On this page
- Introduction
- Definitions
- Other remarks from Access to Information: Making It Work for Canadians
- Classification of exemptions
- Sources
- Licence
Introduction
Canada’s Access to Information Act (Act) creates an enforceable right of public access to records under the control of a government institution. The Act is administered in accordance with the following principles:
- government information should be available to the public
- necessary exceptions to the right of access should be limited and specific
- decisions on disclosure of government information should be reviewed independently of government1Treasury Board Secretariat of Canada, Access to information manual, 2023, section 1.1. Accessed at https://www.canada.ca/en/treasury-board-secretariat/services/access-information-privacy/access-information/access-information-manual.html on …
The Act specifies a variety of exemptions and exclusions that authorize or compel a government institution to refuse to disclose records relevant to a request. In 2002, the Access to Information Review Task Force argued, “The application of exemptions should not be a matter of intricate legal reasoning, but of basic questions asked consistently at all stages in the process: Are there good reasons for withholding the information in this case? How soon can it be made available without causing harm to one of the interests protected by the Act?”2Access to Information Review Task Force, Access to Information: Making It Work for Canadians, June 2002, p. 44. (Accessed at https://publications.gc.ca/collections/Collection/BT22-83-2002E.pdf on June 19, 2024).
In preparing to analyze the response of Indigenous Services Canada (ISC) and Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) to Access to Information and Privacy (ATIP) requests from 2017-18 to 2023-24, we examine the well-known distinction between mandatory vs discretionary exemptions in the Act – and the less familiar distinction between class test vs injury test exemptions.
We are publishing our tabulation of the sub-types of exemptions as an XLSX file.
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Definitions
discretionary exemption
An exemption provision of the Act that contains the phrase “may refuse to disclose.” The exemptions set out in the following sections of the Act are discretionary: 14, 15(1), 16(1), 16(2), 16.3, 17, 18, 18.1, 21(1), 22, 22.1, 23, 23.1 and 26. *
Discretionary exemptions are introduced by the phrase “the head of a government institution may refuse to disclose…” Where such exemptions apply to information requested under the Act, government institutions have the option to disclose the information where it is felt that no injury will result from the disclosure or where it is of the opinion that the interest in disclosing the information outweighs any injury which could result from disclosure. **
mandatory exemption
An exemption provision of the Act that contains the phrase “shall refuse to disclose.” The exemptions set out in the following sections of the Act are mandatory: 13(1), 16(3), 16.1, 16.2, 16.4, 16.5, 16.6, 19(1), 20(1), 20.1, 20.2, 20.4 and 24. *
Mandatory exemptions are introduced by the phrase “the head of the government institution shall refuse to disclose…” When information requested under the Act falls within a mandatory exemption, institutions normally must refuse to disclose the record. However, most mandatory exemptions provide for circumstances which permit disclosure if certain conditions are met (e.g. consent of the third party affected or if the information is publicly available). **
class test
A test that objectively identifies the categories of information or documents to which certain exemption provisions of the Act can be applied. The following sections of the Act are based on a class test: 13(1), 16(1)(a), 16(1)(b), 16(3), 16.1, 16.2, 16.3, 16.4, 16.5, 16.6, 18(a), 18.1, 19(1), 20(1)(a), 20(1)(b), 20(1)(b.1), 20.1, 20.2, 20.4, 21(1), 22.1, 23, 23.1, 24 and 26. *
A class test objectively describes the categories of information or documents to which an exemption can be applied. These exemptions describe classes of information that are considered sufficiently sensitive that disclosure of any information in the class could have a detrimental effect. Under class test exemptions, therefore, where a government institution is satisfied that information falls within the class specified, it can refuse access to the information. **
injury test
A test to determine the reasonable expectation of probable harm that must be met for certain exemption provisions of the Act to apply. The following sections of the Act are based on an injury test: 14, 15(1), 16(1)(c), 16(1)(d), 16(2), 17, 18(b), 18(c), 18(d), 20(1)(c), 20(1)(d) and 22. *
Exemptions based on an injury test provide that access to information requested under the Act may be denied if disclosure could reasonably be expected to be injurious to the interest specified in the exemption. In other words, disclosure of the information must reasonably be expected to prove harmful or damaging to the specific public or private interest covered by the exemption in order for access to be refused. **
* Directive on Access to Information Requests, 2022. Appendix A: Definitions.
