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

V. Considerations for Reform

i. Reform must be in accordance with the purposes of the Act

Any amendment to or repeal of section 24 must accord with the purposes set out in section 2 of the Act and requires analysis of a number of issues. Luc Juillet and Gilles Paquet have articulated the balancing of purposes inherent in access to information regimes as follows:

The first principle [guiding policy on access to information] is the rule of disclosure by default. It places on government the burden of proof for demonstrating that some requested information should be kept confidential. Recognizing the social value of the wide dissemination of public information in the information society, governments must start with the premise that citizens can access, upon request, all the information in their possession.

...

This first principle of broad disclosure must however be tempered by a second principle of necessary confidentiality to guarantee that excessive transparency does not result in personal harm or unreasonably hamper the ability of the state to operate effectively in the public interest. ⁽⁷⁾

Any amendment to section 24 and Schedule II must be consistent with the balancing of these twin purposes. It is noted that many provincial and international freedom of information laws contain provisions stipulating that the access to information regime will prevail over any conflicting enactment unless the latter expressly provides otherwise. This type of protection, then, may well have a place within this type of legislative scheme, but must be carefully crafted to ensure that its application does not undermine the goals of openness and accountability and render the scheme difficult to understand and apply. A delicate balance must be established and maintained that will ensure the integrity of the right to access while continuing to protect interests in confidentiality in some areas.

ii. Statutory Criteria

At present, section 24 provides a mandatory prohibition on the release of information the disclosure of which is regulated under the specific statutory provisions set out in Schedule II. Amendments are made to Schedule II as consequential to the enactment of other Acts. However, there is no direction in the Act as to what types of provisions should be included in Schedule II. There is a concern that unchecked growth in the number of provisions included under Schedule II could undermine openness and accountability and, as noted above, could make the Act more difficult to understand and apply.

To address this concern, the Act could be amended to include transparent criteria designed to guide decisions as to whether a particular statute ought to be included in Schedule II. In addition, periodic review of Schedule II and ongoing reporting of the effectiveness of these provisions in promoting the purposes of the access to information scheme could help to ensure that only those provisions that met the appropriate criteria were included.

Exemption 3 in the United States legislation provides an example of statutory direction regarding what types of regimes should be paramount over the primary Act. Exemption 3 states that access rights do not apply to matters that are specifically exempted from disclosure by another statute under certain conditions. The U.S. Freedom of Information Act provides an exemption for:

[Matters that are] specifically exempted from disclosure by statute...provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld; ⁽⁸⁾

It is noteworthy that in the form that it was originally introduced by the administration of the Right Honourable Joe Clark in 1979 and again by the administration of the Right Honourable Pierre Trudeau in 1980, the Act precisely mirrored the language of Exemption 3. ⁽⁹⁾ Section 24 and Schedule II could be amended to provide for the type of protection contemplated under Exemption 3. However, if this approach were adopted, it would be prudent to carefully consider what criteria a statutory restriction on disclosure would have to meet in order to be effective in promoting the purposes of the Act. An Exemption 3-type of provision could, with a show cause type mechanism, serve to limit the unchecked growth of the enumerated provisions. That is, establishing clear policy guidelines to support exemptions to disclosure outside of the access to information regime would serve to limit the potential of section 24 to be used in a manner that would undermine the purposes of the Act.

iii. Limiting the number of provisions listed in Schedule II

Steps should be taken to prevent Schedule II from continuing to expand, as it has done very considerably since 1983. In his 2000-2001 Report, the present Commissioner asserted that additions to Schedule II occur "largely unnoticed in the back pages of other legislation as a 'consequential amendment' to the ... Act" ⁽¹⁰⁾. Amending the Act to make it more difficult to add a statutory provision to the Schedule II list and making it easier to remove the provisions could also help check the growth of the Schedule and could help ensure that section 24 and Schedule II are not used as a means to circumvent the principles underlying the scheme. Even if statutory criteria are not adopted, it would be prudent to consider other methods of restricting the expansion of Schedule II.

iv. Providing for discretion in the application of section 24

The Act could be further amended to address the problems which arise from the mandatory prohibition that section 24 contains.

