Chapter 5: Exemptions and Exclusions
Introduction
As discussed in Chapter 4: Access Fundamentals, the legislation provides a general right of access to records in the custody or control of institutions, subject to limited and specific exemptions.
This chapter will review the exemptions to the right of access. Some exemptions exist only in FIPPA or MFIPPA. This guide will indicate the applicable legislation for each exemption.
The legislation also outlines a number of classes of records that are excluded from the legislation in their entirety. This chapter will review in detail these exclusions and indicate the applicable legislation for each exclusion.
This chapter does not identify all the interpretations or issues related to these exemptions and exclusions that have been considered by the IPC and the Courts. As such, this chapter is not meant to be exhaustive, but only to summarize how the exemptions and exclusions generally operate.
The law relating to the interpretation of these exemptions and exclusions is constantly evolving and it is up to individual reader to ensure that their understanding of a provision is up to date. Coordinators should always refer to the legislation for the exact language of a provision they are considering and not rely solely on the paraphrasing or descriptions of the provisions contained in this chapter.
Exemptions
Exemptions to the general right of access are either mandatory or discretionary. The sections below will review each exemption and outline:
- The nature of the exemption;
- Any legal tests that may apply;
- Factors to consider in determining whether the exemption applies to a record;
- Any exceptions to the exemption that exist;
- Whether the public interest override applies to the exemption.
Note that a record may contain information subject to more than one exemption.
Draft By-Laws and Closed Municipal Meetings
Draft By-Laws
The discretionary exemption protects draft by-laws or draft private bills that have not been considered in an open meeting. The term "considered" involves examination or deliberation. Only the draft by-law itself would be exempt as this provision does not exempt from disclosure records that would reveal the contents of drafts.
For example, disclosing background records used in preparing the draft by-law may allow an accurate inference to be drawn about the nature of the draft by-law but this exemption cannot be applied to prevent their release.
Closed Meetings
This discretionary exemption also protects from disclosure the deliberations at meetings of a council, board, commission, or other body, or a committee of any of those bodies made in camera (meaning in private or in absence of the public). For this exemption to apply, the in camera nature of the meeting must be authorized by a statute.
This exemption also permits the institution to prevent disclosure of a record which reveals the substance of deliberations of a closed meeting of a council, board, commission or other body or a committee of one of them. In order to qualify for this exemption, the institution must establish that:
- A meeting was held in the absence of the public;
- A statute authorizes the holding of the meeting in the absence of the public; and
- Disclosing the record would reveal the actual substance of deliberations of the meeting.
The term "substance of deliberations" has been interpreted to mean more than the subject of the deliberations but instead the actual substance of the deliberations. The exemption has been found to not protect records that merely refer to matters discussed at the in camera meeting. For example, the exemption would not apply to names of attendees or dates, times, and locations of meetings.
A distinction, however, must be made between the results of the deliberations and the subject matter. A mere disclosure or reporting of a decision made at an in camera meeting cannot be characterized as a "consideration" of the subject matter of the in camera deliberations. As well, a discussion of the product or results of deliberations does not necessarily reveal details about subject matter discussed in camera.
For example, municipal councillors deliberated on the line items of a budget during an in camera meeting and later the consolidated budget was formally adopted at a public meeting. The consolidated budget was found by the IPC to be only the product of the subject matter of the deliberations in camera (regarding the line items), rather that the subject matter of the deliberations itself. Therefore, the deliberations about the line items in the budget were not found to have been “considered” at the public meeting, and were still subject to this exemption.
Exceptions
For draft by-laws and private bills, this exemption does not apply where the draft has been later considered in open meetings.
With respect to in camera deliberations, if the subject matter of the deliberations is later considered in an open meeting, this exemption no longer applies to the record.
For both the draft by-law and the closed meetings, the exemption does not apply to records more than 20 years old.
Public Interest Override
The public interest override does not apply to this exemption.
Cabinet Records
This mandatory exemption protects deliberations of the Executive Council and its committees from disclosure. Deliberations have been interpreted as discussions conducted with a view towards making a decision.
The FIPPA exemption for Cabinet records applies to the Executive Council (Cabinet) or its committees including:
- Treasury Board/Management Board of Cabinet,
- Legislation and Regulations Committee, and
- Cabinet policy committees.
A current list of Cabinet policy committees can be found on the Ontario government’s website.
Evidence that a record was either sent to Cabinet or its committees for its deliberation or was prepared with the specific intention of presenting it to Cabinet or its committees, is critical in determining if this exemption applies to a record.
In rare cases, records do not have to be directly sent to Cabinet or its committees to be exempt. Where the disclosure of records would permit a reader to draw an accurate inference concerning the substance of deliberations, the exemption would likely apply.
An institution has the right to claim the exemption even if the record was disclosed without the knowledge of the institution. However, where an issue or matter never gets to Cabinet or its committees and where there is no prospect that it ever will, the exemption cannot be claimed.
This exemption is broadly defined. Any record that would reveal the substance of deliberations at Cabinet or its committees is subject to the exemption. This section also provides a non-exhaustive list of types of records that are included in this exemption:
- An agenda, minute or other record of deliberations or decisions;
- Policy options or recommendations submitted or prepared for submission;
- Background explanations or analyses of problems submitted or prepared for submission for consideration before decisions are made and implemented;
- The subject of consultations among ministers on matters relating to government decision-making or the formulation of policy;
- Briefing materials for a minister in relation to matters before or proposed; or are the subject of consultations among ministers relating to government decision-making or the formulation of policy; and
- Draft legislation or regulations.
A discussion of policy options and recommendations (e.g., Cabinet submission) that is exempt under this section will continue to be exempt from disclosure even after the related decisions is made. Records about the implementation of a policy or recommendation that was previously approved may still include policies or recommendations and therefore may still be exempt.
Background explanations and analyses (e.g., briefing notes) must be submitted or prepared for submission to Cabinet in order to be exempt under this section. This type of background information is time limited and is only exempt until steps are taken to give effect to a decision.
Consultations among ministers may involve records such as memoranda to and from ministers, and minutes of meetings. Consultations among deputy ministers and public servants are not exempt unless those consultations would reveal the substance of deliberation of Cabinet or its committees.
Briefing a Minister usually involves records prepared by an institution’s staff or a minister’s political staff. The reason why the record was prepared should be clear, and linked to matters currently before or proposed to be brought before Cabinet in order to claim the exemption.
Draft legislation and regulations are exempt from disclosure until the draft has been considered by Cabinet and Cabinet has consented to the public distribution of the draft for comment. A Minister can approve sharing draft statute and regulations with interested parties in the development process of the legislation.
Exceptions
An institution must, on request, disclose a Cabinet record that is more than 20 years old.
Records that are 20 years old or less can be disclosed where the Cabinet for which the record was prepared gives consent. One Cabinet cannot consent to the release of another’s records. A Cabinet is considered to have changed where there has been an election or a change of government. Consent of a previous government cannot be practically sought.
While an institution is not required to seek consent of a current Cabinet, it should consider the merits of seeking Cabinet consent in every case because it can be an issue raised on appeal. Whether to seek consent should take into consideration:
- The subject matter;
- If the government policy has been announced or implemented;
- If disclosure would reveal the nature of Cabinet discussion; and
- If the record has, in fact been considered by Cabinet.
Public Interest Override
The public interest override does not apply to this exemption.
