An Act to extend the present laws of Canada that provide access to information under the control of the Government of Canada
Short title
1. This Act may be cited as the Access to Information Act.
Legislative History: 1980-81-82-83, c.111, Sch. I "1".
Purpose
2. (1)-The purpose of this Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government.
Complementary procedures
(2) This Act is intended to complement and not replace existing procedures for access to government information and is not intended to limit in any way access to the type of government information that is normally available to the general public.
Legislative History: 1980-81-82-83, c. 111, Sch. I "2".
JURISPRUDENCE
Principles of the ATIA
Since the basic principle of the statute is to codify the right of public access to government information two things follow: first, that such public access ought not to be frustrated by the Courts except upon the clearest grounds so that doubt ought to be resolved in favour of disclosure; second, the burden of persuasion must rest upon the party resisting disclosure whether it be a private corporation, citizen or the Government.
Maislin Industries Limited v. Minister for Industry, Trade & Commerce, [1984] 1 F.C. 939 (T.D.).
This section provides a right of access pursuant to the following principles:
1.that government information should be available to the public;
2.that necessary exceptions to the right of access should be limited and specific;
3.that decisions of the disclosure of information should be reviewed independently of government;
4.that the Act is intended to complement and not replace existing procedures for access to government information that is normally available to the general public.
Moreover, (the general rule is disclosure, the exception is exemption and the onus of proving the entitlement to the benefit of the exception rests upon those who claim it.¦ Accordingly, failure on the part of the head of an institution to determine what, if any, material fell within the exception in para. 21(1)(b) constituted improper exercise of discretion in view of the purpose of the Act. As well, failure to engage in the severance examination mandated by s. 25 is a fatal error in law.
Rubin v. Canada (Canada Mortgage and Housing Corp.), [1989] 1 F.C. 265 (C.A.)
See also: ATIA ss. 21, 25, 46.
The Court applied the principles enunciated in Maislin to determine that the burden of persuasion must rest upon the party resisting disclosure.
Definitions
3. In this Act,
"alternative format" +support de substitution-
"alternative format", with respect to a record, means a format that allows a person with a sensory disability to read or listen to that record;
"Court" +Cour-
"Court" means the Federal Court--Trial Division;
"designated Minister" +ministre d?sign?-
"designated Minister", in relation to any provision of this Act, means such member of the Queen's Privy Council for Canada as is designated by the Governor in Council as the Minister for the purposes of that provision;
"foreign state" +?tat ?tranger-
"foreign state" means any state other than Canada;
"government institution" +institution f?d?rale-
"government institution" means any department or ministry of state of the Government of Canada listed in Schedule I or any body or office listed in Schedule I;
"head" +responsable d¦institution f?d?rale-
"head", in respect of a government institution, means
(a) in the case of a department or ministry of state, the member of the Queen's Privy Council for Canada presiding over that institution, or
(b) in any other case, the person designated by order in council pursuant to this paragraph and for the purposes of this Act to be the head of that institution;
"Information Commissioner" +Commissaire ? l¦information-
"Information Commissioner" means the Commissioner appointed under section 54;
"record" +document-
"record" includes any correspondence, memorandum, book, plan, map, drawing, diagram, pictorial or graphic work, photograph, film, microform, sound recording, videotape, machine readable record, and any other documentary material, regardless of physical form or characteristics, and any copy thereof;
"sensory disability" +d?ficience sensorielle-
"sensory disability" means a disability that relates to sight or hearing;
"third party" +tiers-
"third party", in respect of a request for access to a record under this Act, means any person, group of persons or organization other than the person that made the request or a government institution.
Legislative History: R.S., 1985, c. A-1, s. 3; 1992, c. 21, s. 1.
JURISPRUDENCE
Head of a government institution
It is the institution head who must decide whether to disclose the record. In s. 3 the "head" is specifically and expressly defined as the Minister in the case of a department. Section 73 gives the Minister the power to delegate "by order". The Minister of Environment Canada had not delegated any powers to the Regional Director when he made his decision. His decision was therefore set aside.
Communaut? urbaine de Montr?al (Soci?t? de transport) v. Canada (Minister of Environment), [1987] 1 F.C. 610 (T.D.).
"Third party" / Canada post corporation
Canada Post Corporation (CPC) is not listed in Schedule I to the Act. Therefore, the records under its control are not subject to disclosure under the Act. In this sense, it is in a position analogous to any private citizen or corporation in so far as the Act is concerned. Since CPC was neither the person that made the request nor a government institution, it was clearly a third party.
Canada Post Corp. v. Canada (Minister of Public Works), [1993] 3 F.C. 320 (T.D.); aff'd (1993), 64 F.T.R. 62 (F.C.A.).
Right to access to records
4. (1) Subject to this Act, but notwithstanding any other Act of Parliament, every person who
(a) is a Canadian citizen, or
(b) a permanent resident within the meaning of the Immigration Act,
has a right to and shall, on request, be given access to any record under the control of a government institution.
Extension of right by order
(2) The Governor in Council may, by order, extend the right to be given access to records under subsection (1) to include persons not referred to in that subsection and may set such conditions as the Governor in Council deems appropriate.
Records produced from machine readable records
(3) For the purposes of this Act, any record requested under this Act that does not exist but can, subject to such limitations as may be prescribed by regulation, be produced from a machine readable record under the control of a government institution using computer hardware and software and technical expertise normally used by the government institution shall be deemed to be a record under the control of the government institution.
Publication on government institutions
5. (1) The designated Minister shall cause to be published, on a periodic basis not less frequently than once each year, a publication containing
(a) a description of the organization and responsibilities of each government institution, including details on the programs and functions of each division or branch of each government institution;
(b) a description of all classes of records under the control of each government institution in sufficient detail to facilitate the exercise of the right of access under this Act;
(c) a description of all manuals used by employees of each government institution in administering or carrying out any of the programs or activities of the government institution; and
(d) the title and address of the appropriate officer for each government institution to whom requests for access to records under this Act should be sent.
Bulletin
(2)-The designated Minister shall cause to be published, at least twice each year, a bulletin to bring the material contained in the publication published under subsection (1) up to date and to provide to the public other useful information relating to the operation of this Act.
Descriptions in publication and bulletins
(3)-Any description that is required to be included in the publication or bulletins published under subsection (1) or (2) may be formulated in such a manner that the description does not itself constitute information on the basis of which the head of a government institution would be authorized to refuse to disclose a part of a record requested under this Act.
Publication and bulletin to be made available
(4) The designated Minister shall cause the publication referred to in subsection (1) and the bulletin referred to in subsection (2) to be made available throughout Canada in conformity with the principle that every person is entitled to reasonable access thereto.
Legislative History: 1980-81-82-83, c. 111, Sch. I "5".
Request for access to record
6. A request for access to a record under this Act shall be made in writing to the government institution that has control of the record and shall provide sufficient detail to enable an experienced employee of the institution with a reasonable effort to identify the record.
Legislative History: 1980-81-82-83, c. 111, Sch. I "6".
JURISPRUDENCE
The degree of specificity of a request must be such that the document or record is reasonably identifiable.
Horseman v. Canada (Minister of Indian Affairs and Northern Development), T-2863-86, decision dated March 30, 1987, F.C.T.D., not reported.
See also: ATIA ss. 4, 20(1), 28, 44.
The Court found, on the basis of the affidavit submitted by the respondent, that an adequate search of the Department's records had been conducted.
X v. Canada (Minister of National Defence) (1992), 58 F.T.R. 93 (F.C.T.D.)
See also: ATIA ss. 10, 15, 49, 50.
Notice where access requested
7. Where access to a record is requested under this Act, the head of the government institution to which the request is made shall, subject to sections 8, 9 and 11, within thirty days after the request is received,
(a)-give written notice to the person who made the request as to whether or not access to the record or a part thereof will be given; and
(b)-if access is to be given, give the person who made the request access to the record or part thereof.
Legislative History: 1980-81-82-83, c. 111, Sch. I "7".
JURISPRUDENCE
Content of notice of refusal
Sections 7 and 10 require that an institution which refuses access give a written notice to the requester of all the provisions of the Act relied upon in refusing the request. There is no indication that relevant section numbers must be linked to specific deletions and certainly nothing requiring that they be written directly on the released document.
However, the practice of indicating the exemption within the body of the documents disclosed is commendable and should continue where there is no danger of revealing the substance of protected information.
Transfer of request
8. (1) Where a government institution receives a request for access to a record under this Act and the head of the institution considers that another government institution has a greater interest in the record, the head of the institution may, subject to such conditions as may be prescribed by regulation, within fifteen days after the request is received, transfer the request and, if necessary, the record to the other government institution, in which case the head of the institution transferring the request shall give written notice of the transfer to the person who made the request.
