Access to Information Act: Plain Language Guide to Exemptions and Exclusions

Exemptions

Sections 13 to 26 of the ATIA deal with exemptions. Exemptions limit access to information. This could be because the information could cause injury to a person or the country if released. Or it could be because of how the information was obtained (such as during an investigation).

For more information on exemptions, refer to Appendix C of the Directive on Access to Information Requests.

Exclusions

Sections 68 and 69 of the ATIA outline information that is not subject to, and cannot be released under the ATIA. These sections are referred to as exclusions.

For more general information on exclusions, including specific documents that are protected, refer to chapter 13 of the Access to Information Manual.

Severing non-protected information from protected information

According to section 25 of the ATIA, institutions must still release any part of a record that does not contain protected information and that can be severed, or separated, from the protected information.

For example, a person requests information, and some of that information is protected. But that means that only part of the record cannot be released. The institution must release the rest of the information that is not protected. If the first sentence of a paragraph contains information protected under the Access to Information Act, but the rest of the paragraph does not, only the first sentence of the record should be redacted.

Rationale

Section 13 protects information that the federal government obtains in confidence from other governments or organizations. Section 13 gives assurance to governments or other organizations that the Government of Canada will not release information provided in confidence.

Description

Subsection 13(1) protects confidential information supplied by other governments or international organizations of states. According to this subsection, the head of a Government of Canada institution must refuse to release information obtained in confidence from:

1. the government of a foreign state or one of its institutions
2. an international organization of states or one of its institutions
3. the government of a province or one of its institutions
4. a municipal or regional government or one of its institutions that was established under an act of the legislature of a province
5. an aboriginal government as specified in subsection 13(3)

There may be two exceptions to this section:

1. where the entity who supplied the information agrees to release the information
2. where the source of the information makes that information public

Rationale

The Government of Canada’s work with provincial partners is vital to ensuring that governments across Canada function properly.

For this work, the Government of Canada may gather or prepare sensitive information. The Government of Canada’s ability to do this work could be harmed if this sensitive information were released.

Description

Section 14 allows the head of a government institution to refuse to release information that could harm the Government of Canada’s ability to conduct federal–provincial affairs.

Information that could be withheld under this section includes, but is not limited to:

1. federal–provincial consultations or deliberations
2. strategies or tactics adopted or to be adopted by the Government of Canada about federal–provincial affairs

Rationale

Government institutions that work abroad and conduct global and national security operations must protect the sources and methods required to do their jobs.

Revealing frank views and assessments of foreign government’s situations or capabilities may harm diplomatic relations with that country. Revealing an intelligence source publicly could compromise the flow of valuable information and the source’s safety.

The release of this kind of information can make it more difficult for the Government of Canada to detect threats to the country.

Description

Section 15 allows the head of a government institution to refuse to release information if the release could harm:

• the conduct of international affairs
• the defence of Canada or any state allied with Canada
• the detection, prevention or suppression of subversive or hostile activities such as espionage or sabotage

For other examples, refer to the Access to Information Act, section 15.

Rationale

Publicly releasing information about law enforcement activities or investigations could make it more difficult for Government of Canada institutions to enforce laws or carry out important functions such as protecting national security. It could interfere with criminal or other investigations or prosecutions. It could reveal techniques used to gather and analyze evidence. It could hurt relationships with confidential information sources. It could even make it difficult to make arrests by allowing people or organizations to evade law enforcement officials.

Description

Subsection 16(1) states that the head of a government institution may refuse to release a record that contains, for example:

• information obtained or prepared by a government institution that conducts investigations
• information relating to investigative techniques or plans for specific lawful investigations
• information that, if released, could harm the enforcement of any law of Canada or a province or the conduct of lawful investigations
• information that, if released, could harm the security of penal institutions

Rationale

Releasing information that could make it easier to commit a crime could harm the security of Canadians. A government institution can refuse to release information if it believes that releasing the requested information would make it easier to commit a crime.

While most of this information could be protected under subsection 16(1), subsection 16(2) makes it easier to process requests for this type of information.

