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Report 17 - Access to Information Review Task Force
THE NATURE AND STRUCTURE OF EXEMPTING PROVISIONS AND THE USE OF THE CONCEPT OF A PUBLIC INTEREST OVERRIDE
Published: September 2001
Table of Contents
Executive Summary
Introduction
Part I - The Current Structure of the Canadian Legislation
Part II - Other Jurisdictions - Provincial
Part III - Other Jurisdictions -
Foreign
Part IV - Issues and Discussion
Part V - Potential Recommendations
Annex A
Annex B
Annex C
Annex D
Annex E
Annex F
Annex G
Annex H
EXECUTIVE SUMMARY
This report contains a review of the current structure of the exempting provisions in the Access to Information Act and then reviews the structure of exemptions in other comparable legislation. It also considers recommendations for reform that have been made, particularly by the Standing Committee on Justice and Solicitor General on the Review of the Access to Information Act and the Privacy Act in 1987 and the recommendations made by the Information Commissioner in his 2000 - 2001 Annual Report.
The Report concludes that there are four main areas in which the Task Force should consider making significant recommendations for reform of the provisions of the Access to Information Act dealing with exemptions. Most importantly, a new process has to be considered for the implementation of discretionary exemptions. With more guidance and with more thoughtful consideration of the factors that ought to be considered when deciding whether to invoke a discretionary exemption or not, it should be possible to construct a process whereby more information is made available and, when discretionary exemptions are claimed, there is a clearer understanding of why they have been claimed and that there really is a public interest in maintaining the exemption which outweighs the public interest in disclosing the information.
Secondly, specific reforms should be considered in respect of the exemptions for policing information and Third Party commercial information. Paragraphs 16(1)(a) and (b) and all of Section 20 should become injury-based exemptions.
Thirdly, there should be reforms to provide for a much broader obligation to release information in the public interest, and particular consideration should be given to providing a general obligation to release certain types of government information on a regular proactive basis.
Finally, the time has come to revisit the whole area of Cabinet confidences. Cabinet confidences should not be excluded from the operation of the Act or from the investigative and supervisory jurisdiction of the Information Commissioner and the Courts.
INTRODUCTION
The objective of this report is two-fold. The first objective is to review the structure of the exempting provisions in the Access to Information Act (Act). The second objective is to consider the present use of the concept of a public interest disclosure override. In each case, this report will examine the Act as it is currently structured and outline both problems which have been encountered with the legislation as currently structured and experiences which suggest that the current approach may work. The report will identify for the Task Force options for reform which will be based on a review of approaches used in similar legislation in other jurisdictions and a review of proposals for reform which have been made by various commentators and by the Access to Information Commissioner. In particular, this report will consider the comments of the Access to Information Commissioner in his 2000-2001 Annual Report.
The Task Force has commissioned separate reports dealing with specific exempting provisions. The focus of this report is more generally on the structure of the Act as whole and the question of whether or not that overall structure promotes access to information under the control of the federal government, or whether the structure, particularly the use of class-based and mandatory exemptions tends to inhibit access to such information. Similarly, the question addressed by this report is whether or not the current availability of a public interest disclosure override to allow the release of information which would otherwise be exempt is sufficient. Could there be a broader public interest override provision? If so, should it be a general provision or should the current approach be expanded so that it would apply to more exempting provisions?
For the purposes of this Report, we reviewed the legislation in five Canadian Provinces: Alberta, British Columbia, Manitoba, Ontario and Québec. We also reviewed the legislation in five other jurisdictions, Australia, New Zealand, Ireland, Great Britain and the United States, all with common law traditions similar to ours and with governmental systems either similar to, or derived from, the British parliamentary system and similar traditions of democracy and Government secrecy/openness.
PART I - THE CURRENT STRUCTURE OF THE CANADIAN LEGISLATION
Disclosure the Rule - Exemptions the Exception
The Access to Information Act is based on the premise, as stated in the section 2, that:
The purpose of this Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government.
The Act is intended to "complement and not replace" existing procedures for access. The Federal Court of Canada has recognized this aspect of the Act since the beginning when then Associate Chief Justice of the Federal Court, James Jerome, stated that, "public access ought not to be frustrated by the Courts except upon the clearest grounds so that doubt ought to be resolved in favour of disclosure" (2) This right to access to records under the control of a government institution is set out in section 4 and the exceptions to that right are set out in sections 13 through 24. (3) These exemptions are to be strictly construed and any doubt is to be resolved in favour of the requestor. (4)
Generally speaking, the case law supports this approach and the Federal Court has consistently reiterated this approach. Exemptions have been narrowly construed and the hurdle for supporting an exemption in the course of a Court challenge has been high. (5) The Supreme Court of Canada has recognized this "openness principle" as follows:
The overarching purpose of access to information legislation, then, is to facilitate democracy. It does so in two related ways. It helps to ensure first, that citizens have the information required to participate meaningfully in the democratic process, and secondly, that politicians and bureaucrats remain accountable to the citizenry. (6)
Section 4 provides that the Act takes precedence over other legislation:
4(1) Subject to this Act, but notwithstanding any other Act of Parliament, every person who
(a) is a Canadian citizen, (7) or
(b) a permanent resident within the meaning of the Immigration Act,
has a right to and shall, on request, be given access to any record under the control of a government institution.
