Access to Information Act: relevant provisions

When investigating complaints, Office of the Information Commissioner investigators determine whether institutions met the requirements of the Access to Information Act.

This page groups these requirements by topic, so you can get a better understanding of what investigators consider when examining institutions’ actions. Investigators also use the wording of the text here in their analysis and in their reporting to complainants, institutions and other parties to complaints.

The texts take a standard approach, describing, as appropriate, the requirements institutions must meet and circumstances that must exist when institutions make decisions about access requests, respond to requests and otherwise comply with their obligations under Part 1 of the Act.

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Time limit to respond

Section 6: accepting access requests

Institutions must accept an access request that meets all of the following requirements under section 6:

It must be in writing.
It must be made to the institution that has control of the requested records.
It must provide enough detail that experienced institutional employees could identify relevant records with a reasonable effort.

If the access request does not provide enough detail for experienced employees of the institution to identify records with a reasonable effort, the institution must promptly seek clarification from the requester, in keeping with its obligations under subsection 4.2(1).

If the access request remains unclear after the institution has made every reasonable effort to seek clarification, the institution does not have to make further efforts to clarify the request and may choose not to accept it. When the requester provides enough detail, the institution must accept the request.

Section 7: time limit for responding to an access request

Section 7 requires institutions to respond to access requests within 30 days unless they have transferred a request to another institution or validly extended the 30-day period for responding by meeting the requirements of section 9. When an institution does not respond to a request within the 30-day or extended period, it is deemed to have refused access to the requested records under subsection 10(3).

Nevertheless, the institution is still required to provide a response to the access request.

What is a response?

The response must be in writing and indicate whether the institution is giving access to any or part of the requested records.

When the response indicates that the institution has given access to the records or part of them, the institution must provide access to those records.
When the response indicates that the institution has denied access to the records or part of them, the institution must explain that the records do not exist or that the institution has exempted them, or part of them, under a specific provision, which the institution must name.

In specific circumstances, the institution may refuse to confirm or deny in its response whether records exist under subsection 10(2).

Section 8: transfer of request

Under section 8, an institution may transfer an access request to another institution that has a greater interest in the requested records—that is, the records were originally produced in or for the other institution or that institution was the first to receive the records or a copy of them.

For the transfer to be valid, the institutions involved must meet the following requirements:

The first institution must not have received the access request as a transfer from another institution.
The first institution must transfer the access request within 15 days after receiving it. Note: Subsection 9(1) indicates that the institution transferring the request may extend this 15-day period.
The first institution must give written notice to the requester that it is transferring the access request to the second institution.
The second institution must agree to process the access request within the time limits in section 7.

Paragraph 9(1)(a): extension of time due to volume of records

Notification

To extend the period for responding to access requests, institutions must notify requesters of the following no more than 30 days after receiving the request:

they are extending under paragraph 9(1)(a), (b) and/or (c) the period for responding to the request;
the duration of the extension (for extensions under paragraphs 9(1)(a) and (b)); and
the requester has the right to complain to the Information Commissioner about the extension.

Institutions must also show that the requirements of the paragraph of subsection 9(1) they are relying on to extend the 30-day period are met.

Requirements of paragraph 9(1)(a)

Paragraph 9(1)(a) allows institutions to extend the 30-day period for responding to an access request when they can show the following:

the request is for a large number of records or requires searching through a large number of records;
meeting the 30-day time limit would unreasonably interfere with the institution’s operations; and
the extension of time is for a reasonable period, having regard to the circumstances.

Paragraph 9(1)(b): extension of time for consultations

Notification

To extend the period for responding to access requests, institutions must notify requesters of the following no more than 30 days after receiving the request:

they are extending under paragraph 9(1)(a), (b) and/or (c) the period for responding to the request;
the duration of the extension (for extensions under paragraphs 9(1)(a) and (b)); and
the requester has the right to complain to the Information Commissioner about the extension.

Institutions must also show that the requirements of the paragraph of subsection 9(1) they are relying on to extend the period are met.

Requirements of paragraph 9(1)(b)

Paragraph 9(1)(b) allows institutions to extend the 30-day period for responding to an access request when they can show the following:

they need to carry out consultations on the requested records;
those consultations cannot reasonably be completed within 30 days; and
the extension of time is for a reasonable period, having regard to the circumstances.

Paragraph 9(1)(c): extension of time for third-party consultations

Notification

To extend the time they have to respond to access requests, institutions must notify requesters of the following no more than 30 days after receiving the request:

they are extending under paragraph 9(1)(a), (b) and/or (c) the period for responding to the request;
the duration of the extension (for extensions under paragraphs 9(1)(a) and (b)); and
the requester has the right to complain to the Information Commissioner about the extension.

Institutions must also show that the requirements of the paragraph of subsection 9(1) they are relying on to extend the period are met.

Requirements of paragraph 9(1)(c)

Paragraph 9(1)(c) allows institutions to extend the 30-day period for responding to an access request when they can show the following:

they have given notice to a third party(ies) that they intend to disclose information that might be about them, pursuant to subsection 27(1); and
the extension of time is for a reasonable period, having regard to the circumstances.

Subsection 10(1): refusal of access

Subsection 10(1) requires institutions, when refusing to provide access to requested records, or parts of requested records, to notify requesters of the following:

the records do not exist; or
the specific provision(s) under which they are refusing access; or
the specific provision(s) of the Access to Information Act under which they could reasonably refuse access if the records were to exist.

