Access to Information: Making it Work for Canadians

Report of the Access to Information Review Task Force

Section 20 - Information Provided by Third Parties about Critical Infrastructure Vulnerabilities

[I]n light of the objective of protecting the security of the travelling public [] the GTAA must be able to avail itself of the same protections against the disclosure of sensitive security-related information that Transport Canada was entitled to when it operated Canada's airports. Greater Toronto Airports Authority Submission to the Task Force

Among other things, Section 20 protects confidential commercial, financial, scientific or technical information that is supplied to the government by a third party and is consistently treated in a confidential manner by the third party. However, not all information supplied to government relates to a third party’s financial or competitive position. Some third party information relates to the vulnerability of particular buildings or other structures or systems, including computer or communication systems, or methods employed to protect them. Such information has become even more sensitive in the light of the terrorist attacks that took place in the United States on September 11, 2001.

We believe that it would provide an added measure of reassurance to third parties operating critical infrastructure, such as airports, if it were made explicit in the Act that the protections in Section 20 extend to such information. This would also make it clear that the related notice and appeal provisions apply, as well as the public interest override in Section 20(6). Other aspects of Section 20 are discussed further below.

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Other Exemptions/Exclusions

Section 14 - Federal-Provincial Affairs

Section 14 accounted for 2.4% of exemptions claimed in 2000-2001.

Section 14 allows the head of a government institution to refuse to disclose information that could reasonably be expected to harm the conduct of federal-provincial affairs. The provision specifically includes information on federal-provincial consultations or deliberations, and on strategy or tactics relating to the conduct of federal-provincial affairs.

There have been no serious challenges to Section 14. There have, however, been a few proposals over the years to change “federal-provincial affairs” to “federal-provincial negotiations” or “federal-provincial relations.”

In our view, little would be gained by replacing the current wording with federal-provincial “negotiations” or “relations.” “Negotiations” might well narrow the exemption unduly, as sensitivities can arise around Canada's federal-provincial relationships that do not involve negotiations. We see the word "relations" as close to interchangeable with the current wording.

Based on our review of the provision, we have concluded that Section 14 works as Parliament originally intended, and there are no compelling grounds for amending it.

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Section 17 - Safety of Individuals

Section 17 accounted for 0.3% of exemptions claimed in 2000-2001.
Another individual's mental and physical health might be threatened if information were disclosed to an applicant which could reasonably be expected, if shown to the other person by the applicant, to cause the other person to become suicidal. British Columbia Freedom of Information and Protection of Privacy Policy and Procedures Manual

Section 17 of the Act provides a discretionary, injury-based exemption for information, which if disclosed, could reasonably be expected to threaten the safety of individuals. The current Information Commissioner and his predecessor have both recommended that Section 17 be amended to extend protection to information that could reasonably be expected to threaten an individual's mental or physical health. We agree with this proposal.

In our consultations with departments and agencies, the question was raised about how to protect records that are required to be kept, and which contain evidence of violent crimes (e.g. photographs of mutilated bodies), more than 20 years after the deaths of the victims. Until that time, this information is considered to be personal and is protected under Section 19. There is a strongly-held view that disclosure of such information could be traumatic for the victims’ families and offensive to the public even after 20 years have passed. We agree that there are circumstances where the greater public interest would lie in protecting the information. However, it is our view that the Access to Information Guidelines should set out clear criteria for the application of the exemption to ensure that material of historical significance (e.g. war photographs) is not unduly withheld.

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Section 18 - Economic Interests of Canada

Section 18 accounted for 2.2% of exemptions claimed in 2000-2001.

Section 18 provides discretionary protection for information relating to the “economic interests of Canada.” In fact, this covers various types of information:

• trade secrets or financial, commercial, scientific or technical information that belongs to the Government of Canada;
  
  
• information which if disclosed, could reasonably be expected to prejudice the competitive position of a government institution;
  
  
• scientific or technical information obtained through research, which could if disclosed, realistically be expected to deprive an officer or employee of priority of publication; or
  
  
• information the disclosure of which could reasonably be expected to materially injure the financial interests of the Government of Canada, or the government's ability to manage the economy.

