The Commissioner devoted Chapter 4 of her report to restrictions to the right of access to information by Canadian citizens, that is, the exemptions and exclusions provided for in the Act. In general, the Commissioner believes that the exemptions provided for in the Act should be more limited and specific.[125]

5.1 Public interest override

In her report, the Commissioner says that, currently, “the Act contains only limited public interest overrides, and these are only applicable to a few sections.”[126] She said that a public interest override applicable to all exemptions should be added to the Act and made the following recommendation:

Recommendation 4.1

The Information Commissioner recommends that the Act include a general public interest override, applicable to all exemptions, with a requirement to consider the following, non-exhaustive list of factors:

• Open Government objectives[127];
• environmental, health or public safety implications; and
• whether the information reveals human rights abuses or would safeguard the right to life, liberty or security of the person[128].

In her report, the Commissioner noted that similar public interest provisions are found in many internationally recognized access to information laws and some provincial laws:[129]

The Article 19 and Organization of American States model laws, the Tshwane Principles, and the access laws of Serbia, India, Liberia, El Salvador, Sierra Leone, Ukraine, Alberta and B.C. all contain mandatory public interest overrides. Ontario’s law does as well; however, it does not apply to all exemptions (…) Nova Scotia’s law includes a discretionary, general public interest override[130].

In her appearance before the Committee, the Commissioner said it was critical that this provision be added to the Act to strike the right balance between two interests: “the public’s right to know” and “the interests the exemption protects”[131] and reiterated the importance that this provision apply to all exemptions in the Act.[132]

The Commissioner also said that she had not defined “public interest” and that this concept is not defined in any other jurisdictions.[133] She also noted that the non-exhaustive list of factors to be considered could include the rights of indigenous peoples.[134] Lastly, she said that the list of factors to be considered in applying public interest override provisions should not be exhaustive and should be determined on a case-by-case basis.[135]

Several witnesses, including Mr. Mendel and Mr. Wudrick, expressed their support for the Commissioner’s recommendation to include a public interest override provision in the Act.[136] Mr. Mendel said that the exemptions in the Act should “protect legitimate interests,”[137] should “apply only where disclosure of the information will cause harm to the interest”[138] that is protected and, finally, a public interest override should apply. Mr. Murray also said that incorporating harms-based exemptions into the Act is beneficial because it prevents “the disclosure of certain information [that] could […] lead to well-defined harms,” but does not exclude “entire classes of documents.”[139]

Lastly, Mr. Murray said that the Newfoundland and Labrador law has a “public interest override provision, which applies to most of our discretionary exceptions. The clerk of the executive council can exercise a type of public interest override in relation to cabinet records as well.”[140]

Jennifer Stoddart, a former federal Privacy Commissioner who was a member of the Independent Statutory Review Committee in Newfoundland and Labrador, noted that the Review Committee broadened the public interest provision to include democratic factors and “to encourage transparency as to the acts of public servants.”[141]

The Committee believes that incorporating a public interest override provision would strike a balance between Canadians’ right of access and protecting legitimate interests and therefore recommends:

RECOMMENDATION 17

That in the first phase of the reform of the Access to Information Act,  the Act be amended to include a general public interest override, applicable to all non-mandatory exemptions, with a requirement to consider the following, non-exhaustive list of factors:

• Open Government objectives;
• environmental, health or public safety implications;
• whether the information reveals human rights abuses or would safeguard the right to life, liberty or security of the person.

5.2 Independent oversight

According to the Commissioner, it is important that the exemptions in the Act be independently reviewed. Her recommendation in this regard is as follows:

Recommendation 4.2

The Information Commissioner recommends that all exclusions from the Act should be repealed and replaced with exemptions where necessary[142].

In her appearance before the Committee, the Commissioner explained that, when dealing with an exclusion, she cannot review the requested information and, as a result, they are shielded from independent oversight. As to mandatory exemptions, the Commissioner explained that she would have access to the documents to which the exemption applied and that her independent oversight would be “limited to whether or not the documents (…) fit within the definition.”[143]

Many witnesses, including Mr. Marleau, Mr. Rubin, Mr. Weiler, Mr. Gogolek and Mr. Conacher[144] also believed that the exclusions in the Act should be repealed and replaced with exemptions. Mr. Wudrick and Mr. Holman said there were too many exemptions and exclusions in the Act and that they “create an expansive zone of secrecy surrounding the government’s decision-making processes.”[145] As well, many witnesses said that the exclusions prevent the Commissioner from reviewing documents when this review is needed.[146]

Lastly, it was mentioned that the confidentiality of documents subject to exemption can be appropriately assured by the Office of the Information Commissioner:

The Commissioner and everyone in the Commissioner’s office are under oath. There is no reason they can’t see any secret document, and there’s no worry about having those disclosed to anyone unless they should be disclosed under the law.[147]

The Committee supports the Commissioner’s recommendation and recommends:

RECOMMENDATION 18

That in the first phase of the reform of the Access to Information Act, all exclusions in the Act be repealed and replaced with exemptions, as required.

