Section 15: International affairs and defence

Preliminary Matters

The Access to Information Act, R.S.C. 1985, c. A-1, (the Act) gives any Canadian Citizens or permanent resident within the meaning of the Immigration Act and any individual or any corporation present in Canada a right (of access) to most records under the control of the Federal Government. More specifically, our Act provides for access to all information in records controlled by government institutions listed in Schedule I of the Act unless there is a specific provision in the Act that permits or requires the head of the government institution to refuse to disclose the information, or unless the records (or part thereof) are excluded under section 68 or 69.

Section 15 is a discretionary injury exemption. This is a two step process. First, the head must determine whether disclosure of the (information in) a record or part thereof could reasonably be expected to cause the prejudice enunciated in the exemption. In this case, it is important to note that there are three distinct types of injury contemplated by this provision. It must be asked whether disclosure could reasonably be expected to be injurious to:

• the conduct of international affairs;
• the defence of Canada or any state allied or associated with Canada; or
• the detection, prevention or suppression of subversive or hostile activities.

The department must indicate on exempting information under this provision which of the three types of injury is the basis upon which they are claiming the exemption and this must have been identified in the notice sent to the requestor. Secondly, he/she must also exercise his/her discretion whether to exempt or disclose the information.

Secondly, he/she must also exercise his/her discretion whether to exempt or disclose the information, taking into consideration the objects of the Act and the exemption (see grid on Discretionary Exemptions). When reviewing the application of a discretionary exemption like section 15, it is important to remember that the government institution has the evidentiary burden of showing not only that the information falls within the scope of the exemption, but that the head of the institution or his/her delegate properly exercised their discretion in deciding not to disclose the information.Footnote1 If there is no evidence establishing that the institution head considered whether or not to disclose information subject to a discretionary exemption, or if the evidence about why they decided to refuse disclosure indicates the head relied on irrelevant or unreasonable factors or on improper considerations or that the decision is not consistent with the objects of the Act (that of extending disclosure of government information subject to limited and specific exemptions), then it is open to our office, and to the Federal Court on a review, to question or reject the decision to refuse disclosure.

The section 15 exemption is jucidially reviewed under section 50 of the Act which provides that:

Where the head of a government institution refuses to disclose a record requested under this Act or a part thereof on the basis of section 14 or 15 or paragraph 16(1)(c) or (d) or 18(d), the Court shall, if it determines that the head of the institution did not have reasonable grounds on which to refuse to disclose the record or part thereof, order the head of the institution to disclose the record or part thereof, subject to such conditions as the Court deems appropriate, to the person who requested access to the record, or shall make such other order as the Court deems appropriate

In X v. Canada (Minister of National Defence), [1992] 1 F.C. 77 at 106, Mr. Justice Denault, in interpreting this section, has stated that it authorizes the Court to "disclose information if the head of the government institution ... did not have reasonable grounds upon which to refuse disclosure".

Therefore, in determining whether the exemption under section 15 is justified, we must determine whether the head had reasonable grounds to believe that the release of the information exempted could lead to the particular harm. Notwithstanding the higher standard for interference with a head's decision under section 50, it is very much part of the role of our office to determine the reasonableness of the head's conclusion that disclosure would lead to the injury set out in the exemptions subject to section 50 review. Ruby v. Canada (Solicitor General, R.C.M.P.), [2000] F.C.J. No. 779, June 8, 2000, was a case concerning paragraph 22(1)(b) of the Privacy Act, (the parallel provision to paragraph 16(1)(c) of the Access to Information Act), which is in turn subject to review under section 49 of the Privacy Act (section 50 Access to Information Act), the Federal Court of Appeal overturned the Trial Judge's conclusion that he could not substitute his views on injury for the decision of the institution head and instead directed a closer scrutiny of the reasonableness of the institution's determination that the injury described in the exemption would be caused by disclosure:

Furthermore, the reviewing judge concluded at page 36 of his decision that "the Court cannot substitute its views for that of CSIS, or the Solicitor General, about the assessment of the reasonable expectation of probable injury." We would add, however, that it is very much part of the Court's role under section 49 [section 50 Access to Information Act] to determine the reasonableness of the grounds on which disclosure was refused by CSIS. That being the case, the reviewing judge, in our view, should have scrutinized more closely whether the release of information, particularly information that is over 20 years old, could reasonably be expected to be injurious to specific efforts at law enforcement and detection of hostile activities, and, therefore, whether CSIS had a reasonable ground to refuse to disclose. (Emphasis added).

Therefore, in determining whether the exemption under section 15 is justified, we must determine only whether the head had reasonable grounds to believe that the release of the information exempted could lead to the particular harm. What this means is could (not would) a reasonable person, based on the information available to the head, have come to the same conclusion. We don't have to determine whether the head was right in reaching that conclusion. Thus, while we might reach a different conclusion than the head, provided the head's decision was reasonable, we cannot legally find any fault with it.

