Access to Information: Making it Work for Canadians

Report of the Access to Information Review Task Force

Chapter 4 – Striking the Right Balance: Exemptions and Exclusions

All countries with access to information laws must balance the citizen's right to know with the need to preserve confidentiality where disclosure of information would be against the public interest.

Public interest is always the key factor in determining whether a requested record should be disclosed. The purpose of the exemptions and exclusions in the Access to Information Act, therefore, is to define in a narrow and specific way those instances where the public interest may lie in the protection of information. The right balance has to be achieved in each exemption and exclusion as well as in the overall structure of exemptions and exclusions. The Act must be looked at in its entirety to fully appreciate the delicate balancing of public interests that it embraces.

Does the Act's existing exemption/exclusion structure continue to strike the appropriate balance between disclosure and protection? In assessing the structure, we carefully studied previous proposals for the reform of the Act, and the legislative schemes in several provincial and international jurisdictions. We have also drawn on a comprehensive research report prepared for the Task Force on the overall legislative scheme for protecting information.¹

To better illustrate the scheme in the Canadian legislation, we have grouped together the provisions related to the government’s deliberative processes, as well as those related to national security, defence and law enforcement. All other exemptions and exclusions are looked at in the order in which they appear in the Act.

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Exemption/Exclusion Structure

The principle of the Act is that a requester has a right to obtain records under the control of a government institution, and those records can only be withheld according to limited and specific exceptions. These exceptions are the individual exemptions in Sections 13-26 of the Act and the exclusions in Sections 68 and 69. The structure for protecting information can be summarized as follows:

• As with most freedom of information legislation, some exemptions are injury-based, while others are class exemptions. Before the exemption can be applied, injury-based exemptions require the head of a government institution to identify the harm to the interest (e.g. the conduct of international affairs) that could reasonably be expected to result from disclosure. The courts have interpreted this to mean that there must be a reasonable expectation of probable harm. Class-based exemptions, on the other hand, require only that the information fall within a specified group or type (e.g. personal information). There is no legislative requirement to identify an injury that would likely result from disclosure. This is presumed to be the case.
  
  
• While a few exemptions are mandatory, most are discretionary. If an exemption is mandatory, the head of an institution “shall refuse” to disclose the record or records concerned (e.g. the trade secrets of a third party). He or she has no choice. The public interest is presumed to lie in withholding the information. If an exemption is discretionary, the head of an institution has the discretion to refuse to disclose a record in responding to a request. For example, under Section 23, the head of a government institution “may refuse” to disclose information that is subject to solicitor-client privilege. The head of the institution must balance two things: the public interest in releasing the information, and the public interest in preserving the privilege that this provision is intended to protect.
  
  
• Some exemptions are subject to an express injury test. Others are not. It is our view that Parliament expressly included an injury test only where it intended that a very specific injury be considered. We also believe that the need to consider possible harm or injury is implied when public interests are being balanced in all other discretionary exemptions.
  
  
• The fact that a record contains information that should be protected under one of the exemptions does not mean the record can be withheld in its entirety. Section 25 requires the head of a government institution to disclose any information in the record that does not fall within the exemption, and that can reasonably be severed.

The table on the next page indicates whether each exemption is mandatory or discretionary, and whether it is class-based or subject to an injury test. (The corresponding provisions in the Act are indicated in brackets.)

	Class test	Injury test
Mandatory exemptions	• Information received in confidence from other governments (13) • Information obtained or prepared by RCMP re: provincial or municipal policing services (16(3)) • Personal information (19)* • Trade secrets of Third Party (20(1)(a)) • Financial, commercial, scientific or technical information received in confidence from Third Party (20(1)(b))* • Information protected under other, listed statutes (24)	• Loss or gain to Third Party or prejudice to competitive position (20(1)(c))* • Interference with contractual or other negotiations of Third Party (20(1)(d))
	Class test	Injury test
Discretionary exemptions	• Information obtained or prepared by listed investigative bodies (16(1)(a)) • Information on techniques or plans for investigations (16(1)(b)) • Trade secrets or valuable financial, commercial, scientific or technical information of Canada (18(a)) • Advice or recommendations to government (21(1)(a)) • Account of consultations or deliberations (21(1)(b)) • Government negotiation plans (21(1)(c)) • Government personnel or organizational plans (21(1)(d)) • Solicitor-client privileged information (23) • Information to be published in 90 days (26)	• Injury to conduct of federal-provincial affairs (14) • Injury to conduct of international affairs, or to defence of Canada or allied states (15) • Injury to law enforcement or conduct of lawful investigations (16(1)(c)) • Harm in facilitating commission of criminal offence (16(2)) • Threat to individual's safety (17) • Prejudice to competitive position of government (18(b)) • Harm in depriving government researcher of priority of publication (18(c)) • Injury to financial or economic interests of Canada (18(d)) • Prejudice to use of audits or tests (22)

*Denotes mandatory exemptions that include a public interest override; i.e., the information may be disclosed where the public interest in disclosure outweighs the interest protected by the exemption.

