Access to Information: Making it Work for Canadians

Report of the Access to Information Review Task Force

National Security, Defence and Law Enforcement

Parliament recently enacted the Anti-Terrorism Act as part of the response to the terrorist attacks that took place on September 11, 2001. The Act amended the Canada Evidence Act to allow the Attorney General to issue a certificate prohibiting the disclosure of information (in connection with a legal proceeding) for the purpose of protecting information obtained in confidence from or about foreign entities, or for the purpose of protecting national defence or national security.

The Anti-Terrorism Act also amended the Access to Information Act by adding Section 69.1. This section excludes from the application of the Act information subject to a Canada Evidence Act certificate. The government has indicated that this exceptional protection for security information would be invoked only in rare instances. The certificates are subject to review by the Federal Court of Appeal. We have noted comparable protections for national security information in other jurisdictions.⁵

Other provisions in the Access to Information Act relating directly to issues of national security are those protecting: information obtained in confidence from other governments (Section 13); information the disclosure of which could injure international affairs, defence, or the detection, prevention or suppression of subversive or hostile activities, which include “terrorist acts” (Section 15); and information related to law enforcement or investigations, including information that could facilitate the commission of an offence. We believe that overall, these provisions are adequate and working well, but small changes are required to modernize and clarify them.

One addition to the Act is required from a national security standpoint. This would be to add information on critical infrastructure vulnerabilities to the third party information protected in Section 20. This recommendation is discussed further below.

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Section 13 - Information Obtained in Confidence from Other Governments

Section 13 accounted for 5% of exemptions claimed in 2000-2001.

Section 13 requires the head of a government institution to refuse to disclose a record containing information obtained in confidence from:

• the government of a foreign state;
  
  
• an international organization of states;
  
  
• the government of a province;
  
  
• a regional or municipal government; or
  
  
• in each case, an institution of that government or organization.

[S]ection 13 addresses information received from foreign governments, sometimes in circumstances where Canada is dependent on the confidence that foreign governments have in Canada’s ability and willingness to safeguard this information. On balance there appears to be too much potential for loss of this trust and goodwill if the exemption were to be changed to a discretionary one. Barbara McIsaac Research Report 17

However, the information may be disclosed if the government, institution or organization from which it was obtained makes the information public, or if it consents to disclosure.

Commentators have recommended that Section 13 be rewritten as a discretionary, injury-based exemption. In his most recent report, the Information Commissioner also suggested that a time limit of 15 years apply to all such confidences, unless the information related to law enforcement or security and intelligence matters, or was subject to extensive and active international agreements and arrangements.

After reviewing the issue and looking at the approaches in other jurisdictions, the Task Force is not convinced that such a step would be beneficial. The provision already has two important limits: the information must have been provided in confidence, and it can be released with the consent of its provider. Moreover, the Access to Information Guidelines encourage government institutions to contact the other government to seek its consent to disclose information protected by Section 13, where the government institution has some doubt as to the information’s continuing confidentiality (e.g. a good deal of time has passed since the information was obtained). However, converting Section 13 to a discretionary, injury-based exemption would set Canada apart from its key allies and likely affect other governments’ willingness to share information with Canada.

The extension of the exemption set out in Section 13 to all bodies exercising governance powers over Aboriginal peoples raises conflicting policy concerns, particularly since these bodies may not themselves be subject to any access requirements. H. Foster, C. Parker, M. Rankin, M.Stevenson Research Report 21

Section 13 also applies to an “aboriginal government” which is defined as meaning the Nisga'a Government. It has been suggested that this should be extended to all aboriginal organizations exercising governmental functions (e.g. Indian bands and tribal councils). However, we believe this may be premature because, unlike the provinces and most foreign governments, aboriginal organizations do not yet have disclosure regimes.

Section 13 protects information received in confidence from a foreign state. There is some question about whether “foreign state” includes a subdivision of the state. For example, the 1986 Parliamentary Committee noted that some confusion had arisen as to whether state governments in the United States are included in.

Each government should be responsible for controlling and releasing its own information. Information Commissioner Annual Report 2000-2001

Section 13. The Committee recommended an amendment to clarify that governments or agencies at the state or provincial level in other countries are covered by the exemption. The former and current Information Commissioners have supported this recommendation.

A related question is whether “foreign state” includes foreign entities that Canada does not recognize as states (e.g. Taiwan). We agree that the language of Section 13 should be clarified on these questions.

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Section 15 - International Affairs and Defence

Section 15 accounted for 5.4% of exemptions claimed in 2000-2001.
The more policy-making activity that takes place at the international level, the more relevant become those exemptions in domestic access to information law concerning international relations, diplomatic confidences, the affairs of foreign states and so on. Colin J. Bennett Research Report 3

Section 15 is a discretionary, injury-based exemption relating to external affairs and defence. It gives the head of a government institution discretion to refuse to disclose any record containing information which, if made known, could reasonably be expected to harm:

• the conduct of international affairs;
  
  
• the defence of Canada or any state allied or associated with Canada; or
  
  
• the detection, prevention or suppression of hostile activities.