Section 24 could be amended to provide that:

The head of a public body shall refuse disclosure of information if such disclosure is prohibited under a provision set out in Schedule II, or shall provide disclosure in accordance with provisions set out in Schedule II.

This would have the effect of ensuring that the prohibition or restriction on disclosure in the Act itself is not broader than that set out in the relevant legislation.

In our view, this would also achieve the effect of bringing a substantive review of a decision for non-disclosure pursuant to a provision set out in Schedule II within the jurisdiction of the Commissioner. Although the decision will be made in accordance with the provisions of other legislation, because that legislation is, in a sense, incorporated into section 24, the application of those provisions will be subject to review by the Commissioner. This would address the concern of the Parliamentary Committee that there be a full independent review of decisions to deny access, as contemplated in the overarching purpose clause in the Act.

v. Ongoing review of the enumerated provisions

Alternatively, Government should undertake a systematic review of the list of provisions set out in Schedule II. This review could analyse the enumerated provisions to determine whether the information they address would be otherwise protected under the Act, in order to ensure that inclusion of a particular provision in the Schedule did not result in unnecessary overlap and duplication. Where the provision provides an exemption not available under the Act, a committee could be charged with the task of assessing whether there was good reason to treat a particular type of information differently. Finally, such a committee could, from time to time, return to the first principles informing the access to information regime in an effort to ensure that the types of information protected under Schedule II did not reveal important gaps in the Act itself. That is, where the information warranted special protection under Schedule II, but would not be otherwise covered by the Act, this might reveal areas where the Act itself should be amended.

Both the Committee of the House of Commons and the then Information Commissioner advocated retaining certain "unnecessary" provisions in Schedule II. In his brief to the Committee, the Commissioner specifically stated as follows:

There are a few instances where the rule of non-disclosure is inviolate, and should remain so. Information supplied by individuals and corporations to Statistics Canada, information under the Corporations and Labour Unions Return Act, IncomeTax Act returns and audit procedures used by Revenue Canada are obvious examples.

In these cases, even though provisions of the Access to Information Act other than section 24 are sufficient to sustain an exemption, there may be merit in reinforcing the absolutely confidential nature of this type of government record. ⁽¹¹⁾

In order to enhance public confidence in certain vital areas of federal regulation, it may well be appropriate to retain certain key provisions which at least appear to provide extra protection to certain types of information, even if they in fact offer no more protection than would be available under the Act. In these types of instances, extraordinary protection might be deemed to be warranted. However, if section 24 and Schedule II are currently being used to protect information that would not otherwise be exempted from disclosure under the Act, and that protection is deemed to be warranted, this may indicate that there is a gap in the application of the Act that ought to be addressed in a more comprehensive manner, perhaps by amendment of the Act to exempt this new category of information.

The provisions listed in Section II fall into three categories. First, there are some which are wholly duplicative of the Act or otherwise on their face seem to be unnecessary. It would appear that these provisions should be eliminated immediately. A second category includes those which are generally understood to be necessary and effective, such as those in the Income Tax Act and the Statistics Act. A third category consists of those provisions which require further consultation and research to determine if they are indeed necessary and appropriate. It would be beneficial to provide for a periodic review of the Schedule by a Parliamentary committee or other body, and to consider providing a more flexible mechanism for deleting provisions from the Schedule if they are found to be unnecessary or otherwise inappropriate.