5.3 exemptions and exclusions

5.3.1 Advice and recommendations

In her report, the Commissioner deals with the discretionary exemption provided for in section 21 of the Act on advice and recommendations. The Commissioner notes that this exemption “protects a wide range of information relating to policy- and decision-making”[148] but that the exemption in its current form “extends far beyond what must be withheld to protect the provision of free and open advice.”[149] The Commissioner believes that the breadth of this exemption must be narrowed to “strike the right balance between the protection of the effective development of policies, priorities and decisions on the one hand, and transparency in decision-making on the other.”[150] The Commissioner recommended the following:

Recommendation 4.21

The Information Commissioner recommends adding a reasonable expectation of injury test to the exemption for advice and recommendations.[151]

Recommendation 4.22

The Information Commissioner recommends explicitly removing factual materials, public opinion polls, statistical surveys, appraisals, economic forecasts, and instructions or guidelines for employees of a public institution from the scope of the exemption for advice and recommendations.[152]

Recommendation 4.23

The Information Commissioner recommends reducing the time limit of the exemption for advice and recommendations to five years or once a decision has been made, whichever comes first.[153]

With regard to Recommendation 4.21, the Commissioner said that the criteria regarding the reasonable expectation of injury test would be applied on a case-by-case basis. For Recommendation 4.22, the Commissioner said that she made this recommendation to clarify that the exemption does not apply to the documents she specifically mentions.[154] Lastly, the Commissioner explained that the injury test mentioned above would also be subject to the time limit during which the exemption applies.[155]

Many witnesses, including Mr. Beamish, Mr. Conacher and Mr. Holman,[156] supported the Commissioner’s recommendations. Mr. Beamish added that the Supreme Court of Canada recently interpreted the exemption for advice and recommendations in Ontario’s access to information act very broadly.[157] The Commissioner said that Ontario’s provision was very similar to that in the Act and “unless there is a legislative change for this provision it will not lead to more disclosure.”[158] Lastly, in Newfoundland and Labrador, the legislation has “a long list of types of records that are not covered by that exception.”[159]

The Committee generally agrees with the Commissioner’s recommendations and recommends:

RECOMMENDATION 19

That in the first phase of the reform of the Access to Information Act, a reasonable expectation of injury test be added to the exemption for advice and recommendations.

RECOMMENDATION 20

That factual materials, public opinion polls, statistical surveys, appraisals, economic forecasts, and instructions or guidelines for employees of a public institution be explicitly removed from the scope of the exemption for advice and recommendations.

RECOMMENDATION 21

That the time limit of the exemption for advice and recommendations be significantly reduced.

5.3.2 Cabinet confidences

Pursuant to section 69 of the Act, confidences of the Queen’s Privy Council of Canada, that is, confidences of Cabinet or any of its committees, are excluded from the application of the Act. This section contains a non-exhaustive list of Cabinet confidences.

In her report, the Commissioner made the following recommendations:

Recommendation 4.26

The Information Commissioner recommends a mandatory exemption for Cabinet confidences when disclosure would reveal the substance of deliberations of Cabinet[160].

Recommendation 4.27

The Information Commissioner recommends that the exemption for Cabinet confidences should not apply:

• to purely factual or background information;
• to analyses of problems and policy options to Cabinet’s consideration;
• to information in a record of a decision made by Cabinet or any of its committees on an appeal under an act;
• to information in a record that has been in existence for 15 or more years; and
• where consent is obtained to disclose the information.[161]

Recommendation 4.28

The Information Commissioner recommends that investigations of refusals to disclose pursuant to the exemption for Cabinet confidences be delegated to a limited number of designated officers or employees within her office.[162]

First, in her appearance, the Commissioner said that, currently, given that the Act provides an exclusion for Cabinet confidences, there is no oversight.[163] There is therefore no way of knowing whether the exclusion was properly applied.[164] Like her predecessors over the past 30 years, the Commissioner recommended in her report that Cabinet confidences be subject to a mandatory exemption.[165] The Commissioner would therefore have the ability to conduct an independent oversight of Cabinet confidences: she could review these records and “be able to review whether it is actually a cabinet confidence that’s being claimed.[166] Given the sensitivity of those records, the Commissioner explained that their review would be similar to the review of national security records, which her Office already does. A limited number of investigators would be authorized to do this work.[167]

Second, the Commissioner believes that the scope of the definition of what is a Cabinet confidence is much too broad and needs to be limited.[168] Recommendation 4.27 therefore aims to limit what constitutes Cabinet deliberations.[169]^,[170]

Mr. Marleau, said it was essential that “a considerable share of cabinet documents, especially those involving discussions between ministers, must remain confidential in our system, which is based on the Westminster model.”[171] However, he said that the mandatory exemption recommended by the Commissioner does not mean that all Cabinet confidences would be disclosed, but that the Commissioner would have oversight with these documents and that she would be a third party determining whether the exemption was properly applied.”[172] Ms. Clayton made similar comments.[173]

Lastly, it was mentioned that in Quebec, Ontario and Alberta, Cabinet confidences are subject to an exemption and, in their testimony, the commissioners of these provinces stated they believed this exemption was appropriate.[174]

The Committee believes that Cabinet confidences, when their disclosure would reveal the substance of deliberations of Cabinet, should be subject to a mandatory exemption rather than an exclusion. The Committee therefore recommends:

RECOMMENDATION 22

That a mandatory exemption for Cabinet confidences, when disclosure would reveal the substance of deliberations of Cabinet, be added to the Access to Information Act in the first phase of the reform of the Act.

RECOMMENDATION 23

That the mandatory exemption for Cabinet confidences would not apply to:

• purely factual or background information;
• information in a record of decision made by Cabinet or any of its committees on an appeal under an act;
• where consent is obtained to disclose the information; and
• information in a record that has been in existence for an appropriate period of time as determined by the government and that this period of time be less than the current 20 years.

RECOMMENDATION 24

That investigations of refusals to disclose pursuant to the exemption for Cabinet confidences be delegated to a limited number of designated officers or employees within the Information Commissioner’s office.

5.3.3 The Commissioner’s other recommendations

Chapter 4 of the Commissioner’s report contains many recommendations regarding the exemptions and exclusions in the Act. The Committee heard comments from some witnesses about many of these exemptions and exclusions. However, the Committee does not believe it heard enough testimony to be able to take a position on the recommendations of the Commissioner or witnesses.

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