This notice must also state that the requester has the right to complain to the Information Commissioner about this response.

Subsection 10(2) allows institutions, when responding to requesters under subsection 10(1), to refuse to confirm whether records exist.

To do so, institutions must show the following:

that whether records exist is itself information that warrants being withheld under the Access to Information Act; and
that, if there were responsive records, they could reasonably be exempted under specific provisions of the Act.

When both of these circumstances exist, institutions must then reasonably exercise their discretion to decide whether to refuse to confirm or deny the existence of the records.

Subsection 10(3): deemed refusal of access

Under subsection 10(3), when institutions do not respond to an access request within 30 days or by the end of the period for which they validly extended the period they had to respond, they are deemed to have refused access to the requested records.

Extensions of time

Paragraph 9(1)(a): extension of time due to volume of records

Notification

To extend the period for responding to access requests, institutions must notify requesters of the following no more than 30 days after receiving the request:

they are extending under paragraph 9(1)(a), (b) and/or (c) the period for responding to the request;
the duration of the extension (for extensions under paragraphs 9(1)(a) and (b)); and
the requester has the right to complain to the Information Commissioner about the extension.

Institutions must also show that the requirements of the paragraph of subsection 9(1) they are relying on to extend the 30-day period are met.

Requirements of paragraph 9(1)(a)

Paragraph 9(1)(a) allows institutions to extend the 30-day period for responding to an access request when they can show the following:

the request is for a large number of records or requires searching through a large number of records;
meeting the 30-day time limit would unreasonably interfere with the institution’s operations; and
the extension of time is for a reasonable period, having regard to the circumstances.

Paragraph 9(1)(b): extension of time for consultations

Notification

To extend the period for responding to access requests, institutions must notify requesters of the following no more than 30 days after receiving the request:

they are extending under paragraph 9(1)(a), (b) and/or (c) the period for responding to the request;
the duration of the extension (for extensions under paragraphs 9(1)(a) and (b)); and
the requester has the right to complain to the Information Commissioner about the extension.

Institutions must also show that the requirements of the paragraph of subsection 9(1) they are relying on to extend the period are met.

Requirements of paragraph 9(1)(b)

Paragraph 9(1)(b) allows institutions to extend the 30-day period for responding to an access request when they can show the following:

they need to carry out consultations on the requested records; and
those consultations cannot reasonably be completed within 30 days; and
the extension of time is for a reasonable period, having regard to the circumstances.

Paragraph 9(1)(c): extension of time for third-party consultations

Notification

To extend the time they have to respond to access requests, institutions must notify requesters of the following no more than 30 days after receiving the request:

they are extending under paragraph 9(1)(a), (b) and/or (c) the period for responding to the request;
the duration of the extension (for extensions under paragraphs 9(1)(a) and (b)); and
the requester has the right to complain to the Information Commissioner about the extension.

Institutions must also show that the requirements of the paragraph of subsection 9(1) they are relying on to extend the period are met.

Requirements of paragraph 9(1)(c)

Paragraph 9(1)(c) allows institutions to extend the 30-day period for responding to an access request when they can show the following:

they have given notice to a third party(ies) that they intend to disclose information that might be about them, pursuant to subsection 27(1); and
the extension of time is for a reasonable period, having regard to the circumstances.

Exemptions

Subsection 13(1): confidential information from government bodies

Subsection 13(1) requires institutions to refuse to disclose information obtained in confidence from certain government bodies.

To claim this exemption, institutions must show the following:

The information was obtained from one of the following government bodies:
- a government of a foreign state or an institution of a foreign state;
- an international organization of states or an institution of such an organization;
- a provincial government or institution;
- a municipal or regional government or institution; or
- an aboriginal government or council listed in subsection 13(3).
The information was obtained from the government body in confidence—that is, with the understanding that it would be treated as confidential.

When these requirements are met, institutions must then consider whether the following circumstances (listed in subsection 13(2)) exist:

The government body from which the information was obtained consents to its disclosure.
That body has already made the information public.

When one or both of these circumstances exist, subsection 13(2) requires them to reasonably exercise their discretion to decide whether to disclose the information.

Section 14: federal-provincial affairs

Section 14 allows institutions to refuse to disclose information that, if disclosed, could reasonably be expected to harm the conduct of federal-provincial affairs.

To claim this exemption, institutions must show the following:

Disclosing the information could harm the Government of Canada’s conduct of federal-provincial affairs (for example, information on federal-provincial consultations or deliberations, or Government of Canada strategy or tactics related to the conduct of federal-provincial affairs, as set out in paragraphs 14(a) and (b)).
There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to disclose the information.

Subsection 15(1): international affairs, national security, defence

Subsection 15(1) allows institutions to refuse to disclose information that, if disclosed, could reasonably be expected to harm the conduct of international affairs, defence or national security (for example, information related to military tactics, weapons capabilities or diplomatic correspondence, as set out in paragraphs 15(1)(a) to (i)).

To claim this exemption, institutions must show the following:

Disclosing the information could harm one of the following:
- the conduct of international affairs;
- the defence of Canada or any state with which Canada has an alliance or treaty, or any state with which Canada is linked, as defined in subsection 15(2); or
- the detection, prevention or suppression of specific subversive or hostile activities, as defined in subsection 15(2).
There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to disclose the information.

