Section 16: Questions

16(1) The head of a government institution may refuse to disclose any record requested under this Act that contains

(a) Information obtained or prepared by any government institution, or part of any government institution, that is an investigative body specified in the regulations in the course of lawful investigations pertaining to

  1. The detection, prevention or suppression of crime,
  2. the enforcement of any law of Canada or a province, or
  3. activities suspected of constituting threats to the security of Canada within the meaning of the Canadian Security Intelligence Service Act,

If the record came into existence less than twenty years prior to the request;

(b) Information relating to investigative techniques or plans for specific lawful investigations;

(c) information the disclosure of which could reasonably be expected to be injurious to the enforcement of any law of Canada or a province or the conduct of lawful investigations, including, without restricting the generality of the foregoing, any such information

  1. Relating to the existence or nature of a particular investigation,
  2. that would reveal the identity of a confidential source of information, or
  3. that was obtained or prepared in the course of an investigation; or

(d) Information the disclosure of which could reasonably be expected to be injurious to the security of penal institutions.

16(2) The head of a government institution may refuse to disclose any record requested under this Act that contains information that could reasonably be expected to facilitate the commission of an offence, including, without restricting the generality of the foregoing, any such information

  1. On criminal methods or techniques;
  2. that is technical information relating to weapons or potential weapons; or
  3. on the vulnerability of particular buildings or other structures or systems, including computer or communication systems, or methods employed to protect such buildings or other structures or systems.

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.

16(4) For the purposes of paragraphs (1)(b) and (c), 'investigation' means an investigation that

  1. Pertains to the administration or enforcement of an Act of Parliament;
  2. is authorized by or pursuant to an Act of Parliament; or
  3. is within a class of investigations specified in the regulations.

Paragraph 16(1)(a)

Information obtained or prepared by any government institution, or part of any government institution, that is an investigative body specified in the regulations in the course of lawful investigations pertaining to

Statement of Test to be Met

Relevant Questions Departmental Response Assessment

Which investigative body obtained or prepared the record?

Is this investigative body named in Schedule I, Access Regulations?

Investigative bodies named in Schedule I, Access Regulations are:

  1. Canada Ports Corporation Police and Security, Department of Transport.
  2. Canadian Forces Military Police.
  3. Canadian Security and Intelligence Service.
  4. Director of Investigation and Research, Department of Consumer and Corporate Affairs.
  5. Intelligence Division, Department of National Revenue (Customs and Excise).
  6. Preventive Security Division, Securities Branch, Canadian Penitentiary Service.
  7. Royal Canadian Mounted Police.
  8. Special Investigations Division, Department of National Revenue (Taxation).
  9. Special Investigations Unit, Department of National Defence.

Look for an indication on the record or other evidence that document was prepared or obtained by these organizations.

   

 

Statement of Test to be Met

Record m be prepared or obtained in the course of lawful investigations.

Relevant Questions Departmental Response Assessment

What statutory provision authorizes the investigation?

What are the powers conferred on the investigators?

Does the record relate to the exercise of one of these powers?

Has the investigation been conducted in accordance with the powers set out in the statute?

Have the procedural requirements for conducting the investigation been met?

Have necessary judicial appointments been made?

Have necessary search warrants, judicial authorizations been obtained?

Do other compliance measures exist in the statute?

Have these measures been taken?

If these measures have been taken, what activity is now being investigated?

Is this activity being investigated under the statutory provision set out above?

Does the statutory power relied on by the Department relate to an investigation for the purposes set out in 16(1) (a)(i)-(iii)?

Does the record relate to information gathering or the conduct of the investigation?

Was the information or evidence gathered legally?

Was the conduct of the investigation legal?

If not, has the information been used in the investigation?

What does it relate to?

Has it been excluded by a court or other body?

   

 

Statement of Test to be Met

Investigations must pertain to:

  • Detection, prevention or suppression of crime.
Relevant Questions Departmental Response Assessment

Does the investigation relate to the detection, prevention or suppression of crime?

What crime is involved or suspected?

What are the circumstances giving rise to the investigation?

What is the activity being investigated and is it criminal activity?

What provision of the Criminal Code is involved?

   

 

Statement of Test to be Met

Activities suspected of constituting threats to the security of Canada.

Relevant Questions Departmental Response Assessment

Is the activity being investigated described in section 2, Canadian Security Intelligence Service Act?

CSIS Act , s. 2: "threats to the security of Canada" means:

  1. espionage or sabotage that is against Canada or is detrimental to the interests of Canada or activities directed toward or in support of such espionage or sabotage,
  2. foreign influenced activities within or relating to Canada that are detrimental to the interests of Canada and are clandestine or deceptive or involve a threat to any person,
  3. activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political objective within Canada or a foreign state, and
  4. activities directed toward undermining by covert unlawful acts, or directed toward or intended ultimately to lead to the destruction or overthrow by violence of, the constitutionally established system of government in Canada.

