Section 16: Law enforcement and investigations, security

Preliminary Matters

The Access to Information Act, R.S.C. 1985, c. A-1, (the Act) gives any Canadian Citizen 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.

Paragraphs 16(1)(a) and (b) set out is a discretionary class exemption. This is a two step process. Once the Head determines that disclosure of a record or part thereof could reasonably be expected to cause the prejudice enunciated in the exemption, he/she must also exercise his/her discretion following proper principles to disclose the information.

Paragraph 16(1)(c) is a discretionary injury exemption. This is also a two step process. First, the head must determine whether disclosure of a record (information in) or part thereof could reasonably be expected to cause the prejudice enunciated in the exemption. Secondly, he/she must also exercise his/her discretion following proper principles whether to exempt or disclose the information.

Subsection 16(2) is a discretionary class exemption. It requires that the institution identify how the information would facilitate the commission of an offence, then exercise his/her discretion, in accordance with the intent of the Act and the provision, to determine whether the information should be withheld from disclosure.

When reviewing the application of a discretionary exemption like section 16, 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. 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.

Subsection 16(3) is a mandatory injury exemption. The consequence is that once the Head determines that disclosure of a record or part thereof would give rise to the prejudice enunciated in this exemption, he/she must then refuse to grant access to the requested information.

Paragraphs 16(1)(c) & (d) are exemptions which are judicially 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, subject to such conditions as the Court deems appropriate, to the person who requested access to the record, or shall make such 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 an exemption under paragraphs 16 (1)(c) or (d) is justified, we must determine only whether the head had reasonable grounds to believe that the release of the exempted information 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. In Ruby v. Canada (Solicitor General, R.C.M.P.), [2000] F.C.J. No. 779, June 8, 2000, 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, 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 directed a closer scrutiny of the reasonableness of the institution's determination that injury would be caused by disclosures:

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).

The Test

At the present time, there have been only a few decisions from the Federal Court of Canada on the criteria to be met in order for the section 16 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.

1) Paragraph 16(1)(a):

In order to be exempted from disclosure, the information must meet all of the following criteria:

• The information was obtained or prepared by a government institution or a part of a government institution that is an investigative body specified in the Access Regulations;
• The information was obtained or prepared in the course of a lawful investigation;
• The lawful investigation related to either :
  • The detection, prevention or suppression of crime;
  • the enforcement of any law of Canada or a province; or
  • activities suspected of constituting threats to the security of Canada within the meaning of the Canadian Security Intelligence Service Act,

a)   The information was obtained or prepared by a government institution or a part of a government institution that is an investigative body specified in the regulations:

Section 9 of the Access Regulations^{Footnote 1} and Schedule I of these regulations list the investigative bodies for the purpose of paragraph 16(1)(a). They are the following:

• Canada Ports Corporation Police and Security, Department of Transport
• Canadian Forces Military Police
  • Canadian Security Intelligence Service
• Director of Investigation and Research, Department of Consumer and Corporate Affairs
• Intelligence Division, Department of National Revenue (Customs and Excise)
• Preventive Security Division, Securities Branch, Canadian Penitentiary Service
• Royal Canadian Mounted Police
• Special Investigations Division, Department of National Revenue (Taxation)
• Special Investigations Unit, Department of National Defence

If the records that are exempted were not obtained or prepared by one of the above investigative bodies, the exemption under paragraph 16(1)(a) cannot apply.

b) The information was obtained or prepared in the course of a lawful investigation:

A review of the Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs^{Footnote 2} demonstrates that the intent of the legislator when enacting this provision was to give a somewhat narrower meaning than would otherwise be the case by the grammatical method of interpretation.^{Footnote 3} In order to be exempted under this provision, the information must have been obtained or prepared during the course of an investigation which was specifically authorized by statute or regulation (i.e., an investigative power is built into the Act or Regulations). Accordingly, the exemption does not cover investigations made pursuant to some general powers of investigation, or investigations of an administrative nature.^{Footnote 4} In other words, it does not include internal employment-related investigations for other than the violation of a specific law.

When investigating a complaint for a paragraph 16(1)(a) exemption, you should request from the Department the investigative powers under which the investigation was conducted, and request a copy of the provision. By a simple glance at the provision, you should be able to determine 1) why i.e., the circumstances under which an investigation may be conducted; 2) how it should be conducted - i.e., the investigative powers; and 3) the limits to the investigation (e.g. the investigation process, including the duties and powers of the Information Commissioner are found in section 30 to 37 of the Act). If you find that the records requested were obtained or prepared outside the scope of the legislative authority, then they are not obtained in the course of a 'lawful' investigation for the purpose of the Act.

In some instances, you may find an institution did not have authority to conduct an investigation. An example of this was mentioned in the Committee Minutes referred above - apparently, the Department of Transport had conducted an investigation on the air traffic separations while there was no provision in their Act for this type of investigation.

In other circumstances, you may find that while there are powers vested in an institution to investigate a matter, the institution went overboard or the prerequisites to conduct an investigation were not complied with. For example, while Canada Ports Corporation Police 's investigations can be covered by paragraph 16(1)(a), the prerequisites are the following:

• The police constable must be appointed by a Superior Court Judge whose jurisdiction covers a local port where the Corporation is located;
• the investigation must relate to either:
  • the protection of property under the administration of the Corporation;
  • the protection of persons present on premises under the administration of the Corporation (the Corporation has presently jurisdiction on the following harbours: Halifax, Saint John, Saguenay, Québec, Trois-Rivieres, Montréal and Vancouver)^{Footnote 5}

An omission of any of these factors is enough to make a finding that the records requested were obtained or prepared outside the scope of the legislative authority, and therefore they were not obtained in the course of a 'lawful' investigation for the purpose of the Act and 16(1)(a) would not apply.

c) The lawful investigation related to either:

The detection, prevention or suppression of crime;

• the enforcement of any law of Canada or a province; or
• activities suspected of constituting threats to the security of Canada within the meaning of the Canadian Security Intelligence Service Act.

