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Report 16 - Access to Information Review Task Force
SECTION 24 AND SCHEDULE II OF THE ACCESS TO INFORMATION ACT - STATUTORY PROHIBITION
AGAINST DISCLOSURE - OPTIONS FOR REFORM
Published: November 2001
Table of Contents
I. Introduction
II. Operation of section 24
III. Commentary on section 24
IV. Analysis
V. Considerations for Reform
VI. Conclusion
Appendix 1
I. Introduction
This Report has been prepared at the request of the Access to Information Task Force to provide a high level review of the statutory prohibitions set out in Schedule II of the Access to Information Act (the "Act") (1) and the implications of section 24 of the Act. Section 24 and Schedule II operate in conjunction to ensure exemption from disclosure where information is protected under certain statutory schemes other than the Act. The purpose of this type of provision is to ensure that information that requires express protection will not be subject to the Act and, thus, to provide a guarantee of confidentiality. This type of exemption provision is included in the access to information regimes of most other jurisdictions. Many of these jurisdictions provide that the access regime governs, except where the other enactment expressly states that it prevails. Others provide that the enumerated statutory provisions will prevail over the freedom of information legislation. The provision in Canada's federal access to information regime falls into this second category.
The combined effect of section 24 and Schedule II is that records sought under the Act must not be disclosed if the information in those records is subject to one of the growing list of provisions contained in Schedule II. Further, there is no right of independent review by the Information Commissioner ("the Commissioner") with respect to records of the kind contemplated under Schedule II. Some believe that section 24 and Schedule II are necessary to protect specific confidentiality regimes, while others believe that inclusion of this type of provision detracts from the principles and goals of open and accountable governance which underlie access to information regimes.
Time has not permitted an in depth analysis of each of the 66 provisions currently listed in Schedule II, nor have we consulted directly with the departments and agencies that administer these provisions. However, building upon earlier analyses and analogous experience in other jurisdictions, this Report
provides a tentative analysis of whether these other provisions are necessary, in whole or in part, and reviews options for amendments to the Act.
II. Operation of section 24
Section 24 provides:
The head of a government institution shall refuse to disclose any record requested under this Act that contains information the disclosure of which is restricted by or pursuant to any provisions set out in Schedule II.
Schedule II lists provisions contained in other legislation that contain restrictions of varying degree and kind to the disclosure of government information. When the Act was proclaimed in 1983, Schedule II listed 33 statutes containing some 40 provisions restricting disclosure. The Schedule currently includes 52 statutes which contain 66 provisions restricting disclosure.
The combined effect of section 24 and Schedule II is that information that would otherwise be subject to potential disclosure under the Act cannot be disclosed if such disclosure is in any way regulated by a provision set out in Schedule II. The relevant government institution is not required to demonstrate that the information falls within any of the other exceptions to disclosure set out in the Act. Rather, they must simply demonstrate that the disclosure of the information is somehow regulated by a provision in Schedule II.
While the provisions listed in Schedule II may allow for some degree of discretion regarding disclosure or for disclosure under certain specified conditions, the prohibition set out in section 24 is mandatory. This discrepancy has two fundamental effects. First, the scope of the public's right to disclosure is uncertain. Second, and perhaps most importantly, the role of the Commissioner in reviewing a denial of information pursuant to this section is limited to determining whether the disclosure is subject to a restriction under a provision set out in Schedule II. Requesters are denied the right of an independent review of decisions to withhold records sought under the Act: even if the other statute does not contain an absolute bar to disclosure and the Commissioner concludes that withholding of the record was unwarranted, the Commissioner has no ability to make findings or recommendations concerning the exercise of discretion to withhold or disclose the record under Schedule II.
III.Commentary on section 24
There are differing views as to whether section 24 and Schedule II serve to further the purposes of the Act. Some consider that the degree to which section 24 detracts from the objectives of the Act in promoting openness and accountability can be roughly gauged by the number of the provisions contained in Schedule II. However, others fear that effective administration of government information would be compromised if the provision were repealed. There are clearly a number of considerations which must be addressed in any attempt to amend, repeal or replace section 24 and Schedule II.
Recognizing the potential for section 24 to seriously erode the Act's effectiveness, Parliament required the content of Schedule II be reviewed. Section 24(2) of the Act provides:
Such committee as may be designated or established under section 75 shall review every provision set out in Schedule II and shall, not later than July 1, 1986 or, if Parliament is not then sitting, on any of the first fifteen days next thereafter that Parliament is sitting, cause a report to be laid before Parliament on whether and to what extent the provisions are necessary.
Pursuant to this provision, the Standing Committee on Justice and Solicitor General carried out a review of the Schedule II provisions as they existed in 1986. (2) The Committee concluded that, in general, it is not necessary to include Schedule II in the Act. Despite this recommendation, Schedule II not only remains in the Act, the number of statutory provisions that it contains has increased.
The Standing Committee found that most of the enumerated provisions in Schedule II protect either confidential business information or personal information and that the other exemption provisions of the Act provide ample protection for these interests. The Committee found that the only exceptions to this conclusion were with respect to the Income Tax Act, the Statistics Act, and the Corporations and Labour Unions Returns Act. The Committee suggested that while the Act likely does provide adequate protection, it is vital that the agencies administering these statutes be able to assure parties supplying information to them that absolute confidentiality will be maintained. As a result, the Committee concluded that special provisions were justified. The Committee recommended that the Act be amended to incorporate new exemptions explicitly addressing the interests reflected in those three statutes and that section 24 and Schedule II be repealed. The Committee also recommended that an extensive review of the other statutory restrictions be conducted and that these other statutory regimes be amended in a manner consistent with the Act and that all exemptions to access be brought within a single statutory regime.