Deeming provision
(2)-For the purposes of section 7, where a request is transferred under subsection (1), the request shall be deemed to have been made to the government institution to which it was transferred on the day the government institution to which the request was originally made received it.
Meaning of greater interest
(3) For the purpose of subsection (1), a government institution has a greater interest in a record if
(a)-the record was originally produced in or for the institution; or
(b)-in the case of a record not originally produced in or for a government institution, the institution was the first government institution to receive the record or a copy thereof.
Legislative History: 1980-81-82-83, c. 111, Sch. I "8".
Extension of time limits
9. (1)-The head of a government institution may extend the time limit set out in section 7 or subsection 8(1) in respect of a request under this Act for a reasonable period of time, having regard to the circumstances, if
(a) the request is for a large number of records or necessitates a search through a large number of records and meeting the original time limit would unreasonably interfere with the operations of the government institution,
(b)-consultations are necessary to comply with the request that cannot reasonably be completed within the original time limit, or
(c)-notice of the request is given pursuant to subsection 27(1)
by giving notice of the extension and, in the circumstances set out in paragraph (a) or (b), the length of the extension, to the person who made the request within thirty days after the request is received, which notice shall contain a statement that the person has a right to make a complaint to the Information Commissioner about the extension.
Notice of extension to Information Commissioner
(2)-Where the head of a government institution extends a time limit under subsection (1) for more than thirty days, the head of the institution shall give notice of the extension to the Information Commissioner at the same time as notice is given under subsection (1).
Legislative History: 1980-81-82-83, c. 111, Sch. I "9".
JURISPRUDENCE
Review of the extension of time limits
On a preliminary motion, the Court held that if a refusal to disclose is a prerequisite for the Court to exercise jurisdiction under s. 42 of the Act, then the Court is required to decide whether there has been a refusal in each case.
Where the application is based on an allegedly unauthorized extension under s. 9, that enquiry consists of determining whether the extension was properly taken under s. 9 or whether it amounts to a deemed refusal pursuant to subs. 10(3). The Court must therefore be able to review the extension of time itself and the reasons given even where the material requested had already been released.
Canada (Information Commissioner) v. Canada (Minister of External Affairs), [1989] 1 F.C. 3 (T.D.).
The Court accepted jurisdiction to make a series of declarations as to the shortcomings of the respondent Department in its administration of the Act and concluded that a 120-day time extension was not justified under subs. 9(1).
Canada (Information Commissioner) v. Canada (Minister of External Affairs), [1990] 3 F.C. 514 (T.D)
To note: See below for a different approach taken by the Court.
See also: ATIA ss. 10, 42, 40-53.
No review of the extension of time limits
The Federal Court does not have a mandate to review the decision by the head of an institution under subs. 9(1) to extend the time limit for responding to a request for access to a record. The Court can entertain an application by a private party only under s. 41, and then only when access has been refused.
Furthermore, in this case, it was clear by subs. 9(1) that an extension of time for a response by the head of an institution was not a refusal of access because access was given before the extended time period had expired.
X v. Canada (Minister of National Defence), [1991] 1 F.C. 670 (T.D.).
Failure to give access within the time limits
The applicant was informed by the Department that an extension of the statutory time limit would be necessary, pursuant to para. 9(1)(b). He received the requested records after the expiration of the extension. He sought an order from the Court directing the respondent to provide in writing a detailed explanation as to why his Department failed to respond within the time limits set out in the Act and what remedies will be undertaken by the Department so as to try to prevent the repetition of such a situation in the future.
The Court stated that it will not countenance dilatoriness on the part of any government institution but rejected the application on the basis that no actual refusal remained to be addressed. Although there was a deemed refusal pursuant to subs. 10(3), it was followed by performance, albeit delayed performance.
Where access is refused
10.-(1) Where the head of a government institution refuses to give access to a record requested under this Act or a part thereof, the head of the institution shall state in the notice given under paragraph 7(a)
(a)-that the record does not exist, or
(b)-the specific provision of this Act on which the refusal was based or, where the head of the institution does not indicate whether a record exists, the provision on which a refusal could reasonably be expected to be based if the record existed,
and shall state in the notice that the person who made the request has a right to make a complaint to the Information Commissioner about the refusal.
Existence of a record not required to be disclosed
(2)-The head of a government institution may but is not required to indicate under subsection (1) whether a record exists.
Deemed refusal to give access
(3)-Where the head of a government institution fails to give access to a record requested under this Act or a part thereof within the time limits set out in this Act, the head of the institution shall, for the purposes of this Act, be deemed to have refused to give access.
Legislative History: 1980-81-82-83, c. 111, Sch. I "10".
JURISPRUDENCE
Content of notice of refusal
Sections 7 and 10 require that an institution which refuses access give a written notice to the requester of all the provisions of the Act relied upon in refusing the request. The relevant section numbers are to be provided in the letter of notice. There is no indication that relevant section numbers must be linked to specific deletions and certainly nothing requiring that they be written directly on the released document.
However, the practice of indicating the exemption within the body of the documents disclosed is commendable and should continue where there is no danger of revealing the substance of protected information.
Vienneau v. Canada (Solicitor General), [1988] 3 F.C. 336 (T.D.).
The notice by which the head of a government institution refuses to communicate some of the requested records meets the requirements of this provision if it refers to the provisions on which the various exemptions are claimed.
X v. Canada (Minister of National Defence) (1992), 58 F.T.R. 93 (F.C.T.D.)
See also: ATIA ss. 6, 15, 49, 50; PA s. 16(1).
Subsection 10(3)
Review of the extension of time limits to determine if there is a deemed refusal
On a preliminary motion, the Court held that if a refusal to disclose is a prerequisite for a Court to exercise jurisdiction under s. 42 of the Act, then the Court is required to decide whether there has been a refusal in each case.
Where the application is based on an allegedly unauthorized extension under s. 9, that enquiry consists of determining whether the extension was properly taken or whether it amounted to a deemed refusal. The Court concluded that it must be able to review the extension of time itself and the reasons given even where the material requested had already been released.
Canada (Information Commissioner) v. Canada (Minister of External Affairs), [1989] 1 F.C. 3 (T.D.). See decision below.
Unjustified extension of time limits - deemed refusals to give access
At the hearing of the application, the respondent conceded that the extensions of time limits were unjustified. The Court reviewed the matter, concluded that the unjustified extensions amounted to deemed refusals to disclose the requested records pursuant to subs. 10(3) of the Act and granted the declaratory relief sought by the Information Commissioner.
Canada (Information Commissioner) v. Canada (Minister of External Affairs), [1990] 3 F.C. 514 (T.D)
To note: Cases below indicate that other Justices of the Federal Court Trial Division have adopted a different approach.
No review of the extension of time limits - no deemed refusal to give access
The Federal Court can entertain an application by a private party only under s. 41, and then only when access has been refused. There had been an extension of time limits as allowed by subs. 9(1). There had been neither refusal of access nor deemed refusal of access under subs. 10(3). Access was given within the extended time limits.
Fees
11. (1) Subject to this section, a person who makes a request for access to a record under this Act may be required to pay
(a)-at the time the request is made, such application fee, not exceeding twenty-five dollars, as may be prescribed by regulation;
(b)-before any copies are made, such fee as may be prescribed by regulation reflecting the cost of reproduction calculated in the manner prescribed by regulation; and
(c)-before the record is converted into an alternative format or any copies are made in that format, such fee as may be prescribed by regulation reflecting the cost of the medium in which the alternative format is produced.
Additional payment
(2)-The head of a government institution to which a request for access to a record is made under this Act may require, in addition to the fee payable under paragraph (1)(a), payment of an amount, calculated in the manner prescribed by regulation, for every hour in excess of five hours that is reasonably required to search for the record or prepare any part of it for disclosure, and may require that the payment be made before access to the record is given.
Where a record is produced from a machine readable record
(3)-Where a record requested under this Act is produced as a result of the request from a machine readable record under the control of a government institution, the head of the institution may require payment of an amount calculated in the manner prescribed by regulation.
Deposit
(4)-Where the head of a government institution requires payment of an amount under subsection (2) or (3) in respect of a request for a record, the head of the institution may require that a reasonable proportion of that amount be paid as a deposit before the search or production of the record is undertaken or the part of the record is prepared for disclosure.
Notice
(5)-Where the head of a government institution requires a person to pay an amount under this section, the head of the institution shall
(a)-give written notice to the person of the amount required; and
(b)-state in the notice that the person has a right to make a complaint to the Information Commissioner about the amount required.
Waiver
(6)-The head of a government institution to which a request for access to a record is made under this Act may waive the requirement to pay a fee or other amount or a part thereof under this section or may refund a fee or other amount or a part thereof paid under this section.
Legislative History: R.S.,1985, c. A-1, s. 11; 1992, c. 21, s. 2.