While the marginal note/heading in the Act suggests section 16 is restricted to law enforcement matters, this is not so. Other than the detection, prevention or suppression of crime, the exemption also relates to activities suspected of constituting threats to the security of Canada, or the enforcement of any law of Canada or a province thus, it is very broad.

A 'law of Canada' is not defined in the Access to Information Act. However, it clearly encompasses all Acts enacted by the Parliament of Canada together with any regulations issued thereunder. As well, the Canadian Bill of Rights makes it clear that the expression also includes any order or rule issued under those Acts or regulations. Thus, it is a very wide term.

Similarly, the term 'threats to the security of Canada' is defined at section 2 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23 as sabotage, espionage, foreign influence activities, etc. that are detrimental to the interests of Canada; or 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 objective within Canada; or activities directed toward undermining by covert unlawful acts, or directed toward or intended ultimately to lead to the destruction or overflow by violence of the constitutionally established system of the Government in Canada. However, it does not include lawful advocacy, protest or dissent, unless carried on in conjunction with any of the above activities.

As mentioned above, the main question you must ask yourself when investigating this exemption is: "under which investigative power was this investigation conducted?" If the Department can't advance any Acts, Regulations, Orders or Rules in force in any part of Canada and under which the investigation was conducted, the exemption cannot be claimed. Generally speaking you would want to see documentation contemporaneous with the investigation which shows the basis under which it was conducted.

d) The records at issue must have come into existence less that 20 years prior to the request:

The exemption only applies to records, or portions of records, that have been in existence for less than 20 years prior to the request. If they are older - the exemption cannot be claimed.

2) Paragraph 16(1)(b):

In order to be exempted from disclosure, the information must meet both criteria:

• The information must relate to investigative techniques; or plans and,
• the techniques or plans must pertain to specific lawful investigations.

a) The information must relate to investigative techniques or plans:

The purpose of this exemption is to preclude access to information about the application of technology to investigative techniques or plans since such revelation would undermine or jeopardize the effectiveness of law enforcement.

The exemption is designed to protect investigative techniques or plans, irrespective of the consequence of disclosure. However, in circumstances where a plan has been put into operation or a technique has been made public, the Department should be able to substantiate why it would exercise its discretion to exempt the requested information - it must be able to show the adverse consequences that would arise if the plan was disclosed.

b) The techniques or plans must pertain to specific lawful investigations:

For the purpose of this paragraph, the term 'investigation' is defined at subsection 16(4) as an investigation that:

• Pertains to the administration or enforcement of an Act of Parliament;
• is authorized by or pursuant to an Act of Parliament; or
• is within a class of investigations specified in the regulations.

Note that contrary to paragraph 16(1)(a), paragraph 16(1)(b) cannot be claimed to protect information obtained or prepared during an investigation authorized under the authority of a provincial statute. The term 'Parliament' is defined at subsection 35(1) of the Interpretation Act^{Footnote 6} as the Parliament of Canada.

Accordingly, in order to be exempted under this provision, the information must either pertain to:

• Techniques or plans relating to the administration of a Federal Act or Regulation; or
• techniques or plans relating to the enforcement of a Federal Act or Regulation.

c) Techniques or plans relating to:

1. Investigations by a Fact Finding Board established by the Department of Transport to investigate air traffic control where 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.
2. Investigations by a Flight Service Station Review Committee established by the Department of Transport to investigate reported occurrences relating to aviation safety where:
   • procedures or actions or a lack thereof;
   • systems failure; or
   • other causes have brought the reliability of the Flight Service Station System into question.
3. Canadian 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.
4. Investigations by or under the authority of the Canadian Forces Fire Marshall for the purpose of determining 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.
5. Investigations by the Special Inquiries Unit of the Inspector General's Branch of the Canadian Penitentiary Service.

3) Paragraph 16(1)(c):

In order to be exempted from disclosure, the information must meet all of the following criteria:

a) Where disclosure could reasonably be expected to:

While there have been only a few Federal Court decisions on the interpretation of this provision, there has been a great deal of jurisprudence dealing with the prejudice portion of the test required under paragraphs 20(1)(c) & (d) which contains the identical wording. Since legislative draftsmen 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 disclosure^{Footnote 7}, 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.^{Footnote 8}

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 itself cause 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.^{Footnote 9} To prove harm, one must be able to trace, track, illustrate, and 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.^{Footnote 10}

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 needs to be given.^{Footnote 11}

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 are 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 established 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.^{Footnote 12} 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.^{Footnote 13} For example, where the information requested is already available elsewhere to the public, there may be need for exemption under this exemption.^{Footnote 14} The party (i.e., even if it's us) alleging that the information is publicly available, 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.^{Footnote 15}
• Press coverage: Press coverage of a confidential record is relevant to the issue of expectation of probable harm from its disclosure.^{Footnote 16} 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 the media would misinterpret the requested information and would cause prejudice to the third party. This argument has been found purely speculative.^{Footnote 17}
• Time: Evidence of the period of time between the date of the confidential record and its disclosure is relevant. In some cases, the older the record, the less likely an injury could occur.^{Footnote 18}
• 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.^{Footnote 19} 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.

b) Injury to the enforcement of any law of Canada or a province / Injury to the conduct of lawful investigations:

i) Enforcement of any law of Canada or a province:

A 'law of Canada' is not defined in the Access to Information Act. However, it clearly encompasses all Acts enacted by the Parliament of Canada together with any regulations issued thereunder. As well, the Canadian Bill of Rights makes it clear that the expression also includes any order or rule issued under those Acts or regulations. Thus, it is a very wide term.