Advice to Government/Advice or Recommendations
This discretionary exemption is called Advice to Government under FIPPA and Advice or Recommendations under MFIPPA. There are minor differences in wording between the two legislations.
Under FIPPA, the advice and recommendations must be given by a public servant, any person employed in the service of the institution, or a consultant retained by the institution. A consultant provides professional services under a formal agreement.
Under MFIPPA, the advice and recommendations must be given by an officer or employee of an institution, or a consultant retained by an institution. An officer is considered a high ranking individual in municipal government who has management and administrative functions. Municipal or city councillors are not officers.
A record continues to be exempt under this exemption, even if the institution has completed its decision-making, or acted on the recommendation at issue.
“Advice” and “recommendations” have two distinct meanings.
Recommendations refer to a suggested course of action that will ultimately be accepted or rejected by the person being advised. Recommendations can be expressed or inferred.
Advice has a broader meaning and can include “policy options.” This can include:
- Lists of alternative courses of action to be accepted or rejected in relation to a decision that is to be made;
- An employee’s identification and consideration of alternative decisions that could be made; and
- Views and opinions of an employee as to the range of policy options to be considered by a decision-maker, even if they do not include a recommendation.
If an accurate inference concerning advice and recommendations may be drawn from a record it would be exempt. The exemption applies to both draft documents that have not yet been given to decision-makers as well as finalized documents that have been delivered to decision-makers for consideration.
Exceptions
This exemption sets out a number of exceptions that are not considered advice or recommendations. These exceptions ensure that factual information often found in reports is available to the public, if other exemptions do not apply to the records.
A report has been interpreted as a formal statement or account of the results of the collation and consideration of information. A report is not just observations or recordings of fact.
The following lists the types of information and reports that are exceptions to the exemption and may be disclosed (provided that they are not subject to other exemptions):
- Factual material;
- A statistical survey;
- A report by a valuator;
- An environmental impact statement or similar record;
- A report of a test carried out on a product for the purpose of government equipment testing or a consumer test report (FIPPA only);
- A report or study on the performance or efficiency of an institution;
- A feasibility study or other technical study;
- A report containing the results of field research;
- A final plan or proposal to change a program of an institution, or for the establishment of a new program;
- A report of an interdepartmental committee task force or similar body, or of a committee or task force within an institution, which has been established for the purpose of preparing a report on a particular topic;
- A report of a committee, council or other body which is attached to an institution and which has been established for the purpose of undertaking inquiries and making reports or recommendations to the institution;
- The reasons for a final decision, order or ruling of an officer of the institution made during or at the conclusion of the exercise of discretionary power conferred by or under an enactment or scheme administered by the institution.
Under both FIPPA and MFIPPA, the exemption does not apply to records that are more than twenty years old.
Further, under FIPPA only, this exemption does not apply to a record that has been publicly cited by the head of an institution as a basis for making a decision or formulating policy.
Public Interest Override
The public interest override applies to this exemption.
Law Enforcement
The discretionary exemption for law enforcement protects various types of records and activities relating to justice issues such as:
- Policing;
- Investigations;
- Prosecutions;
- Court proceedings;
- Intelligence information;
- Crime prevention;
- Corrections; and
- Safety and security.
The legislation defines law enforcement as:
- Policing,
- Investigations or inspections that lead or could lead to proceedings in a court or tribunal if a penalty or sanction could be imposed in those proceedings, or
- The conduct of proceedings referred to in (b).
The context for law enforcement records has been found to be broader than criminal law and policing. The exemption applies to all federal and provincial laws and municipal by-laws that provide authority for law enforcement.
Some institutions also have broad regulatory and law enforcement powers established by a statute. Examples include the Ministry of Labour’s ability to investigate under the Occupational Health and Safety Act and the Office of the Fire Marshal under the Fire Prevention and Protection Act.
An institution’s records may fall under the law enforcement exemption because the institution:
- Has law enforcement responsibilities for other organizations; or
- Is the subject of an investigation.
An institution is not required to carry out law enforcement activities for the exemption to apply to a record under its custody or control.
The exemption allows an institution to refuse to confirm or deny the existence of a record under this exemption where:
- The record, if it exists, would quality for exemption under this section; and
- Disclosure of whether the record does or does not exist would, in and of itself, disclose enough information that could reasonably be expected to harm an interest protected by the exemption.
A harms test applies to where the phrase “could reasonably be expected to” is used. Detailed and convincing evidence has been found to be necessary is order to show that the risk of harm is well beyond the merely possible or speculative although it need not prove that that disclosure will in fact result in such harm.
The law enforcement exemption has several subsections that address a range of scenarios.
Each of the scenarios listed in the subsections of the exemption will be discussed below. A head may refuse to disclose a record where the disclosure could reasonably be expected to:
Interfered with a Law Enforcement Matter
This exemption applies if disclosure could reasonably be expected to interfere with a law enforcement matter.
“Interfere” has been interpreted to mean that the disclosure would have the effect of hindering or impeding the carrying out of a law enforcement activity. Interfere does not mean that disclosure would altogether prevent a law enforcement investigation from taking place, but rather that disclosure would frustrate or impede the carrying out of an investigation.
A “matter” may go beyond a specific investigation, such as a firearm registry database created and used by the police or a prosecution before a court.
For this exemption to apply, the law enforcement matter must be ongoing.
Interfere with a Law Enforcement Investigation
An institution may refuse to disclose a record where the disclosure could reasonably be expected to interfere with an investigation undertaken with a view to a law enforcement proceeding or from which a law enforcement proceeding is likely to result.
An "investigation" is the methodical determination of facts and gathering of evidence. In some cases, the evidence gathered in an investigation will be insufficient to support the commencement of a proceeding in a court or tribunal. A record of the investigation could still be exempt, however, since it is undertaken with a view to a law enforcement proceeding.
An “internal or employment-related investigation” may also be a “law enforcement investigation” if it:
- Involves the police, or result in subsequent police investigation; or
- Leads to a proceeding that could result in internal discipline, termination of an employee or other actions.
Reveal Investigative Techniques
This subsection applies where disclosure could reasonably be expected to reveal investigative techniques and procedures in use or likely to be used in law enforcement. Institutions should be able to demonstrate that disclosure of the technique or procedure to the public would hinder or compromise its effective utilization. If the technique or procedure is generally known to the public, reliance on this exemption would not be successful.
Reveal a Confidential Source
An institution may refuse disclosure where it would reveal the identity of a confidential source of information in respect of a law enforcement matter, or disclose information furnished only by the confidential source.
A “confidential source of information” must have a reasonable expectation that the information provided would be kept confidential, based on the sensitivity of the matter and seriousness of consequences.
Endanger the Safety of a Law Enforcement Officer or Any Other Person
An institution may refuse disclosure of a record where it would endanger the safety of a law enforcement officer or any other person. This provision is similar to the danger to safety and health exemption in the legislation.
Compromise a Fair Trial or Impartial Adjudication
This exemption prevents premature disclosure of information that could deprive a person of a fair trial or impartial adjudication. Once the proceeding has been completely disposed of (including appeals), the exemption no longer applies. In order to demonstrate unfairness under this subsection, the institution must produce more evidence than the mere commencement of a legal action. The institution must present specific arguments as to how or why disclosure of specific parts of the record could reasonably be expected to deprive a person of a fair trial or impartial adjudication.
This subsection does not contain a reference to law enforcement and, accordingly, the exemption could apply to proceedings that do not fall within the definition of law enforcement such as tribunals established by law to adjudicate individual or collective rights. There must be evidence that the disclosure of the records would result in unfairness.