It is important to note that there is some overlap between the section 15 and the section 13(1)(a) and (b) exemptions. While section 13 covers information obtained in confidence from foreign governments or institutions it does not cover information transmitted by Canadian government institutions to foreign institutions. An exchange of information between Canadian government institutions and foreign government institutions or international organizations is more properly assessed in relation to section 15 of the Act, which refers in paragraph 15(1)(g) to present or future international negotiations and in paragraph 15(1)(h) to diplomatic correspondence. This overlap becomes relevant in as investigation because section 13 is a mandatory class exemption, while section 15 is discretionary and requires that a reasonable expectation of injury to the conduct of international affairs be shown before the records can be exempted under this exemption. (Hein Do-Ky Vietnamese Refugee Sponsorship Committee v. Canada (Minister of Foreign Affairs and International Trade), (1999), 241 N.R. 308 (F.C.A.) affirming [1997] 2 F.C. 907 (F.C.T.D.)).

The Test

At the present time, there has been only a few decisions from the Federal Court of Canada on the criteria to be met in order for the provision to apply. However, there has been jurisprudence from other jurisdictions that could be applied by analogy to the Federal Act. The following summarizes the Office interpretation of this provision.

Since we are dealing with a prejudice exemption, this portion of the grid will be divided in two parts. First, we describe what constitutes a reasonable expectation of harm for the purpose of prejudice exemptions; secondly, we apply the 'reasonable expectation of harm' test in an international affairs and defence situations to determine whether the test in section 15 is met.

1) Where disclosure could reasonably be expected to:

While there have been only a few Federal Court decision on the interpretation of this provision, there has been jurisprudence dealing with the prejudice portion of the test required under paragraphs 20(1)(c) & (d) which contains the same wording. Since legislative draughtsmen are supposed to respect the principle of uniformity of expression, each term contained in a statute should have one and only one meaning when it is used in similar circumstances. Therefore, the jurisprudence of the Federal Court of Canada made in the context of section 20 may also be applied in the context of this provision.

In Air Atonabee v. Canada (Minister of Transport) (1989), 27 F.T.R. 194 (T.D.) the Court held that the test is whether, assuming use of the information, its disclosure would give rise to a reasonable expectation of probable harm. The burden of proof is on the party resisting disclosureFootnote2, and that to satisfy the requirement of this exemption, there must be evidence as to the way in which the information will cause harm and the degree of harm it will cause.Footnote3

The evidence of harm must be detailed, convincing and describe a direct causation between disclosure and harm. However, one must clearly distinguish between 'direct causation' and 'direct causality'; the former being the test to be applied under injury exemptions, the latter being explicitly rejected by the Court of Appeal in Canada Packers Inc. v. Minister of Agriculture et al., [1989] 1 F.C. 47 (C.A.). 'Direct causation' requires a direct causal link - the person resisting disclosure must bring specific evidence which would show that there is a link arising from the disclosure which would result in the harm. To put it another way, there must be some logical explanation to show why disclosure could lead to a particular identifiable harm. However, the person resisting disclosure does not have to prove a 'direct causality' (i.e. that the disclosure of the requested information would by itselfcause the specific harm). In other words, it is not necessary to prove that disclosure could result directly in producing the specific harm.

In Information Commissioner v. Immigration and Refugee Board (1997), 140 F.T.R. 140 the Federal Court Trial Division characterized the injury test in paragraph 16(1)(c) of the Act as a "confident belief", as follows:

The reasonable expectation of probable harm implies a confident belief. There must be a clear and direct link between the disclosure of specific information and the harm alleged. The Court must be given an explanation as to how or why the harm alleged would result from the disclosure of specific information. The more specific and substantiated the evidence, the stronger the case for confidentiality. It cannot refer to future investigations generally.

Where the harm foreseen by release of the records sought is one about which there can only be mere speculation or mere possibility of harm, the standard is not met. It must have an impact on a particular investigation, where it has been undertaken or is about to be undertaken. One cannot refuse to disclose information under paragraph 16(1)(c) of the Access to Information Act or paragraph 22(1)(b) of the Privacy Act on the basis that to disclose would have a chilling effect on possible future investigation (at paras. 40-45).

A high standard of proof is necessary to establish an exemption from disclosure on grounds of financial harm or contract interference.Footnote4 To prove harm, one must be able to trace, track, illustrate, show how disclosure of specific information could lead to the harm alleged.

Under the Access law, the test is one of reasonably expected financial or competitive harm, regardless of whether the information disclosed is confidential per se (i.e. inherently). However, if the information is, in fact, confidential - this could increase the likelihood that it might be able to meet the test. The standard of proof for substantial competitive harm is evidence of substantial injury. Evidence that harm might result is pure speculation and is not good enough. The expectation of harm must be likely, but it need not be a certainty.Footnote5

Description of possible harm, even in substantial detail, is often insufficient in itself. At a minimum, there must be a clear linkage between the disclosure of specific information and the harm alleged. We must be given an explanation of how and why the harm alleged would result from disclosure of specific information. However, if it is self-evident that as a result of disclosure of the record:

• harm will be done;
• how (and when) it will be done; and
• why it will be done, little explanation need to be given.Footnote6

What you want is a clear, logical believable explanation of the harm that could be expected if the information is disclosed and the connection between the disclosure and the harm - i.e. the logical link.

Where inferences must be drawn, or the answers to any of these questions is not clear, then more explanation would be required. The more specific and substantiated the evidence, the stronger the case for the exemption. The more general the evidence or the less plausible (believable) the result, the more difficult it would be to be satisfied as to the linkage between disclosure of particulars documents and the harm alleged - i.e. the more difficult it will be to conclude that the test has been met.