But does not include lawful advocacy, protest or dissent, unless carried on in conjunction with any of the activities referred to in paragraphs (a) to (d). 1984, c. 21, s. 2.

   

 

Statement of Test to be Met

Relevant Questions Departmental Response Assessment

Is a specific investigation being conducted?

What does the investigation relate to?

When did it start?

Has it been completed?

Is the investigation in the nature of on going 'intelligence'?

Who is the target of the intelligence gathering?

Is section 15 being claimed?

Does the investigation involve specific criminal activity, threats to the security of Canada or alleged breaches of other statutes?

   

 

Statement of Test to be Met

Records can be obtained or prepared

Relevant Questions Departmental Response Assessment

Who prepared the record in question?

Was it prepared by an investigative body set out in Schedule I?

If not, was the record obtained by an investigative body set out in schedule I?

For what purpose did the investigative body obtain the record?

Did the investigative body obtain the record for use in its investigation?

Did the investigative body use the record in the course of its investigation?

   

 

Statement of Test to be Met

Record must be obtained or prepared in the course of investigations.

Relevant Questions Departmental Response Assessment

When was the record prepared?

Was it prepared during an investigation?

Was it prepared for use in the investigation?

When did the investigation begin?

Was the record used in other investigations?

  • When did these investigations begin?
  • How was the record used during the investigation?

What institution has control of the record?

Is the institution an investigatory body in Schedule I, Regulations?

If not, how did the institution get the record?

If it was provided by an investigatory body in Schedule I?

  • Did the investigatory body obtain or prepare the information for an investigation it was conducting?
  • Why was it given to the government institution?
   

 

Statement of Test to be Met

20 year limit on the age of the record

  • assess age as of the date of the request
Relevant Questions Departmental Response Assessment

What date was the record prepared?

If the record has been used in other investigations, has paragraph 16(1)(c) been claimed?

   

 

Statement of Test to be Met

Discretionary Exemption (see below at text for section 16(1))

Relevant Questions Departmental Response Assessment

Has the investigation concluded?

Have the sanctions or proceedings resulting from the investigation been imposed?

  • Was this made public?

Was the information used in public court proceedings

Was it made public at the time?

What harm would result from disclosure now?

   

Subsection 16(4)

For the purposes of paragraphs (1)(b) and (c), 'investigation' means an investigation that

  1. pertains to the administration or enforcement of an Act of Parliament;
  2. is authorized by or pursuant to an Act of Parliament; or
  3. is within a class of investigations specified in the regulations. 1980-81-82-83, c. 111, Sch. I "16"; 1984, c. 21, s. 70.

Schedule II (s. 10) CLASSES OF INVESTIGATIONS

  1. Investigations by a Fact Finding Board established by the Department of Transport to investigate air traffic control where it has been alleged that owing to a system deficiency
    1. flight safety may have been jeopardized; or
    2. less than the minimum required separation between aircraft may have existed.
  2. Investigations by a Flight Service Station Review Committee established by the Department of Transport to investigate reported occurrences relating to aviation safety where
    1. procedures or actions or a lack thereof;
    2. systems failure; or
    3. other causes
      have brought the reliability of a Flight Service Station of the Flight Service Station System into question.
  3. Canadian Forces flight safety accident investigations other than those conducted in the form of a board of inquiry or summary investigation under the National Defence Act.
  4. Investigations by or under the authority of the Canadian Forces Fire Marshall for the purpose of determining the cause of a fire, other than those conducted in the form of a board of inquiry or summary investigation under the National Defence Act.
  5. Investigations by the Special Inquires Unit of the Inspector General's Branch of the Canadian Penitentiary Service.

 

Statement of Test to be Met

Investigative technique or plans for investigations in s. 16(1)(b) must relate to matters set out in s. 16(4)

Relevant Questions Departmental Response Assessment

Does the record describe an investigative technique or plans for an investigation?

If so, is the investigative technique used in investigations described in subsection 16(4)?

Is the planned investigation an investigation described in subsection 16(4)?

What paragraph of subsection 16(4) does the investigation fall under?

   

 

Statement of Test to be Met

Investigations in s. 16(1)(c) must be investigations described in s. 16(4).

Relevant Questions Departmental Response Assessment

If paragraph 16(1)(c) is claimed, does the record relate to the enforcement of a law of Canada or the conduct of lawful investigations?

If it relates to the conduct of lawful investigations, is the investigation one which is described in subsection 16(4)?

What paragraph in subsection 16(4) is claimed to apply?

   

 

Statement of Test to be Met

Investigation must pertain to

  • administration
  • enforcement or
  • be authorized by an Act of Parliament
Relevant Questions Departmental Response Assessment

Under what statute is the investigation being conducted?

