Section 13: Information Obtained in Confidence Where Disclosure Authorized

The Provisions

  • 13(1)     Subject to subsection (2), the head of a government, institution shall refuse to disclose any record requested under this Act that contains information that was obtained in confidence from
    • the government of a foreign state or an institution thereof;
    • an international organization of states or an institution thereof;
    • the government of a province or an institution thereof; or
    • a municipal or regional government established by or pursuant to an Act of the legislature of a province or an institution of such a government.
  • 13(2)     The head of a government institution may disclose any record requested under this Act that contains information described in subsection (1) if the government, organization or institution from which the information was obtained
    • consents to the disclosure; or
    • makes the information public .

Preliminary Matters

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 part thereof) are excluded under section 68 or 69.

Generally speaking, the Department of External Affairs as the entity responsible for Canada's foreign relations, will be able to answer conclusively whether the entity in question is the government of a foreign state or an international organization of states, because it will be a question of whether Canada has formally recognized the entity. However, there is no obligation on us to accept without question the position of that department in the case of whether an entity is an institution of the government of a foreign state or an international organization of states except where Canada has clearly taken a step which recognizes the entity as such an institution.

It is important to note there is some overlap between the section 13(1)(a), (b), and section 15 exemptions. While section 13 covers information obtained in confidence from foreign governments or institutions, it does not cover information transmitted by Canadian government institutions to foreign institutions. An exchange of information between Canadian government institutions and foreign government institutions or international organizations is more properly assessed in relation to section 15 of the Act, which refers in paragraph 15(1)(g) to present or future international negotiations and in paragraph 15(1)(h) to diplomatic correspondence. This overlap becomes relevant in an investigation because section 13 is a mandatory class exemption, while section 15 is discretionary and requires that a reasonable expectation of injury to the conduct of international affairs be shown before the records can be exempt under this exemption. (Hien Do-Ky/ Vietnamese Refugee Sponsorship Committee v. Canada (Minister of Foreign Affairs & International Trade), (1999), 241, N.R. 308 (F.C.A.) affirming [1997] 2 F.A. 907 (F.C.T.D.).

The Test

At the present time, there have been only a few decisions from the Federal Court of Canada on the criteria to be met in order for this provision to apply. However, there has been jurisprudence from other jurisdictions that could be applied by analogy to the Federal Act. The following summarizes the Office interpretation of that provision.

Subsection 13(1) is a mandatory class exemption. Consequently, once the Head determines that a record or part thereof contains certain information which falls within the class enunciated in the exemption, he/she must then refuse to grant access to the requested information unless either of the exceptions in subsection 13(2) applies. The exemption process under 13(1) is not completed until this second determination is made.

1) Obtained in confidence:

The purpose of section 13 is to protect information obtained in confidence from other governments since disclosure of such information could impair or even destroy the relationship between Canada and such governments if they lost confidence in the ability of the Government of Canada to protect their confidences. The requirements of section 13 (i.e., that the information be 'obtained' in confidence) differ from those in sub-paragraph 20(1)(b) (i.e., that the confidential information be 'supplied' by a third party) and must be distinguished. For the purpose of section 13, the information must have been directly provided by the other government. In the case of sub-paragraph 20(1)(b), it can originate through other means. For example, confidential commercial information about a third party could be supplied in confidence to the government by another third party.

The requirements of section 13 also differ from those in sub-paragraph 20 (1)(b) due to the fact that sub-paragraph 20(1)(b) requires that information be exempted only when it is objectively confidential and treated consistently in a confidential manner by the government institution and the third party submitting the information. Section 13 only requires that the information be obtained in confidence by a government institution. This section does not require that:

  • the information in itself be confidential information;
  • the information has been treated consistently in a confidential manner by the (Canadian) government institution;
  • the information was treated consistently in a confidential manner by the government organization etc. submitting the information.

Note: Subsection 13(2) constitutes an exception to b) and c) above. Accordingly, it is implicit that the foreign government must not have made the information public at the time it asked Canada to hold it in confidence. As soon as there is evidence that the other government has made the information public or agrees to the disclosure, there is no longer a confidentiality requirement on the part of the Canadian government and the exemption no longer applies. For further details on the application of this override, see subsection 13(2) below.

