Report 18 - Access to Information Review Task Force

ADVICE OR RECOMMENDATIONS - SECTION 21 OF THE ACCESS TO INFORMATION ACT

Change - Specific Possibilities

An Injury Test, a Public Interest Test, or Both?

An Injury Test

While the Treasury Board Guidelines require the head of an institution to consider the harm that might result from disclosure, the Access to Information Act itself does not impose such a test. There have been frequent recommendations that the Act be amended to include some form of injury test. The Standing Committee on Justice and Solicitor General, for example, reporting in 1987 following its statutory review of the Act, recommended that each exemption be redrafted to authorize a government institution to withhold records or personal information only "if disclosure could reasonably be expected to be significantly injurious" to a stated interest. The Government, in its response, rejected the "significant injury" test, on the grounds that it would increase uncertainty about what is or is not an exemption, result in an increase in the number of complaints to the Commissioner and applications to the courts, and be more time-consuming.⁹⁴

The former and current Information Commissioners have both advocated that exemptions be subject to an injury test. In an extensive series of proposed amendments set out in his 1993-1994 Annual Report, former Commissioner John Grace recommended that section 21 be amended to include such a test.⁹⁵ The current Commissioner, the Hon. John Reid, supported this recommendation in his Annual Reports for 1998-1999 ⁹⁶ and 2000-2001 ⁹⁷ and suggested on another occasion that, while it should be up to Parliament to define the injury the exemption was meant to avoid, one approach might be to include in the Act a list of the types of information not covered by the exemption.⁹⁸

A recent Private Member's Bill sponsored by Mr. John Bryden, M.P., would have amended paragraph 21(1)(d) to restrict the exemption for personnel management and administrative plans not yet put into operation to circumstances in which disclosure "could reasonably be expected to prejudice the operation of that government institution."⁹⁹

It might be noted that section 36 of the United Kingdom legislation contains an injury test, providing that information is exempt if, in the opinion of a reasonable person, disclosure would, or would likely, prejudice the maintenance of the convention of the collective responsibility of Ministers of the Crown, or inhibit the free and frank provision of advice or the exchange of views for the purposes of deliberation. Section 9 of the New Zealand legislation is similar, if less explicit: absent an overriding public interest, information can be withheld to the extent necessary to maintain the constitutional conventions set out in the section and to maintain the effective conduct of public affairs. Certainly the Ombudsman has interpreted these provisions as requiring that it be demonstrably necessary to withhold the information to avoid prejudicing those interests.¹⁰⁰

It can be argued in support of adding an injury test that:

• such an amendment has been widely supported, as noted above;
  
• assessing the harm likely to be caused by disclosure is already a requirement in the Treasury Board Guidelines, and an amendment would simply give statutory recognition to this existing requirement; and
  
• adding an injury test should not detract significantly from the values sought to be protected by section 21.
  

Against such an amendment it can be argued that:

• the application of an injury test is already required by virtue of the Treasury Board Guidelines, and is more appropriately set out in an administrative practice manual than in legislation; and
  
• the values protected by section 21 are important, but difficult to define precisely, and could be harmed unless interpreted sensitively by the Commissioner and the courts.
  

A Public Interest Test

Successive Information Commissioners have called for a public interest test. The Commissioner's 1993-1994 Annual Report recommended that government institutions "be required to disclose any information, with or without a formal request, whenever the public interest in disclosure clearly outweighs any of the interests protected by the exemptions."¹⁰¹ The current Commissioner made a similar recommendation in his 1998-1999 Report and has proposed a public interest override in his Report for 2000-2001.¹⁰²

As noted earlier in this paper, several jurisdictions include a public interest test in their legislation:

• in both British Columbia (section 25) and Alberta (section 31) an institution must disclose, without delay and with or without having received a request, information about a significant harm to the environment or to public health and safety or information "the disclosure of which is, for any other reason, clearly in the public interest";
  
• in Ontario, an exemption does not apply where "a compelling public interest in disclosure of the record outweighs the purpose of the exemption" (section 23);
  
• in the United Kingdom, information does not have to be communicated to a requester if the public interest in maintaining the exemption outweighs the public interest in disclosing it (section 2);
  
• in the Irish and Australian Acts (sections 20 and 36 respectively), disclosure may be refused if the information requested falls within the exemption and disclosure would be contrary to the public interest;
  
• in New Zealand information can be withheld for a "good reason" specified in the statute "unless withholding of the information is outweighed by other reasons which render it desirable, in the public interest, to make that information available" (section 9).
  

What are the arguments in favour of introducing a public interest test in the Canadian context?

