Archived - Access to Information Guidelines - Exemptions - General

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1. General principles

Sections 13 through 24 of the Access to Information Act set out a number of specific exceptions to the right of access established by this legislation. These exceptions are known as exemptions. Each exemption is intended to protect information relating to a particular public or private interest. In addition, section 26 sets out an administrative exception relating to the publication of information. These exemptions, when added to the categories of excluded records outlined in sections 68 and 69 of the Act, form the only basis for refusing access to government information under the Access to Information Act.

2. Review

The underlying principle in applying most exemption criteria is the weighing or balancing of the right of access to government information against the injury that could ensue from disclosure of that information. The policy requires a government institution to review all records requested under the Access to Information Act prior to determining which may be released, which may be refused and which may be released at the discretion of the head of the institution under the provisions of the Act. In regard to the exercise of discretion under the Act, it has to be made in full appreciation of the request and the records involved and be based on a proper application of the provisions of the legislation. In large institutions or institutions with regional offices, this preliminary review may take place under the coordination of a divisional or regional access coordinator.

3. Precedents

In dealing with requests for records to which access has already been sought on a previous occasion, the government institution should note that the decision to release or withhold a record may change because the injury involved is diminished or increased as a result of new circumstances which now apply. Government institutions should assess each request on its own merits using precedents only as guidelines in making a determination either to disclose or exempt a record. Documents classified or designated under the government security system should receive more careful preliminary examination. However, the fact that a document is classified or designated does not mean that it is exempt and each document must be judged in relation to the exemption provisions of the Act, as they apply at the time of the request.

4. Exemption decision

The results of the review, any consultation and, where necessary, the opinion of the institutions's legal advisor form the basis for the final decision whether or not to actually invoke an exemption. This decision must be taken by the officer with the delegated authority by the head of the institution to claim the exemption. The policy requires that the written notification to the requester of an exemption (see the section on Notices in Chapter 2-4 of these Guidelines) must be signed by the appropriate officer within the government institution who has been delegated this responsibility or by the Access Coordinator on his or her behalf. (See Model Letters in Chapter 3-7).

Where another government institution has requested the exemption of certain information and the decision is to disclose, it should be approved by the head of the institution processing the request.

The exemptions and the categories of records excluded from the Act form the only basis for refusing access to government information requested under this legislation. Therefore, access must be given to all government information for which a person makes a request under the Access to Information Act except that which is either specifically exempt or excluded under a provision of the Act. It should be noted, when considering the possibility that a record may be exempt, that more than one exemption category may apply to particular information. In such cases all applicable exemptions should be cited.

Where information has been disclosed in the past, it should be considered available to everyone who has the right of access under section 4 and who exercises that right, unless the circumstances on the basis of which the information was disclosed have changed and, as a result, an exemption is now warranted. Institutions are cautioned, however, that where subsequent decisions regarding disclosure are reversed as a result of a change in circumstances, complaints may result. Institutions should therefore be completely prepared to demonstrate that the reversal was clearly warranted and supported by the change in circumstances.

Examples of situations where such a reversal may be considered appropriate follow:

(i) Personal information relating to individual A is released to individual B, given the explicit consent of individual A to the release of such information to individual B, exclusively. Disclosure of precisely the same information must be denied in the face of a subsequent request by individual C, in the absence of specific consent by individual A to such disclosure. Despite the fact that subsection 19(1) was not applicable in the first instance, it would clearly be applicable in the second, given the change in circumstances regarding the existence of informed consent.

(ii) Company A requests and receives its own subsection 20(1) type information. Disclosure of precisely the same information must be denied in the face of a subsequent request from company B, in the absence of company A's consent to such disclosure. Despite the fact that subsection 20(1) was not applicable in the first instance, it would be in the second, given the change of circumstances regarding the status of company A, which was initially the requester and is now a third party, entitled to the protection provided by section 20, and the requirement for third party consent.

5. Severability

Section 25 of the Access to Information Act provides that a government institution shall disclose any part of a record that does not contain information which may be exempt if it can be reasonably severed from any part that does contain exempt information.

This provision establishes the principle of reasonable severability. This means that a record containing information which may be exempt should not be exempted from access as a whole if exempt information can be severed from it and the rest of the record disclosed.