Is this a federal statute?

Under what statutory provision is the investigation taking place?

Does this statutory provision confer power to investigate?

Does the statutory provision confer power on the Minister to take such measures as are necessary to administer a department or program? (i.e., a plenary power)

If so, what statutory objectives are contained in the legislation?

Does the investigation relate to one of the statutory objectives?

What enforcement provision of the legislation is relied on?

Is the investigation specifically authorized by a provision in the statute?

Does the statutory provision limit the investigation in any way?

  • Does it limit the matter to be investigated?
  • Does it impose time limitations?
  • Does it describe investigatory powers of the agency?
  • If so, what are these powers?
  • Has the investigation been conducted in accordance with these powers?

Is the action being taken by the agency 'investigatory' in nature?

Does the investigation pertain to the enforcement of an Act of Parliament?

If so, is the activity described an 'enforcement' activity?

  • Has a statutory sanction been imposed?
  • If so, what does the sanction consist of?
  • Has an Order for Direction under the statute been issued?
  • At what stage is the enforcement activity?

Does the activity described in the record relate to voluntary measures to obtain compliance with the statutory objectives?

Are the voluntary compliance measures being taken mandated by the statute?

Obtain an description of the enforcement process or the voluntary compliance process.

  • What steps are taken?
  • What procedure is used?
   

 

Statement of Test to be Met

Investigation must be conducted in a regulatory capacity.

Relevant Questions Departmental Response Assessment

In what capacity is the agency undertaking the investigation?

Is the agency investigating in its regulatory capacity?

Is the agency investigating in its capacity as an employer?

Does the record involve an internal investigation by the Department about an employment-related matter?

If so, on what basis does the Department claim that subsection 16(4) applies?

Was the investigation undertaken by the Department in order to respond to a complaint under the Canadian Human Rights Act?

If so, was this investigation taken solely as a result of the complaint?

Was the investigation undertaken as a result of an internal complaint?

If the record was created as the result of an internal investigation was it provided to other investigatory bodies?

  • i.e., Canadian Human Rights Act investigators.
  • Public Service Commission investigators.
   

 

Statement of Test to be Met

Investigation must be within a class specified in Schedule II, Access Regulations

Relevant Questions Departmental Response Assessment

Does the record relate to an investigation described in Schedule II, Access Regulations?

If so, what item in Schedule II describes the investigation?

   

 

Statement of Test to be Met

Air traffic control system deficiencies

  • must jeopardize air safety
  • must involve less than minimum separation
Relevant Questions Departmental Response Assessment

Is the investigation conducted by a Fact-Finding Board to investigate the air traffic control system?

Was the Fact-Finding Board established by the Department of Transport?

When was it established?

Under whose direction or order was it established?

What is the purpose of the investigation?

Has a system deficiency in the air traffic control system been alleged?

What does the alleged system deficiency consist of?

Has there been an allegation that flight safety may have been jeopardized?

What does this allegation consist of?

How does the allegation relate to flight safety?

Has there been an allegation that less than the minimum required separation between aircraft may have existed?

What does this allegation consist of ?

Where did this occurrence take place?

When did it take place?

Which aircraft were involved?

Is there a specific instance of jeopardizing flight safety or loss of separation that is being investigated?

  • If so, specify the incident.
  • If not, specify the where the air traffic control system deficiency is alleged to have taken place.
  • Describe how the system deficiency may have jeopardized flight safety or caused a loss of separation.
   

 

Statement of Test to be Met

Flight Service Station Review Investigations

  • must be investigating reported occurrences relating to aviation safety
  • occurrences must bring into question reliability of Flight Service Station System
Relevant Questions Departmental Response Assessment

Does the record relate to an investigation by a Flight Service Station Review Committee?

Was this Committee established by the Department of Transport?

What was the Committee investigating?

Was the Committee investigation a reported occurrence relating to aviation safety?

Where, when, who reported the occurrence?

What did the occurrence involve?

Is the Committee examining procedures or actions taken by a Flight Service Station?

Is the Committee examining a systems failure at a Flight Service Station?

If not, what aspect of a Flight Service Station operation is the Committee examining?

How is the reliability of the Flight Service Station or System then brought into question?

   

 

Statement of Test to be Met

Canadian Forces flight safety accident investigations

  • must be other than boards of inquiry under National Defence Act
Relevant Questions Departmental Response Assessment

Does the record relate to a Canadian Forces flight safety accident investigation?

Does the record relate to an investigation by a board of inquiry or summary investigation under the National Defence Act?

  • If so, has paragraph 16(1)(a) been claimed?
  • If not, what accident has occurred?

Did that accident involve a Canadian Forces aircraft?

Does the record relate to an investigation being conducted by the Canadian Forces Fire Marshall?