The term “person” is not limited to a specific person and may include some unknown person or persons in the future.
Reveal Intelligence Information
This subsection exempts from disclosure records where the disclosure could reasonably be expected to interfere with the gathering of or reveal law enforcement intelligence information respecting organizations or persons.
“Intelligence information” is defined as information gathered by a law enforcement agency in a covert manner with respect to ongoing efforts devoted to the detection and prosecution of crime or the prevention of possible violation of law.
Reveal Confiscated Records
This exemption applies where disclosure would actually release confiscated records or could reasonably be expected to reveal records confiscated by a peace officer in accordance with an act or regulation.
Endanger the Security of Property
Disclosure may be refused where it could reasonably be expected to endanger the security of a building or the security of a vehicle carrying items (e.g., things or articles), or of a system or procedure established for the protection of items, for which protection is reasonably required.
Facilitate Escape
Records are exempt where the disclosure could reasonably be expected to facilitate the escape from custody of a person who is under lawful detention. Custody indicates that an individual is not free to leave a place of confinement without restriction. In general, any person held in custody pursuant to a valid warrant or other authorized order is under lawful detention.
The term "facilitate" means make easier or less difficult. The exemption has been found to apply, for example, to construction plans and specifications regarding a maximum security facility. It is not necessary that the plans be extremely detailed.
The fact that the plans for the secured facility were available to the public in the past does not mean that this section requires that they continue to be available. There must still be a determination of whether the current plans under the current circumstances would reasonably be expected to facilitate an escape.
Jeopardize the Security of a Centre for Lawful Detention
This provision exempts records where disclosure could reasonably be expected to jeopardize the security of a centre for lawful detention. This includes records containing details of previous investigations of escape attempts and details of security measures in place.
Facilitate an Unlawful Act
Records are exempt where the disclosure could reasonably be expected to facilitate the planning or committing of an unlawful act or hamper the control of a crime. “Unlawful conduct” means a violation of a statute or regulation or of a municipal by-law.
The exemption also lists a number of records that may be exempted based on their type or nature. For these records, the institution does not need to prove that the disclosure of the record would result in a specific harm unless the wording of the subsection indicates that requirement. A head may refuse a record that is:
A Law Enforcement Report
This subsection exempts from disclosure a report prepared in the course of law enforcement inspections or investigations by an agency responsible for enforcing and regulating compliance with a law.
A "report" must consist of a formal statement or account of the results of the collation and consideration of information. Generally speaking, reports would not include mere observations or recordings of fact.
"Agency" includes organizations acting on behalf of or as agents for law enforcement agencies.
Protected by an Act of Parliament
This subsection exempts a law enforcement record where disclosure would be an offence under an Act of Parliament.
For example, the Youth Criminal Justice Act makes it an offence to knowingly disclose certain court, police and government records relating to young offenders, except as authorized by that Act.
Could Expose Someone to Civil Liability
This subsection exempts a law enforcement record where disclosure could reasonably be expected to expose the author of the record, or any person who had been quoted or paraphrased in the record, to civil liability.
Civil liability could include lawsuits against law enforcement officials, witnesses or informants for defamation.
Related to a Person Under the Control or Supervision of a Correctional Authority
This subsection exempts records that contain information relating to an individual’s correctional history while the individual is under the control or supervision of a correctional authority.
This exemption applies to individuals on parole, probation, a temporary absence permit, under bail supervision or performing community service work.
Exceptions
There are two categories of exceptions to the exemption:
- Routine inspection reports; and
- Law enforcement program success (e.g., statistical analysis).
As discussed above, reports prepared in the course of law enforcement, inspections or investigations are a type of report which is exempt from disclosure, but routine inspection reports are not included in this exemption. “Routine inspections” are inspections that are carried out by an agency with statutory authority to enforce and regulate compliance with standards (e.g. the enforcement or compliance branch of an institution); and where there are no specific allegations that standards have been breached. However, other exemptions, such as personal privacy, may apply to portions of these records.
The exception for law enforcement program success means the exemption cannot be applied to statistical analyses of law enforcement programs unless the disclosure of such a record may prejudice, interfere with or adversely affect any of the matters referred to in those sections.
Public Interest Override
The public interest override does not apply to this exemption.
Civil Remedies Act, 2001
This discretionary exemption allows institutions to withhold information that could reasonably be expected to interfere with the ability of the Attorney General to determine whether a proceeding should be commenced under the Civil Remedies Act, 2001, conduct a proceeding under that Act, or enforce an order under that Act.
Institutions may also refuse to confirm or deny the existence of a record if it would likewise impact the ability of the Attorney General to undertake the same processes related to the Civil Remedies Act, 2001.
Public Interest Override
The public interest override does not apply to this exemption.
Prohibiting Profiting from Recounting Crimes Act, 2002
This discretionary exemption allows institutions to withhold information that could reasonably be expected to interfere with the ability of the Attorney General to determine whether a proceeding should be commenced under the Prohibiting Profiting from Recounting Crimes Act, 2002, conduct a proceeding under that Act or enforce an order under that Act.
Institutions may also refuse to confirm or deny the existence of a record if it would likewise impact the ability of the Attorney General to undertake the same processes related to the Prohibiting Profiting from Recounting Crimes Act, 2002.
Public Interest Override
The public interest override does not apply to this exemption.
Relations with Other Governments
The FIPPA exemption for relations with other governments is discretionary; however, it is a mandatory exemption under MFIPPA. While this exemption is discretionary under FIPPA, if an institution wishes to disclose records for which the head has reason to believe this exemption applies, the head must obtain prior approval from the Executive Council.
Under both statutes, this exemption protects records which could reasonably be expected to reveal information received in confidence by an institution from another government or its agencies, or an international organization of states or its bodies.
Under FIPPA, this exemption also applies where the disclosure of the record could reasonably be expected to prejudice the conduct of intergovernmental relations.
"Other governments" include the:
- Government of Canada;
- Government of Ontario (for MFIPPA institutions);
- Another provincial or territorial government;
- A government of a foreign country or state;
- An agency of government referred to above; or
- An international organization of states (e.g. United Nations).
Ontario municipalities are not considered “other governments” under either legislation.
There are further differences in the wording of this exemption between FIPPA and MFIPPA. For example, within MFIPPA, the exemption explicitly states that institutions shall disclose a record to which the exemption applies if the government, agency or organization from which the record was received consents to the disclosure. There is no similar expressed provision in FIPPA.
The types of records that may come under this exemption include letters, meeting notes or minutes, transcripts of confidential meetings, draft agreements, briefing materials, presentations, and reports.
An institution must provide evidence that the record was received implicitly in confidence. For example, a record may be clearly marked “in confidence” or the parties may have an agreement that supports confidentiality.
Public Interest Override
The public interest override applies to this exemption.
Relations with Aboriginal Communities
This discretionary exemption would allow institutions to withhold records where disclosure could reasonably be expected to prejudice the conduct of relations between an Aboriginal community and the institution; or reveal information received in confidence from an Aboriginal community by an institution.
The exemption is similar to the exemptions for relations with other governments.
In the legislation, an “Aboriginal community” means:
- A band within the meaning of the Indian Act (Canada),
- An Aboriginal organization or community that is negotiating or has negotiated with the Government of Canada or the Government of Ontario on matters relating to,
- Aboriginal or treaty rights under section 35 of the Constitution Act, 1982, or
- A treaty, land claim or self-government agreement, and
- Any other Aboriginal organization or community prescribed by the regulations.