Paragraph 16(1)(a): investigative bodies

Paragraph 16(1)(a) allows institutions to refuse to disclose information obtained or prepared by specific investigative bodies in the course of investigations.

To qualify for exemption under paragraph 16(1)(a), the records that contain the information must have been created less than 20 years before the access request was made.

To claim the exemption, institutions must then show the following:

The information was obtained or prepared by one of the investigative bodies listed in Schedule I of the Access to Information Regulations.
The information was obtained or prepared during a lawful investigation that is within the authority of the investigative body.
The information concerns an investigation related to one of the following:
- the detection, prevention or suppression of crime;
- the enforcement of any law of Canada or a province (including municipal laws); or
- activities suspected of constituting threats to the security of Canada, as defined in the Canadian Security Intelligence Service Act.

When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to disclose the information.

Paragraph 16(1)(b): investigative techniques, investigation plans

Paragraph 16(1)(b) allows institutions to refuse to disclose information about investigative techniques or plans for specific lawful investigations.

To claim this exemption with regard to investigative techniques, institutions must show that the information relates to investigative techniques.

To claim this exemption with regard to plans for specific lawful investigations, institutions must show that the information relates to plans for specific lawful investigations that are within the authority of an institution and are one of the following:

being conducted to administer or enforce an Act of Parliament or authorized under such an Act; or
of the types described in Schedule II of the Access to Information Regulations.

When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to disclose the information.

Paragraph 16(1)(c): law enforcement, conduct of investigations

Paragraph 16(1)(c) allows institutions to refuse to disclose information that, if disclosed, could reasonably be expected to harm federal or provincial law enforcement or the conduct of investigations (for example, information about the existence of an investigation that would reveal the identity of a confidential source or that was obtained during an investigation, as set out in subparagraphs 16(1)(c)(i) to (iii)).

To claim this exemption with regard to the enforcement of federal or provincial laws, institutions must show the following:

Disclosing the information could harm the enforcement of any law of Canada or a province.
There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

To claim this exemption with regard to the conduct of investigations, institutions must show the following:

disclosing the information could harm the conduct of lawful investigations—that is, investigations that are within the authority of an institution and are one of the following:
- being conducted to administer or enforce an Act of Parliament or authorized under such an Act; or
- of the types described in Schedule II of the Access to Information Regulations.

When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to disclose the information.

Paragraph 16(1)(d): security of penal institutions

Paragraph 16(1)(d) allows institutions to refuse to disclose information that, if disclosed, could reasonably be expected to jeopardize security at penal institutions.

To claim this exemption, institutions must show the following:

Disclosing the information could injure the security of penal institutions.
There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to disclose the information.

Subsection 16(2): facilitating the commission of an offence

Subsection 16(2) allows institutions to refuse to disclose information that, if disclosed, could reasonably be expected to facilitate the commission of an offence.

To claim this exemption, institutions must show the following:

Disclosing the information (for example, information on criminal methods or techniques, or technical details of weapons, as set out in paragraphs 16(2)(a) to (c)) could facilitate the commission of an offence.
There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to disclose the information.

Subsection 16(3): provincial or municipal policing services

Subsection 16(3) requires institutions to refuse to disclose information the Royal Canadian Mounted Police obtained or prepared when performing certain policing services.

To claim this exemption, institutions must show the following:

The information was obtained or prepared by the Royal Canadian Mounted Police while performing policing services for a province or a municipality.
Those services were performed according to an arrangement made under section 20 of the Royal Canadian Mounted Police Act.
The Government of Canada agreed, at the request of the province or municipality, not to disclose the information.

16.1 to 16.6

Subsection 16.1(1): investigations, examinations and audits

Subsection 16.1(1) requires the Auditor General of Canada, Commissioner of Official Languages for Canada, Information Commissioner and Privacy Commissioner to refuse to disclose information related to their investigations, examinations and audits.

To claim this exemption, these individuals must show the following:

The information was obtained or created by them, or on their behalf.
The information was obtained or created during investigations, examinations or audits conducted by them or under their authority.

However, subsection 16.1(2) specifically prohibits the Information Commissioner and the Privacy Commissioner from using subsection 16.1(1) to refuse to disclose information created by them, or on their behalf, during investigations, examinations or audits once those enquiries and any and all related proceedings (that is, reviews by the Federal Court, and any appeal to the Federal Court of Appeal and the Supreme Court of Canada) are finished.

Subsection 16.2(1): investigations by the Commissioner of Lobbying

Subsection 16.2(1) requires the Commissioner of Lobbying to refuse to disclose information related to his or her investigations.

To claim this exemption, the Commissioner of Lobbying must show the following:

The information was obtained or created by him or her, or on his or her behalf.
The information was obtained or created during an investigation conducted by him or her or under his or her authority.

However, subsection 16.2(2) specifically prohibits the Commissioner of Lobbying from using subsection 16.2(1) to refuse to disclose information created by him or her, or on his or her behalf, during investigations once they and any and all related proceedings (that is, reviews by the Federal Court, and any appeal to the Federal Court of Appeal and the Supreme Court of Canada) are finished.

Section 16.3: investigations, examinations and reviews under the Canada Election Act

Section 16.3 allows the Chief Electoral Officer to refuse to disclose information related to investigations, examinations and reviews carried out under the Canada Election Act.