Moreover, while the scope of the provision, at first blush, might appear to be restricted to law enforcement matters, this is not so. By virtue of subsection 16(4), the concept of an investigation has been expanded to include any investigation that pertains to the administration or enforcement of an Act of Parliament or is authorized by or pursuant an Act of Parliament.

Thus, although there has been no jurisprudence to date on the scope or applications of paragraph 16(1)(c), it is by no means restricted to law enforcement. It would appear that it is designed to protect any information the disclosure of which could reasonably be expected to be injurious to the prevention or detection of activities contrary to an Act of Parliament, or the enforcement of any Act of Parliament or any order, rule or regulation issued thereunder. It is important to note that the enabling legislation does not need to specifically provide for an investigation in order for this provision to apply.

ii) Conduct of lawful investigations:

This exemption can be claimed in situations where paragraph 16(1)(a) does not apply, provided that the reasonable expectation of harm requirement has been met. This could be the case, for example, where information had been obtained or prepared during the course of a lawful investigation but that investigative body was not one of those specified in the regulations. For explanations on the meaning of the term 'lawful investigations', please refer to the explanation on paragraph 16(1)(a).

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 this 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) (paragrah16(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) (paragraph16(1)(c)) was not authorized "simply because disclosure could have a chilling effect on the investigative process in general." The records at issue in this case were generated in the course of a security investigation. The 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 on 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."

c) Without restricting the generality of the foregoing:

Although the paragraph is followed by only three examples, the legislator has expressly stated that they do not restrict in any way the application of the exemption. The three examples state that the exemption could cover information relating to the existence or nature of a particular investigation that would reveal the identity of a confidential source of information; or, that was obtained or prepared in the course of an investigation.

While these examples do not restrict in any way the generality of the exemption, it is however subject to the ejustem generis rule of interpretation. This rule is designed to assist in ascertaining the true intention of Parliament and operates in such a way that any analogy or extrapolation of the descriptive paragraph must be restricted to the specific meaning found in this paragraph. In other words, if the department wants to claim paragraph 16(1)(c) in such a way that does not clearly fall within the three illustrative sub-paragraphs, it must be a situation where the disclosure of the information will clearly cause prejudice in some identified way to the conduct of an investigation or the enforcement of any law of Canada or a province - i.e., it must relate to a specific investigation or a category of investigations or a particular law.

4) Paragraph 16(1)(d):

a) Where disclosure could reasonably be expected:

For an explanation of the meaning of this expression please refer to paragraph 16(1)(c).

b) Injurious to the security of penal institutions:

This provision permits the exemption records where their disclosure would reasonably be expected to be injurious to the security of penal institutions. The term 'security' in this subsection means that the primary purpose of keeping prisoners in their restricted environment is not sick or has not been compromised. The security of a building could include the safety of its inhabitants or occupants including the staff who work there and anyone who enters for business or visiting purposes, but this is primarily a section 17 situation. It could also be the security of a structure which adjoins or connects buildings. For example, information which would facilitate escapes of inmates or hostage taking could fall under this exemption.

The term 'penal institution' would include all types of institutions in Canada, whether Federal or Provincial, where convicted criminals are incarcerated:

• correctional institutions such as jails, detention centres and correctional centres;
• police cells and lock-ups;
• psychiatric facilities where patients are involuntarily committed to psychiatric institutions under Lieutenant-governor's warrant or a Court Ordered Psychiatric Assessment;
• federal penitentiaries;
• facilities for the detention of young offenders, such as open and secure custody facilities and temporary detention facilities.

5) Subsection 16(2):

a) Where disclosure could reasonably be expected to:

For an explanation of the meaning of this expression please see paragraph 16(1)(c).

b) Facilitate the commission of an offence:

This paragraph is followed by three examples of which the legislator has expressly stated that they do not restrict in any way the application of the exemption. The three examples state that the exemption could cover information relating to criminal methods or techniques; technical information on weapons or potential weapons; or the vulnerability of particular buildings or other structures or systems including computer or communications systems.

While these examples do not restrict in any way the generality of the exemption, it is however subject to the ajustem generis rule of interpretation. This rule is designed to assist in ascertaining the true intention of Parliament and operates in such a way that any analogy or extrapolation of the description must be restricted to the specific meaning found in this paragraph. In other words, if the department wants to claim subsection 16(2) in such a way that does not clearly fall within the three illustrated paragraphs, it must be a situation where the information will cause prejudice in facilitating the commission of an offence. Examples of these could be sabotage, forgery, hijacking, interception of communications, kidnapping, hostage-taking, fraud, spying, possession of explosives.

6) Subsection 16(3):

a) Obtained or prepared by the Royal Canadian Mounted Police while performing policing services for a province or a municipality:

The task for an investigator when determining whether this part of the test is met is to determine:

• the timeframe during which the records at issue were obtained or prepared;
• whether there was a valid arrangement between the RCMP and the province/municipality at the time;
• whether the purpose for which the records were obtained were consistent with the arrangement under 'b'; and, whether the arrangement between the RCMP and the province/municipality is still in force, has been revoked, terminated or rescinded.

From time to time we find arrangements between the RCMP and a province stating that:

• "Information collected or obtained by the RCMP at anytime, either past, present or future, during the performance of contract policing services... not be disclosed under the Federal Access to Information Act."

