Section 14: Questions

Statement of Test to be Met

GENERAL: Discretionary Injury Test Exemption

Examples of information which might lead to injury:

  • federal-provincial consultations, deliberations
  • strategy/tactics adopted/to be adopted by Government of Canada in the conduct of federal provincial affairs

General category of injury: to the conduct by the Government of Canada of federal provincial affairs

Relevant Questions Departmental Response Assessment

Is the information described in paragraph (a)or (b)?

  • determine applicability of these paragraphs.

If not described by paragraphs (a) or (b), is it similar in nature to information described in these paragraphs?

  • specify how.

If not similar in nature, describe how the information relates to the conduct by the Government of Canada of federal-provincial affairs.

Determine applicability of s. 14(1) general language.

   

 

Statement of Test to be Met

Injury Test - reasonable expectation of probable harm

Discretionary Exemption

Relevant Questions Departmental Response Assessment

If information relates to the conduct of federal-provincial affairs or is described in (a)or (b), describe how disclosure of the information is likely to be injurious to the conduct of federal-provincial affairs by the Government of Canada.

Assess whether there is a reasonable expectation of probable harm.

If there is a reasonable expectation of probable harm, should the record nevertheless be disclose.

Assess the grounds used by the government institution in its exercise of discretion to exempt the information from disclosure.

What is the subject matter of the information exempted?

Does the information relate to federal-provincial consultations or deliberations?

Which governments are involved?

Which departments within the federal and provincial governments are conducting the consultations/deliberations?

At what level are the consultations/deliberations being carried out?

  • high level?
  • low level?

What is the subject matter of the consultations or deliberations?

What is the objective of the consultations or deliberations?

Do the consultations or deliberations involve routine or administrative matters?

Do they relate to constitutional matters?

Do they relate to fiscal matters?

Do they relate to a specific policy initiative of the federal or provincial governments?

  • has this policy initiative been announced?
  • has it been implemented?
  • is there agreement by the federal government to consult or engage in deliberations with the province on this matter?

Is there agreement by the province to consult/ deliberate?

Is agreement to consult/deliberate being considered?

If no agreement to consult or deliberate, what is the basis of the claim that they are consulting or deliberating?

Have the consultations or deliberations begun?

  • when?

Have they concluded?

  • when?

Are they ongoing?

  • with what frequency?
  • what schedule is contemplated?

If concluded, will they resume?

  • when?

What is or was the result of the consultations or deliberations?

Have they or did they result in agreement or disagreement?

Describe any reasons for disagreement.

If they have resulted in agreement, how will the agreement be implemented?

  • when?

Has there been public announcement about the consultations or deliberations?

  • about any agreement achieved?
  • about any disagreement?
  • about the subject matter of the consultations or deliberations?

Any questions, answers or announcements in the House of Commons, Senate, Parliamentary Committees?

Has (have) the province involved made any announcements or statements on the consultations or deliberations?

  • about the subject matter of the consultations or deliberations.
  • describe.
  • ask to see.

If the consultations or deliberations have concluded, do they impact in any way on current consultations or deliberations?

  • on current negotiations, consultations or deliberations?
  • on current federal-provincial affairs?
  • on future negotiations or consultations federal-provincial affairs?
  • describe how.

How would disclosure add to this impact?

   

 

Statement of Test to be Met

Injury Test - reasonable expectation of probable harm

Discretionary Exemption

Relevant Questions Departmental Response Assessment

If information relates to the conduct of federal-provincial affairs or is described in (a)or (b), describe how disclosure of the information is likely to be injurious to the conduct of federal-provincial affairs by the Government of Canada.

Assess whether there is a reasonable expectation of probable harm.

If there is a reasonable expectation of probable harm, should the record nevertheless be disclose.

Assess the grounds used by the government institution in its exercise of discretion to exempt the information from disclosure.

What is the subject matter of the information exempted?

Does the information relate to federal-provincial consultations or deliberations?

Which governments are involved?

Which departments within the federal and provincial governments are conducting the consultations/deliberations?

At what level are the consultations/deliberations being carried out?

  • high level?
  • low level?

What is the subject matter of the consultations or deliberations?

What is the objective of the consultations or deliberations?

Do the consultations or deliberations involve routine or administrative matters?

Do they relate to constitutional matters?

Do they relate to fiscal matters?

Do they relate to a specific policy initiative of the federal or provincial governments?

  • has this policy initiative been announced?
  • has it been implemented?
  • is there agreement by the federal government to consult or engage in deliberations with the province on this matter?

Is there agreement by the province to consult/ deliberate?

Is agreement to consult/deliberate being considered?

If no agreement to consult or deliberate, what is the basis of the claim that they are consulting or deliberating?

Have the consultations or deliberations begun?

  • when?

Have they concluded?

  • when?

Are they ongoing?

  • with what frequency?
  • what schedule is contemplated?

If concluded, will they resume?

  • when?

What is or was the result of the consultations or deliberations?

Have they or did they result in agreement or disagreement?

Describe any reasons for disagreement.

If they have resulted in agreement, how will the agreement be implemented?

  • when?

Has there been public announcement about the consultations or deliberations?

  • about any agreement achieved?
  • about any disagreement?
  • about the subject matter of the consultations or deliberations?

Any questions, answers or announcements in the House of Commons, Senate, Parliamentary Committees?

Has (have) the province involved made any announcements or statements on the consultations or deliberations?

  • about the subject matter of the consultations or deliberations.
  • describe.
  • ask to see.

If the consultations or deliberations have concluded, do they impact in any way on current consultations or deliberations?

  • on current negotiations, consultations or deliberations?
  • on current federal-provincial affairs?
  • on future negotiations or consultations federal-provincial affairs?
  • describe how.