The regulations under FIPPA and MFIPPA do not, at this time, identify any other “Aboriginal organizations.”
In Ontario, Aboriginal people belong to a rich and diverse range of communities, cultures, membership and affiliations. Section 35 of the Constitution Act, 1982 uses the term “aboriginal peoples of Canada” to include the “Indian, Inuit and Métis peoples of Canada”.
If it is unclear if a specific community or organization is captured in the definition, Coordinators may wish to seek advice from Legal Counsel.
Public Interest Override
The public interest override applies to this exemption.
Defence
This discretionary exemption protects the national defence of Canada and international relations. Defence includes the prevention of attacks or other acts of aggression. The exemption also addresses espionage, sabotage and terrorism. The focus is on prejudice and injury that may result from disclosure.
The exemption extends to protect foreign states allied or associated with Canada from prejudice or injury resulting from disclosure of a record. An allied state is one with which Canada has concluded formal alliances or treaties. An associated state is a state with which Canada may be linked for trade or other purposes outside the scope of a formal alliance.
Defence is primarily a federal concern. However, the Ontario government may have records that relate to national defence as a result of working in areas of broader international concern or negotiations such as:
- The environment;
- Energy;
- Emergency planning;
- Immigration;
- Economic development,
- Trade;
- Education; and
- Cultural and social matters.
The Ontario government is consulted by the federal government and may act on its own in contacting representatives of other governments. As such, there is a range of provincial diplomatic activity which generates records relating to international relations.
Factual information relating to defence or international relations can be sensitive and require protection from disclosure. Factual information may include technical and non-technical information.
It is difficult to predict future events and what information may be of interest to a foreign government or a hostile party. Whether portions or types of information are available from other public sources has been found to be not, on its own, a determinative factor. The inclusion of factual or other information in a record exempt under defence may result in all of the information in the record being exempt.
An institution must seek Cabinet consent to disclose a record under the defence exemption.
Public Interest Override
The public interest override does not apply to this exemption.
Third Party Information
This mandatory exemption protects confidential information supplied to institutions by a third party. A third party can be any supplier of information to an institution that meets the section requirements including a:
- Person;
- Group;
- Committee;
- Organization,
- Institution; or
- Business, including contracted vendors.
Generally, an employee of an institution and other institutions under the legislation are not considered a third party.
The exemption does not protect all third party information but informational assets that have “value” such as:
- Trade secrets;
- Scientific information;
- Technical information;
- Commercial information;
- Financial information; and
- Labour relations information.
Institutions typically have third party information because of:
- Legal or regulatory requirements such as assessments or reporting; and
- For the purchase of goods and services including information received in a competitive bidding process.
The exemption is intended to protect the position and interests of a third party rather than the institution. The areas of possible harm are:
- Significant prejudice to a competitive position or significant interference with contractual or other negotiations;
- Similar information no longer being supplied to an institution where it is in the public interest that similar information continue to be so supplied;
- Undue loss or gain;
- Revealing information relating to a labour relations dispute; and
- Revealing tax information relating to tax liabilities and collection (FIPPA only).
There must be a reasonable expectation of harm to the third party not merely speculation of harm.
A three-part test must be met for the exemption to apply. Each part must apply in order for the exemption to apply. If information fails one part of the three-part test, further analysis would not be required and the exemption could not be claimed. The three-part test requires that:
- The records must include information that is a trade secret, or scientific, technical, commercial, financial or labour relations information.
- a) The information must be supplied by the third party to the institution.
b) The information must be supplied in confidence< implicitly or explicitly. - The disclosure of the information could reasonably be expected to cause one or more of the specified harms above.
An institution may disclose records if the third party or third parties to whom the information relates consent to the disclosure.
Part 1: Type of Information
The legislation identifies six types of information eligible for the exemption. The list below provides a definition and examples of each. The terms have specific meanings and are distinct from each other.
Trade secret: A formula, pattern, compilation, program, method, technique, or process or information contained or embodied in a product, device or mechanism which (i) is, or may be used in a trade or business, (ii) is not generally known in that trade or business, (iii) has economic value from not being generally known, and (iv) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Examples include software or hardware system, a vaccine formula, and an algorithm.
Scientific: An organized field of knowledge in either the natural, biological or social sciences or mathematics that must also relate to observing and testing specific hypotheses or conclusions and be undertaken by an expert in the field. Examples include research, results of raw data analysis, and chemical substance testing.
Technical: An organized field of knowledge that would fall under the general categories of applied sciences or mechanical arts, and will usually involve information prepared by a professional in the field. Examples include records relating to architecture, engineering, electronics, or construction including drawings, site plans and specifications for building.
Commercial: The buying, selling or exchange of products or services, and can apply to both profit-making and non-profit organizations. Examples include product information, tenders, marketing strategies, cost quotations, price, supplier, and customer lists, client information, and business proposals.
Financial: Specific data and information that relates to finance or money matters, including the use and distribution of money. Examples include accounting methods, financial statements, pricing practices, bid information, property tax information, sales revenues, and employment costs.
Labour relations: The collective bargaining relationship between an employer and its employees. Examples include records relating to the impact of human resources policies, labour dispute plans and pay equity plans.
Part 2a: Supplied by a Third Party
Information is supplied when a third party gives or submits it to an institution and the information is not subject to change. The manner in which information is supplied is not relevant.
If a record includes information that may reveal or enable an inference to be made about information supplied by a third party, it may still qualify as being supplied.
Below is a list of examples where information could be considered to be supplied by a third party:
- The third party is required by statute to supply the information;
- The third party supplied the information in response to a request for proposal (RFP);
- The third party supplies specific product or technical details as a schedule to an agreement or contract with an institution; and
- The third party submits test results.
Information is not considered supplied when:
- The institution produces or calculates the information independently;
- The information is generated together by a third party and an institution;
- The information is a product of negotiations; and
- The information is merely about a third party.
Below is a list of examples where information would not be considered to be supplied by a third party:
- An employee of an institution performs an inspection of a third party;
- A project status report;
- A negotiated agreement between an institution and a third party; and
- Procurement evaluation information (that does not include informational assets taken directly from a RFP, methodology, and results.
A negotiated agreement between an institution and a third party normally does not qualify as having been supplied because terms of contracts are generally mutually generated by both the institution and the third party, rather than “supplied” by the third party. This applies even when the contract is preceded by little or no negotiation or where the final agreement reflects information that originated form a single party.
There are two exceptions to this general rule which are described as the “inferred disclosure” and “immutability” exceptions. The “inferred disclosure” exception applies where disclosure of the information in a contract would permit accurate inferences to be made with respect to underlying non-negotiated confidential information supplied by the third party to the institution. The immutability exception arises where the contract contains information supplied by the third party, but the information is not susceptible to negotiation. An example would be schedules to a contract that include detailed price lists for services or products supplied by the vendor.
Part 2b: Supplied in Confidence
A third party must have an expectation of confidentiality at the time the information was supplied. The expectation can be:
- Implicit – meaning it is understood without being stated directly; or
- Explicit – meaning stated directly or explained so that you cannot doubt what is meant.
The main factors that have been used to determine reasonableness are set out below.
- If the document marked as “Confidential”;
- If the third party communicated to the institution that the record is confidential and is to be kept confidential; or
- If a confidentiality clause in a contract.
