2015 Chapter 4: Maximizing disclosure

The purpose of the Access to Information Act is to provide a right of access to all records under the control of institutions that are subject to the Act.

The Act says that the general right of access may be restricted when necessary by limited and specific exceptions. There is also a presumption in favour of disclosure imposed on institutions.^{Footnote 1} Balancing the right of access against claims to protect certain information is at the core of the access to information regime.

The Act also requires that decisions on disclosure should be reviewed independently of government. The Commissioner and the courts provide this independent oversight.

Under the Act, many exemptions are not sufficiently limited and specific, nor are some subject to independent review. In addition, they are not generally in line with national and international norms. Moreover, the number of exemptions to the right of access has increased since the Act came into force.^{Footnote 2}

Although more requests are being made and more pages are being released in response to access to information requests, the percentage of requests resulting in all information being disclosed has declined.

 

Figure 1: Proportion of requests completed in which all information was disclosed (1999-2000 to 2013-2014)^{Footnote 3}

Text Version

Graph description: The present line graphic describes the proportion of requests closed for which all the information was disclosed for the reporting periods 1999-00 to 2013-14. The proportion of requests all disclosed went down from 40.5% in 1999-00 to 15.79% in 2009-10. In 2013-14 the proportion was back to 26.85% (or 15,675 requests). The proportions by reporting period are as follows:

Reporting period	1999-2000	2000-2001	2001-2002	2002-2003	2003-2004	2004-2005	2005-2006	2006-2007	2007-2008	2008-2009	2009-2010	2010-2011	2011-2012	2012-2013	2013-2014
Proportion	40.5%	37.5%	32.6%	29.57%	28.15%	27.10%	28.43%	23.10%	17.78%	17.95%	15.79%	19.60%	21.20%	21.60%	26.85%

In 1999–2000, 40.5 percent of all requests resulted in all information being disclosed. In 2013–2014, this number stood at 26.9 percent. 

A modern access law must be developed in the context of the Open Government initiative and the government’s commitment to be open by default.^{Footnote 4} The exemptions in the Act need to be comprehensively reviewed to maximize disclosure of information. This will result in:

• a meaningful open by default culture in the government;
• an Act that is aligned with the most progressive national and international norms; and
• an effective access to information regime that fosters transparency, accountability and citizen engagement.^{Footnote 5}

Exemptions

To protect only what requires protection, the exemptions in the Act must be limited and specific. Exemptions that are overly broad result in information being withheld when it should be disclosed. Overly broad exemptions also make the application of the Act more complex and lead to institutions applying multiple and overlapping exemptions to the same information at the same time.

To maximize disclosure, model laws promote exemptions that are:^{Footnote 6}

• injury-based;
• discretionary;
• time-limited;
• subject to a public interest override; and
• subject to independent oversight.^{Footnote 7}

Injury-based

Injury-based exemptions take into account the fact that the level of sensitivity attached to information changes as circumstances, time and perspective change. In contrast, for class-based exemptions, all that must be demonstrated is that the information falls within that class.^{Footnote 8}

Discretionary

Discretionary exemptions allow for a case-by-case assessment on disclosure. Case law in Canada has established that discretion must be exercised in a reasonable manner, taking into account all relevant factors.^{Footnote 9} For discretion to be reasonably exercised, the institution must provide evidence that it considered whether information falling within the exemption claimed could nonetheless be disclosed, depending on the specific facts of the particular request and the interests involved.^{Footnote 10} In comparison, a mandatory exemption prohibits disclosure of information once it has been determined that the exemption applies.

Time-limited

Exemptions that are time-limited create greater certainty in access laws. As soon as the time limit is reached or the specified event (such as publication) takes place, institutions may no longer invoke the exemption to withhold the information.

Public interest override

A public interest override in an access law allows for the competing interest of the public’s right to know to be balanced against the interest the exemption protects.^{Footnote 11} The decision-maker must determine if non-disclosure is necessary and proportionate as compared to the public’s interest in the information.

In making that determination, a number of factors related to the public interest in the information must be taken into account. Examples of relevant factors to consider include:

• open government objectives, such as whether the disclosure would support accountability of decision-makers, citizens’ engagement in public policy processes and decision-making, or openness in the expenditure of public funds;
• whether there are environmental, health or public safety implications; and
• whether the information reveals human rights abuses or would safeguard the right to life, liberty or security of the person.

Public interest overrides can be found in model laws, most of the national access to information laws that are among the top-10 of the Global Right to Information Rating and some provincial laws.^{Footnote 12} In addition, both the Tshwane Principles and the Organization of American States model law include a higher presumption in favour of disclosure for information related to human rights or crimes against humanity.^{Footnote 13}

Currently, the Act contains only limited public interest overrides, and these are only applicable to a few sections.^{Footnote 14}

A general public interest override must be added to the Act to ensure that the public interest in disclosure is taken into account while considering whether to apply any of the exemptions within the Act.

This override should include a non-exhaustive list of factors to be considered.

Recommendation 4.1

The Information Commissioner recommends that the Act include a general public interest override, applicable to all exemptions, with a requirement to consider the following, non-exhaustive list of factors:

• Open Government objectives;
• environmental, health or public safety implications; and
• whether the information reveals human rights abuses or would safeguard the right to life, liberty or security of the person.

Independent oversight

Exemptions to the right of access in the Act are independently reviewable. However, this oversight can be limited when information is protected by an exclusion from the coverage of the Act.

For example, it is clear that when an exemption is invoked, the Commissioner has access to all records during her investigation so that she may independently review the decision on disclosure. This is not always the case with exclusions. The exclusions in the Act differ from one to another. No two exclusions have the same wording or produce the same effects. Determining what records the Commissioner may obtain in the conduct of her investigations is assessed on a case-by-case basis.