To claim this exemption, the Chief Electoral Officer must show the following:

The information was obtained or created by or on behalf of someone conducting an investigation, examination or review.
Conducting the investigation, examination or review is part of that individual’s functions under the Canada Elections Act.

When these requirements are met, the Chief Electoral Officer must then reasonably exercise his or her discretion to decide whether to disclose the information.

However, section 16.3 of the Access to Information Act specifically prohibits the Chief Electoral Officer from refusing to disclose information falling within the scope of section 541 of the Canada Elections Act.

Subsection 16.4(1): investigations under the Public Servants Disclosure Protection Act

Subsection 16.4(1) requires the Public Sector Integrity Commissioner to refuse to disclose information related to investigations under the Public Servants Disclosure Protection Act.

To claim this exemption, the Public Sector Integrity Commissioner must show one of the following:

The information was obtained or created by him or her, or on his or her behalf, in one of the following circumstances:
- during an investigation into a disclosure made by a public servant under the Public Servants Disclosure Protection Act; or
- during an investigation launched under section 33 of that Act as a result of information obtained during another investigation into alleged wrongdoing or provided by a non-public servant.
A conciliator received the information while attempting to settle a complaint filed under subsection 19.1(1) of that Act.

However, subsection 16.4(2) of the Access to Information Act specifically prohibits the Public Sector Integrity Commissioner from using paragraph 16.4(1)(b) to refuse to disclose information provided to a conciliator when the person who provided it consents to its disclosure.

Section 16.5: disclosures under the Public Servants Disclosure Protection Act

Section 16.5 requires institutions to refuse to disclose information created to make a disclosure under the Public Servants Disclosure Protection Act or during an investigation under that Act.

To claim this exemption, institutions must show one of the following:

The information was created to make a disclosure under the Public Servants Disclosure Protection Act about wrongdoings, as defined in section 8 of that Act.
The information was created during an investigation under the Public Servants Disclosure Protection Act into a disclosure about alleged wrongdoings, as defined in section 8 of that Act.

Section 16.6: Secretariat of the National Security and Intelligence Committee of Parliamentarians

Section 16.6 requires the Secretariat of the National Security and Intelligence Committee of Parliamentarians to refuse to disclose information obtained or created by it, or on its behalf, while helping the National Security and Intelligence Committee of Parliamentarians fulfill its mandate.

To claim this exemption, the Secretariat of the National Security and Intelligence Committee of Parliamentarians must show the following:

The information was obtained or created by the Secretariat or on its behalf.
The information was obtained or created as part of the Secretariat’s activities to support the National Security and Intelligence Committee of Parliamentarians in carrying out its mandate.

Section 17: safety of individuals

Section 17 allows institutions to refuse to disclose information that, if disclosed, could reasonably be expected to threaten an individual’s safety.

To claim this exemption, institutions must show the following:

Disclosing the information could threaten the safety or health of an individual.
There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to disclose the information.

Paragraph 18(a): government trade secrets, government financial, commercial, scientific or technical information

Paragraph 18(a) allows institutions to refuse to disclose trade secrets or financial, commercial, scientific or technical information of the Government of Canada or a government institution when that information has or is likely to have substantial value.

To claim this exemption with regard to trade secrets, institutions must show the following:

The information is a trade secret—that is, a plan or process, tool, mechanism or compound that possesses all four of the following characteristics:
- It is secret—that is, it is known only by one or a relatively small number of people.
- The Government of Canada or the institution intended to treat the information as secret.
- The information has industrial or commercial application.
- The Government of Canada or the institution has an interest worthy of legal protection (that is, an economic interest).
The trade secret belongs to the Government of Canada or one of its institutions.

To claim this exemption with regard to financial, commercial, scientific or technical information, institutions must show the following:

The information is financial, commercial, scientific or technical.
The information belongs to the Government of Canada or one of its institutions.
The information has substantial, rather than nominal, market value or is reasonably likely to have such value in the future.

When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to disclose the information.

Paragraph 18(b): competitive position of government institutions, negotiations by government institutions

Paragraph 18(b) allows institutions to refuse to disclose information that, if disclosed, could reasonably be expected to harm the competitive position or interfere with contractual or other negotiations of a government institution.

To claim this exemption with regard to competitive position, institutions must show the following:

Disclosing the information could injure the competitive position of a government institution.
There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

To claim this exemption with regard to contractual or other negotiations, institutions must show the following:

Contractual or other negotiations are under way or will be conducted in the future.
These negotiations are associated with the economic interests of Canada.
Disclosing the information could interfere with the negotiations.
There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to disclose the information.

Paragraph 18(c): government scientific or technical information obtained from research

Paragraph 18(c) allows institutions to refuse to disclose scientific or technical information stemming from government research that, if disclosed, could jeopardize government researchers’ chance to publish their findings first.

To claim this exemption, institutions must show the following:

The information is scientific or technical.
This information was obtained through research by a government employee or officer.
Disclosing the information could threaten the exclusive rights of government researchers to publish the results of their research first.
There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to disclose the information.

Paragraph 18(d): government financial interests, Government of Canada’s ability to manage the economy, undue benefit to an individual

Paragraph 18(d) allows institutions to refuse to disclose information that, if disclosed, could reasonably be expected to materially harm their financial interests or the Government of Canada’s ability to manage the Canadian economy, or could unduly benefit someone.