Description

Subsection 16(2) states that the head of a government institution may refuse to release any record that contains information that could make it easier to commit a crime. For example, this can include information:

• on criminal methods or techniques
• about weapons or potential weapons
• on the vulnerability of buildings or other structures or systems, or methods to protect such buildings or other structures or systems

Rationale

The RCMP gathers information while performing policing services for provinces or municipalities.

Subsection 16(3) allows provincial and municipal authorities to get the federal government’s cooperation to protect the information that the RCMP obtained or prepared in relation to policing services in their jurisdiction.

For example, if the RCMP provided policing services to a municipality in relation to organized crime, the municipality may want to protect that information because it relates to future investigations or pending litigation.

Description

Subsection 16(3) states that the head of a government institution will not release any record that contains information that was obtained or prepared by the RCMP while performing policing services for a province or municipality.

Rationale

Releasing information regarding an open investigation may harm the integrity and outcome of the investigation. Protecting this information also protects these institutions ability to perform their other duties and powers.

Description

Subsection 16.1(1) states that the following heads of government institutions will refuse to release any record that contains information that was obtained or created by or for them during an investigation, examination or audit conducted by them or under their authority:

• the Auditor General of Canada
• the Commissioner of Official Languages for Canada
• the Information Commissioner
• the Privacy Commissioner

Rationale

Releasing information regarding an open investigation may harm the integrity and outcome of the investigation.

Information obtained or created by the Office of the Lobbying Commissioner about an investigation may include harmful information, particularly towards a lobbyist organization.

For example, if a lobbyist organization was accused of breaching protocol, it may harm their reputation and business in the future.

Description

Subsection 16.2 states that the Commissioner of Lobbying will refuse to release any record that contains information that was obtained or created by the Commissioner or on the Commissioner’s behalf in the course of an investigation.

Rationale

Releasing information regarding an open investigation may harm the integrity and outcome of the investigation.

Information obtained or created by the Chief Electoral Officer about an investigation may include sensitive information.

For example, if the Chief Information Officer was to investigate malpractice of a political organization, it may cause reputational damage.

Description

Subsection 16.3 states that subject to section 541 of the Canada Elections Act, the Chief Electoral Officer will refuse to release any record that contains information that was obtained or created by a person who conducts an investigation under the Canada Elections Act.

Rationale

Information obtained or created by the Office of the Integrity Commissioner about an investigation may include sensitive or harmful information, particularly towards a whistleblower.

For example, if a whistleblower contacted the Public Sector Integrity Commissioner with damaging information about practices or negligence by a Government of Canada institution and that information became public, the whistleblower may be vulnerable to reprisals.

Description

Subsection 16.4(1) states that the Public Sector Integrity Commissioner will refuse to release any record that contains information:

1. obtained or created by or for them during an investigation under the Public Servants Disclosure Protection Act
2. received by a conciliator while trying to reach a settlement of under the Public Servants Disclosure Protection Act

Rationale

The purpose of this exemption is to allow federal public servants to safely report allegations of wrongdoing in the workplace. Section 16.5 protects the entire investigative process.

The ability to report wrongdoings safely not only helps ensure the integrity of the public service, but also protects those who release wrongdoing.

Description

Section 16.5 states that the heads of government institutions will refuse to release any record requested under Part 1 of the ATIA that contains information created:

• to make a release under the Public Servants Disclosure Protection Act
• during an investigation into a release under the Public Servants Disclosure Protection Act

Rationale

NSICOP members hold the highest level of security clearance and are bound to secrecy by the Security of Information Act. This allows them to receive classified briefings and access sensitive materials to review Canada’s national security and intelligence organizations.

The Secretariat supports NSICOP in performing their reviews. This organization is made up of public servants who can also access sensitive materials but, unlike NSICOP, the Secretariat is subject to the ATIA.

To protect national security and intelligence interests, section 16.6 protects all materials obtained or created by the Secretariat in support of NSICOP’s mandate from being released.

Description

Section 16.6 states that the Secretariat must refuse to release any record that contains information obtained or created by or for it while assisting the NSICOP in fulfilling its mandate.

Rationale

This exemption protects individuals against physical or psychological harm. It does not protect an individual’s economic security. The risk to the individual must be serious.

The risk is based on many factors, including past threats made against an individual and the behaviour of the potential offender.

Description

Section 17 states that the head of government institutions may refuse to release any record requested if they have reasonable grounds to believe that the release of the information could threaten the safety of an individual.