JURISPRUDENCE
Enforcement of the application fee
The regulations for an application fee are expected to be enforced in a uniform and consistent manner. However, the enforcement of the application fee is a matter which must be left to each department. According to the Court, requests which are not accompanied by the requisite $5.00 are not applications within the terms of the statute and therefore not the subject of a refusal which can be adjudicated upon by the Court.
Rubin v. Canada (Minister of Employment and Immigration), T-194-85, decision dated October 4, 1985, F.C.T.D., not reported.
Improper use of fees reviewable
The improper use of fees may be considered as a "constructive refusal of access" which could be reviewed under s. 41.
Rubin v. Canada (Minister of Finance) (1987), 9 F.T.R. 317 (F.C.T.D.).
See also: ATIA s. 41.
Deposit Required
Where the head of an institution requests a deposit amounting to fifty per cent of the total chargeable fees before proceeding further with the access request, the Court held that such deposit was reasonable given the magnitude of the necessary searches.
Rubin v. Canada (Minister of Finance) (1987), 9 F.T.R. 317 (F.C.T.D.).
See also: ATIA s. 41.
Decision to release reversible
A decision under the ATIA to release documents to a party may be revised prior to their actual release. It is not irreversible and does not constitute a waiver that may be used to force the release of documents that are properly protected from disclosure.
Wells v. Canada (Minister of Transport) (1995), 63 C.P.R. (3d) 201 (F.C.T.D.).
Access to record
12. (1)-A person who is given access to a record or a part thereof under this Act shall, subject to the regulations, be given an opportunity to examine the record or part thereof or be given a copy thereof.
Information obtained in confidence
13. (1) Subject to subsection (2), the head of a government institution shall refuse to disclose any record requested under this Act that contains information that was obtained in confidence from
(a)-the government of a foreign state or an institution thereof;
(b)-an international organization of states or an institution thereof;
(c)-the government of a province or an institution thereof; or
(d) a municipal or regional government established by or pursuant to an Act of the legislature of a province or an institution of such a government.
Where disclosure authorized
(2) The head of a government institution may disclose any record requested under this Act that contains information described in subsection (1) if the government, organization or institution from which the information was obtained
(a)-consents to the disclosure; or
(b)-makes the information public.
Legislative History: 1980-81-82-83, c. 111, Sch. I "13".
JURISPRUDENCE
Responsibility of head
Under subs. 13(1), the head of a government institution must simply determine whether information was obtained in confidence and, if so, must refuse to disclose the records unless the material is determined, under subs. 13(2), to be no longer confidential.
X v Canada (Minister of National Defence), [1992] 1 F.C. 77 (T.D.).
See also: ATIA ss. 2, 4, 15, 19, 50, 52; PA s. 19.
See also: annotations under s. 19 PA.
Federal-provincial affairs
14.-The head of a government institution may refuse to disclose any record requested under this Act that contains information the disclosure of which could reasonably be expected to be injurious to the conduct by the Government of Canada of federal-provincial affairs, including, without restricting the generality of the foregoing, any such information
(a) on federal-provincial consultations or deliberations; or
(b)-on strategy or tactics adopted or to be adopted by the Government of Canada relating to the conduct of federal-provincial affairs.
Legislative History: 1980-81-82-83, c. 111, Sch. I "14".
JURISPRUDENCE
Reasonable expectation of harm / information already public
Section 14 of the Act, under which the exception was claimed, uses the words "could reasonably be expected to". The Court was bound by the decision Canada Packers Inc. v. Canada (Minister of Agriculture), [1989] 1 F.C. 47 (C.A.), in which the Federal Court of Appeal interpreted those words, as used in para. 20(1)(c), as meaning that the exception to access must be based on a "reasonable expectation of probable harm".
The decision to be made under s. 14 is confined to the formulation of an opinion as to whether or not disclosure of information could reasonably be expected to be injurious. Section 14 does nothing other than empower the making of a decision that documents which fall into a category are exempt from the general rule of disclosure and permits confidentiality if they do.
Consideration of the press¦ handling of information may be relevant to an assessment of probable injury. The jurisprudence indicates that once information is public from another source the release of the same information by the Government will be less likely to cause harm. The Government would have to show specific reasons why its release of the same information would cause harm. An expectation, not based on all available and relevant information, is not the reasonable expectation called for by s. 14.
As stated by the Court in Ternette v. Canada (Solicitor General), [1992] 2 F.C. 75 (T.D.), in order to make it possible for the Court to review without difficulty the basis upon which the decision had been made to refuse access or release to the applicant, a desirable procedure is to set out on each page for which exemption from disclosure is sought, the specific injurious effect the release of that page would be likely to cause.
Canada (Information Commissioner) v. Canada (Prime Minister), [1993] 1 F.C. 427 (T.D.). Canada (Information Commissioner) v. Canada (Prime Minister), [1993] 1 F.C. 427 (T.D.).
See also: annotations under s. 20 PA.
International affairs and defence
15. (1) The head of a government institution may refuse to disclose any record requested under this Act that contains information the disclosure of which could reasonably be expected to be injurious to the conduct of international affairs, the defence of Canada or any state allied or associated with Canada or the detection, prevention or suppression of subversive or hostile activities, including, without restricting the generality of the foregoing, any such information
(a) relating to military tactics or strategy, or relating to military exercises or operations undertaken in preparation for hostilities or in connection with the detection, prevention or suppression of subversive or hostile activities;
(b)-relating to the quantity, characteristics, capabilities or deployment of weapons or other defence equipment or of anything being designed, developed, produced or considered for use as weapons or other defence equipment;
(c)-relating to the characteristics, capabilities, performance, potential, deployment, functions or role of any defence establishment, of any military force, unit or personnel or of any organization or person responsible for the detection, prevention or suppression of subversive or hostile activities;
(d)-obtained or prepared for the purpose of intelligence relating to
(i)-the defence of Canada or any state allied or associated with Canada, or
(ii)-the detection, prevention or suppression of subversive or hostile activities;
(e)-obtained or prepared for the purpose of intelligence respecting foreign states, international organizations of states or citizens of foreign states used by the Government of Canada in the process of deliberation and consultation or in the conduct of international affairs;
(f)-on methods of, and scientific or technical equipment for, collecting, assessing or handling information referred to in paragraph (d) or (e) or on sources of such information;
(g)-on the positions adopted or to be adopted by the Government of Canada, governments of foreign states or international organizations of states for the purpose of present or future international negotiations;
(h)-that constitutes diplomatic correspondence exchanged with foreign states or international organizations of states or official correspondence exchanged with Canadian diplomatic missions or consular posts abroad; or
(i)-relating to the communications or cryptographic systems of Canada or foreign states used
(i)-for the conduct of international affairs,
(ii)-for the defence of Canada or any state allied or associated with Canada, or
(ii)-in relation to the detection, prevention or suppression of subversive or hostile activities.
Definitions
(2)-In this section,
"defence of Canada or any state allied or associated with Canada" +d?fense...-
"defence of Canada or any state allied or associated with Canada" includes the efforts of Canada and of foreign states toward the detection, prevention or suppression of activities of any foreign state directed toward actual or potential attack or other acts of aggression against Canada or any state allied or associated with Canada;
Law enforcement and investigations
16.-(1) The head of a government institution may refuse to disclose any record requested under this Act that contains
(a)-information obtained or prepared by any government institution, or part of any government institution, that is an investigative body specified in the regulations in the course of lawful investigations pertaining to
(i)-the detection, prevention or suppression of crime,
(ii)-the enforcement of any law of Canada or a province, or
(iii)-activities suspected of constituting threats to the security of Canada within the meaning of the Canadian Security Intelligence Service Act,
if the record came into existence less than twenty years prior to the request;
(b)-information relating to investigative techniques or plans for specific lawful investigations;
(c)-information the disclosure of which could reasonably be expected to be injurious to the enforcement of any law of Canada or a province or the conduct of lawful investigations, including, without restricting the generality of the foregoing, any such information
(i)-relating to the existence or nature of a particular investigation,
(ii)-that would reveal the identity of a confidential source of information, or
(iii)-that was obtained or prepared in the course of an investigation; or
(d)-information the disclosure of which could reasonably be expected to be injurious to the security of penal institutions.
Security
(2)-The head of a government institution may refuse to disclose any record requested under this Act that contains information that could reasonably be expected to facilitate the commission of an offence, including, without restricting the generality of the foregoing, any such information
(a)-on criminal methods or techniques;
(b)-that is technical information relating to weapons or potential weapons; or
(c)-on the vulnerability of particular buildings or other structures or systems, including computer or communication systems, or methods employed to protect such buildings or other structures or systems.
Policing services for provinces or municipalities
(3)-The head of a government institution shall refuse to disclose any record requested under this Act that contains information that was obtained or prepared by the Royal Canadian Mounted Police while performing policing services for a province or municipality pursuant to an arrangement made under section 20 of the Royal Canadian Mounted Police Act, where the Government of Canada has, on the request of the province or municipality agreed not to disclose such information.
