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

PART II - OTHER JURISDICTIONS - PROVINCIAL

The provincial legislation which was reviewed for the purposes of this report is, by and large, structured in a manner which is very similar to the structure of the federal Act. The most significant difference, in all cases, is that the provincial legislation combines freedom of information legislation and protection of personal information legislation into one statute. Canada, on the other hand, has two separate statutes and two separate commissioners. Although the Privacy Act and the Access to Information Act were passed at the same time, and clearly were intended to complement one another and offer a seamless regime for access to, and the protection of, information held by the government, the existence of the two statutes, which are not quite identical, and the two commissioners, with somewhat different priorities, has arguably led to a somewhat less coherent development of privacy and access principles at the federal level than is seen at the provincial level.

A brief overview of the legislation in each of the five provinces which were considered is presented below. Chart 3 at Annex D compares the use of class exemptions as opposed to injury or harm-based exemptions between Canada and these provinces. In addition, Chart 4 at Annex E compares the use of mandatory as opposed to discretionary exemptions between Canada and these provinces.

Alberta ⁽¹⁹⁾

Alberta has had legislation dealing with access to information since 1994 when it enacted the Freedom of Information and Protection of Privacy Act. This legislation follows a structure similar to that of the federal legislation. Section 2 provides that access to information is to be the rule and that exceptions are to be limited and specific. Section 3 confirms that the legislation is intended to augment existing procedures for access to government information, not replace them.

Sections 15 through 28 set out the exemptions from disclosure. Generally speaking, the approach is similar to that which is found in the federal legislation in that the exemptions are a mixture of class and injury-based exemptions. In some cases the exemption is a mandatory one and in others the government institution has a discretion as to whether it will claim the exemption or not.

Unlike the federal commissioner, who may only make recommendations with respect to the release of information or any other matter under the legislation, the Alberta commissioner, like most of his provincial counterparts, has the power to order that information be released or that any duty under the legislation which has not been performed be performed.

The Alberta legislation does not have a direct equivalent to section 24 of the federal legislation. Rather, it provides, in section 5, that the access legislation prevails unless another act or regulation that has a provision or provisions which are inconsistent specifically provides that it prevails.

Cabinet confidences are not excluded. They are addressed in an exemption.

Class vs. Injury or Harm-Based Exemptions

The Alberta legislation has fewer class exemptions than its federal counterpart. The following categories of information are exempted on the basis of class:

Section 18, information which is a confidential personal evaluation;

Section 22, information received from another government;

Section 23, information which is advice and recommendations; and

Section 26, information which is subject to any type of legal privilege.

All other exempting provisions, including the one relating to personal information, are based on an evaluation of invasion of privacy, harm, injury or prejudice. ⁽²⁰⁾

Mandatory vs. Discretionary Exemptions

Similarly, the Alberta legislation places far less reliance on mandatory exempting provisions. For the most part, the exempting provisions are discretionary. In fact, the only mandatory provisions in the Alberta legislation relate to:

Section 16, personal information;

Section 15, third party commercial information; and

Section 26, information which is subject to a legal privilege and which belongs to a third party.

In addition, Alberta, like the other provinces, does not provide a complete exemption from the application of the legislation for Cabinet confidences. Under section 69 of the Access to Information Act, the legislation does not apply to Cabinet confidences at all. This is consistent with the federal position, as also expressed in section 39 of the Canada Evidence Act, that Cabinet confidence represents an absolute privilege. Alberta and the other provinces have adopted the common law position which is that Cabinet confidence privilege is a public interest privilege which may be waived or, in appropriate circumstances, overridden by the Court in favour of the public interest in disclosure. ⁽²¹⁾ However, under the Alberta Freedom of Information and Protection of Privacy legislation, Cabinet confidence documents are, depending on their age, mandatorily exempt from disclosure (s. 21). If the information is more than fifteen years old, or if the information consists of background facts and the decision to which it relates has been made public or five years has passed, the information may be released.