The context surrounding the disclosure of the information is also relevant. The jurisprudence has establish certain specific conditions that could be taken into consideration when determining whether a reasonable expectation of harm would result from disclosure:

• Use of the information: You must assume that the information would be used in assessing whether its disclosure would give rise to a reasonable expectation of harm.Footnote7 For example, what use would likely be made of the information by a competitor is a relevant factor to be considered. In what way would this use likely lead to harm? For example, what use would likely be made by the requestor or might be made by the requestor? These are relevant factors in determining how use could lead to the specific harm.
• Availability of the information: It is relevant to consider if the information sought to be kept confidential is already available from sources otherwise available to the public and whether it could be obtained by observation or independent study by a member of the public acting on their own.Footnote8 For example, where the information requested is already available elsewhere to the public, there may be no need for exemption under this exemption.Footnote9 The party alleging that the information is publicly available (i.e. even if it's us) has the burden of proof. Not only must the party prove that the withheld information is otherwise publicly available, but if it is government information, that the information was released from an official source.Footnote10
• Press coverage: Press coverage of a confidential record is relevant to the issue of expectation of probable harm from its disclosure.Footnote11 When the same or similar information has already been disclosed and received press coverage, no additional harm could be expected from the release of the requested information. Note however that a third party cannot claim that media would misinterpret the requested information and would cause prejudice to the third party. This argument has been found purely speculative.Footnote12
• Time: Evidence of the period of time between the date of the confidential record and its disclosure is relevant.Footnote13 In some cases, the older the record, the less likely an injury could occur.
• Other relevant documents: Each document must be considered on its own merit and in the context of all the documents requested for release since the total contents of the release may have a considerable bearing on the reasonable consequences of its disclosure.Footnote14 On the other hand, a single record may cause harm when disclosed but disclosure may result in no harm when disclosed in full context or with an explanation.

It is the probable consequences of disclosure which are most significant in determining whether a document or a portion thereof may be exempted under this section, not the nature of the document or the nature of the information contained in the document.

2) Injurious to the conduct of international affairs, the defence of Canada or any allied or state associated with Canada, or the detection, prevention or suppression of subversive or hostile activities:

Now starts the second part of the grid where we will apply the 'reasonable expectation of harm' test in an injury to the conduct of international affairs situation to determine whether the test in section 15 is met.

The use of 'including' at the end of subsection 15(1) means that the list which follows (paragraphs (a) to (i) provides examples of the types of information, the release of which could likely create the types of prejudice contemplated by this section. At one point, it was thought that unless the type of information fell into one of the categories enumerated in paragraph (a) to (i) this provision could not apply. It has been established that this was not a requirement of the provision.

However, the fact that information belongs to one of the categories listed is not sufficient in itself to establish that it meets the harm test set out in subsection 15(1). Although there is a possibility that the disclosure of information in these categories would create one of the prejudice contemplated, the head of the government institution must have reasonable grounds to expect harm in order to apply the exemption. One must not forget that the test under this provision is one of injury or probable injury and that the descriptive sections which follow are illustrative only. They are non-exhaustive description of the kinds of documents the disclosure of which might be found to be injurious to the specific interests listed.

The list does not cover every type of information which could reasonably be expected to cause such harm. Information not explicitly listed but which is similar in type to the information listed and meets the harm test set out in subsection 15(1), would be covered by the exemption. The more remote the similarity to the examples in 15(1), the greater the difficulty to prove that disclosure would meet the test in 15(1).

The following will summarize the types of prejudice that were contemplated by the legislator when enacting this provision.

a) Injurious to the conduct of international affairs:

Dictionary definitions can be considered in determining the ordinary meaning of a provision when the suggested meaning in the dictionary is consistent with the purpose of the Act.

The terms 'injurious', 'conduct', 'international' and 'affair' are defined as follows in the Concise Oxford Dictionary, 8th ed. (Oxford University Press, 1991):

• Injurious: "1. hurtful....."
• Injury: "1a. a physical harm or damage....."
• Conduct: "2. the action or manner of directing or managing (business, war, etc.)..."
• International: "1. existing, involving, or carried on between two or more nations..."
• Affairs: "1. a concern; a business; a matter to be attended to... "

While it is not possible to define the parameters / describe the scope of the provision, some examples of the types of information in appropriate circumstances might be considered to require protection under this part of subsection 15(1) are:

• information which if disclosed could be shown (i.e. how and why) to be detrimental to the current or future conduct of Canada's foreign relations or would impede current or future diplomatic negotiations with another country or with an international organization;
• information which would inhibit the functioning of canadian diplomatic personnel and missions abroad or place them in physical insecurity or jeopardy;
• information which would reveal the confidential assessments prepared by Canadian diplomatic missions abroad on the situations within the countries or international organizations to which they are accredited, or on the leading political and other personalities in these countries, or international organizations;
• information which would undermine the confidence of specific foreign governments and international organizations in the Canadian government;
• information which would give needless offence to other nations or citizens of other countries;
• information which would adversely affect the conduct of another country's foreign policy vis-a-vis a third power;
• information that is restricted pursuant to an agreement or arrangement made between the Government of Canada and any other government or international organization in confidence, the release of which would be considered to be a breach of faith on the part of the Government of Canada;
• information provided to the Government of Canada by another government or international organization classifying and withholding such information from the public domain for a definite period of time or until other stipulated conditions for its public release may have been satisfied;
• information which could cause the disruption of Canada's relations with another country or have an adverse effect on Canada's national security or on alliance arrangements in which Canada participates. Such information would: reveal intelligence material or defence plans or technical defence material affecting another country or obtained from another country; reveal diplomatic plans and negotiations; reveal plans and programs relating to current international security affairs which would adversely affect the conduct of current or future Canadian foreign policy;
• information relating to sensitive matters (for example, Canadian sovereignty in the Arctic) for the country.