As indicated in the chart found at Appendix I ⁽¹²⁾, the information covered by certain provisions in Schedule II of the Act either does not fall within an existing exemption, or we cannot be conclusive as to whether it is fully covered by an exemption due to its diversity. The provisions dealing with such broad classes of information likely warrant further study to determine whether they are necessary and otherwise appropriate.

vi. Comprehensive

Apart from its other deficiencies, and despite the current size of Schedule II, section 24 does not appear to provide an exhaustive list of confidentiality provisions in other acts. Sections in other federal statutes, which do not appear in Schedule II, provide that they apply "notwithstanding" the Act. ⁽¹³⁾

In order to provide one comprehensive scheme addressing matters of federal access to information, Schedule II should include all the statutory provisions which prevail over the Act. Those Acts which provide that they apply notwithstanding the Act should be reviewed. If it is determined that it is appropriate to have them prevail over the Act, they should be listed in Schedule II or consideration should be given as to whether a new category of exempted information should be included in the Act itself to provide for more comprehensive protection.

In many jurisdictions, access to information statutes include a section which provides that those Acts prevail over any conflicting enactment unless the latter expressly provides otherwise (a "notwithstanding section"). For example, this kind of provision can be found in the British Columbia, Manitoba and Quebec freedom of information legislation. Section 67(2) of the Ontario Freedom of Information and Protection of Privacy Act (the "Ontario Act") goes on to specifically identify the statutory provisions that are to prevail over the Ontario Act. ⁽¹⁴⁾

As noted above, section 4 of the Act provides a right of access to records which is only subject to the Act itself. This right exists "notwithstanding any other Act of Parliament." As a result, if section 24 were repealed, the confidentiality provisions of other statutes would remain in force; however, pursuant to section 4 of the Act, they would not be paramount over the Act unless they specifically provided for that result. ⁽¹⁵⁾ Among other things, an untenable situation could result where those confidentiality provisions make it an offence to disclose information other then in accordance with those provisions.

The principal difficulty in relying on the notwithstanding section in the Act (accompanied by confidentiality provisions in other statutes which explicitly prevail over the Act) is that it would reduce the usefulness of the Act as a complete code. It is our opinion that for Canadians seeking access to their government's information, the goals of transparency and certainty are better served by including in one statute a reference to all statutory provisions which limit or prohibit access to government information.

vii. Repeal of section 24 and Schedule II

Finally, if Section 24 and Schedule II were repealed, we would recommend that all statutory provisions that are to specifically prevail over the Act be listed in the Act. This would require a consequential amendment to the Act each time such a provision is included in a new Act. However, establishing an exhaustive list would serve the purpose of collecting, in one place, all exemptions to the general right to access government information. We would also recommend that these provisions be listed in the Act, not, as in the Alberta regime, merely in a regulation. Once again, in order to have all the limits on access to government records at least referenced in one place, we believe that the list should be situated in the main body of the Act.

This solution was also advanced in July 2001 by the Newfoundland Freedom of Information Review Committee, in a passage which merits citation in full:

At present, the Newfoundland and Labrador Freedom of Information Act is subordinate to any confidentiality provisions of other statutes. Section 9(1)(g), on non-discretionary exceptions, states that a person is not permitted access to information in records "that are, subject to an Act of the province, required to be kept confidential."

Most other jurisdictions in Canada take the opposite approach. In these jurisdictions, access legislation takes precedence over all other statutes, with such modifications as are necessary to preserve the confidentiality of information protected by other legislation. Alberta's Freedom of Information and Protection of Privacy Act, for instance, provides for the specific listing of sections of other Acts which are to prevail over the Information Act.

Establishing a similar regime within the Newfoundland and Labrador legislation would provide for ease of administration and create certainty of interpretation. It would be necessary to refer to just one Act (the Freedom of Information and Protection of Privacy Act) to determine if a particular item could be disclosed. New legislation with provisions to override the Act would also receive more scrutiny. ⁽¹⁶⁾

This proposal would likely not serve to bring the application of the various statutes under the supervisory jurisdiction of the Commissioner. As a result, those government institutions which refuse access based on confidentiality provisions other than those in the Act should be required to provide a summary of such activities. As noted above, a similar requirement is found in Exemption 3 to the U.S. Freedom of Information Act. Section 552(e) of that Act provides as follows:

(1) On or before February 1 of each year, each agency shall submit to the Attorney General of the United States a report which shall cover the preceding fiscal year and which shall include …

1. (ii) a complete list of all statutes that the agency relies upon to authorize the agency to withhold information under subsection (b)(3), a description of whether a court has upheld the decision of the agency to withhold information under each such statute, and a concise description of the scope of any information withheld; ⁽¹⁷⁾

A similar reporting requirement for those government institutions which deny access under provisions other than the Act would increase accountability and provide a mechanism for tracking the effectiveness of these provisions. We would also recommend that the Acts which apply notwithstanding the Act be periodically reviewed.

