, the reviewing judge, in our view, should have scrutinized more closely whether the release of information, particularly information that is over 20 years old, could reasonably be expected to be injurious to specific efforts at law enforcement and detection of hostile activities, and, therefore, whether CSIS had a reasonable ground to refuse to disclose. (Emphasis added).
This exemption recognizes that it may be necessary to protect the role that the government has in national affairs. It is designed to enable the head of the institution to withhold records that "... contain information the disclosure of which could reasonably be expected to ..." be injurious to federal-provincial relations.
The class of records is clear - it applies to records which contain information relating to the role the government plays in conducting federal provincial operations. The examples given in the exemption are the two types Parliament envisaged might cause harm, but not necessarily. This is not a mandatory exemption.
It is a discretionary exemption based on an injury test, therefore to invoke the exemption requires a two-step process:
- Review the records to determine if there are any parts which contain information, the disclosure of which could reasonably be expected to be injurious to the government's conduct/role in federal-provincial matters.
Note: The determination by the institution of the reasonable likelihood of probable harm does not have to be absolute. The head does not have to establish - on a balance of probabilities - that disclosure would be likely. We need only have reasonable grounds to believe that the disclosure of the information in question would cause the harm. In other words, the test is not whether the head is right in his belief about the injury, the test is whether a court would agree that there were reasonable grounds to reach that conclusion - i.e. that a reasonable person could have reached the same conclusion as the head. The issue is could (not would) an average person have reached that conclusion. To put the matter in the opposite perspective, the head is only going to be wrong where it can be established that the head had no reasonable grounds to justify his conclusion.
- The second step is to weigh the public interest in the disclosure of this type of information against the probable injury that has been identified and determine whether discretion should be exercised to exempt the information.
These two steps are different and both require documentation. In each case, to justify the withholding of particular information, the department must be able to demonstrate the probable injury and why there is a reasonable probability that injury would occur. The Department must, at the same time, show the factors that were taken into consideration by the Head of the Institution in exercising his/her discretion to refuse disclosure of the information.
When reviewing the application of a discretionary exemption like section 14, it is important to remember that the government institution has the evidentiary burden of showing not only that the information falls within the scope of the exemption, but that the head of the institution or his/her delegate properly exercised their discretion in deciding not to disclose the information.Footnote 1 If there is no evidence establishing that the institution head considered whether or not to disclose information subject to a discretionary exemption, or if the evidence about why they decided to refuse disclosure indicates the head relied on irrelevant or unreasonable factors or on improper considerations or that the decision is not consistent with the objects of the Act (that of extending disclosure of government information subject to limited and specific exemptions), then it is open to our office, and to the Federal Court on a review, to question or reject the decision to refuse disclosure.
2) The Criteria:
The key to the provision is to determine whether any of the records contain "... information the disclosure of which could reasonably be expected to be injurious to the conduct by the Government of Canada of federal-provincial affairs ...". At the present time, there has been only one decision from the Federal Court of Canada on the criteria to be met in order for the provision to apply. However, there has been jurisprudence, from other jurisdictions that could be applied by analogy to the Federal Act and the following will summarize the office interpretation of the provision.
Since we are dealing with the prejudice exemption, there are really two tests to be met. Firstly, what constitutes a reasonable expectation of harm for the purpose of prejudice exemptions generally and what is the meaning of 'reasonable expectation of harm' test in federal-provincial affairs. Secondly, does the reasonable expectation of harm constitute a threat to the conduct by the Government of Canada of Federal-Provincial Affairs.
a) Where disclosure could reasonably be expected
While there have been only a few Federal Court decisions on the interpretation of this provision, there has been jurisprudence dealing with the prejudice portion of the test required under paragraphs 20(1)(c) & (d) which contains the same wording. Since legislative draftsmen are supposed to respect the principle of uniformity of expression, each term contained in a statute should have one and only one meaning when it is used in similar circumstances. Therefore, the jurisprudence of the Federal Court of Canada made, in the context of section 20, may also be applied in the context of this provision.
