Access to Information: Making it Work for Canadians

Report of the Access to Information Review Task Force

Section 24 - Statutory Prohibitions

Section 24 accounted for 1.3% of exemptions claimed in 2000-2001.
Even those concerned that section 24 detracts from the purposes of the Act do agree that special measures to ensure confidentiality are necessary in certain cases. Murray Rankin & Associates Research Report 16

Section 24 of the Act prohibits release of any record containing information “the disclosure of which is restricted by or pursuant to any provision set out in Schedule II.” For example, the Schedule includes confidentiality provisions from the Income Tax Act, the Criminal Records Act and the Old Age Security Act. A number of these provisions make it an offence for a public servant to disclose the protected information, or allow disclosure only for specified purposes.

Schedule II currently lists 66 such provisions in 52 federal statutes. There were 40 provisions in 33 statutes when the Act came into force in 1983. Some believe that Section 24 and Schedule II are necessary to protect valid confidentiality regimes, while others believe that this type of provision detracts from the principles and goals of open and accountable governance that underlie access to information regimes.

The 1986 Parliamentary Committee recommended that Section 24 and Schedule II be repealed and replaced with new mandatory exemptions to protect information where there is a need to ensure absolute confidentiality (e.g. income tax information).

As a general rule, we believe that protections against the disclosure of government information should be found in the Access to Information Act. In our view, the exemptions set out in the Act, as modified by our recommendations, should provide sufficient protection against disclosure in most cases. However, at times the government must be in a position to give a very firm assurance that information will not be disclosed. The usual examples of information requiring such a high degree of protection are income tax information and census data.

We concluded that an exemption for statutory prohibitions remains necessary. However, we also concluded that the standard to be met for such protection should be high.

To preserve the integrity of the access to information regime, the list of exempted provisions in Schedule II should be as short as possible. We believe that it should include only those provisions that either prohibit disclosure entirely, or set out a clear and restricted framework for disclosure. It makes no sense to prohibit the release of information under the Act where there is broad discretion to release that information under another statute. The equivalent exemption in the United States sets out specific requirements. These are that the confidentiality regime in the other statute must provide that information is to be withheld from the public, or establish particular criteria for withholding the information or refer to particular types of matters to be withheld. We agree with such a test.

We concluded that the criteria for including statutory prohibitions on Schedule II of the Act should be set out in the Act. They should be accompanied by a provision allowing the Governor-in-Council to add a confidentiality provision from another statute to the Schedule only if it meets these criteria. This would ensure transparency of the factors to be considered in determining whether a provision should be added to the Schedule.

It is also our view that Schedule II should provide a single comprehensive list of all statutory provisions that prevail over the Act. However, there are sections in other federal statutes that apply “notwithstanding” the Act. Those provisions are not included in the list on Schedule II.⁷

The list of legislative provisions on Schedule II has grown significantly since the Act came into force in 1983. The Task Force's preliminary review of the list shows that many of the current provisions do not meet the test proposed above. This is because they allow discretion to disclose, with no criteria or other parameters for the exercise of that discretion. The government should undertake a comprehensive review of Schedule II to identify and remove those provisions that do not meet the criteria. To facilitate this, the Governor-in-Council should be authorized to remove them from the Schedule. Deletion currently requires an Act of Parliament.

Clearly some mechanism is required to ensure that the disclosure requirements of the Access to Information Act do not undermine legitimate confidentiality requirements in other legislation. Section 24 is as good a mechanism as any. It should, however, be reviewed on a yearly basis to ensure its continuing consistency and relevance. Barbara McIsaac Research Report 17

We are in favour of a periodic review of Schedule II, and detailed annual reporting by institutions on which provisions from the Schedule they invoked in the application of the Section 24 exemption. This oversight would ensure that the list of provisions in the Schedule is kept to a minimum.

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Section 26 – Refusal of Access Where Information is About to be Published

Section 26 provides that the head of a government institution may refuse to disclose a record if he or she has reasonable grounds to believe that it will be published within 90 days, or within “such further period of time as may be necessary for printing and translating the material for the purpose of printing it.”

Traditionally, “published” meant printed material. However, in our increasingly electronic world, the Internet in particular has revolutionized the communication of information, and this definition of “published” is now obsolete.