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VI. Conclusion

There are competing schools of thought as to whether section 24 and Schedule II serve a useful function within the federal access to information regime. Some believe that the provisions are necessary to ensure confidentiality, and the perception of confidentiality, within particular statutory schemes. Others are concerned that the combined effect of these provisions allows for an erosion of the purposes of the Act, by allowing exemptions from disclosure which are nototherwise contemplated under the access to information regime and by making the Act more difficult to understand and apply.

Any amendment to section 24 and Schedule II will require a careful balancing of interests to ensure that these concerns are adequately addressed in a manner that supports the underlying principles of the access to information regime. There are a number of options for reform that could address these concerns. Section 24 could be amended to provide that the exemptions in other Acts will continue to take precedence over the provisions of the Act, but only if those other Acts meet certain specified criteria. Section 24 could be left essentially as it is, but the list of provisions set out in Schedule II could be narrowed to address the concerns with respect to erosion of the Act. Section 24 could be amended to include a narrower list of statutory provisions and to remove the reference to the mandatory prohibition on disclosure such that there would be some discretion to be exercised under the Act. Finally, section 24 could be repealed and replaced with a list of confidentiality provisions in other legislation that would expressly prevail despite the Act, with a listing of such sections in the Act.

Criteria could be established, and included in the Act itself, to ensure that any provisions included in Schedule II in fact serve a function that accords with the purposes of the Act and do not undermine the effective application of the scheme. The provisions could be reviewed on a regular basis to ensure that they are appropriately included and to ensure that the inclusion of new provisions does not indicate unwarranted gaps or overlap in the scheme. Finally, application of section 24 and Schedule II could be reviewed on a regular basis to ensure that the scheme remains coherent and understandable so that it functions effectively to promote openness and accountability in governance.

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Footnotes:

7. Luc Juillet and Gilles Paquet, Centre on Governance, University of Ottawa, "Information Policy and Governance"
( http://www.atirtf-geai.gc.ca/paper-infopolicy-e.html ).

8. Freedom of Information Act, 5 U.S.C. § 552, para. b(3)

9. Open and Shut, supra footnote 2, at 114

10. Annual Report, supra footnote 4, at 58

11. Brief, supra footnote 2

12. Since the chart has been prepared without the assistance of the departments and agencies of the federal government that administer the provisions listed in the Schedule, it must be considered tentative at this time.

13. For example, the Canada Labour Code [s. 144(3) is in Schedule II, but s. 144(4) is not], the Hazardous Material Information Review Act [s. 46(1)], and the Hazardous Products Act [s. 12 is in Schedule II, but s.22(3) is not].

14. Alberta has a similar provision: Freedom of Information and Protection of Privacy Act, R.S.A. 1994, c. F-18.5, s. 5(2). However, in Alberta the listed provisions, rather than being in the act itself, are in the Freedom of Information and Protection of Privacy Regulation, Alta. Reg. 200/95, s. 17.

15. This conclusion results from the application of the ordinary rules of statutory interpretation to the effect that a subsequent, more specific expression of Parliament's intent will prevail over earlier, more general enactments.

16. The Freedom of Information Review Committee, Striking the Balance: The Right to Know & the Right to Privacy, vol. 1, (St. John's: the Queen's Printer, July 2001) at 25 (online: http://www.gov.nf.ca/publicat/FOI-Report-vol. 1.pdf)

17. Freedom of Information Act, 5 U.S.C. § 552