• it would require the head of an institution to weigh the public interest in exercising his or her discretion whether to withhold material falling within the section 21 exemption;
  
• it can be argued that the public interest should be the overriding consideration in determining whether information should be disclosed or withheld;
  
• it would respond to recommendations by Information Commissioners; and
  
• it would follow precedents set in several jurisdictions, including provincial jurisdictions in Canada.
  

Against such a provision it can be argued that:

• the exemptions set out in paragraphs 21(1)(a)-(d) are already intended to reflect an appropriate balance between the public interests in disclosure of government information on the one hand and the need for confidentiality in decision-making on the other;
  
• depending on how the test was applied in practice, it could result in some reduction in candour;
  
• it could result in heads of government institutions, Information Commissioners and the courts trading what are ultimately subjective judgements about where the balance of public interest lies.
  

Both an Injury and a Public Interest Test

The former and current Information Commissioners have both recommended that the federal Act contain both an injury test and a public interest override.¹⁰³

None of the Canadian jurisdictions reviewed for the purposes of this paper contains a dual injury and public interest test, at least in relation to the subject-matter covered by section 21 of the federal Act - the relevant provisions where they exist provide a discretionary exemption for specified classes of information, but subject that exemption to a statutory override where this is deemed to be in the public interest. The U. K. and New Zealand legislation, on the other hand, have both taken an injury approach to protecting information (i.e. where disclosure would prejudice specified interests or values) coupled with a public interest provision - in the case of the U.K., as a reason for refusing to disclose, and in New Zealand as a reason for overriding an otherwise "good reason" for not disclosing.

Return to Table of Contents

Expand the List of Non-Exempt Records in Subsection 21(2)?

The Information Commissioner, in his 1993-1994 Annual Report, recommended that the federal Access to Information Act be amended to emulate legislation in Ontario and British Columbia, and include a list of types of information not covered by the exemptions in section 21. The Commissioner mentioned specifically factual material, public opinion polls, statistical surveys, economic forecasts, environmental impact statements and reports of internal task forces.¹⁰⁴ The recommendation has been endorsed by the current Commissioner in his 2000-2001 Annual Report¹⁰⁵ and he has elsewhere added audit reports to the list.¹⁰⁶ The Bryden Bill would have excluded records relating to public opinion surveys from the ambit of paragraph 21(1)(a).¹⁰⁷

As noted earlier in the paper, of the Canadian jurisdictions reviewed, legislation in British Columbia, Alberta and Ontario contain lengthy lists of types of records that fall outside the protection of their version of subsection 21(1).

The arguments in favour of such an amendment are that:

• it would bring greater precision to the scope of subsection 21(1) by specifying types of records that are not protected;
  
• it need not significantly narrow legitimate protection provided for the internal decision-making processes of the government, as most of the exceptions clearly should not fall within the exemptions set out in paragraphs 21(1)(a)-(d); and
  
• with some care given to the list of exceptions adopted, expanding the list of exceptions in subsection 21(2) should not have a significant impact on the values sought to be protected by section 21.
  

It is not clear that there is a serious downside to including a more extensive list of exceptions in subsection 21(2), as long as the principle of protection for the legitimate internal decision-making processes of government is accepted, and care is given to the specific exceptions included.

Return to Table of Contents

Define "Advice" and "Recommendations"?

Commissioner Grace, in his 1993-1994 Annual Report, recommended that the terms "advice" and "recommendations" be clearly limited,¹⁰⁸ and Commissioner Reid has suggested that the word "advice" be defined in the Act, in terms similar to the definition found in the Treasury Board Manual.¹⁰⁹

There is no reason in principle why the words "advice" and "recommendations" could not be defined in section 21 of the Act. However, this may present a significant challenge for a legislative drafter, since, as the Guidelines make clear,¹¹⁰ the definition is not a simple one, containing several elements, and there may well be exceptions (e.g. depending on the context, an opinion may not need to be expressly tied to an action). This raises the question whether a similar objective could not be achieved, as Mr. Reid has suggested,¹¹¹ through an amendment to subsection 21(2) to extend the list of records not falling within the exemption, and by doing so providing clearer guidance as to the scope of paragraph 21(1)(a).

Return to Table of Contents

Reduce the Period of Protection From 20 Years?

The Standing Committee on Justice and Solicitor General concluded in its 1987 report that the 20-year period of protection provided by section 21 was far too long, and recommended that the exemption only be available for records that came into an existence less than 10 years prior to a request - "the maximum duration of two Parliaments."¹¹² Mr. Grace and Mr. Reid have expressed their agreement with this recommendation,¹¹³ which was not accepted by the Government in its 1988 response to the Committee's report.¹¹⁴

Protection periods vary widely across Canada, at least in the jurisdictions reviewed: 30 years in Manitoba, 20 years in Ontario, 15 years in Alberta, 10 years in British Columbia and from five to15 years in Quebec, depending on the nature of the document.