b) Injurious to the defence of Canada or any allied or associated with Canada:

The terms 'injurious', 'allied' and 'associated' are defined as follows in the Concise Oxford Dictionary, 8th ed. (Oxford University Press, 1991):

• Injurious: "1. hurtful..."
• Injury: "1a. a physical harm or damage..."
• Allied: "1a. united or associated in an alliance. b of or relating to Britain and her allies in the wars of 1914-18 or 1939-45..."
• Associated: "1. joined in companionship, function, or dignity. 2 allied; in the same group or category... "

Subsection 15(2) further defines the term 'defence of Canada' by the following:

• "Defence of Canada or any state allied or associated with Canada" includes the efforts of Canada and of foreign states toward the detection, prevention or suppression of activities of any foreign state directed toward actual or potential attack or other acts of aggression against Canada or any state allied or associated with Canada.

The intent of the legislator can also be found in this statement of Mr. Francis Fox:

• Mr. Fox: "The term 'allied' would refer to states with which we have formal alliances; and "associated" states could be a country associated with Canada in a venture of some kind without having a formal alliance."
• M. Stollery: "Mr. Chairman, I guess that does not help particularly. An 'associated' state is a state that could be a country associated."
• Mr. Fox: "No. Basically, I am trying to explain what the concept is. I think it is quite clear that an 'allied' state is a state that has a form of alliance. I can see that the words 'allied' and 'alliance' come back, but we all understand that probably we are talking about treaties. I suppose a state that is allied to Canada would be like the United States is in NORAD. Like the NATO countries would be allied.

I assume that there are outside countries of NATO with whom we share certain interests. There are more states with whom we have a relationship for fishing purposes or what have you without necessarily having an alliance with them."Footnote15

As noted above, it is not possible to define the parameters / describe of the scope of the provision. Some matters which could be considered to require protection under this part of subsection 15(1) could be:

• tactical and strategic defence plans, operations or exercises, including the characteristics of equipment and techniques, and the scale, movement and placement of forces, except where the considered and authorized release of such information would assist in the deterrence or prevention of warlike action;
• internal and external intelligence and security plans, operations or exercises, including the characteristics of equipment and techniques, and the scale, movement and placement of personnel, except where the considered and authorized release of such information would assist in the deterrence or prevention of actions, whether internally or externally inspired, calculated to displace democratic institutions or procedures by force of violence;
• diplomatic plans and negotiations whose essential purpose is the maintenance of the safety and security of the nation.

c) Injurious to the detection, prevention or suppression of subversive or hostile activities:

The terms 'injurious', 'detection', 'prevention' and 'suppression' are defined as follows in the Concise Oxford Dictionary, 8th ed. (Oxford University Press, 1991):

• Injurious: "1. hurtful..."
• Injury: "1a. a physical harm or damage..."
• Detection: "1a. the act or an instance of detecting..."
• Detect: "2. discover or perceive the existence or presence of..."
• Prevent: "1. stop from happening or doing something; hinder; make impossible..."
• Suppression: "1. end the activity or existence of..."

Subsection 15(2) further defines the term 'subversive or hostile activities' by the following:

"Subversive or hostile activities" means

• espionage against Canada or any state allied or associated with Canada,
• sabotage,
• activities directed toward the commission of terrorist acts, including hijacking, in or against Canada or foreign states,
• activities directed toward accomplishing government change within Canada or foreign states by the use of or the encouragement of the use of force, violence or any criminal means,
• activities directed toward gathering information used for intelligence purposes that relates to Canada or any state allied or associated with Canada, and
• activities directed toward threatening the safety of Canadians, employees of the Government of Canada or property of the Government of Canada outside Canada.Footnote16

As noted above, it is not possible to draw the parameters / describe the scope of the provision. Some matters which could be considered to require protection under this part of subsection 15(1) could be:

• assessments for the protection of distinguished Canadians and their families;
• security service information relating to security clearance and immigration and citizenship applications;
• information and Intelligence on terrorism, espionage, subversion and sabotage;
• details of the functions and duties of intelligence personnel;
• plans for the protection of important defence establishments during times of emergency;
• reports on security inspections of defence establishments;
• information relating to systems for making government communications secure;
• techniques, plans and procedures for signals interception, and product of signals interception;
• information received confidentially under international agreements or arrangements.