** Access to Information: Making It Work for Canadians, 2002, Annex 3: Glossary.
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Other remarks from Access to Information: Making It Work for Canadians, 2002
“As with most freedom of information legislation, some exemptions are injury-based, while others are class exemptions. Before the exemption can be applied, injury-based exemptions require the head of a government institution to identify the harm to the interest (e.g. the conduct of international affairs) that could reasonably be expected to result from disclosure. The courts have interpreted this to mean that there must be a reasonable expectation of probable harm. Class-based exemptions, on the other hand, require only that the information fall within a specified group or type (e.g. personal information). There is no legislative requirement to identify an injury that would likely result from disclosure. This is presumed to be the case.” – pp. 39-40
“Some exemptions are subject to an express injury test. Others are not. It is our view that Parliament expressly included an injury test only where it intended that a very specific injury be considered. We also believe that the need to consider possible harm or injury is implied when public interests are being balanced in all discretionary exemptions.” – p. 40
“Injury Tests. Those commentators who recommended converting all exemptions to discretionary ones, also suggested that each exemption be expressly subject to an injury test. As mentioned earlier, a number of discretionary exemptions already include a specific injury test. It is our view that this was done only where the anticipated injury or harm could be clearly expressed. In other words, there are no injury tests mentioned where they would be too vague to be used effectively. For example, any injury test specified for the advice or recommendations exemption in Section 21 would be very broad – injury to the efficient conduct of a government institution’s operations, or injury to the deliberative processes of a government institution. Regardless of whether a discretionary exemption includes a specific injury test, we believe that the need to consider possible harm or injury is implied when public interests are being balanced by the head of a government institution (or their delegate) as part of the exercise of discretion.” – p. 42
“General Public Interest Override. Two mandatory exemptions include specific public interest overrides which allow the head of a government institution to disclose information where this would be in the public interest as defined in the provision. … We believe that a general public interest override is not necessary. Discretionary exemptions already imply a balancing of the public interest in protecting the information, and the public interest in disclosure, and the mandatory exemptions for third party and personal information already include specific overrides. It is also our view that a general override would not result in greater disclosure of information. – pp. 42-43
“Interpretation and Application of Exemptions – the Exercise of Discretion … The application of exemptions should not be a matter of intricate legal reasoning, but of basic questions asked consistently at all stages in the process: Are there good reasons for withholding the information in this case? How soon can it be made available without causing harm to one of the interests protected by the Act? It is our view, therefore, that improving the approach to the exercise of discretion is primarily a matter of education and attitudes. More guidance and training are needed. Working with the Information Commissioner, Treasury Board Secretariat could do more to develop user-friendly guidelines to help government institutions determine how to apply discretionary exemptions.” – p. 44
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Classification of exemptions
The government of Canada recently published a list of all exemptions under the Access to Information Act, indicating whether they are based on a class test or an injury test and whether they are mandatory or discretionary.3Directive on Access to Information Requests, 2022, Appendix C: Classification of Exemptions. Accessed at https://www.tbs-sct.canada.ca/pol/doc-eng.aspx?id=18310 on June 19, 2024. Below we subdivide all these exemptions based on the distinction between mandatory vs discretionary and class test vs injury test exemptions.