Factors to consider when determining if the information was protected as confidential include:
- Was access to the record or information limited, such as being available on a “need to know” basis?
- Was a policy for security or recordkeeping followed?
- Hs the record been consistently treated as confidential by the third party through demonstrated concern for its protection from disclosure prior to disclosure to the institution?
- Was the information available to the public through other sources?
- Did the institution or third party publicly disclose the information?
- Was the information guarded from competitors?
- Was the information prepared for a purpose that would not include disclosure?
- Does the record reveal the substance negotiations?
Part 3: Expectation of Harm
The discussion of harm is concerned with the third party whose information may be disclosed, not the institution. In some cases a harm may also occur to another person, group, or to an organization, other than the third party.
Both an institution and the third party should provide representations about harms. More than one of the harms can apply to the information but at least one must apply.
The third party is in the best position to make a strong and informed argument regarding the likelihood of harms. The particular facts of each case must be evaluated. The evidence must be detailed and convincing.
The Courts and the IPC have confirmed that the “could reasonably be expected” threshold does not require proof that harm is probable or that on a balance of probabilities the harm will occur. There must, however, be a reasonable basis to support the identified risk. The party relying on the exemption must show that the risk of harm is well beyond the merely possible or speculative using detailed and convincing evidence.
Below is a discussion of some types of harms and circumstances where these harms could be found to “reasonably be expected to” result after the disclosure of the third party information.
Competitive position: For this harm to meet the test, the impact must be significant. The factors that have been found to be relevant include:
- A competitive industry;
- A critical success factor to a business;
- Time and expense invested in development;
- Usefulness to a competitor;
- Detailed pricing or breakdown of pricing; and
- A measureable harm or injury.
Interference with contractual obligations or negotiations: For this harm to meet the test, the impact must be significant. This section is often applied in the context of commercial or union negotiations that have not been finalized.
Similar information no longer supplied: For this harm to meet the test, the supply of information must be voluntary and there must be a public interest in the continued supply of the information. This harm is concerned with situations where a third party, faced with the prospect that their information will be disclosed under the legislation, may no longer voluntarily supply similar information in the future to the institution.
Undue loss or gain: For this harm to meet the test, the loss or gain must be undue which means:
- Excessive,
- Disproportionate,
- Not suitable, and
- Not owed.
Losses and gains are generally argued together because a loss to one party usually means a gain to another party. Losses or gains are generally related to investments of money, time, and effort; and impact revenues. The possibility of a law suit is not sufficient grounds for the exemption to apply
The loss or gain can be to any person, group, committee, financial institution or agency, and not necessarily to the third party submitting the information.
Labour relations disputes: For this harm to meet the test, individuals or third parties must be appointed under law to resolve a labour relations dispute. Examples include mediators, conciliation, review, and labour relations officers. Harm would be found to result if disclosure of the record could be reasonably expected to reveal the information produced for or prepared by these third parties.
Tax Information
Under FIPPA only, there is an additional exemption for tax information. Disclosure must reveal information obtained on a tax return, or information gathered to collect or determine a tax liability of a specific taxpayer.
The tax information section only applies to FIPPA and the harms test of “could be reasonably expected to” does not apply.
Public Interest Override
The public interest override applies to this exemption.
Economic and Other Interests
This discretionary exemption allows institutions to protect certain proprietary information and prevent the premature disclosure of certain plans or negotiating strategies. This gives the Ontario government and institutions similar protection to that given to third parties under the third party information exemption.
The protections are focused on issues such as:
- Generating revenue,
- Competitive position,
- Monetary gain or loss, and
- Strategic positioning.
The exemption covers various business roles and activities of the Ontario government and institutions such as:
- Engaging in commercial activities;
- Conducting research;
- Managing finances and the economy;
- Carrying out negotiations;
- Managing the administration of institutions and personnel;
- Proposing plans, policies, and projects;
- Conducting examinations and testing; and
- Deciding on municipal boundary submissions.
The exemption protects the parties involved from gaining any advantages or disadvantages from the disclosure of information. The exemption takes into account the impact of premature disclosure of information in activities that are current or not yet completed.
The protections are against prejudice or injury. A harms test applies to some but not all of the subsections.
The exemption has nine subsections. Some of these refer to the Government of Ontario broadly, some refer to an institution, and some refer to both.
In some subsections “information” is referenced generally and in others specific types of information or records are identified and the definitions of these terms must be applied in the analysis.
Commercial Information
This exemption is commonly referred to as commercial information. The definitions are the same as the third party information exemption, with the exception of labour relations which is omitted. It has a three part test.
The institution must establish that the information contained in the record:
- Is a trade secret, or financial, commercial, scientific or technical information; and
- Belongs to the Government of Ontario or an institution; and
- Has monetary value or potential monetary value.
Part 1: Type of information
This exemption identifies five types of information:
- Trade secret;
- Scientific information;
- Technical information;
- Commercial information; and
- Financial information.
Definitions based on interpretations of these types of information can be found in the above section on the third party exemption.
Part 2: Belongs to an institution
The information must belong to the Government of Ontario or an institution.
“Belongs to” refers to more than just bare or simple ownership or possession. There must also be some proprietary interest. A proprietary interest can be an intellectual property interest. Examples include copyright or trademark.
A proprietary interest can also exist where the law would recognize a substantial interest in protecting the information from misappropriation by another party. Examples include trade secrets, customer or supplier lists, or price lists.
The information may belong to the institution with custody of the record or another institution. If the information is in the public domain, the exemption may not apply.
Part 3: Monetary value
The information must have monetary value or potential monetary value which means that the information can yield a price in the market or is potentially marketable.
Monetary value can be established by demonstrating:
- A market or demand for information;
- Similar records are available for a fee (more than just an administrative fee);
- Willing buyers and sellers for the information; and
- An intention to provide the information for monetary gain.
Employee Research
This exemption protects information obtained through employee research where disclosure could reasonably be expected to deprive the employee’s priority of publication.
The definition of research is the same as in other sections. Research has been defined by the IPC as “a systematic investigation designed to develop or establish principles, facts or generalizable knowledge, or any combination of them, and includes the development, testing and evaluation of research.”
The research must be linked to a specific researcher. There must be strong evidence of an intention to publish such as:
- A sworn affidavit;
- A document prepared for internal peer review;
- An announcement at a conference; or
- Having data already available for publication.
The exemption does not apply to raw data.
Economic and Competitive Interests of an Institution
This exemption protects an institution’s economic interests and competitive position against prejudice. This has been interpreted to not require that the information belong to the institution that is claiming the exemption. To claim this exemption, the institution must provide detailed and convincing evidence that disclosure could reasonably be expected to prejudice the economic interests or competitive position of an institution.
Economic interests concern the production, distribution and consumption of goods and services, related costs and prices.
Competitive position applies where institutions are engaged in the supply of goods and services for profit and compete for business on a competitive basis.
The exemption does not apply where an institution has a monopoly or there are no competitors. Also, certain information may lose value as it gets dated.
Questions to consider in determining if this exemption applies include: Could the institution pay a higher price for goods and services if the information is disclosed? Could the institution lose revenue if the information is disclosed?
An institution should have the ability to negotiate the best possible deal regardless of the type of contract. Contractual negotiations are implicit in some of the examples above but the exemption may also apply to financial settlements.
Relevant factors relevant in assessing whether records relating to contractual negotiations are exempt could include:
- Are the negotiations current?
