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Access to Information Review Task Force





 

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

Appendix I - Summary of Schedule II Provisions


Column i: Act

Column ii: Provision

Column iii: Summary of the Provision

Column iv: Type of Protected Information

Classification system adopted from AMain Brief to House of Common Standing Committee on Justice and Legal Affairs from Office of the Information Commissioner."

T - third party information
P - personal information
N - national security
L - law enforcement
G - government economic information
F - federal-provincial affairs

Column v: Type of Permitted Disclosure

Classification system adopted with modifications from AMain Brief to House of Common Standing Committee on Justice and Legal Affairs from Office of the Information Commissioner."

  1. Disclosure is prohibited to anyone.
  2. A Minister or senior official has discretion to disclose information to other government institutions as provided in the statute.
  3. The person responsible for determining whether disclosure will occur is not identified. Disclosure to other government institutions is permitted, usually on specified terms and conditions
  4. A Minister or senior official has discretion to disclose information outside the government for certain purposes, or upon satisfying a balancing-of-interests test permitting disclosure.

    Examples:
    • Minister may disclose for purpose of administration and enforcement of the statute
    • Minister may disclose for proceedings related to the administration and enforcement of the statute or other statutes, including prosecutions
    • Minister may disclose if a public interest which is specified in the statute is protected, or if warranted by a balancing of interests

  5. There is no specific authority designated to determine whether to allow disclosure. Disclosure outside the government is permitted if specific statutory criteria are met or upon satisfying a balancing-of-interests test.

    Examples:
    • disclosure for purpose of administration and enforcement of the statute
    • disclosure for proceedings related to the statute or other statutes, including prosecutions
    • disclosure to protect a specified public interest

  6. A Minister or senior official has a generally unrestricted discretion to allow disclosure to the public.

Column vi: Relevant Access to Information Act Exemptions

In this column, we have compared the relevant statutory provision with exemptions in the Act. We were only able to state conclusively that the provision is covered by an exemption in the Act for those marked with an asterix (A*@). In most other cases, we cannot be conclusive as to whether the provision is fully covered by an exemption in the Act. This is because most of the provisions in Schedule II deal with a broad class of information (e.g., all information obtained under an Act). In those cases, it may be that only some of the information relating to the provision will be covered by one of the Act=s exemptions. A more exhaustive study, going beyond a review of the statute=s wording, and including an analysis of the specific nature of the information actually collected under a given Act, may be appropriate to determine if in fact the provisions are already covered by an exemption in the Act. As stated in the body of the report, we do not comment on the public policy merits of the various provisions.

 

i. Statute ii. Provision iii. Summary of Provision iv. Protected Information v. Discl. vi. Relevant AI Act Exemptions
Aeronautics Act s. 4.8(1) Only the Minister shall disclose the substance of orders made in respect of aviation security, unless required by law or necessary to give effect to the order. Aviation security -

N, L

5, 6 15, 16, 17
  s. 6.5(5) Physician or optometrist shall inform a designated medical advisor of any medical condition that is likely to constitute a hazard to aviation safety. This information shall not be used in any legal, disciplinary or other proceedings. The Minister can use this information otherwise as necessary in the interests of aviation safety. Medical records -

P

4 19
Anti-Inflation Act, S.C. 1974-75-76, c. 75 s. 14 Repealed      
Business Development Bank of Canada Act s. 37 All customer information obtained by the Bank must not be disclosed. P, T 3, 5 19, 20
Canada-Newfoundland Atlantic Accord Implementation Act, S.C. 1987, c. 3 s. 119 Information provided for Parts II or III or any regulation made under these Parts shall not be disclosed.

This privilege does not apply to information obtained as a result of carrying on work authorized under Part III (e.g. exploration for and exploitation of petroleum resources).

Information necessary for issuing of licences and resolving disputes pertaining to petroleum resources in the offshore area - T, F 3, 5 13(1)(c), 20(1)
Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act, S.C. 1988, c. 28 s. 19,

s. 122

similar to s. 119 Canada-Newfoundland Atlantic Accord Implementation Act, above      
Canada-Nova Scotia Oil and Gas Agreement Act, S.C. 1984, c. 29 s. 53 Repealed      
Canada Pension Plan s. 104 Information obtained under this Act with respect to an individual is privileged, and shall not be made available except in accordance with this Act. P 2, 3, 4, 5 19
Canada Petroleum Resources Act s. 101 Information provided for the purposes of this Act, the Canada Oil and Gas Operations Act, any regulation under those Acts, or Part II.1 of National Energy Board Act, whether or not the info is required to be provided, shall not be disclosed.

