Section 21: Questions

Inquiry Path

1. Check age of record against 20 year time limit in section 21(1).
2. Determine whether section 21(2)(a) or (b) applies
   • If so, section 21(1) exemption does not apply.
3. If not, determine whether record is described by section 21(1)(a)-(d).
4. 4. If so, determine whether the exercise of discretion by the government institution refusing disclosure is justified.

• If the record came into existence less than twenty years prior to the request.

When was the record created

• assess this against date of request.

If 20-year date is close, ask what the continuing need is for protection of the information from disclosure.

• see exercise of discretion sections below.

If 20 year mark has passed since the date of the request, ask why department could not exercise its discretion in favour of disclosure in such circumstances.

• requires a suggested course of action or decision to be taken.
• implicit advice recommendations accepted if they suggest discernible course of action.
• suggested course of action will ultimately be accepted or rejected by the government institution/minister.

What does the record describe?

Does it consist of a briefing note or other document destined for senior officials or the Minister?

If not, did the author intend to be conveying advice or recommendations to the recipients of the memo?

Look at paragraph 21(1)(b).

Was the briefing or memorandum requested by the Minister or senior official?

If it was not requested, are such briefings or memoranda provided in the normal course of departmental operations?

What is the purpose of the memorandum or briefing note?

Is the purpose to provide advice or recommendations to senior officials or Ministers?

Does the record contain a suggested course of action for the senior official or Minister to follow?

Does the record contain a suggested decision which the senior official or Minister should make?

• what does this consist of?

Does the record make suggestions about policy initiatives?

• what do these consist of?

Does the record make suggestions or provide options about responses the officials or a Minister could give with respect to a particular issue or matter of concern?

What response or steps are suggested?

Was the record generated outside of the department or government institution?

• if so, does subsection 21(2) apply?

Was the outside author providing the memo or report pursuant to a statutory provision?

Look for statutory provisions requiring supervision of departmental operations by outside bodies and recommendations by outside bodies concerning departmental operations.

Is the government institution or Minister free to accept or reject the suggested course of action or suggested change or decision?

• if so, what has the Minister or senior official done in response?
• has a decision been taken or implemented?
• was this decision similar to the advice given or recommendation made?
• if so, has the head of the institution considered disclosing the advice (see section on discretion below)?
• if not, would any harm result if the advice was disclosed (see section on discretion below)?

Does the record consist of factual observations, analysis or conclusions?

• if so, does the record go on to make recommendations or give advice based on the factual observations, analysis or conclusions?
• have the factual observations, analysis or conclusions been severed and disclosed?

Is the advice or recommendation intertwined with the factual observations or analysis?

• can they be separated?

Does the record consist of guidelines, criteria, or manuals interpreting or apply rules/regulations/ legislation, i.e., Treasury Board Guidelines, Justice manuals, other manuals on regulatory activity (health protection, food and drug, transport, agriculture, pesticides, environment)?

If so, does the record go on to deal with any specific issues or give advice on particular matters?

• if not, paragraph 21(1)(a) likely does not apply

Have the subject headings been severed?

Does the record contain statements of issues which present controversy or require decision/action by the Minister/senior officials?
 

• if so, have descriptions of the issues requiring decisions being severed and disclosed?
• if not, does the description of the issue contain advice or recommendations on how to handle the issue
• indicate where this is

Does the record contain observations about departmental operations or issues relevant to the government institution?

If so, does this observation also contain advice or recommendations?

Is the purpose of providing the observation to inform the Minister rather than to provide advice or recommendations about follow-up action by the Minister?

• if so, paragraph 21(1)(a) likely does not apply

Developed by or for a government institution

• advocacy or lobbying by outside groups is not included
• does not include representations or submissions as to a course of action

Does not include requests for a particular course of action

• oral advice by outside groups included only if solicited by institution
• advice must be directed to the Minister/ official's interests, not those of the person giving advice

Who prepared the record?

Did a member of the government institution prepare the record?

If not, did another government institution prepare the record?

• if so, what was the mandate of that government institution to provide advice or recommendations to the Minister or officials of the recipient government institution?

Was the record prepared by an individual or group outside of the government?

• Does paragraph 21(2)(b) apply?

If a group outside the government prepared the document, for what purpose was it given to the government institution?

Did the group who prepared the document have a particular position which they advocated to the government institution?