The key to the exemption is to satisfy ourselves as to the terms and conditions under which the information was transmitted and received. The Federal Court Trial Division in one case has stated that the Court should be satisfied that information obtained from a foreign government institution was stipulated by the foreign government to be confidential (Steinhoff v. Canada (Minister of Communications) (1998), 10 Admin L.R. (3rd) 232, (1998), 83 C.P.R. (3rd) 380. This view does not reflect the reasoning in other decisions and a better view is to assess whether confidential transmission of information from foreign government institutions can be implied, where this is claimed by a government institution, from the evidence and circumstances in each case. For the purpose of subsection 13(1), information can be obtained in confidence from another government, organization or institution, in one of the following ways:

  • The government providing the information explicitly supplied the information on the basis that it will be held by the Canadian institution in confidence. In order for the exemption to apply, the entity supplying the information and the person receiving it must have each had the requisite authority to accept/transmit the information and to conduct relations on behalf of their respective government. Similarly, the information must be supplied during the course of such relations.
  • The information was communicated through a formal channel of confidential communications established for the purpose of intergovernmental relations (for example, an information sharing agreement or pursuant to written policies, treaties, etc.). In such circumstances, confidentiality may sometimes be implied but only where it is clear that both parties (both governments) understood there would be restrictions placed on the information.
  • The information supplied was objectively and inherently confidential, to such an extent that the official supplying the information would have known that it would be treated in confidence and the recipient of the information could have no doubt whatsoever that it was received in confidence. Once again, in order for the exemption to apply, the entity supplying the information and the person receiving it must have each had the requisite authority to accept/transmit the information and to conduct relations on behalf of their respective government. Similarly, the information must be supplied during the course of such relations. This would rarely happen and it would normally be expected that where there was a previous history of this type of information being transmitted and then held in confidence, then all of the facts showing how the Canadian government treated the information would reflect that it was being treated in confidence.

The department has the burden of proving that the exemption applies. As usual, we must make our findings on a case-by-case basis having regard for all the surrounding circumstances. For example, the fact that the requested information was not consistently treated in a confidential manner by the department may not affect the application of the exemption where it can otherwise be objectively proven that the information was received under an obligation to hold it in confidence.

However, we would have great difficulty in circumstances where a department is claiming as the (only basis) for the exemption the fact that the information was implicitly received in confidence. For example if the record is not classified, not handled in a secure way and/or not passed on to the other governmental entities without appropriate warnings etc; it would be very difficult for us to accept that the information was originally obtained in confidence.

2) The government of a foreign state or an institution thereof:

Dictionary definitions can be considered in determining the ordinary meaning of a provision when the suggested meaning in the dictionary is consistent with the purpose of the Act. But that is not the case here - i.e., in trying to understand the meaning of "... or an institution thereof".

The terms 'government' and 'institution' are defined as follows in the Concise Oxford Dictionary, 8th ed. (Oxford University Press, 1991):

  • Government: "2. the system by which a State or Community is governed...."
  • Institution: "2. a society or organization founded spp. for charitable, religious, educational, or social purposes".

These terms are further defined as follows in the Black's Law Dictionary, 5th ed. (West Publishing Co., 1979):

  • Government: "...the machinery by which the sovereign power in a state expresses its will and exercises its functions; or the framework of political institutions, departments, and offices, by means of which the executive, judicial, legislative, and administrative business of the state is carried on.... "
  • Institution: "2. ...An establishment, especially one of eleemosynary or public character or one affecting a community...".

Other legislation can also assist in determining the meaning of these terms. The legislature is deemed to enact statutes on a given subject that are coherent in their formulation. When a statute is drafted, its author supposedly takes into account legislation already in force, particularly that dealing with the same subject matter. A statute will be drafted so as to integrate it into existing legislation, from the point of view of both form and content. This explains why related prior legislation, as part of the legal environment of the new act, can help to clarify its meaning.Footnote 1

The Following definition can be found in the Customs Tariff Act, R.S.C. 1985, c. C-54, section 26:

  • "Government, in relation to any country other than Canada, includes any agency or institution acting for, on behalf of, or under the authority of the government of that country". [Emphasis added]

During the legislative review of section 13 of Bill C-43, some comments were made about the meaning of 'government ... institution'. While according to Interpretation principles these opinions are not binding on Courts, they nevertheless constitute a persuasive authority as to the meaning of a statute.Footnote 2