Use of a Public Interest Override

Like its federal counterpart, the Alberta legislation subordinates the right of access to the exempting provisions. Subsection 6(2) provides as follows:

The right of access to a record does not extend to information excepted from disclosure under Division 2 of this Part, but if that information can reasonably be severed from a record, an applicant has a right of access to the remainder of the record.

However, unlike the federal legislation, section 31 of the Alberta legislation provides a general public interest override with respect to specified issues. Indeed, section 31 requires the release of information about public health, safety and environmental issues whether or not there has been a request for access to the information. In addition to the applicant, the information may be disclosed to the public generally, to a particular group which is affected or to any person who is affected. The information must relate to:

(a) A risk of significant harm to the environment or to the health or safety of the public, of the affected group of people, or the person or of the applicant, or

(b) Information the disclosure of which is, for any other reason, clearly in the public interest.

Specific public interest overrides are also found in the following provisions:

Section 16(2)(b), Personal information where "there are compelling circumstances affecting anyone's health or safety and notice of the disclosure is mailed to the last known address of the third party".

Subsection 16(5), With regard to personal information there is a general provision setting out a number of factors which the head of a public body must take into account and consider when determining, in all of the relevant circumstances, whether disclosure of personal information constitutes an unreasonable invasion of a third party's personal privacy. Some of the elements to be considered in this exercise of discretion do relate to the public interest in public health and safety, protection of the environment and public interest in subjecting the activities of public bodies to public scrutiny.

British Columbia ⁽²²⁾

British Columbia's legislation has been in place since 1993. Section 2 sets out the purposes of the legislation:

2(1) The purposes of this Act are to make public bodies more accountable to the public and to protect personal privacy by

(a) giving the public a right of access to records,

(b) giving individuals a right of access to, and a right to request correction of, personal information about themselves,

(c) specifying limited exceptions to the rights of access,

(d) preventing the unauthorized collection, use or disclosure of personal information by public bodies,

(e) providing for an independent review of decisions made under this Act; and

(2) This Act does not replace other procedures for access to information or limit in any way access to information that is not personal information and is available to the public.

The exempting provisions are found in sections 12 to 22 and, like the Alberta legislation, rely less on class exemptions and mandatory exemptions than the federal Act.

The Commissioner in British Columbia, like his Alberta counterpart, has the power to order that information be released or that any duty imposed by the legislation be performed.

The British Columbia legislation does not have an equivalent to Section 24 either. Section 79 provides that the access legislation prevails if there is an inconsistency unless the inconsistent statute provides that it applies notwithstanding the access legislation.

Cabinet confidences are addressed by an exemption.

Class vs. Injury or Harm-Based Exemptions

Class exemptions are limited to:

Section 12, cabinet and local public body confidences unless the information is more than 15 years old or the decision has been made public or the decision is more than 5 years old (Cabinet confidences), or the information is a draft of a resolution, bylaw, other legal instrument or private Bill or the subject matter of deliberations that have been considered at a public meeting or is more than 15 years old (local public body confidence);

Section 13, policy advice, recommendations or draft regulations, if less than 10 years old; and

Section 14, solicitor client privilege.

In addition, section 20 exempts information that will be released within 60 days.

The exemption for personal information is expressed in subsection 22(1) in terms of the disclosure being "an unreasonable invasion of a third party's personal privacy".

All other exemptions are expressed in terms of the harm that the disclosure of the information could reasonably be expected to cause.

Mandatory vs. Discretionary Exemptions

There are really only three mandatory exemptions under the British Columbia legislation:

Subsection 12(1), Cabinet confidences;

Section 21, harmful to the business interests of a third party; and

Section 22, harmful to personal privacy.

In addition, section 16 exempts information, the disclosure of which would be harmful to intergovernmental relations or negotiations. While the exemption is expressed in terms of "may", subsection (2) allows the disclosure only if the Attorney General (law enforcement information) or the Executive Council (any other type of information) consents.

Use of a Public Interest Override

Section 25 provides for a general public interest override which is expressed in terms which are similar to those used in the Alberta legislation. The section applies, whether or not an access request has been made. It, therefore, imposes a public duty of disclosure when:

(a) There is a risk of significant harm to the environment or to health or safety; or

(b) The disclosure is, for any other reason, clearly in the public interest.

