Section 17: Safety of individuals

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.

Section 17 is a discretionary injury exemption. Applying a discretionary exemption 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. Secondly, he/she must exercise his/her discretion whether to exempt or disclose the information.

When reviewing the application of a discretionary exemption like section 17, 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.^{Footnote 1}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 Test

What are the tests to be applied in determining whether information in a record may be exempted under section 17? At the present time, there has been no decision 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 will summarize the Office's interpretation of that provision.

Since we are dealing with a prejudice exemption, there are really two tests to be met. Firstly, what constitutes a reasonable expectation of harm for the purpose of prejudice exemptions generally and what is the meaning of a 'reasonable expectation of harm' test in a personal safety situation. Secondly, does the reasonable expectation of harm constitute a threat to the safety of individuals.

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 jurisprudence dealing with the prejudice portion of the test required under paragraphs 20(1)(c) & (d) which contains the same wording.

It should be noted that courts interpreting the parallel provisions of the Ontario Act have held that harm to an individual under [section 17/Ontario FOIA equivalent] need not be "probable" although it must be reasonable. The Court noted that the injury criteria developed in the Canada Packers case was developed in a case where personal safety was not an issue, and was too stringent in light of the purpose of the section 17 exemption. Ontario (Minister of Labour) v. Holly Big Canoe, (2 December 1999, unreported, Ontario C.A.). The Court set out the injury test in relation to Ontario is section 17 equivalent follows:

Harm to an individual need not be probable for a government institution to successfully rely on the exemption provisions in s. 14(1)(e) and 20 of the FOI. The probable harm test was developed in a context where personal safety was not in issue [Canada Packers].

The expectation of harm must be reasonable, but it need not be probable. … Similarly [to s.14(1)(e)], s. 20 [section 17 Access to Information Act] calls for a demonstration that disclosure could reasonably be expected to seriously threaten the safety or health of an individual, as opposed to there being a groundless or exaggerated expectation of threat to safety. Introducing the element of probability in this assessment is not appropriate considering the interests that are at stake, particularly the very significant interest of bodily integrity. It is difficult, if not impossible, to establish as a matter of probabilities that a person's life or safety will be endangered by the release of a potentially inflammatory record. Where there is a reasonable basis for believing that a person's safety will be endangered by disclosing a record, the holder of that record properly invokes ss. 14(1)(e) or 20 to refuse disclosure.

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.^{Footnote 2}

What you want is a clear, logical and 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 3} 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.^{Footnote 4} For example, where the information requested is already available elsewhere to the public, there may be need for exemption under this exemption.^{Footnote 5} 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.^{Footnote 6}
• Press coverage: Press coverage of a confidential record is relevant to the issue of expectation of probable harm from its disclosure.^{Footnote 7} 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.^{Footnote 8}
• Time: Evidence of the period of time between the date of the confidential record and its disclosure is relevant.^{Footnote 9} 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.^{Footnote 10} 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) Threaten the safety of individuals:

Once you are satisfied that disclosure of the requested information might well result in a reasonable expectation of harm, the second step is to determine whether that harm constitutes a threat to the personal safety of individuals.

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 'threaten' and 'safety' is defined as follows in the Concise Oxford Dictionary, 8th ed. (Oxford University Press, 1991):

• Threaten: "1. Make a threat or threats against. 2. be a sign or indication of (something undesirable)...."
• Threat: "1b. ... a menace of bodily hurt or injury, such as may restrain a person's freedom of action...3. a person or thing as a likely cause of harm, etc."
• Safety: "1. The condition of being safe; freedom from danger or risks."

Case law from other jurisdictions can also help us assess the scope of this exemption. In the United States, exemption 7(f), 5 U.S.C. @ 552(b)(7)(f), justifies withholding of law enforcement investigatory records if disclosure "could reasonably be expected to endanger the life or physical safety of any individual." But under the U.S. Law, the records must be law enforcement investigatory records. Section 17 of the Act does not make this a requirement. The records may be those under the control of any government institution, and it does not matter where the records originated.