  • Mr. Fox: "...We have included the word "institution" here for greater clarity. In our country, I suppose, the Cabinet can be said to constitute the government of the country and we did not want to limit Schedule I Clause 13 to information received from provincial cabinets or the cabinets of foreign countries; otherwise, you would have to go through cabinets every time.Footnote 3[Emphasis added]
  • Mr. Robert Auger (Legislation and House Planning Secretariat, Privy Council Office): "The word institution was inserted alongside to governments or provincial governments in order to be more precise as to what we meant. The intent of the bill was not to cover information provided in confidence only by provincial cabinets or by the governments or cabinets of foreign countries. We felt that by adding institution we would make it clear that if a particular department of a foreign government or a provincial government was submitting information in confidence it should be protected..."Footnote 4[emphasis added]

Based on the above, it would appear that in the context of paragraph 13(1)(a) the term 'or an institution thereof`'would refer to any agency or institution of the national government which in the circumstances was acting for, on behalf of, or under the authority of the (national) government of that country. Where there is any doubt as to whether the entity is a constituent part of the foreign government, what is important to consider for the purpose of this exemption is whether the entity who supplied the requested information had the requisite authority to transmit the information and to conduct relations on behalf of its respective government. For example, information sent by the tax department of the State of New York to Revenue Canada in a taxpayer/tax collector relationship would not be covered by the exemption.Footnote 5 While it is possible to argue differently, we have adopted the Treasury Board's interpretation that paragraph 13(1)(a) does not include constituent parts of foreign states (e.g., state governments in the United States).Footnote 6

3) An international organization of states or an institution thereof:

An 'international organization of states' means any organization with members representing and acting under the authority of the governments of two or more states. Generally, these organizations are created by treaties or international agreements of a contractual character creating legal rights and obligations between the parties. Examples of such organizations could be: NATO, the United Nations, the European Economic Community, etc.

Agencies or entities that are constituent parts of such international organizations are also covered by the exemption. If there is any doubt as to whether it is such an institution, what is important to consider for the purpose of this exemption is whether the entity who supplied the requested information had the requisite authority to transmit the information and to conduct relations on behalf of the particular international organization of states. For example, UNESCO is an institution of the United Nations.

If there has been no consultation with the Department of External Affairs by the government institution that processed the Access request, it is important to encourage them to do so. We normally rely on External Affairs to advise us whether Canada has formally recognized an entity as an 'international organization of states.'

4) The government of a province or an institution thereof:

The Interpretation Act defines the word 'province' as meaning a province of Canada, and includes the Yukon, Northwest and Nunavut Territories. Accordingly, for the purpose of paragraph 13(1)(c), information received from any province or the above territories could be covered by the exemption. At this point in time, the Act does not treat any aboriginal organizations as separate entities for the purposes of section 13. These organizations are normally third parties for the purposes of the Act.

Institutions of provincial governments are also covered. Accordingly, any provincial or territorial entity having the requisite authority to transmit the information and to conduct relations on behalf of its respective government, could also transmit information in a way that it could be protected under section 13.

To determine whether an agency is an institution of the government of a province, it is important to ensure there is consultation with the federal provincial office at PCO.

5) A municipal or regional government established by or pursuant to an Act of the legislature of a province or an institution of such a government:

Municipal information is also covered by the exemption. For example, the National Capital Commission could receive confidential information from a municipality, a municipal government, or an institution thereof competent to conduct relations and transmit information for a municipality or a municipal government.

In Chippewas of Nawash First Nation v. Canada (Minister of Indian and Northern Affairs) (1996), 116 F.T.R. 37, the applicant argued that section 13 of the Act ought to be interpreted so as to include band councils, or that equal protection for band council governments ought to be read into the section. The applicant submitted that a band council should be "read into" section 13 of the Act, as being analogous to a municipal government. The Court found that paragraph 13(1)(d) clearly defines what constitutes a municipality for the purposes of non-disclosure of information a government established by or pursuant to an Act of the legislature of a provincial government. The Court found, therefore, that a "bank council" may not be read into the language of section 13.