Case Law

1) 15(1) Generally:

• The reasonable expectation of injury from the release of the requested information must be assessed taking into consideration all of the relevant circumstances in existence at the time of the application for access. This assessment is distinct from any reason underlying the collection of the information in question.Footnote17
• Although subsection 10(1) requires the head of a government institution to state the specific provisions of the Act on which his refusal is based, there is no obligation upon a government institution to state the specific category of document listed in the sections - i.e., the particular section relied on as an example does not need to be cited. More specifically, what is required in the context of section 15 is that the requester be given notice as to whether the reason for refusal is because a disclosure would be (1) injurious to the conduct of international affairs, (2) injurious to the defence of Canada or any state allied or associated with Canada, or (3) injurious to the detection, prevention or suppression of subversive or hostile activities.Footnote18 One or more of the 3 must be given in the notice as the basis for the exemption.

Note:  The judicial review by the Federal Court of the decision of a department not to disclose requested information on the grounds of national security, defence, or injury to the detection, prevention or suppression of subversive or hostile activities is very different to the powers conferred to the courts in the United States. In the States, courts must defer to the expertise of deponents having broad experience in the intelligence field. Such expert testimonies are worthy of great deference given the magnitude of these interests and the potential risks at stake. In other words, the U.S. Courts have traditionally accepted the position taken by the departmental experts. However, unlike the legislation in the U.S., the Access to Information Act does not give the head of a government institution absolute discretion to withhold documents. The task of the Federal Court (and by inference the Information Commissioner) is to review the material, submissions and evidence to determine whether the decision to withhold under section 15 was reasonable. While expert opinions are useful, the Court and the Commissioner are required to form their own opinion to determine whether the explanations provided for refusing to disclose are reasonable (i.e. whether the department had reasonable grounds to withhold the information).Footnote19

2) Injurious to the conduct of international affairs:

• The reasonable expectation of injury from the release of the requested information must be assessed taking into consideration all of the relevant circumstances in existence at the time of the application for access. In one case, the Court refused to exempt records obtained during WW2 (keys and records pertaining to the keys used in the German communications between Germany and Latin America) on the basis that it was unreasonable to conclude that disclosure of such records could reveal anything pertinent to the conduct of Canada's international relations and its national defence over 50 years later in time of peace.Footnote20
• Many Ontario decisions describe that it is important to identify the parties to the negotiations who could be compromised by disclosure of the requested information before determining whether the exemption applies. For example, the Ontario Commission stated that the fact that a record discloses that a company will engage in negotiations with the federal government does not relate to intergovernmental relations between the province and the federal government (i.e. a company cannot engage in intergovernmental relations). Similarly, the Commission held that the fact that disclosure of the records would prejudice the relationship between the mining industry and the federal and provincial governments is not sufficient to satisfy this provision. In the case of the Ontario legislation, it is intergovernmental relations that must be prejudiced in order to satisfy this exemption. Under the Access law, international affairs must be prejudiced.Footnote21

In order for the exemption to apply, the entities concerned must have the capacity of conducting the international affairs on behalf of their respective governments. In Order P-270, Commissioner Wright stated: "International relations can be understood as the ongoing formal and informal discussions and exchanges of information as the result of joint projects, planning and negotiations between various levels of government".

(Order P- 210)

• The timing of the conduct of the affairs is also important. For example, in one case the Commission found that disclosure of a record containing an undertaking by the province to negotiate with the federal government cannot reasonably be expected to prejudice intergovernmental relations.

Do-Ky v. Canada (Minister of Foreign Affairs and International Trade)(1999), 173 D.L.R. (4th) 515, (F.C.A.), affirming [1997] 2 F.C. 907.