Section 15 then goes on to list, “without restricting the generality of the foregoing,” nine examples of such information. These include information relating to military tactics or strategy; the quantity, characteristics, capabilities or deployment of weapons or other defence equipment; and diplomatic correspondence.

Previous proposals and recommendations have focused on a perceived need to clarify the proper interpretation or application of the nine examples of information listed in the section. The Task Force is of the view that the current wording is clear. The overriding issue is whether an identifiable injury would result from disclosure. Section 15 lists the state interests that the exemption is intended to protect, or in other words, the interests that could be injured by disclosure. The nine examples are not intended to be an exhaustive list, and the current Access to Information Guidelines make this clear.

The Task Force does not recommend any changes to Section 15.

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Section 16 - Law Enforcement and Investigations

Section 16 accounted for 8.1% of exemptions claimed in 2000-2001.

Section 16 is a complex provision. It contains three separate but related exemptions, with a mix of mandatory and discretionary, class and injury-based protections. In one case, there is a time limit. The three exemptions relate to law enforcement and investigations, security, and RCMP policing services. Past proposals have focused mainly on the exemptions for law enforcement and investigations.

Section 16(1) permits the head of a government institution to refuse to disclose:

• for up to 20 years, information obtained or prepared by a federal investigative body specified in the Regulations, in the course of lawful investigations pertaining to:
  
  
  • the detection, prevention or suppression of crime,
    
    
  • the enforcement of any law of Canada or a province, or
    
    
  • activities suspected of constituting threats to the security of Canada;
    
    
• information relating to investigative techniques or plans for specific lawful investigations;
  
  
• information the disclosure of which could reasonably be expected to harm the enforcement of any law of Canada or a province or the conduct of lawful investigations; or
  
  
• information the disclosure of which could reasonably be expected to harm the security of penal institutions.

Section 16(1)(a) protects information obtained or prepared in the course of a lawful investigation by a federal investigative body specified in the Regulations. The government institution does not have to meet a specific injury test in this case. However, it does have to weigh the relevant public interests in exercising its discretion to release or withhold the information.

Various Information Commissioners have recommended that an injury test be added to the exemption. In effect, this would make it the same as the exemption in Section 16(1)(c) for information the disclosure of which could harm law enforcement or the conduct of lawful investigations. We have not found any abuse in the application of the exemption in Section 16(1)(a). It should also be noted that the exemption ceases to apply after 20 years have passed.

All jurisdictions provide broad protection for law enforcement information, although they do so in different ways. The Task Force is of the view that the original public policy rationale for Section 16(1)(a) remains. Applying a specific, legislated injury test to investigations carried out by investigative bodies would demand considerable time and effort, without any additional information being released. In short, there are reasons to support the status quo, but no compelling reasons to change the exemption.

The number of investigative bodies specified in the Regulations has not increased since 1984, except for the addition of the Canadian Security Intelligence Service when it was separated from the RCMP. The nine bodies included on the list include entire institutions such as the RCMP, and parts of institutions such as the Special Investigations Unit of the Department of National Defence. In recent years, other government organizations have become increasingly involved in criminal or quasi-criminal investigations. They are seeking investigative body status to facilitate information-sharing with bodies such as the RCMP (e.g. Citizenship and Immigration Canada’s enforcement efforts against human trafficking).

We believe that criteria for identifying investigative bodies for the purposes of Section 16(1)(a) should be made transparent in the Regulations. These criteria could be included, for example, in a preamble to the Schedule of investigative bodies. The criteria should ensure that the exemption's scope continues to be limited. For example, any new investigative body should carry out investigations relating primarily to Criminal Code or indictable offences; should have its own statutory investigative powers (e.g. search and seizure); should be an identifiable unit of a government institution (the institution itself would only qualify where the mandate of its entire organization relates to investigation, such as the RCMP); and should clearly demonstrate why the injury-based law enforcement exemptions are inadequate to protect its interests.

Section 16(1)(c) permits the head of a government institution to protect information the disclosure of which could reasonably be expected to harm the conduct of lawful investigations. Law enforcement agencies pointed out to us that disclosure of information might prejudice future, as well as current,investigations and that Section 16(1)(c) should be amended accordingly. We think this argument has some merit. However, we believe the exemption should only be extended with respect to foreseeable investigations.

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⁵There are provisions for certificates to protect national security information in the legislation of most foreign jurisdictions studied by the Task Force. See Section 33, Australia’s Freedom of Information Act, Sections 24 and 25, Ireland's Freedom of Information Act, Section 31 of New Zealand’s Official Information Act, and Sections 23 and 24 of the United Kingdom's not-yet-in-force Freedom of Information Act.