The significance of section 25 was reinforced in the CMHC Decision (Rubin v. President of Canada Mortgage and Housing Corporation (1988), [1989] 1 F.C. 265, 19 F.T.R. 160. The Court of Appeal held that the Act was not properly applied because an error was made by the institution in not performing the severance examination required by section 25.

Reasonable severability should be established by the intelligibility of the document or segment of the document remaining after the information for which an exemption is to be claimed has been removed. Although the original purpose of the document may be lost when the exempt information is removed, an exemption cannot be claimed for the entire record as long as there remains some information that is itself intelligible, comprehensible and relevant to the request. For example, a document written for the purpose of providing advice, yet containing background information should, after the advice portion is removed, be disclosed as long as the factual content does not fall within one of the other exemption provisions. Normally, the smallest unit remaining in a severed document should be a sentence.

Reference should be made to the Montana Band of Indians v. Minister of Indian and Northern Affairs et al (1988), 18 F.T.R. 15, Alta. C.R.(2d) 373 (Court No. T-1622-86) where the Court observed that it did not find particular documents relating to public funds reasonably severable: "To attempt to comply with section 25 would result in the release of an entirely blacked-out document with, at most, two or three lines showing. Without the context of the rest of the statement, such information would be worthless. The effort such severance would require on the part of the Department is not reasonably proportionate to the quality of access it would provide." It should be stressed, however, that this statement was made about particular documents and it is important for an institution to determine, whether, after severance, there is intelligible information remaining in the document which is relevant to the request.

Often the only exempt information involved will be the name of an individual, which appears in a such a context that it would qualify as personal information. When this type of problem arises, only the name itself and any other information which could identify the individual should be deleted. Similarly, the name of a place or thing may qualify for exemption and only that discrete piece of information should be deleted. By way of example, if a sentence reads 'John Doe, an expert in environmental research at the University of Toronto, told the department that it should disregard the representation from this environmental group' and the request was for information relating to the fate of the particular representation, the portion 'John Doe' and his university affiliation could be exempted and the rest of the sentence released as being intelligible and relevant to the request, provided it is reasonable to believe the rest of sentence does not provide a key to the individual's identity. Further, the name of a person along with information which is not factual in nature, such as qualitative performance evaluation, opinions of others, should remain exemptible in order to protect the privacy of the individual. Of course, the examples given here are neither complicated nor exhaustive in nature and institutions should develop other examples which will aid their staff in applying the principles of severability to particular records under their control. Any doubt about the intelligibility of remaining non-exempt information should be resolved in favour of release to the requester.

In cases where it has been determined that a great amount of information will be severed and the interests of the requester might be better served by an alternative such as page by page severability and disclosure or an explanation of the information, institutions may approach the requester to seek his or her agreement to such an arrangement. Institutions should however be cautioned that in doing so they may set a precedent, or create expectations on the part of the requester.

6. Information not relevant to a request

It is considered reasonable for an institution to select for processing in response to a request only those records which contain information on the requested topic. These records are then normally processed, with all of the content either disclosed, excluded or exempted. Lack of relevance is not a ground for exemption under the Act (see Mr. X v. Minister of National Defence and Secretary of State for External Affairs (August 1991)).

In some circumstances a record may contain a section of information on the requested subject along with the sections on other topics (such as a chapter of a lengthy report). In such cases the institution may wish to discuss the situation with the requestor, explaining that agreement to process just the relevant section will result in savings of time and expense for both the requestor and the institution. In all cases the institution should indicate in the response to the requestor that they are receiving part of a larger document which deals with other topics. The requestor should then have the option of requesting the document by name or reference without having to pay an additional application fee, if they still wish the entirety.

Determining what is or is not relevant to a request is, of course, up to the institution, however this decision would normally be based on an examination of each individual record to determine the reasonableness of separating the non-relevant from the relevant information. Generally, it would not be reasonable, for example, to separate a sentence from a paragraph, or a paragraph from a relevant page, while it would be reasonable to separate a chapter from a large report. In many cases it is easier to process a small amount of information which is not relevant, while processing a large volume of non-relevant information would likely result in additional time and expense for both the institution and the requestor.

7. Marking Exemptions

Paragraph 10(1)(b) provides that an institution shall state in the notice of refusal to a requester the specific provision of the Act on which refusal was based.

As a general practice the specific exemption applied to specific exempted sections should be indicated in the margin of the record to be released. A covering letter listing the exemptions might be more appropriate when, for example, the marginal reference might in itself cause injury.