Mandatory exemptions
Table 1 lists all mandatory exemptions under the Access to Information Act and indicates whether they are based on a class test or an injury test. The descriptions are paraphrased and should be used as a memory aid only. For more detail, please consult the relevant section of the Act.
| Exemption | Short Description | Test |
| 13(1) | Information must be protected as it was obtained in confidence from: 1. the government of a foreign state; 2. an international organization of states; 3. the government of a province; or 4. a municipal or regional government established by or pursuant to an act of the legislature of a province or an institution of such a government; or 5. an Aboriginal government. | Class |
| 16(3) | Information must be protected as it was obtained by the Royal Canadian Mounted Police while performing policing services for a province or municipality. | Class |
| 16.1 * | Information must be protected as it was obtained or created by the Auditor General or Canada, the Commissioner of Official Languages, the Information Commissioner or the Privacy Commissioner during an investigation, examination or audit. | Class |
| 16.2 * | Information must be protected as it was obtained from or created by the Commissioner of Lobbying or on their behalf in the course of an investigation by the Commissioner. | Class |
| 16.3 * | Information must be protected as it was obtained or created by an individual who, in performing their functions under the Canada Elections Act, is conducting an investigation, examination, or review. | Class |
| 16.4 * | Information must be protected as it was obtained or created by or on behalf of the Public Sector Integrity Commissioner in the course of an investigation of a disclosure or an investigation commenced under section 33 of the Public Servants Disclosure Protection Act (PSDPA); or Received by a conciliator while attempting to reach a settlement of a complaint filed under the subsection 19.1(1) of the PSDPA. | Class |
| 16.5 | Information must be protected as it was created for the purpose of making a disclosure or in the course of an investigation into a disclosure under the PSDPA. | Class |
| 16.6 * | Information must be protected as it was obtained or created by the Secretariat of the National Security and Intelligent Committee of Parliamentarians or on its behalf in the course of fulfilling its mandate. | Class |
| 19(1) | Information must be protected as it is personal information as defined in Section 3 of the Privacy Act. | Class |
| 20(1)(a) | Information must be protected as it contains trade secrets of a third party. | Class |
| 20(1)(b) | Information must be protected as it is confidential financial, commercial, scientific or technical information supplied to a government institution by a third party and is consistently treated as confidential by the third party. | Class |
| 20(1)(b.1) | Information must be protected as it was supplied in confidence to a government institution by a third party in order to prepare, maintain, test or implement emergency management plans and which concerns the vulnerabilities of the third party’s structures, systems, or networks. | Class |
| 20(1)(c) | Information must be protected as it could reasonably be expected to cause material financial loss or gain to a third party, or could reasonably be expected to prejudice the competitive position of the third party. | Injury |
| 20(1)(d) | Information must be protected as it could reasonably be expected to interfere with contractual or other negotiations of a third party. | Injury |
| 20.1 * | Information must be protected as it is advice or information relating to investment that the Public Sector Pension Investment Board has obtained in confidence from a third party and has consistently treated in a confidential manner. | Class |
| 20.2 * | Information must be protected as it is advice or information relating to investment that the Canada Pension Plan Investment Board has obtained in confidence from a third party and has consistently treated in a confidential manner. | Class |
| 20.4 * | Information must be protected as it has been consistently treated as confidential by the National Arts Centre Corporation that would reveal the terms of a contract for the services of a performing artist or the identity of a donor who has made a donation in confidence. | Class |
| 24 | Information must be protected as disclosure is restricted as set out in Schedule II. | Class |
* The exemption can only be claimed by the government institutions named in the provision.
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Discretionary exemptions
Table 2 lists all discretionary exemptions under the Access to Information Act and indicates whether they are based on a class test or an injury test. The descriptions are paraphrased and should be used as a memory aid only. For more detail, please consult the relevant section of the Act.
