Section 22: Testing or audits

Preliminary Matters

The Access to Information Act, R.S.C. 1985, c. A-1, (the Act) gives any Canadian Citizens or permanent resident within the meaning of the Immigration Act and any individual or any corporation present in Canada a right (of access) to most records under the control of the Federal Government. More specifically, the 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 22 is a discretionary exemption which is based on an injury test to a particular class of records.

2) The Criteria

Section 22 maybe used to exempt records which contain information relating to:

• test or auditing procedures;
• techniques or details of specific tests to be given; or
• techniques or details of specific audits to be conducted.

As noted above, they must be able to produce facts which will satisfy you that the consequence of disclosure will almost certainly be:

• the inability to use the test or auditing procedure again.
• the inability to use or rely upon the tests or to use the techniques etc.

It is not possible to predict all the harm that could happen hence the use of the all-purpose term 'prejudice'. It should be noted that this provision cannot be used to exempt an audit report.

The exemption is not limited to tests or audits that are conducted by a government institution. Therefore, the procedures for private testing - for example a test on how to evaluate the performance of public servants - would meet the criteria of this exemption, if disclosure would impair the reliability of the test results. According to the Honourable Francis Fox (Minister responsible for the introduction of the Access to Information Act), the exemption would probably not cover the tests conducted by the Department of Consumer and Corporate Affairs on safety of products since it would be unlikely that disclosing the procedures that were used in product testing would prejudice the use or results of these particular tests.1

Case Law

Federal:

Section 22 of the Access to Information Act permits withholding of Public Service Commission tests used in assessing candidates in various competitions. In Bombardier v. Canada (Public Service Commission), 41 F.T.R. 39 (T.D.) the requestor made an application under the Privacy Act to obtain originals of Public Service Commission testing taken by him. The evidence demonstrated that these tests were used in assessing candidates in various competitions, and had always been kept confidential by the Commission. The Court found that based on the above evidence, disclosure of the requested information would prejudice the use or results of the test and therefore confirmed the department's exemption of the records.

Note: Since we were not involved in this case and since we have not been able to see all of the evidence, we do not agree that this case establishes a precedent that is binding on us because it is not possible to see how the test in section 22 was met.

Section 22: The Questions

• Questions to assist the investigator in fact-finding and in making recommendations for the resolution of the complaint.