Manitoba ⁽²³⁾

The Manitoba legislation, also known as the Freedom of Information and Protection of Privacy Act, was enacted in 1996 and came into force in 1998. Legislation dealing with access to provincial government information only (this legislation includes municipalities) has been in place since 1988. Section 2 defines the purposes of the Act, as those purposes relate to access to information, as being "to allow any person a right of access to records in the custody or under the control of public bodies, subject to the limited and specific exceptions set out in this Act."

The Manitoba legislation also specifically provides, in section 3, that the rights of access under the legislation are in addition to, and do not replace, existing procedures for obtaining access to records or information normally available to the public. Complaints with respect to the administration of the Act, including complaints in respect of refusals to provide information, are made to the Ombudsman. Like the federal Access to Information Commissioner, and unlike most provincial regimes, the Ombudsman only makes a report with respect to a complaint regarding the administration of the Act. An individual who is dissatisfied with a government response in that he or she has been refused access to a record or a part of a record, may appeal that decision to the courts. As with the federal Act, an appeal may be made to the court only after a complaint has been made to the Ombudsman and he has issued a report.

The exempting provisions are found in Divisions 3 and 4 and are divided between mandatory exceptions to disclosure (sections 17-20) and discretionary exceptions to disclosure (sections 21-31). Information that is or will be available to the public may be refused under the Act. The information must either already be available to the public or it must be made available within 90 days after the applicant's request.

Subsection 5(2) of the legislation deals with the relationship between the Act and other legislation. If a provision of the Act is inconsistent, or in conflict, with a provision of another statute, the access legislation prevails unless the other statute provides that its provisions are to be applicable despite the access legislation.

Class vs. Injury or Harm-Based Exemptions

Class-based exemptions in the legislation are found in the following provisions:

Paragraph 18(1)(a), trade secrets of a third party;

Paragraph 18(1)(b), confidential commercial, financial, labour relations, scientific or technical information supplied in confidence by a third party;

Subsection 18(2), tax information about a third party;

Subsection 19(1), Cabinet confidences;

Section 20, information provided by another government;

Section 22, local public body confidences;

Section 23, advice to a public body;

Section 27, solicitor-client privilege; and

Section 30, confidential evaluations about the applicant which have been provided in confidence.

Mandatory vs. Discretionary Exemptions

Division 3 of the Manitoba legislation provides for mandatory exemption of information in only a few cases. The following exemptions are mandatory:

Section 17, disclosure would be harmful to a third party's privacy;

Section 18, disclosure would be harmful to a third party's business interests;

Section 19, Cabinet confidences;

Section 20, information provided by another government.

The balance of the exemptions in Division 4 (sections 21-31) are all identified as discretionary exemptions.

Use of a Public Interest Override

The Manitoba legislation contains a specific provision for a public interest override in subsection 18(4), for disclosure of third party commercial information. The disclosure is permissible when, in the opinion of the head of the public body, the private interest of the third party in non-disclosure is clearly outweighed by the public interest in disclosure for the purposes of:

(a) Public health or safety or protection of the environment;

(b) Improving competition; or

(c) Government regulation of undesirable trade.

There is no general public interest override similar to that which we have seen in the Alberta and the BC legislation.

Ontario ⁽²⁴⁾

Ontario has had freedom of information and protection of privacy legislation since 1988. The purposes of the statute are set out in section 1 and, as they relate to access to government information, are as follows:

(a) To provide a right of access to information under the control of institutions in accordance with the principles that,

(i) Information should be available to the public,

(ii) Necessary exemptions from the right of access should be limited and specific, and

(iii) Decisions on the disclosure of government information should be reviewed independently of government.