Definition of "investigation"
(4)-For the purposes of paragraphs (1)(b) and (c), "investigation" means an investigation that
(a)-pertains to the administration or enforcement of an Act of Parliament;
(b)-is authorized by or pursuant to an Act of Parliament; or
(c)-is within a class of investigations specified in the regulations.
Legislative History: 1980-81-82-83, c. 111, Sch. I "16"; 1984, c. 21, s. 70.
JURISPRUDENCE
Information relating to investigative techniques
The exemption set out in para.16(1)(b) fulfils the requirements of being necessary, limited and specific as those words are used in s. 2.
The respondent had to convince the Court that the information withheld referred, as claimed, to investigative techniques. The Court was satisfied that the contents of the affidavit, which had been filed with the Court in a sealed envelope, justified the application of the exemption.
Rubin v. Canada (Solicitor General) (1986), 1 F.T.R. 157 (F.C.T.D.).
Investigation in subparagraph 16(1)(c)(iii) refers to specific investigation
The requester sought access to the communications between the Privy Council Office and the Information Commissioner regarding prior requests to the Privy Council Office.
The applicability of both para. 16(1)(c) and s. 35 of the Act as grounds for sheltering the requested information from disclosure was in issue.
The Court held that subparas. 16(1)(c)(i) and (ii) are intended to be invoked in particular investigations or where a specific confidential source may be revealed. In subpara. 16(1)(c)(iii), the investigation referred to is a specific investigation where the disclosure of particular information would be injurious to the conduct of that specific investigation. The Court ruled that para. 16(1)(c) is not a procedural provision that justifies confidentiality in respect of the investigative process of the Information Commissioner.
Rubin v. Canada (Clerk of the Privy Council), [1993] 2 F.C. 391 (T.D.); [1994] 2 F.C. 707 (C.A.). Decision of Federal Court of Appeal affirmed by Supreme Court of Canada (1996), 179 N.R. 320 (S.C.C.).
Since the Federal Court of Appeal concluded that subs. 35(2) does deny a right of access to the requested information, it held that there was no need to examine the question of whether para. 16(1)(c) applied to the requested information.
The order of the Trial Division was set aside: [1994] 2 F.C. 707 (C.A.). Decision of Federal Court of Appeal affirmed by Supreme Court of Canada (1996), 179 N.R. 320 (S.C.C.).
To note: This decision should be compared with the case Rubin v. Canada (Minister of Transport), T-891-93, decision dated December 21, 1995, F.C.T.D., not reported, which is described below.
Where disclosure of information may be injurious to future investigations
The applicant had requested the Post-Accident Safety Review Report of an airplane crash. The report had been done after an airline (Nationair¦ had voluntarily agreed to have Transport Canada conduct a review of the accident. The Department invoked para. 16(1)(c) for part of the requested records, arguing that release of this report would lead to other companies refusing to participate in such reviews, given the voluntary nature of the review process. The Court agreed with the Department. It held that para. 16(1)(c) is not restricted to a specific investigation but relates to records that fall within the general language of that paragraph. This exemption contemplates a situation in which the disclosure of information may reasonably be expected to be injurious to the conduct of lawful investigations in the future. The injury may therefore be to a general investigative process and not only to a particular investigation. The Court concluded that the evidence submitted by the respondent met the requirements of the injury test in para. 16(1)(c) in that there was a reasonable expectation of probable harm from disclosure to the conduct of lawful investigations under the review program.
Rubin v. Canada (Minister of Transport), T-891-93, decision dated December 21, 1995, F.C.T.D., not reported.
To note: This case is under appeal. Also, compare decision with case: Rubin v. Canada (Clerk of the Privy Council), [1993] 2 F.C. 391 (T.D.); [1994] 2 F.C. 707 (C.A.). Decision of Federal Court of Appeal affirmed by Supreme Court of Canada (1996), 179 N.R. 320 (S.C.C.).
Public interest test
The applicant argued that the ATIA requires a public interest test under para. 16(1)(c) in deciding whether or not to disclose records. The Court held that the ATIA does not set up an obligation to consider the public interest as an independent step in the analysis leading to the decision whether or not to disclose under para. 16(1)(c). Nevertheless, the public interest in maintaining confidential reviews outweighed the public¦s right of access contemplated in subs. 2(1) ATIA. It was in the public interest to maintain the confidentiality of the records that had been requested.
Safety of individuals
17. The head of a government institution may refuse to disclose any record requested under this Act that contains information the disclosure of which could reasonably be expected to threaten the safety of individuals.
Legislative History: 1980-81-82-83, c. 111, Sch. I "17".
JURISPRUDENCE
Non-application / related type of information
The applicant, a third party, argued that product monographs and other documents filed by the applicant with the respondent should not be disclosed on the basis of s. 17. The respondent did not purport to act under that section and it was therefore not relevant to the application.
Furthermore, the applicant's evidence simply did not support its submission that disclosure of these records could reasonably be expected to threaten the safety of individuals. Treasury Board's Interim Policy Guide on the Act states that the s. 17 exemption will normally apply to information supplied by or about informants.
Canada Post Corp. v. Canada (Minister of Public Works), [1993] 3 F.C. 320 (T.D.); aff'd (1993), 64 F.T.R. 62 (F.C.A.).
See also: annotations under s. 25 PA.
Economic interests of Canada
18. The head of a government institution may refuse to disclose any record requested under this Act that contains
(a)-trade secrets or financial, commercial, scientific or technical information that belongs to the Government of Canada or a government institution and has substantial value or is reasonably likely to have substantial value;
(b)-information the disclosure of which could reasonably be expected to prejudice the competitive position of a government institution;
(c)-scientific or technical information obtained through research by an officer or employee of a government institution, the disclosure of which could reasonably be expected to deprive the officer or employee of priority of publication; or
(d)-information the disclosure of which could reasonably be expected to be materially injurious to the financial interests of the Government of Canada or the ability of the Government of Canada to manage the economy of Canada or could reasonably be expected to result in an undue benefit to any person, including, without restricting the generality of the foregoing, any such information relating to
(i)-the currency, coinage or legal tender of Canada,
(ii)-a contemplated change in the rate of bank interest or in government borrowing,
(iii)-a contemplated change in tariff rates, taxes, duties or any other revenue source,
(iv)-a contemplated change in the conditions of operation of financial institutions,
(v) a contemplated sale or purchase of securities or of foreign or Canadian currency, or
(vi)-a contemplated sale or acquisition of land or property.
Legislative History: 1980-81-82-83, c.111, Sch. I "18".
Personal information
19. (1)-Subject to subsection (2), the head of a government institution shall refuse to disclose any record requested under this Act that contains personal information as defined in section 3 of the Privacy Act.
Where disclosure authorized
(2)-The head of a government institution may disclose any record requested under this Act that contains personal information if
(a)-the individual to whom it relates consents to the disclosure;
(b)-the information is publicly available; or
(c)-the disclosure is in accordance with section 8 of the Privacy Act.
Legislative History: 1980-81-82-83, c. 111, Sch. I "19".
JURISPRUDENCE
Conditions of disclosure
Section 19 prohibits voluntary disclosure of personal information by heads of Government. However, it does permit disclosure in accordance with s. 8 PA.
Canada v. B?langer, [1988] R.J.Q. 105 (C.A.).
See also: PA s. 8.
Purpose of subsection 19(1)
What Parliament intended by the incorporation of a section of the PA in subs. 19(1) of the ATIA was to ensure that the principles of both statutes would come into play in determining whether to release personal information.
The intent of subs. 19(1) of the ATIA is to protect the privacy of individuals who may be mentioned in otherwise releasable material.
Third party information
20.-(1) Subject to this section, the head of a government institution shall refuse to disclose any record requested under this Act that contains
(a) trade secrets of a third party;
(b)-financial, commercial, scientific or technical information that is confidential information supplied to a government institution by a third party and is treated consistently in a confidential manner by the third party;
(c)-information the disclosure of which could reasonably be expected to result in material financial loss or gain to, or could reasonably be expected to prejudice the competitive position of, a third party; or
(d)-information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of a third party.
Product or environmental testing
(2)-The head of a government institution shall not, pursuant to subsection (1), refuse to disclose a part of a record if that part contains the results of product or environmental testing carried out by or on behalf of a government institution unless the testing was done as a service to a person, a group of persons or an organization other than a government institution and for a fee.
Methods used in testing
(3)-Where the head of a government institution discloses a record requested under this Act, or a part thereof, that contains the results of product or environmental testing, the head of the institution shall at the same time as the record or part thereof is disclosed provide the person who requested the record with a written explanation of the methods used in conducting the tests.
