Exemption from disclosure: law enforcement, investigations and security of penal institutions

Requirements: section 16
Rationale for section 16
Requirements of each exemption in section 16
Exercise of discretion
References

Requirements: section 16

Requirements: section 16
Exemption	Brief description	Exemption type	Harm test	Time limit
16(1)(a)	Information obtained or prepared by an investigative body during lawful investigations	Discretionary	No	Records containing information must have been created less than 20 years before access request made
16(1)(b)	Information relating to investigative techniques or plans for specific lawful investigations	Discretionary	No	No
16(1)(c)	Information that, if disclosed, could reasonably be expected to harm federal or provincial law enforcement or the conduct of investigations	Discretionary	Yes	No
16(1)(d)	Information that, if disclosed, could reasonably be expected to jeopardize security at penal institutions	Discretionary	Yes	No
16(2)	Information that, if disclosed, could reasonably be expected to facilitate the commission of an offence	Discretionary	Yes	No
16(3)	Information obtained or prepared by the RCMP while performing services for a province or municipality	Mandatory	No	No

Paragraphs 16(1)(a) to (d) and subsection 16(2)

Paragraphs 16(1)(a), (b), (c) and (d) and subsection 16(2) are discretionary exemptions—that is, to apply them, institutions must reasonably exercise their discretion to decide whether to disclose certain information relating to law enforcement.

In some cases, institutions need only show that the information falls within a specific category. For example, under paragraph 16(1)(a), institutions may withhold certain information prepared or received during lawful investigations. Under paragraph 16(1)(b), institutions may withhold information relating to investigative techniques.

In other cases, institutions must show that it is reasonable to expect that specific harms will result from disclosure of the information. For example, institutions may withhold certain information under paragraph 16(1)(c) when disclosure could reasonably be expected to harm a lawful investigation. Likewise, they may withhold information under subsection 16(2) when disclosure could reasonably be expected to facilitate the commission of an offence.

Subsection 16(3)

Section 16(3) is a mandatory exemption: institutions must, when certain conditions are met, withhold information obtained or prepared by the Royal Canadian Mounted Police (RCMP) while performing services for a province or municipality. (The term “province” also refers to Canada’s three territories.)

Analysis and assessment required during investigation

The onus is on the institution to establish that one or more of these exemptions apply to the records. The Office of the Information Commissioner (OIC) will examine the records at issue and analyze the representations provided by the parties to assess whether the institution properly claimed the exemption.

When it has, the OIC will then assess whether the institution reasonably exercised its discretion to decide whether to disclose the information. Exception: subsection 16(3), which is a mandatory exemption. See Exercise of discretion.

Rationale for section 16

The Supreme Court of Canada, when discussing the purpose of the law enforcement exemption in Ontario’s access to information legislation in Criminal Lawyers’ Assn, stated that the main purpose of the exemption is to protect the public interest in effective law enforcement. The court further explained that non-disclosure of information in the law enforcement context—that is, allowing institutions to exempt certain information—can enhance the ability of law enforcement agencies to receive full and frank disclosure, and advance the goal of “getting at the truth of what really happened.” These principles apply equally to section 16 of the Access to Information Act.

Requirements of each exemption in section 16

Paragraph 16(1)(a): law enforcement investigation information

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.

Any government institution can rely on paragraph 16(1)(a) to refuse access, provided the information was obtained or prepared by an investigative body listed in Schedule I of the Regulations.

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

The institution need not demonstrate that harm could reasonably be expected to result from disclosure.

20-year time limit

To qualify for exemption, the records that contain the information must have been created less than 20 years before the access request was made. When the institution cannot demonstrate that this is the case, the information does not meet the requirements of the exemption and no further analysis is required.