An exclusion that limits oversight results in a weakened right of access. For this reason, model access laws recommend that all information controlled by an institution should be subject to the access law, with no exclusions for certain kinds of information.^{Footnote 15}

In light of these considerations, the Commissioner recommends removing all exclusions from the Act and replacing them with exemptions, unless an exemption already exists to protect the interest at issue.

Recommendation 4.2

The Information Commissioner recommends that all exclusions from the Act should be repealed and replaced with exemptions where necessary.

The graphic below presents the five most commonly applied exemptions between 1996–1997 and 2013–2014. They are: personal information (section 19), international affairs and defence (section 15), operations of government (section 21), law enforcement and investigations (section 16) and third party information (section 20).

Figure 2: Top 5 exemptions (1996–1997 to 2013–2014)

Text Version

This lines graphic presents the five most frequently invoked exemptions for the period 1996-1997 to 2013-2014. They are: personal information (section 19), international affairs and defence (section 15), operations of government (section 21), law enforcement and investigations (section 16) and third party information (section 20).

Exemptions in the graphic are presented as a proportion of all exemptions invoked during each reporting period. The proportions are as follows:

Reporting period	Personal information (s.19)	International affairs and defence (s.15)	Operations of government (s. 21)	Law enforcement and investigation (s.16)	Third party information (s. 20)
1996-1997	26%	4.8%	16.5%	7.4%	28%
1997-1998	32%	5%	11.8%	8.2%	23%
1998-1999	29.3%	5.3%	15.9%	7.9%	24.4%
1999-2000	28%	5%	17.6%	6.8%	26%
2000-2001	28%	5.4%	18.6%	8.1%	23.9%
2001-2002	32.6%	6.9%	16.5%	7.6%	20%
2002-2003	32.6%	7%	16.4%	8.6%	18.8%
2003-2004	32.3%	6.5%	17.8%	9.9%	15.4%
2004-2005	32.1%	7.6%	16.1%	12.7%	15.5%
2005-2006	30.5%	11.9%	15.7%	12.5%	13.3%
2006-2007	30.2%	14.5%	14.9%	11.7%	12.3%
2007-2008	29.5%	20.4%	13.8%	12%	9.2%
2008-2009	31.2%	20.2%	13.5%	12.8%	8.4%
2009-2010	33.9%	22%	11.8%	12.1%	8.1%
2010-2011	36.5%	15.4%	12.8%	13.4%	7.8%
2011-2012	36.3%	17%	12.7%	12.2%	7.5%
2012-2013	34.5%	17.7%	13.5%	11.5%	8.1%
2013-2014	32.7%	17.6%	15.8%	12.2%	8.3%

The proportion of exemptions applied under section 19 has increased from 26% in 1996–1997 to 32% in 2013–2014, with a peak of 36.5% in 2010–2011. Use of section 15 has also increased. Exemptions under this section represented 5% of all exemptions applied in 1996–1997, the proportion was 22% in 2009–2010 (with a slight decrease to 17% by 2013–2014). Use of section 16 has fluctuated by about five percentage points during this same period (from 7% in 1996–1997 to 12% in 2013–2014). There was a general downward trend in the use of section 21 between 1996–1997 and 2013–2014. However, it is believed that the decrease in 2013-2014 is due to a statistical error in the Info Source Bulletin. Finally, the proportion of exemptions applied under section 20 decreased significantly, from 28% in 1996–1997 to 8% in 2013–2014.

Information related to other governments (sections 13, 14 and 15)

The Government of Canada holds information related to its dealings with other governments. This information falls into two main categories: The government may hold information that has been obtained in confidence from another government, or it may hold information related to its positions, plans and strategies in intergovernmental negotiations and relations.

There is a public interest in protecting both kinds of information. Other governments must be able to rest assured that information communicated to the Government of Canada in confidence will indeed be kept confidential.^{Footnote 16} Without this assurance, they would be far less likely to share this kind of information.^{Footnote 17} There is also a need to protect relationships between governments. The disclosure of certain information could injure  relationships.

To protect these interests, the Act currently contains the following exemptions:

• Section 13 provides a mandatory, class-based exemption for information obtained in confidence from foreign governments, international organizations of states, governments of the provinces, municipal or regional governments and certain specific Aboriginal governments.

• Section 14 provides a discretionary, injury-based exemption for information the disclosure of which could reasonably be expected to be injurious to the conduct by the Government of Canada of federal-provincial affairs.

• Section 15 provides a discretionary, injury-based exemption for information which, if disclosed, could reasonably be expected to be injurious to the conduct of international affairs.^{Footnote 18}  

Information obtained in confidence (section 13)

This section protects confidential information belonging to other governments or international organizations of states. This information was not created by the Government of Canada and was transmitted to the Government of Canada by another government in confidence.

There is a public interest in the sharing of confidential information between governments: It fosters intergovernmental collaboration and cooperation. Other governments and organizations would be less likely to share information with Canada if they lost confidence in the ability of the Government of Canada to protect their confidences. Accordingly, the mandatory exemption found in the Act is justified.^{Footnote 19}, ^{Footnote 20}

The Act provides two limitations on this strict prohibition. Information obtained in confidence from another government or international organization of states may be disclosed if consent is obtained, or if the originating government or organization makes the information publicly available. However, there is no incentive to respond to consultation requests for consent to disclose, and in fact other governments rarely do. This leads to overuse of this exemption, particularly for historical records.

Consulting with other levels of government within Canada is generally a straightforward exercise, as the heads of these governments or institutions are easily identified and located, and most are subject to similar access regimes within their own jurisdictions. Consultations should be mandatory in these circumstances.