Rationale

The Government of Canada actively manages the Canadian economy to ensure that it is stable. The government provides services or develops research through Crown corporations and other institutions. The government also procures services. All these activities create information that should be protected.

For instance, if a government institution were to tell a company that was bidding on a government contract what the maximum value of the contract is, that would drive up the bids. If an institution releases information used to create patented technology, it could have difficulty earning revenue from that patent.

Description

Section 18 allows the head of a government institution to withhold information that is in the economic interest of Canada.

Examples of this type of information include:

• Trade secrets, meaning a plan, process, tool, mechanism or compound that belongs to the Government of Canada or a government institution. Examples include a vaccine formula, a recipe, or an exclusive technological process
• Financial, commercial, scientific or technical information. To qualify, a record must contain these types of information and cannot be protected only because it was created in the context of financial or commercial work
• Information that, if released, could injure the financial interests of a government institution or interfere with the Government of Canada’s ability to manage the economy, or result in an undue benefit to any person, including information about:
  1. Canadian currency or coinage
  2. a contemplated change in the bank interest rate or government borrowing
  3. a contemplated change in tariff rates, taxes, duties or any other revenue source
  4. a contemplated change in the conditions under which financial institutions operate
  5. a contemplated sale or purchase of securities or of foreign or Canadian currency
  6. a contemplated sale or acquisition of property

Subsection 18.1(1) allows the head of a government institution to refuse to release a record that contains trade secrets or financial, commercial, scientific or technical information that belongs to, and has been consistently treated as confidential by:

• the Canada Post Corporation
• Export Development Canada
• the Public Sector Pension Investment Board
• Via Rail Canada Inc.

There are two exceptions to the ability to withhold information under this section:

1. if the information is related to the general administration of these four institutions
2. if the information is related to activities at Canada Post Corporation that are fully funded by Parliament

Section 3.1 explains “general administration” as information that relates to the expenses paid by the institution including for travel, lodging and hospitality.

Rationale

For the Government of Canada to provide effective services, it often must collect personal information from individuals. Those individuals need to trust the government will use that information responsibly and in accordance with the Privacy Act.

The Government of Canada may release personal information in specific instances:

• an individual has a right to obtain their own personal information through a request under the Privacy Act
• information that is already publicly available may be released
• the individual can consent to release their personal information

Section 8 of the Privacy Act permits information to be released under other circumstances.

Description

Subsection 19(1) protects personal information in records held by government institutions.

Except in very specific circumstances, subsection 19(1) requires the head of a government institution to withhold personal information. Information must meet the following three requirements to be defined as personal information:

1. The information is about an identifiable individual. The name of the individual is in the record, or the identity of the individual can be deduced by the information in the record, whether alone or when combined with information from other sources.
2. The information is about an individual. Information about corporations and other legal persons does not fall within the definition of personal information. However, information about individual(s) in a sole proprietorship or in a partnership would be considered “personal information” within the meaning of section 3 of the Privacy Act.
3. The information is recorded. It can be recorded in any form. For example, video recordings and photographic images of individuals contain personal information about them because they show something about their race, gender, age and ethnic origin, as well as their appearance or the sound of their voice. This applies to recordings and images of employees of a government institution and public figures. Oral conversations, even if personal in nature, are not considered personal information for the purposes of the Privacy Act, unless the conversation is recorded in some manner.

There are three situations where this type of personal information may be released:

1. where consent is obtained from the individual
2. where the information is publicly available
3. where the release is allowed under section 8 of the Privacy Act

Rationale

Third-party organizations share information with the government. Some are required to, for example to ensure that they are complying with regulations. Others voluntarily share information, such as when a company bids on a government contract.

That information can become subject to the Access to Information Act (ATIA). There are certain types of information that third-party organizations share that may need to be protected. Each situation is assessed on a case-by-case basis.

There are many factors that affect whether information must be released, including:

• why the information was provided to the government, and any obligations around those circumstances
• whether the information is already publicly available, for example a published corporate report
• whether the information was provided to the government in confidence and has been consistently kept confidential
• if the third party agrees to release the information

The government must not release the following types of third-party information. Once information falls into one of the categories set out in paragraphs 20(1)(a), 20(1)(b), 20(1)(b.1), 20(1)(c), or 20(1)(d) of the ATIA, it must be protected.