Investigative bodies that qualify under the exemption

The body that obtained or prepared the records must be one of the eight bodies listed in the Access to Information Regulations:

Canadian Forces Military Police
Canadian Forces National Counter-Intelligence Unit
Canadian Security Intelligence Service
Criminal Investigations Directorate, International, Large Business and Investigations Branch, Canada Revenue Agency
Director of Investigation and Research, Department of Consumer and Corporate Affairs (now known as the Commissioner of Competition, Department of Industry)
Intelligence and Targeting Operations Directorate, Canada Border Services Agency
Preventive Security and Intelligence Branch, Correctional Service of Canada
RCMP

Obtained or prepared in the course of lawful investigations

Meaning of “investigation”

For the exemption to apply, the investigative body must have obtained or prepared the record that contains the information in the course of a lawful investigation.

“Investigation” under section 16(1)(a) has a broad meaning. In Maydak, the Federal Court of Appeal relied on the following definitions:

the action of investigating; the making of a search or inquiry; systematic examination; careful and minute research (Oxford English Dictionary)
to follow up step by step by patient inquiry or observation; to trace or track; to search into; to examine and inquire into with care and accuracy; to find out by careful inquisition; examination; the taking of evidence; a legal inquiry (Black’s Law Dictionary).

Meaning of “lawful”

The investigation in question must be lawful.

In Shertzer, the Federal Court stated that an investigation is “lawful” when it falls within the jurisdiction of the investigative body. The Treasury Board of Canada Secretariat’s Access to Information Manual states that the term “lawful” means that “the investigation itself must not be contrary to law.”

Meaning of “in the course of”

The records in question must have been obtained or prepared “in the course of” a lawful investigation.

If the information in question was obtained by an investigative body outside the course of an investigation (for example, if it was voluntarily sent to the institution while the institution did not have any investigation underway), the institution may not be able to meet this requirement.

Subject matter of the investigation

The investigation in question must pertain to one or more of the following:

the detection, prevention or suppression of crime (subparagraph 16(1)(a)(i))
the enforcement of any law of Canada or a province (subparagraph 16(1)(a)(ii))
activities suspected of constituting threats to the security of Canada within the meaning of the Canadian Security Intelligence Service Act (subparagraph 16(1)(a)(iii)).

Detection, prevention or suppression of crime (subparagraph 16(1)(a)(i))

In Canada, “crimes” are federal offences. Provinces cannot enact criminal legislation. Therefore, the detection, prevention or suppression of crime can only be carried out under federal law.

For a law to be classified as criminal law, it must contain a prohibition backed by a penalty (Hydro-Québec).

Enforcement of any law of Canada or a province (subparagraph 16(1)(a)(ii))

Investigations of activities prohibited under federal or provincial (this includes municipal law) are investigations related to the enforcement of these laws.

This means that the investigation need not pertain to a criminal matter for subparagraph 16(1)(a)(ii) to apply. For example, a tax audit under the Income Tax Act qualifies as an investigation pertaining to the enforcement of a law of Canada (Canada Revenue Agency).

Threats to the security of Canada (subparagraph 16(1)(a)(iii))

Subparagraph 16(1)(a)(iii) refers to threats to the security of Canada. These are defined in section 2 of the Canadian Security Intelligence Service Act as the following:

(a) espionage or sabotage that is against Canada or is detrimental to the interests of Canada or activities directed toward or in support of such espionage or sabotage
(b) foreign-influenced activities within or relating to Canada that are detrimental to the interests of Canada and are clandestine or deceptive or involve a threat to any person
(c) activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective within Canada or a foreign state
(d) activities directed toward undermining by covert unlawful acts, or directed toward or intended ultimately to lead to the destruction or overthrow by violence of, the constitutionally established system of government in Canada.

Note that section 2 specifically excludes lawful advocacy, protest or dissent, unless this activity is carried out in conjunction with any of the activities referred to in paragraphs 2(a) to (d).

Paragraph 16(1)(b): investigative techniques or plans

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

The institution need not demonstrate that harm could reasonably be expected to result from disclosure.

Investigative techniques

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

The Federal Court has found that this exemption could apply, for example, to audit techniques, including a risk assessment tool used by the Canada Revenue Agency when applying section 94.1 of the Income Tax Act (Canada Revenue Agency).