Recommendation 4.3

The Information Commissioner recommends requiring institutions to seek consent to disclose confidential information from the provincial, municipal, regional or Aboriginal government to whom the confidential information at issue belongs.

There are different considerations at the international level that make a mandatory obligation to consult inappropriate. International consultations can be complicated by protocols of formal diplomatic channels of correspondence, language issues or government instability. Given these considerations, at the international level, consultation should always be undertaken when it is reasonable to do so.^{Footnote 21}

Recommendation 4.4

The Information Commissioner recommends requiring institutions to seek consent to disclose confidential information of the foreign government or international organization of states to which the confidential information at issue belongs, when it is reasonable to do so.

To address the observed lack of response from other governments to requests for consent, it is necessary to require that, where consultation has been undertaken, consent is deemed to have been given if the consulted government does not respond within 60 days. It would therefore be incumbent on the government or organization whose interest is being protected to indicate that it does not wish the information to be disclosed. ^{Footnote 22}, ^{Footnote 23}

Recommendation 4.5

The Information Commissioner recommends that, where consultation has been undertaken, consent be deemed to have been given if the consulted government does not respond to a request for consent within 60 days.

The current Act provides that in circumstances where consent to disclose is given, or the information is made public, institutions may disclose the information. This exemption should be directive rather than discretionary: An institution shall not refuse to disclose information on the basis of section 13 where consent has been obtained, or where the information has been made publicly available by the originating government or organization.

Recommendation 4.6

The Information Commissioner recommends requiring institutions to disclose information when the originating government consents to disclosure, or where the originating government makes the information publicly available.

Harm to inter-governmental affairs (sections 14 and 15)

The Government of Canada holds information related to its positions, plans and strategies in negotiations and relations between itself and other governments, at both the provincial and international levels.

The interest that requires protection in this case is the government’s ability to conduct business, cooperate and negotiate across jurisdictions. This interest is protected in the Act on a discretionary basis, where the government can show that  disclosure could reasonably be expected to be injurious to the conduct of international affairs (in section 15) or federal-provincial affairs (in section 14).^{Footnote 24}

In drafting the Act, the word “affairs” was selected by the government to ensure that the protection in this exemption would extend beyond actual negotiations to also encompass positions leading up to negotiations, as well as negotiation strategies.^{Footnote 25} However, the term “affairs” is too broad to protect this interest. The word should therefore be replaced with more specific terms, such as “negotiations” and “relations.”^{Footnote 26} This is consistent with other access laws and clearly circumscribes the protection to the interests to be protected: positions taken during the course of inter-governmental deliberations, and the diplomatic conduct of relationships between governments.^{Footnote 27}

Recommendation 4.7

The Information Commissioner recommends replacing international and federal-provincial “affairs” with international and federal-provincial “negotiations” and “relations.”

To further clarify that these provisions contain a similar interest, the Commissioner recommends combining these provisions into a single exemption that protects inter-governmental negotiations and relations. This would leave a single interest protected under section 15: national security.

Recommendation 4.8

The Information Commissioner recommends combining the intergovernmental relations exemptions currently found in sections 14 and 15 into a single exemption.

National security (sections 15 and 69.1)

The Government of Canada holds a wide range of information relating to national security, from plans related to military operations to human source reports.

Recent disclosures about the surveillance activities of national security bodies have raised citizens’ concerns and resulted in calls for greater transparency. The Tshwane Principles, which offer guidance to countries on how to balance access to information with national security interests, underscore that legitimate national security interests are, in practice, best protected when the public is well informed about the state’s activities, including those undertaken to protect national security.^{Footnote 28}  Making this type of information available to the public contributes to informed debate on important issues or matters of serious interest and enhances government accountability.

National security is protected in the Act by a discretionary exemption that allows institutions to refuse to disclose this information only where potential injury can be shown to defence, or the detection, prevention or suppression of subversive or hostile activities. Although the Act contains no specific reference to “national security,” these two interests are sufficiently defined at section 15(2) so that the scope of protection for national defence is limited and specific.

However, the Commissioner’s investigations have revealed an overuse of section 15 for historical information, particularly documents that have been transferred to Library and Archives Canada (LAC). Although the Federal Court noted in the Bronskill decision that “the passage of time can assuage national security concerns”,^{Footnote 29} some of this information continues to be classified at a confidential, secret, or even top secret level, a fact that complicates the assessment of injury in the disclosure of these documents.^{Footnote 30}  

The Treasury Board of Canada Secretariat’s Security Organization and Administration Standard requires that information be “classified or designated only for the time it requires protection, after which it is to be declassified or downgraded.” The Standard also indicates that departments should provide for automatic declassification when the information is created or collected.^{Footnote 31}  Departments must develop with LAC agreements to declassify or downgrade sensitive information transferred to the control of LAC. The Standard also recommends that an automatic expiry date of 10 years should apply to secret, confidential and low-sensitive designated information. The Commissioner’s investigations have revealed that this Standard does not appear to have been implemented by institutions.

The Government’s Directive on Open Government and Action Plan speak to the removal of access restrictions or the declassification of departmental information resources of enduring value prior to transfer to LAC or as it occurs within LAC. However, the Directive and the Plan do not speak of a systematic review, nor do they talk of the implementation of a declassification process for its government records of enduring value. To provide the flexibility needed to adequately protect national security interests while maximizing disclosure, the Commissioner recommends a mandatory obligation on the part of institutions to declassify information on a routine basis.^{Footnote 32}, ^{Footnote 33}

To be clear, declassified documents could still be legitimately withheld under the national security exemption if the injury test is met. However, a routine review of documents with a view to declassification would greatly help those tasked with the determining injury or non-injury and could result in more timely access to information, particularly in historical records.^{Footnote 34}

Recommendation 4.9

The Information Commissioner recommends a statutory obligation to declassify information on a routine basis.