Does the record reflect a lobbying effort by an outside group?

Does the record reflect requests for action on a particular matter by an outside group?

Has the government institution requested the outside group to provide advice?

Has the government institution requested representations, as opposed to advice, from outside groups?

Does paragraph 21(1)(b) apply in this situation?

Does the record reflect representations or submissions to the government institution as to a particular course of action as opposed to advice or recommendations?

Did the group who prepared the record prepare it for purposes of the group or for the government institution?

If it is claimed that the outside group was providing advice to the Minister, did the Minister request this advice?

For what reason would advice not requested by the Minister be expected or accepted by the Minister in the ordinary course?

Is there an established relationship between the Minister and the group that would mandate such advice being given?

• i.e., Minister of Justice and CBA committee on judicial appointments
• i.e., Minister of Transport and physicians advisory groups on medical fitness of pilots
• Bureau of Biologics at Health Canada and outside experts on immunization
• Prime Minister and Round Table on the Economy

Can the purpose of the document be described more as giving advice than as presenting the position of an interested person's stakeholder?

See discussion on relevant factors for the exercise of discretion below.

The head of a government institution may refuse to disclose any record requested under this Act that contains:

• internal

Does the record describe consultations?

Does it reflect advice or opinions given to a Minister/ government institution for guidance in decision making?

Did the government institution/Minister seek such advice, instruction or opinion?

Was the institution/Minister seeking consultations for assistance in its own decision making?

What was the government deciding the issue upon?

Why were consultations undertaken?

Was the purpose of the consultations more to seek the representations of outside groups as opposed to their advice, instruction or opinion or guidance?

See above at paragraph 21(1)(a) for questions relating to advice and recommendations.

If consultations were with groups internal to the government, was a joint decision or joint jurisdiction between the institutions involved?

If not, why was the other government institution being consulted?

Would the decision under consideration have a direct impact on the other government institution?

Was the decision-maker seeking opinion or guidance from the other government institution?

Was the decision-maker simply receiving factual input, without advice, instruction or opinion/guidance from the other institution?

What course of action is identified as being given through the consultations with the other institution?

Does the record describe deliberations with another body?

Was the government institution seeking to exchange views on a particular matter with the other participants?

Was the government institution planning to jointly reach a decision or agreed position/course of action with the other participants?

What status did the other participants have to be engaging in joint discussions/decision making with the government institution?

• See above for questions about consultations with other government institutions.
• See above at section 21(1)(a) for questions with respect to positions of outside bodies with whom the government may be consulting.

Was the government institution soliciting guidance or joint decision-making?

Would the views being conveyed to the government institution be provided in the normal course of the operations of another department or of officials within the government institution?

If the input from outside the government institution was not directly solicited, is there a past relationship giving rise to an understanding that the views would be taken into account?

How often has the other institution provided input on these matters before?

What decision or potential course of action can be identified from the record?

• Must involve officers/employees of a government institution/Minister

Were officers or employees of the government institution involved in the consultations/deliberations?

• in what way?

Did the involvement include participation and contribution to the discussions?

If not, was the purpose of the attending officials merely to observe or to note the views of those expressing them?

• if so, what is the basis for the institution's claim that consultations or deliberations were taking place?

In what way did the government employees contribute to the consultations or deliberations?

At whose instance were the consultations or deliberations initiated?

If they were initiated by the government institution, was it for the purpose of seeking guidance or assistance in decision making (see above for questions on this topic)?

Does the record simply report on consultations undertaken by others?

What role did the government have in those consultations and deliberations, if any?

If government had no role, paragraph 21(1)(b) likely does not apply.

• Decisions recorded as part of the deliberations is not exempt.

Was a decision taken in the course of the consultations or deliberations?

Does the record record such a decision?

Has the decision been severed and disclosed?

Are there relevant parts of the record describing deliberations or consultations which are necessary in order to describe the decision taken?

• if so, have these been severed and disclosed?

If a decision has been taken, what harm would be created by disclosing the account of consultations or deliberations now (see discussion on discretionary exemption below)?

Discretionary Exemption institution must consider disclosing

• assess public interest in subject matter against any harm of disclosure

Has the head of the government institution considered disclosing the document?

If so, what was the basis for refusing to disclose the document?

What interference in the decision making process would be created if the information was disclosed?