| Exemption | Short Description | Test |
| 14 | Federal – provincial affairs Access may be refused as it could be expected to be injurious to the Government of Canada’s conduct of federal-provincial affairs. | Injury |
| 15(1) | Access may be refused as it could be expected to be injurious to the conduct of international affairs; the defence of Canada or any state allied or associated with Canada; or Canada’s efforts to detect, prevent or suppress subversive or hostile activities. | Injury |
| 16(1)(a) | Access may be refused as it was obtained or prepared by an investigative body (as per regulation) in the course of an investigation regarding: detecting, preventing or suppressing crime, enforcing any law of Canada or a province; or activities suspected of constituting threats to Canada’s security as set out in the Canadian Security Intelligence Service Act. | Class |
| 16(1)(b) | Access may be refused as the records contain investigative techniques or plans for specific lawful investigations. | Class |
| 16(1)(c) | Access may be refused as disclosure could be expected to be injurious to the enforcement of any law of Canada or a province or the conduct of lawful investigations. | Injury |
| 16(1)(d) | Access may be refused as disclosure could be expected to be injurious to the security of penal institutions. | Injury |
| 16(2) | Access may be refused as the records contain information expected to aid in the commission of an offence. Includes, but is not limited to: information on criminal methods or techniques, technical information on weapons or potential weapons; or information on the vulnerabilities of buildings, structures or systems. | Injury |
| 17 | Access may be refused as disclosure would reasonably be expected to threaten the safety of individuals. | Injury |
| 18(a) | Access may be refused as records contain trade secrets or financial, commercial, scientific or technical information that belongs to the Government of Canada of substantial value. | Class |
| 18(b) | Access may be refused as records contain information expected to prejudice the competitive position of a government institution or interfere with contractual or other negotiations. | Injury |
| 18(c) | Access may be refused as records contain scientific or technical information obtained through research by an employee of a government institution, the disclosure of which could deprive the employee of priority of publication. | Injury |
| 18(d) | Access may be refused as records contain information expected to: materially injure the financial interests of a government institution; materially injure the ability of the Government of Canada to manage the economy of Canada; or result in an undue benefit to any person, including information relating to the operation of financial institutions, or the sale of property, among others. | Injury |
| 18.1 | Access may be refused as records contain trade secrets or financial, commercial, scientific or technical information which belongs to and has been treated as confidential by: Canada Post Corporation; Export Development Canada; Public Sector Pension Investment Board; or VIA Rail Canada Inc. | Class |
| 21 | Access may be refused as records contain information less than 20 years old and which is: Advice or recommendations developed by or for a government institution or a minister; Accounts of consultations or deliberations in which directors, officers or employees of a government institution, a minister or the minister’s staff participate; Positions or plans developed for negotiations carried out on behalf of the Government of Canada; or Plans relating to the management of personnel or the administration of a government institution that have not yet been put into operation. | Class |
| 22 | Access may be refused as records contain information relating to testing or auditing procedures or techniques if the disclosure would prejudice the use or results of particular tests or audits. | Injury |
| 22.1 | Access may be refused as records contain a draft report of an internal audit of a government institution or any related audit working paper if the record came into existence less than fifteen years before the request was made. | Class |
| 23 | Access may be refused as records are subject to solicitor-client privilege. | Class |
| 23.1 | Access may be refused as records are subject to the privilege set out in section 16.1 of the Patent Act or section 51.13 of the Trade-marks Act. | Class |
| 26 | Access may be refused as records will be published within 90 days of the request or within the time necessary for printing or translating the material for the purpose of printing it. | Class |
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Case test exemptions
Table 3 presents the Case test
| Exemption | Short Description | Applicability |
| 13(1) | Information must be protected as it was obtained in confidence from: 1. the government of a foreign state; 2. an international organization of states; 3. the government of a province; 4. a municipal or regional government established by or pursuant to an act of the legislature of a province or an institution of such a government; or 5. an Aboriginal government. | Mandatory |