Certificates issued by the Attorney General (section 69.1)

In addition to section 15, the Act also includes another protection for information related to national security. Section 69.1 is a mandatory exclusion for information that has been certified as confidential under section 38.13 of the Canada Evidence Act (CEA).^{Footnote 35}

Section 38.13 of the CEA empowers the Attorney General to personally issue a certificate in connection with a proceeding for the purpose of protecting information obtained in confidence from, or in relation to, a foreign entity or for the purpose of protecting national defence or national security. The expressions “national defence” or “national security” are not defined.

When a certificate under this section is issued, it terminates all proceedings under the Act related to a complaint, including an investigation by the Commissioner, an appeal or a judicial review. After this point, the Information Commissioner has no authority to review the information in dispute or the application of the exclusion.^{Footnote 36}   

This section was added to the Act in 2001 under the Anti-terrorism Act.^{Footnote 37} To the Commissioner’s knowledge, the certification process has never been used to prevent disclosure under the Act.

There are a number of significant issues with section 69.1 when it is assessed in light of the purpose of the Act.^{Footnote 38}

• It is not subject to independent oversight, which hinders the ability to strike the right balance between the right of access and non-disclosure.
• The lack of definition for “national defence” or “national security”, as well as other ambiguities that have been identified with section 38.13 of the CEA, result in an overly broad scope to the exclusion.^{Footnote 39}
• It is unnecessary, as section 15 is adequate to protect national security.

Recommendation 4.10

The Information Commissioner recommends repealing the exemption for information certified by the Attorney General (section 69.1).

Law enforcement and investigations (section 16)

The Government of Canada holds a wide range of information related to law enforcement, including RCMP investigation files, penitentiary records, parole board files, citizenship and immigration files, and tax audit files.

Generally, the interest that section 16 protects is the enforcement of laws. While it is of public importance that law enforcement authorities’ work not be impeded by the disclosure of information, there is also an important public interest in the ability to scrutinize the activities of law enforcement bodies.

A discretionary exemption that requires evidence of a reasonable expectation of injury strikes the appropriate balance between these interests.

The scope of this exemption must be narrowed so that it protects only what is legitimately necessary. After 30 years of experience, it is clear that section 16(1)(c), which protects information which if disclosed could reasonably be expected to be injurious to the enforcement of any law, or the conduct of lawful investigations, sufficiently covers and adequately protects the law enforcement interest.

Sections 16(1)(a), 16(1)(b), and 16(3) are unnecessary and should therefore be repealed. This simpler structure would also streamline the application of this exemption by institutions and reduce the concurrent application of multiple exemptions.

The two other interests protected in this section, namely the security of penal institutions and the avoidance of illegal activity, are appropriately circumscribed by the protections in sections 16(1)(d) and 16(2) and do not require amendment.

Recommendation 4.11

The Information Commissioner recommends repealing the exemptions for information obtained or prepared for specified investigative bodies (section 16(1)(a)), information relating to various components of investigations, investigative techniques or plans for specific lawful investigations (section 16(1)(b)) and confidentiality agreements applicable to the RCMP while performing policing services for a province or municipality (section 16(3)).

Personal information (section 19)

The Government of Canada holds a significant amount of personal information. This information can be transmitted to the government voluntarily, as when a person submits comments regarding a local development project, or it can be required to be submitted, as is tax information. This information could be very sensitive, such as medical information, or fairly innocuous, such as the business contact information normally found on a business card or email signature.

The interest that requires protection here is personal privacy, which, in turn, connotes “concepts of intimacy, identity, dignity and integrity of the individual.”^{Footnote 40} This information belongs to identifiable individuals, and the risks of inappropriate disclosure may be quite serious to the individual. Therefore, protection of personal privacy warrants a mandatory prohibition on disclosure.

Not all disclosures of personal information result in an unjustified invasion of a person’s personal privacy. A balancing test that considers all of the relevant circumstances is needed in order to ensure that only information that merits protection is withheld.

Under the Act, personal information may only be disclosed where there is consent from the individual, the information is publicly available, or the disclosure is in accordance with section 8 of the Privacy Act, which sets out a list of circumstances in which a government institution may disclose personal information.^{Footnote 41} There is one circumstance that provides for an injury-based assessment. This is where, in the opinion of the head of the institution, the public interest in disclosure clearly outweighs any resulting invasion of privacy. However, this rarely-used provision requires a public interest to be identified and weighed to justify disclosure, regardless of the kind or sensitivity of the personal information at issue.^{Footnote 42}

Almost all provincial and territorial access laws contain an exception to the personal information exemption where the disclosure would not constitute an “unjustified invasion of privacy.”^{Footnote 43} The decision-maker must consider all relevant circumstances. These include, but are not limited to, criteria listed in the statute. Examples include whether the disclosure is desirable for the purpose of subjecting the activities of government to public scrutiny; whether the information is highly sensitive; and whether disclosure may unfairly damage the reputation of any person referred to in the record.

In addition, most statutes list circumstances in which disclosure of personal information is presumed to be an unjustified invasion of personal privacy. This includes, for example, personal information relating to medical history. Most statutes also list circumstances in which disclosure is presumed not to be an unjustified invasion of personal privacy. This includes, for example, personal information that discloses financial or other details of a contract for personal services between the individual and an institution.