In our view, it is not possible for the RCMP to make commitments to a province/municipality not to disclose information obtained during a policing agreement under the Access to Information Act for records existing before the making of that promise. In our view, subsection 16(3) only applies if there was a valid agreement in effect at the time these services were rendered, not to disclose information obtained by the RCMP during the course of rendering those policing services.

From time to time, a province/municipality could rescind or terminate the policing agreement. When a party merely terminates an agreement, the effect is that the confidentiality agreement persists with respect to records obtained or created while it was in effect. However, when a party rescinds an agreement the effect is that their contract is declared void and is put to an end as though it had never existed. Thus records obtained or prepared while such an agreement was in effect would become accessible once the agreement was rescinded. At the present time, two provinces have rescinded their agreements with the RCMP. They are British Columbia; and Nova Scotia.

b) Arrangements made under Section 20 of the Royal Canadian Mounted Police Act:

Section 20 of the RCMP Act reads as follows:

1. The Minister may, with the approval of the Governor in Council, enter into an arrangement with the government of any province for the use or employment of the Force, or any portion thereof, in aiding the administration of justice in the province and in carrying into effect the laws in force therein.
2. The Minister may, with the approval of the Governor in Council and the lieutenant governor in council of any province, enter into an arrangement with any municipality in the province for the use or employment of the Force, or any portion thereof, in aiding the administration of justice in the municipality and in carrying into effect the laws in force therein.
3. The Minister may, with the approval of the Treasury Board, in any arrangement made under subsection (1) and (2) agree on and determine the amount of money to be paid by the province or municipality for the services of the Force.
4. There may be included in any arrangement made under subsection (1) and (2) provision for the taking over by the Force of officers and other members of any provincial or municipal police force.
5. The Minister shall cause to be laid before Parliament a copy of every arrangement made under subsection (1) or (2) within fifteen days after it is made or, if Parliament is not then sitting, on any of the first fifteen days next thereafter that either House of Parliament is sitting. R.S., c. R-9 s.^{Footnote 20}

Accordingly, while the RCMP may enter into an arrangement with a province/municipality in aiding the administration of justice or carrying into effect the laws in force in the province/municipality, it must first receive the approval of the Governor in Council and Lieutenant Governor in Council. Further, a copy of each arrangement made must be laid down before Parliament. Accordingly, if you have any doubt as to whether an arrangement between the RCMP and the province/municipality is valid, look whether this factor has been met.

Case Law

1) Federal:

Paragraph 16(1)(b)

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

• The Federal Court of Appeal overturned the finding of the Trial Division that certain records in personal information banks pertaining to security investigation were exempt pursuant to paragraph 22(1)(a) of the Privacy Act (16(1)(a) Access to Information Act), on grounds that the Trial Judge had not reviewed the exercise of discretion by the institution head under the paragraph 22(1)(a) exemption. In the Ruby case, the government institution had invoked subsection 16(2) of the Privacy Act, the equivalent of subsection 10(2) Access to Information Act, to refuse to confirm or deny the existence of records responsive to the request. The Court noted that, in these and similar circumstances under the Act where the requestor has no access to the records in question, and no knowledge of their contents of the records, it would be unfair to impose an evidentiary burden on the requestor to show that the head's discretion had not been exercised properly. The Court held that a requestor need not show reasons or proof that the institution head had exercised his/her discretion improperly, and that the onus was instead on the institution to show 1) that the discretion to refuse disclosure was in fact exercised, i.e., that the head had considered whether to refuse or allow disclosure of the information once it was determined the records fell within the scope of the exemption, and 2) that it was exercised in accordance with proper principles.

Rubin v. Canada (Solicitor General), (February 6, 1986) (T-936-85) (F.C.T.D.)

• The applicant was provided with a full text of correspondence between the B.C. Ministry of Forest and the Solicitor General. Part of the Schedule attached to the record was deleted on the grounds that it would disclose investigative techniques (which are covered by paragraph 16(1)(b) of the Act). In reviewing the exemption, the Court concluded that the exemption claimed by the department fulfilled the requirement of being necessary and specific as those words are used in Section 2 of the Act. As well, on the basis of the affidavit evidence (filed in confidence and sealed) it held that the information met the test of paragraph 16(1)(b).

Paragraph 16(1)(c)

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

• 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 this 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." The records at issue in this case were generated in the course of a security investigation. The 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."

  In Ruby, the Court of Appeal also stated that the institution head has the burden of proof in showing that his or her discretion to refuse disclosure under the section 22 Privacy Act (section 16 Access to Information Act) was properly exercised. In the Ruby case, the government institution had invoked subsection 16(2) of the Privacy Act, the equivalent of subsection 10(2) Access to Information Act, to refuse to confirm or deny the existence of records responsive to the request. The Court noted that, in these and similar circumstances under the Act where the requestor has no access to the records in question, and no knowledge of their contents of the records, it would be unfair to impose an evidentiary burden on the requestor to show that the head's discretion had not been exercised properly. The Court held that a requestor need not show reasons or proof that the institution head had exercised his/her discretion improperly, and that the onus was instead on the institution to show 1) that the discretion to refuse disclosure was in fact exercised, i.e., that the head had considered whether to refuse or allow disclosure of the information once it was determined the records fell within the scope of the exemption, and 2) that it was exercised in accordance with proper principles.

Rubin v. Canada (Minister of Transport), [1998] 2 F.C. 430 (F.C.A.)

