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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
ANNEX A
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Barbara McIsaac Barbara McIsaac is the Managing Partner of the Ottawa office of McCarthy Tétrault, LLP. She graduated from Queen's Law School in 1973 and was called to the Ontario Bar in 1975. She was in private practice in Ottawa from 1974 until 1983 when she joined the Civil Litigation Section of the Department of Justice. She returned to private practice, joining McCarthy Tétrault in 1994. Mrs. McIsaac practices mainly in the areas of public and administrative law, aboriginal law and commercial litigation. She served as Senior Counsel to the Somalia Inquiry. She was counsel on behalf of the Attorney General of Canada in such varied cases as Pioneer Hi-Bred in which the Supreme Court of Canada decided that the Patent Act does not permit the patenting of life forms; Mossop v. The Attorney General of Canada in which the Supreme Court of Canada ruled on the interpretation of the term 'family status' in the Canadian Human Rights Act; Southam v. The Queen in which the Ontario Court of Appeal ruled that the provisions of the Young Offenders Act prohibiting the publication of the names of victims or offenders did not violate the Charter; and Haig v. The Queen in which the Court of Appeal ruled that the Canadian Human Rights Act violates the Charter by failing to include sexual orientation as a proscribed ground of discrimination. In addition to a number of Charter and public law cases, Mrs. McIsaac has represented private clients and the Federal Government in cases involving contract disputes, environmental matters, product liability and tort claims and professional liability and employment matters. Access to Information and Privacy Issues Experience While with the Department of Justice, Mrs. McIsaac was the Co-ordinator of Litigation involving the Privacy and Access to Information Acts and was counsel in a number of court cases involving the interpretation and application of those statutes. She also provided advice to various government departments and agencies regarding the interpretation of the statutes and participated, with the Access to Information and Privacy Law section of the Department of Justice, in the Parliamentary review of the legislation. She was also involved in co-ordination with the Privacy and Access to Information Commissioners in respect of matters involving the application of the two statutes. Since returning to private practice, Mrs. McIsaac has represented the Government and Government Agencies, Private Parties and the Privacy Commissioner of Canada in access to information and privacy matters. She is a co-author of The Law of Privacy in Canada (Carswell, 2000), and is a frequent speaker on access to information and privacy issues.
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ANNEX B
CHART 1
| Section | Substantive Provision |
| 13 (1) (a) (b) (c) (d) | SHALL - information obtained in confidence from the government of a foreign state or an institution thereof; an international organization of states or an institution thereof; the government of a province or an institution thereof; or a municipal or regional government established by or pursuant to an Act of the legislature of a province or an institution of such a government |
| 13 (2) | MAY - disclose if consent or the information has been made public |
| 14 | MAY - Injurious to the conduct by the Government of Canada of federal-provincial affairs |
| 15 | MAY - Injurious to the conduct of international affairs, the defence of Canada or any state allied or associated with Canada or the detection, prevention or suppression of subversive or hostile activities |
| 16 (1) (a) | MAY - 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
(i) the detection, prevention or suppression of crime; (ii) the enforcement of any law of Canada or a province; or (iii) activities suspected of constituting threats to the security of Canada within the meaning of the CSIS Act - twenty-year limit |
| 16 (1) (b) | MAY - Information relating to investigative techniques or plans
for specific lawful investigations
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| 16 (1) (c) | MAY - 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 |
| 16 (1) (d) | MAY - Injurious to the security of penal institutions |
| 16 (2) | MAY - Could reasonably be expected to facilitate the commission of an offence |
| 16 (3) | SHALL - information that was obtained or prepared by the RCMP while performing policing services for a province or municipality pursuant to an arrangement made under section 20 of the RCMP Act, where the Government of Canada has, on request of the province or municipality agreed not to disclose such information |
