Section 25: Severance

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.

The underlying principle in applying most exemption criteria is the weighing or balancing of the right of access to government information against the injury that could ensue from disclosure of that information.

The exemptions and the categories of records excluded from the Act form the only basis for refusing access to government information requested under this legislation. Therefore, access must be given to all government information for which a person makes a request under the Access to Information Act except that which is either specifically exempt or excluded under a provision of the Act.

Institutions are cautioned, however, that where subsequent decisions regarding disclosure are reversed as a result of a change in circumstances, complaints may result. Institutions should therefore be completely prepared to demonstrate that the reversal was clearly warranted and supported by the change in circumstances.

Section 25 of the Access to Information Act provides that a government institution shall disclose any part of a record that does not contain information which may be exempt if it can be reasonably severed from any part that does contain exempt information.

This provision establishes the principle of reasonable severability. This means that a record containing information which may be exempt should not be exempted from access as a whole if exempt information can be severed from it and the rest of the record disclosed.

The Test

What is the test to be applied in determining whether severance should be made?

Reasonable severability should be established by the intelligibility of the document or segment of the document remaining after the information for which an exemption is to be claimed has been removed. Although the original purpose of the document may be lost when the exempt information is removed, an exemption cannot be claimed for the entire record as long as there remains some information that is itself intelligible, comprehensible and relevant to the request. For example, a document written for the purpose of providing advice, yet containing background information should, after the advice portion is removed, be disclosed as long as the factual content does not fall within one of the other exemption provisions.

Institutions should therefore be completely prepared to demonstrate that the reversal was clearly warranted and supported by the change in circumstances.

Case Law

Rubin v. Canada Mortage and Housing Corp. (F.C.A.) [1989] 1 F.C. 265

The Court found that section 25 is a paramount section since the words "Notwithstanding any other provision of this Act" are employed. This means that once the head of the government institution has determined that some of its records are exempt, the institutional head, or his delegate, is required to consider whether any part of the material requested can reasonably be severed. Section 25 uses the mandatory "shall" with respect to disclosure of such portion thereby requiring the institutional head to enter into the severance exercise therein prescribed. It is apparent from this record that no such examination was made here. C.M.H.C. received the request for information on March 6, 1985. It was refused on March 7, 1985, one day later. Given the fact that some 13 lineal feet of documents are involved, it would have been physically impossible to complete the section 25 examination in such a short period of time. Failure to perform the severance examination mandated by section 25 is an error in law which is fatal to the validity of the decision a quo.

Blank v. Canada (Minister of Justice), 2005 FC 1551 (T.D.);

Severance of exempt and non-exempt portions must the attempted only when the result is a reasonable fulfilment of the purposes of the Access to Information Act. Severance within a document under section 25 is only to be affected where it is reasonable to do so. Reasonableness requires that the severed information be capable of standing independently and that severance must not result in the release of meaningless words and phrases out of context or provide clues to the content of the exempted portions. Severance must be done bearing in mind the importance of impairing solicitor-client privilege as little as possible.

Canada (Minister of Environment) v. Canada (Information Commissioner), 2003 FCA 68;

In this case, the Court ordered that four documents which the Department claimed exclusion under section 69 be returned for review by the Clerk of the privy council to determine whether there exists within the documents a corpus of words that can be reasonably severed from the documents pursuant to section 25 of the Access Act.

Ottawa Football Club v. Canada (Minister of Fitness and Amateur Sports) [1989] 2 F.C. 480

Section 25 provides that where the head of an institution is authorized to refuse to disclose a record because it contains information which the Act requires not to be disclosed, he is authorized to disclose any part of that record that does not contain such material if it "can reasonably be severed from" the protected material. If what remains is meaningful without the deleted passages and does not distort the sense of the original brief severance is permitted by section 25. This is not affected by any fear, whether reasonable or not, of speculation in the media as to what has not been disclosed.

Montana Band of Indians v. Canada (Minister of Indian and Northern Affairs) [1989] 1 F.C. 143;

Indian bands attempted to prevent disclosure of financial statements requested under the act. The applicants have conceded that information dealing with public funds, that is, grants and contribution monies, should not be considered confidential. The respondent concluded from this that any such information in the financial statements should be severed and disclosed under S. 25 of the Act.

The Court found however that there is no reason to seek to sever the very minimal information about these monies in the confidential financial statements. The information regarding public funds could not reasonably be severed. To attempt to comply with s. 25 would result in the release of an entirely blacked-out document with, at most, two or three lines showing. Without the context of the rest of the statement, such information would be worthless. The effort such severance would require on the part of the department is not reasonably proportionate to the quality of access it would provide.

SNC-Lavalin Inc. v. Canada (Minister of Public Works) [1994], F.C.J.. no. 1059;

In this case, the Court found two issues in relation to the application of s. 25. First, what portions of the information are exempted? Second, is the balance of the information, that is the portion not exempt, reasonably severable? In the latter regard one must bear in mind that "...Disconnected snippets of releasable information taken from otherwise exempt passages are not...reasonably severable", and severance of exempt and non-exempt portions should be attempted only when the result is a reasonable fulfilment of the purposes of the Act. Where severance would result in release of minimal portions of the information in question and would result only in release of information otherwise available from published public sources, or where the information left to be released is not a reasonable response to the request for information in light of the portions exempt, severance has been found not to be reasonable, and thus not required within s. 25.