Information obtained as a result of carrying on work authorized under the Canada Oil and Gas Operations Act, pertaining to wells, exploration, studies, etc. is not privileged after the specified time.

Information from businesses involved in oil and gas operations - T 5 20(1)
Canada Transportation Act ss. 51(1) Information required to be provided to the Minister pursuant to this Act is confidential and must not be disclosed. Financial and commercial information from shippers - T 4 20(1)
  s. 167 Where the Agency is advised that a party to a final offer arbitration wishes to keep matters relating to the arbitration confidential, the Agency and the arbitrator shall take all reasonably necessary measures to ensure that the matters are not disclosed to any person other than the parties. Information submitted by a shipper during arbitration - T 1 20(1)
Canadian Environmental Assessment Act ss. 35(4) Where a review panel is satisfied that the disclosure of items would cause specific, direct and substantial harm to a witness, the items are privileged and shall not be disclosed. Information pertaining to a witness to an environmental offence. Could include employment, financial, personal information - P, L 4 16, 17, 19
Canadian International Trade Tribunal Act s 45 A person who provides information to the Tribunal may designate the information confidential, and it shall not be disclosed in any manner that is calculated or likely to make it available for the use of any business competitor or rival of any person to whose business or affairs the information relates. Information pertaining to trade disputes - T 2 20(1)
  s. 49 Information given or elicited in the course of proceedings shall not be disclosed if the Tribunal concludes it is confidential or s. 84 of the Special Import Measures Act applies. Information deemed confidential by Tribunal or submitter, relating to commercial interests - T 5 20(1)
Canadian Ownership and Control Determination Act s. 17 Information obtained under this Act shall not knowingly be disclosed without consent of the person from whom it was obtained. Information relevant to certificate stating the Canadian ownership rate or the control status of the applicant - T 3 20
Canadian Security Intelligence Service Act s. 18 No person shall disclose any information that the person obtained in the course of the performance of duties and functions under this Act. Identity of confidential source of information, employee engaged in covert operations - L, P 3, 5 16(1), 17 *
Canadian Transportation Accident Investigation and Safety Board Act ss. 28(2) On-board recording of the activities of the operating personnel of an aircraft, ship, locomotive or pipeline shall not be disclosed. On-board recording - P, T 3, 4 19, 20
  ss. 31(4) Where the identity of a person who has made a report to the Board is protected by rules established by the Board, information that could reasonably be expected to reveal that identity is privileged, and no person shall disclose it. Identity of person who reports a transportation occurrence - L 1 16(1), 17
Competition Act ss. 29(1), 29.1(5) No person shall disclose certain information obtained pursuant to this Act except to a law enforcement agency or to administer or enforce this Act. Identity of person from whom information was obtained, and commercial information - L, T 2, 3, 5 16(1),

20

Corporations and Labour Unions Returns Act

[Now the Corporations Returns Act]

s. 18 All information contained in a return filed by a corporation pursuant to certain sections of this Act shall not be disclosed Financial statements of corporations, transactions involving transfers of technology - T 3, 5 20
Criminal Code s. 187 All documents relating to an application made pursuant to any provision of this Part are confidential, and shall be placed in a sealed packet to be opened only by court order.

Where an accused applies to examine contents of packet, parts shall be deleted that would compromise identity of confidential informant and ongoing investigations, endanger persons engaged in intelligence-gathering, jeopardize future investigations, or prejudice the interests of innocent persons.

Application for authorization to intercept private communications, which could include allegations of crime, personal information, identity of informants - P, L 1 16(1), 17, 19
  s. 193 Where a private communication has been intercepted without the consent of the parties, everyone who wilfully discloses the private communication or its existence is guilty of an indictable offence. P, L 3, 5 16(1), 17, 19
  s. 487.3 Judge may make order prohibiting disclosure of information relating to a warrant or authorization to enter a dwelling-house if:

i) the ends of justice would be subverted by disclosure because it would compromise identity of confidential informant and ongoing investigations, endanger persons engaged in intelligence-gathering, jeopardize future investigations, or prejudice the interests of innocent persons; or

ii) the information might be used for an improper purpose

and these grounds outweigh in importance the access to the information.