To claim this exemption, institutions must show the following:

Disclosing the information (for example, details about Canada’s currency or a contemplated change in the bank rate, as set out in subparagraphs 18(i) to (vi)) could do one of the following:
- materially harm a government institution’s financial or economic interests;
- materially harm the Government of Canada’s ability to manage the economy of Canada; or
- result in an individual or corporation receiving a larger than necessary, improper or unwarranted benefit.
There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to disclose the information.

18.1

Subsection 18.1(1): Economic interests of certain government institutions

Subsection 18.1(1) allows institutions to refuse to disclose trade secrets or confidential financial, commercial, scientific or technical information belonging to the Canada Post Corporation, Export Development Canada, the Public Sector Pension Investment Board and VIA Rail Canada Inc.

To claim this exemption with regard to trade secrets, institutions must show the following:

The information is a trade secret—that is, a plan or process, tool, mechanism or compound that possesses all four of the following characteristics:
- It is secret—that is, it is known only by one or a relatively small number of people.
- The institution intended to treat the information as secret.
- The information has industrial or commercial application.
- The institution has an interest worthy of legal protection (that is, an economic interest).
The trade secret belongs to one of the four above-named institutions.
That institution has consistently treated the information as confidential.

To claim this exemption with regard to financial, commercial, scientific or technical information, institutions must show the following:

The information is financial, commercial, scientific or technical.
The information belongs to one of the four above-named institutions.
That institution has consistently treated the information as confidential.

When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to disclose the information.

However, subsection 18.1(2) specifically prohibits institutions from using subsection 18.1(1) to refuse to disclose information that relates to the following:

the general administration of the four above-named institutions, including information related to travel, lodging and hospitality expenses (as per section 3.1); or
any activity carried out by the Canada Post Corporation that is fully funded out of parliamentary appropriations (the Consolidated Revenue Fund).

Subsection 19(1): personal information

Subsection 19(1) requires institutions to refuse to disclose personal information.

To claim this exemption, institutions must show the following:

The information is about an individual—that is, a human being, not a corporation.
There is a serious possibility that disclosing the information would identify that individual.
The information does not fall under one of the exceptions to the definition of “personal information” set out in paragraphs 3(j) to 3(m) of the Privacy Act (for example, business contact information for public servants).

When these requirements are met, institutions must then consider whether the following circumstances (listed in subsection 19(2)) exist:

The person to whom the information relates consents to its disclosure.
The information is publicly available.
Disclosure of the information would be consistent with section 8 of the Privacy Act.

When one or more of these circumstances exist, subsection 19(2) of the Access to Information Act requires them to reasonably exercise their discretion to decide whether to disclose the information.

Paragraph 20(1)(a): third-party trade secrets

Paragraph 20(1)(a) requires institutions to refuse to disclose trade secrets that belong to a third party (that is, a private company or individual, but not the person who made the access request).

To claim this exemption, institutions must show that the information is a trade secret—that is, a plan or process, tool, mechanism or compound that possesses all four of the following characteristics:

The information is secret—that is, only one or a relatively small number of people know it.
The third party intended to treat the information as secret.
The information has industrial or commercial application.
The third party has an interest worthy of legal protection (that is, an economic interest).

When these requirements are met, and the third party to whom the information relates consents to its disclosure, subsection 20(5) requires institutions to reasonably exercise their discretion to decide whether to disclose the information.

However, subsections 20(2) and 20(4) specifically prohibit institutions from using paragraph 20(1)(a) to refuse to disclose information that contains the results of product or environmental testing carried out by or on behalf of a government institution, unless the testing was done for a fee for an individual or an organization other than a government institution.

Paragraph 20(1)(b): confidential third-party financial, commercial, scientific or technical information

Paragraph 20(1)(b) requires institutions to refuse to disclose confidential financial, commercial, scientific or technical information provided to a government institution by a third party (that is, a private company or individual, but not the person who made the access request).

To claim this exemption, institutions must show the following:

The information is financial, commercial, scientific or technical.
The information is confidential.
The third party supplied the information to a government institution.
The third party has consistently treated the information as confidential.

In addition, when the requirements are met, subsection 20(6) requires institutions to reasonably exercise their discretion to decide whether to disclose the information for public health or public safety reasons, or to protect the environment, when both of the following circumstances (listed in subsection 20(6)) exist:

disclosure of the information would be in the public interest; and
the public interest in disclosure clearly outweighs any financial impact on the third party, any prejudice to the security of the third party’s structures, networks or systems, or competitive position, or any interference with its contractual or other negotiations.

However, subsections 20(2) and 20(4) specifically prohibit institutions from using paragraph 20(1)(b) to refuse to disclose information that contains the results of product or environmental testing carried out by or on behalf of a government institution, unless the testing was done for a fee for an individual or an organization other than a government institution.

Paragraph 20(1)(b.1): third-party emergency management plans

Paragraph 20(1)(b.1) requires institutions to refuse to disclose information related to emergency management plans that a third party (that is, a private company or individual, but not the person who made the access request) supplies in confidence to an institution.