An injury-based approach to the disclosure of personal information strikes the appropriate balance between access and privacy.^{Footnote 44} It creates a spectrum of protection, using presumptions of injury or non-injury depending on the kind of information at issue, while also allowing for these presumptions to be rebutted, based on the particular circumstances and context of the information. This spectrum ensures the protection of sensitive personal information, and maximum disclosure of non-sensitive personal information.^{Footnote 45}

Recommendation 4.12

The Information Commissioner recommends amending the exemption for personal information to allow disclosure of personal information in circumstances in which there would be no unjustified invasion of privacy.

In addition, the Commissioner’s investigations have revealed two specific instances in which the section 19 exemption for personal information requires modification: business contact information and compassionate disclosure.

Some laws that protect personal privacy specifically exclude from the definition of personal information business contact information. For example, the Personal Information and Protection of Electronic Documents Act, which establishes the rules to govern the collection, use and disclosure of personal information by the private sector, excludes from its definition of “personal information” the names, titles, business addresses and telephone numbers of an employee of an organization.^{Footnote 46} The access and privacy laws of Alberta, Ontario and New Brunswick also exclude business contact information from the definition of personal information. This information should similarly be excluded from the definition of “personal information.”

Recommendation 4.13

The Information Commissioner recommends that the definition of personal information should exclude workplace contact information of non-government employees.

In addition, many of the provincial access laws allow disclosure to the spouse or close relatives of a deceased person, as long as it would not result in an unreasonable invasion of the deceased’s privacy.^{Footnote 47} The Commissioner has encountered investigations where this information is not disclosed because a “public interest” could not be identified. It is the Commissioner’s view that the Act should explicitly allow for compassionate disclosure, as long as the disclosure is not an unreasonable invasion of the deceased’s privacy.

Recommendation 4.14

The Information Commissioner recommends including a provision in the Act that allows institutions to disclose personal information to the spouses or relatives of deceased individuals on compassionate grounds, as long as the disclosure is not an unreasonable invasion of the deceased’s privacy.

Finally, the Act currently provides that in circumstances in which consent to disclose is given, institutions may disclose the information. This is problematic in two respects. First, the Act is silent as to when an institution should seek the consent of an individual. Second, this provision has, in some instances, been interpreted to refuse disclosure even in circumstances in which the individual has consented.  To ensure that the interest protected is the personal privacy of the individual, institutions should be explicitly required to seek consent whenever it is reasonable to do so. Further, institutions should be obligated to disclose personal information where the individual to whom the information relates has consented to its disclosure.

Recommendation 4.15

The Information Commissioner recommends requiring institutions to seek the consent of the individual to whom the personal information relates, wherever it is reasonable to do so.

Recommendation 4.16

The Information Commissioner recommends requiring institutions to disclose personal information where the individual to whom the information relates has consented to its disclosure.

Third party information (section 20)

The Government of Canada collects a wide range of information from third parties, ^{Footnote 48} including trade secrets and other confidential commercial information, market research, business plans and strategies, and internal inspection and testing results. This information may be submitted voluntarily, such as in a bid for a government contract, or submitted as required by law, for example as proof of regulatory compliance. 

There is a compelling need to protect information that is provided to the government by third parties. According to the Supreme Court of Canada, “such information may be valuable to competitors and disclosing it may cause financial or other harm to the third party who had to provide it.  Routine disclosure of such information might even ultimately discourage research and innovation.”^{Footnote 49} 

Given the public interest in encouraging business development and innovation, the potentially serious economic consequences of disclosure, and the fact that third party information is not owned by the government, this is an instance in which a mandatory exemption is justified. 

However, the protection offered in section 20 must also be balanced against the need for transparency regarding public-private partnerships and the need for accountability in both government contracting practices and awards. It must also take into account the government’s regulatory function of the private sector.

Therefore, the mandatory exemption should be limited by an injury test. It should only apply to specific types of third party information where disclosure could reasonably be expected to cause significant harm to a third party’s competitive or financial position, or where disclosure could result in similar information no longer being supplied voluntarily to the institution.

The Commissioner therefore recommends a mandatory exemption for trade secrets or scientific, technical, commercial or financial information, supplied in confidence, when the disclosure could reasonably be expected to:

• significantly prejudice the competitive position or interfere significantly with the contractual or other negotiations of a person, group of persons, or organization;
• result in similar information no longer being supplied voluntarily to the institution when it is in the public interest that this kind of information continue to be supplied;
• result in undue loss or gain to any person, group, committee or financial institution or agency.

Such an amendment, when paired with the Commissioner’s recommendation that all exemptions be subject to a general public interest override, would:

• focus the exemption so that it protects certain third party information when disclosure could reasonably be expected to cause significant harm;
• streamline this exemption, thus reducing the concurrent application of multiple overlapping exemptions;
• make the protections for third party information consistent with provincial laws;^{Footnote 50} and
• in conjunction with the Commissioner’s recommendation in Chapter 3 that a third party is deemed to consent to disclosing its information when it fails to respond to a consultation request within appropriate timelines, give an incentive to third parties to provide adequate representations to institutions to establish proof that harm would result if the information were to be disclosed.

Recommendation 4.17

The Information Commissioner recommends a mandatory exemption to protect third-party trade secrets or scientific, technical, commercial or financial information, supplied in confidence, when the disclosure could reasonably be expected to:

• significantly prejudice the competitive position or interfere significantly with the contractual or other negotiations of a person, group of persons, or organization;
• result in similar information no longer being supplied voluntarily to the institution when it is in the public interest that this type of information continue to be supplied; or
• result in undue loss or gain to any person, group, committee or financial institution or agency.

The Act provides that in circumstances where consent to disclose is given by a third party, institutions may disclose the information. This exception should be directive rather than discretionary: An institution shall not refuse to disclose information on the basis of section 20 when the third party has consented to disclosure.

Recommendation 4.18

The Information Commissioner recommends requiring institutions to disclose information when the third party consents to disclosure.