Has an investigation about the same matter been conducted by a board of inquiry or summary investigation?

  • If so, was this record used in that investigation?
  • If so, was paragraph 16(1)(a) claimed?

Did the investigation involve determining the cause of a fire?

Where did the fire take place?

Did it take place at a Canadian Forces base or installation?

   

 

Statement of Test to be Met

Special Inquiries Unit, Inspector General Branch of Canadian Penitentiary Service

Relevant Questions Departmental Response Assessment

Does the record relate to a investigation by the Special Inquiries Unit, Inspector General's Branch, and Canadian Penitentiary Service?

What did this investigation consist of ?

Is there any other statutory provision under which the investigation could take place?

If so, what is this provision?

   

Paragraph 16(1)(b)

  • Information relating to investigative techniques or plans for specific lawful investigations;

 

Statement of Test to be Met

Investigative techniques must be used for investigations described in s.16(4)

Relevant Questions Departmental Response Assessment

Does the record describe an investigative technique or plans for an investigation?

  • If so, is the technique used in investigations described in subsection 16(4)?

Is the planned investigation an investigation described in subsection 16(4)?

See above for questions relating to subsection 16(4).

   

 

Statement of Test to be Met

  • Investigative techniques can relate to investigations in general
  • must show technique is used in a type of investigation
Relevant Questions Departmental Response Assessment

What investigative technique does the record describe?

Is the technique used in the conduct of investigations?

What kind of investigations is the technique used in?

Has the technique been used in the past?

For how long has the technique been used?

Is the technique used currently?

How often do the type of investigations for which the technique is used occur?

When is the last time the technique was used?

Is the technique being used in any ongoing investigations?

  • how many?
  • describe.
   

 

Statement of Test to be Met

Techniques include:

  • procedure
  • follow-up
  • verification
  • conduct
  • must not be generally known
Relevant Questions Departmental Response Assessment

What role does the technique play in the investigation?

How does the technique advance or assist in the investigation?

Is it used to gather information?

Is it a technique to determine procedure in investigation?

Is it used to assist in follow-up?

Is it used to verify information obtained in an investigation?

What equipment or systems are employed in the technique?

Is the technique generally known to the public?

  • does it involve obvious fact finding activity?

Does the record describe an investigative technique or does it relate more to a description of what occurred in a particular investigation?

Will the investigating agency's methodology become known if the document is disclosed?

Would disclosure result in the agency having less use for the technique?

  • how?

If not, what is the basis for asserting that the information relates to a 'technique'?

   

 

Statement of Test to be Met

Investigative Plans

  • must have a specific investigation planned
  • must be a lawful investigation
Relevant Questions Departmental Response Assessment

Does the record describe plans for investigations?

Is a specific investigation contemplated?

What is the investigation that is contemplated?

Does the record relate to plans for an ongoing investigation?

Is this investigation general or specific in nature?

Does the investigation have a specific objective?

Does the investigation have targets?

  • who or what are these targets?

Is the investigation authorized or within the powers conferred by the Federal legislation described in subsection 16(4)?

For questions relating to subsection 16(4) please see above.

   

 

Statement of Test to be Met

  • Plan can relate to ongoing or contemplated investigations.
  • Must be reasonable basis to conclude investigation will be conducted.
Relevant Questions Departmental Response Assessment

Do the plans relate to an ongoing investigation?

Does the record describe the next steps or plans for advancing the ongoing investigation?

  • how?

If the investigation is not ongoing, does the record describe plans for a contemplated investigation?

When is this investigation contemplated to begin?

What will the investigation be about?

Is there any contingency which may cause the investigation not to take place?

  • What is this contingency?
  • What is the likelihood that the investigation will not go ahead?

When will a decision be made about whether the investigation will proceed?

   

 

Paragraph 16(1)(c)

Information the disclosure of which could reasonably be expect to be injurious to the enforcement of any law of Canada or a province or the conduct of lawful investigations, including, without restricting the generality of the foregoing, any such information

  1. relating to the existence or nature of a particular investigation;
  2. that would reveal the identity of a confidential source of information; or
  3. that was obtained or prepared in the course of an investigation.

Statement of Test to be Met

Includes information injurious to the enforcement of a law of Canada or a province

Relevant Questions Departmental Response Assessment

Does the record contain information relating to the enforcement of a law of Canada or the law of a province?

What legislation is involved?

   

 

Statement of Test to be Met

Information injurious to the conduct of lawful investigations

  • [federal laws only]
Relevant Questions Departmental Response Assessment

Does the record relate to the conduct of lawful investigations?

Under what statute was the investigation conducted?

Is this is a Federal statute?

   

 

Statement of Test to be Met

Enforcement of a law of Canada or a province

Relevant Questions Departmental Response Assessment

If the record relates to enforcement of a law of Canada or a province:

  • What is the subject matter of the enforcement activity?
  • Does the enforcement activity take place under the statute?