Trade secrets of a third party 20(1)(a)

The term “trade secret” has a traditional legal meaning, that of a plan, process, tool, mechanism, or compound that is known by a relatively small number of people. A few examples of a trade secret include a vaccine formula, a recipe, or an exclusive technological process used by a manufacturer that provides the third party with a commercial or competitive advantage.

Financial, commercial, scientific or technical information 20(1)(b)

This information should not be available online or obvious to an observer. It should be expected that the information will be confidential when it is created. The information needs to have been supplied by the third party in confidence to the government, and consistently treated as confidential by the third party. Examples of confidential third-party information include market strategies or details about a manufacturing assembly line.

Information supplied in confidence to a government institution concerning emergency management plans 20(1)(b.1)

This sub-category refers specifically to information supplied by a third party in confidence to a government institution about critical infrastructure to allow the institution to prepare, maintain, test or implement emergency management plans.

This exemption protects information about vulnerabilities in a third party’s buildings, networks or systems, and measures taken to protect against those vulnerabilities. This includes assessments of the security of cyber systems, the location of vaccine stockpiles, or maps of facilities.

Material financial loss, gain or prejudice 20(1)(c)

This category includes information that may harm a company’s competitive position, either by describing that company’s practices, or by making it difficult for the company to make money.

For example, if the information can provide competitors with a clear picture of a company’s costs to complete certain work, competitors could undercut them in bidding for government contracts.

Interference with contractual or other negotiations 20(1)(d)

This category includes information about a third party’s involvement in negotiations. The release of this information may obstruct those negotiations.

An example is information that would reveal a third party’s position during negotiations. If released, this information could negatively affect the outcome of the negotiations.

Public interest override (20(6))

In certain circumstances, some third-party information is not protected under the Access to Information Act, even if the information would normally be protected.

These circumstances include a clear public health, safety or environmental concern. Information may also be released if the public interest is greater than any financial loss or gain, or any concern to the security of structures, networks or systems, competitive position or contractual obligations.

This override does not apply to trade secrets. The rights of third parties must be carefully weighed against the general public’s rights to safety, while balancing Canada’s need for competitive and innovative business markets.

Description

Subsection 20(1) requires the head of an institution to refuse to release records that contain the following types of third-party information:

• trade secrets
• confidential financial, commercial, scientific or technical information
• confidential information used for emergency management plans (preparation or testing of plans)
• information that, if released, could reasonably be expected to harm the competitive position of a third party, or result in material financial loss or gain
• information that, if released, could interfere with a third party’s contractual or other negotiations

The government institution may be able to release information if the third-party consents or if it would be in the public’s interest. The public interest must also be clearly more important than the financial loss, prejudice to the security of the third party’s infrastructure, competitive position or interference with its contractual negotiations.

Government institutions will sometimes extend the deadline to respond to a request to seek the third party’s agreement to release their information.

Rationale

Some types of information shared with the government can be sensitive, and the government must assume that injury will result from releasing the information. Once information is determined to be sensitive, this is enough reason to protect the information.

This is the case for the type of information set out in section 20.1: advice or information relating to investments obtained by PSPIB in confidence from a third party and which they have consistently treated as confidential.

PSPIB must be able to seek advice and obtain information from third parties in confidence to grow their investments. If PSPIB were required to release advice or information obtained in confidence, other parties could gain a competitive advantage over PSPIB.

Description

Section 20.1 can be invoked only by the PSPIB or wholly owned subsidiaries. It states that the head of the PSPIB shall refuse to release a record that contains advice or information obtained in confidence from a third party, such as confidential financial statements, so long as the PSPIB has consistently treated the advice or information as confidential.

Rationale

Some types of information shared with the government can be sensitive, and the government must assume that injury will result from releasing the information. Once information is determined to be sensitive, this is enough reason to protect the information.

This is the case for the type of information set out in section 20.2: advice or information relating to investments obtained by CPPIB in confidence from a third party and which they have consistently treated as confidential.

The CPPIB must be able to seek advice and obtain information from third parties in confidence to support the growth of their investments. If the CPPIB released advice or information obtained in confidence, then other parties could gain a competitive advantage over the CPPIB.