The Federal Court held in Information Commissioner of Canada v. Minister of National Defence (Court No. T-746-88) that compliance with subsection 10(1) requires a government institution to indicate in the notice of refusal the specific exemption provisions of the various sections of the Act and not illustrative or descriptive paragraphs. In this particular instance, the court case related to section 15 but the same principle would also apply to section 14, and paragraphs 16(1)(c) and 18(d).

The important principle here is for an institution to indicate the specific provision upon which an exemption is based along with the relative section, subsection or paragraph, where these are not illustrative or descriptive in nature. For example, the minimum in section 15 would be to provide the section and whether the exemption is based on defence, international relations or subversive or hostile activities. Even though the court found the provision of illustrative or descriptive paragraphs not legally necessary, it thought the practice a commendable one, and it is suggested as a recommended course of action.

8. Nature of exemptions

The exemptions included in the Access to Information Act can be classified in two ways - according to whether the exemption is subject to an injury test or a class test and according to whether the exemption is discretionary or mandatory in nature. The distinctions between these classifications are discussed below.

8.1 Injury test and class test

(a) The injury test

Exemptions based on an injury test provide that access to information requested under the Act may be denied if disclosure 'could reasonably be expected to be injurious' to the interest specified in the exemption. Injury in this context means having a detrimental effect. Disclosure of the information must reasonably be expected to prove harmful or damaging to the specific public or private interest covered by the exemption in order for access to be refused. The fact that the disclosure could result in administrative change in a government institution is not sufficient to satisfy an injury test. Under the law, it must be possible to identify an actual detrimental effect on the interest specified in the exemption.

A large number of considerations will be involved in making a judgement as to injury but three general factors should be taken into account by government institutions in making such decisions; these are the degree to which the injury is:

(a) Specific: Is it possible to identify the detrimental effect with the actual party who, or the interest which will suffer injury, rather than identifying it only with a vague general harm?

(b) Current: Is it possible to identify the detrimental effect at the time the exemption is claimed or in the foreseeable future? Information which has been protected from disclosure in the past should be reassessed when a new request is received to ensure that present or future injury is still a factor; and

(c) Probable: Is there a reasonable likelihood of the injury occurring?

Cases may arise where there is a mosaic effect inherent in the disclosure involved. An injury test may not be satisfied if the particular information requested is considered in isolation. However, where the effect of the disclosure of the information is considered as one in a series of requests and where this indicates that the request forms part of a crucial segment of a larger picture that could reasonably be expected to be injurious to the interest specified in an exemption, an institution can exempt the information. It must be able to demonstrate, however, that the cumulative effect of a series of disclosures, similar or complementary to the disclosure being considered, could reasonably be expected to be injurious.

According to the jurisprudence, when the information requested falls within a list of specific types of information included for purposes of illustration in an injury test exemption (such as, for example, in section 15, International affairs and defence) the refusal to disclose must still be based upon the injury which would result to the interest specified in the exemption. The classes of information are included in these injury test exemptions to illustrate specific types of information to which the injury test probably will apply. However, the fact that information requested is described in the classes listed does not qualify the information for exemption.

The following are injury test exemptions: sections 14, 15, paragraphs 16(1)(c), 16(1)(d), 16(2), 17, 18(b), 18(c), 18(d), 20(1)(c), 20(1)(d), and section 22.

(b) The class test

A class test objectively describes the categories of information or documents to which an exemption can be applied. While injury underlies this test as well, these exemptions describe classes of information which, in the judgment of Parliament, are sufficiently sensitive that disclosure of any information in the class could have a detrimental effect. Thus, under the class test exemptions, where a government institution is satisfied that information falls within the class specified, this is a sufficient basis for it to refuse access to the information. There is no requirement that an injury be proved.

The following are class test exemptions: section 13, paragraphs 16(1)(a), 16(1)(b), subsection 16(3), 18(a), section 19, paragraphs 20(1)(a), 20(1)(b), and sections 21, 23 and 24.