| 16(1)(a) | Access may be refused as it was obtained or prepared by an investigative body (as per regulation) in the course of an investigation regarding: detecting, preventing or suppressing crime, enforcing any law of Canada or a province; or activities suspected of constituting threats to Canada’s security as set out in the Canadian Security Intelligence Service Act. | Discretionary |
| 16(1)(b) | Access may be refused as the records contain investigative techniques or plans for specific lawful investigations. | Discretionary |
| 16(3) | Information must be protected as it was obtained by the Royal Canadian Mounted Police while performing policing services for a province or municipality. | Mandatory |
| 16.1 * | Information must be protected as it was obtained or created by the Auditor General or Canada, the Commissioner of Official Languages, the Information Commissioner or the Privacy Commissioner during an investigation, examination or audit. | Mandatory |
| 16.2 * | Information must be protected as it was obtained from or created by the Commissioner of Lobbying or on their behalf in the course of an investigation by the Commissioner. | Mandatory |
| 16.3 * | Information must be protected as it was obtained or created by an individual who, in performing their functions under the Canada Elections Act, is conducting an investigation, examination, or review. | Discretionary |
| 16.4 * | Information must be protected as it was obtained or created by or on behalf of the Public Sector Integrity Commissioner in the course of an investigation of a disclosure or an investigation commenced under section 33 of the Public Servants Disclosure Protection Act (PSDPA); or Received by a conciliator while attempting to reach a settlement of a complaint filed under the subsection 19.1(1) of the PSDPA.yes | Discretionary |
| 16.5 | Information must be protected as it was created for the purpose of making a disclosure or in the course of an investigation into a disclosure under the PSDPA. | Mandatory |
| 16.6 * | Information must be protected as it was obtained or created by the Secretariat of the National Security and Intelligent Committee of Parliamentarians or on its behalf in the course of fulfilling its mandate. | Mandatory |
| 18(a) | Access may be refused as records contain trade secrets or financial, commercial, scientific or technical information that belongs to the Government of Canada of substantial value. | Discretionary |
| 18.1 | Access may be refused as records contain trade secrets or financial, commercial, scientific or technical information which belongs to and has been treated as confidential by: Canada Post Corporation; Export Development Canada; Public Sector Pension Investment Board; VIA Rail Canada Inc. | Discretionary |
| 19(1) | Information must be protected as it is personal information as defined in Section 3 of the Privacy Act. | Mandatory |
| 20(1)(a) | Information must be protected as it contains trade secrets of a third party. | Mandatory |
| 20(1)(b) | Information must be protected as it is confidential financial, commercial, scientific or technical information supplied to a government institution by a third party and is consistently treated as confidential by the third party. | Mandatory |
| 20(1)(b.1) | Information must be protected as it was supplied in confidence to a government institution by a third party in order to prepare, maintain, test or implement emergency management plans and which concerns the vulnerabilities of the third party’s structures, systems, or networks. | Mandatory |
| 20.1 * | Information must be protected as it is advice or information relating to investment that the Public Sector Pension Investment Board has obtained in confidence from a third party and has consistently treated in a confidential manner. | Mandatory |
| 20.2 * | Information must be protected as it is advice or information relating to investment that the Canada Pension Plan Investment Board has obtained in confidence from a third party and has consistently treated in a confidential manner. | Mandatory |
| 20.4 * | Information must be protected as it has been consistently treated as confidential by the National Arts Centre Corporation that would reveal the terms of a contract for the services of a performing artist or the identity of a donor who has made a donation in confidence. | Mandatory |
| 21 | Access may be refused as records contain information less than 20 years old and which is: Advice or recommendations developed by or for a government institution or a minister; Accounts of consultations or deliberations in which directors, officers or employees of a government institution, a minister or the minister’s staff participate; Positions or plans developed for negotiations carried out on behalf of the Government of Canada; or Plans relating to the management of personnel or the administration of a government institution that have not yet been put into operation. | Discretionary |