The CPPIB has the same protection under the ATIA as any private sector investment firm operating in the same environment.

Description

Section 20.2 can be invoked only by the CPPIB and its wholly owned subsidiaries. It states that the head of the CPPIB shall refuse to release a record requested that contains advice or information relating to investment the CPPIB obtained in confidence from a third party if the CPPIB has consistently treated the advice or information as confidential.

Rationale

The NAC works in the highly competitive field of performing arts.

The ATIA does not protect all contractual information of a performing artist, such as the administration of the contract, but it does cover specific terms, including the description of the work and conditions of payment. The ATIA allows the NAC to protect contractual terms in the same way a private venue would.

The identity of a donor who donated in confidence is private information. The ATIA does not protect all of the information about the donation, for example, the amount or purpose. If the donor is an individual, the Privacy Act would protect information about donations made in confidence under personal information. The ATIA ensures that this protection applies to both private citizens and private organizations who donate to the NAC in confidence.

Description

Section 20.4 states that the head of the NAC or its wholly owned subsidiaries will not release a record if the release would reveal the terms of a contract for the services of a performing artist or the identity of a donor who has made a donation in confidence if the NAC has consistently treated the information as confidential.

Rationale

The ATIA requires that heads of institutions must weigh the risks and benefits of releasing information.

For instance, once a negotiation is concluded, the materials prepared to plan the negotiation may be less sensitive. Similarly, once a policy decision has been made, the options that were not adopted may also no longer be sensitive. Some other factors that the Federal Court has raised include:

• the age of the information
• whether the information could be found through public means, including by observation
• whether the information was developed with a reasonable expectation of confidentiality
• whether the release of this information would hurt future processes
• the degree and type of public attention on a particular issue (e.g. press coverage)
• whether parts of the information could be separated and released without losing important context

In addition to the general descriptions above, there are some specific considerations in this exemption in the ATIA.

Advice or recommendations 21(1)(a)

This exemption protects information where there is a clear proposed course of action, such as recommendations and advice. It does not apply to background or factual information such as statistics.

When the Government of Canada adopts a recommendation, it becomes public policy and is no longer subject to this exemption. Paragraph 21(1)(a) also protects options that were not taken, though the head of the institution must consider whether that information is still sensitive.

Account of consultations or deliberations 21(1)(b)

This exemption protects the record of a discussion where multiple government officials are considering or debating the merits of one or more courses of action. The same considerations for paragraph 21(1)(a) apply for this paragraph.

Positions or plans developed for negotiations 21(1)(c)

This exemption protects positions or plans developed for negotiations by or for the federal government. Unlike paragraphs (a) and (b), paragraph 21(1)(c) may protect background information that could reveal the Government of Canada’s positions. However, after the conclusion of negotiations, the information may no longer be sensitive.

Management or personnel plans 21(1)(d)

This paragraph protects staffing or administrative planning by a government institution. As with paragraph (c), background information that would reveal sensitive information about those plans may be protected. But, paragraph 21(1)(d) notes that once a plan is implemented, it is no longer subject to this exemption.

Subsection 21(2) Exceptions

Two general exceptions prevent the use of subsection 21(1):

1. The exercise of any power or function that affects the rights of a person. When the rights of a person might be affected by the decisions of another, the reasons for that decision must be available to the affected person.
2. Reports prepared by contractors. Government contractors are not public servants and are not subject to the same laws and regulations as the public service.

Description

Subsection 21(1) of the ATIA states that the head of an institution can refuse to release a record that is less than 20 years old containing information about:

• advice developed by or for the government institution or a minister
• consultations that the government or the Crown participate in
• plans developed for negotiations by the government
• plans on the management of an institution that are not yet operational

Rationale

In certain situations, releasing information about the content, procedures or techniques behind tests and audits conducted by a government institution could provide an unfair advantage to an individual or entity who is the subject of that test or audit.

Protecting this information means government institutions can ensure that tests or audits are fair.

Description

Section 22 states that the head of a government institution may refuse to release information about testing, auditing procedures, techniques and details of specific tests to be given or audits to be conducted.