Under Ontario’s access to information legislation, the following types of information have been found to qualify as investigative techniques:

details about how police obtain and execute search warrants (Order MO-1633-I)
precise settings of a city’s red light enforcement cameras (Order MO-2715)

However, under the same law, enforcement techniques have been distinguished from investigative techniques, with the former not having been found to qualify for exemption (Order MO-2730). For example, records describing the use of long-range acoustic devices for the purposes of crowd control were not found to qualify as investigative techniques.

Investigative techniques also differ from the facts the investigation uncovers. When disclosure of these facts would not reveal how they were obtained, they are not protected under paragraph 16(1)(b) (Sherman.)

Plans for specific lawful investigations

To claim this exemption, institutions must show that the information relates to plans for specific lawful investigations, not investigations in general.

In addition to fitting into the definitions of “investigation” and “lawful” described in this guide under paragraph 16(1)(a), the investigation must fall into one of the categories listed in subsection 16(4).

This exemption has been found to apply to a risk assessment tool used to evaluate and manage the risks of a specific, ongoing investigation [Canada Revenue Agency].

“Relate to”

The information in question must relate to the investigative technique or plan.

The Ontario courts have ruled that the term “relating to” in that province’s access to information legislation requires only that there be “some connection” between the records and the matter in question (Toronto Star).

Paragraph 16(1)(c): harm to law enforcement investigations

Paragraph 16(1)(c) allows institutions to refuse to disclose information that, if it were 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:
- those being conducted to administer or enforce an Act of Parliament or authorized under such an Act; or
- those of the types described in Schedule II of the Regulations.

Enforcement of any law of Canada or a province

Investigations of activities prohibited under federal or provincial law (including municipal law) are investigations related to the enforcement of these laws.

Under paragraph 16(1)(c), the investigation need not be of a criminal matter. For example, a tax audit under the Income Tax Act qualifies as an investigation relating to the enforcement of a law of Canada (see Canada Revenue Agency).

Conduct of lawful investigations

Investigations under paragraph 16(1)(c) must fall into one of categories listed in subsection 16(4).

Meanings of “investigations” and “lawful”

The meanings of “investigations” and “lawful” are the same as under paragraph 16(1)(a).

Information that could qualify for exemption

Paragraph 16(1)(c) contains three subparagraphs listing categories of information that could qualify for exemption:

information relating to the existence or nature of a particular investigation (subparagraph 16(1)(c)(i))
information that would reveal the identity of a confidential source of information (subparagraph 16(1)(c)(ii))
information obtained or prepared in the course of an investigation (subparagraph 16(1)(c)(iii)).

When the requested information fits into one of these three categories, this will be a factor weighing in favour of the exemption. However, it does not mean that the information is automatically exempt under paragraph 16(1)(c). The institution must still provide sufficient evidence to establish that disclosure could reasonably be expected to harm the enforcement of any law of Canada or a province or the conduct of lawful investigations.

When the information does not fall into one of the three listed categories, the exemption may still apply if the institution provides sufficient evidence of the harm that would result from disclosure.

The institution may or may not claim that one of subparagraphs 16(1)(c)(i) to (iii) applies to the information.

Harm

The section 16(1)(c) exemption is not limited to ongoing investigations. The exemption may apply when the institution establishes a reasonable expectation that disclosure would harm future investigations or the investigative process in general (Lavigne).

The burden is on the institution to establish that the exemption applies to the records. The institution must show that there is a reasonable expectation of probable harm if the information were to be disclosed. In other words, the institution must provide evidence of a clear and direct connection between the disclosure of specific information and harm to law enforcement. The evidence of harm cannot be speculative and must be well beyond a mere possibility (Elizabeth Fry, Imai).

On the other hand, the institution does not need to establish on a balance of probabilities that this harm will, in fact, occur as a result of disclosure (Imai).

The mere existence of an investigation is not sufficient to establish that it could be harmed should information be disclosed. The institution must provide evidence of a direct connection between disclosure and a reasonable expectation of probable harm (Elizabeth Fry).

Subsection 16(4)

Unlike under paragraph 16(1)(a), the investigations under paragraph 16(1)(b) and (c) must fall into one of the following paragraphs of subsection 16(4):

(a) those pertaining to the administration or enforcement of an Act of Parliament
(b) those authorized by or pursuant to an Act of Parliament
(c) those within a class of investigations specified in the Access to Information Regulations.