Has a decision been taken with respect to the subject matter of the record?

If so, why would disclosure of the advice, recommendations, consultations or deliberations behind it create harm?

Would there be on going interference in the decision making process?

What does this interference consist of?

Is there an on-going review or appeal from the decision taken?

What status does this appeal or review have?

Would disclosure impair the government's ability to maintain the course of action decided upon?

Has the course of action been implemented through regulations or legislation?

At what stage are the regulations or legislation?

Would disclosure compromise enacting the regulations or legislation?

If the decision is still under consideration, what harm would result from disclosing the advice, recommendations, consultations or deliberations received?

Is there significant public discussion about the issues under consideration?

Are there competing interests in favour of or opposing a course of action?

• would disclosure aggravate this situation?
• are the positions of the players well-known or public?

How would disclosure impair the government's decision making ability?

Is a decision by the government imminent

• if so, when is it expected?

Will disclosure be made after the decision is taken?

If a decision is not imminent, what harm would disclosure of current advice or recommendations create?

Would disclosure interfere with consideration of the issue by other decision making bodies?

• i.e., the cabinet, parliamentary committees, independent tribunals, courts.

Would disclosure make future advice less candid?

• why?

Is the person or organization providing the advice/ deliberations independent of the recipient?

• if so, how would disclosure impair or prevent future advice from this source?

Is the person providing the advice/recommendations required to do so by statute?

• if so, how would disclosure impair or prevent future advice from being given?

Are the consultations undertaken mandatory?

• i.e., Citizen's Code for proposed regulations
• Statutory Instruments Act
• statute requiring consultation and receipt of representations from interested persons

If so, why would disclosure prevent or impair future consultations?

How old is the record?

Does the 20-year limitation apply?

If the record does not involve a current issue, why would disclosure impair future decision-making in this area?

If the record reflects a matter upon which a decision has already been made, is the decision itself public?

Why would disclosure impair the ability of the government to maintain the decision?

What is the subject matter of the decision?

Does it involve a routine, administrative or technical matter?

If so, why is protection of the record required?

Has the head of the institution considered whether there is value in exposing the decision-making process through scrutiny through disclosure of the advice/deliberations?

Has the head of the institution considered the benefits of informing the public on considerations behind major or new policy initiatives?

How much of the information described in the record has been publicly discussed?

Would disclosure promote more public debate or analysis on an unresolved issued?

Is the subject matter of the deliberations or advice of public importance?

Are there compelling reasons (i.e., public safety, compassion, constitutional status of the decision) that would be served by its disclosure?

Would disclosure increase public confidence in the substantive decision or process behind the decision?

Would disclosure present an unfair picture of the decision making process?

• if so, can this be ameliorated with an explanatory note?

Would disclosure unfairly expose individuals to public scrutiny?

• i.e., individuals potentially subject to criminal charges
• individuals pending disposition of criminal charges against them

Disclosure of highly sensitive personal issues (see section 19)

The head of government institution may refuse to disclose any record requested under this Act that contains

• Related to section 14 and 15
• Protects positions, plans, considerations relating thereto

Have sections 14 or 15 been claimed to exempt the records from disclosure?

• if so, why is paragraph 21(1)(c) needed
• is it because the injury test in sections 14 and 15 could not been met
• if so, what harm would result from disclosure under section 21 (See exercise of discretion discussion below)

Does the record consist of information used during the course of negotiations?

Does it outline positions or plans for the use of negotiators?

Were the positions or plans implemented during the negotiations?

Could these positions or plans still be implemented in the future?

Does the information outline factors taken into account in developing positions and plans for the negotiations?

What are these factors?

How do they relate to the positions or plans?

Do they indicate when the position or plans would be used?

Do they outline the strategic reasons for developing certain plans or positions?

Does the record consist of factual analysis about issues relating to the negotiations?

Is this factual analysis known publicly?

How would disclosure of the factual analysis reveal what a position or plan with respect to the negotiations is?

How would revealing that the government has considered the factual analysis impact on the government's position in the negotiations?

Is the analysis or information directly relevant to on-going negotiations?

• if not, how does the information relate to the negotiations?
• if of little relevance or importance, see section on exercise of discretion below?

Who is involved in the negotiations?

Is the Government of Canada a party to the negotiations?

Are the negotiations being conducted within the government?