- Will disclosure affect the willingness of parties to negotiate in the future?
- Will disclosure affect the institution’s ability maximize profits?
- Will there be a chilling effect on future business ventures?
- Will disclosure affect Ontario’s ability to prepare and submit competitive bids for industry (compared to other provinces)? or
- Is a significant donation involved?
The exemption is found not to apply to contract information that may help a competitor in other ways such as responsibility for delays, non-performance, revenue sharing, term of the agreement, or termination provisions.
The exemption does not apply to disclosure of a final agreement unless it can be established that other parties may use past information or reveal information about the institution’s position, such as whether the institution is willing to absorb costs. Also, a confidentiality clause in settlement agreements may not be enough for the exemption to apply.
Government’s Financial Interests and Managing the Economy
This exemption protects the broader economic interests of Ontario against injury. Where economic interests are negatively affected, financial interests are usually also affected. To claim this exemption the institution must provide detailed and convincing evidence that disclosure could reasonably be expected to be injurious to the financial interests of the government or to manage the economy of Ontario.
Examples of how financial interests of the Government of Ontario may be affected include:
- Where the government is the sole shareholder;
- Where the government faces serious threats to economic security;
- Where the government faces security threats to infrastructure or buildings;
- Where the government may be required to make a significant financial payment as a remedy;
- Where the integrity of a government system could be jeopardized.
There must be a link between disclosure of a record and the injury. The exemption does not apply to an injury that may result from the government’s own conduct or practices.
Proposed Plans or Criteria for Negotiations
This exemption protects the ability of the Government of Ontario or an institution to negotiate effectively with third parties.
A negotiation means discussions and communications where the government or an institution and a third party are seeking to arrive at a legally binding agreement, settlement or contract.
Negotiations must be in the context of financial, commercial, labour, international or similar situations such as:
- Aboriginal land claims;
- Commercial fishing agreements;
- Allocation of forest resources; and
- Settlement of litigation.
This exemption does not apply where the government is consulting stakeholders with a view to developing policy or legislation, or regarding possible litigation.
The exemption applies to positions, plans, procedures, criteria, or instructions to be applied to any negotiations.
A plan is defined as a formulated and detailed method by which a thing is to be done, or a design or scheme.
Positions, procedures, criteria, instructions are pre-determined courses of action or ways of proceeding, and includes comments on the strength of positions, bottom line or fall-back positions, options, or tactics developed as part of the negotiation process.
The exemption has a four-part test:
Part 1: The records must contain positions, plans, procedures, criteria or instructions.
Part 2: The records must be applied to or intended to be applied to the negotiations.
Part 3: The negotiations must be current and ongoing which means carried on or to be carried on.
Part4: The negotiations must be conducted by or on behalf of an institution or the Government of Ontario.
The exemption does not apply to:
- Factual information used to develop positions, plans etc.;
- Information that could apply to future negotiations not yet contemplated, planned or started; or
- Minutes of settlement, release, and resignation with an employee.
Plans for Management of Personnel or Administration
This exemption protects plans relating to managing personnel or the administration of an institution that are not yet in operation or public. The purpose is to protect an institution’s internal management plans such as a reorganization, relocation, or creation of an agency prior to implementation.
The timing and the nature of the plan are important factors. A plan must have sufficient detail to qualify such as methods, schemes or designs, recommendations, and plans for action. A plan that has been put into effect or been announced does not qualify.
The exemption has a three part test:
Part 1: A record must contain a plan or plans.
Part 2: The plan or plans must relate to the management or personnel of the administration of the institution.
Part 3: The plan or plans have not yet been put into operation or made public.
Proposed Plans, Policies and Projects
The exemption protects proposed plans, policies or projects that may result in:
- Premature disclosure of a pending policy decision; or
- Undue financial benefit or loss to a person.
A harms test must be met, meaning that the institution must be able to demonstrate a harm would likely result from the disclosure of these records. The exemption only applies when one of the two specified results can reasonably be expected to occur due to the disclosure. Records must be prescriptive rather than descriptive.
The term proposed means a planned undertaking that has not already been completed. There must be a decision which the institution has already made.
A pending policy decision refers to a situation where a decision has been reached but not yet implemented. The exemption may apply to operational decisions depending on the circumstances of each case.
Undue means excessive, disproportionate, not suitable, and not owed, similar to how it has been interpreted in other sections.
The exemption does not refer to a situation where a policy paper or consultations undertaken for a policy review, or a policy decision is before an institution for consideration or deliberation.
The undue financial benefit or loss must be to the third party and not the institution.
Examinations and Testing
This exemption protects questions used in examinations and tests by institutions with an educational purpose which is generally informed by the mandate of the organization, such as schools, colleges, universities.
The exemption covers questions that:
- Are to be used; or
- Have been used that can lead to an accurate inference of future questions.
Relevant factors include:
- The difficulty of generating new questions;
- If a re-use protocol is in place; and
- If feedback is given without returning tests.
The fact that an institution may choose to re-use the same questions is not sufficient to satisfy the requirement. Other factors must exist for the exemption to apply to reused questions.
The wording of the exemption is different under FIPPA and MFIPPA. The FIPPA exemption broadens the wording to include testing procedures and techniques.
Another difference is that FIPPA includes a harms test while MFIPPA does not. FIPPA requires that the disclosure could reasonably be expected to prejudice the use or results of the tests or testing procedures and techniques.
Municipal Boundary Submissions
This exemption protects submissions made by a municipality or other body in respect of a matter under the Municipal Boundary Negotiations Act before this statute was repealed by the Municipal Act, 2001. The matter must have been commenced before the repeal and it must not be resolved yet.
Quality of Care Information
This exemption protects information provided in confidence to a hospital, or records prepared with the expectation of confidentiality by a hospital committee, to assess or evaluate the quality of health care and directly related programs and services provided by a hospital, if the assessment or evaluation is for the purpose of improving that care and the programs and services.
Exceptions
Only FIPPA provides for exceptions to the economic and other interests exemption. The exemption does not apply to a record that contains the results of product or environmental testing carried out by or for an institution, unless:
- Testing is done as a service for a fee to a person, group of persons or an organization other than an institution; or
- Testing was conducted as preliminary or experimental tests for the purpose of developing methods of testing.
Public Interest Override
The public interest override provision applies to this exemption.
Universities, Colleges and Hospitals Closed Meetings
The discretionary exemption for closed meetings applies to universities, colleges and hospitals. It is similar to the draft by-laws and closed meetings exemption under MFIPPA and provides universities, colleges and hospitals with similar confidentiality provisions in the deliberative processes of their respective governing bodies.
The exemption is intended to be limited and specific and to protect deliberations where the substance of those deliberations deals with the:
- A draft of a by-law, resolution, or legislation; and
- Litigation or possible litigation.
The exemption requires that a meeting and deliberations take place. A meeting is not any gathering. A meeting occurs where attendees come together for the purpose of exercising their power or authority or in preparation of doing so. Deliberations refer to discussions conducted with a view towards making a decision.
The exemption requires that meetings be held in the absence of the public which are generally known as in camera meetings. The requirements for an in camera meeting include:
- Legal authority under a statute to hold a closed meeting;
- That the body holding the closed meeting has proper legal authority;
- That the closed meeting was properly convened in the absence of the public; and
- That meeting records are kept confidential.
Exceptions
The exemption does not apply when the information is not held confidentially or the subject matter of the deliberations was considered in a meeting open to the public.