Paragraphs 16(4)(a) and (b)

Under paragraphs 16(4)(a) and (b), the investigation need not pertain to a criminal matter. For example, a tax audit under the Income Tax Act qualifies as an investigation pertaining to the enforcement of a law of Canada (Canada Revenue Agency.)

In Rubin, the Federal Court of Appeal found that a post-accident review of an airline following an aircraft crash, undertaken at the direction of a senior Transport Canada official, and under the authority of the Aeronautics Act, qualified as an investigation under subsection 16(4).

Paragraph 16(4)(c)

Under paragraph 16(4)(c), the investigation must fall within one of the five classes of investigations listed in the Access to Information Regulations:

Air traffic control investigations of Transport Canada’s Fact Finding Board when it has been alleged that owing to a system deficiency flight safety may have been jeopardized or less than the minimum required separation between aircraft may have existed
Department of Transport, Flight Service Station Review Committee, investigations into reported occurrences relating to aviation safety in which procedures or actions or a lack thereof, systems failure or other causes have brought the reliability of a Flight Service Station of the Flight Service Station System into question
Canadian Armed Forces flight safety accident investigations other than those conducted in the form of a board of inquiry or summary investigation under the National Defence Act
Canadian Forces Fire Marshall investigations into the cause of a fire, other than those conducted in the form of a board of inquiry or summary investigation under the National Defence Act
Correctional Service of Canada, Inspector General’s Branch, Special Inquiries Unit investigations

Paragraph 16(1)(d): harm to security of a penal institution

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.

Penal institution

The Act does not define “penal institution.” However, section 2(1) of the Corrections and Conditional Release Act defines a “penitentiary” as “a facility of any description, including all lands connected therewith, that is operated, permanently or temporarily, by the [Correctional Service of Canada] for the care and custody of inmates.”

Harm

The burden is on the institution to establish that the exemption applies to the records. The institution must show that there is a reasonable expectation of probable harm if the information were to be disclosed. In other words, the institution must provide evidence of a clear and direct connection between the disclosure of specific information and the reasonable expectation that security at penal institutions would be jeopardized. The evidence of harm cannot be speculative and must be well beyond a mere possibility (Elizabeth Fry, Imai).

On the other hand, the institution does not need to establish on a balance of probabilities that this harm will, in fact, occur as a result of disclosure (Imai).

The mere fact that penal institutions have security measures in place is not sufficient to establish that it could be harmed should information be disclosed. The institution must provide evidence of a direct connection between disclosure and a reasonable expectation of probable harm (Elizabeth Fry).

Subsection 16(2): facilitation of an offence

Subsection 16(2) allows institutions to refuse to disclose information that, if it were 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.

Meaning of “facilitate”

The term “facilitate” is to be understood according to its ordinary meaning. Black’s Law Dictionary defines “facilitate” as “to free from difficulty or impediment.” In the criminal context, the Supreme Court of Canada said that the word “facilitating” includes “helping to bring about and making easier or more probable” (Legare).

Meaning of “offence”

The Act does not define the term “offence.” This suggests that it is to be given a broad scope—that is, it is not limited to offences listed in the Criminal Code and includes offences under any federal or provincial law.

Information that could qualify for exemption

Subsection 16(2) contains three paragraphs listing categories of information that, if disclosed, could cause harm:

information on criminal methods or techniques (paragraph 16(2)(a))
technical information relating to weapons or possible weapons (paragraph 16(2)(b))
information on the vulnerability of particular buildings or other structures or systems, including computer or communication systems, or methods employed to protect such buildings or other structures or systems (paragraph 16(2)(c)).

When the requested information fits into one of these three categories, this will be a factor weighing in favour of the exemption. However, this does not mean that the information is automatically exempt under section 16(2). The institution must still provide sufficient evidence to establish that disclosure could reasonably be expected to facilitate the commission of an offence.

When the information does not fall within one of the three listed categories, the exemption may still apply if the institution provides sufficient evidence of harm that would result from disclosure.

