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Library and Archives Canada (Re), 2024 OIC 76

Date: 2024-11-28
OIC file number: 5823-01722
Access request number: A-2022-10879

Summary

The complainant alleged that Library and Archives Canada (LAC) had improperly withheld information under subsection 13(1) (confidential information from government bodies), subsection 15(1) (international affairs, defence), paragraph 16(1)(c) (law enforcement or conduct of investigations) and section 23 (legal advice and litigation privilege) of the Access to Information Act in response to an access request for the unredacted copy of the “Nazi war criminals in Canada: The historical and policy setting from the 1940s to the present – prepared for the commission of inquiry on war criminals by Alti Rodal: September 1986” (the Rodal report). The allegation falls within paragraph 30(1)(a) of the Act. LAC could not show that it met all the requirements of these exemptions. During the investigation, LAC provided a supplementary response to the request, disclosing most of the previously withheld information. In this disclosure, LAC entirely ceased its reliance on paragraph 16(1)(c) and section 23. LAC considered all relevant factors when it decided not to disclose the remainder of the withheld information.

The complaint is well founded.

Complaint

[1]      The complainant alleged that Library and Archives Canada (LAC) had improperly withheld information under subsection 13(1) (confidential information from government bodies), subsection 15(1) (international affairs, defence), paragraph 16(1)(c) (law enforcement or conduct of investigations) and section 23 (legal advice and litigation privilege) of the Access to Information Act in response to an access request for the unredacted copy of the “Nazi war criminals in Canada: The historical and policy setting from the 1940s to the present – prepared for the commission of inquiry on war criminals by Alti Rodal: September 1986” (the Rodal report).

[2]      The allegations falls under paragraph 30(1)(a) of the Act.

Investigation

[3]      When an institution withholds information under an exemption, it bears the burden of showing that refusing to grant access is justified.

[4]      The Rodal report consists of a 481-page (plus Notes) account of policies of the government with regard to immigration, displaced persons/refugees, and war criminals, and the setting and evolution of these policies from World War II.

[5]      Following its preliminary analysis, the OIC was not convinced that all of the information met the requirements of the exemptions. As a result, in February 2024, LAC provided a supplementary response to the request, disclosing most of the previously withheld information. In this disclosure, LAC entirely ceased its reliance on paragraph 16(1)(c) and section 23.

[6]      However, LAC maintained that the remaining information is properly withheld under subsections 13(1) or 15(1). The analysis of these remaining redactions follows.

Subsection 13(1): confidential information from government bodies

[7]      Subsection 13(1) requires institutions to refuse to release information obtained in confidence from certain government bodies.

[8]      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.

[9]      When these requirements are met, institutions must then consider whether the following circumstances exist:

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

[10]    When one or both of these circumstances exist, subsection 13(2) requires institutions to reasonably exercise their discretion to decide whether to release the information.

Does the information meet the requirements of the exemption?

[11]    LAC applied subsection 13(1) on page 475 of the supplementary release. Over the course of the investigation, LAC demonstrated that the information was sourced from a recognized government body, such as a foreign state institution or an international organization.

[12]    Furthermore, LAC has confirmed that the information was received in confidence, ensuring it would be treated as such. LAC also considered whether the government body consented to the release of the information or if it had already been made public. LAC initiated consultations with the foreign government, who did not consent to the release of the information. The information was not made public either.

[13]    The Office of the Information Commissioner (OIC) is satisfied that the information meets the requirements of subsection 13(1).

Did the institution reasonably exercise its discretion to decide whether to disclose the information?

[14]    Since the government body from which LAC obtained the information had neither consented to its disclosure nor made the information public, the OIC concludes that there is no need to examine the issue of discretion.

Subsection 15(1): international affairs, defence

[15]    Subsection 15(1) allows institutions to refuse to release information that, if disclosed, could reasonably be expected to harm the conduct of international affairs, or 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)).

[16]    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.

[17]    When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to release the information.

Does the information meet the requirements of the exemption?

[18]    LAC applied subsection 15(1) to some information pages 474 to 480, 513, 541, 547, 554 and 569 to 573 of the supplementary release.

[19]    Through consultations with other government departments as well as with the foreign government involved, LAC confirmed to the OIC that the details located on pages 474 to 480 are still considered sensitive, despite the passage of time. As a result, LAC concluded that the release of these details would harm international relations, damage Canada's reputation as an ally, and harm future relationships with other countries.

[20]    The OIC is satisfied that disclosure of this information could reasonably be expected to result in a harm described in subsection 15(1).

[21]    The information redacted on pages 513, 541, 547, 554 and 569 to 573 consists of Royal Canadian Mounted Police (RCMP) file numbers. Questions were raised as to why some of these file numbers were disclosed before being redacted again. LAC informed the OIC that these file numbers should have always been withheld from disclosure. LAC attempted to correct a previous mistake where these numbers were released. LAC advised that it did not intentionally release this information in previous releases and does not consider their accidental release an indication that these file numbers are not sensitive or do not require protection from release.

[22]    The OIC agrees that past errors are not determinative of disclosure.

[23]    The OIC is satisfied that the RCMP file numbers could reveal information regarding the nature of those files, could reasonably be expected to result in a harm described in subsection 15(1).

[24]    Consequently, the OIC concludes that the information at issue meets the requirements of subsection 15(1).

Did the institution reasonably exercise its discretion to decide whether to disclose the information?

[25]    Since LAC was of the view that the information meets the requirements of subsection 15(1), it was required to reasonably exercise its discretion to decide whether to disclose the information. In doing so, LAC had to consider all the relevant factors for and against disclosure.

[26]    As mentioned above, LAC undertook several consultations within other government departments and with a foreign government in order to establish what information still needed to be withheld under the Act. In LAC’s view these consultations were necessary to fully and carefully exercise the discretion regarding the remaining exemptions. Following a thorough review of the information, LAC concluded that releasing this information would substantially harm present-day relations with this foreign country, as Canada had historically and, through this consultation, contemporarily agreed to protect this information.

[27]    During the investigation, the OIC questioned LAC as to whether it considered the Policy Guidance on the Disclosure of Historical Records. LAC indicated in its representations that its review and analysis was conducted with the same spirit reflected in the policy guidance, acknowledging the age and importance of these records with the aim to release as much as possible. By doing so, it considered advice from LAC archivists, access to information analysts, subject matter experts in other departments, and a foreign government, before deciding to exercise its discretion and continue protecting some information found in the report.

[28]    Based on the representations provided, the OIC is satisfied that LAC considered all relevant factors when it decided not to disclose the remainder of the withheld information.

[29]    Consequently, the OIC concludes that LAC’s exercise of discretion was reasonable.

Outcome

[30]    The complaint is well founded, because:

  • LAC improperly withheld information from disclosure when it initially responded to the request.

Review by Federal Court

When an allegation in a complaint falls under paragraph 30(1)(a), (b), (c), (d), (d.1) or (e) of the Act, the complainant has the right to apply to the Federal Court for a review. The complainant must apply for this review within 35 business days after the date of this report and must serve a copy of the application for review to the relevant parties, as per section 43.

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