To claim this exemption, institutions must show of the following:

The information concerns critical infrastructure information—that is, information about the vulnerability of the third party’s buildings or other structures, its networks or systems (including computer or communication networks or systems) or the methods used to protect that infrastructure.
The information was supplied to a government institution by the third party.
The information was supplied in confidence—that is, with the understanding that it would be treated as confidential.
The information was supplied for the preparation, maintenance, testing or implementation by the institution of emergency management plans, as defined in section 2 of the Emergency Management Act.

disclosure of the information would be in the public interest; and
the public interest in disclosure clearly outweighs any financial impact on the third party, any prejudice to the security of the third party’s structures, networks or systems, or competitive position, or any interference with its contractual or other negotiations.

However, subsections 20(2) and 20(4) specifically prohibit institutions from using paragraph 20(1)(b.1) to refuse to disclose information that contains the results of product or environmental testing carried out by or on behalf of a government institution, unless the testing was done for a fee for an individual or an organization other than a government institution.

Paragraph 20(1)(c): financial impact on a third party

Paragraph 20(1)(c) requires institutions to refuse to disclose information that, if disclosed, could reasonably be expected to have a material financial impact on a third party (that is, a private company or individual, but not the person who made the access request) or harm its competitive position.

To claim this exemption with regard to financial impact on a third party, institutions must show the following:

Disclosing the information could result in material financial loss or gain to the third party.
There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

To claim this exemption with regard to competitive position, institutions must show the following:

Disclosing the information could injure the competitive position of the third party.
There is a reasonable expectation that this prejudice could occur—that is, the expectation is well beyond a mere possibility.

disclosure of the information would be in the public interest; and
the public interest in disclosure clearly outweighs any financial impact on the third party, any prejudice to the security of the third party’s structures, networks or systems, or competitive position, or any interference with its contractual or other negotiations.

However, subsections 20(2) and 20(4) specifically prohibit institutions from using paragraph 20(1)(c) to refuse to disclose information that contains the results of product or environmental testing carried out by or on behalf of a government institution, unless the testing was done for a fee for an individual or an organization other than a government institution.

Paragraph 20(1)(d): negotiations by a third party

Paragraph 20(1)(d) requires institutions to refuse to disclose information that, if disclosed, could reasonably be expected to interfere with the contractual or other negotiations of a third party (that is, a private company or individual, but not the person who made the access request).

To claim this exemption, institutions must show the following:

A third party is or will be conducting contractual or other negotiations.
Disclosing the information could interfere with those negotiations.
There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

disclosure of the information would be in the public interest; and
the public interest in disclosure clearly outweighs any financial impact on the third party, any prejudice to the security of the third party’s structures, networks or systems, or competitive position, or any interference with its contractual or other negotiations.

However, subsections 20(2) and 20(4) specifically prohibit institutions from using paragraph 20(1)(d) to refuse to disclose information that contains the results of product or environmental testing carried out by or on behalf of a government institution, unless the testing was done for a fee for an individual or an organization other than a government institution.

20.1 to 20.4

Section 20.1: Public Sector Pension Investment Board

Section 20.1 requires the Public Sector Pension Investment Board to refuse to disclose investment-related advice or information it obtained in confidence from a third party (that is, a private company or individual, but not the person who made the access request).

To claim this exemption, the Public Sector Pension Investment Board must show the following:

The information is advice or information related to investment.
The information was supplied by a third party.
The information was obtained in confidence—that is, with the understanding that it would be treated as confidential.
The Public Sector Pension Investment Board has consistently treated the information as confidential.

Section 20.2: Canada Pension Plan Investment Board

Section 20.2 requires the Canada Pension Plan Investment Board to refuse to disclose investment-related advice or information it obtained in confidence from a third party (that is, a private company or individual, but not the person who made the access request).

To claim this exemption, the Canada Pension Plan Investment Board must show the following:

The information is advice or information related to investment.
The information was supplied by a third party.
The information was obtained in confidence—that is, with the understanding that it would be treated as confidential.
The Canada Pension Plan Investment Board has consistently treated the information as confidential.

Section 20.4: National Arts Centre

Section 20.4 requires the National Arts Centre Corporation to refuse to disclose information that, if disclosed, would reveal the terms of a performing artist’s contract or the identity of someone who made a confidential donation.

To claim this exemption, the National Arts Centre Corporation must show the following:

Disclosing the information would reveal the terms of a contract for the services of a performing artist or the identity of a donor who made a donation in confidence—that is, with the understanding that it would be treated as confidential.
The National Arts Centre Corporation has consistently treated the information as confidential.

Paragraph 21(1)(a): advice or recommendations

Paragraph 21(1)(a) allows institutions to refuse to disclose advice or recommendations developed by or for a government institution or a minister.

To qualify for exemption under paragraph 21(1)(a), the records that contain the information must have been created less than 20 years before the access request was made.

To claim this exemption, institutions must then show the following:

The information is advice or recommendations.
The information was developed by or for a government institution or minister.

When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to disclose the information.

However, subsection 21(2) specifically prohibits institutions from using paragraph 21(1)(a) to refuse to disclose the following:

records that contain reasons for or accounts of decisions that affect the rights of a person made by institutions when exercising discretionary powers or carrying out adjudicative functions; and
reports prepared by consultants or advisers who were not officers or employees of an institution or members of a minister’s staff at the time.

Paragraph 21(1)(b): accounts of consultations or deliberations

Paragraph 21(1)(b) allows institutions to refuse to disclose accounts of consultations or deliberations in which government employees, ministers or members of a minister’s staff took part.