In Air Atonabee v. Canada (Minister of Transport) (1989), 27 F.T.R. 194 (T.D.), the Court held that the test is whether, assuming use of the information, its disclosure would give rise to a reasonable expectation of probable harm. The burden of proof is on the party resisting disclosureFootnote 2, and to satisfy the requirement of this exemption, there must be evidence as to the way in which the information will cause harm and the degree of harm it will cause.Footnote 3
The evidence of harm must be detailed, convincing and describe a direct causation between disclosure and harm. However, one must clearly distinguish between 'direct causation' and 'direct causality'; the former being the test to be applied under injury exemptions, the latter being explicitly rejected by the Court of Appeal in Canada Packers Inc. v. Minister of Agriculture et al.,  1 F.C. 47 (C.A.). 'Direct causation' requires a direct causal link - the person resisting disclosure must bring specific evidence which would show that there is a link arising from the disclosure which would result in the harm. To put it another way, there must be some logical explanation to show why disclosure could lead to a particular identifiable harm. However, the person resisting disclosure does not have to prove a 'direct causality' (i.e. that the disclosure of the requested information would, by itself, cause the specific harm). In other words, it is not necessary to prove that disclosure could result directly in producing the specific harm.
In Information Commissioner v. Immigration and Refugee Board (1997), 140 F.T.R. 140 the Federal Court Trial Division characterized the injury test in paragraph 16(1)(c) of the Act as a "confident belief", as follows:
The reasonable expectation of probable harm implies a confident belief. There must be a clear and direct link between the disclosure of specific information and the harm alleged. The Court must be given an explanation as to how or why the harm alleged would result from the disclosure of specific information. The more specific and substantiated the evidence, the stronger the case for confidentiality. It cannot refer to future investigations generally.
A high standard of proof is necessary to establish an exemption from disclosure on grounds of financial harm or contract interference.Footnote 4 To prove harm, one must be able to trace, track, illustrate and show how disclosure of specific information could lead to the harm alleged.
Under the access law, the test is one of reasonably expected financial or competitive harm, regardless of whether the information disclosed is confidential per se (i.e. inherently). However if the information is, in fact, confidential - this could increase the likelihood that it might be able to meet the test. The standard of proof for substantial competitive harm is evidence of substantial injury. Evidence that harm might result is pure speculation and is not good enough. The expectation of harm must be likely, but it need not be a certainty.Footnote 5
Description of possible harm, even in substantial detail, is often insufficient in itself. At a minimum, there must be a clear linkage between the disclosure of specific information and the harm alleged. We must be given an explanation of how and why the harm alleged would result from disclosure of specific information. However, if it is self-evident that as a result of disclosure of the record(s):
- harm will be done;
- how (and when) it will be done; and
- why it will be done, little explanation need to be given.Footnote 6
What you want is a clear, logical believable explanation of the harm that could be expected if the information is disclosed and the connection between the disclosure and the harm - i.e. the logical link.
Where inferences must be drawn, or the answers to any of these questions is not clear, then more explanation would be required. The more specific and substantiated the evidence, the stronger the case for the exemption. The more general the evidence or the less plausible (believable) the result, the more difficult it would be to be satisfied as to the linkage between disclosure of particular documents and the harm alleged - i.e. the more difficult it will be to conclude that the test has been met.
The context surrounding the disclosure of the information is also relevant. The jurisprudence has established certain specific conditions that could be taken into consideration when determining whether a reasonable expectation of harm would result from disclosure:
- Use of the information: You must assume that the information would be used in assessing whether its disclosure would give rise to a reasonable expectation of harm.Footnote 7 For example, what use would likely be made of the information by a competitor is a relevant factor to be considered. In what way, would this use likely lead to harm? For example, what use would likely be made by the requestor? These are relevant factors in determining how use could lead to the specific harm.
- Availability of the information: It is relevant to consider if the information sought to be kept confidential is already available from sources otherwise available to the public and whether it could be obtained by observation or independent study by a member of the public acting on their own.Footnote 8 For example, where the information requested is already available elsewhere to the public, there may be no need for exemption under this exemption.Footnote 9 The party (i.e. even if it's us) alleging that the information is publicly available has the burden of proof. Not only must the party prove that the withheld information is otherwise publicly available but, if it is government information, that the information was released from an official source.Footnote 10
- Press coverage: Press coverage of a confidential record is relevant to the issue of expectation of probable harm from its disclosure.Footnote 11 When the same or similar information has already been disclosed and received press coverage, no additional harm could be expected from the release of the requested information. Note however that a third party cannot claim that the media would misinterpret the requested information and would cause prejudice to the third party. This argument has been found purely speculative.Footnote 12
- Time: Evidence of the period of time between the date of the confidential record and its disclosure is relevant.Footnote 13 In some cases, the older the record, the less likely an injury could occur.
- Other relevant documents: Each document must be considered on its own merit and in the context of all the documents requested for release since the total contents of the release may have a considerable bearing on the reasonable consequences of its disclosure.Footnote 14 On the other hand, a single record may cause harm when disclosed, but disclosure may result in no harm when disclosed in full context or with an explanation.