The primacy of the Act is, however, subject to Section 24 which provides for a listing in Schedule II of provisions in other statutes which will operate to override the right of access. Section 24 is an exemption.
Section 68 provides that the Act is not applicable to:
(a) published material or material available for purchase by the public;
(b) library or museum material preserved solely for public reference or exhibition purposes; or
(c) material placed in the National Archives of Canada, the National Library, the National Gallery of Canada, the Canadian Museum of Civilization, the Canadian Museum of Nature or the National Museum of Science and Technology by or on behalf of persons or organizations other than government institutions.
Section 69 provides that the Act is not applicable to Cabinet confidences and provides a definition of Cabinet confidence. Subsection 69(3) provides that this exclusion is applicable to:
(a) confidences of the Queen's Privy Council for Canada that have been in existence for more than twenty years; or
(b) discussion papers described in paragraph (1)(b)
(i) if the decisions to which the discussion papers related have been made public, or
(ii) where the decisions have not been made public, if four years have passed since the decisions were made.
Information/Records
The right of access in the Act is to "information in records". While record is broadly defined and includes electronic and digital records (i.e. tape recordings, video recordings, film, computer records, etc.), it is necessary that information be recorded in some form in order for the right of access to arise. (8) The exemption provisions in the Act are, however, expressed in terms of information. The head of a government institution's ability or duty to refuse to disclose a record arises when that record contains information which meets one or more of the exempting criteria in sections 13 to 24 of the Act.
Section 25 of the Act requires that information in a record which is not subject to an exemption be disclosed if it can reasonably be severed from the exempt information. The Federal Court of Appeal has ruled that the head of an institution does not fulfill his or her responsibilities under the Act unless he or she specifically turns their mind to the issue of severance on a record by record basis, exercises the discretion to claim an exemption and addresses his or her mind to the question of what information can reasonably be severed from the record and released. (9) The exercise of making the decision to claim an exemption is more fully discussed below.
Class vs. Injury or Harm-Based Exemptions
Exemptions currently fall into two types. Some require that an injury be demonstrated before the exemption can be claimed. Some apply if the information falls within the class of information described in the exemption and there is no reference to any consequence that might result from the release of the information. (10)
Class exemptions require only that the information contained in a record be identified as falling within a particular group or type. In determining whether the information falls within the potentially exemptable category of information contemplated by the provision, there is no need to consider what the consequences of releasing the information could be. Class-based exemptions presuppose that the information is inherently sensitive and that an injury or prejudice would automatically flow from release.
For example, information obtained in confidence from other governments (s. 13) is exempt on the basis of class because it is assumed that release of information received from another government in confidence will injure the relationship which the Canadian government has with that government. Accordingly, the exemption is directed more to the context of the process or relationship in which the information came under the control of the government institution than to the information itself. Other examples of exemptions directed at this relationship protection are:
Subsection 16(3), which deals with information obtained or prepared by the Royal Canadian Mounted Police while acting as a municipal or provincial police force;
Subsection 19(1), which protects personal information; and
Paragraphs 20(1)(a) and (b), which protect the trade secrets and the confidential financial, commercial, scientific or technical information of third parties.
In each of these cases, the information belongs, or is viewed as belonging, to a third party - another government, an individual or a commercial entity. It is not federal government information per se.
Class exemptions also apply in cases where the information has already been classified or identified, through some other mechanism, as requiring protection from disclosure. Examples of exempting provisions which recognize a pre-existing basis for protection are section 23, solicitor and client privilege and section 24, need for confidentiality identified in some other statutory provision.
The third set of class exemptions focus on the type of information and the context in which it is generated and appear to accept that release of the information would automatically be contrary to the public interest and that protection from disclosure is necessary. These exemptions are:
Paragraph 16 (1)(a), information obtained or prepared by specified investigative bodies in the course of lawful investigations - provided the information is less than twenty years old;
Paragraph 16(1)(b), information relating to investigative techniques or plans for specific lawful investigations;
Subsection 18(1), government trade secrets or financial, commercial, scientific or technical information that has, or is likely to have, substantial value; and
Subsection 21(1), advice or recommendations to the government, consultations involving government officials, positions, plans or considerations for government negotiations and plans regarding personnel management or government administration.