To qualify for exemption under paragraph 21(1)(b), the records that contain the information must have been created less than 20 years before the access request was made.

To claim this exemption, institutions must then show the following:

The information is an account—that is, a report or a description.
The account is of consultations or deliberations.
At least one of an institution’s directors, officers or employees, a minister or a member of a minister’s staff was involved in the consultations or deliberations.

When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to disclose the information.

However, subsection 21(2) specifically prohibits institutions from using paragraph 21(1)(b) to refuse to disclose the following:

records that contain reasons for or accounts of decisions that affect the rights of a person made by institutions when exercising discretionary powers or carrying out adjudicative functions; and
reports prepared by consultants or advisers who were not officers or employees of an institution or members of a minister’s staff at the time.

Paragraph 21(1)(c): positions or plans developed for negotiations

Paragraph 21(1)(c) allows institutions to refuse to disclose positions or plans developed for negotiations by or on behalf of the Government of Canada.

To qualify for exemption under paragraph 21(1)(c), the records that contain the information must have been created less than 20 years before the access request was made.

To claim this exemption, institutions must then show the following:

The information consists of positions or plans developed for negotiations or related considerations.
The negotiations were, are being or will be carried on by or on behalf of the Government of Canada.

When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to disclose the information.

However, subsection 21(2) specifically prohibits institutions from using paragraph 21(1)(c) to refuse to disclose the following:

records that contain reasons for or accounts of decisions that affect the rights of a person made by institutions when exercising discretionary powers or carrying out adjudicative functions; and
reports prepared by consultants or advisers who were not officers or employees of an institution or members of a minister’s staff at the time.

Paragraph 21(1)(d): plans related to personnel management or administration

Paragraph 21(1)(d) allows institutions to refuse to disclose plans related to institutions’ personnel management or administration when these plans have yet to be put into operation.

To qualify for exemption under paragraph 21(1)(d), the records that contain the information must have been created less than 20 years before the access request was made.

To claim this exemption, institutions must then show the following:

The information consists of plans.
These plans relate to the institution’s personnel management or administration.
These plans have not yet been put into operation.

When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to disclose the information.

However, subsection 21(2) specifically prohibits institutions from using paragraph 21(1)(d) to refuse to disclose the following:

records that contain reasons for or accounts of decisions that affect the rights of a person made by institutions when exercising discretionary powers or carrying out adjudicative functions; and
reports prepared by consultants or advisers who were not officers or employees of an institution or members of a minister’s staff at the time.

Section 22: testing or auditing procedures or techniques

Section 22 allows institutions to refuse to disclose information related to testing or auditing that, if disclosed, would prejudice the use of particular tests or audits, or their results.

To claim this exemption, institutions must show the following:

The information relates to testing or auditing procedures or techniques, or details of specific tests to be given or audits to be conducted.
Disclosing this information would do one of the following:
- prejudice the results of a specific test or audit—in progress or to be carried out in the future; or
- jeopardize the later use of the tests or audits, or of the testing or auditing procedures.

When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to disclose the information.

22.1

Subsection 22.1(1): draft internal audit reports and their working papers

Subsection 22.1(1) allows institutions to refuse to disclose an institution’s draft internal audit reports or any related internal audit working papers.

To qualify for exemption under subsection 22.1(1), the records that contain the information must have been created less than 15 years before the access request was made.

To claim this exemption, institutions must then show that the information consists of draft reports of an internal audit of a government institution or internal audit working papers.

When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to disclose the information.

However, subsection 22.1(2) specifically prohibits institutions from using subsection 22.1(1) to refuse to disclose draft internal audit reports when the final reports have been published or when they were not delivered within two years after the day the audits began.

Section 23: solicitor-client and litigation privilege

Section 23 allows institutions to refuse to disclose information subject to solicitor-client privilege or the professional secrecy of advocates and notaries when the information relates to legal advice given to a client. Section 23 also allows institutions to refuse to disclose information subject to litigation privilege when the information was prepared or gathered for the purpose of litigation.

To claim this exemption with regard to solicitor-client privilege, institutions must show the following:

The information consists of communication between a lawyer or notary and his or her client.
That communication relates directly to the seeking or giving of legal advice, including all the exchanges of information needed to give legal advice.
The parties intend the communication and advice to remain confidential.

To claim this exemption with regard to litigation, institutions must show the following:

The information was prepared or gathered for the dominant purpose of litigation.
The litigation either is in progress or is reasonably expected to occur.

Litigation privilege generally expires when the litigation ends, except when related litigation is pending or is reasonably expected to occur.

When these requirements are met, institutions (as the owner of the privilege) must then reasonably exercise their discretion to decide whether to disclose the information.

23.1

Section 23.1: patents, trademarks

Section 23.1 allows institutions to refuse to disclose information that is protected from disclosure under the Patent Act or Trade-marks Act.

To claim this exemption with regard to patents, institutions must show the following:

The information consists of communication between an individual listed in the register of patent agents and his or her client.
These parties intend the communication to remain confidential.
The communication was made to seek or give advice related to protecting an invention.

