Questions and Answers – Appearance before HESA Committee
Q1. Although you were not involved in disclosures from PSPC, what can you tell us about the redactions?
A1. I am mindful that the disclosure of these records could become the subject of a complaint falling within my jurisdiction, which is why I cannot entertain hypotheticals.
In order to preserve the neutrality and integrity of any potential investigation of a refusal under the Act to disclose these records, I cannot comment upon the disclosure of these particular documents within this current context.
If these records were requested under the Act, and I were to receive a complaint concerning their disclosure – I would review the unredacted documents and my investigation of that complaint would require that I afford the parties, a reasonable opportunity to make representations prior to reaching any findings.
Q2. Can you please briefly describe the relevant principles that would apply to the redaction of these contracts under the ATIA?
A2. The Act provides for some protection for third party information, such as trade secrets, financial and technical information and information that could interfere with negotiations. There are different requirements in the legislation depending on the type of information. It is assessed on a case-by-case basis.
Q3. You are able to self-initiate complaints. Will you launch an investigation into how the government has been disclosing documents related to production orders?
A3. The Access to Information Act does not apply in the Parliamentary context.
I have the authority to initiate a complaint when I am satisfied there are reasonable grounds to investigate a matter relating to requesting records under the ATIA (s. 30(3)), not for records produced in other contexts.
My investigations are conducted in private.
Q4. What are the more commonly used exemptions and are they abused?
A4. Section 19 is the most widely used exemption in the Act. According to data from the Treasury Board Secretariat:
- 2018-2019: invoked in 42% of access requests, or 52,374 times.
- 2019-2020: was invoked 62 033 times
Section 20 protects third party information:
- 20(1)(a) protects trade secrets that belong to a third party
- 20(1)(b) protects confidential financial, commercial, scientific or technical information provided to a government institution by a third party
- 20(1)(c) protects information that could have a financial impact or harm the third party’s competitive position.
- 20(1)(d) protects information that could interfere with negotiations of a third party
(For c) and d): needs to demonstrate that there is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.)
Section 21 is one of the exemptions invoked most often by institutions.
- 2018-19: 11,609
- 2019-20: 8,749
I have recommended the following:
- Subsection 21(2) of the Act should be amended to add a list of categories of information not covered by the exemption. (rec. 9)
- The 20-year-period provided for in subsection 21(1) of the Act should be reduced to 10 years. (Rec. 10)