6) Where Canadian government institution being investigated is not original obtainer:

It may well arise that the government institution with whom you are dealing obtained the information in question from another Canadian government institution which had obtained it in confidence from one of the entities referred to in subsection 13(1). The fact that the institution received the information indirectly makes no difference provided that you ensure that the above requirements (of section 13) were complied with by the obtaining institution and that the institution being investigated obtained the information on a confidential basis and treated it as such.

7) Where disclosure permitted:

Subsection 13(2) states that the head of a government institution may disclose any record that would fall within the ambit of subsection 13(1) if the government, organization or institution from which the information was obtained consented to disclosure or made the information public.

Our Office position is that the presence of either of these two circumstances creates a duty to disclose unless some other exemption applies. Our position relies on the decision of Mr. Justice Jerome, ACJ, in Information Commissioner v. Minister of Employment and Immigration, [1986] 3 F.C. 63 (T.D.). That case involved a similar override of the mandatory exemption in subsection 19(1) with respect to personal information. Pursuant to subsection 19(2), the head 'may' disclose personal information in several situations, one being when the individual to whom the information relates has consented. The individual had approved disclosure but the head of the institution nonetheless purported to exercise its discretion and decided not to release the information. The court held that 'may' meant 'must' since that interpretation was necessary to give effect to the requester's right to information conferred by the Access to Information Act. The institution was, therefore, ordered to satisfy the personal information request. However it should be noted that the duty to disclose is not 100% mandatory. The words shall disclose would mean mandatory. Since it is 'may' disclose, it is directory. In other words, where one of the exceptions in subsection 19(2) applies, the head is directed to disclose unless some other exemption applies.

An institution has a duty to consider the override in the following circumstances:

  • 13(2)(a)     This override applies where the government, organization or institution to whom the information relates consents to disclosure. This provision logically requires that there be some possibility that consent would be given before consent would be sought. It is our position that unless the government, organization or institution etc. has made it clear in the past or on the record that it will never consent, the possibility that it will consent is there - i.e., it is presumed that consultation should take place. It is not sufficient (i.e., as an excuse for not consulting) for the head of the Canadian institution to state that they don't know if the third party would consent. In such a case, they must take positive action to determine if the other government, organizations or institutions would consent: see also X v. Minister of National Defence.Footnote 7
  • The Federal Court of Appeal has stated in the context of a request for personal information under the Privacy Act that a request by an applicant for information subject to section 19 of the Privacy Act (the parallel to section 13 of the Access to Information Act) "includes a request to the head of a government institution to make reasonable efforts to seek the consent of the third party [other government or international organization of states] which provided the information (Emphasis added). (Ruby v. Canada (Solicitor General, R.C.M.P.), [2000] F.C.J. No. 779, June 8, 2000 (F.C.A.)). The Court noted that the evidentiary burden lies on the government institution to show that the exception in subsection 19(2) [subsection 13(2)] for consent does not apply given the inability of the requestor to know who to ask for consent or what the withheld information consists of. The test enunciated by the Court with respect to the application of subsection 19(2)(a) [subsection 13(2)(a) of the Access to Information Act] was whether the government institution has made reasonable efforts to seek the consent of the other government or institution. The Court recognized that political considerations, or the nature or volume of the requested information may not always make it possible or practical to seek consent on a case-by-case basis, in which case it may be necessary to establish protocols for determining consent in advance "which respect the spirit and intent of the Act and of the exemption."
  • 13(2)(b)     This override applies where the information requested was made public by the government, organization or institution which submitted the information.Footnote 8 When a department is asking another government, organization or institution whether they would consent to disclosure, it should also remember to ask whether it has made the information public. However, in cases where the other government (etc.) has made it clear in the past that it will never give consent for such information to be disclosed, the paragraph 13(2)(b) override must be considered when it is self evident from the request, the requested information, the complaint or the complainant's representations that the information requested has been (or probably had been) made public by the foreign government, organization or institution. Unless it is self evident from the records, the requestor must demonstrate a prima facie case that the information has probably been made public.