The application of section 20 is narrowed when such disclosure would be in the public interest as it relates to public health, public safety or protection of the environment, and provided the public interest in disclosure clearly outweighs any loss or gain to the third party. In these instances, institutions have the discretion to disclose a third party’s information.

Given the Commissioner’s recommendation that all exemptions be subject to a general public interest override, this limited public interest override can be repealed.

Recommendation 4.19

The Information Commissioner recommends that the limited public interest override in the third party exemption be repealed in light of the general public interest override recommended at Recommendation 4.1.

The application of the exemption for third parties should be limited in one other instance. Under the Act, institutions can apply third party exemptions to protect information about grants, loans or contributions that have been given to a third party by the government (as long as the information meets the criteria of the exemption as currently constructed).

Given that grants, loans and contributions are publicly funded, the public has an interest in knowing how this money is spent. The Commissioner therefore recommends increasing the level of transparency surrounding grants, loans and contributions by providing that section 20 cannot be applied to information about them, including information related to the status of repayment and compliance with the terms (See Chapter 7 for a broader discussion on proactive disclosure related to grants, loans and contributions).

This will aid the public in tracking the types, amounts, recipients and repayment of grants, loans and contributions, and keep institutions accountable for their decisions surrounding these types of financial support.

Recommendation 4.20

The Information Commissioner recommends that the third party exemptions may not be applied to information about grants, loans and contributions given by government institutions to third parties.

Advice and recommendations (section 21)

Policy- and decision-making is at the heart of government. As this encompasses much of the daily business of government, institutions hold a vast amount of information related to policy- and decision-making.

There is a public interest in protecting the policy- and decision-making processes of government. If all policy- and decision-making information were disclosed, there is a risk that public officials may not provide full, free and frank advice. This, in turn, could impair the effective development of policies, priorities and decisions.

There is an equally important public interest in providing citizens with the information needed to be engaged in public policy and decision-making processes, to have a meaningful dialogue with government, and to hold government accountable for its decisions.

Section 21 is a class-based, discretionary exemption that protects a wide range of information relating to policy- and decision-making. However, the exemption in its current form extends far beyond what must be withheld to protect the provision of free and open advice. The breadth of this exemption must be narrowed to strike the right balance between the protection of the effective development of policies, priorities and decisions on the one hand, and transparency in decision-making on the other.

First, the section should only protect information which, if disclosed, could reasonably be expected to be injurious to the provision of free and open advice and recommendations.^{Footnote 51}

Recommendation 4.21

The Information Commissioner recommends adding a reasonable expectation of injury test to the exemption for advice and recommendations.

Second, the Act should extend the list of explicit examples of information that will not fall within the scope of the exemption.^{Footnote 52}

At present the list is limited to:

• an account or a statement of reasons for a decision that is made in the exercise of a discretionary power or an adjudicative function and that affects the rights of a person; and
• a report prepared by a consultant or an adviser who was not a director, an officer or an employee of a government institution or a member of the staff of a minister of the Crown at the time the report was prepared.^{Footnote 53}

The list should also include factual materials, public opinion polls, statistical surveys, appraisals, economic forecasts and instructions or guidelines for employees of a public institution.^{Footnote 54}

Recommendation 4.22

The Information Commissioner recommends explicitly removing factual materials, public opinion polls, statistical surveys, appraisals, economic forecasts, and instructions or guidelines for employees of a public institution from the scope of the exemption for advice and recommendations.

Third, in light of the public interest in citizen engagement and the government’s Open Government commitments, the 20-year time frame included in section 21 is unnecessarily long.^{Footnote 55} This time limit should be reduced to provide certainty as to when the exemption can no longer be applied.

Recommendation 4.23

The Information Commissioner recommends reducing the time limit of the exemption for advice and recommendations to five years or once a decision has been made, whichever comes first.

Solicitor-client privilege (section 23)

Institutions frequently engage the services of legal professionals.  As a result, institutions hold information that stems from these relationships, such as legal opinions, factums of law, routine communications and fee invoices.

The Act contains an exemption to protect information that is subject to solicitor-client privilege. Solicitor-client privilege is not defined in the Act; however, the courts have clarified that the exemption covers both legal advice privilege and litigation privilege.^{Footnote 56}

Legal advice privilege recognizes that the justice system depends on the vitality of full, free and frank communication between those who need legal advice and those who are best able to provide it. The resulting confidential relationship between solicitor and client is a necessary and essential condition of the effective administration of justice and the public’s confidence in the legal system.^{Footnote 57} Legal advice privilege is of unlimited duration.

Litigation privilege, in contrast, is aimed at ensuring the efficacy of the adversarial process by creating a zone of privacy that allows litigants to “prepare their contending positions in private, without adversarial interference and without fear of premature disclosure.”^{Footnote 58} It applies to documents that were created for the dominant purpose of existing, contemplated, or anticipated litigation. Litigation privilege is of temporary duration, automatically coming to an end upon the termination of the litigation that gave rise to its existence.

Given the importance of the protection of solicitor-client privilege to the proper functioning of the legal system, a class-based, discretionary exemption for solicitor-client privilege should be maintained.  

Unlike litigation privilege, the indefinite application of section 23 as it relates to legal advice privilege in the public sector is problematic.

Contrary to organizations in pursuit of private goals, the government’s mandate is to pursue the public interest.  This public interest aspect of government administration justifies differences in the operation of solicitor-client privilege. The government’s public interest mandate provides heightened incentive to waive privilege to ensure greater transparency and accountability.^{Footnote 59} Therefore, factors such as whether the protection is still relevant, whether the advice is old and outdated, or the historical value of the advice carry more weight in favour of disclosure.