• The applicant requested access to an airline's Post Accident Safety Review report from Transport Canada. Paragraph 16(1)(c), was applied to exempt the records from disclosure based on the chilling effect disclosure would have on other investigations of this kind. The Federal Court of Appeal over-ruled the Trial Division, which had found a reasonable prospect of probable harm to the conduct of future investigations, as follows:

  In my opinion, where the trial judge went wrong in his interpretation of s. 16(1)(c) was when he failed to consider the stated purpose of the Act as set out in s. 2(1) when defining the ambit of s. 16(1)(c). Indeed, to allow his judgment to stand, would protect from public review most non-regulatory investigations - past, present and future--on the nebulous grounds that to disclose this information might have a chilling effect on future investigation. Given that the purpose of the Act is to broaden the public's access to government information, this cannot have been Parliament's intent. Indeed, in my opinion, had Parliament wished to create such a broad exemption that would protect from public scrutiny all future Post-Accident Safety Reviews it would have done so in a manner similar to that found under s. 24 of the Act.

  The Federal Court of Appeal also held that paragraph 16(1)(c), which refers to the "conduct of lawful investigations/déroulement d'enquetes licites" applies to current or specifically contemplated investigations, not to investigations or the investigative process in general. This means that injury to the conduct of a particular investigation must be shown for the exemption to apply. The Court held that an institution "cannot refuse to disclose information under paragraph 16(1)(c) on the basis that to disclose would have a chilling effect on future investigations" (at para. 33, Emphasis in the original).

Canada (Information Commissioner) v. Canada (Immigration and Refugee Board), (1997), 140 F.T.R. 140 (F.C.T.D.)

• The Court held that a promise of confidentiality given to interviewed employees by an investigator investigating a leak of information from the institution could not of themselves override specific provisions of the Privacy and Access to Information Acts.

The Court also held that the reasonable expectation of probable harm set out in paragraph 16(1)(c) implies "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 investigations. (at paras. 40-45)

The Court found that the evidence supporting injury to the conduct of employment related investigations were speculative and unrelated to any specific investigation. The Court found that the evidence indicated "a well-intentioned attempt to avoid risk rather than a reasonable expectation of probable harm from disclosure" in finding that the institution did not meet the injury test.

Lavigne v. Canada (Commissioner of Official Languages,) (1998), 157 F.T.R. 15 (F.C.T.D.)

• The Court ordered disclosure of personal information gathered about the applicant in the course of an investigation under the Official Languages Act. The Court found that the injury claim under paragraph 16(1)(c)/s. 22(1)(b) Privacy Act, which was based on the promise of confidentiality given during the investigation, did not meet the reasonable expectation of probable harm test, as follows:

  The respondent has not established that there is a reasonable expectation of probable harm to the conduct of its investigation from such a disclosure. Witnesses to investigations ought to be informed in advance that their testimony about an individual may be disclosed to him. They will be very careful what they say. Proper circumspection will protect the integrity of the investigative process and the right of the individual concerned to be fully informed of the case against him. Promises of confidentiality are not essential as the respondent has the power to issue subpoenas, if necessary. The "personal information" to which the applicant is entitled is defined under section 3 of the Privacy Act, that is information about himself that is recorded in any form and included (under subsection 3(g)) views or opinions of other individuals about him. Under the Privacy Act, the applicant is not entitled to information other than "personal information". (at para. 36)

Paragraph 16(1)(c)

Muller v. Minister of Communications et al., (January 9, 1990), (T-484-88) (T.D.)

• The applicant sought to obtain under the Privacy Act the reasons why he had been discharged from the Army in 1960. The record at issue in this case is a report dated November 18, 1964. The report was exempted from disclosure by the department under section 22(1)(b) of the Privacy Act - i.e., the equivalent of 16(1)(c) under our Act. The department argued that since the report was made when responding to a Ministerial enquiry pursuant to the National Defence Act, it was a lawful investigation. Mr. Justice Collier answered in these terms:

  "The submission is, in my view, much too broad an interpretation to put paragraph 22(3)(a). Carried to its logical extreme, it would permit to a Minister, under the guise of administration, to investigate almost any person or any situation he thought necessary.

  The investigation here, in my mind, had nothing to do with the administration of the National Defence Act. It was carried out by the military without lawful authorization."

  That decision was subsequently reversed by the Court of Appeal:

  "We are all of the opinion that the learned trial judge erred in basing his conclusion on a finding that the 1964 investigation had not been undertaken on behalf of the Minister of National Defence in the administration of the National Defence Act. The Respondent had written the Department asking for the reasons for his discharge from the Armed Forces in 1960 and an enquiry to permit a response was entirely proper."

  The Court nevertheless ordered the report to be disclosed on the basis that the Department did not meet the burden of proof in demonstrating that the disclosure of the requested report was reasonably expected to be injurious to the enforcement of any law and the conduct of a lawful investigation.

Rubin v. Canada (Clerk of the Privy Council), [1993] 2 F.C. 391 [T.D.]

• In this case, the applicant requested from the Clerk of the Privy Council any correspondence/ communications between PCO and the Office of the Information Commissioner recording a complaint made by any other individual. The department claims Section 35 of the Act to refuse communication and, following investigation, the Information Commissioner also indicated that paragraph 16(1)(c) was "a proper means for withholding disclosure". The Court refused the Commissioner's argument that paragraph 16(1)(c) would apply to the records at issue. According to the Court, 16(1)(c) is not a procedural provision that justifies confidentiality in respect of the investigative process of the Information Commissioner. According to the Court, to interpret paragraph 16(1)(c) as an all encompassing procedural exemption justifying confidentiality in all cases where representations are sought would, to all intent and purposes, render much of Section 35 redundant.20

Subsection 16(3)

Thorsteinson v. Queen (October 31, 1994) (T-1040-93)

• In this case, the R.C.M.P. had claimed subsection 22(2) of the Privacy Act to exempt information obtained or prepared by the R.C.M.P. while performing policing services for British Columbia. One interesting aspect of the case is that the Crown withdrew its claim of subsection 22 (2) because the Province of British Columbia rescinded their agreement. It would therefore appear that the R.C.M.P. agrees with an interpretation that if an agreement is rescinded, the records obtained or prepared under the agreement are no longer subject to 16(3).