| 17 | MAY - Could reasonably be expected to threaten the safety of individuals |
| 18 (a) | MAY - Trade secrets or financial, commercial, scientific or technical information that belongs to the Government of Canada or a government institution and has substantial value or is reasonably likely to have substantial value |
| 18 (b) | MAY - Could reasonably be expected to prejudice the competitive position of a government institution |
| 18 (c) | MAY - Scientific or technical information obtained through research by an officer or employee of a government institution, the disclosure of which could reasonably be expected to deprive the officer or employee of priority of publication |
| 18 (d) | MAY - Could reasonably be expected to be materially injurious to the financial interests of the Government of Canada or the ability of the Government of Canada to manage the economy of Canada or could reasonably be expected to result in an undue benefit to any person |
| 19 (1) | SHALL - Personal information |
| 19 (2) (a) | MAY - on consent |
| 19 (2) (b) | MAY - if publicly available |
| 19 (2) (c) | MAY - disclosure is in accordance with section 8 of the Privacy
Act
section 8 (2) (m) (i) public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure; or (ii) disclosure would clearly benefit the individual to whom the information relates |
| 20 (1) (a) | SHALL - Trade secrets of a third party |
| 20 (1) (b) | SHALL - Financial, commercial, scientific or technical information that is confidential information supplied to a government institution by a third party and is treated consistently in a confidential manner by the third party |
| 20 (1) (c) | SHALL - information the disclosure of which could reasonably be expected to result in material financial loss or gain to, or could reasonably be expected to prejudice the competitive position of, a third party |
| 20 (1) (d) | SHALL - information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of a third party |
| 20 (2) & (3) (4) | Product or environmental testing not to be refused except if done for third party for a fee - except if preliminary testing conducted for the purpose of developing methods of testing. Written explanation of methods used in conducting the test to be provided |
| 20 (5) | MAY - disclose if consent |
| 20(6) | MAY - disclose if disclosure 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 |
| 21 (1) (a) | MAY - Advice or recommendations developed by or for a government
institution or a minister of the Crown - 20 year limit
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| 21 (1) (b) | MAY - An account of consultations or deliberations involving officers or employees of a government institution, a minister of the Crown or the staff of a minister of the Crown - 20 year limit |
| 21 (1) (c) | MAY -Positions or plans developed for the purpose of negotiations carried on or to be carried on by or on behalf of the Government of Canada and considerations relating thereto - 20 year limit |
| 21 (1) (d) | MAY - Plans relating to the management of personnel or the administration of a government institution that have not yet been put into operation - 20 year limit |
| 21 (2) | But does not apply in respect of information relating to the exercise of a discretionary power or a report prepared by a consultant or an advisor who was not, at the time the report was prepared, an officer or employee of a government institution or a member of the staff of a Minister of the Crown |
| 22 | MAY - Testing procedures, test and audits if the disclosure would prejudice the use or results of particular tests or audits |
| 23 | MAY - Solicitor -client privilege |
| 24 | SHALL - Reference to other statutes |
ANNEX C
CHART 2EXEMPTIONS
| Injury/ Discretionary |
Injury/ Mandatory |
Class/ Discretionary |
Class/ Mandatory |
| 14 | 20 (1) (c) [but see (5) & (6)] (1) | 16 (1) (a) | 13 (1) [but see (2)] (2) |
| 15 | 20 (1) (d) [but see (5) & (6) | 16 (1) (b) | 16 (3) |
| 16 (1) (c) (d) | 18 (a) | 19 (1) [but see (2)] (3) | |
| 16 (2) | 21 (1) [but see (2) exceptions] (4) | 20 (1) (a) [but see (5) & (6)] | |
| 17 | 20 (1) (b) [but see (5) & (6)] | ||
| 18 (b) | 24 (1) | ||
| 18 (c) | |||
| 18 (d) | 23 | ||
| 22 |
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ANNEX D
CHART 3
COMPARISON WITH PROVINCES - CLASS EXEMPTIONS
ANNEX E
CHART 4
COMPARISON WITH PROVINCES MANDATORY EXEMPTIONS
ANNEX F
CHART 5
INFORMATION REGARDING HOW REQUESTS ARE PROCESSED
The information provided in this chart has been obtained from information published by Treasury Board regarding the processing of requests over a five year period.