Some requesters believe that government institutions are using the exemption in Section 26 to justify delaying the release of information beyond what may be necessary. There is also a perception that the publishing process is much faster in this age of electronic printing or posting on a Web site, and therefore the period for disclosure should be reduced from 90 to 60 days. Experts we consulted told us that there is no significant difference between the time required for printing material, and the time required for posting it on a Web site. Posting information also involves editing, layout and translation.

We do not recommend any change to the 90-day period. However, we believe that any extension beyond the 90-day period should be restricted to what is reasonable. We also believe that invoking a number of best practices and elaborating on them in the Access to Information Guidelines would minimize any delays. These could include the release of material if it is not actually in translation or being formatted for publishing at the end of the 90-day period. Also, when Section 26 is invoked, the requester should be informed of the material’s likely publication date, and given a status report at the end of 90 days, if the material is not released at that time.

The exemption can only be claimed where the head of the institution believes on “reasonable grounds” that the record requested will be published. The Access to Information Guidelines state that “reasonable grounds” would normally be a statutory requirement to publish or a publication plan with target dates that was prepared before receipt of the request. Unless there is a high degree of certainty about publication, therefore, the exemption in Section 26 should not be claimed. This should be emphasized in Access to Information training.

Finally, we believe the language of Section 26 should be modernized. As it now stands, a delay beyond 90 days can be triggered by a need for more time for “printing or translating the material for the purpose of printing it.” In our view, the section should be amended to reflect the fact that much government information is now published in electronic, rather than print form.

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Section 68 – Exclusion of Published Materials

Section 68 states that the Act does not apply to published material or material available for purchase by the public. The underlying principle of this exclusion is that published materials are already available without recourse to the Act. In Chapter 8, we encourage proactive disclosure of government information. Increasingly, this will be done through the Internet. We are therefore pleased to note that the Information Commissioner recently agreed that information posted on a government Web site may be considered “published” for purposes of the Act.

The Task Force is of the view that no change is required to Section 68. However, institutions relying on the exclusion should, as a matter of practice, help requesters find printed materials or materials published on government Web sites. Reasonable assistance should include providing a printed version of material posted on a government Web site if the requester does not have access to a computer, or providing a copy of an out-of-print government publication that is not available at the requester's local libraries.

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Protecting Cultural and Natural Heritage Sites

The Task Force was hesitant to propose any additions to the 13 exemptions already set out in the Act. However, based on the approach in several provincial jurisdictions, we have concluded that a single exemption should be added to protect information where disclosure could damage or interfere with the preservation, protection or conservation of cultural and natural heritage sites, or other sites that have an anthropological or heritage value. The exemption would also support United Nations conventions that Canada has accepted such as The Convention Concerning the Protection of the World Cultural and Natural Heritage.

The protected sites exemption should also include confidential information about a place of spiritual or other cultural value to an aboriginal people. British Columbia's protected sites exemption includes sites that have an “anthropological or heritage value,” defined in the Regulations to include sites of value to an aboriginal people. In its 1998 Archives Act Review⁸, the Australian Law Reform Commission proposed a broad exemption category to protect confidential indigenous information . Similarly, a proposed Information Act for Australia’s Northern Territory includes exemptions for information about an aboriginal sacred site or aboriginal tradition.

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Conclusion

The Task Force is of the view that the protections currently provided in the Act for government-held information are appropriate. We have, however, recommended changes to modernize certain provisions. The most notable example is our recommendation to convert the exclusion for Cabinet confidences to an exemption.

It is our view that the changes proposed, including those proposed to guidelines and practices, reflect a good balance between the public interest in the availability of government information, and the public interest in protecting certain information from disclosure. Moreover, we believe they reflect the best possible balance for the future.

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⁷For example, sections 20(3) and 22(3) of the Hazardous Products Act apply "notwithstanding the Access to Information Act."
⁸Australian Law Reform Commission Report 85, “Australia’s Federal Record: A Review of the Archives Act 1983,” Commonwealth of Australia 1998, paragraph s. 20.65 to 20.73. http://www.austlii.edu.au/au/other/alrc/publications/reports/85/ch20.html#Heading14