Section 18(a) protects the government's financial, commercial, scientific or technical information that has or is likely to have substantial value. Some commentators have suggested that Section 18(a) be amended by limiting its protection to information having or likely to have “substantial monetary value.” We agree with this change which would effectively codify the interpretation of “substantial value” as market value, as set out in the Access to Information Guidelines.

If the Task Force’s recommendations regarding coverage under the Act are accepted, it will apply to certain Crown corporations and other alternative service delivery organizations for the first time. They will then be subject to Section 18 rather than Section 20, which protects commercial information provided to the government by third parties. Section 18(b) provides a discretionary exemption for information the disclosure of which could prejudice a government institution's competitive position. It is our view that this section should provide adequate protection for the competitive activities of most Crown corporations. However, as we discussed in Chapter 1, where this and other exemptions are inadequate to protect institutions' integral interests, exclusions should be considered for certain information (e.g. in relation to specific competitive commercial activities, which are separate and apart from an institution’s public policy function).

Increasingly, the government's competitive, business-oriented activities are being carried out by special operating agencies associated with a government department or agency, or by some other form of alternative service delivery. However, the competitive business activities of these agencies may not be extensive enough to affect the competitive position of a government institution as a whole. The information related to those activities may therefore not qualify for protection under this exemption. This gap should be addressed.

One further issue regarding Section 18 relates to product or environmental testing. Section 20 of the Act, for example, expressly excludes from the scope of that exemption the results of product or environmental testing carried out by, or on behalf of, a government institution. The only exception is when the testing is done for a fee and as a service to a person or an outside organization.

The 1986 Parliamentary Committee recommended that Section 18 be amended to include a similar provision. It argued that without such an amendment, government institutions may not have to disclose their own product or environmental testing results, even though the results of testing carried out by, or on behalf of, such institutions on private sector products or activities, are subject to disclosure. The Information Commissioner supports this amendment, as do we.

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Section 19 - Personal Information

The most frequently claimed exemption, Section 19 accounted for 28% of exemptions claimed in 2000-2001.

The Access to Information Act and the Privacy Act were designed as complementary pieces of legislation. Generally speaking, the Access to Information Act governs the release of information of a non-personal nature, while personal information is dealt with under the Privacy Act.

It is obvious that both statutes [the Access to Information Act and the Privacy Act] are to be read together, since section 19 of the Access Act does incorporate by reference certain provisions of the Privacy Act. Mr. Justice La Forest Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403

Section 19 of the Access to Information Act is the most frequently claimed exemption. It prevents the head of a government institution from disclosing a record containing personal information as defined in the Privacy Act, unless the person to whom it relates consents; the information is publicly available; or the disclosure is in accordance with Section 8 of the Privacy Act. In applying Section 19, therefore, the two Acts need to be interpreted together. One example of this interaction is that the identity of an individual who makes an access request is protected by the Privacy Act.

During our consultations, participants raised several privacy issues that are outside the Task Force's mandate.⁶ These concerns will be considered in the ongoing review of privacy issues at the Department of Justice. Other concerns, however, focused on the interaction between the two statutes, and the often differing views held by the Information Commissioner and the Privacy Commissioner.

A notable example of the interaction between the two statutes is the application of Section 8(2)(m) of the Privacy Act. This provides for the disclosure of personal information when it is in the public interest. An institution is required to notify the Privacy Commissioner before making such a disclosure, where this can reasonably be done. A situation can arise where the Information Commissioner advises the institution to disclose personal information in the public interest, but the Privacy Commissioner advises the institution to protect the information on the grounds that the public interest in the case does not clearly outweigh the invasion of privacy that could result from disclosure. This puts the institution in the difficult position of having conflicting recommendations from the two Commissioners.

It is the head of the government institution who must ultimately decide whether or not to disclose the information. That decision may be challenged and the question referred to the courts for further review. Nevertheless, it is our view that most privacy issues can be resolved between the two Commissioners.

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⁶For example, the Task Force received a number of submissions on disclosure of historical census data.