Identity of confidential informant, details of investigations - P, L 4 16(1), 17, 19
Criminal Records Act ss. 6(2) Any record of a conviction in respect of which a pardon has been granted and the fact of its existence shall not be disclosed to any person without prior approval of the Minister. Record of pardoned conviction - P 2, 4 19(1) *
  s. 9 A pardon granted pursuant to the royal prerogative of mercy shall not be disclosed. Pardon granted pursuant to royal prerogative of mercy - P 2, 4 19(1) *
Customs Act s. 107 Information obtained under this Act or the Customs Tariff shall not be disclosed. Imported goods, searches of persons by Customs officials - P, T 2, 4, 6 19, 20
Defence Production Act s. 30 No information with respect to an individual business that has been obtained under this Act shall be disclosed. Business and financial information relating to defence supplies and defence contracts - T, N 3, 4 15, 20
Department of Human Resources Development Act s. 33.5 All information obtained in course of administration or enforcement of this Part, and any SIN obtained for a purpose related to application for a CES grant shall not be disclosed. This Part deals with Canada Education Savings Grants. Information necessary to obtain a CES grant including SIN - P 3, 4, 5, 6 19
Department of Industry Act ss. 16(2) No person employed in the public service of Canada who comes into possession of information under this section shall disclose information relating to a particular person, organization or business. Invoices and other information collected under the Customs Act on goods imported into and exported from Canada - T 1 20
DNA Identification Act ss. 6(7) No person shall communicate or allow to be communicated a DNA profile that is contained in the DNA data bank or the fact that the profile is contained in the data bank. Case number of the investigation, the identity of the person, DNA profile, and fact of profile=s existence - P, L 2, 3, 4 16(1), 19(1)
Energy Administration Act s. 98 All information with respect to a person or business obtained in the course of the administration of this Act shall not be disclosed to any person not legally entitled to it. Business information relating to exports of oil and gas - T 5 20
Energy Efficiency Act s. 23 The statistics and information filed with the Minister pursuant to regulations made under the Act shall not be disclosed. Commercial and financial information relating to energy use, purchases and sales - T 3, 5 20
Energy Monitoring Act s. 33 Information obtained under this Act shall not be disclosed. Statistics and information relating to various aspects of energy enterprises (ownership, finances, activities, programs) - T 2, 3, 5 20
Energy Supplies Emergency Act s. 40.1 All information obtained by the Energy Supplies Allocation Board under this Act shall not be disclosed. Information relevant to understanding the international petroleum supply situation; sales and purchases of energy - T, N, G 5 18, 20
Excise Tax Act s. 295 Information obtained by Minister for purposes of this Part shall not be disclosed, and only used to administer or enforce this Act. Information related to the Goods and Services Tax - T 3, 4, 5 20
Family Allowances Act s. 18 Repealed      
Hazardous Products Act s. 12 Section 12 states that A this Part@does not apply to certain products. This Part requires that when a controlled product intended for use in a workplace is sold or imported, the ingredients must be disclosed. Chemical identity of certain products - T 1 20(1)
Canadian Human Rights Act ss. 47(3) Any information received by a conciliator in the course of attempting to reach a settlement of a complaint may not be disclosed. P 1 19
Income Tax Act s. 241 No official shall disclose taxpayer information. P, T 3, 4, 5 19, 20
Industrial Research and Development Incentives Act, R.S.C. 1970, c. I-10 s. 13 Repealed      
Investment Canada Act s. 36 No one shall disclose any information obtained with respect to a Canadian, a non-Canadian or a business in the course of administration or enforcement of this Act. Financial, investment, commercial information - T 2, 4, 5 20
Canada Labour Code ss. 144(3) Appeals officer or health and safety officer shall not disclose information obtained from a work place with regard to any secret process or trade secret. Secret process, trade secrets - T 5 20(1)
Mackenzie Valley Resource Management Act para. 30(1)(b) Subject to any other provisions of this Act, a board may make rules for preventing trade secrets and information described in s. 20 of Access to Information Act from being disclosed or made public as a result of being used as evidence before the board. Trade secrets, third party commercial information - T 6 20(1)
Marine Transportation Security Act ss. 13(1) The substance of a security measure or rule shall not be disclosed. Security measures - L 5, 6 16(2), 17
Motor Vehicle Fuel Consumption Standards Act