The Commissioner therefore recommends that this exemption, as it applies to the legal advice privilege, be subject to a time limit of 12 years after the last administrative action on the file.^{Footnote 60} This is consistent with the practice at the Department of Justice to transfer to LAC legal opinions 12 years after the last administration action on the file because the information no longer has any business value.^{Footnote 61}

Recommendation 4.24

The Information Commissioner recommends imposing a 12-year time limit from the last administrative action on a file on the exemption for solicitor-client privilege, but only as the exemption applies to legal advice privilege. 

The Commissioner has observed that section 23 is frequently applied to withhold legal counsel’s billing information.

In common law, this information is presumed privileged. However, in the case of aggregate total amounts billed, this presumption of privilege can frequently be rebutted on the grounds that the information is neutral and, as such, the disclosure of total billing amounts would not prejudice the interest that solicitor-client privilege is intended to protect.^{Footnote 62}

Given that legal fees associated with the work done by counsel retained by institutions are funded by taxpayers, the Commissioner recommends that section 23 cannot be applied to aggregate total amounts of fees paid. This will help the public track how much money institutions spend on legal issues and keep institutions accountable for their decisions to engage legal services.

Recommendation 4.25

The Information Commissioner recommends that the solicitor-client exemption may not be applied to aggregate total amounts of legal fees.

Cabinet confidences (section 69)

Cabinet is responsible for setting the policies and priorities of the Government of Canada. In doing so, ministers must be able to discuss issues within Cabinet privately, so as to arrive at decisions that are supported by all ministers publicly, regardless of their personal views. The need to protect the Cabinet decision-making or the deliberative process is well established under the Westminster system of Parliament, and is known as Cabinet confidences. This need for protection has been recognized by the Supreme Court of Canada.^{Footnote 63}

At present, Cabinet confidences are excluded from the right of access under the Act, subject to certain limited exceptions. What is described as a Cabinet confidence in section 69(1) of the Act is overly broad and goes beyond what is necessary to protect the interest that the exclusion is intended to address – namely, Cabinet’s deliberative process.

Section 69(1) of the Act sets out a non-exhaustive list of types of records that are to be considered Cabinet confidences.  This list includes records not traditionally considered to be part of the Cabinet paper system.  For instance, pursuant to section 69(1)(g) even records containing information about the content of any Cabinet record are to be excluded.

 

Section 69(3) sets out some exceptions to the Cabinet confidences exclusion. According to this provision, discussion papers are not excluded if the decision to which the discussion paper relates has been made public or, if the decision has not been made public, when four years have passed since the decision was made.^{Footnote 64} However, as a practical matter, these exceptions may be unlikely to result in the disclosure of additional information. This is because what was known as a discussion paper in 1983 no longer exists as a result of changes to the Cabinet paper system.^{Footnote 65}

Also problematic is the fact that Cabinet confidences are currently excluded from the Act, and not just exempted from the right of access.  This is unlike the protection afforded to Cabinet confidences in all but one Canadian province, as well as in Australia, the U.K. and New Zealand.^{Footnote 66}

The fact that the Act excludes Cabinet confidences has significant repercussions on the Commissioner’s ability to provide effective oversight when investigating a complaint that concerns a government institution’s refusal to disclose records based on section 69(1). Based on current case law, the Commissioner cannot require that records claimed to be excluded under section 69(1) be provided to her office so that she can independently assess whether the records are in fact Cabinet confidences.^{Footnote 67}  This means that the Commissioner cannot actually see or consider the substance of what is claimed to be excluded.  Instead, the Commissioner must assess whether the exclusion applies based on tombstone descriptions of the records or circumstantial evidence concerning the record’s content.

The Commissioner recommends that Cabinet confidences be protected by a mandatory exemption when disclosure would reveal the substance of deliberations of Cabinet and, as is the case for all exemptions, that this exemption be subject to a general public interest override.^{Footnote 68} Such an exemption will sufficiently protect the interest that is intended to be protected, while ensuring that:

• claims of Cabinet confidences are subject to effective independent oversight;
• disclosure is based on the substance of the information at issue instead of the record’s format or title;
• the protection afforded to Cabinet confidences is consistent with the majority of national and international access laws.

Recommendation 4.26

The Information Commissioner recommends a mandatory exemption for Cabinet confidences when disclosure would reveal the substance of deliberations of Cabinet.

Most of the provincial access laws list types of information that cannot be withheld as a Cabinet confidence. A parliamentary committee and the task force mandated with reviewing the Act in 2002 also recommended that the Act mirror this approach.^{Footnote 69} Examples of the types of information that cannot be withheld include:

• information, the purpose of which is to provide background explanations or analysis to Cabinet for its consideration in making a decision, if the decision has been made public, has been implemented or more than a certain amount of time has passed since the decision was made or considered;
• purely factual or statistical information provided to Cabinet;
• analyses of problems or policy options that do not contain subjective information; and
• information in a record of a decision made by Cabinet when acting in its capacity as an appeal body.^{Footnote 70}

Several jurisdictions in Canada that contain an exemption for Cabinet records provide that the exemption cannot be applied to records that are older than 15 years, rather than 20, as currently found in the Act.^{Footnote 71}

Finally, the access laws in Saskatchewan, Manitoba and Ontario provide that the exemption for Cabinet confidences cannot be applied when the Cabinet for which the record has been prepared consents to access being given.^{Footnote 72} 

To facilitate citizens’ participation in the government’s decision-making process, the government needs to be more forthcoming with the information it relies upon to make decisions. The exemption for Cabinet confidences should allow for maximum disclosure. To accomplish this, the exemption should not apply to information other than what is necessary to protect Cabinet’s deliberative process and should be of limited duration.^{Footnote 73}

Recommendation 4.27

The Information Commissioner recommends that the exemption for Cabinet confidences should not apply:

• to purely factual or background information;
• to analyses of problems and policy options to Cabinet’s consideration;
• to information in a record of a decision made by Cabinet or any of its committees on an appeal under an Act;
• to information in a record that has been in existence for 15 or more years; and
• where consent is obtained to disclose the information.