• if so, paragraph 21(1)(c) does not apply

Is the government negotiating with the other parties, or is it an observer to do the negotiations?

What is the government's role in the negotiations?

If the government has only a tangential role in the negotiations, what is the need for protection of the information?

• does some other exemption more properly apply (sections 18 or 20)?

Negotiations in which the government is not a party are not exempt under paragraph 21(1)(c).

See below for section on exercise of discretion under paragraphs 21(1)(c) and (d)

Does the record reveal plans regarding a government institution?

Is the institution listed in Schedule I to the Access to Information Act?

• if not, paragraph 21(1)(d) does not apply

Does the record relate to plans regarding personnel or the administration of a government institution?

• could include plans regarding down-sizing, program elimination, privatization of existing functions, new programs, re-organizations, funding, relocations, technological substitution, etc.

Does the record involve departmental operations, as opposed to their administration?

Operations do not qualify under paragraph 21(1)(d).

Does the record relate to deployment of staff or programs within the department?

Does the record consist of budgetary plans for personnel or areas within the department?

What is the status of the plans?

• when is it expected the plans will be implemented?

Has any portion of the plan been implemented?

• to what extent has the entire plan been implemented?

Have the portions which have not been implemented been made public internally?

Have the plans received approval of the government institution or the Treasury Board?

• when is such approval being sought or expected?
• has any notice been given to employees?
• has notice of future phases been given to employees?
• if the plans have not been implemented, how long ago were they developed?

Is there an intention to implement them at any point in time?

If the plans have been discarded or not implemented, why is it necessary to protect them from disclosure?

• note Treasury Board Guidelines suggest discretion should be exercised in favour of disclosure
• see factors relevant to exercise of discretion in paragraphs 21(1)(c) and (d) below

Has the head of the government institution considered disclosing the records?

What was the basis for deciding not to disclose the records?

Relevant factors include:

• age of the record
• status of the negotiations or plans
• has the item been negotiated or agreed upon?
• if so, what is the continuing need for protection of the information?

If plans are about to be implemented, how would disclosure prejudice implementation?

If not, would disclosure be consistent with providing notice to people affected of changes in personnel or management?

Public knowledge of the negotiations or plans:

• have the negotiations or plans been discussed publicly?
• would public disclosure confirm negotiating position to the government's detriment?
• have the negotiations been conducted in public?
• have the plans been revealed in budgetary documents or other legislative instruments, in Speeches to the Throne, in parliamentary committees?

If the personnel or administration plans have not yet been implemented, have there been negotiations concluded with unions under which the reorganizations will take place?

• if so, how would implementation of the plans be impaired by disclosure
• if the negotiations referred to in the record are dormant, what is the possibility of their revival
• how would revival impact on the issue described in the record

If a revival is unlikely, what is the continuing need to protect the information from disclosure?

Does the negotiation involve a sensitive issue?

Describe the issue?

Why is it sensitive?

Are the negotiations at a sensitive juncture?

• describe why negotiations would be impaired by disclosure.

Could disclosure compromise the results achieved in the negotiations?

• There must be a decision
• Draft, preparatory notes not included in paragraph 21(2)(a)
• Briefing notes, advice may become incorporated in the decision

Does the record set out a decision that has been made concerning the person affected?

Does the record consist of a draft or preparatory notes for the decision?

Does the record set out advice to the decision maker prior to the decision being taken?

If so, has the decision maker expressed an agreement with the advice or other disposition of the matter on the record?

• in another record

Are there other memoranda or records which track the decision made by the government institution ?

• if so, ask to see them

Has the official responsible for making the decision incorporated his decision in any of these memos or records?

• if so, the memos or records become an account of the decision or reasons and should be disclosed

Do the remarks or comments made by the official on the memoranda or records consist of further instructions or comments requiring further information or analysis?

• if so, ask to see these
• if so, assess whether the notes and response are preparatory to a decision

What was the subject matter or nature of the decision?

Was the decision made pursuant to a statutory authorization or regulation?

• ask to see the provision or regulation

Does the statutory provision create a mandatory entitlement or obligation concerning the person about whom the decision was made?

Was the decision made through calculation of a mandatory formula or by application of mandatory, factual criteria?

• If so, section 21 (2)(a) may not apply?

Did the criteria contain any discretion or decision making power on the part of the government official who made the decision?