Subsection 22.1(2) Exceptions

There are two exceptions to the use of subsection 22.1(1):

1. Releasing a draft report of an internal audit of a government institution when a final report of the audit has been published
2. The institution has not received a final report of the audit within two years after the day on which the audit began

Rationale

If working papers or draft reports of an internal audit are released early, it may interfere with both an ongoing evaluation and the conclusions in the final report.

Releasing a draft report could harm the integrity of the objective audit process. In an ongoing evaluation, some details and the conclusions in the draft report may be different from those found in the final report.

This section of the ATIA gives the subject of an audit the chance to review and respond to conclusions in the draft report. The final report also generally includes a management response. It is in the public’s best interest for this information to be protected to allow thorough and objective audits of government programs.

The time limit allows the public to access internal audit records after access would no longer compromise the integrity of the audit.

Description

Subsection 22.1(1) states that the head of a government institution may refuse to release any record containing a draft report of an internal audit of a government institution or any related audit working paper if the record came into existence less than 15 years before the request.

Rationale

Solicitor–client privilege is necessary to administer justice and maintain the public’s confidence in the legal system.

Solicitor–client privilege allows clients and their legal professionals to have candid discussions. Clients need to be assured that communications between them and their legal representatives are strictly confidential. This privilege never expires.

Litigation privilege allows litigators to prepare their cases in private without interference by the other party before they make their case in court.

Section 23 ensures that government institutions receive the same protections for communications with their legal professionals, similar to the private sector.

Section 23 does not apply where solicitor–client privilege has been waived.

Description

Section 23 states that the head of a government institution may refuse to release any record containing information subject to solicitor–client privilege.

Rationale

Conversations between patent agents or trademarks agents and their clients may involve sensitive information regarding intellectual property and are privileged in the same way as solicitor-client privilege.

If sensitive information regarding intellectual property was made public, a competitor may use that information to their advantage.

Description

Subsection 23.1 states the head of an institution may refuse to release a record that contains information subject to privileges set out in section 16.1 of the Patent Act or section 51.13 of the Trademarks Act.

Rationale

This section ensures that the ATIA is aligned with other Canadian laws and prevents information that is otherwise restricted from being released under the ATIA.

Some of the laws listed in Schedule II of the ATIA will provide an alternative method for accessing information, outside of the ATIA. For example, the Statistics Act allows the Chief Statistician to release information with the written consent of the person or organization concerned.

Some laws do not have alternative methods, but allow information to be released under certain conditions, such as if the party involved agrees to release it. In those cases, the institution processing the ATIA request needs to seek consent.

Description

Subsection 24(1) states that the head of a government institution will not release any record that contains information that is restricted by or under any provision set out in Schedule II.

Rationale

There are several reasons why the Government of Canada may withhold information that has not yet been published, but soon will be:

• to ensure that certain information that must be published in the public interest will be made available to everyone at the same time in both official languages
• to allow time for some government publications to pass through other review processes, such as scientific studies that are peer-reviewed

Description

Section 26 states that a government institution may refuse to release a record if the head of the institution believes that the material will be published within 90 days after the request is made, or as soon as possible after translating or printing the material.

Rationale

Published material is excluded to save the government time and effort collecting material that can be accessed by the public in other ways. For example, laws can be accessed through the Department of Justice Canada website, and official communications are often published via social media.

Material available for purchase by the public is excluded to protect the copyright owners, for example newspaper columnists or academics. This means that the public cannot use the ATIA to obtain material for less than the purchase price.

Museums and libraries preserve material for public reference and exhibition purposes. This includes material donated by private citizens or organizations. This material is protected to prevent the public from accessing the material held by museums or libraries for the cost of the ATIA application fee instead of paying for the services of the museum or library.

This exclusion has one exception. Material published by institutions under Part 2 of the ATIA is protected. Section 68 does not apply to these publications.

Description

Section 68 is an exclusion that states that Part 1 does not apply to the following categories of information:

• published material, other than material published under Part 2 or material available for purchase by the public
• library or museum material preserved solely for public reference or exhibition purposes
• material placed by or on behalf of persons or organizations other than government institutions in the:
  • Library and Archives of Canada
  • National Gallery of Canada
  • Canadian Museum of History
  • Canadian Museum of Nature
  • Canada Science and Technology Museum
  • Canadian Museum for Human Rights
  • Canadian Museum of Immigration at Pier 21

Individuals who make a request under Part 1 of the ATIA have a right to complain to the Information Commissioner and seek review by the Federal Court.