Given the sensitivity attached to Cabinet confidences, the Commissioner recommends that investigations of refusals to disclose pursuant to this exemption be delegated to a limited number of designated officers or employees within her office. Such a requirement would be consistent with section 59(2) of the Act, which limits the number of officers or employees who may investigate complaints related to international affairs or defence.

Recommendation 4.28

The Information Commissioner recommends that investigations of refusals to disclose pursuant to the exemption for Cabinet confidences be delegated to a limited number of designated officers or employees within her office.

Creating a law of general application

Restrictions to the right of access found in other laws

Section 4 of the Act provides that, notwithstanding any other act of Parliament, every person has a right to access and shall, on request, be given access to any record under the control of an institution. This section gives the Act precedence over any other act of Parliament. However, section 24 requires government institutions to withhold information protected by a series of statutory provisions listed in Schedule II of the Act (for example, sections of the Statistics Act and Criminal Code).^{Footnote 74} 

In addition, the precedence of the Act over any other act of Parliament may be impaired when recent legislation includes language intended to prevent disclosure of information, by using language such as “despite the Access to Information Act.”^{Footnote 75}

Schedule II and the laws that contain language that is intended to supersede the Act affect the general right of access to government information. These provisions make it more difficult to understand what information can be obtained because determining whether or not the information falls within the mandatory exemption set out in section 24 frequently involves an analysis of complex provisions incorporated from other statutory regimes into the Act. 

Schedule II has not been comprehensively reviewed since the Act came into force. Moreover, the number of provisions listed in Schedule II is growing. There were 40 provisions in 33 statutes in 1983. This number has now doubled – as of 2015, Schedule II contains 81 provisions listed in 58 statutes.^{Footnote 76}

In addition, many of the provisions listed in Schedule II or found in other laws may not be necessary.^{Footnote 77} In many instances, general exemptions already available in the Act adequately protect the information at issue.^{Footnote 78}

It is also unclear to what extent the Commissioner can exercise her independent oversight over the application of the provisions listed in Schedule II. For example, when a provision from another Act listed in Schedule II also includes an alternative method for accessing information, case law suggests that a requester may need to pursue disclosure under that statute, rather than under the Act.^{Footnote 79}

The result of these issues is that the right of access is diluted by a regime that is complex and not comprehensive. For this reason, repealing section 24 and Schedule II has repeatedly been recommended by information commissioners and Parliamentarians.^{Footnote 80}

To address these issues, a comprehensive review of all of the provisions listed in Schedule II or of provisions in other laws that limit the right of access must be undertaken. Any information that can be adequately protected by a general exemption that already exists in the Act should be repealed. For any information that would not be protected by a general exemption, a new exemption that is specific and limited should be added to the Act. These should be constructed in line with the considerations discussed at the beginning of this chapter.^{Footnote 81}

The Commissioner expects that the necessity for new exemptions will arise only in very limited circumstances. Any review and decision to add a new exemption should be made in consultation with the Commissioner in an advisory capacity (See her recommendation in Chapter 5).

Recommendation 4.29

The Information Commissioner recommends a comprehensive review, made in consultation with the Information Commissioner, of all of the provisions listed in Schedule II and any legislation that otherwise limits the right of access. Any provision covered by the general exemptions in the Act should be repealed.

Recommendation 4.30

The Information Commissioner recommends that new exemptions be added to the Act, in consultation with the Information Commissioner, where the information would not be protected by a general exemption that already exists in the Act.

Recommendation 4.31

The Information Commissioner recommends that section 24 and Schedule II be repealed.

Exemptions and exclusions for institutions brought under the coverage of the Act as a result of the Federal Accountability Act

In 2006, the coverage of the Act was extended to a number of Crown corporations, agents of Parliament, foundations and a series of other organizations as a part of the Federal Accountability Act (FedAA).^{Footnote 82}

Crown corporations are corporations owned or controlled by the government.  They may operate in a competitive market and benefit from direct or indirect public funding.  Examples are the Canadian Broadcasting Corporation, Canada Post Corporation and VIA Rail.

Agents of Parliament carry out specific statutory mandates that require them to conduct investigations, audits and other compliance activities in relation to government institutions and individuals.  Examples are the Information Commissioner, the Auditor General and the Privacy Commissioner.

The FedAA added a number of exemptions and exclusions to the Act.  In most instances these new limitations protect information that may already fall within existing exemptions.  These changes introduced a patchwork regime of protection to the Act.

The following table sets out the new exemptions: seven are mandatory exemptions without the need to demonstrate injury from disclosure, are not time limited and contain no public interest or consent overrides. Four exemptions are discretionary but contain no injury test and one protects records for 15 years. It also included two new institution-specific exclusions.

Most of the information that falls within these new limitations would be subject to exemptions in the Act that apply to all government institutions. These additions have introduced an increased level of complexity to the Act and led to institutions concurrently applying multiple and overlapping exemptions for the same information.

When the Federal Accountability Act was introduced, the Commissioner at that time argued that most of the new limitations were not necessary and should be repealed.^{Footnote 84}

These institution-specific exemptions and exclusions should be reviewed to determine whether they are necessary to protect the interests in question.

Recommendation 4.32

The Information Commissioner recommends a comprehensive review, made in consultation with the Information Commissioner, of the exemptions and exclusions for institutions brought under the coverage of the Act as a result of the Federal Accountability Act.