Preliminary testing
(4)-For the purposes of this section, the results of product or environmental testing do not include the results of preliminary testing conducted for the purpose of developing methods of testing.
Disclosure if a supplier consents
(5)-The head of a government institution may disclose any record that contains information described in subsection (1) with the consent of the third party to whom the information relates.
Disclosure authorized if in public interest
(6)-The head of a government institution may disclose any record requested under this Act, or any part thereof, that contains information described in paragraph (1)(b), (c) or (d) if that disclosure would be in the public interest as it relates to public health, public safety or protection of the environment and, if the public interest in disclosure clearly outweighs in importance any financial loss or gain to, prejudice to the competitive position of or interference with contractual or other negotiations of a third party.
Legislative History: 1980-81-82-83, c. 111, Sch. I "20".
JURISPRUDENCE
Subsection 20(1)
Head of a government institution
Subsection 20(1) provides that the head of a government institution shall refuse to disclose records in certain cases. In s. 3 the "head" is specifically and expressly defined as the Minister in the case of a department. Section 73 gives the Minister the power to delegate "by order". The Minister of Environment Canada had not delegated any powers to the Regional Director when the Regional Director made his decision. The decision of the Regional Director was therefore set aside.
Communaut? urbaine de Montr?al (Soci?t? de transport) v. Canada (Minister of Environment), [1987] 1 F.C. 610 (T.D.).
Third party interest
The appellant had suggested that the material that had been ordered to be released had been in some respect different from what had been requested.
According to the Court, the appellant's interest, as third party intervenor in a request for information, was limited to those matters set out in subs. 20(1). It had no status to object to the fact that the Government may have given more or less than that for which it had been asked.
Saint John Shipbuilding Limited. v. Canada (Minister of Supply and Services) (1990), 67 D.L.R. (4th) 315; 107 N.R. 89 (F.C.A.).
Motivation of the requesters
The right of access is available to every member of the public and cannot be restricted by considerations of motive or occupation. The only way motivation could be relevant is in order to establish a reasonable expectation of harm to third parties under para. 20(1)(c) or (d).
Intercontinental Packers Limited v. Canada (Minister of Agriculture) (1987), 14 F.T.R. 142 (F.C.T. D.); aff'd on different grounds (1988), 87 N.R. 99 (F.C.A.).
To note: Consider also the F.C.A.¦s decision in Canada Packers Inc. v. Canada (Minister of Agriculture), [1989] 1 F.C. 47 (C.A.)
See also: more recent case Prud'homme v. Canada (Canadian International Development Agency) (1994), 85 F.T.R. 302 (F.C.T.D.).
No exemption considered under s. 20 / no notice under s. 28 / no right of review
Where a head of a government institution concludes that a record should not be exempted under s. 20 ATIA and therefore does not give notice to the third party under subs. 28(5) (now subs. 28(1), then the third party has no right of review under s. 44 ATIA.
Advice, etc.
21. (1)-The head of a government institution may refuse to disclose any record requested under this Act that contains
(a) advice or recommendations developed by or for a government institution or a minister of the Crown,
(b)-an account of consultations or deliberations involving officers or employees of a government institution, a minister of the Crown or the staff of a minister of the Crown,
(c)-positions or plans developed for the purpose of negotiations carried on or to be carried on by or on behalf of the Government of Canada and considerations relating thereto, or
(d)-plans relating to the management of personnel or the administration of a government institution that have not yet been put into operation,
if the record came into existence less than twenty years prior to the request.
Exercise of a discretionary power or an adjudicative function
(2)-Subsection (1) does not apply in respect of a record that contains
(a) an account of, or a statement of reasons for, a decision that is made in the exercise of a discretionary power or an adjudicative function and that affects the rights of a person; or
(b)-a report prepared by a consultant or an adviser who was not, at the time the report was prepared, an officer or employee of a government institution or a member of the staff of a minister of the Crown.
Legislative History: 1980-81-82-83, c. 111, Sch. I "21".
JURISPRUDENCE
Decision-making process
This was an application to review the respondent's decision to disclose excerpts from certain meetings of the Executive Committee of the CRTC.
On a procedural point, the Court considered the validity of the decision-making process of the CRTC and was satisfied that the process was valid. The Court stated that it could not uphold the application of para. 21(1)(b) unless the decision-making process was valid.
The Court upheld the use of para. 21(1)(b) ATIA by the CRTC. It noted that confidentiality in the communication between Committee members in the preparation of a decision is absolutely essential, and para. 21(1)(b) clearly sets out an entirely proper and specific exemption in that respect. The Court held that while para. 21(2)(a) removed the Executive Committee¦s reasons for decisions from the scope of para. 21(1)(b), preparatory notes and communications resulting in the reasons for decision could be exempt pursuant thereto.
Canada (Information Commissioner) v. Canadian Radio-television and Telecommunications Commission, [1986] 3 F.C. 413 (T.D.).
Discretion given to the head of the institution
The applicant sought a review of the respondent¦s decision to withhold minutes of its Executive Committee meetings. Although the Court expressed surprise that the respondent insisted on exempting all of the minutes sought by the applicant, it nevertheless rejected the application based on the CRTC decision.
Re Rubin and President of CMHC (1987), 36 D.L.R. (4th) 22 (F.C.T.D.).
To note: Federal Court of Appeal decision below.
The Federal Court of Appeal overturned the lower Court¦s decision. The F.C.A. held that the respondent¦s decision was invalid because:
(1) the respondent¦s delegate had failed to perform the severance examination mandated by section 25; and
(3) the respondent¦s delegate failed to (enter into the necessary examination of the material requested in order to decide what did not fit squarely within the four corners of para. 21(1)(b) ATIA. The discretion given to the institutional head is not unfettered. It must be used in a manner which accords with the conferring statute.¦
Rubin v. Canada (Canada Mortgage and Housing Corp.), [1989] 1 F.C. 265 (C.A.)
Testing procedures, tests and audits
22.-The head of a government institution may refuse to disclose any record requested under this Act that contains information relating to testing or auditing procedures or techniques or details of specific tests to be given or audits to be conducted if the disclosure would prejudice the use or results of particular tests or audits.
Solicitor-client privilege
23. The head of a government institution may refuse to disclose any record requested under this Act that contains information that is subject to solicitor-client privilege.
Legislative History:: 1980-81-82-83, c. 111, Sch. I (23¦.
JURISPRUDENCE
Common law to decide if privilege exists
As solicitor-client privilege is not defined in the Act, it is necessary to refer to the common law for the background on the issue. There exists a solicitor-client relationship between the lawyers of the Department of Justice and the executive branch of the Government of Canada, which includes the various Departments. Once this relationship has been established it must be demonstrated that each document to which access is denied by virtue of this provision meets the criteria of confidentiality that it is either for the purpose of legal advice or in contemplation of litigation.
Weiler v. Canada (Minister of Justice), [1991] 3 F.C. 617 (T.D.).
Scope of solicitor-client privilege
The records in question were protected from disclosure under the scope of the solicitor-client privilege. The party claiming privilege must satisfy the test in Solosky v. R., [1980] 1 S.C.R. 821. The burden falls on the moving party to demonstrate that each and every document falls squarely within the scope of the rule. The party in question must show that:
(a)the information was communicated by or to a government lawyer in order to provide senior government officials with advice on the legal consequences of proposed governmental activities; and
(b)the information was and is confidential and was treated as such both at the initial communication and since that time.
Wells v. Canada (Minister of Transport) (1995), 63 C.P.R. (3d) 201 (F.C.T.D.).
Waiver of privilege
The Museum of Nature, on the recommendation of the Department of Justice, ordered a special forensic audit to be carried out by the accounting firm of Peat Marwick and Thorne. The purpose of the report was to determine whether it was prudent to litigate against the Professional Institute of the Public Service of Canada (PIPSC). In the course of his official audit functions, the Auditor General asked for and was given access by the Museum to the forensic audit. PIPSC sought disclosure of the audit under the ATIA.
The Court held that the forensic audit had been obtained for the dominant purpose of litigation. The dominant purpose of a document is to be assessed as of the time at which it was brought into existence.
However, the Court held that the Museum had waived the privilege by disclosing the report for a review by the Auditor General in the course of the preparation of his annual report. The Court reasoned that since the Auditor General acts as a (public watchdog¦, he must be looked upon as a third party vis-?-vis the government entities he is called upon to audit. In terms of solicitor-client privilege, disclosure of an otherwise privileged document to the Auditor General in the course of an audit was wholly inconsistent with an intent to maintain the privilege and as such amounted to a waiver.
The Museum had argued that the release of the report to the Auditor General was not voluntary. The Court held that there was no evidence that the Auditor General had invoked any of his statutory powers to compel the Museum to disclose the report. Nor was there any indication that the Auditor General would have resorted to any such powers if the Museum had refused disclosure on the grounds of privilege. Even if the Auditor General had wanted to use his statutory powers, it was not clear that he possessed the power to Actually compel the production of the report.