Injury exemptions, on the other hand, are based on there having been a determination by the head of the institution that it is reasonable to expect that some injury, harm or prejudice will occur to the government, or to a third party commercial entity, if the information is released. Injury-based exemptions are found in:
Section 14, injury to federal provincial affairs;
Section 15, injury to international affairs and defence;
Paragraph 16(1)(c), injury to the enforcement of any law of Canada or a province or the conduct of lawful investigations;
Subsection 16(2), information which could reasonably be expected to facilitate the commission of an offence;
Section 17, safety of individuals;
Subsections 18(b), (c) and (d), injury or prejudice to the economic interests of Canada;
Paragraphs 20(1)(c) and (d), injury to third party interests; and
Section 22, prejudice to testing procedures, tests and audits.
In all cases, the exempting provision speaks in terms of "could reasonably be expected" to result in the prejudice, harm or injury. The Federal Court has ruled that, in the context of these injury- based exemptions, the term means that the head of the institution must believe that there is a "reasonable expectation of probable harm" and that the term does not imply any distinction between direct and indirect causality. (11)
Mandatory vs. Discretionary Exemptions
The basis upon which the exemption can be claimed by the head of a government institution also varies. In some cases it is mandatory that the exemption be claimed. In other cases, the head of the government institution has a discretion as to whether he or she will in fact claim the exemption. (12)
There is no correlation between injury or harm-based and class-based exemptions and whether or not the head of the government institution must invoke the exemption or has a discretion to release the information even if the exemption criteria are met. Rather, the decision to make a particular exemption mandatory or discretionary appears to be based on the application of two distinct principles. First, when the information belongs to a third party government, as is the case in sections 13 and 16(3); is third party personal information, as is the case in section 19; or is third party commercial information, as is the case in section 20, the theory appears to be that the information must be exempted. Second, if the disclosure of the information is restricted by or pursuant to another statutory provision, which has been identified pursuant to section 24, the disclosure regime of the Act is subordinate to that other statutory provision.
In all other cases, the head of the institution is not obliged to claim the exemption. The statute recognizes that there may be situations where it is not necessary or not desirable to claim the exemption even though it is available. However, the Act does not specify any criteria which should be taken into account, or factors which should be considered, when the head of a government institution exercises his or her discretion. While the Federal Court will review the manner in which the discretion was exercised to determine if it was properly or lawfully exercised, it will not substitute its view of how the discretion should be exercised for that of the head of the institution. If the Court is of the view that the head of the institution did not exercise the discretion properly, it will normally remit the matter back, perhaps with directions, to be re-considered. (13)
Use of a Public Interest Disclosure Override
The legislation as it is currently structured does not contain a general public interest override which would require that information be disclosed in all cases where the general public interest in disclosure outweighs the specific public interest or other (third party) interest which is intended to be protected by the exempting provision. Rather, the public interest in disclosure is addressed on a case by case basis only in the context of two exempting provisions. These are limited to situations where the information is that of a third party. Paragraph 19(2)(c) incorporates the provisions of section 8 of the Privacy Act which includes, in subparagraph 8(2)(m)(i), a discretionary provision for the release of personal information in circumstances where the head of the institution forms the opinion that "the public interest in disclosure of the personal information in issue clearly outweighs the invasion of privacy." Subsection 20(6) provides for the disclosure of third party information, other than a trade secret, "if that disclosure would be in the public interest as it relates to public health, public safety or protection of the environment and, if the public interest in disclosure clearly outweighs in importance any financial loss or gain to, prejudice to the competitive position of or interference with contractual or other negotiations of a third party." [emphasis added].