Case Law

General

With respect to this section of the Act, the Court noted in Grand Council of the Crees (of Quebec) v. Canada (Minister of External Affairs and International Trade) (June 27, 1996), T-1681-94, (F.C.T.D.), that once the head of a government institution has met the burden of establishing that the information not disclosed was obtained in confidence under subsection 13(1), the onus shifts to the party claiming an exception pursuant to subsection 13(2) to establish that exception. No such exception was established in this case, the Court noted. See also Hien Do-Ky v. Canada (Minister of Foreign Affairs & International Trade), [1997] 2 F.C. 907 (F.C.T.D.).

1) Obtained in confidence:

  • As noted above, for the purpose of section 13 it is not necessary, in order to claim the exemption, that the department have obtained the information on a specific request of confidence.Footnote 9
  • Given the fact that section 13 deals with intergovernmental communications, confidentiality can sometimes be assumed when the information was communicated through a formal channel of communication.Footnote 10
  • A foreign government can make an express request/claim for confidentiality after the information was communicated to the Canadian Government if it can be implied that the information was originally communicated in confidence.Footnote 11
  • There is no discretion to read into the provision a requirement that there be a continuing confidentiality about the material at issue. For example, if the information had been leaked, disclosed by another department etc., would the exemption still apply? The head of a government institution must simply determine whether the information was obtained in confidence under subsection 13(1) and, if so, the head must still refuse to disclose the information unless one of the overrides contained in subsection 13(2) applies. The mandatory nature of this exemption, therefore, is set aside only where the other government or organization consents to disclosure or has itself made the information public. As well, unlike paragraph 20(1)(b) of the Act which specifically provides for a consideration of whether the information has maintained its confidential nature, section 13 simply requires a consideration of whether the information at issue, when it was received, was obtained in confidence.Footnote 12
  • In Order P-552, the Ontario Information and Privacy Commissioner held that subsection 15(b) of the Ontario FOI Act, which deals with information, the disclosure of which would reasonably be expected to reveal information received in confidence from another government or its agencies, applied to exempt information which would permit the drawing of accurate inferences with respect to information received from another government or one of its agencies, for example internal memoranda from an Ontario Ministry commenting on confidential information received from a federal government agency.

2) Institution:

  • In Order P-270, the Ontario Commissioner found that while the Atomic Energy of Canada Ltd. (AECL) and Ontario Hydro are not governments, they are capable of conducting inter-governmental relations on behalf of their respective governments. Intergovernmental relations can be understood as the ongoing formal and informal discussions and exchanges of information as the result of joint projects, planning and negotiations between various levels of government. As a Crown corporation, AECL exercises its powers only as an agent of the Crown. Similarly, Ontario Hydro is a Crown corporation and an agent of the Ontario government. Where they conduct business through a joint committee of representatives, information received by Ontario Hydro from AECL may be covered by subsection 15(b) of the FIPPA. Commissioner Wright refused however to exempt from disclosure portions of records which consisted of administrative detail on the grounds that disclosure could not reasonably be expected to prejudice intergovernmental relations, nor that disclosure would cause the AECL and Ontario Hydro to cease their exchange of information.
  • In Order P-263, Commissioner Wright stated while that subsection 15(b) of the FIPPA is intended to protect the free flow of information from other governments or their agencies to Ontario institutions who 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.

3) Where disclosure permitted:

  • The fact that some of the information received in confidence from a foreign government has otherwise been disclosed by the Canadian Government has no bearing on the application of paragraph 13(2)(b).Footnote 13
  • The fact that the information requested has lost its confidential nature has no bearing on the application of the exemption. The exemption is set aside only where the other government, organization or institution consents to disclosure or has itself made the information public.Footnote 14
  • In Ruby v. Canada (Solicitor General, R.C.M.P.), [2000] F.C.J. No. 779, the Federal Court of Appeal overruled the Trial Division finding at [1998] 2 F.C. 351 that there is no requirement to seek consent from a foreign government or institution to the disclosure of information to which section 19 of the Privacy Act (section 13 of the Access to information Act) applies. The Federal Court of Appeal held that the exception in subsection 19(2) Privacy Act (subsection 13(2) Access to Information Act) must be read "in the overall context of the Act, which favours access to the information held." The Court stated that a request by an applicant for information subject to section 19 of the Privacy Act (section 13 Access to Information Act) "includes a request to the head of a government institution to make reasonable efforts to seek the consent of the third party [other government or international organization of states] which provided the information". (Emphasis added). The Court noted that the evidentiary burden lies on the government institution to show that the exception in subsection 19(2) [subsection 13(2)] for consent does not apply, given the inability of the requestor to know who to ask for consent or what the withheld information consists of. The test enunciated by the Court with respect to the application of paragraph 19(2)(a) [paragraph 13(2)(a) of the Access to Information Act] was whether the government institution has made reasonable efforts to seek the consent of the other government or institution. The Court recognized that political considerations, or the nature or volume of the requested information may not always make it possible or practical to seek consent on a case-by-case basis, in which case it may be necessary to establish protocols for determining consent in advance "which respect the spirit and intent of the Act and of the exemption."