Canada (Information Commissioner) v. Canada (Solicitor General) [1988], 3 F.C. 551;

In this case, the Court found that disconnected snippets of releasable information taken from otherwise exempt passages are not reasonably severable. The Court also found that section 25 does not mandate a surgical process whereby disconnected phrases which do not, by themselves, contain exempt information are picked out of otherwise exempt material and released. The Court also found that the resulting document may be meaningless or misleading as the information it contains is taken totally out of context. The Court also found that the remaining information may provide clues to the content of the deleted portions. Also, when dealing with personal information it is preferable to delete an entire passage in order to protect the privacy of the individual rather than disclosing certain non-exempt words or phrases.

Information Commissioner of Canada v. Canada (Minister of Environment), 2006 FC 1235

In this case, as to the claim of exemption under paragraph 21(1) a), the Court found that some sentences exempted under 21(1) a) contained purely factual information and, therefore, were not subject to paragraph 21(1)(a). Accordingly, the Court found that paragraph 21(1)(a) applied in respect of the opinion expressed in the first 15 words in the second sentence but not in respect of the factual information provided in the remaining 18 words.

Noel v. Great Lakes Pilotage Authority Ltd. [1988] 2 F.C. 77

Section 25 could authorize a department to deny certain confidential information while at the same time obliging it to provide the names of individuals if it is found that the mere publication of the names, severed from other information, does not affect the confidentiality of that other information.

Blank v. Canada (Minister of Justice), 2006 FC 841 (T.D.);

In this case, the Court found that certain words in the subject line of e-mails were severed from some e-mails, and not severed from other e-mails. In such cases, those subject lines should have been consistently severed. The Court ordered disclosure of such information accordingly.

Blank v. Canada (Minister of Environment) [2001] F.C.A. no 1844

The Minister argued that a record that is subject to solicitor-client privilege is not subject to the severance provision in section 25. The Court found that section 25 applies «notwithstanding any other provision of this Act». If a document contains a communication that is within the scope of the common law solicitor-client privilege and also contain information that is not within the scope of solicitor client privilege, the Minister cannot refuse to disclose the latter.

Blank v. Canada (Minister of Justice), 2005 FC 1551 (T.D.);

In this case, the applicant submitted that some of the documents for which solicitor-client privilege had been claimed contained listings of other documents which he may be entitled to access if not protected by the privilege or some other exemption recognized by the Act. The Court found that severance provision in section 25 should apply consistently to all types of information. If solicitor-client privilege is claimed for one or more of the listed documents, disclosure of the list should not compromise the privilege claimed in that document. The privilege in the document remains until such time as its content is disclosed.

Stevens v. Canada (Prime Minister) [1998] F.C.J. no. 794

Section 25 of the Act allows the disclosure of portions of privileged information. This is an attempt to balance the rights of individuals to access to information, on the one hand, while maintaining confidentiality where other persons are entitled to that confidentiality on the other hand. It would be a perverse result if the operation of section 25 of the Act were thereby to abrogate the discretionary power given to the Government head under section 23 of the Act.

Blank v. Canada (Minister of Justice), 2005 FC 1551 (T.D.);

In this case, the Court found that documents determined to be subject to the exemption provided by section 23 of the Act are to be severed in the same manner as any other document subject to severance. Information which can stand alone, without compromising privilege, such as facts upon which the advice is based, must be accessible.

Blank v. Canada (Minister of Justice), 2004 FCA 287;

In this case, appellant sought release of records of his prosecution for use in civil action claiming damages for abuse of prosecutorial powers. While the Department claimed section 23 as a basis of exemption, the Court ordered disclosure of general identifying information such as the description of the document, the name, title and address of the person to whom the communication was directed, the closing words of the communication and the signature block can be severed and disclosed. According to the Court, this kind of information enables the requester "to know that a communication occurred between certain persons at a certain time on a certain subject, but no more".

Vienneau v. Canada (Solicitor General) [1988] F.C. 336;

Where the head of the institution has made the initial refusal and is then required to interpret the obligation imposed by section 25 of the Act to release portions that can reasonably be severed. Any such severance, however, cannot alter the basic fact that there is only one refusal when the record is found to contain exempt material. Subsequent disclosure of any portion as contemplated by section 25 can only be interpreted as further compliance, not as further refusal. If there is only one refusal, only one notice of exempting provisions should be required.

 

 

Table of Authorities

Blank v. Canada (Minister of justice), 2004 FCA 287;

Blank v. Canada (Minister of justice), 2005 FC 1551;

Blank v. Canada (Minister of Environment) [2001] F.C.A. no 1844;

Canada (Information Commissioner)vc. Canada (Solicitor general) [1988], 3 F.C. 551;

Canada (Minister of Environment) v. Canada (Information Commissioner), 2003 FCA 68;

Information Commissioner of Canada v. Canada (Minister of Environment), 2006 FC 1235

Montana Band of Indians v. Canada (Minister of Indian and Northern Affairs)) [1989] 1 F.C. 143;

Noel v. Great Lakes Pilotage Authority Ltd. [1988] 2 F.C. 77;

Ottawa Football Club v. Canada (Minister of Fitness and Amateur Sports) [1989] 2 F.C. 480;

Rubin v. Canada Mortage and Housing Corp. (F.C.A.) [1989] 1 F.C. 265;

SNC-Lavalin Inc. v. Canada (Minister of Public Works) [1994], F.C.J.. no. 1059;

Stevens v. Canada (Prime Minister) [1998] F.C.J. no. 794;

Vienneau v. Canada (Solicitor General) [1988] F.C. 336;