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Mandatory vs. Discretionary Exemptions

It has been suggested in the past that all exemptions should be discretionary in nature, except the exemption for personal information.

But it is our view that mandatory exemptions should not be converted wholesale to discretionary exemptions. The reason for making them mandatory in the first place is still valid: the information is regarded as belonging to a party other than the government (i.e. another government, an individual or a commercial entity). We also note that most of the jurisdictions we studied, in Canada and elsewhere, have mandatory exemptions covering the same or similar kinds of information.

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Injury Tests

Those commentators who recommended converting all exemptions to discretionary ones, also suggested that each exemption be expressly subject to an injury test. As mentioned earlier, a number of discretionary exemptions already include a specific injury test. It is our view that this was done only where the anticipated injury or harm could be clearly expressed. In other words, there are no injury tests mentioned where they would be too vague to be used effectively. For example, any injury test specified for the advice or recommendations exemption in Section 21 would be very broad - injury to the efficient conduct of a government institution's operations, or injury to the deliberative processes of a government institution.

Regardless of whether a discretionary exemption includes a specific injury test, we believe that the need to consider possible harm or injury is implied when public interests are being balanced by the head of a government institution (or their delegate) as part of the exercise of discretion.

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General Public Interest Override

Two mandatory exemptions include specific public interest overrides which allow the head of a government institution to disclose information where this would be in the public interest as defined in the provision. Section 20(6), for example, permits the head of an institution to disclose commercial information from a third party if this would be in the public interest as it relates to health, safety or protection of the environment, and the public interest in disclosure clearly outweighs any injury to the third party. The exemption for personal information incorporates a similar public interest override from the Privacy Act.

The Ontario legislation includes a general public interest override which provides that certain exemptions do not apply where a compelling public interest in the disclosure of a record clearly outweighs the public interest that the exemption is intended to protect.

We believe that a general public interest override is not necessary. Discretionary exemptions already imply a balancing of the public interest in protecting the information, and the public interest in disclosure, and the mandatory exemptions for third party and personal information already include specific overrides. It is also our view that a general override would not result in greater disclosure of information. In fact, there is some indication that Information Commissioners in other jurisdictions are hesitant to invoke such sweeping provisions.

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Positive Duty to Disclose

The legislation in some provinces includes a provision which imposes a duty on the head of a government institution to disclose information, even in the absence of a request, where it is in the public interest to do so, and/or the information reveals a grave environmental, health or safety hazard to the public.

Our rationale for not adding a general public interest override to the Act applies equally to the public interest component of a positive duty to disclose. Also, it is our view that such statutory duties are more effective when they are included in specific legislation pertaining to health, safety and the environment.

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Interpretation and Application of Exemptions – the Exercise of Discretion

While we have concluded that the overall structure is sound, this does not mean that the outcomes that Parliament intended are always achieved. It is our view that this is not so much due to the general structure of the Act, or even the specific exemptions or exclusions. Rather, it is due to the way discretionary exemptions are understood and applied.

The exercise of discretion inherently implies a consideration of the factors relevant in each particular case, including any anticipated harm from disclosure. However, it is our impression that heads of government institutions (or their delegates) do not always consider all relevant factors in exercising their discretion, nor do they articulate clear reasons for withholding information. We found that this is a problem in all the jurisdictions we consulted.

The challenge is to find ways to bring the practice more in line with the intent of the Act. We believe that institutions should consider whether an identifiable harm could result from disclosure, regardless of whether a particular exemption includes a specific injury test. We also believe that, in exercising discretion, institutions should consider the fact that information usually becomes less sensitive over time. The most productive reform would be to find a way to ensure that discretion is exercised only after such consideration. An exemption would then be claimed only where good reasons can be articulated for withholding information.

The application of exemptions should not be a matter of intricate legal reasoning, but of basic questions asked consistently at all stages in the process: Are there good reasons for withholding the information in this case? How soon can it be made available without causing harm to one of the interests protected by the Act?²

It is our view, therefore, that improving the approach to the exercise of discretion is primarily a matter of education and attitudes. More guidance and training are needed. Working with the Information Commissioner, Treasury Board Secretariat could do more to develop user-friendly guidelines to help government institutions determine how to apply discretionary exemptions.

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¹Barbara McIsaac, The Nature and Structure of Exempting Provisions and the Use of the Concept of a Public Interest Override, Research Report 17.
²Questions such as these have become part of the practice of jurisdictions like New Zealand, with good results.