Will the enforcement activity result in possible imposition of sanctions?

  • What do these sanctions consist of?
  • Who is the target of the enforcement activity?

If the activity does not result in possible sanctions, on what basis does the government institution claim it is enforcement activity?

See above under subsection 16(4) for questions relating to enforcement.

Does the activity relate to seeking voluntary compliance by a regulated individual?

  • If so, has the compliance been achieved?

If voluntary compliance is being sought, what is the basis of the claim that enforcement activity is involved?

   

 

Statement of Test to be Met

Conduct of lawful investigations

  • must have a specific investigation
  • investigation must be legal
  • conduct of investigation must be legal
Relevant Questions Departmental Response Assessment

If the record relates to the conduct of investigations, what investigation is involved?

Under what statute did the investigation take place?

Did the investigation relate to a particular matter or was it general in nature?

If it was general in nature, how does it relate to the conduct of a specific investigation?

Was the information used in a number of related investigations?

What are the statutory powers conferred on the investigating body?

Where the statutory powers complied?

Was the investigation conducted legally?

Does the record relate to information gathering or the conduct of the investigation?

Was the information or evidence gathered legally?

Was the conduct of the investigation legal?

  • If not, has the information been used in the investigation?

What does it relate to?

Has it been excluded by a court or other body?

   

 

Statement of Test to be Met

Information relating to the existence or nature of a particular investigation

Relevant Questions Departmental Response Assessment

If the information relates to the existence or nature of a particular investigation, specify the investigation involved.

When did the investigation begin?

What is the current status of the investigation?

Has the investigation ended?

When did it end?

If the investigation has ended, does it have ongoing relevance to other investigations?

How is it related to these other investigations?

If the investigation has been completed, did it result in the imposition of sanctions against the target of the investigation?

Did this take place in an open court proceeding or a proceeding before another tribunal?

Was the information made public in those proceedings?

   

 

Statement of Test to be Met

Information revealing the identity of a confidential source

  • source must be confidential in nature
Relevant Questions Departmental Response Assessment

Does the record reveal the identity of a source?

Was the source used in the course of the investigation?

Was the source used in connection with the enforcement of a federal/provincial statute?

Under what circumstances did the source provide the information?

Did the source provide information to the investigatory or enforcement agency concerned?

If not, how was the information obtained?

Did the source provide the information on the understanding that confidentiality would be maintained?

Is there any document evidencing this intention?

Is assurance of such confidentiality a policy of the investigating agency?

Is confidentiality provided in other investigations of this nature?

   

 

Statement of Test to be Met

  • information obtained or prepared in the course of an investigation
  • record must have been created during and because of the investigation
Relevant Questions Departmental Response Assessment

When was the record obtained or prepared?

Who obtained it?

Who prepared it?

Did the investigatory body obtain or prepare it?

Did the investigatory body obtain or prepare the document during the investigation?

What role did the information have in the conduct of the investigation?

What role did the information have in enforcing the statutory provision concerned?

Was the purpose of obtaining or preparing the information to further the conduct of investigation or the enforcement of the statute concerned?

If the information was obtained during the course of an investigation or enforcement activity, ask who originally prepared it?

What was the original purpose of the record?

How was the record relevant to the conduct of the investigation or the enforcement activity?

Under what arrangements was the record obtained by the investigating or enforcing agency?

   

 

Statement of Test to be Met

Injury must relate to ability to enforce a particular statute or to a particular investigation

  • injury must be specific, current
  • systemic injury not included
Relevant Questions Departmental Response Assessment

What harm would result from disclosure of the record?

  • how would disclosure cause injury to a particular investigation?
  • what investigation would be prejudiced?
  • how would disclosure prejudice the ability to enforce the statutes concerned?

Is there a related enforcement or investigatory activity contemplated?

What does this consist of?

How was the information obtained?

Was a promise of confidentiality given?

Assess (1) contractual provisions which may override (i.e., requirements of the Privacy Act), (2) review whether confidentiality should have been promised (Courts have said no in relation to employment related investigations).

Was the information obtained under subpoena, search warrant or other compulsory means?

  • If so, how would the future ability to obtain such information in contemplated investigations be prejudiced?

How would the investigatory or enforcement agency be prevented from obtaining the information in the current investigation?

Was the information obtained through voluntary disclosure?

Under what circumstances did this voluntary disclosure take place?

Was consent of the target of the enforcement activity or investigation needed for the voluntary disclosure to take place?

Was any assurance of confidentiality given to the target?

Can the voluntary disclosure method be effectively replaced with mandatory disclosure by the witnesses involved?

  • Why not?

What is the current status of the investigation or the enforcement activity?

Has the investigation or enforcement activity resulted in a court proceeding or proceedings before other tribunals?