It is the probable consequences of disclosure which are most significant in determining whether a document or a portion thereof may be exempted under this section, not the nature of the document or the nature of the information contained in the document.
b) Injury to the Conduct by the Government of Canada - of Federal-Provincial Affairs:
In order for the exemption to apply, the record must relate to negotiations between a province and Canada. Accordingly, the exemption does not cover negotiations with any third party but only to the extent that a province is covered. The term 'province' is defined in the Interpretation Act as a province of Canada, and includes the Yukon, Northwest and Nunavut Territories.
This section is intended only to protect the conduct of Federal-Provincial Affairs in the carrying out of governmental functions. Therefore, a prerequisite for this exemption to apply is that the institutions of the federal and provincial levels must have the capacity to carry governmental functions. If either institution lack this ability, then the exemption could not apply. Similarly, even in a case where an institution has the capacity to carry governmental functions, the exemption could not apply when the institution was carrying out functions other than its governmental function. It would not, for example, apply to records provided by Revenue Canada to a province where the relationship was one of tax collector and taxpayer.Footnote 15
The Court in this case found that since the information in which the governments ought to keep confidential was already in the public realm, from other sources, the release of the same or similar information would be less likely to cause harm. If there were harm from disclosure, that harm could reasonably be expected to have arisen from prior disclosure by others. Canada (Information Commissioner) v. Canada (Prime Minister)  1 F.C. 427 (T.D.)
In this case, the Court found that the government institution made only a general inference to the requested records and that there was little evidence linking a reasonable expectation of harm to the content of the specific pages. For these reasons, the Court found itself unable to conclude that there were reasonable grounds for confidentiality with respect of this information since there was no clear specific and understandable linkage between the allegation of harm and disclosure of the relevant information.
(Orders #87, 210, P-270, P-293, P-388, P-435, P-630)
- A record that discloses the fact that a company will engage in negotiations with the federal government does not relate to intergovernmental relations between the province and the federal government. Also, the disclosure of a record containing an undertaking by the province to negotiate with the federal government cannot reasonably be expected to prejudice intergovernmental relations.
- A settlement proposal received by the provincial government between the Algonquins of the Golden Lake First Nation (AGL) and the Government of Canada and the Government of Ontario was held to be exempt under this provision. The Commission was satisfied that the process was sensitive and confidential and that prejudice between Ontario and Canada would result from untimely disclosure. In addition, the Commission ruled that the negotiations between Ontario and Canada are intergovernmental in nature.
- Disclosure of correspondence between counsel at the Ministry of the Attorney General and the British Lord Chancellor's Department in respect of the Hague Convention on the Civil Aspects of International Child Abduction could reasonably be expected to prejudice intergovernmental relations.
- Correspondence between the senior justice officials of two governments that deal with highly sensitive and controversial issues may be exempt.
- The fact that disclosure of the records would prejudice the relationship between the mining industry and the federal and provincial governments is not sufficient to satisfy this provision. It is intergovernmental relations that must be prejudiced in order to satisfy this exemption.
- The possibility that disclosure of the record would prejudice the relationship between the private sector and the government is not covered by this exemption. The prejudice must be to intergovernmental relations.
- Paragraph 15(b) [FIPPA] is intended to protect the free flow of information from other governments or their agencies to Ontario institutions which are carrying out their respective 'governmental' functions. It does not apply to records provided by Revenue Canada to the institution where the relationship was that of tax collector and taxpayer.
(Orders #P-304, M-128, M-221, P-627)
- This provision may be satisfied where information is received implicitly in confidence. Nevertheless, the institution must provide sufficient evidence that the information was received in confidence.
- Records compiled by the Royal Canadian Mounted Police (RCMP) regarding arson and fraud investigations of a requestor are provided in confidence to the provincial police force. The records are then given to the Ministry of the Attorney General for the prosecution. This exemption is satisfied because the RCMP is an agency of another government and the records were received in confidence. The expectation of confidence continued when the police provided the documents to the ministry.
- Records provided by the Department of National Defence (ND) to a City to plan for a public display of military equipment were not exempt under this provision. At the time the records were provided to the City, no reference to confidentiality was made. The records were provided in respect of previous events and had, at one time, been distributed to members of the public who were involved in planning the previous events. Even though an expectation of confidentiality was alluded to in subsequent meetings with ND, the Commission found that the 'in confidence' test had not been met.