The exemption does not apply to records that are more than twenty years old.
Public Interest Override
The public interest override applies to this exemption.
Solicitor-Client Privilege
The discretionary exemption of solicitor-client privilege covers records subject to the common law solicitor-client privilege (referred to as “Branch 1”). The exemption also covers records prepared by or for Crown counsel or counsel employed or retained by an institution, for use in giving legal advice or in contemplation of litigation or for use in litigation (referred to as “Branch 2”).
"Legal advice" includes a legal opinion about a legal issue and a recommended course of action based on legal considerations. It does not include information which was provided about a matter having legal implications where no legal opinion was expressed or where no course of action based on legal considerations was recommended. The fact that a lawyer reviewed a record does not of itself mean that the record falls within the exemption.
The opinion of an institution’s legal advisors should always be sought before this exemption is used. Institutions must take care to ensure that legal opinions are not released to another party as the solicitor-client privilege might be jeopardized.
Branch 1 –The common law privilege applies to:
- All communications, verbal or written, of a confidential character, between a client, or their agent, and Legal Counsel employed by the institution, directly related to seeking, formulating or giving of legal advice or legal assistance (including the Legal Counsel’s working papers directly related thereto); and
- Papers and materials created or obtained especially for a Legal Counsel’s brief for litigation, whether existing or contemplated.
For solicitor-client privilege to apply, four criteria must be met:
- There must be a written or oral communication;
- The communication must be of a confidential nature;
- The communication must be between an institution and a Legal Counsel; and
- The communication must be directly related to seeking, formulating or giving legal advice.
Solicitor-client privilege protects the confidentiality of communications between Legal Counsel and a client to ensure full, free and frank communications. This privilege is permanent, subject to waiver. A confidential relationship is essential condition of the effective administration of justice.
Branch 2 – Records Prepared by or for an Institution’s Legal Counsel for Use in Giving Advice or Contemplation of Litigation: This branch of the exemption applies to all materials prepared for use in actual or contemplated litigation. The records do not have to contain confidential communications between the institution and counsel or be communications at all.
For a document to be "prepared… in contemplation of litigation", two criteria must be met:
- Contemplated litigation must be the dominant purpose for preparing the record, and
- There must be a reasonable prospect of such litigation at the time the document was prepared; the litigation must be more than just a vague or theoretical possibility.
Litigation privilege applies to settlement and mediation records that are considered confidential communications between parties trying to settle a dispute, including oral and written communications made with a view to reconciliation and settlement.
Litigation privilege has been found to extend to alternate dispute resolution records.
Common law litigation privilege applies only until the end of the litigation; however, the statutory litigation privilege has been found to be permanent.
This is similar to the common-law privilege but specifically identifies the lawyer as being Crown counsel or counsel employed or retained by an educational institution or hospital. The privilege applies to both advice given and records made in contemplation of for use in litigation.
Counsel employed by the Ontario government, including outside counsel retained by the Ontario government are “Crown” counsel.
In government, the solicitor-client relationship is typically between the institution’s counsel and the institution. When Legal Counsel advises on non-legal issues, it is not considered legal advice. The exemption does not apply just because Legal Counsel reviews a document. Advice must be related to legal issues.
Waiver of Solicitor-Client Privilege
Solicitor-client privilege is a client’s privilege, and a client may decide to disclose privileged information obtained from their Legal Counsel and in this way “waive” the privilege.
Waiver does not occur where the disclosure of information is required by law. It is also not considered to be waived if privileged information is shared with other employees within an institution or department.
Waiver is established where the client as the holder of the privilege:
- Knows of the existence of the privilege;
- Voluntarily demonstrates an intention to waive the privilege;
- The record was disclosed to an outside party; or
- The communication was made in open court.
Disclosure of privileged information to outsiders generally constitutes waiver. For example, waiver would be applied to a letter sent between opposing counsel.
Solicitor-client privilege is not considered to be waived when records are provided to the IPC for the purposes of an appeal.
A waiver does not necessarily occur when a small amount of information from the conclusion of a legal opinion or a summary statement of a legal opinion is disclosed. The substance of the whole legal opinion may remain privileged.
A waiver does not occur when solicitor-client privileged information is shared among parties who are found to have a common interest. Examples of where common interest may exist include:
- The sender and receiver anticipate litigation against a common adversary;
- A legal opinion was distributed to a group of entities in connection with shared advice; and
- Multiple parties shared a legal opinion in confidence in an effort to put them on equal footing in negotiations.
This exemption is considered to be class-based and therefore records subject to this exemption cannot be severed, but rather are withheld in full.
Public Interest Override
This exemption is not subject to the public interest override.
Danger to Safety or Health
This discretionary exemption is focused on serious threats to the safety or the health of an individual if a record is disclosed. The term individual is meant to include any individual, regardless of whether the individual is acting in a personal or professional capacity.
Generally an individual is identifiable or named but it is not necessary for the exemption to apply.
The exemption may also apply in situations where an individual is:
- Acting on behalf of a group;
- A member of a group at risk; or
- Employed to do dangerous or controversial work.
This exemption is related to the law enforcement exemption which protects against danger to the life or physical safety, but not the health, of law enforcement officers and any other person.
A harms test has been developed for this exemption. The harms test does not require the institution to prove that harm resulting from the disclosure is probable, but that there is a reasonable basis for believing that disclosure could “seriously threaten the safety or health of an individual.”
The reasonable expectation of harm must be objective rather than subjective. There must be clear and direct evidence of a connection between the disclosure of the contents of the record and the expectation of harm.
An individual’s fear alone may not be enough to satisfy the requirement. Factors to consider when determining if the harms test is met include:
- An actual threat;
- Persistent and harassing behaviour;
- Pattern of abusive and intimidating correspondence;
- Past violent behaviour;
- Likelihood of retaliation;
- History of frivolous or vexatious complaints;
- Time between alleged behaviour and request.
The exemption may be found to apply where a record reveals a physical location that may be linked to an individual.
The exemption does not apply to general or statistical information, for example in a case concerning suicide statistics. The statistics did not reveal the locations or methods of the suicides and the institution was found not to have provided enough evidence of a reasonable expectation of harm resulting from the disclosure of the statistics.
Public Interest Override
The public interest override applies to this exemption.
Personal Privacy
This mandatory exemption protects the personal information of individuals other than the requester, except in the circumstances specified in this section. See Chapter 7: Privacy Fundamentals, for a detailed definition of personal information.
This section is one of the keystone provisions in the legislation. It balances the public’s right of access to records and the individual’s right of privacy respecting personal information.
This exemption requires institutions to refuse disclosure of personal information to individuals other than to which the information relates except in the circumstances specified in the legislation.
The exemption also allows institutions to disclose personal information in certain circumstances, as set out below.
Written consent: When an individual provides written consent to the disclosure of their personal information to another person.
Health and safety of an individual: When compelling circumstances affecting the health or safety of an individual require disclosure. Institutions must provide notification of the disclosure to the affected individual at the individual’s the last known address.
Public record: When the personal information was collected and is maintained specifically for the purpose of creating a record available to the general public. For more information on personal information maintained for the purposes of creating a public record, see Chapter 7: Privacy Fundamentals.
Authorized by statute: When an Act of Ontario or Canada expressly authorizes the disclosure of personal information.
Research agreement: Personal information can be disclosed for research purposes if certain conditions are met. For more information on research agreements, see Chapter 6: Managing the Request Process.