The institution may or may not claim that one of paragraphs 16(2)(a) to (c) applies to the information.

Harm

The burden is on the institution to establish that the exemption applies to the records. The institution must show that there is a reasonable expectation of probable harm were the information to be disclosed. In other words, the institution must provide evidence of a clear and direct connection between the disclosure of specific information and the facilitation of the commission of an offence. The evidence of harm cannot be speculative and must be well beyond a mere possibility (Elizabeth Fry, Imai).

On the other hand, the institution does not need to establish on a balance of probabilities that the harm will, in fact, occur as a result of disclosure (Imai).

The mere existence of an investigation is not sufficient to establish harm. The institution must provide evidence of a direct connection between the requested disclosure and a reasonable expectation of probable harm (Elizabeth Fry).

Subsection 16(3): policing services for provinces or municipalities

Subsection 16(3) is a mandatory exemption. Institutions must refuse to disclose information the RCMP 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 RCMP 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.

Section 20 of the Royal Canadian Mounted Police Act permits the Minister of Public Safety and Emergency Preparedness to enter into an arrangement with the government of any province or municipality for the RCMP to aid in the administration of justice in the province or municipality.

The institution need not demonstrate that harm could reasonably be expected to result from disclosure.

Confidentiality

For subsection 16(3) to apply, the province or municipality must have asked the Government of Canada to keep the information in question confidential. The Government of Canada must also have agreed to do so.

Exercise of discretion

When information qualifies for exemption under paragraphs 16(1)(a) to (d) and subsection 16(2), institutions are required to reasonably exercise their discretion to decide whether to disclose it.

Even if an institution establishes that the information satisfies the requirements of one of these provisions, it still has the discretion to disclose it. This is true even for injury-based exemptions (paragraphs 16(1)(c) and (d) and subsection 16(2)): when an institution establishes a reasonable expectation of the described injury it may still exercise its discretion and decide to disclose.

The exercise of discretion should be evaluated with deference to the institution. Deference means restraint and respect for the institution in evaluating a decision that the Act empowers the institution to make.

When evaluating the exercise of discretion, the following issues should be determined

whether the institution turned its mind to the exercise of discretion
whether the institution considered all relevant factors in the exercise of discretion
whether the institution’s decision on the exercise of discretion is justified, transparent and intelligible.

1. Whether the institution turned its mind to the exercise of discretion

The OIC must be satisfied that the institution understood that it had discretion and then exercised that discretion. This determination is to be made on the evidence and representations before the OIC.

2. Whether the institution considered all relevant factors in the exercise of discretion

Relevant factors that must be considered include the following:

the purpose of the Act
the purpose of the exemption claimed
the public interest in disclosure
the risk of harm from disclosure.

This list is not exhaustive; the existence of other relevant factors will depend on the circumstances of each case.

The OIC must be satisfied, based on the evidence and representations before it, that all relevant factors were considered. This requires more than a boilerplate declaration by the institution that all relevant factors were considered, but it need not require a detailed analysis of each and every factor and how they were weighed against each other (Federal Court of Appeal in Prime Minister).

Put another way, the institution does not have to explain in full detail that it considered factors x, y and z, assigned particular weighting to each factor and then exercised its discretion by deciding whether to disclose.

Instead, the OIC may infer from the evidence before it that the institution considered relevant factors even if it did not expressly discuss them in its representations.

Apart from relevant factors, no irrelevant or improper factors can be considered in an exercise of discretion, including potential embarrassment to an institution.

3. Whether the institution’s decision on the exercise of discretion is justified, transparent and intelligible

It is possible to determine by inference whether the institution’s decision on the exercise of discretion is justified, transparent and intelligible, based on the evidence and representations before the OIC. Justification, transparency and intelligibility notably require the following:

discernible, rational and logical in the circumstances reasoning behind the exercise of discretion
evidence on who exercised discretion and their authority to do so
factors considered
reasons for the decision, as found by the Federal Court of Appeal in Prime Minister.

The decision of the institution is to be evaluated as a whole, including its rationale and outcome.