What charges were laid?

How was the matter disposed of by the court or other tribunal?

Was the information at issue disclosed in the conduct of those proceedings?

Are those proceedings over (appeals, etc)?

   

 

Statement of Test to be Met

Must result directly from disclosure

  • publicly

Available information gives rise to a need to show why CONFIRMATION creates injury

Relevant Questions Departmental Response Assessment

Is the existence of the investigation or enforcement activity publicly known?

What degree of circulation was attached to this disclosure?

What degree of information has been disclosed publicly about the investigation or enforcement activity?

Is there a link between the record at issue and the information that has been disclosed publicly?

  • If so, did any injury result from the public knowledge or prior disclosure?

What degree of injury resulted from the prior disclosure?

Has that injury been mitigated in any fashion?

  • government statements
  • follow-up explanations
  • passage of time

How would disclosure of the information add to the injury, if any, from the prior disclosure?

Would confirmation that the information played a role in the investigation or enforcement activity create injury to any ongoing court proceedings or proceedings before other tribunals?

Would confirmation of the information call into question the original result of the investigation or enforcement activity?

  • if so, discretion to disclose under this section should be considered.
   

 

Statement of Test to be Met

Injury test for COMPLETED INVESTIGATIONS requires

  • injury to a related investigation
  • injury to specific, contemplated investigations
  • ongoing prejudice to existing or future enforcement activity must be very specific, not enough to allege a general "chilling effect"
Relevant Questions Departmental Response Assessment

What is the current status of the investigation or enforcement activity?

Has it been completed?

What was the result of the investigation or enforcement activity?

Were sanctions imposed?

Was the matter disposed of in a court or other proceeding?

Is that proceeding ongoing?

If that proceeding is finished, have any appeal periods expired?

How would disclosure now cause injury to any ongoing investigation or enforcement activity?

Were there related investigations?

Was there further enforcement activity contemplated?

Describe these related or further activities?

If future enforcement or investigation is contemplated, when will it take place?

On what basis will it take place?

How would disclosure of the information relating to the prior investigation prejudice the outcome?

Are the parties the same?

Is the evidence similar?

  • If not, on what basis is it claimed that harm to the investigation or enforcement activity will occur?
   

 

Statement of Test to be Met

Discretionary Exemption (see below at s. 16(1)).

Relevant Questions Departmental Response Assessment

For relevant factors see below under s. 16(1).

Would disclosure question the result of the investigation or enforcement activity?

Would disclosure reveal the existence of illegal conduct during the investigation or illegally gathered evidence?

Would disclosure allow the target of the investigation or enforcement activity to successfully pursue redress from the investigating body or from the government?

Were the circumstances under which the investigation took place manifestly unfair?

Is the legal basis for the investigation or enforcement activity in question?

   

 

Statement of Test to be Met

Section 50 applies

Relevant Questions Departmental Response Assessment

Did the head of the institution have 'reasonable grounds' on which to refuse disclosure?

Was the injury test correctly applied?

Did the head consider disclosure notwithstanding that the injury test was met?

Was the consideration by the head of the institution reasonable in the circumstances?

See questions relating to section 16(1)(d) information the disclosure of which could reasonably be expected to be injurious to the security of penal institutions.

   

 

Paragraph 16(1)(d)

Information the disclosure of which could reasonably be expected to be injurious to the security of penal institutions.

Statement of Test to be Met

All types of penal institutions qualify

Relevant Questions Departmental Response Assessment

Does the information relate to a penal institution?

What institution does it relate to?

Is the primary purpose of the institution to detain or incarcerate individuals?

   

 

Statement of Test to be Met

Relates to the ability to keep the institution secure against escape or outside infiltration

Relevant Questions Departmental Response Assessment

Does the information relate to plans, renovations, security systems, or security procedures at penal institutions?

Would the information facilitate escape from the institution?

Would the information facilitate infiltration of the institution?

Would it assist in allowing smuggling of contraband into the institution or out of the institution?

Would it assist in facilitating unauthorized communications in or out of the institution?

   

 

Statement of Test to be Met

  • Information should be relatively detailed
  • Information should be current
Relevant Questions Departmental Response Assessment

How detailed is the information?

Is the information technical in nature?

   

 

Statement of Test to be Met

Discretionary exemption (See questions at s. 16(1))

Relevant Questions Departmental Response Assessment

How would disclosure of the information add to what could reasonably be observed from inside the institution?

  • If not, how would disclosure compromise the security of the institution?

How current is the information?

Has the information been superseded?

If the information related to planned renovations or system changes, were those plans put into effect?

Is it contemplated they will be put in effect?

  • If so, when?

If the information is not current or does not relate to existing plans, how would it compromise the security of the penal institution?