Professional Institute of the Public Service of Canada v. Canadian Museum of Nature (1995), 63 C.P.R. (3d) 449 (F.C.T.D.).
To note: This case is based on a very narrow set of facts and it has no precedential value beyond them. It should not be applied to other oversight bodies such as the Information Commissioner. See the directive on this case from the Justice Deputy Minister.
Communications between lawyer and client privileged, including facts found in such communications
There are two types of decisions that must be made when invoking this exemption:
1.A factual decision must be taken as to whether or not the requested information is subject to solicitor-client privilege.
2.If it is decided that the record is indeed privileged, then a discretionary decision must be made as to whether or not the privileged information ought nevertheless to be disclosed.
In defining the scope of solicitor-client privilege, one must refer to the common law. The solicitor-client privilege extends to the substantive rule of law. The Court quoted extensively from the decision Desc?teaux v. Mierwinski, [1982] 1 S.C.R. 560 and the case Susan Hosiery v. Minister of National Revenue, [1969] 2 Ex. C.R. 27. In the case Susan Hosiery, the Court held that (communications or working papers that came into existence by reason of the desire to obtain a legal opinion or legal assistance in the one case and the material created for the lawyer¦s brief in the other case are privileged. However, the facts or documents that happen to be reflected in such communications or materials are not privileged from discovery if otherwise the party would be bound to give discovery of them.¦ The Court stated that there is a (continuum of communications¦ and emphasized that (all communications between a client and a legal advisor directly related to the seeking, formulating or giving of legal advice or legal assistance falls under the protection of solicitor-client privilege¦.
Statutory prohibitions against disclosure
24. (1)-The head of a government institution shall refuse to disclose any record requested under this Act that contains information the disclosure of which is restricted by or pursuant to any provision set out in Schedule II.
Review of statutory prohibitions by Parliamentary committee
(2)-Such committee as may be designated or established under section 75 shall review every provision set out in Schedule II and shall, not later than July 1, 1986 or, if Parliament is not then sitting, on any of the first fifteen days next thereafter that Parliament is sitting, cause a report to be laid before Parliament on whether and to what extent the provisions are necessary.
Legislative History: 1980-81-82-83, c. 111, Sch. I "24".
JURISPRUDENCE
Subsection 24(2)
Review of statutory prohibitions / parliament's intention
Parliament intended that the invocation of provisions in other statutes to prevent disclosure under the ATIA be made as restrictive as possible by requiring that Parliament itself mandate resort to such provisions through s. 24.
Canada (Information Commissioner) v. Canada (Immigration Appeal Board), [1988] 3 F.C. 477 (T.D.).
Severability
25.-Notwithstanding any other provision of this Act, where a request is made to a government institution for access to a record that the head of the institution is authorized to refuse to disclose under this Act by reason of information or other material contained in the record, the head of the institution shall disclose any part of the record that does not contain, and can reasonably be severed from any part that contains, any such information or material.
Legislative History: 1980-81-82-83, c. 111, Sch. I "25".
JURISPRUDENCE
Deletion of exempt information does not constitute refusal
Where an institution determines that a record is exempt from disclosure because it contains exempt information but releases portions that can be reasonably severed, each such deletion of exempt information does not constitute a "refusal".
Vienneau v. Canada (Solicitor General), [1988] 3 F.C. 336 (T.D.).
See also: ATIA ss. 7, 10(1).
Information not easily severable
Information regarding grants and contributions from public funds contained in an Indian band's audited financial statements was not reasonably severable because (a) without the rest, the two or three lines of information would be worthless and (b) the effort required to sever would not be "reasonably proportionate to the quality of access it would provide".
Montana Band of Indians v. Canada (Minister of Indian and Northern Affairs), [1989] 1 F.C. 143 (T.D.).
See also: ATIA ss. 4, 19, 20(1)(b); PA s. 3.
Severed snippets not reasonable
Severance by a surgical process resulting in the disclosure of disconnected snippets of information is unreasonable as such disclosure does not result in the reasonable fulfillment of the Act. Such an approach is troublesome because (a) what is disclosed may "be meaningless or misleading as the information it contains is taken totally out of context" and (b) what remains "may provide clues to the contents of the deleted portions". With respect to personal information, it is preferable to delete an entire passage in order to protect the privacy of the individual rather than to disclose certain parts thereof.
Legislative History: 1980-81-82-83, c. 111, Sch. I "22".
JURISPRUDENCE
Confidential character of a test
Government institutions are authorized under s. 22 ATIA to protect the confidential character of information relating to tests. In this case the evidence indicated that the test in question was used frequently. It was important that the confidential character of the test be preserved to ensure that future candidates did not benefit unfairly.
The original transcript of the "in basket" test which the applicant took, as well as related documents, is not personal information under s. 3 PA. To include these documents in the definition of personal information under s. 3 PA would, in effect, render s. 22 ATIA inoperative.
Refusal of access where information to be published
26. The head of a government institution may refuse to disclose any record requested under this Act or any part thereof if the head of the institution believes on reasonable grounds that the material in the record or part thereof will be published by a government institution, agent of the Government of Canada or minister of the Crown within ninety days after the request is made or within such further period of time as may be necessary for printing or translating the material for the purpose of printing it.
Legislative History: 1980-81-82-83, c. 111, Sch. I "26".
Notice to third parties
27. (1)-Where the head of a government institution intends to disclose any record requested under this Act, or any part thereof, that contains or that the head of the institution has reason to believe might contain
(a)-trade secrets of a third party,
(b)-information described in paragraph 20(1)(b) that was supplied by a third party, or
(c)-information the disclosure of which the head of the institution could reasonably foresee might effect a result described in paragraph 20(1)(c) or (d) in respect of a third party,
the head of the institution shall, subject to subsection (2), if the third party can reasonably be located, within thirty days after the request is received, give written notice to the third party of the request and of the fact that the head of the institution intends to disclose the record or part thereof.
Waiver of notice
(2) Any third party to whom a notice is required to be given under subsection (1) in respect of an intended disclosure may waive the requirement, and where the third party has consented to the disclosure the third party shall be deemed to have waived the requirement.
Contents of notice
(3) A notice given under subsection (1) shall include
(a)-a statement that the head of the government institution giving the notice intends to release a record or a part thereof that might contain material or information described in subsection (1);
(b) a description of the contents of the record or part thereof that, as the case may be, belong to, were supplied by or relate to the third party to whom the notice is given; and
(c) a statement that the third party may, within twenty days after the notice is given, make representations to the head of the government institution that has control of the record as to why the record or part thereof should not be disclosed.
Extension of time limit
(4) The head of a government institution may extend the time limit set out in subsection (1) in respect of a request under this Act where the time limit set out in section 7 is extended under paragraph 9(1)(a) or (b) in respect of the same request, but any extension under this subsection shall be for a period no longer than the period of the extension under section 9.
Legislative History: 1980-81-82-83, c. 111, Sch. I "28".
JURISPRUDENCE
Institution not to be bound by grounds in its original decision / no reason need be specified for decision to disclose
The respondent's decision to disclose records seemed to be based at different stages on different grounds. Those changes did not demonstrate exemplary administrative practice. Nevertheless the respondent ought not to be bound by the grounds identified in its original decision.
Unlike the situations in Ternette and Davidson where the Court was concerned with decisions not to disclose records and the reasons specified for those decisions, the concern here was with decisions to disclose records. No reason needs to be specified for a decision to disclose. The Act requires it.
Air Atonabee Limited v. Canada (Minister of Transport) (1989), 37 Admin. L.R. 245; 27 C.P.R. (3d) 180; 27 F.T.R. 194 (F.C.T.D.).
To note: Davidson v. Canada (Solicitor General), [1989] 2 F.C. 341 (C.A.); Ternette v. Solicitor General of Canada, [1984] 2 F.C. 486 (T.D.).
To note: It is important to bear in mind that the Act does not require notice to a third party before disclosure of information relating to that party, except in the circumstances set out in subs. 28(1), which was the case in Air Atonabee, supra. Otherwise, if the information requested is not of the nature referred to in that section, notice to the third party is not required, will not be ordered by the Court and no right of review under subs. 44(1) arises: Air Atonabee, supra.
Providing notice to third parties
When an institution refuses to disclose information on the basis of s. 20 and the matter proceeds to Court the institution is required to provide notice to third parties. Where there are a large number of third parties the notice can be provided through newspaper advertisements.
Canada (Information Commissioner) v. Canada (Minister of National Revenue), T-956-95, decision dated May 24, 1995, F.C.T.D., not reported.