• Foreign Affairs and International Trade (Foreign Affairs) decided that the diplomatic notes requested under the Act by Do-Ky and exchanged between Canada and another country could not be released under s. 15(1) of the Act as the release of the documents might reasonably be expected to be injurious to Canada's international relations. The Court agreed with Foreign Affairs.
• Three of the notes at issue were sent from the Canadian government to the government of the foreign state (Country D). The last note in issue was sent from Country D to the Canadian government in response to one of the three notes mentioned above. The note from Country D was determined to have been obtained in confidence and was therefore originally not disclosed according to the terms of paragraph 13(1)(a) of the Act. Do-Ky submitted that the note from Country D should be released because the information in it had been made public. The Court found, however, that Do-Ky had failed to establish the source of that information and whether that information was truly "public" or only within his personal knowledge. The Court further concluded that there was no evidentiary burden on the Canadian government to establish that the diplomatic note sent to Canada was not public. Furthermore, noted the Court, in the case of information received from a foreign State and made public by that State, the head of the Canadian government institution called upon to apply this Act may still avail him or herself of the other provisions of the statute.
• The Federal Court of Appeal confirmed that there is no "class exemption" for diplomatic notes, which at paragraph 15(1)(h) is one of the types of records enumerated in subparagraph 15(1), and that there must be evidence that disclosure of the notes in question could reasonably be expected to be injurious to the conduct of international affairs for the exemption to apply. The Court found that where the documents contain information which casts doubt on the commitment of another country to honour its international obligations and where that other country objects to the disclosure of the document, the injury test in s. 15(1) was met and the case for exemption made out.
• In the same case, the Federal Court Trial Division [1997] 2 F.C. 907 held that paragraph 15(1)(h) differed from other paragraphs enumerated under subsection 15(1) in that it referred to information which "constitutes" diplomatic notes, as opposed to information "relating to or" obtained or "prepared for the purpose of" diplomatic correspondence. The Trial Division found that this language provided grounds to exempt all diplomatic notes as a class, without reference to the information they contained. The Federal Court of Appeal over-ruled the Trial Division on this point by confirming that there must by evidence of likely injury to the conduct of international affairs from disclosure based on the content of the notes.
• The Court, finally examined whether the government had satisfied its burden of proving that the head of the institution which refused to disclose the notes in issue had 'reasonable grounds' for doing so, as section 50 requires. The Court found that Foreign Affairs had demonstrated the specific injury which could reasonably be expected to occur if these notes were released. On the basis of this evidence the learned trial Judge was satisfied that the criteria stipulated in s. 50 had been met.
• In Ruby v. Royal Canadian Mounted Police, [1998] 2 F.C. 351 the Federal Court Trial Division held that section 21 of the Privacy Act, the provision which parallels section 15, required a reasonable expectation of probable harm. The Court assessed the institution's use of section 21 based on the Privacy Act provision for judicial review (section 49) which, similar to section 50 of the Access to Information Act, specifies that the Court may order disclosure if the head of the institution did not have "reasonable grounds" on which to refuse disclosure. The Court confirmed that the standard for intervention by the Court set out in this provision was more stringent (i.e. it required more deference to the institution's decision) than the standard under the Privacy Act equivalent of section 50 of the Access to Information Act, which permits the Court to order disclosure where the head of the institution was "not authorized" to refuse disclosure.
• The more stringent standard for intervention in section 49, however, does not mean that the Information Commissioner or the Federal Court cannot review or substitute their own views on the assessment of the reasonable expectation of probable injury. In its decision in the Ruby case (above), the Federal Court of Appeal overturned the Trial Judge's conclusion on this point:
• Furthermore, the reviewing judge concluded at page 36 of his decision that "the Court cannot substitute its views for that of CSIS, or the Solicitor General, about the assessment of the reasonable expectation of probable injury." We would add, however, that it is very much part of the Court's role under section 49 [section 50 Access to Information Act] to determine the reasonableness of the grounds on which disclosure was refused by CSIS. That being the case, the reviewing judge, in our view, should have scrutinized more closely whether the release of information, particularly information that is over 20 years old, could reasonably be expected to be injurious to specific efforts at law enforcement and detection of hostile activities, and, therefore, whether CSIS had a reasonable ground to refuse to discloseFootnote22.

3) Injurious to the defence of Canada or any allied or associated with Canada:

• The reasonable expectation of injury from the release of the requested information must be assessed taking into consideration all of the relevant circumstances in existence at the time of the application for access. As noted above, the Court refused to exempt records obtained during WW2 (keys and records pertaining to the keys used in the German communications between Germany and Latin America) on the basis that it was unreasonable to conclude that disclosure of such records could reveal anything pertinent to the conduct of Canada's international relations and its national defence over 50 years later in time of peace.Footnote23

4) Injurious to the detection, prevention or suppression of subversive or hostile activities:

The Federal Court has permitted the exemption under this provision the following information:

• the names or identities of human sources utilized by the RCMP and CSIS as well as any information from which the identity of human sources could be derived;
• technical sources used by the Security Service;
• identification of both groups and individuals who were investigated by the Security Service and, in some cases, who continue to be investigated by CSIS;
• information which would clearly reveal the extent to which the Security Service was aware of the activities of targets and the scope of its interest in them;
• the depth, development and sophistication of the resources employed, as well as the degree of expertise of the Security Service;
• the effectiveness of Security Service investigations;
• internal procedures used by the Security Service to maintain, correlate and transmit information such as, file numbers and categories; cross-referencing methods; extracting methods; methods of constructing reports; process of assessing raw information; and cryptographic systems used for communication.Footnote24

CSIS employees generally fit into two categories: those involved in covert activities, and those not so involved. In one case, CSIS agreed to disclose the names of non-covert employees which were already known to the requestor by virtue of the processing of his employment security clearance.Footnote25

In Ruby v Canada (Solicitor General R.C.M.P.), [2000] F.C.J. No. 779, June 8, 2000 (F.C.A.), a case involving paragraph 22(1)(b) of the Privacy Act (paragraph 16(1)(c) Access to Information Act), the Federal Court of Appeal rejected the allegation that the age of records relating to security investigations does not preclude injury arising from disclosure, given the cumulative impact disclosure of such records would have in prejudicing the investigative process generally. The Court held that the notion of injury to the conduct of an investigation set out in paragraph 22(1)(b) (paragraph 16(1)(c) Access to Information Act) does not extend beyond specified investigations, either actual or to be undertaken, and that a refusal to disclose under paragraph 22(1)(b) (paragraph 16(1)(c)) was not authorized "simply because disclosure could have a chilling effect on the investigative process in general." Although this decision related to the paragraph 16(1)(c) exemption, the records at issue in this case were generated in the course of a security investigation. The Ruby decision is important because the Court rejected reasons for refusing disclosure often used in connection with both section 15 and paragraph 16(1)(c) that the mosaic effect and cumulative impact of disclosure or future investigations would prejudice the investigative process. Rather, the Court of Appeal ordered the Trial Judge to reconsider the evidence of injury and the issue of "whether the release of information, particularly information that is over 20 years old, could reasonably be expected to be injurious to specific efforts at law enforcement and detection of hostile activities, and, therefore, whether CSIS had a reasonable ground to refuse to disclose."