(Orders #M-128, M-363)
- Computer printouts of the criminal history of the appellant were obtained electronically from the Canadian Police Information Centre (CPIC). The information in CPIC is comprised of information originally entered in the system by various law enforcement agencies, including non-federal sources. The Royal Canadian Mounted Police (RCMP), while responsible for the administration and maintenance of the system, is only one of the contributors of information. The mere fact that the RCMP administers and maintains CPIC does not make the RCMP the source of all information that resides in the system. Only the retrieval of information originally supplied to CPIC by the RCMP can be considered to be 'received' from the RCMP. In this case, the information received from CPIC was originally supplied by the local police force itself. As a result, this exemption does not apply.
- Confidential records received by the police from various agencies of the government of Canada, Ontario and the United States were exempt under this provision. The records were derived from the Royal Canadian Mounted Police, the Federal Department of External Affairs and the Department of Justice, the ministries of the Solicitor General and the Attorney General in Ontario, and United States police agencies.
(Reconsideration Order #R-970003, rescinding Order #P-1406)
- Relations between Canada and Ontario which are reflected in records relating to a land claims settlement or negotiations with aboriginal groups were found to be intergovernmental in nature in this case. The exemption for records the disclosure of which could reasonably be expected to prejudice the conduct of intergovernmental relations applies to records relating to such negotiations notwithstanding that the federal government may not have originated or received the records. The Inquiry Officer found there would be prejudice to the conduct of intergovernmental relations if records relating to land claims negotiations were disclosed because the assumption of confidentiality underlying the negotiations would be compromised, with a resulting "chilling effect" on future land claims negotiations and on the willingness of the other parties to the negotiations to share information related to land claims with the Ontario government. (See also Interim Orders P-1620 and 1621, October 7, 1998)
Table of Authorities
Canada (Information Commissioner) v. Canada (Prime Minister)  1 F.C. 427 (T.D.) Northern Cruiser Company Limited v. R (September 12, 1991) No.T-109-90 (F.C.T.D.); confirmed by F.C.A. (August 28, 1995), A-1039-91 Merck Frosst Canada Inc. v. Minister of Health & Welfare, (1988), 20 F.T.R. 73 (T.D.); Information Commissioner of Canada v. Prime Minister of Canada, (November 19, 1992),  1 F.C. 427 (T.D.) Matol Botanique International Inc. v. Canada (Department of National Health and Welfare) (June 3, 1994), T-2916-90 (F.C.T.D.) Piller Sausages and Delicatessens Limited v. Minister of Agriculture at al. (1987), 14 F.T.R. 118 (T.D.). Air Atonabee Ltd. v. Minister of Transport, (1989), 27 F.T.R. 194 at 216. Canada Packers Inc. v. Minister of Agriculture,  1 F.C. 47 (C.A.). Ottawa Football Club v. Minister of Fitness and Amateur Sports,  2 F.C. 480, 24 F.T.R. 62, 23 C.P.R. (3d) 297 (F.C.T.D.) Ruby v. Canada (Solicitor General, R.C.M.P.),  F.C.J. No 779, June 8, 2000 (F.C.A.)
State v. City of Cleveland, Civil No. 59571 (Ohio App. Aug. 27, 1992): Section 149.43(a)(2)(d)Fisher v. United States DOJ, 772 F. Supp. 7 (D.C. Col. August 15, 1991): Founding Church of Scientology, Inc. v. NSA, 197 App. D.C. 305, 610 F.2d 824, 831-32 (D.C. Cir. 1979) Sirota v. CIA, 3 G.D.S. para. 83,261 (S.D.N.Y. 1981) (citing Fensterwald v. CIA, 443 F. Supp. 667 (D.D.C. 1978)).
Injury to the Conduct by the Government of Canada - of Federal-Provincial Affairs
Orders #87, 123, 210, P-236, P-270, P-263, P-293, P-304, P-368, P-388, P-435, P-627, P-630, M-128, M-151, M-202, M-221, M-363
- Footnote 1
See Ruby v. Canada (Solicitor General, R.C.M.P.),  F.C.J. No. 779 (June 8, 2000)(F.C.A.).
- Footnote 2
Northern Cruiser Company Limited v. R. (September 12, 1991) No.T-109-90 (F.C.T.D.).; confirmed by F.C.A. (August 28, 1995), A-1039-91.
- Footnote 3
Merck Frosst Canada Inc. v. Minister of Health & Welfare, (1988), 20 F.T.R. 73 (T.D.); Information Commissioner of Canada v. Prime Minister of Canada,  1 F.C. 427 (T.D.).
- Footnote 4
Piller Sausages and Delicatessens Limited v. Minister of Agriculture at al. (1987), 14 F.T.R. 118 (T.D.).