The Information and Privacy Commissioner of Ontario is charged with oversight of the legislation. The Commissioner has the power to make determinations with respect to whether or not information should be released or whether exemptions may be claimed. Decisions of the Commissioner are binding on government institutions, but they may be reviewed by way of an application for judicial review to the Divisional Court. At the municipal and local level, Ontario has separate, but comparable, legislation governing municipalities, school boards, hospitals, community colleges and other local public bodies. ⁽²⁵⁾

The right of access to information in Ontario is based on a right of access to records and the exemptions are phrased in terms of an obligation, or a discretion, to refuse to disclose a record.

Ontario treats the conflict between its access legislation and other statutes in a manner which is similar to that of the other provinces which we have reviewed. Section 67(1) provides that the legislation prevails over the confidentiality provisions in any other legislation unless:

a) the other legislation specifically provides otherwise; or

b) the other statutory provision is listed in subsection 67 (2)

There are thirteen confidentiality provisions from other statutes which are currently listed in subsection 67 (2).

Class vs. Injury or Harm-Based Exemptions

Class exemptions in the Ontario legislation are found in the following provisions:

Section 12, cabinet records;

Section 13, advice to government;

Subsection 14(2), certain law enforcement records;

Paragraph 17(1)(d), information supplied to or the report of a conciliation officer, mediator, labour relations officer or other person appointed to resolve a labour relations dispute;

Subsection 17(2), tax information of third parties;

Paragraph 18(1)(a), trade secrets or financial, commercial, scientific or other technical information that belongs to the government of Ontario or an institution of the government and has monetary value or potential monetary value;

Paragraph 18(1)(e), positions, plans, procedures criteria regarding negotiations to be carried on by the government;

Paragraph 18(1)(f), plans relating to the management of personnel;

Paragraph 18(1)(h), questions to be used on an examination or test for educational purposes;

Paragraph 18(1)(i), submissions under the Municipal Boundary Negotiations Act before the matter to which the submissions relate is resolved;

Section 19, solicitor-client privilege.

Information which is either already publicly available or which is soon to be published need not be disclosed in accordance with the provisions of section 22.

Mandatory vs. Discretionary Exemptions

As with the other legislation that we have looked at, mandatory exemptions under the Ontario legislation usually apply when the information originates from a third party or is cabinet information. Mandatory exemptions are:

Section 12, cabinet records;

Section 17, third party information; and

Section 21, personal information.

Use of a Public Interest Override

The Ontario legislation refers to the public interest in several sections. Section 11 provides that the head of a government institution shall disclose any record to the public or to the persons affected by the information in the record if he or she has reasonable and probable grounds to believe that it is in the public interest to do so, and that the record reveals a grave environmental, health or safety hazard to the public. This obligation to disclose is not contingent on there having been a request for the record pursuant to the Act.

Paragraph 21(1)(d), dealing with personal information, also provides for an exception to the prohibition against disclosure of personal information, which is raised in terms of the public interest. The provision in question allows for disclosure of personal information "in compelling circumstances affecting the health or safety of an individual, if upon disclosure notification thereof is mailed to the last known address of the individual to whom the information relates".

Section 23 specifically provides that the following exemptions from disclosure do not apply where a compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption:

Section 13 - advice to government;

Section 15 - relations with other governments;

Section 17 - third party information;

Section 18 - economic and other interests of Ontario;

Section 20 - information the disclosure of which could reasonably be expected to seriously threaten the safety or health of an individual;

Section 21 - personal information; and

Section 21.1 - injury to fish and wildlife species at risk.

Québec ⁽²⁶⁾

The Québec legislation is approximately the same age as the federal legislation, having also been introduced in 1982. The legislation applies to documents including those recorded in writing as well as print, on sound tape or film, in computerized form, or otherwise. The legislation applies not only to the provincial government, but also to municipal bodies, school bodies and health and social services institutions.

The right of access is expressed in section 9 and provides as follows:

Every person has a right of access, on request, to the documents held by a public body.

However, the legislation specifically provides that "the right does not extend to personal notes written on a document or to sketches, outlines, drafts, preliminary notes or other documents of the same nature". Accordingly, there is a significant body of information which is simply excepted from the right of access as stated in the legislation. As with the legislation in other provinces, there are certain other restrictions which limit the application of the statute to situations where information has already been published or is about to be published or made public.