Representations of third party and decision
28. (1)-Where a notice is given by the head of a government institution under subsection 27(1) to a third party in respect of a record or a part thereof,
(a)-the third party shall, within twenty days after the notice is given, be given the opportunity to make representations to the head of the institution as to why the record or the part thereof should not be disclosed; and
(b)-the head of the institution shall, within thirty days after the notice is given, if the third party has been given an opportunity to make representations under paragraph (a), make a decision as to whether or not to disclose the record or the part thereof and give written notice of the decision to the third party.
Representations to be made in writing
(2)-Representations made by a third party under paragraph (1)(a) shall be made in writing unless the head of the government institution concerned waives that requirement, in which case they may be made orally.
Contents of notice of decision to disclose
(3)-A notice given under paragraph (1)(b) of a decision to disclose a record requested under this Act or a part thereof shall include
(a)-a statement that the third party to whom the notice is given is entitled to request a review of the decision under section 44 within twenty days after the notice is given; and
(b)-a statement that the person who requested access to the record will be given access thereto or to the part thereof unless, within twenty days after the notice is given, a review of the decision is requested under section 44.
Disclosure of record
(4)-Where, pursuant to paragraph (1)(b), the head of a government institution decides to disclose a record requested under this Act or a part thereof, the head of the institution shall give the person who made the request access to the record or the part thereof forthwith on completion of twenty days after a notice is given under that paragraph, unless a review of the decision is requested under section 44.
Where the Information Commissioner recommends disclosure
29. (1) Where the head of a government institution decides, on the recommendation of the Information Commissioner made pursuant to subsection 37(1), to disclose a record requested under this Act or a part thereof, the head of the institution shall give written notice of the decision to
(a)-the person who requested access to the record; and
(b)-any third party that the head of the institution has notified under subsection 27(1) in respect of the request or would have notified under that subsection if the head of the institution had at the time of the request intended to disclose the record or part thereof.
Contents of notice
(2)-A notice given under subsection (1) shall include
(a)-a statement that any third party referred to in paragraph (1)(b) is entitled to request a review of the decision under section 44 within twenty days after the notice is given; and
(b)-a statement that the person who requested access to the record will be given access thereto unless, within twenty days after the notice is given, a review of the decision is requested under section 44.
Legislative History: 1980-81-82-83, c. 111, Sch. I "29".
Receipt and investigation of complaints
30. (1)-Subject to this Act, the Information Commissioner shall receive and investigate complaints
(a)-from persons who have been refused access to a record requested under this Act or a part thereof;
(b)-from persons who have been required to pay an amount under section 11 that they consider unreasonable;
(c)-from persons who have requested access to records in respect of which time limits have been extended pursuant to section 9 where they consider the extension unreasonable;
(d) from persons who have not been given access to a record or a part thereof in the official language requested by the person under subsection 12(2), or have not been given access in that language within a period of time that they consider appropriate;
(d.1) from persons who have not been given access to a record or a part thereof in an alternative format pursuant to a request made under subsection 12(3), or have not been given such access within a period of time that they consider appropriate;
(e)-in respect of any publication or bulletin referred to in section 5; or
(f)-in respect of any other matter relating to requesting or obtaining access to records under this Act.
Complaints submitted on behalf of complainants
(2)-Nothing in this Act precludes the Information Commissioner from receiving and investigating complaints of a nature described in subsection (1) that are submitted by a person authorized by the complainant to act on behalf of the complainant, and a reference to a complainant in any other section includes a reference to a person so authorized.
Information Commissioner may initiate complaint
(3) Where the Information Commissioner is satisfied that there are reasonable grounds to investigate a matter relating to requesting or obtaining access to records under this Act, the Commissioner may initiate a complaint in respect thereof.
Legislative History: R.S., 1985, c. A-1, s. 30; 1992, c. 21, s. 4.
Written complaint
31.-A complaint under this Act shall be made to the Information Commissioner in writing unless the Commissioner authorizes otherwise and shall, where the complaint relates to a request for access to a record, be made within one year from the time when the request for the record in respect of which the complaint is made was received.
Legislative History: 1980-81-82-83, c. 111, Sch. I "31".
Notice of intention to investigate
32. Before commencing an investigation of a complaint under this Act, the Information Commissioner shall notify the head of the government institution concerned of the intention to carry out the investigation and shall inform the head of the institution of the substance of the complaint.
Legislative History: 1980-81-82-83, c. 111, Sch. I "32".
Notice to third parties
33.-Where the head of a government institution refuses to disclose a record requested under this Act or a part thereof and receives a notice under section 32 of a complaint in respect of the refusal, the head of the institution shall forthwith advise the Information Commissioner of any third party that the head of the institution has notified under subsection 27(1) in respect of the request or would have notified under that subsection if the head of the institution had intended to disclose the record or part thereof.
Legislative History: 1980-81-82-83, c. 111, Sch. I "33".
Regulation of procedure
34.-Subject to this Act, the Information Commissioner may determine the procedure to be followed in the performance of any duty or function of the Commissioner under this Act.
Legislative History: 1980-81-82-83, c. 111, Sch. I "34".
Investigations in private
35. (1) Every investigation of a complaint under this Act by the Information Commissioner shall be conducted in private.
Right to make representations
(2)-In the course of an investigation of a complaint under this Act by the Information Commissioner, a reasonable opportunity to make representations shall be given to
(a) the person who made the complaint,
(b) the head of the government institution concerned, and
(c) where the Information Commissioner intends to recommend under subsection 37(1) that a record or a part thereof be disclosed that contains or that the Information Commissioner has reason to believe might contain
(i)-trade secrets of a third party,
(ii)-information described in paragraph 20(1)(b) that was supplied by a third party, or
(iii)-information the disclosure of which the Information Commissioner could reasonably foresee might effect a result described in paragraph 20(1)(c) or (d) in respect of a third party,
the third party, if the third party can reasonably be located, but no one is entitled as of right to be present during, to have access to or to comment on representations made to the Commissioner by any other person.
Powers of Information Commissioner in carrying out investigations
36. (1) The Information Commissioner has, in relation to the carrying out of the investigation of any complaint under this Act, power
(a)-to summon and enforce the appearance of persons before the Information Commissioner and compel them to give oral or written evidence on oath and to produce such documents and things as the Commissioner deems requisite to the full investigation and consideration of the complaint, in the same manner and to the same extent as a superior court of record;
(b)-to administer oaths;
(c)-to receive and accept such evidence and other information, whether on oath or by affidavit or otherwise, as the Information Commissioner sees fit, whether or not the evidence or information is or would be admissible in a court of law;
(d)-to enter any premises occupied by any government institution on satisfying any security requirements of the institution relating to the premises;
(e) to converse in private with any person in any premises entered pursuant to paragraph (d) and otherwise carry out therein such inquiries within the authority of the Information Commissioner under this Act as the Commissioner sees fit; and
(f) to examine or obtain copies of or extracts from books or other records found in any premises entered pursuant to paragraph (d) containing any matter relevant to the investigation.
Access to records
(2) Notwithstanding any other Act of Parliament or any privilege under the law of evidence, the Information Commissioner may, during the investigation of any complaint under this Act, examine any record to which this Act applies that is under the control of a government institution, and no such record may be withheld from the Commissioner on any grounds.
Evidence in other proceedings
(3)-Except in a prosecution of a person for an offence under section 131 of the Criminal Code (perjury) in respect of a statement made under this Act, in a prosecution for an offence under this Act, or in a review before the Court under this Act or an appeal therefrom, evidence given by a person in proceedings under this Act and evidence of the existence of the proceedings is inadmissible against that person in a court or in any other proceedings.
Witness fees
(4)-Any person summoned to appear before the Information Commissioner pursuant to this section is entitled in the discretion of the Commissioner to receive the like fees and allowances for so doing as if summoned to attend before the Federal Court.
Return of documents, etc.
(5) Any document or thing produced pursuant to this section by any person or government institution shall be returned by the Information Commissioner within ten days after a request is made to the Commissioner by that person or government institution, but nothing in this subsection precludes the Commissioner from again requiring its production in accordance with this section.
Legislative History: R.S., 1985, c. A-1, s. 36; R.S., 1985, c. 27 (1st Supp.), s. 187.
Findings and recommendations of Information Commissioner
37. (1) If, on investigating a complaint in respect of a record under this Act, the Information Commissioner finds that the complaint is well-founded, the Commissioner shall provide the head of the government institution that has control of the record with a report containing
(a) the findings of the investigation and any recommendations that the Commissioner considers appropriate; and
(b) where appropriate, a request that, within a time specified in the report, notice be given to the Commissioner of any action taken or proposed to be taken to implement the recommendations contained in the report or reasons why no such action has been or is proposed to be taken.
Report to complainant and third parties
(2)-The Information Commissioner shall, after investigating a complaint under this Act, report to the complainant and any third party that was entitled under subsection 35(2) to make and that made representations to the Commissioner in respect of the complaint the results of the investigation, but where a notice has been requested under paragraph (1)(b) no report shall be made under this subsection until the expiration of the time within which the notice is to be given to the Commissioner.