How would disclosure add to this impact?

   

 

Statement of Test to be Met

Strategy or tactics adopted / to be adopted by the Government of Canada in the conduct of federal-provincial affairs.

Relevant Questions Departmental Response Assessment

Does the information relate to federal strategy or tactics in the conduct of federal-provincial affairs?

Which governments are involved?

Which departments within the federal government are involved?

Does the information concern negotiations between a federal and provincial government?

What is the subject-matter of the negotiations?

Does it relate to routine or administrative matters?

Does it relate to constitutional matters?

Does it relate to fiscal matters?

Does it relate to specific policy initiatives of the federal or provincial government?

  • describe.

At what level are the negotiations being carried out?

  • high level?
  • low level?

At what stage are the negotiations currently being conducted?

  • are they over?
  • when were they over?
  • are they ongoing?
  • with what frequency?
  • is there a schedule for meetings?

Is it publicly known the negotiations are/were taking place?

Is there controversy associated with the negotiations?

Is the controversy known publicly?

What was the outcome of the negotiations?

  • agreement?

Is the agreement publicly known?

If there was agreement, would disclosure have an impact on future negotiations?

  • how?

Does the information describe federal strategy or tactics relating to matters other than federal- provincial negotiations?

  • describe what the strategy or tactics relate to.

Are the strategy or tactics necessitated by a federal- provincial controversy?

  • differing points of view?
  • disagreement?
  • describe.

Is the controversy, difference or disagreement publicly known?

Is it a current matter?

Does the information assess the effectiveness of current strategy, or assess strategic alternatives?

Does the information relate to current strategy or tactics?

Does it relate to strategy or tactics employed in the past?

What was the result of past strategy or tactics?

  • agreement?
  • ongoing differences?

How would disclosure of past tactics impact on current federal-provincial affairs?

Would it jeopardize past/current agreements?

  • how?

Would it hinder current discussion?

  • why?

Would disclosure limit current or future federal strategic or tactical options?

  • how?
   

 

Statement of Test to be Met

Injury Test

  • Reasonable expectation of probable harm to the conduct of federal-provincial relations.
  • Must be specific injury.
Relevant Questions Departmental Response Assessment

Specify the harm to the conduct of federal-provincial affairs likely to arise from disclosure.

Is the harm specific in nature?

Does it relate to specific negotiations?

Does it relate to specific discussions or deliberations?

Will it have a negative impact on the resolution of a particular issue?

Does the information relate to events, discussions, negotiations that are already made public?

  • by the government.
  • in the press.
  • by the provinces.
  • in the House of Commons, Senate.

If so, what additional injury is expected from disclosure?

Why would this harm occur?

Is the subject matter generally well-known?

If so, has the information been publicly confirmed or acknowledged to be true?

Is the publicly-known information based on speculation or rumours?

If so, specify the harm that would occur if the information were confirmed to be true or false (as the case may be)?

Has similar information been disclosed in the past?

Did injury to the conduct of federal-provincial affairs occur as a result?

  • describe the injury.
  • detail why it would occur.

Are the discussions, issues, negotiations or strategies current?

If not, are they concluded?

Are they stale, surpassed by events?

Must be specific injury.

How would disclosure cause injury in these situations?

Is the information available elsewhere?

If so, why would its release cause injury?

Would existing agreements, understandings or relations be re-opened or disrupted?

  • specify how/why.

Would disclosure have a negative impact on current discussions, issues, etc.?

  • are they similar in nature to the information withheld?
  • describe injury that would occur.
  • detail why it would occur.

Is there anything about the context in which the information appears that would create injury to federal-provincial affairs?

  • specify how/why.

Is (are) the provincial government concerned already aware of the information?

What further injury would be caused by disclosure?

What use would be made of the information upon its disclosure?

  • by the media.
  • by provincial governments.
  • by interest groups.

Why would such use cause injury to the conduct of federal-provincial affairs?

What kind of injury is anticipated?

Is the information inherently susceptible of misinterpretation?

  • why?
  • how would such misinterpretation be harmful to the conduct of federal-provincial affairs?

Would disclosure generate public debate about a federal-provincial matter?

If so, why would this debate harm the conduct of federal-provincial affairs?

Could the information be released with an explanatory note to minimize misinterpretation or reduce the potential harm to federal-provincial affairs?

  • if not, why not?

Are there any communications or public relations measures the federal government could take to eliminate injury to federal-provincial affairs upon disclosure?

  • if not, why not?

Review as well questions above under paragraphs 14(a),(b) and the general category under section 14.

   

 

Statement of Test to be Met

Discretion

The government institution is required to

  1. Consider disclosing the record notwithstanding it is described by section 14
  2. To consider disclosure in light of
  • the kind of injury identified in the text of the section
  • the intent of the section
  • the intent of the Act
Relevant Questions Departmental Response Assessment

Has the [head of the] government institution considered disclosing the record?

  • why was it decided not to disclose?
  • this assessment must go beyond concluding that the information is described in section 14.

See also grid on Discretionary Exemptions.

Relevant factors in this assessment by a head could include:

Whether there has been disclosure in the past.

Whether disclosure could have the effect of stabilizing situations, reassuring the public.

The degree of injury arising from disclosure.

  • if it is minimal, disclosure could be considered.

Whether there are special circumstances giving rise to the request that merit disclosure.

Disclosure as a means of enhancing public awareness of issues related to federal-provincial affairs.

Whether disclosure would add to or assist in public debate surrounding a federal-provincial issue.

Whether there is a public interest in knowing the information that exceeds the injury to the federal position that would be caused by disclosure.

  • in the province concerned.
  • in the rest of the country.
   

 

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