There would not appear to be any magic to a 20-year period. However, in the absence of a major shift in the prevailing political and bureaucratic culture, and in the way consultations and deliberations are recorded, and advice tendered to Ministers, some reasonably extended period is arguably necessary to protect the decision-making process and the underlying values. But consideration might be given to reducing the period of protection somewhat, perhaps to 10 or 15 years, by which time the sensitivity of most issues will have passed and most Ministers will be in other portfolios if indeed still in Parliament. It can also be argued that the prospect of public release of section 21-related information after 10 or 15 rather than 20 years is unlikely to cast a serious chill on the frankness and candour of advice provided by officials.

Return to Table of Contents

Limit the Exemption to Decision-Making at the Political Level?

In Open and Shut, the Standing Committee on Justice and Solicitor General recommended that section 21 be amended to limit the exemption "solely to policy advice and minutes at the political level of decision-making, not factual information used in the routine decision-making process of government."¹¹⁵ This recommendation was incorporated by the former and present Information Commissioners in their 1993-1994, 1998-1999 and 2000-2001 Annual Reports.¹¹⁶

While the recommendation is somewhat ambiguous, in that factual information is not normally exemptible under section 21, it would appear that the main thrust is to limit the protection to records relating to interactions among Ministers, not among officials within a particular department or agency.

Such an amendment would have the effect of narrowing the scope of section 21 significantly, and in that sense would represent a step in the direction of open government. On the other hand, it might well be at the cost of some damage to the values section 21 protects. The policy development process in particular typically involves consultations, deliberations and the provision of advice at various levels in a government institution. And, as Mr. Justice Evans pointed out in the Christian Charities case quoted earlier, the policy-making process often involves "false starts, blind alleys, wrong turns, changes of mind, the solicitation and rejection of advice, and the re-evaluation of priorities and the re-weighing of the relative importance of the relevant factors as the problem is studied more closely."¹¹⁷ There is a strong argument that opening to public scrutiny the records created by officials in the course of this process could cause officials to be less creative and candid in the expression of their views as policy proposals are honed and refined and that Ministers could be called to account for views that reflect developmental thinking with which they may seriously disagree.

Return to Table of Contents

Limit Paragraph 21(1)(a) to Advice and Recommendations Obtained From Officials Within Government?

The current Information Commissioner, Mr. Reid, has recommended that the exemptions in subsection 21(1) be limited to communications to and from public servants, Ministerial staffs and Ministers.¹¹⁸ As paragraph 21(1)(a), for example, now applies to advice and recommendations developed "by or for" a government institution, a Minister or a member of the Minister's staff, this change would have the effect of excluding from the exemption advice and recommendations provided by individuals or organizations outside the government.

It is difficult to argue that such a change would compromise all of the interests protected by section 21: excluding outside advice, for example, would have no impact on the political neutrality of officials, and does not present serious problems in relation to Ministerial responsibility, as outside advice is not, by definition, something for which the Minister is answerable unless he or she adopts the advice provided. Excluding outside advice and recommendations from the exemption, however, could have the effect of making individuals or organizations less prepared to act as advisors and this might have the effect of restricting the range of advice available to Ministers.

Return to Table of Contents

Exclude from Paragraph 21(1)(d) Plans That Are Not Approved, or Are Rejected?

As it now stands, paragraph 21(1)(d) provides protection for up to 20 years for personnel management and administrative plans that have not yet been implemented. Once implemented, the information is no longer protected by this provision. Plans that are not approved, however, or plans that are expressly rejected, continue to be protected for the full 20-year period. The Information Commissioner has recommended that paragraph 21(1)(d) be amended to remove the 20-year protection for plans that are rejected.¹¹⁹

It is not clear that the key interests protected by section 21 would be harmed by removing, or at least reducing, the protection for personnel management or administrative plans that are not approved or are rejected. Presumably personnel and administrative plans were included in section 21 exemptions to prevent their being compromised as a result of being made public before implementation. This consideration is not relevant if a plan has not been approved - as long as it is no longer under active consideration - or has been rejected. Consideration might be given to excluding personnel management and administrative plans that have not been implemented from the subsection 21(1) exemption, after a period of, say, three years after having been rejected or under active development or consideration.

Return to Table of Contents

Amend Section 21 to Extend Protection to Records prepared by Consultants?