| 1995-96 | % | 1996-97 | % | 1997-98 | % | 1998-99 | % | 1999-00 | % | |
| All Disclosed | 4327 | 34.1 | 4096 | 33.9 | 4080 | 33.8 | 5714 | 39.8 | 7491 | 40.5 |
| Part Disclosed | 4093 | 32.2 | 4203 | 34.8 | 4294 | 35.7 | 4836 | 33.8 | 6234 | 33.7 |
| Nothing Disclosed - Excluded | 97 | .8 | 71 | .6 | 95 | .8 | 47 | .4 | 62 | .3 |
| Nothing Disclosed - Exempted | 391 | 3.1 | 412 | 3.4 | 353 | 2.8 | 379 | 2.6 | 521 | 2.8 |
| Transferred | 223 | 11.8 | 257 | 2.1 | 206 | 1.7 | 226 | 1.5 | 306 | 1.7 |
| 1995-96 | % | 1996-97 | % | 1997-98 | % | 1998-99 | % | 1999-00 | % | |
| Unable to Process | 1919 | 15.1 | 1448 | 12 | 1660 | 13.8 | 1851 | 12.9 | 2267 | 12.3 |
| Abandoned | 930 | 7.3 | 1207 | 10 | 878 | 7.3 | 897 | 6.3 | 1175 | 6.4 |
| Informal | 722 | 5.6 | 386 | 3.2 | 464 | 3.9 | 389 | 2.7 | 433 | 2.3 |
| Total Requests Completed | 12702 | 100 | 12080 | 100 | 12030 | 100 | 14339 | 100 | 18489 | 100 |
ANNEX G
CHART 6
Exemptions Applied 2000-2001
ANNEX H
RECOMMENDATIONS OF THE STANDING COMMITTEE ON JUSTICE AND SOLICITOR
GENERAL
CABINET CONFIDENCES
3.22 The Committee recommends that the exclusion of Cabinet records found in section 69 of the Access to Information Act and section 70 of the Privacy Act be deleted. In its place, an ordinary exemption for Cabinet records should be added to the Access to Information Act and the Privacy Act. No injury test should be included in this exemption.
3.23 The Committee recommends that section 69(1)(a) [Cabinet memoranda], section 69(1)(b) [discussion papers] and section 69(1)(e) [Ministerial briefing notes], as well as section 69(3)(b) of the Access to Information Act [section 70(1)(a), (b) and (e) and section 70(3)(b) of the Privacy Act] be deleted. The amended exemption for Cabinet confidences should be drafted in the following terms:
1) The head of a government institution may refuse to disclose a record requested under this Act where the disclosure would reveal the substance of deliberations of the Queen's Privy Council for Canada, contained within the following classes of records:
(a) agenda of council or records recording deliberations or decisions of Council;
(b) a record used for or reflecting consultation among Ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy;
(c) draft legislation or regulations;
(d) records that contain information about the contents of any records within a class of records referred to in paragraph (a) to (c).
(2) For the purposes of subsection (1) "Council" means the Queen's Privy Council for Canada, committees thereof, Cabinet and committees of Cabinet.
3.24 The Committee recommends that the twenty-year exemption status for Cabinet confidences be reduced to fifteen years.
3.25 The Committee recommends that the Access to Information Act and the Privacy Act be amended to contain a specific framework for the review of Cabinet records. Appeals of decisions under the Cabinet records exemption should be heard solely by the Associate Chief Justice of the Federal Court, with procedures similar to those contemplated in section 52 of the Access to Information Act and section 51 of the Privacy Act.
Return to Table of Contents1. Subsection 20 (5) allows for disclosure with the consent of the Third Party; Subsection 20 (6) allows for disclosure where the public interest as it relates to public health, public safety or protection of the environment clearly outweighs in importance the injury specified in the exemption
2. Subsection 13 (2) allows for disclosure if the government organization or institution from which the information was obtained consents or makes it public
3. Subsection 19 (2) (a) allows disclosure if the individual to whom it relates consents; Subsection 19 (2) (b) allows disclosure if the information is publicly available; Subsection 19 (2) (c) allows disclosure if it is in accordance with section 8 of the Privacy Act.
4. Subsection 21 (2) excepts (a) an account of, or a statement of reasons for, a decision that is made in the exercise of a discretionary power or an adjudicative function and that affects the rights of a person; or (b) a report prepared by a consultant or an adviser who was not, at the time the report was prepared, an officer or employee of a government institution or a member of the staff of a minister of the crown.