It would appear from the U.S. jurisprudence that certain specific factors may be taken into consideration when determining whether a reasonable expectation of harm to an individual would result from disclosure. These are:

c) Nature of the requestor:

• Mental health: Where requestor has a history of mental or emotional difficulties and that disclosure of the information could worsen or aggravate his/her condition to the point that he she could harm someone.^{Footnote 11}
• Violent behaviour: Where requestor has a history of violent behaviour, disclosure of the identity of informants who assisted the government in its case against the requestor could endanger the safety of the informants.^{Footnote 12}

It is fair then to look at the probable effect of disclosure from the perspective of the requestor - i.e., what use might this specific requestor likely make of the requested information? What, in view of what is known about the requestor, might the requestor do to him/herself or someone else if the information is disclosed?

d) Nature of other individuals:

• Nature of job: Individuals performing certain jobs can be subject to an enhanced danger when their identity is revealed.^{Footnote 13}
• Unidentified individuals: In some cases, the risk to the public arising from the disclosure of the requested information is so obvious that it is not necessary in order to exempt the requested information or to clearly identify the individuals whose safety would be threatened.^{Footnote 14}

Equally, it is fair to look at the potential effect that disclosure might have on other individuals if the information was disclosed. Also, where the information requested is already available elsewhere to the public, there may be no need for exemption under section 17 of the Act.

The exemption permits a government institution to refuse access to information the disclosure of which "could reasonably be expected to threaten the safety of individuals". While there could be exceptions, physical safety is the normal interpretation to be given to "safety of an individual".

The use of the plural, 'individuals' does not mean that the safety of at least two individuals must be threatened before the exception will apply. This would lead to illogical results. The real intent of the legislator can be found in this statement of Mr. Francis Fox:

• "I suppose the clause is there and it is intended to ensure that information, the disclosure of which could physically endanger an individual, is not disclosed under the legislation. It will apply primarily to protect informers, and criminal, quasi criminal, narcotics and security areas, and persons providing information about inmates... . I do not think there is any responsible group or individual who would advocate the release of information that could harm another person. Physical safety is the normal interpretation of 'safety of individuals' ..."^{Footnote 15} [Emphasis added.]

Normally, the test will be met when the institution can show logically and clearly:

• A real risk to the personal safety of an individual (or type of individual);
• how and when this risk may reasonable be expected to occur; and
• why the risk would exist.

 

 

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 at 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).

Threaten the safety of individuals

Canada

No Cases Relevant

United States

Albuquerque Pub. Co. v. Dep't of Justice, 726 F. Supp. 851 (D.D.C. 1989).

Atkins v. Dep't of Justice, No. 88-842, slip. op. at 10 (D.D.C. Feb. 26, 1990).

Barkett v. United States DOJ, Civil No. 86-2029 (SS) (D.C. Col. July 18, 1989).

Docal v. Bennsinger, 543 F. Supp. 38, 48 (M.D. Pa. 1981)

Durham v. United States DOJ, 829 F. Supp. 428 (D.C. Col. August 17, 1993).

EPPS v. United States DOJ, 801 F. Supp. 787 (D.C. Col. September 15, 1992).

Manchester v. DEA, Civil No. 91-2498, 823 F. Supp. 1259 (D.C. Pen. June 11, 1993).

Nunez v. DEA, 497 F. Supp. 209, 211 (S.D.N.Y. 1980).

Pfeffer v. Director, United States Bureau of Prisons, Civil no. 89-899 (D.C. Col. April 18, 1990).

Sanders v. Department of Justice, Civil no. 91-2263-O (C.D. Ark. April 21, 1992).

Endnotes

Footnote 1

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

Return to footnote 1 referrer

Footnote 2

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

Return to footnote 2 referrer

Footnote 3

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

Return to footnote 3 referrer

Footnote 4

Ibid.

Return to footnote 4 referrer

Footnote 5

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 5 referrer

Footnote 6

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 contended 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 6 referrer

Footnote 7

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 7 referrer

Footnote 8

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 8 referrer

Footnote 9

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 9 referrer

Footnote 10

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

Return to footnote 10 referrer

Footnote 11

Sanders v. Department of Justice, Civil no. 91-2263-O (C.D. Ark. April 21, 1992): In this case, the defendant had invoked exemption 7 (f) to withhold mental health records of the plaintiff, identities of medical personnel who prepared the mental health records of the plaintiff, and the identity of a custodian of records at a medical facility who furnished information about the plaintiff to the FBI. In support of each of these withholdings, the defendant argued that the plaintiff has a history of mental and emotional difficulties and that disclosure of the information could worsen or aggravate her condition to the point that she could harm someone involved in the investigation. In light of the information disclosed about the plaintiff's prior behaviour, the court agreed that disclosure of the withheld information could reasonably be expected to endanger the personal safety of individuals who released information to the FBI. Accordingly, the court found that the defendant properly invoked exemption 7(f). See also Fisher v. Dep't of Justice, 772 F. Supp. 7, 11 (D.D.C. 1991).