 

 

Table of Authorities

Canada

Disclosure could reasonably be expected

Air Atonabee v. Canada (Minister of Transport) (1989), 27 F.T.R. 194 (T.D.).

Canada Packers Inc. v. Minister of Agriculture (1988), [1989] 1 F.C. 47 (C.A.).

Information Commissioner of Canada v. Prime Minister of Canada, [1993] 1 F.C. 427 (T.D.).

Matol Botanique International Inc. v. Canada (Department of National Health and Welfare) (June 3, 1994), T-2916-90 (F.C.T.D.); 84 F.T.R. 168, [1994] F.C.J. 860

Merck Frosst Canada Inc. v. Minister of Health & Welfare, (1988), 22 C.P.R. (3d) 177; 20 F.T.R. 73; 20 C.I.P.R. 302 (T.D.)

Northern Cruiser Company Limited v. R (September 12, 1991) No.T-109-90 (F.C.T.D.); confirmed by F.C.A. (August 28, 1995), A-1039-91.

Ottawa Football Club v. Minister of Fitness and Amateur Sports, [1989] 2 F.C. 480, 24 F.T.R. 62, 23 C.P.R. (3d) 297 (F.C.T.D.).

Piller Sausages and Delicatessens Limited v. Minister of Agriculture et al. (1987), 14 F.T.R. 118 (T.D.)

Ruby v. Canada (Solicitor General, R.C.M.P.), [2000] F.C.J. No. 779, June 8, 2000 (F.C.A.)

United States

Fensterwald v. CIA, 443 F. Supp. 667 (D.D.C. 1978).

Fisher v. Dep't of Justice, 772 F. Supp. 7, 11 (D.D.C. 1991).

Founding Church of Scientology, Inc. v. NSA, 197 App. D.C. 305, 610 F.2d 824, 831-32 (D.C. Cir. 1979).

Simmons v. Dep't of Justice, 796 F.2d 709, 712 (4th Cir. 1986).

Sirota v. CIA, 3 G.D.S. para. 83,261 (S.D.N.Y. 1981).

State v. City of Cleveland, Civil No. 59571 (Ohio App. Aug. 27, 1992).

15(1) Generally

Canada

Information Commissioner of Canada v. Minister of National Defence (1990), 67 D.L.R. (4th) 585 (F.C.T.D.).

Ternette v. Solicitor General, [1992] 2 F.C. 75; 49 F.T.R. 161; 39 C.P.R. (3d) 371 (T.D.).

X v. Minister of National Defence et al.,[1992] 1 F.C. 77; 46 F.T.R. 206 (T.D.).

X v. Minister of National Defence, (November 4, 1992), T-2648-90 (F.C.T.D.)

Injurious to the conduct of international affairs

Canada

Do-Ky v. Canada (Minister of Foreign Affairs and International Trade) (February 6, 1997), T-2366-95 (F.C.T.D.)

X v. Minister of National Defence, (November 4, 1992), T-2648-90 (F.C.T.D.).

Do-Ky v. Canada (Minister of Foreign Affairs and International Trade) (1999), 173 D.L.R. (4th) 515, (F.C.A.),

Ontario

Orders # 87, P-210, P-270, P-293, P-388, P-345

Injurious to the detection, prevention or suppression of subversive or hostile activities

Canada

Gold v. M.N.R. et al., (October 15, 1990), T-836-85, T-1335-86 (F.C.T.D.).

Ternette v. Solicitor General, [1992] 2 F.C. 75; 49 F.T.R. 161; 39 C.P.R. (3d) 371 (T.D.).

X v. Minister of National Defence, (November 4, 1992), T-2648-90 (F.C.T.D.).

Ruby v. Canada (Solicitor General, R.C.M.P.), [2000] F.C.J. No. 779, June 8, 2000 (F.C.A.)

Endnotes

Footnote 1

See Ruby v. Canada (Solicitor General, R.C.M.P.), [2000] F.C.J. No. 779 (June 8, 2000)(F.C.A.).

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Footnote 2

Northern Cruiser Company Limited v. R (September 12, 1991) No.T-109-90 (F.C.T.D.); confirmed by F.C.A. (August 28, 1995), A-1039-91.

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Footnote 3

Merck Frosst Canada Inc. v. Minister of Health & Welfare, (1988), 20 F.T.R. 73 (T.D.); Information Commissioner of Canada v. Prime Minister of Canada,[1993] 1 F.C. 427 (T.D.).

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Footnote 4

Piller Sausages and Delicatessens Limited v. Minister of Agriculture at al.(1987), 14 F.T.R. 118 (T.D.).

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Footnote 5

Ibid.

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Footnote 6

Information Commissioner of Canada v. Prime Minister [1993] 1 F.C. 427 (T.D.).

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Footnote 7

Air Atonabee Ltd. v. Minister of Transport, (1989), 27 F.T.R. 194 at 216.

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Footnote 8

Ibid.

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Footnote 9

State v. City of Cleveland, Civil No. 59571 (Ohio App. Aug. 27, 1992). Paragraph 149.43 (a)(2)(d) of the Ohio Public Records Act exempts information which would endanger the life or physical safety of law enforcement personnel, a crime victim, a witness or a confidential information source. The respondents claimed this exemption for records relating to the identity of police informants. The court recognized that incarcerated informants incur a high degree of risk to their physical safety after providing information to the police. However, if an informant discloses his identity by testifying at trial, then it is doubtful that redacting the records relating to that informant will enhance his security.