8.2 Mandatory and discretionary exemptions

Mandatory exemptions

Mandatory exemptions are introduced by the phrase 'the head of a government institution shall refuse to disclose...'. When information requested under the Act falls within a mandatory exemption, institutions normally must refuse to disclose the record. However, all the mandatory exemptions, except section 24 (statutory prohibitions), provide for circumstances which permit government institutions to release the information if certain conditions are met (e.g. consent of the third party affected or if the information is publicly available). If these conditions are met, and no other exemptions apply, the government institution is given discretion to release the information. Although no right of access to the information is created by consent, it is generally advisable to release the information (again, barring the application of other exemptions). These exceptions to the mandatory nature of such exemptions are discussed in detail in the article which deals with each exemption. Usually, however, information falling under a mandatory exemption must be exempted.

The following exemptions are mandatory: sections 13, 19, 24, paragraphs 16(3), 20(1). As mentioned above, in the case of sections 13, 16(3) and 20(1), consent creates an obligation to disclose. In the case of section 19, however, all residual discretion regrading disclosure is removed by jurisprudence (Information Commissioner v. Minister of Employment and Immigration (Goldstein) [1986] 3 F.C. 63, 5 F.T.R., 287) wherein the Federal Court ruled that consent imposed on the institution a duty to disclose (failing the application of other exemptions). See the secton of Chapter 2-8 concerning the application of section 19 for a more detailed explanation.

Discretionary Exemptions

Discretionary exemptions are introduced by the phrase 'the head of a government institution may refuse to disclose...'. Where such exemptions apply to information requested under the Act, government institutions are legally entitled to refuse access to it. However, discretionary exemptions provide government institutions with an option to disclose the information where it is felt that no injury will result from the disclosure or where it is of the opinion that the interest in disclosing the information outweighs any injury which could result from disclosure.

The final decision as to whether to disclose information for which an exemption could be claimed is left to the government institution processing the request, although the advice of another government institution about the decision may have to be obtained with respect to certain exemptions as provided for in these Guidelines.

The majority of exemption provisions are discretionary. They are sections 14, 15, 16(1), 16(2), 17, 18, 21, 22 and 23.

9. Consultation

To ensure greater consistency in the application of certain exemptions, government institutions should consult with the government institution with particular expertise in the given area. Consultation is also strongly suggested when information has been received from, or relates, to the activities of a government institution other than that processing the request. In keeping with the policy, consultation is mandatory in all instances involving the application of sections 15 and 16, regardless of the source of the information in question, or the activities of other institutions. See Chapter 3-2 for further guidance.

Specific directives concerning the consultation process are given in the appropriate articles in these Guidelines dealing with these sections. In all cases where consultation occurs, the point of consultation is either the Access Coordinator of the government institution being consulted or the official in that institution with the delegated authority to make a determination to exempt or disclose the particular information involved. In an effort to assist the institution being consulted, the referring institution should indicate clearly those documents, or portions thereof, under consideration, whether exemption or disclosure of the documents in question is considered appropriate, and the rationale underlying that position, including the specific exemptions considered applicable.

When consultation is undertaken with a foreign government, international organization or institution thereof involving any part of Chapter 2-8, government institutions should normally coordinate such consultations through the Access Coordinator, Department of External Affairs. Only when an established and acceptable system of liaison and consultation already exists should direct consultation take place. External Affairs should be kept informed of these channels of consultation. Consultations undertaken in relation to subsection 13(1)(c) should involve the appropriate provincial coordinator, where one exists.

10. Coordination of access requests

The coordination of requests amongst institutions is important to the efficient and timely processing of requests, particularly where the same request has been received by more than one institution, or where the request has policy implications.

Institutions should initiate or participate in any arrangements necessary to ensure effective coordination of responses to access requests, whenever such coordination is required. At the same time, the CAIR System should be utilized to ensure that coordination arrangements do not result in delays which would prevent a response within the time limits provided for in the Act.

Detailed instructions can be found in the Coordination of Access to Information Requests Users' Guide, available from Supply and Services Canada. Institutional responsibilities in relation to the CAIR System are set out in Appendix A of this chapter.

Appendix A - Coordination of Access to Information Requests System


Institutional responsibilities in connection with the CAIR systems include:

  • providing a copy of every request made to them under the Access to Information Act, with all personal identifiers removed, to the Coordination of Access to Information Requests (CAIR) System, Supply and Services Canada. System standards require that this be done within 24 hours of receipt of a request; and
  • identifying requests in the CAIR System which, in their opinion, raise matters that are interdepartmental in scope or involve major new legal or policy issues.