Did the decision involve an application by a person for relief or exemption from statutory obligations?

Did the decision involve a request by a person for special consideration in any way?

Did the decision involve an internal appeal process or a reconsideration of prior decision?

• if so, it is likely a discretionary power

Did the decision involve an assessment or choice between competing interests by the decision maker

• i.e., tax appeals
• human rights investigation decisions
• airline/pilot licensing decisions
• permit, licenses or applications that were contested
  • if so, these are likely adjudicated decisions
  • does the decision involve an administrative function

What is this function?

Does the function involve the conferral of a benefit?

• confirmation of an entitlement
• confirmation of an obligation
• granting of permission
• granting of licenses, permits
• granting of an exemption or relief from an obligation

If so, decision likely involves the exercise of a discretionary power.

Does the decision concern an individual, corporation, or other entity?

Does the decision require the person to do anything or refrain from doing anything?

Does the decision confer a benefit on the person?

Does the decision confirm the entitlement of the person to a benefit or to certain status under the legislation?

Does the decision confirm the obligation of a person to do something under a statute or regulation?

If so, decision likely affects the rights of a person.

If the decision does not directly concern a person, does it have a direct impact or economic effect on the person?

Is the person one of a group of individuals or entities that is affected by the decision?

• if so, decision likely affects the rights of the person

Was the decision made after a hearing or inquiry?

• if so, did the person participate at the hearing or inquiry?

Was the person given an opportunity to make representations or submissions at the hearing or inquiry?

• if so, decision likely affects the rights of the person

Is the decision legally binding on the person?

Is the decision subject to appeal or review by a tribunal or court?

Is the decision determinative of an entitlement, obligation, request for relief?

Does the decision permit or prohibit an activity in a regulated setting?

If so, decision likely affects the rights of a person.

Decision by independent tribunals, commissions and courts.

Disciplinary decisions, grievance decisions, arbitration and review from those decisions.

Decisions awarding or refusing funding, grants or loans.

Decisions conferring or refusing, permits, licenses, exemptions from regulatory requirements.

Decisions determining obligations or entitlements, under tax, pension, unemployment insurance, pension or superannuation laws.

Decisions determining obligations or entitlement under labour laws - vacation pay, termination and severance pay, sick leave, unjust dismissals.

Decisions involving human rights complaints.

Decisions involving harassment complaints.

Internal review and appeals from these decisions.

Decisions determining qualifications or competence of employees or participants in regulated industries (i.e., airline pilots, government conducted ship master examinations, etc.)

• appeals from these decisions

Recommendations will fall under section 21(2)(a)

• if they follow a hearing or inquiry
• if they could require reconsideration by the decision maker

Did the decision involve a recommendation?

Does the recommendation involve changing or confirming a prior decision?

What was the nature of the prior decision?

Did the prior decision affect the rights of persons?

Did the recommendation follow a hearing or inquiry?

Was the person given an opportunity to make submissions or representations in the course of the hearing or inquiry?

Was there an obligation on the body making the recommendation to consider these submissions and representations?

Were other submissions and representations received / considered

• from the government institutions
• from other interested parties

Is the process leading to the recommendation required by statute or regulation?

If so, recommendation is likely a decision within paragraph 21(2)(a).

When was the record prepared?

Who prepared it?

Was this person employed by the government or on a Minister's staff at the time?

Are they on the government payroll?

Does the government make source deductions for income tax, unemployment insurance and CPP for this individual?

Is the individual paid by salary?

Does the individual submit invoices for services connected with preparing with the report?

Ask to see the invoices.

Does the individual get compensated on a per service or per contract basis?

Is the individual retained under a contract from the government?

• ask to see the contract.
• does the contract involve preparation of this report

What is the purpose of the report?

Is the purpose of the report to inform the government institution about the subject matter?

• to analyze it
• to assess it

Is the purpose of the report to advise the government on the subject matter of a report?

Was the author of the report paid?

If not, was the author of the report acting in the capacity of an advisor to the government institution or Minister?

Was there explicit or implicit acceptance of this relationship by the government institution or the Minister concerned?

• if not, paragraph 21(2)(b) likely does not apply

Did the Minister or government institution take the report into consideration after it was submitted?

Did the government institution act on any of the matters set out in the report?

If so, author of the report likely had the status of an advisor to the institution or Minister.