Subsection 16(4)

Reyes v. Canada (Secretary of State), [December 21, 1984] (T-392-84) (F.C.T.D.)

• In this case, the applicant sought access to personal information about himself relating to his application for Canadian Citizenship. The department exempted some information pursuant to paragraph 22(1)(b) of the Privacy Act. The Court found that the information related to the existence or nature of a particular investigation since, in accordance with the provision of subsection 3(6) of the Citizenship Regulation, the Under-Secretary of State has a statutory obligation to conduct routine investigations. These investigations are in respect to citizenship applications for the purpose of determining whether the Applicant meets the requirements of the Citizenship Act and Regulations. Accordingly, the investigation pertains to the administration or enforcement of an Act of Parliament and is authorized by or pursuant to an Act of Parliament and, therefore, falls within the definition in paragraphs 22(3)(a) & (b).

2) Ontario:

Paragraph 16(1)(a)

(Orders #157, 98, 170, 182, M-46, P-351, P-411, M-315)

• An internal investigation of an employee for breach of contract is done by the Ontario Securities Commission as employer, and not as a regulatory agency. In order for the investigation to be characterized as 'law enforcement', it must be conducted with a view to providing a court or tribunal with the facts to determine an individual's rights.

(Order #P-480)

• The Loan and Trust Corporations Act (the LTCA) establishes the Ministry of Finance, through the Minister, the Superintendent of Deposit Institutions and the Director, as the agency responsible for the regulation of registered trust and loan companies of Ontario. The Act provides for examinations, audits and inspections of registered corporations and enforcement. In this case, a private audit firm was formally retained by the ministry. The Commission ruled that this exemption applied even though the records were prepared by an outside consultant. Thus, the ministry had the authority to obtain the private audit and to require the full co-operation of the corporation in the process.

(Order #P-548)

• The Toronto Stock Exchange (TSE) acted as the agent for the Ontario Securities Commission (OSC) in investigating a complaint made against the requester in this case. The OSC is an agency that has the function of enforcing and regulating compliance with the law and the records prepared by the TSE during the course of such an investigation satisfied the second and third parts of the test in this exemption.

Paragraph 16(1)(b)

(Orders #M-202, P650)

• 'Intelligence' is defined as information gathered by a law enforcement agency in a covert manner with respect to ongoing efforts devoted to the detection and prosecution of crime or the prevention of possible violation of law, and is distinct from information that is compiled and identifiable as part of the investigation of a specific occurrence. In this case, the Commission was satisfied that the police were collecting intelligence information in respect of the records requested. The records contained information about individuals other than the target of the investigation.

(Order #M-146)

• An affidavit to obtain a search warrant and a search warrant in respect of a police investigation are not exempt under this provision.

Paragraph 16(1)(c)

(Orders #P-285, P-316, P-403, P-567, M-258, M-302)

• The use of the word 'interfere' contemplates that the particular investigation or law enforcement matter is still ongoing.

(Order #P-221)

• The fact that an investigation is ongoing is not in itself sufficient to satisfy this exemption. The institution bears onus of providing evidence to substantiate the reasonable likelihood of the expected harms.

(Order #M-22)

• The nature of the record and the length of time the investigation has been inactive, are factors in determining the applicability of this exemption.

(Order #P-285)

• The provision applied where an offence under the Police Services Act was prosecuted and where the appeal process provided for in the Act was not completed.

(Order #P-306)

• Pre-trial disclosure of a Crown brief that contained occurrence reports and statements of witnesses would be covered by this provision.

(Orders #89, 178, 208, P-221, P-225)

• Investigations into complaints under the Ontario Human Rights Code are 'law enforcement' matters. Untimely disclosure of records that would identify complainants and respondents and reveal opinions and advice of staff would "interfere with law enforcement matters" and are therefore exempt.

(Order #P-482)

• Disclosure of records dealing with the statements of witnesses regarding the actions of members of the Ontario Provincial Police Tactical Response Unit (TRU Team), who were found guilty of Neglect of Duty under the Code of Offences contained in the Police Services Act, Regulation 927, are exempt under this provision. The officers may appeal the penalty or sanction imposed to the Ontario Civilian Commission on Police Services. Under s. 63(2) of the Police Services Act, the Commission may receive additional evidence. The Commission may confirm, alter or revoke the decision or may require the matter be re-heard. Because a hearing could commence at a time where fresh evidence may be provided, the disclosure of the records should be delayed until the time for appeal has elapsed.

(Order #178, P-507)

• Disclosure of records to a party with an interest in an investigation must be viewed as disclosure to the public generally. Premature and unlimited access by the public to information about an ongoing Ontario Human Rights Commission investigation could interfere with the investigation.

(Order #P-507)

• The solicitor for a municipality that was the subject of a complaint to the Ontario Human Rights Commission was not entitled to access records of the ongoing investigation. Disclosure under Ontario's freedom of information and privacy legislation is tantamount to disclosure to the public at large. Even though the municipality would not use the information to interfere with witnesses or influence the direction of the investigation, this provision applied and access was denied.