| 22.1 | Access may be refused as records contain a draft report of an internal audit of a government institution or any related audit working paper if the record came into existence less than fifteen years before the request was made. | Discretionary |
| 23 | Access may be refused as records are subject to solicitor-client privilege. | Discretionary |
| 23.1 | Access may be refused as records are subject to the privilege set out in section 16.1 of the Patent Act or section 51.13 of the Trade-marks Act. | Discretionary |
| 24 | Information must be protected as disclosure is restricted as set out in Schedule II. | Mandatory |
| 26 | Access may be refused as records will be published within 90 days of the request or within the time necessary for printing or translating the material for the purpose of printing it. | Discretionary |
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Injury test exemptions
Table 4 presents the injury test exemptions:
| Exemption | Short Description | Applicability |
| 17 | Access may be refused as disclosure would reasonably be expected to threaten the safety of individuals. | Discretionary |
| 15(1) | Access may be refused as it could be expected to be injurious to the conduct of international affairs; the defence of Canada or any state allied or associated with Canada; or Canada’s efforts to detect, prevent or suppress subversive or hostile activities. | Discretionary |
| 16(1)(c) | Access may be refused as disclosure could be expected to be injurious to the enforcement of any law of Canada or a province or the conduct of lawful investigations. | Discretionary |
| 16(1)(d) | Access may be refused as disclosure could be expected to be injurious to the security of penal institutions. | Discretionary |
| 16(2) | Access may be refused as the records contain information expected to aid in the commission of an offence. Includes, but is not limited to: information on criminal methods or techniques, technical information on weapons or potential weapons; or information on the vulnerabilities of buildings, structures or systems. | Discretionary |
| 18(b) | Access may be refused as records contain information expected to prejudice the competitive position of a government institution or interfere with contractual or other negotiations. | Discretionary |
| 18(c) | Access may be refused as records contain scientific or technical information obtained through research by an employee of a government institution, the disclosure of which could deprive the employee of priority of publication. | Discretionary |
| 18(d) | Access may be refused as records contain information expected to: materially injure the financial interests of a government institution; materially injure the ability of the Government of Canada to manage the economy of Canada; or result in an undue benefit to any person, including information relating to the operation of financial institutions, or the sale of property, among others. | Discretionary |
| 20(1)(c) | Information must be protected as it could reasonably be expected to cause material financial loss or gain to a third party, or could reasonably be expected to prejudice the competitive position of the third party. | Mandatory |
| 20(1)(d) | Information must be protected as it could reasonably be expected to interfere with contractual or other negotiations of a third party. | Mandatory |
| 22 | Access may be refused as records contain information relating to testing or auditing procedures or techniques if the disclosure would prejudice the use or results of particular tests or audits. | Discretionary |
We are publishing our tabulation of the sub-types of exemptions as an XLSX file.
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Sources
Access to Information Review Task Force, Access to Information: Making It Work for Canadians, June 2002. (Accessed at https://publications.gc.ca/collections/Collection/BT22-83-2002E.pdf on June 19, 2024).
Access to Information Act and Proposals for Reform, June 6, 2012. (Accessed at https://lop.parl.ca/sites/PublicWebsite/default/en_CA/ResearchPublications/200555E on June 19, 2024).
Legislative Summary of Bill C-58: An Act to amend the Access to Information Act and the Privacy Act, revised December 4, 2019. (Accessed at https://lop.parl.ca/sites/PublicWebsite/default/en_CA/ResearchPublications/LegislativeSummaries/421C58E on June 19, 2024).
Directive on Access to Information Requests, July 22, 2022. (Accessed at https://www.tbs-sct.canada.ca/pol/doc-eng.aspx?id=18310 on May 24, 2024).
Access to Information Act: Plain Language Guide to Exemptions and Exclusions, September 29, 2023. (Accessed at https://www.canada.ca/en/treasury-board-secretariat/services/access-information-privacy/aia-plain-language-guide.html on June 19, 2024).
Treasury Board Secretariat Canada, Access to information manual, 2023. Accessed at https://www.canada.ca/en/treasury-board-secretariat/services/access-information-privacy/access-information/access-information-manual.html on ….
Licence
We are publishing this material under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International licence. If you find use for our work, please credit Paul Allen (https://paulallen.ca).
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