 

 

 

Table of Authorities

Canada

Chippewas of Nawash First Nation v. Canada (Minister of Indian and Northern Affairs) (1996), 116 F.T.R. 37

Kelly v. Solicitor General, (April 1, 1992), T-948-91, (F.C.T.D.).

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

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

Shepherd v. Solicitor General, [1990] 36 F.T.R. 222 (T.D.).

Grand Council of the Crees (of Quebec) v. Canada (Minister of External Affairs and International Trade) (June 27, 1996), T-1681-94, (F.C.T.D.)

Hien Do-Ky v. Canada (Minister of Foreign Affairs & International Trade), (1992), 241 N.R. 308 (F.C.A.) affirming [1997] 2 F.C. 907 (F.C.T.D.).

Ruby v. Canada (Solicitor General, R.C.M.P.), [2000] F.C.J. No. 779, June 8, 2000 (F.C.A.) overturning [1998] 2 F.C. 351.

Ontario

Orders # P-263, P-270.

United States

Fensterwald v. CIA, 443 F. Supp. 667 (D.D.C. 1978)).

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).

Simmons v. Dep't of Justice, 796 F.2d 709, 712 (4th Cir. 1986).

Sirota v. CIA, 3 G.D.S. para. 83, 261 (S.D.N.Y. 1981).

Endnotes
Footnote 1

P.A. Côté, The Interpretation of Legislation in Canada, Les Éditions Yvon Blais, Cowansville, 1984, at 270-71.

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Footnote 2

P.A. Côté, The Interpretation of Legislation in Canada, Les Éditions Yvon Blais, Cowansville, 1984, at 439.

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Footnote 3

Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, Issue No. 42, June 17, 1981 at 31.

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Footnote 4

Ibid, Issue No. 43, June 18, 1981 at 11.

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Footnote 5

By analogy we would rely on Ontario Order P-263.

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Footnote 6

Treasury Board Manual: Access to Information Volume, Treasury Board of Canada, December 1, 1993, Chap. 2-8 at 1.

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Footnote 7

[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].

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Footnote 8

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 disclosure 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).

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Footnote 9

See for example subsection 16(3) of the Access to Information Act which states:

16(3)"The head of a government institution shall refuse to disclose any record requested under this Act that contains information that was obtained or prepared by the Royal Canadian Mounted Police while performing policing services for a province or municipality pursuant to an arrangement made under section 20 of the Royal Canadian Mounted Police Act, where the Government of Canada has, on the request of the province or municipality agreed not to disclose such information." [Emphasis added].

See also sub-paragraph 24(b) of the Privacy Act which states:

24(b)"The head of a government institution may refuse to disclose any personal information requested under subsection 12(1) that was collected or obtained by the Correctional Service of Canada or the National Parole Board while the individual who made the request was under sentence for an offence against any Act of Parliament, if the disclosure could reasonable be expected to

(a) lead to a serious disruption of the individual's institutional, parole or statutory release program; or

(b) reveal information about the individual originally obtained on a promise of confidentiality, express or implied."

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Footnote 10

Kelly v. Solicitor General, (April 1, 1992), T-948-91, (F.C.T.D.) [Hereinafter Kelly].

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Footnote 11

Ibid.

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Footnote 12

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

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Footnote 13

See Shepherd v. Solicitor General, [1990] 36 F.T.R. 222 (T.D.) where the Court stated:

"The applicant urges that the information filed in sealed form in these proceedings and not provided to him contained information which I have found warranted the decision of the National Parole Board to exempt portions, should now be released to him on the basis that it should not be more explicit than the trial transcripts to which he has access. That, of course, is not the test..."

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Footnote 14

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

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