Matter to be included in report to complainant
(3)-Where a notice has been requested under paragraph (1)(b) but no such notice is received by the Commissioner within the time specified therefor or the action described in the notice is, in the opinion of the Commissioner, inadequate or inappropriate or will not be taken in a reasonable time, the Commissioner shall so advise the complainant in his report under subsection (2) and may include in the report such comments on the matter as he thinks fit.
Access to be given
(4)-Where, pursuant to a request under paragraph (1)(b), the head of a government institution gives notice to the Information Commissioner that access to a record or a part thereof will be given to a complainant, the head of the institution shall give the complainant access to the record or part thereof
(a) forthwith on giving the notice if no notice is given to a third party under paragraph 29(1)(b) in the matter; or
(b)-forthwith on completion of twenty days after notice is given to a third party under paragraph 29(1)(b), if that notice is given, unless a review of the matter is requested under section 44.
Right of review
(5) Where, following the investigation of a complaint relating to a refusal to give access to a record requested under this Act or a part thereof, the head of a government institution does not give notice to the Information Commissioner that access to the record will be given, the Information Commissioner shall inform the complainant that the complainant has the right to apply to the Court for a review of the matter investigated.
Legislative History: 1980-81-82-83, c. 111, Sch. I "37".
Annual report
38. The Information Commissioner shall, within three months after the termination of each financial year, submit an annual report to Parliament on the activities of the office during that financial year.
Legislative History: 1980-81-82-83, c. 111, Sch. I "38".
Special reports
39.-(1) The Information Commissioner may, at any time, make a special report to Parliament referring to and commenting on any matter within the scope of the powers, duties and functions of the Commissioner where, in the opinion of the Commissioner, the matter is of such urgency or importance that a report thereon should not be deferred until the time provided for transmission of the next annual report of the Commissioner under section 38.
Where investigation made
(2) Any report made pursuant to subsection (1) that relates to an investigation under this Act shall be made only after the procedures set out in section 37 have been followed in respect of the investigation.
Legislative History: 1980-81-82-83, c. 111, Sch. I "39".
Transmission of reports
40. (1) Every report to Parliament made by the Information Commissioner under section 38 or 39 shall be made by being transmitted to the Speaker of the Senate and to the Speaker of the House of Commons for tabling in those Houses.
Reference to Parliamentary committee
(2) Every report referred to in subsection (1) shall, after it is transmitted for tabling pursuant to that subsection, be referred to the committee designated or established by Parliament for the purpose of subsection 75(1).
Review by Federal Court
41. Any person who has been refused access to a record requested under this Act or a part thereof may, if a complaint has been made to the Information Commissioner in respect of the refusal, apply to the Court for a review of the matter within forty-five days after the time the results of an investigation of the complaint by the Information Commissioner are reported to the complainant under subsection 37(2) or within such further time as the Court may, either before or after the expiration of those forty-five days, fix or allow.
Legislative History: 1980-81-82-83, c. 111, Sch. I "41".
JURISPRUDENCE
Fee required
Applications which are not accompanied by the requisite fee "are not applications within the terms of the statute and therefore not the subject of a refusal which can be adjudicated upon by the Court".
Rubin v. Canada (Minister of Employment and Immigration), T-194-85, decision dated October 4, 1985, F.C.T.D., not reported.
See also: ATIA s. 11; ATIA Regulations, s. 7.
Requester suspicious not all records received
In spite of the fact that the respondent was not helpful to the requester in connection with his request, the Court declined to act where no evidence existed in support of an application, other than the requester's suspicion that documents existed and were not being disclosed.
Creighton v. Canada (Office of the Superintendent of Financial Institutions), T-2048-89, decision dated April 25, 1990, F.C.T.D., not reported.
Review only available where there is refusal
Review is only available where there is actual or deemed refusal of access continuing at the time of the hearing. The Court has no jurisdiction in the absence of a genuine claim for refusal of access.
X v. Canada (Minister of National Defence), [1991] 1 F.C. 670 (T.D.).
See also: X v. Canada (Minister of National Defence), T-1112-89, decision dated June 15, 1990, F.C.T.D., not reported..
See also: ATIA ss. 9, 10, 53.
For other cases involving the Court's treatment of applications for review where the documents are not provided within the time period, but provided prior to the hearing of the application, see cases annotated under s. 42 ATIA.
Review of fees
Where the applicant sought a review of the institution's decision to demand a deposit before proceeding further with his request, the Court held that the phrase "a review of the matter" was wide enough to permit it to deal with an application based on the possibility that the "fee mechanism has been misused in such a way as to constitute a constructive refusal of access..." (In his reasons, however, Mr. Justice Jerome assumed for the purposes of argument that this section allows him this latitude and he prefaces his comments with the caveat that he makes no formal determination in this regard.)
Rubin v. Canada (Minister of Finance) (1987), 9 F.T.R. 317 (F.C.T.D.).
See also: ATIA s. 11.
Is government institution bound by original exemptions claimed
The applicant had requested the (Nationair Post-Accident Safety Review Report¦. The respondent had refused to release the report under para. 20(1)(b) ATIA. The applicant complained to the Information Commissioner. A year after the request had been received, the respondent added two new exemptions, para. 16(1)(c) and para. 20(1)(c) ATIA. The applicant complained to the Information Commissioner about the respondent adding new exemptions. The Commissioner upheld the total exemption of the report under para. 16(1)(c) ATIA.
The Court distinguished between the facts of this case and the Davidson decision (see Davidson v. Canada (Solicitor General), [1989] 2 F.C. 341 (C.A.) under s. 16 PA). The Davidson decision stands for the rationale that it is only where the Commissioner is denied an opportunity to investigate the grounds ultimately relied upon before the Court that the head of the government institution cannot rely on other sections of the Act. It is only in such situations that the head of the government institution is bound by his or her initial choice of exemptions. The Court held that such was not the case here.
Information Commissioner may apply or appear
42. (1) The Information Commissioner may
(a)-apply to the Court, within the time limits prescribed by section 41, for a review of any refusal to disclose a record requested under this Act or a part thereof in respect of which an investigation has been carried out by the Information Commissioner, if the Commissioner has the consent of the person who requested access to the record;
(b)-appear before the Court on behalf of any person who has applied for a review under section 41; or
(c)-with leave of the Court, appear as a party to any review applied for under section 41 or 44.
Applicant may appear as party
(2)-Where the Information Commissioner makes an application under paragraph (1)(a) for a review of a refusal to disclose a record requested under this Act or a part thereof, the person who requested access to the record may appear as a party to the review.
Legislative History: 1980-81-82-83, c. 111, Sch. I "42".
JURISPRUDENCE
Extension of time / deemed refusal
On a preliminary motion to dismiss applications for review pursuant to s. 42, it was held that, where the basis of the application is an allegedly unauthorized extension of time under s. 9, the Court may enquire whether the extension was properly taken or whether it amounts to a deemed refusal and may review the extension itself and the reasons given therefore.
Canada (Information Commissioner) v. Canada (Minister of External Affairs), [1989] 1 F.C. 3 (T.D.).
At the hearing of the application, Muldoon J. found in favour of the applicant and granted the declaratory relief sought, after finding that the delay of the Department was unjustified and amounted to a "deemed refusal", therefore making it properly the subject of review, notwithstanding that the records had been released prior to the application.
Canada (Information Commissioner) v. Canada (Minister of External Affairs), [1990] 3 F.C. 514 (T.D).
See also: ATIA ss. 9, 10, 49, 53.
To note: This approach was not adopted by other Justices. See decisions below.
Review only available where there is refusal
On a s. 41 application, the Court held that review is only available where there is actual or deemed refusal of access continuing at the time of the hearing. The Court has no jurisdiction in the absence of a genuine claim for refusal of access.
X v. Canada (Minister of National Defence), [1991] 1 F.C. 670 (T.D.)..
See also: X v. Canada (Minister of National Defence), T-1112-89, decision dated June 15, 1990, F.C.T.D., not reported.
See also: ATIA ss. 9, 10, 53.
Notice of refusal
The Court has jurisdiction to deal with an application regarding the adequacy of a notice of refusal since a review of the notice is a review of the refusal.
Canada (Information Commissioner) v. Canada (Minister of National Defence), [1990] 3 F.C. 22 (T.D.).
See also: ATIA ss. 10, 15, 50.
See also: annotations under s. 42 of the PA.
Notice to third parties
43. (1) The head of a government institution who has refused to give access to a record requested under this Act or a part thereof shall forthwith on being given notice of any application made under section 41 or 42 give written notice of the application to any third party that the head of the institution has notified under subsection 27(1) in respect of the request or would have notified under that