To claim this exemption with regard to trademarks, institutions must show the following:

The information consists of communication between an individual on the list of trademark agents and a client.
These parties intend the communication to remain confidential.
The communication was made to seek or give advice related to protecting a trademark, geographical indicators or marks (for example, national, provincial and municipal flags, as set out in subsection 9(1) of the Trade-marks Act).

When these requirements are met, and the client either expressly or implicitly waives the privilege, institutions must then reasonably exercise their discretion to decide to disclose the information.

Subsection 24(1): disclosure restricted by another law

Subsection 24(1) requires institutions to refuse to disclose information the disclosure of which is restricted by a provision set out in Schedule II of the Access to Information Act.

Section 26: information to be published

Section 26 allows institutions to refuse to disclose information the Government of Canada will publish in the near future.

To claim the exemption, institutions must show the following:

There are reasonable grounds to believe that the information will be published by a government institution, agent of the Government of Canada or minister, other than material proactively disclosed under Part 2 of the Access to Information Act.
The publication will occur within 90 days after the access request is made or within the time that may be necessary for printing or translation to take place.

When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to disclose the information.

Exclusions

Section 68: exclusion of certain materials

Under section 68, the right to access records under Part 1 of the Access to Information Act does not apply to the following:

published material, other than material proactively disclosed under Part 2 of the Access to Information Act;
material for sale to the public;
material preserved solely for public reference or exhibition in libraries or museums; and
material placed by or on behalf of persons or organizations other than government institutions in the Library and Archives of Canada, the National Gallery of Canada, the Canadian Museum of History, the Canadian Museum of Nature, the National Museum of Science and Technology, the Canadian Museum for Human Rights or the Canadian Museum of Immigration at Pier 21.

68.1

Section 68.1: journalistic, creative or programming activities of the Canadian Broadcasting Corporation

Under section 68.1, the right to access records under Part 1 of the Access to Information Act does not apply to information controlled by the Canadian Broadcasting Corporation that relates to its journalistic, creative or programming activities.

However, the exclusion does not apply to information under the Canadian Broadcasting Corporation’s control that relates to its general administration, including information related to travel, lodging and hospitality expenses (as per section 3.1).

68.2

Section 68.2: Atomic Energy of Canada

Under section 68.2, the right to access records under Part 1 of the Access to Information Act does not apply to information controlled by Atomic Energy of Canada Limited.

However, the right to access records does apply to information under Atomic Energy of Canada Limited’s control that relates to the following:

its general administration, including information related to travel, lodging and hospitality expenses (as per section 3.1); and
its operation of any nuclear facility, as defined in section 2 of the Nuclear Safety and Control Act, regulated by the Canadian Nuclear Safety Commission.

Subsection 69(1): Cabinet confidences

Under subsection 69(1), the right to access records under Part 1 of the Access to Information Act does not apply to confidences of the King’s Privy Council for Canada (Cabinet confidences) (for example, memoranda to Cabinet, discussion papers presenting background explanations, analyses of problems or policy options for consideration by the Cabinet in making decisions, and draft legislation, as set out in paragraphs 69(1)(a) to (g)).

However, under subsection 69(3), the right to access records does apply to Cabinet confidences that are more than 20 years old and to discussion papers when the decisions to which they relate have been made public or, when they have not, four years have passed since the decisions were made.

69.1

Subsection 69.1(1): Canada Evidence Act certificate

Under subsection 69.1(1), the right to access records under Part 1 of the Access to Information Act does not apply to information for which the Attorney General of Canada has issued a certificate under section 38.13 of the Canada Evidence Act prohibiting disclosure.

Such a certificate prohibits the disclosure of information in connection with a proceeding to protect the following:

information obtained in confidence—that is, with the understanding that it would be treated as confidential—from, or in relation to, a foreign entity, as defined in subsection 2(1) of the Security of Information Act; or
national defence or national security.

Reasonable search

Institutions are required to conduct a reasonable search for records that fall within the scope of the access request—that is, one or more experienced employees, knowledgeable in the subject matter of the request, must have made reasonable efforts to identify and locate all records reasonably related to the request.

A reasonable search involves a level of effort that would be expected of any fair, sensible person tasked with searching for responsive records where they are likely to be stored.

This search does not have to be perfect. An institution is therefore not required to prove with absolute certainty that further records do not exist. Institutions must however be able to show that they took reasonable steps to identify and locate responsive records.

Control of records

The Access to Information Act provides requesters with a right of access to records that are under the control of government institutions. While the Act does not define “control,” the Supreme Court of Canada held that the term should be interpreted broadly and liberally to provide a meaningful right of access. (See Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25.)

Records under the control of institutions need not be restricted to records in the physical possession of a government institution.

When institutions do not have physical possession of the records, they must, in order to determine whether they have the records under their control, consider whether the records relate to a departmental matter and, if so, whether a senior official of the institution should reasonably expect to obtain a copy of the records upon request. Institutions must consider all relevant factors when making this determination.
When institutions have physical possession of the records, they must consider all relevant factors when determining whether they have the records under their control.

In both cases, the precise factors to be considered vary depending on the circumstances. Such factors include and are not limited to whether the content of the records is relevant to the mandate, obligations, operations and functions of the institution, who created the records and why the institution created or obtained them. Generally, no one factor is determinative. Consequently, records are under the control of an institution when, taken together, the factors support such a finding.

When records are not under the control of the institution, they do not fall within the scope of the Act. Therefore, institutions are not required to give access to them.