(Order #P-338)

• Investigations under the Liquor Licence Act are not completed until the Liquor Licence Board hearing is finalized. Therefore, even when a hearing date is set, this provision may apply if the institution provides sufficient evidence that premature disclosure could interfere with the investigation and prosecution process.

(Orders #178, P-253, P-258, P-330)

• Proceedings of a board of inquiry under the Ontario Human Rights Code would constitute a 'law enforcement proceeding.' Investigations by the Human Rights Commission must be allowed to continue without interference. Such investigations cannot be considered complete until either a board of inquiry has been appointed or the reconsideration process has been completed. Disclosure of records to the public prior to the completion of an investigation could interfere with the investigation. As such, the records are exempt.

(Order #M-263)

• Where a criminal investigation was not completed this exemption applied.

(Order #M-268)

• In this case, the Commission ruled that this exemption applied to records concerning complaints made regarding the septic tank system in a local and documents related to an appeal before the Environmental Appeal Board. While the board had issued its order, the Health Unit was in the process of undertaking steps to address the non-compliance. As a result, the law enforcement matter was ongoing.

(Order #P-775)

• Where a police investigation is inactive for many years, this exemption does not apply. In this case, the requester sought records about himself prepared by the Ontario Provincial Police and provided to the Ontario Criminal Code Review Board at a hearing in 1985. The Commission found that disclosure of the records could not reasonably be expected to interfere with an investigation since the investigation could not reasonably be said to be ongoing.

(Order #P-547)

• Records regarding an investigation that was completed were exempt under this provision because the trial had yet to take place and the matter was before the court. The disclosure of information that directly relates to the prosecution of an offence prior to the termination of the trial could reasonably be expected to interfere with the preparation or conduct of that proceeding.

(Order M-4, M-10, M-16, M-120, M-31, M-36, M-43, M-70, M-81, P-302, P-312, M-147, M-244, M-246)

• A complaint form containing the name, telephone number and address of the complainant in respect of a by-law contravention is exempt under ss. (1)(d) because the complainant believed that the information was provided in confidence and the institution's practices and policies supported this.

(Order #139, P-304, P-405, P-478, M-147, M-174, M-202)

• There must be evidence of the circumstances in which the information was provided to establish whether it is 'confidential'.

(Order #P-478)

• Individuals who provide information concerning alleged wrongdoing of bailiffs and others who are regulated by the Ministry of Consumer and Commercial Relations do so on the basis of confidentiality. Therefore, information that may reveal the identity of these individuals who have supplied information in confidence - such as names and addresses - is exempt under this provision.

(Order #P-588)

• An occurrence report submitted by a jail employee to the Ministry of Corrections superintendent which related to the conduct of an employee was not exempt. While the Ministry of the Solicitor General and Correctional Services has a law enforcement function, the matter that gave rise to the record in this case was not one that could be characterized as 'law enforcement'. The matters discussed in the report did not fall within the definition 'law enforcement' and the ministry was not enforcing or regulating compliance with any law regarding the employee's conduct.

Subsection 16(2)

(Order #P-324)

• Records that contain strategies, procedures and specific drug industry investigations targets, as well as other courses of action, that if disclosed would reveal techniques and procedures currently in use or likely to be used in law enforcement, may be exempted under this section.

(Order #170, 200, M-22, M-202, P-752)

• The successful application of this exemption requires that the disclosure of the technique or procedure to the public would hinder or compromise its effective utilization. If the technique is generally known, or such that a lay person would expect, reliance on this exemption would not be successful.

(Order #169, P-252, P-557)

• Non-disclosure of information concerning the locations where animal research is conducted under this provision is not based on the identity of the requester's organization or its activities, but rather on the principle that disclosure under the Act must be viewed as disclosure to the public generally. If disclosed, this information could be available to all of the individuals or groups who are involved in the animal rights movement, including those who may elect to utilize acts of vandalism and property damage to promote their cause. Published articles concerning violent acts advocated by animal rights groups were sufficient evidence to establish that the disclosure of records containing information about facilities in which animal research was conducted would endanger security.

(Order #P-217)

• A request for the floor plans of various government buildings was properly denied under ss.(1)(i). Disclosure of these records could seriously compromise security.

(Order #P-603)

• The Commission did not accept that audit reviews of a computer system, developed to monitor claims and payroll, contained information that was exempt under this provision. The audit reviews did not comment on the function of the system itself and therefore, any link between the disclosure of the reports and possible fraud was not reasonable.

(Order #P-649)

• Records containing an inventory of microcomputer equipment and maintenance agreements, regarding minicomputer equipment and electronic mail messages, and regarding facsimile machines that contain the make model serial number and location of the equipment, were not accessible as a result of this exemption. The Commission was satisfied that the security of the computer systems and facsimiles could be infiltrated with the result that the systems could be disrupted.

(Order #P-756)

• Records regarding names and Internet addresses for all computer network systems operated by several ministries were exempt under this provision. The items consisted of the data stored on Ontario government computer. The Commission held that this information required protection since much of it is sensitive and deals with personal information of members of the public. The system, established for the protection of this data, is the Ontario government's Internet gateway, which allows outside users access to the public section of the government's network but not the private section.

(Order #M-329)

• Information related to an alleged computer system transmission failure on a particular date, a listing of frequencies used by the police for data transmission, speed of modems, stop bit, and parity, and all information relating the use of computer services available in police vehicles kept by a police services board, were exempt under these provisions.

(Order #187)

• The term 'facilitate' means to make easier or less difficult. The exemption applies to records concerning a maximum-security institution, including construction plans, drawings for new windows and material to be used on construction such as locks and bars. The records in this regard need not be extremely detailed.