In both cases the test is a high one, in that the public interest in disclosure must clearly outweigh the harm. Subparagraph 8(2)(m)(i) makes it clear that the head of the institution must form the opinion that the public interest in disclosure clearly outweighs the invasion of privacy. The Supreme Court of Canada has confirmed that this means that it is the head's role to form the opinion, that he or she need not give extensive reasons as long as the record discloses that the discretion was exercised and that the head did turn his or her mind to disclosure in the public interest and that the Court will not interfere with the exercise of the discretion unless it is clear that there has been either a failure to exercise the discretion or some impropriety in its exercise. Even then, the court will refer the matter back to the head of the institution. It will not exercise the discretion itself. (14)
Subsection 20(6) is structured somewhat differently. It simply refers to "… if the public interest in disclosure …", without reference to any opinion being formed by the head of the institution. Notwithstanding the difference in wording, the Federal Court has, to date, taken the same approach with respect to a review of the exercise of the discretion to release in the public interest in subsection 20(6) as it has with subparagraph 8(2)(m)(i) and will not second guess the head of the institution in the exercise of the discretion, absent some improper conduct in the exercise of the discretion or a failure to exercise it at all. (15)
Arguably, the inclusion of discretionary exemptions was also intended to operate as an overriding provision to allow disclosure in those cases where a balancing of the objectives of the Act as a whole against the specified interest to be protected by the exempting provision tips the scale in favour of disclosure. However, there is no overriding provision mandating a balancing of the public interest in disclosing information against the public interest in exempting that information and neither the government departments and agencies covered by the legislation nor the courts have approached the decision-making process in that way. While we are not aware of any empirical study, based on anecdotal information and our own experience, it is our view that the usual approach is to opt for the exemption of information if the exemption is available. Neither Treasury Board nor the Information Commissioner has published anything by way of a set of comprehensive guidelines which address the balancing that ought to take place when deciding whether to claim an exemption or not and which could be used by decision-makers in the course of making that determination. The Treasury Board Guidelines (16) which have been prepared to guide ATIP Coordinators in their application of the Act provide a very limited discussion of the factors to be considered in determining whether to invoke a discretionary exemption or not. The Guidelines make reference to the fact that there is an option to disclose the information where no injury will result or where the interest in disclosing the information outweighs any injury which would result from disclosure. The Guidelines do not offer any assistance as to how the balancing of these interests should occur or what criteria are to be assessed in undertaking the balancing effort.
While the Federal Court has addressed the issue of the exercise of the discretion inherent in the various discretionary exempting provisions, it has refrained from promulgating any criteria or guidelines. As with the exercise of the specific discretions to release in the public interest, the Court has generally taken the approach that it will review the decision to ensure that the discretion was exercised and to ensure that it was exercised properly and in accordance with legal principles. It will not substitute its views or exercise the discretion itself. If there has been a failure to exercise the discretion properly, the Court will send the matter back to the head of the institution. (17)
The recommendations which have been made for reform (18), suggest that the discretionary nature of many of the exemptions under the Access to Information Act has not resulted in a general approach to the legislation which requires a thoughtful balancing of the public interest in the release of information as against the public interest in protecting the information by invoking the applicable exempting provision. Rather, the approach appears to have been to invoke the exemption if it is available.
Return to Table of Contents
1 Mrs. McIsaac is the managing partner of the Ottawa Office of McCarthy Tétrault LLP and the Senior member of the Office's Litigation Group. See Annex A
2 Maislin Industries Limited v. Canada (Minister for Industry, Trade & Commerce), [1984] 1 F.C. 939 (T.D.)
3 The exempting provisions are summarized in Chart form in Annex B
4 Rubin v. Canada (Minister of Transport) ) (1997), [1998] 2 F.C. 430 (C.A.)
6 Dagg v. Canada (Minister of Finance) [1997] 2 S.C.R. 403, per La Forest at pages 432-433
7 Access to Information Extension Order No. 1, SOR/89-201 extended the right of access to all other individuals and corporations present in Canada.
8 "Record includes any correspondence, memorandum, book, plan, map, drawing, diagram, pictorial or graphic work, photograph, film, microform, sound recording, videotape, machine readable record, and any other documentary material, regardless of physical form or characteristics, and any copy thereof"
9 Rubin v. Canada (Central Mortgage and Housing Corporation), [1989] 1 F.C. 265 (C.A.)
11 Canada Packers Inc. v. Canada (Minister of Agriculture), [1989] 1 F.C. 47 (C.A.); Piller Sausages & Delicatessens Ltd. v. Canada (Minister of Agriculture), [1988] 1 F.C. 446 (T.D.)
13 Canadian Jewish Congress v. Canada (Minister of Employment and Immigration), [1996] 1 F.C. 268 (T.D.);Canadian Council of Christian Charities v. Canada (Minister of Finance), [1999] 4 F.C. 245 (T.D.)
15 Hutton v. Canada (Minister of Natural Resources) (1997), 137 F.T.R. 110 (F.C.T.D.)
16 See Treasury Board Manual - Access to Information, Exemptions - General (Chapter 2-7), s. 8.2.
17 See Canadian Council of Christian Charities v. Canada (Minister of Finance), Supra. But see the decision of the Federal Court of Appeal dealing with the exercise of discretion under sections 21 and 22 of the Privacy Act in Ruby v. Canada (Solicitor General), [2000] 3 F.C. 589 (C.A.) (leave to appeal to the SCC granted January 18, 2001)
18 Report of the Standing Committee on Justice and Solicitor General on the Review of the Access to Information Act and the Privacy Act. Open and Shut: Enhancing the Right to Know and the Right to Privacy, 1987 Recommendation 3.1, p. 20. Annual Report of the Information Commissioner, 1994.
