Section 20(2), (5) and (6): Product or environmental testing

The Provisions

  • 20(2)     The institution must examine the records requested to determine whether they contain any information relating to the results of product or environmental testing. If the record contains any such information, subsection 20(2) applies; the product and environment testing override clearly means that the institution must disclose the subject information unless another exemption applies to such information. See Dekalb Canada Inc. v. Agriculture and Agri-food Canada (F.C.T.D. 7 September 1999, unreported).
  • 20(5)     As it applies to the third party with whom the information relates and consents to disclosure. This provision logically requires that there be some possibility for such consent. It is our position that unless the third party has made it clear in the past or on the record that it will not/never consent, the possibility that it will consent is there. Departments should consult to see if consent would be given. They may obtain consent from the third parties at the time of the submission of documents, during informal or formal consultations (i.e., 9(1)(b) situations) or in response to the notification of the intent to disclose by the government institution (section 27). It is not sufficient for the head of the 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 third party would consent (see also X v. Minister of National Defence1).
  • 20(6)     This provision permits disclosure in the public interest "where such public interest clearly outweighs in importance any financial loss or gain to, prejudice to the competitive position of, or interference with contractual or other negotiations of a third party". It must be considered when it is evident from the request or the requested records, the representations under section 27 or the complaint that a public in disclosure under subsection 20(6) could exist. The Federal Court of Appeal has held that the institution head must undertake the balancing of interests mandated by the public interest override, but that the manner of doing so is within the discretion of the institution head. The Information Commissioner, however, can and does make findings and recommendations on the application of the section 20(6) override2.

Preliminary Matters

1) General Right of Access:

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, the 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.

2) Exemption Mandatory Subjected to Exceptions:

Subsection 20(1) is a mandatory exemption which prohibits disclosure of certain third party information but it is not absolute. It is subject to the exceptions in subsections 20(2), (5) and (6). If one of these apply, the duty to exempt in section 20(1) is nullified and the institution must disclose the information unless other exemptions apply. There is always a duty to consider whether one of these exceptions might apply. The scope of the duty and the factors that govern whether the exception applies are described below.

3) Consequence of the Override:

Our office agrees that the effect on a mandatory exemption is to create a duty to disclose. Our position relies on the decision of Mr. Justice Jérome 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 rejected the government's suggestion that 'I' conferred a discretionary power to the head. To do so would be contrary to the purposes of the Act. The court said there was a virtual obligation to disclose and held that, in the context, '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 19(2) applies, the head is directed to disclose unless some other exemption applies. And also, if the information falls within the scope of any other exemption, the head may invoke that provision to withhold the record even though one of these exceptions may apply.

While the government does not always agree with us, it is our position that the effect of the decision in the Information Commissioner v. Minister of Employment and Immigration case applies equally to the exceptions in 20(2), (5) and (6) and must be followed by government institutions. The consequence of that decision is to create a duty to disclose, subject only to any other exemptions that may apply.

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