(Order #P-597)

• In this case, a hand-written diagram of the search area of a maximum-security detention centre was not exempt under this provision. The Commission ruled that the diagram was not sufficiently detailed and that its disclosure would not reasonably compromise the security of the facility or facilitate the escape from custody of an inmate of the facility. Mere possibility of harm is not sufficient.

(Order #77)

• Release of an in-house telephone directory, revealing names and phone numbers of staff and various departments, which are not normally available to the public, was exempt. It would jeopardize the security of the mental health centres, which are centres for lawful detention.

(Order #P-657)

• This exemption was upheld in respect of records created as a result of a law enforcement investigation into an incident that occurred in a correctional facility. The institution stated that the disclosure would reveal policies and procedures in place at the correctional facility, relating to inmate movement, contraband and searches. The information was not generally available to the public for security reasons.

(Order #P-395)

• The site plan of a correction facility containing the grounds and buildings if disclosed could compromise security and was therefore exempt under these provisions.

(Order #P-686)

• These provisions did not apply to directives or memorandums issued to correctional facilities that outlined the administrative procedures to follow relating to the discovery of contraband, such as who is to be notified and how records ought to be maintained and kept. The records did not deal with procedures to deal with the incident itself.

(Order #M-199)

• The disclosure of codes used by the police, which are used to ensure that information is passed efficiently from one police source to another and that anyone intercepting the message would be unable to determine the content or importance of the message, may not be exempt under this provision. The Commission noted that in respect of this particular code, the police had failed to establish a clear and direct linkage between disclosure of the information and the harm alleged in this provision.

(Order #M-202)

• Police records regarding a chemical formula for manufacturing a well-known narcotic and the construction of explosive devices were exempted under this provision.

(Order #M-267)

• In this case, the Commission was not satisfied that the disclosure of records referred to a police radio frequency would be exempt under this provision.

(Order #M-393)

• A message code (sometimes referred to as 'ten-code') used by police officers in their communications with one another was exempt under this provision. The Commission found that disclosure of these codes could place the police officers in potentially dangerous situations or could facilitate the perpetration of unlawful acts.

 

 

Table of Authorities

Disclosure could reasonably be expected

Canada

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.):

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).

Paragraph (16)(1)(a)

Muller v. Minister of Communications et al., (January 9, 1990), (T-484-88) (T.D.)

Paragraph 16(1)(b)

Rubin v. Canada (Solicitor General), (February 6, 1986) (T-936-85) (F.C.T.D.)

Paragraph 16(1)(c)

Rubin v. Canada (Clerk of the Privy Council), [1993] 2 F.C. 391 [T.D.] Rubin v. Canada (Minister of Transport), [1998] 2 F.C. 430 (F.C.A.) Canada (Information Commissioner) v. Canada (Immigration and Refugee Board) (1997), 140 (F.T.R. 140 (F.C.T.D.) Lavigne v. Canada (Commissioner of Official Languages) (1998), 157 F.T.R. 15 (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.)

Subsection 16(4)

Reyes v. Canada (Secretary of State), [December 21, 1984] (T-392-84) (F.C.T.D.) Thorsteinson v. Queen (October 31, 1994) (T-1040-93)

Endnotes

Footnote 1

SOR/83-507.

Return to footnote 1 referrer

Footnote 2

See debates of June 25, 26 and 30, 1981; (Issues No. 45, 46 & 47).

Return to footnote 2 referrer

Footnote 3

The Concise Oxford Dictionary, 8th Edition, defines the term 'lawful' as: "conforming with, permitted by, or recognized by law; not illegal or illegitimate".

Return to footnote 3 referrer

Footnote 4

See for example this statement of Mr. Francis Fox found at issue #47, page 13

"What he is saying is, yes. What is being said is that our advice is that there are some classes of investigations that are done that are administrative investigations, I gather, which are not specifically authorized by an Act of Parliament. I assume that these must happen rather often. We do not always have investigations under the Inquiries Act. The other side of the coin, the one that you are arguing, is that you can find some general power somewhere in some statute creating the department giving you powers to investigate. But our advice from the various departments at the moment is that there is, indeed, a class of investigation that should be specified in the regulations, because it is not clear that these investigations were done pursuant to the enforcement or the administration of an Act of Parliament."

Return to footnote 4 referrer

Footnote 5

See sections 22 and 32 of the Canada Ports Corporation Act, R.S.C. 1985, c.C-9.

Return to footnote 5 referrer

Footnote 6

R.S.C. 1985, c. I-21.

Return to footnote 6 referrer

Footnote 7

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.

Return to footnote 7 referrer

Footnote 8

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.)

Return to footnote 8 referrer

Footnote 9

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

Return to footnote 9 referrer

Footnote 10

Ibid.

Return to footnote 10 referrer

Footnote 11

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

Return to footnote 11 referrer

Footnote 12

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

Return to footnote 12 referrer

Footnote 13

Ibid.

Return to footnote 13 referrer

Footnote 14

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

Return to footnote 14 referrer

Footnote 15

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, 610 F.2d at 831-32.

Return to footnote 15 referrer

Footnote 16

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.

Return to footnote 16 referrer

Footnote 17

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.

Return to footnote 17 referrer

Footnote 18

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

Return to footnote 18 referrer

Footnote 19

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

Return to footnote 19 referrer

Footnote 20

This decision was appealed in Canada (Clerk of the Privy Council) v. Rubin (14 March 1994), (A-245-93)(F.C.A.) However, the Federal Court of Appeal did not make any ruling on paragraph 16(1)(c). This case is now under appeal at the Supreme Court of Canada.

Return to footnote 20 referrer