[Not in Force]

ss. 27(1) Information obtained by the Minister shall not be disclosed. Commercial information of companies in motor vehicle industry - T 3, 4, 5 20
Nuclear Safety and Control Act paras. 44(1)(d) and 48(b) The Commission may make regulations respecting the disclosure of prescribed information. (See General Nuclear Safety and Control Regulations, ss. 21-23) Information concerning nuclear weapons and explosive devices - N 3, 5 15
Old Age Security Act s. 33 Information with respect to an individual shall not be disclosed except in accordance with this Act. P 3, 4, 5 19
Patent Act s. 10 All patents, applications for patents and documents filed in connection with these shall not be disclosed for 18 months, or permanently if it is a patent of the Minister of Defence. Patents - T 1 20(1)
  ss. 20(7) Minister of Defence may certify that in the public interest the particulars of an invention are to be kept secret Patents - T, N, G 4 15, 18, 20
  s. 87, 88 A patentee may be ordered to submit commercial information to Board (such as identity, price, costs of the medicine). This information shall not be disclosed unless patentee consents or it has already been disclosed at a public hearing under this Act. Patents of inventions pertaining to medicine, commercial and financial information - T 4, 5 20(1)
Petroleum Incentives Program Act s. 17 Repealed      
Proceeds of Crime (Money Laundering) Act paras. 55(1)(a), (d) and (e) The Financial Transactions and Reports Analysis Centre shall not disclose information concerning suspicions of money laundering. Financial transactions, names of clients - T 2, 4 20(1)*
Railway Safety Act ss. 39.2(1) No person shall disclose substance of security documents. Security documents - L, N 5, 6 16, 17
Shipping Conferences Exemption Act, 1987 s. 11 No person engaged in the administration of this Act shall disclose information contained in a service contract filed pursuant to s. 6. Business contract - T 3 20(1)
Softwood Lumber Products Export Charge Act s. 20 Act ceased to be in force 05.03.92 see SI/92-48      
Special Import Measures Act s. 84 Information designated as confidential by the submitter shall not be disclosed in a manner likely to make it available for the use of any business competitor or rival of any person to whose business or affairs the information relates. Commercial information - T 5 20(1)
Statistics Act s. 17 Only those employed under this Act shall examine any identifiable individual return made for the purposes of this Act. This information shall not be disclosed in such a manner that it is possible to relate the particulars in the return to any identifiable individual person, business or organization. Various 2, 4 Various
Telecommunications Act ss. 39(2) Where a person designates information as confidential, this information shall not be disclosed in any manner that is likely to result in a benefit to someone or to the detriment of the person to whose business or affairs the information relates. Information described same as that in s. 20(1) of ATIA - T 4, 5 20(1)*
  ss. 70(4) s. 39 applies to all people exercising powers of the Commission      
Trade-marks Act ss. 50(6) This subsection does not exist      
Transportation of Dangerous Goods Act, 1992 ss. 24(4) Privileged information shall not be disclosed. Formula, composition or chemical ingredients of a product, substance or organism - T

Information about an accidental release of dangerous goods - L

5 20(1)

16(1)

Yukon Quartz Mining Act ss. 100(16) Officer may obtain information respecting amount and value of the output of the mine. Information of a private or confidential nature acquired by the officer shall not be disclosed except as necessary for the purposes of this section (determining royalties). Mineral samples, commercial accounts and correspondence - T 4 20(1)

 

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ABOUT THE AUTHORS

Murray Rankin, Q.C., and Kathyrn Chapman, Arvay Finlay:

Murray Rankin is a partner with the law firm of Arvay Finlay with offices in Victoria and Vancouver. He holds law degrees from the University of Toronto and Harvard Law School. He taught as a professor of law at the University of Victoria for over 12 years. His areas of specialization have included administrative, environmental, information/privacy law and aboriginal law. Mr. Rankin has written numerous articles and books on these subjects and translated and edited a comprehensive text on administrative law. He co-authored the book Personal Information Protection and Electronic Documents Act: An Annotated Guide which was published by Irwin Law last year.


Kathryn Chapman is an associate with Arvay Finlay, Barristers in Victoria, British Columbia. Kathryn is a graduate of the Faculty of Law, University of Victoria and was called to the Bar of the Law Society of British Columbia in September of 1999. Kathryn's areas of interest include constitutional law, human rights, freedom of information and protection of privacy, administrative law, and civil litigation.

http://www.arvayfinlay.com


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Last Updated: 2001-12-08
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