   

Paragraph 16(2)

The head of a government institution may refuse to disclose any record requested under this Act that contains information that could reasonable be expected to facilitate the commission of an offence, including, without restricting the generality of the foregoing, any such information

  1. on criminal methods or techniques;
  2. that is technical information relating to weapons or potential weapons; or
  3. on the vulnerability of particular buildings or other structures or systems, including computer or communication systems, or methods employed to protect such buildings or other structures or systems.

Statement of Test to be Met

Examples in paragraphs (a) - (c) are non-exhaustive but information should be similar

Relevant Questions Departmental Response Assessment

Does the information relate to the potential commission of an offence?

Is it a criminal offence?

If the information is not described in paragraphs (a) - (c), is the information similar in nature to those paragraphs?

  • If not, how would disclosure of the information relate to the commission of an offence?

What provision of the Criminal Code is involved?

What provision creating an offence in a provincial statute is involved?

   

 

Statement of Test to be Met

Criminal Methods or techniques

  • must be criminal in nature
  • must involve a method or technique that would facilitate the commission of an offence
  • must be specialized and beyond public knowledge
Relevant Questions Departmental Response Assessment

Does the information describe criminal methods or techniques?

Describe what the technique or method relates to?

Is the technique or method commonly involved in criminal activity?

What offences are involved?

Does the information describe a procedure, short cut, trick, computer program, or system for the commission of an offence?

  • Is it specialized?
  • Is it used exclusively in the commission of offences?
  • If not, is it used by the public generally for legal activity?

If the method or technique is generally known, how would disclosure facilitate the commission of an offence?

If the information relates to a computer program or database, is the information general in nature?

How would such information be used to facilitate a criminal offence?

   

 

Statement of Test to be Met

Technical information relating to weapons or potential weapons

  • must be technical or specialized
  • would include methods of destruction (bombs, explosives)
Relevant Questions Departmental Response Assessment

Does the information relate to weapons or potential weapons?

Is the information technical in nature?

Is the information generally known by the public?

What sector of the public would be aware of this information?

Does the information describe the technical capability or functioning of a weapon?

Is this weapon commonly used in the commission of offences?

Does it describe the technical capability or operation of a potential weapon?

In what offences could such weapons be used?

Is the predominant purpose of the weapon for use in illegal activity?

Does the information describe methods of destruction used in criminal activity?

Does it describe the use or construction of bombs?

Does it describe the use of explosives?

Does it describe materials or other substances that would cause bodily harm?

   

 

Statement of Test to be Met

Injury Test disclosing

  • must facilitate commission of an offence
  • must be specific and detailed enough to facilitate commission of an offence
  • avoidance of the law not included

Discretionary Exemption (see below at s. 16(1) and (2))

Relevant Questions Departmental Response Assessment

How would disclosure of the information facilitate the commission of an offence?

How detailed or specialized is the information?

If the information is not detailed or specialized, how would it make the commission of a criminal offence easier?

To what degree is the information known by the public?

If the information is know by the public, how would a disclosure add to public knowledge about the commission of an offence?

Who has had access to the information?

Is this information disclosed in the normal course to employees or others?

  • If so, have offences been committed by people equipped with this knowledge in the past?

Disclosure controlled?

What measures are taken to control disclosure?

Does the information relate to breaking the law?

Does the information relate to avoiding the law?

  • If so, why is the commission an offence contemplated?
   

 

Subsection 16(1) & (2)

16(1) The head of a government institution may refuse to disclose any record requested under this Act that contains...

16(2) The head of a government institution may refuse to disclose any record requested under this Act that contains information...

Statement of Test to be Met

Discretionary Exemptions

  • Disclose must be considered notwithstanding record is described in 16(1)(a), or (b)
Relevant Questions Departmental Response Assessment

Has the head of the institution considered disclosing the records described in s. 16(1)(a) or (b)?

  • If so, what was the reason disclosure was refused?
   

 

Statement of Test to be Met

Disclosure must be considered not-withstanding injury in s. 16(1)(c) or(d) or 16(2) may occur

Relevant Questions Departmental Response Assessment
Did the head of the institution consider disclosing the record notwithstanding the injury described in paragraph 16(1)(c),. (d) or 16(2) may occur?    

 

Statement of Test to be Met

Characterize and quantify the public interest in disclosure of information relating to the investigation/enforcement potential offence.

Relevant Questions Departmental Response Assessment

If so, why was it decided not to disclose the record?

What was the purpose of the investigation or enforcement activity?

Does that purpose relate to public safety, health or security?

What was the scope of the investigation?

Was it national or more local in scope?

Does the investigation relate to potential fraud on the public?

Were measures taken to protect public safety through the enforcement or investigation activity?

Does the record contain information that may assist in apprehending, or preventing criminal activity?

Would disclosure of the information assist individuals to avoid becoming victims of criminal activity?

Does the investigation or enforcement action have historical importance?