"The Access to Information Act: A Critical Review" (3), a Report commissioned by the Information Commissioner, recommended that the Standing Committee's report be adopted. In addition, the 1994 report recommended that section 24 be subject to a public interest override, and that the Act set out not only those provisions which restrict access but those which require disclosure as well.
The Annual Reports of the Information Commissioner in 1993-1994 and 1999-2000 concluded
that the substantive exemptions in the Act render section 24 and the provisions set out in Schedule II unnecessary. The Commissioner has recently suggested, on the basis of his review of thousands of government held records relating to private business, that real secrets warranting protection are rare. (4) The Commissioner, in reference to the protection of confidential business information - one of the categories of information included in several of the enumerated provisions set out in Schedule II - has said that "[s]ounding the alarm of competitive disadvantage has become as reflexive in some quarters as blinking" and that concern for transparency in governance has been all but abandoned. Accordingly, any revisions to the Act must be in accordance with the underlying principles and goals of that legislation - namely, that government is intended to be accountable.
In his 2000-2001 Annual Report, the Commissioner also noted:
When Parliament adopted the right of access to government records, it included a very important phrase: "notwithstanding any other Act of Parliament" (section 4). The continuing growth of Schedule II now threatens to erase the vital constraint on creeping secrecy which those six words originally gave. (5)
However, consultations (6) with departments revealed that access to information co-ordinators and program managers are of the view that such provisions are necessary to protect the confidentiality regimes under program legislation. There is concern that if section 24 were repealed, the number of access requests to be processed would increase for certain institutions with no corresponding increase in the information that would actually be disclosed. In addition, those institutions who administer programs that rely on self-reporting by individuals and companies, such as tax programs based on self-assessment, are concerned that appropriate disclosure will not occur unless confidentiality is guaranteed. That is, there is concern that voluntary disclosure of information would be discouraged where assurances of confidentiality were no longer expressly provided. Even those concerned that section 24 detracts from the purposes of the Act do agree that special measures to ensure confidentiality are necessary in certain cases.
IV. Analysis
The future of section 24 raises two distinct kinds of somewhat related concerns. The first is primarily procedural. In order to facilitate public understanding of the statutory provisions surrounding access to government information, it is preferable for all the provisions relating to access to be found in a single statute. In addition, to the extent that the provisions in Schedule II are duplicative of issues addressed in the Act's various exemptions, it would facilitate efficiency and transparency if such overlap could be eliminated.
The second type of concern that must be addressed in any review of section 24 is whether allowing other statutory provisions to effectively override the Act undermines the underlying principles and goals of the access to information regime. The Act represents a balancing of the public interest in disclosure and the competing values, such as personal privacy and state security, which are reflected in the Act's exemptions. To the extent that section 24 is not duplicative of the other exemptions in the Act, it works to exempt records without reference to a particular value or public interest to be protected and which would otherwise be subject to disclosure under the policy of the Act. This raises a substantive concern regarding whether it is appropriate to have regimes for access which are contrary to the Act and outside of the supervisory framework which it provides.
The concerns regarding section 24 reflect a basic ambiguity in the purposes section of the Act. Section 2 of the Act provides:
(1) 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.
(2) This Act is intended to complement and not replace existing procedures for access to government information and is not intended to limit in any way access to the type of government information that is normally available to the general public.
At first blush there appears to be a possible tension between these two provisions. While 2(1) clearly states that the purpose of the Act is to extend present laws, subsection 2 suggests that the Act will not replace existing procedures for access to government information. This could be interpreted to mean that the scheme under the Act would only apply where there are no other provisions relating to access. However, section 4 states:
(1) Subject to this Act, but notwithstanding any other Act of Parliament, every person who is
- a Canadian citizen, or
- 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.
This suggests that any other more restrictive rules regarding access should give way to the Act. However, because section 24 and Schedule II of the Act then incorporate the other existing statutory regimes into the Act itself, it has been argued that the effectiveness of the notwithstanding provision in section 4 is impaired. On the other hand, the section 24 exemption was originally included as part of the balancing of public interests reflected in the Act. An ever-increasing list of items on Schedule II was not considered as part of that balance.
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Footnotes:
1. R.S.C. 1985, c. A-1, s.24.
2. Open and Shut: Enhancing the Right to Know and the Right to Privacy, Report of the Standing Committee on Justice and Solicitor General on the Review of the Access to Information Act and the Privacy Act, March 1987 at 116-117.
3. Sysnovators Ltd. "The Access to Information Act: A Critical Review: (Minister of Public Works and Government Services: Ottawa, 1994) at 42.
4. Information Commissioner of Canada, Annual Report Information Commissioner 2000-2001 at 74.
5. Ibid. at 59. The current British Columbia Information and Privacy Commissioner, David Loukidelis, has similarly warned against "creeping repeal" of the BC Act. In a March 30, 2001 letter to Joy MacPhail, then Minister of Education, Commissioner Loukidelis took issue with the government's amendment of the BC Act to include a subject-matter prohibition on the release of abortion information (Abortion Services Statutes Amendment Act, S.B.C. 2001, c. 8). His views echo those of the federal Commissioner. He asserted that the amendment was unnecessary in light of the existing exemptions in the BC Act.
6. http://www.atirtf-geai.gc.ca/consultation-e.html