Paragraph 21(2)(b) excludes from subsection 21(1) exemptions reports prepared by consultants or advisers who were not officials or employees or members of a Minister's staff at the time they were prepared.

Freedom of information legislation in Ontario and Quebec expressly extends protection to advice and recommendations of a consultant. Reports by consultants are likely protected in British Columbia, Alberta and Manitoba, where the exemption extends to advice and recommendations developed "by or for" a public body or Minister, with no express exception for consultants' reports parallel to paragraph 21(2)(b) of the federal Act.¹²⁰

It should be noted that federal Cabinet Directive No. 45, Notices of Motion for the Production of Papers, adopted in 1973, indicated that "consultant studies, the nature of which is identifiable and comparable to work that would be done within the Public Service, should be treated as such." ¹²¹ Where consultant studies were identifiable and comparable to the kind of investigation of public policy for which the alternative would be a Royal Commission, they were to be treated as such and both the terms of reference and the resulting reports produced.

Briefing material prepared for the federal Minister of Communications at the time of Parliamentary consideration of Bill C-43 explained the rationale for excluding consultants' reports from the section 21 exemption:

The reports of outside consultants have been excluded from protection because these individuals are contracted for work outside the normal governmental process on a fee basis for work done. Reports prepared internally by public servants possess an intrinsically political quality that the same material prepared by an outsider does not contain. When bad advice is given to a Minister by his officials and followed by him, the repercussions are obvious. Public servants who have written reports to a Minister in respect of decisions to be taken must, therefore, be allowed sufficient protection to ensure their candid advice.¹²²

The argument in favour of extending protection to consultants' reports was articulated by the Ontario Commission on Freedom of Information and Privacy in 1980:¹²³

By treating consultants' advice in the same way as advice given by public servants, any disincentive to seek the advice of experts in fields related to a policy initiative is removed. Further, in many situations the dividing line between full-time policy advisers and part-time retained consultants may be, in functional terms, very difficult to draw. We recommend that, as a general rule, documents containing advice or recommendations of public servants or consultants retained by government institutions be exempt from access.

More recently, the New Zealand Law Commission noted changes in New Zealand government operations, in particular the shrinking of the public sector and the increased use of private sector consultants to provide advice on matters of economic and social policy, and observed that consultants were used far more often and for a much wider range of advice than had been the case in the 1980s.¹²⁴ The Commission concluded that removing protection might discourage government from using consultants and

…act as a disincentive to government seeking advice from whatever source it regards as most desirable…[it] could also act as a disincentive to consultants providing the honest advice which would be expected of them.¹²⁵

There is no basis for extending protection to work done by consultants that would not fall within subsection 21(1). Nor can it be argued that extending protection to advice and recommendations provided by consultants is necessary to protect the values of Ministerial responsibility or, obviously, the political neutrality of public servants. However, it would appear that, increasingly at the federal level in Canada, as in New Zealand, consultants are doing advisory work analogous to that traditionally performed by public servants and it can be argued that, where that is the case, the advice and recommendations should be protected to the extent that they would be if they had been developed by public servants, in the interest of ensuring that the government receives the best possible advice, regardless of source.

It should also be noted that work by consultants (or advisers) is not excluded from protection under other exemptions: such work is protected if it falls within the ambit of one or more of those exemptions. Section 21 is unique in this respect. It can be argued that there is no basis for treating the work of consultants or advisers differently simply because it contains advice or recommendations.

Return to Table of Contents

Conclusion

The Access to Information Act establishes the principle of public access to information, subject to limited and specific exceptions. One of these is section 21, which provides a measure of protection for information relating to the "operations of government", and particularly the internal decision-making processes of the government.

The need for some protection for such information has been widely if not universally recognized, but section 21 itself has proved to one of the most controversial provisions of the Act. The concern is that the exemptions as they are now cast are too broad, protecting information that need not be protected. A number of proposals for change have been put forward over the years, particularly by the Standing Committee in its 1987 report and by Information Commissioners. Most are aimed at narrowing the exemptions.

There would appear to be some room for doing so, without compromising in a significant way the interests section 21 is intended to protect. In particular, consideration might be given to amendments that would:

• add a public interest test,
  
• expand the list of non-exempt records in subsection 21(2),
  
• reduce the period of protection from 20 to 10 or 15 years,
  
• exclude from the subsection 21(1) exemption plans that are not approved, or are rejected, and provide a shorter period of protection for them, and
  
• extend section 21 protection to advice and recommendations prepared by consultants.
  

It is suggested that these changes would reflect an appropriate accommodation of the public interests in access to information on the one hand, and effective government on the other.

***

Return to Table of Contents

See Footnotes