Section 168 of the Québec statute provides that the access legislation prevails over any contrary provision in a general law which is subsequently enacted unless that law expressly states that it applies notwithstanding the access legislation. Section 169 provides:

Subject to section 170, every provision of any general law or special Act that is inconsistent with the provisions of Chapter II respecting access to documents held by public bodies or the provisions of Chapter III respecting the protection of personal information ceases to have effect on 31 December 1987.

The same applies to every provision of a regulation that is inconsistent with the provisions of this Act or of a government regulation passed under this Act.

Section 170 provides that the provision in statutes listed in Schedule A to the legislation continue to have effect notwithstanding the access legislation.

Section 178 provided for a review of any statutory or regulatory provision referred to in section 169 by October 1, 1985 and a determination of the admissibility of maintaining any such provision or amending it.

Class vs. Injury or Harm-Based Exemptions

The Québec statute, again like its counterparts in the other provinces, expresses restrictions on the right of access in terms of exemptions which are either described as class-based or which are triggered by the determination that release of information would cause injury or harm. Class exemptions are as follows:

Section 18 - Information received from a government other than that of Québec;

Section 22 - Industrial Secrets of a Public Body;

Section 23 - Industrial secrets of a third person;

Section 27 - Studies prepared for the purposes of taxation, tariffing or the imposition of dues;

Subsection 28 (7) - Information transmitted in confidence by a police force having jurisdiction outside Québec;

Section 30 - Executive Council or Treasury Board decisions

Section 31 - Draft legal opinions or draft bills or regulation

Section 33 - Internal executive matters;

Section 34 - Member of the National Assembly documents;

Section 35 - Records of the deliberations of a meeting of the Board of Directors or members of a public body (15 year limitation);

Section 36 - A preliminary draft of a bill or regulation (10 year expiry);

Section 37 - Recommendations or opinions of public servants;

Section 38 - Recommendations or opinions from an agency or made by the government institution, but only until the final decision is made public;

Section 39 - Study in connection with a recommendation (5 year limitation);

Section 40 - Aptitude testing.

In the Québec legislation, personal information is not treated as an exemption. Indeed, Chapter III is devoted to the protection of personal (nominative) information, including its confidentiality. Section 59 specifically deals with the limited circumstances in which personal information may be released.

Again, the other exemptions are phrased in terms of the harm, prejudice or injury which could result if the information were to be released.

Mandatory vs. Discretionary Exemptions

The exempting provisions under the statute are clearly divided between those exemptions in which the government "may" refuse to disclose information and those which are expressed as "no public body may release…" or "a public body must refuse". Mandatory exemptions are found in:

Section 23 - Industrial secrets of a third person;

Section 24 - information supplied by a third party if its disclosure would likely hamper negotiations or result in losses or gains for the third party;

Section 28 - prevention, detection or repression of crime or statutory offences;

Section 29 - Information concerning a method or weapon that is likely to be used to commit a crime or a statutory offence;

Section 29.1 - Information in a quasi-judicial decision where order not to release;

Section 33 - Cabinet confidences (25 years);

Section 34 - documents of members of the National Assembly.

Use of a Public Interest Override

The Québec legislation does not include a general public interest override. Section 26 provides an override to sections 22 (public body industrial secret), 23 (Third Party industrial secret) and 24 (Third Party injury) if "the information reveals or confirms the existence of an immediate hazard to the health or safety of persons or a serious or irreparable impediment to their right to a healthy environment."

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¹⁹ Freedom of Information and Protection of Privacy Act, R.S.A. c. F-18.5

²⁰ See Annex D, Chart 3

²¹ Carey v. Ontario [1986] 2 S.C.R. 637

²² Freedom of Information and Protection of Privacy Act, RSBC 1996, c. 165

²³ Freedom of Information and Protection of Privacy Act, S.M. c. F175

²⁴ Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F-31

 ²⁵ Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c.M.56, as amended

²⁶ An Act Respecting Access to Documents Held by Public Bodies and the Protection of Personal Information, S.Q. c. A-2.1