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Footnote 10

 Fisher v. United States DOJ, 772 F. Supp. 7 (D.C. Col. August 15, 1991). In this case, the plaintiff's primary complaint was that much of the requested information allegedly had been released to the news media, and he contends that therefore he is entitled to this information. However, the plaintiff failed to provide evidence that the media coverage was the result of a release of the requested information by the government to the press. Nor did the plaintiff demonstrate that any of the withheld information has been the subject of publicity so widespread as to warrant disclosure under the FOIA. See Founding Church of Scientology, Inc. v. NSA, 197 App. D.C. 305, 610 F.2d 824, 831-32 (D.C. Cir. 1979). Moreover, the Court found that even assuming that some of the withheld information has appeared in the press, the nondisclosure was not proper because a disclosure from an official source of information previously released by an unofficial source would confirm the unofficial information and therefore cause harm to third parties. See Simmons v. Dep't of Justice, 796 F.2d 709, 712 (4th Cir. 1986) ("release from an official source naturally confirms the accuracy of the previously leaked information"). Furthermore, public disclosure of some information does not necessitate the disclosure of additional information that is otherwise properly exempt from disclosure. Sirota v. CIA, 3 G.D.S. para. 83,261 (S.D.N.Y. 1981) (citing Fensterwald v. CIA, 443 F. Supp. 667 (D.D.C. 1978).

The plaintiff also contended that during the sixteen-week trial in which he was a co-defendant, information withheld by the defendants was disclosed. However, the plaintiff failed to reference a single document withheld by the defendants in whole or in part which might fall within this category, and has not demonstrated that any of the withheld information has been so publicized as to warrant disclosure under the FOIA. See Founding Church of Scientology, Inc.v. NSA, 610 F.2d at 831-32.

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Footnote 11

See Canada Packers Inc. v. Minister of Agriculture, [1989] 1 F.C. 47 (C.A.) where the Court found that the evidence did not sustain the appellant's fear of unfair press coverage or its impact, rejecting evidence of previous press reports which related to products rather that on the condition of the plants which was the subject of the report at issue. See also Ottawa Football Club v. Minister of Fitness and Amateur Sports, [1989] 2 F.C. 480, 24 F.T.R. 62, 23 C.P.R. (3d) 297 (F.C.T.D.), where the Court found that since most of the information contained in the requested documents already made press coverage, no additional harm could be expected from the release of the requested information.

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Footnote 12

See Matol Botanique International Inc. v. Canada (Department of National Health and Welfare) (June 3, 1994), T-2916-90 (F.C.T.D.): While the Court found that sometimes the media is biased in the way it informs the public, it could not infer bad faith upon the media without any evidence to this effect.

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Footnote 13

Ottawa Football Club, supra, where the judge considered that the record was three years old when assessing the likelihood of harm resulting from disclosure.

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Footnote 14

Canada Packers Inc. v. Minister of Agriculture, [1989] 1 F.C. 47 (C.A.).

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Footnote 15

Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, June 18, 1981, Issue # 43 at pp. 37-38.

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Footnote 16

The following statements about the purpose of this provision can be found in the Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, June 23, 1981, Issue # 44 at pp. 9-10:

Mr. Fox: "Basically, in that clause we are talking about the safety of employees and diplomats in our embassies or our diplomatic posts abroad..."

Mr. Robert Auger: "The particular purpose of putting the 'safety of Canadians' there might be to cover people representing Canada who are not technically employees of the Government of Canada. One could imagine very well the Prime Minister or a minister going on a foreign mission abroad. Technically, I do not think you could say that he is an employee of the Government of Canada, yet there are all kinds of plans drawn up for their protection while on their official mission abroad. So that is what we tried to capture there by that."

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Footnote 17

Ternette v. Solicitor General, [1992] 2 F.C. 75; 49 F.T.R. 161; 39 C.P.R. (3d) 371 (T.D.).; See also X v. Minister of National Defence, (November 4, 1992), T-2648-90 (F.C.T.D.) infra.

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Footnote 18

Information Commissioner of Canada v. Minister of National Defence (1990), 67 D.L.R. (4th) 585 (F.C.T.D.).

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Footnote 19

X v. Minister of National Defence et al.,[1992] 1 F.C. 77; 46 F.T.R. 206 (T.D.).

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Footnote 20

X v. Minister of National Defence, (November 4, 1992), T-2648-90 (F.C.T.D.).

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Footnote 21

(Orders #87, P-270, P-293, P-388, P-435).

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Footnote 22

Ruby v. Canada (Solicitor General, R.C.M.P.), [2000] F.C.J. No. 779, June 8, 2000

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Footnote 23

X v. Minister of National Defence, (November 4, 1992), T-2648-90 (F.C.T.D.).

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Footnote 24

Ternette v. Solicitor General, [1992] 2 F.C. 75; 49 F.T.R. 161; 39 C.P.R. (3d) 371 (T.D.).

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Footnote 25

Gold v. M.N.R. et al., (October 15, 1990), T-836-85, T-1335-86 (F.C.T.D.).