Section 26: Information to be published

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, 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 26 is a discretionary class exemption. This is a two step process requiring two distinct determinations by the head of the institution. First, the head must determine whether the records fall within the class enunciated in the exemption. Secondly, he/she must also exercise his/her discretion whether to disclose the information by determining the consequences/effect to be expected from the disclosure of the requested information and considering whether those consequences outweigh the public interest in the disclosure of this information.

The Test

1) Preamble

This exemption recognized that it may be necessary to protect the priority of publication of the Government of Canada. It is designed to enable the head of the institution to withhold records, where the head of the institution believes, on reasonable grounds that the material requested will be published within 90 days after the request is made, or within such further period of time as may required for printing or translating the material.

2) Criteria

The key to this provision is to determine whether the head of the institution has reasonable grounds to believe that the material will be published within 90 days (or within such further period of time as maybe necessary for printing or translating the material). 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 and the following will summarize the office of the interpretation of the provision.

In order to invoke the exemption two requirements must be met:

• the material in the record will be published by a government institution, agent of the Government of Canada or Minister of the Crown; and
• the head of the government institution must believe on reasonable grounds that this publication will occur within 90 days or such further period of time as may be necessary for printing or translating the material.

a) The  material in the record will be published by a government institution, agent of the Government of Canada or Minister of the Crown:

There is no definition within the Act of what is 'published' documents. However, the review of the minutes of proceedings and evidence of the Standing Committee of Justice and Legal Affairs1 indicates that meaning of the term 'publication' does not mean making the information available (as in Section 68 of the Act), but rather it means "some kind of official process where information is published by the government in finished form". This term should be interpreted in the usual sense of the word.2

The oxford dictionary defines this word as:

• Publication: "... n. making publicly known; issuing of book, engraving, music, etc., to the public; book etc. so issued."

b) The head of the government institution must believe on reasonable grounds that this publication will occur within 90 days or such further period of time as may be required for printing or translating the material:

The most difficult part of this exemption is to determine whether the head of that institution had reasonable grounds to believe that the information would be published within 90 days (or within such period of time as may be necessary for printing or translating the material). In order to make this determination, usually the office will require a production schedule which includes targets dates.

A production schedule, which includes target dates, would provide 'reasonable grounds' for the head to believe the information will be published within 90 days or within such further period of time as may be necessary for printing or translating the material.

Whenever this exemption is relied upon, the head has a duty to inform the requester of the specific location for obtaining the records or information in question. The exemption may be relied on even where public access to the record is not as convenient or as cost effective for the researcher as it may have been if access had been by the institution.

This exemption is discretionary. This means that where the head exercises his or her discretion to refuse access under this exemption, the head should consider the convenience of the requester compared to the convenience of the institution.

1) Ontario

(Order #P-496)

• Section 22(a)[FIPPA] /section 15(a)[MFIPPA] is unique among the exemptions contained in this part of the Act. The other exemptions permit an institution to deny access to the requested records because of content or potential harm that might reasonably be expected to result from the disclosure. No harm is listed in this exemption. As a result, the Commission ruled that the purposes of the Act are key to the interpretation of this exemption. The Commission stated that this section should not be applied to indirectly prevent or limit the public's access to information. The Commission held that the government cannot enter into a business arrangement with a private company to provide access where to do so would have the very real potential of inhibiting the public's right of access. Basing an individual's right to access on his or her ability to meet conditions for access determined by a private sector vendor may result in inequitable access to information held by government. According to this decision, where an institution has provided its information to a private sector vendor, the exemption will not apply if the vendor does not provide a "regularized system of access" available to members of the public generally. In a postscript, the Commission noted that the search for sources of non-tax revenue must be balanced by the rights of the public to access information for which it has already paid. This balancing will determine whether universal access to government information will be the norm or whether an information elite will be created and only those who can afford to pay will have access to government-held information. The Commission stated that this latter situation would be "unacceptable in an open and democratic society".

(Orders #191, 204)

• When a head relies on this exemption, he or she has a duty to provide the requester with a description of the records or information in question.

(Order #P-463)

• Where the head relies on this provision but fails to inform the requester of sufficient information, which would enable him or her to identify the records in question, the exemption does not apply.

(Order #206)

• To rely on ss.(b), the institution should have custody or control of a copy of the record, which it is prepared to publish within the requisite time period.

Section 26: The Questions

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