- Footnote 5
- Footnote 6
Information Commissioner of Canada v. Prime Minister of Canada  1 F.C. 427 (T.D.).
- Footnote 7
Air Atonabee Ltd. v. Minister of Transport, (1989), 27 F.T.R. 194 at 216.
- Footnote 8
Air Atonabee, ibid.
- Footnote 9
State v. City of Cleveland, Civil No. 59571 (Ohio App. Aug. 27, 1992): Section 149.43(a) (2)(d) of the Ohio Public Records Act exempts information which would endanger the life or physical safety of law enforcement personnel, a crime victim, a witness or a confidential information source. The respondents claimed this exemption for records relating to the identity of police informants. The court recognized that incarcerated informants incur a high degree of risk to their physical safety after providing information to the police. However, if an informant discloses his identity by testifying at trial, then it is doubtful that redacting the records relating to that informant will enhance his security.
- Footnote 10
Fisher v. United States DOJ, 772 F. Supp. 7 (D.C. Col. August 15, 1991): In this case, the plaintiff's primary complaint was that much of the requested information allegedly had been released to the news media, and he contends that therefore he is entitled to this information. However, the plaintiff failed to provide evidence that the media coverage was the result of a release of the requested information by the government to the press. Nor did the plaintiff demonstrate that any of the withheld information has been the subject of publicity so widespread as to warrant disclosure under the FOIA. See Founding Church of Scientology, Inc. v. NSA, 197 App. D.C. 305, 610 F.2d 824, 831-32 (D.C. Cir. 1979). Moreover, the Court found that even assuming that some of the withheld information has appeared in the press, the nondisclosure was not proper because a disclosure from an official source of information previously released by an unofficial source would confirm the unofficial information and therefore cause harm to third parties. See Simmons v. Dep't of Justice, 796 F.2d 709, 712 (4th Cir. 1986) ("release from an official source naturally confirms the accuracy of the previously leaked information"). Furthermore, public disclosure of some information does not necessitate the disclosure of additional information that is otherwise properly exempt from disclosure. Sirota v. CIA, 3 G.D.S. para. 83,261 (S.D.N.Y. 1981) (citing Fensterwald v. CIA, 443 F. Supp. 667 (D.D.C. 1978).
The plaintiff also contended that during the sixteen week trial in which he was a co-defendant, information withheld by the defendants was disclosed. However, the plaintiff failed to reference a single document withheld by the defendants in whole or in part which might fall within this category, and has not demonstrated that any of the withheld information has been so publicized as to warrant disclosure under the FOIA. See Founding Church of Scientology, 610 F.2d at 831-32.
- Footnote 11
See Canada Packers Inc. v. Minister of Agriculture,  1 F.C. 47 (C.A.) where the Court found that the evidence did not sustain the appellant's fear of unfair press coverage or its impact, rejecting evidence of previous press reports which related to products rather that on the condition of the plants which was the subject of the report at issue. See also Ottawa Football Club v. Minister of Fitness and Amateur Sports,  2 F.C. 480, 24 F.T.R. 62, 23 C.P.R. (3d) 297 (F.C.T.D.) where the Court found that since most of the information contained in the requested documents already made press coverage, no additional harm could be expected from the release of the requested information.
- Footnote 12
See Matol Botanique International Inc. v. Canada (Department of National Health and Welfare) (June 3, 1994), T-2916-90 (F.C.T.D.): While the Court found that sometimes the media is biased in the way it informs the public, it could not infer bad faith upon the media without any evidence to this effect.
- Footnote 13
Ottawa Football Club, supra where the judge considered that the record was three years old when assessing the likelihood of harm resulting from disclosure. See [also] Ruby v. Royal Canadian Mounted Police  F.C.J. No. 779, June 8, 2000 (F.C.A.), where the Federal Court of Appeal overturned the Trial Division finding at  2 F.C. 351 in relation to paragraph 22(1)(b) of the Privacy Act (paragraph 16(1)(c) Access to Information Act) that the age of the records of events they described could still lead to injury from disclosure of the records given the cumulative impact such disclosure could have in prejudicing the investigative process. The Court of Appeal instead directed the Trial Division to reconsider "whether the release of information, particularly information that is over 20 years old, could reasonably be expected to be injurious to specific efforts at law enforcement and detection of hostile activities, and therefore, whether CSIS had a reasonable ground to refuse to disclose." (at paragraph 100, Emphasis added).
- Footnote 14
Canada Packers Inc. v. Minister of Agriculture,  1 F.C. 47 (C.A.).
- Footnote 15
Ontario Order P-263.