Rationale

Freedom of the press is in the Canadian Charter of Rights and Freedoms. A free press is important because it means that broadcasters can publish stories without political or public scrutiny or interference.

Since they provide programming other than journalism, broadcasters operate in a competitive environment where each broadcaster wants to attract the most viewers. Releasing planned creative and programming activities could harm a broadcaster’s ability to make money from those activities.

Section 68.1 recognizes the unique position of the CBC. They receive government funding, so their management functions and administrative expenditures should be open to public scrutiny. However, the CBC’s mandate means that they need the same protections as private broadcasters for their journalistic sources and to maintain their creative and programming independence.

Description

Section 68.1 states that Part 1 of the ATIA does not apply to any information that is under the control of the CBC about its journalistic, creative or programming activities (for example, show or news anchor selection rationale) other than information that relates to its general administration (for example, performance management such as audits or evaluations).

Rationale

Section 68.2 recognizes that the AECL receives government funding, so their management functions and administrative expenditures should be open to public scrutiny.

However, the ATIA also recognizes that the GoCo model provides AECL with information produced by CNL that relates to CNL’s commercial services and work in a sensitive research area.

Releasing information about research and commercial activities could harm CNL’s ability to make money from these activities. AECL and CNL should be extended the same protections for their research and commercial activities as private companies.

Description

Subsection 68.2 states that Part 1 of the ATIA does not apply to any information that is under the control of AECL other than information that relates to:

• its general administration
• its operation of any nuclear facility within the meaning of section 2 of the Nuclear Safety and Control Act that is subject to regulation by the Canadian Nuclear Safety Commission established under section 8 of the Nuclear Safety and Control Act

Rationale

Releasing Cabinet discussions would harm the Cabinet’s ability to discuss issues freely and make informed decisions. The decision-making process and its supporting records are traditionally protected, which enables ministers to have open discussions.

Description

Subsection 69(1) states that the ATIA does not apply to confidences of the King’s Privy Council for Canada, including:

• memoranda to present proposals or recommendations to council
• discussion papers to present background explanations, analyses of problems or policy options to council for decision-making
• agenda of council or records of council deliberations or decisions
• records used for or reflecting communications or discussions between ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy
• records to brief ministers of the Crown about matters that are before, or are proposed to be brought before, council or that are the subject of communications or discussions referred to in paragraph (d)
• draft legislation
• records that contain information about the contents of any record within a class of records referred to in paragraphs (a) to (f)

Subsection 69(2) specifies that, for the purposes of subsection 69(1), the word “council” means the King’s Privy Council for Canada, committees of the King’s Privy Council for Canada, Cabinet and committees of Cabinet.

Subsection 69(3) specifies that this exclusion has two exceptions:

• confidences of the King’s Privy Council for Canada that are more than 20 years old
• discussion papers (see paragraph 69(1)(b))
  1. if the decisions related to the discussion papers have been made public
  2. where the decisions have not been made public, if four years have passed since the decisions were made

Rationale

For the Attorney General of Canada to issue a certificate, there must be a risk to international relations, national defence or national security. Therefore, that information should be excluded from the ATIA.

This section ensures that the ATIA is aligned with the CEA. This means that information that is protected under the CEA cannot be released under the ATIA.

If the Attorney General of Canada issues a certificate after a complaint is filed with the Information Commissioner, the complaint is discontinued. The information cannot be released and must be returned to the institution by the Information Commissioner.

Description

Subsection 69.1(1) states that where a certificate is issued before a complaint is filed under this Part in respect of a request for access to that information, this Part does not apply to that information.

Subsection 69.1(2) states that when a certificate is issued after a complaint is filed under this Part about a request for access to that information:

• all proceedings under this Part in respect of the complaint, including an investigation, appeal or judicial review, are discontinued
• the Information Commissioner shall not release the information and shall take all necessary precautions to prevent its release
• the Information Commissioner shall, within 10 days after the certificate is published in the Canada Gazette, return the information to the head of the government institution that controls the information