Return to footnote 11 referrer

Footnote 12

For example, see 1985-86 Annual Report of the Privacy Commissioner at p.33 where the Commissioner found that based on the requestor's history of violent behaviour, "the department fear of reprisals was a reasonable expectation" and dismissed the requestor's complaint. See also Durham v. United States DOJ, 829 F. Supp. 428 (D.C. Col. August 17, 1993): In this case, the Defendant invoked exemption 7(f) to delete the names of, and information that may be used to identify, third parties. The Defendant alleged, and the Plaintiff did not refute, that these third parties had knowledge about the crime in which the Plaintiff was involved, and that some have requested placement in the Federal Witness Protection Program. Given the Plaintiff's past violent behaviour, the Court agreed with the Government that disclosure of the identity, or information enabling identification, of the individuals who assisted the government in its case against the Plaintiff could reasonably endanger their lives or physical safety. Accordingly, the Court found that this material was properly withheld by the Defendant pursuant to exemption 7(f). See also EPPS v. United States DOJ, 801 F. Supp. 787 (D.C. Col. September 15, 1992): The plaintiff filed a suit under the Freedom of Information Act (FOIA) to compel disclosure of documents relating to his federal prosecution and resulting conviction. The Court found that the information could be withheld under exemption 7(f) to protect against risk of personal injury. According to the Court, since the plaintiff and his associates have demonstrated violent tendencies, revealing the identities of federal agents and other law enforcement personnel could expose those people to harassment or physical injury. These names and/or initials can be withheld to protect the safety of those involved in the Epps investigation.

Return to footnote 12 referrer

Footnote 13

Law enforcement officials investigating drug activity may well be subject of physical attack, the danger of which can only be enhanced when their identity is revealed. See, e.g., Docal v. Bennsinger, 543 F. Supp. 38, at 48 (M.D. Pa.1981): Nunez v. DEA, 497 F.Supp. 209, at 211 (S.D.N.Y. 1980): Barkett v. United States DOJ, Civil No. 86-2029 (SS) (D.C. Col. July 18, 1989); Covert agents associated with violators who are armed and have known violent tendencies: Manchester vDEA, Civil No. 91-2498, 823 F. Supp. 1259 (D.C. Pen.June 11, 1993) (according to the Court, past release of agents' identities "has resulted in several instances of physical attacks, threats, harassment, and attempted murder of DEA personnel." Id. DEA, therefore, believes that disclosure in this instance "could reasonably be expected" to result in "similar abuse.) see also Atkins v. Dep't of Justice, No. 88-842, slip. op. at 10 (D.D.C. Feb. 26, 1990); Albuquerque Pub. Co. v. Dep't of Justice, 726 F. Supp. 851 (D.D.C. 1989); Medical personnel who prepared records relating to requestor who had an history of mental and emotional difficulties: Sanders v. Department of Justice, Civil no.91-2263-O (C.D. Ark. April 21, 1992).

Return to footnote 13 referrer

Footnote 14

Pfeffer v. Director, United States Bureau of Prisons, Civil no. 89-899 (D.C. Col. April 18, 1990): In this case, the withheld pages contained information about escape plans formulated by, or involving plaintiff. Included in these plans were methods and means of smuggling weapons and contraband into the federal penitentiary at Lewisberg. All of the information in these pages was obtained from a confidential informant. The Court found that the documents were also properly withheld pursuant to FOIA exemption 7 (f) since the smuggling of weapons into prisons could reasonably be expected to endanger the physical safety of some individual.

Return to footnote 14 referrer

Footnote 15

Minutes of Proceedings and Evidence of the standing Committee on Justice and Legal Affairs, June 30, 1981, Issue # 47 at 24.

Return to footnote 15 referrer