Does it relate to a matter of public concern or interest?

How old are the records in question?

If they are under 20 years and paragraph 16(1)(a) is claimed, do the records have any current relevance?

If paragraph 16(1)(b) is claimed, do the records have any current relevance?

Would disclosure of the information assist a member of the public in restoring his or her reputation?

Would disclosure assist a member of the public in receiving a reparation?

Did the investigatory or enforcement activity involve illegal actions?

Did the investigatory or enforcement activity involve illegal conduct?

Did the investigatory or enforcement activity take place in a context now regarded as manifestly unfair?

   

 

Statement of Test to be Met

  • Weigh this against the injury to the investigative, enforcement activity risk to the security of the penal institution.
  • the risk of a criminal offence.
Relevant Questions Departmental Response Assessment

What is the injury that would occur if disclosure was made of information in paragraphs 16(1)(a) or (b)?

With respect to paragraphs 16(1)(c) or (d) or 16(2), how serious is the contemplated injury?

Does the age of the records mitigate against this injury?

Are there mitigating measures the government could now take in order to reduce the risk from disclosure?

   

 

Statement of Test to be Met

  • Factors considered must be relevant
  • Must be related to the purpose of the provision
Relevant Questions Departmental Response Assessment

Is the reason for refusing disclosure related to protecting the effectiveness of an investigation or protecting the reputation of an investigatory agency?

If it is the latter, on what basis would the reputation of the agency be called into question?

Is the purpose for not disclosing the information related to avoiding embarrassment by the investigatory agency, or avoiding potential loss of morale by the investigative agency?

  • If so, how is this related to the purposes of section 16?
   

 

Statement of Test to be Met

Standard of Review s. 50 applies to paragraphs 16(1)(c) and (d).

Relevant Questions Departmental Response Assessment

If discretion was exercised by refusing to disclose information described in paragraph 16(1)(c) or (d), were the grounds for refusing to disclose reasonable?

Were they related to the purpose of paragraphs 16(1)(c) and (d)?

Did the head of the government institution still consider disclosure notwithstanding that the injury test was met in paragraph 16(1)(c) or (d)?

   

 

Statement of Test to be Met

S. 49 applies to paragraphs 16(1)(a),(b) and 16(2)

Relevant Questions Departmental Response Assessment
Has the head of the institution justified his exercise of discretion not to disclose records described in paragraphs 16(1)(a), (b) and 16(2)?    

 

Subsection 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.

Statement of Test to be Met

Mandatory Exemption

  • Class Test
  • Requires an arrangement under section 20 RCMP Act
Relevant Questions Departmental Response Assessment
Was the information generated by the RCMP in carrying out policing services?
  • If so, were the policing services carried out for a province or municipality?

Which province or municipality?

Does the province or municipality have an agreement with the RCMP under section 20 RCMP Act?

Ask to see a copy of the agreement.

   

 

Statement of Test to be Met

Requires request and consent not to disclose

Relevant Questions Departmental Response Assessment

Does the agreement contain a request by the province or municipality that information generated by the RCMP and providing policing services be kept confidential?

Has the RCMP agreed not to disclose this information?

If such agreement is not contained in the section 20 agreement, ask to see evidence of the request for confidentiality and agreement not to disclose?

  • Letters, side agreements
  • Orders in Council
  • Statutory instruments
  • Other
   

 

Statement of Test to be Met

Agreement must be current

Relevant Questions Departmental Response Assessment

Is the agreement still in full force and effect, if the agreement is still in effect, is the request by the province or municipality that the RCMP not disclose the information still in effect?

Is this evident from the agreement itself, or from the original correspondence or other documents establishing confidential treatment?

  • If not, on what basis has the agreement to treat the information in a confidential way been carried on?
   

 

Statement of Test to be Met

Rescission of an agreement has retroactive effect

Relevant Questions Departmental Response Assessment

Has the agreement to treat the information of the confidential fashion been rescinded?

Did this involve mutual consent?

  • If it did not involve mutual consent, which party rescinded the agreement?

If the province rescinded the agreement, on what date did the rescission take place?

Has the record in question been generated since the rescission?

  • If not, was the document created while the agreement was in place?
  • If so, subsection 16(3) will not apply?
   

 

Statement of Test to be Met

  • Termination means non-renewal agreement applies to date of termination
  • Look at applicable provincial FOI Legislation
Relevant Questions Departmental Response Assessment

Was the agreement to treat the information in a confidential matter terminated or not renewed?

What date did this come into effect?

Was the document created after this date?

  • if so, subsection 16(3) does not apply?

Was the document created while the agreement was in effect?

Does the applicable provincial FOI legislation containing a different provision governing disclosure of this information under that statute?

  • If so what does that provision require?

Consider whether this information should be disclosed to the requestor.

   
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