No unjustified invasion of privacy: Disclosure of personal information is also permitted if the disclosure would not constitute an unjustified invasion of privacy.
The exemption sets out a non-exhaustive list of criteria for determining whether the disclosure of personal information would constitute an unjustified invasion of privacy. Some of the criteria favour disclosure, while others favour non-disclosure of personal information. Criteria that favour disclosure include:
- Is the disclosure is desirable for the purpose of subjecting the activities of the Government of Ontario and its agencies to public scrutiny?
- May access to the personal information promote public health and safety?
- Would access to the personal information promote informed choice in the purchase of goods and services? and
- Is the personal information relevant to a fair determination of rights affecting the person who made the request?
Criteria that favour non-disclosure include:
- Would the individual to whom the information relates be exposed unfairly to pecuniary or other harm?
- Is the personal information highly sensitive?
- Is the personal information unlikely to be accurate or reliable?
- Was the personal information supplied by the individual to whom the information relates in confidence? and
- Would the disclosure unfairly damage the reputation of any person referred to in the record?
The exemption also sets out the types of personal information that, if released, are presumed to result in an unjustified invasion of personal privacy. The list includes personal information that:
- Relates to medical, psychiatric or psychological history, diagnosis, condition, treatment or evaluation;
- Was compiled and is identifiable as part of an investigation into a possible violation of law, except to the extent that disclosure is necessary to prosecute the violation or to continue the investigation;
- Relates to eligibility for social service or welfare benefits or to the determination of benefit levels;
- Relates to employment or educational history;
- Was obtained on a tax return or gathered for the purpose of collecting a tax;
- Describes an individual’s finances, income, assets, liabilities, net worth, bank balances, financial history or activities, or creditworthiness;
- Consists of personal recommendation or evaluations, character references or personnel evaluations; and
- Indicates the individual’s racial or ethnic origin, sexual orientation or religious or political beliefs or associations.
The exemption further sets out instances where the disclosure of personal information would not constitute an unjustified invasion of personal privacy. These instances include:
Certain employee information: The classification, salary range and benefits, or employment responsibilities of an individual who is or was an officer or employee of an institution or a member of the staff of a minister. Disclosure of exact salary information and other details related to employees of an institution, in some cases, may constitute an unjustified invasion of personal privacy.
Details of contracts for personal services: Financial or other details of a contract for personal services between an individual and an institution.
Discretionary financial benefits: In FIPPA only, details of a licence or permit or a similar discretionary financial benefit conferred on an individual by an institution or a head under circumstances where the individual represents one per cent or more of all persons and organizations in Ontario receiving a similar benefit, and the value of the benefit to the individual represents one per cent or more of the total value of similar benefits provided to other persons and organizations in Ontario.
Personal information about a deceased individual: Personal information about a deceased individual may be disclosed to the spouse or a close relative of the deceased individual, if the head is satisfied that, in the circumstances, the disclosure is desirable for compassionate reasons.
The legislation defines “close relative” a parent, child, grandparent, grandchild, brother, sister, uncle, aunt, nephew or niece, including by adoption.
Compassionate circumstances are not defined in the legislation; however, the IPC has found that compassionate circumstances includes when providing the information will allow close family members to have more information about the circumstances surrounding the death of a loved one, or to help provide closure.
The legislation allows an institution to not confirm or deny the existence of a record if disclosure of the existence of a record would constitute an unjustified invasion of privacy. If the decision to not confirm or deny the existence of a record is appealed to the IPC, an institution must provide detailed and convincing evidence that:
- The disclosure of the mere existence of the requested records would convey information to the requester, and
- This nature of this information alone would constitute an unjustified invasion of privacy.
For example, an institution may refuse to confirm or deny the existence of a record where acknowledging the existence of a record would confirm that an individual was the subject of a law enforcement investigation.
Though not expressed in the legislation, the IPC has considered the absurd result principle in adjudicating appeals related to this exemption. The absurd result principle states that to prevent disclosure of information which the requester had provided to a government body would be a manifestly absurd result, and the exemptions related to privacy protection would not apply in these circumstances. The absurd principle applies where the requester originally supplied the personal information of others or the requester is otherwise aware of it. For example, when the requester is seeking access to his or her own witness statement given to the police.
Public Interest Override
The public interest override applies to this exemption.
Species at Risk
This discretionary exemption under FIPPA has no MFIPPA equivalent. It makes reference to the provisions in the Endangered Species Act, 2007.
This exemption permits an institution to withhold information that could reasonably be expected to lead to the killing, harming, harassing, capturing or taking a living member of a species that is at risk of extermination.
Further, information that could reasonably be expected to lead to the possessing, transporting, collecting, buying or selling of a living or dead member of a species would also be exempt from disclosure.
Finally, information that if released could reasonably be expected to lead to the damaging or destroying of the habitat of a species at risk would also be exempt.
For the list of species at risk, see Ontario Regulation 230/08.
Public Interest Override
The public interest override applies to this exemption.
Information Soon to be Published
This discretionary exemption provides institutions with the ability to exempt information that is already publicly available or published or will be published within 90 days of receipt of the request, or within such time as is necessary for printing or translating material.
This exemption also allows institutions to refer requesters to existing publications and information that is, or soon will be, publicly available.
According to decisions of the IPC, in order for the institution to claim this exemption, the requested record must be either published or publicly available through a regularized system of access. Examples of a regularized system of access include a public library or a government publication centre.
Where there is a fee to obtain the information, the information may still be considered publicly available as long as the fee is applied to anyone who wishes to obtain the information and the fee is not prohibitively expensive. The pricing structure of the supplier does not have to align with the fees set out in the legislation.
Public Interest Override
The public interest override does not apply to this exemption.
Exclusions
In addition to the exemptions that are listed above, the legislation also establishes classes of information that are excluded from coverage of the legislation.
Unlike exemptions, exclusions are classes of information where the public has no general right of access to the information. Though information may be excluded from the legislation, institutions may still choose to provide public access to the information. However, such access would be at the sole discretion of the institution based on the institutions own policies.
The sections below describe each exclusion and identify any exceptions to the exclusions. Where an exclusion only applies to a specific institution or type of institution (such as hospital or educational institution) this will be noted.
Private Donations to Archives
FIPPA s. 65 (1) / MFIPPA s. 52 (2)
The legislation does not apply to records placed in the Archives of Ontario, the archives of a college or university, or the archives of a municipal institution when the donor of the records is not an institution under the either FIPPA or MFIPPA, or a health information custodian as defined in Personal Health Information Protection Act.
As such, records donated to archives by outside individuals, families, corporations, associations or groups do not become subject to the legislation when donated.
This exclusion does not apply to records deposited in the above mentioned archives by institutions. Government records that were previously subject to the legislation remain subject to the legislation after transfer to an archive.
Proceedings Before a Court
FIPPAdoes not apply to notes prepared by or for a person presiding in a proceeding in a court of Ontario if those notes are prepared for that person’s personal use in connection with the proceeding. A person presiding in a court of Ontario could be a judge or other judicial official.
The exclusion has not been found to extend to the notes of board members of tribunals. The IPC looks at whether a tribunal, as an institution, has custody or control over the notes of members in making its determination.
Performance Evaluations of Judges
FIPPA does not apply to “anything” contained in a judge’s performance evaluation or to “any information” collected in connection with a judge’s performance evaluation under the Courts of Justice Act.
Ontario Judicial Council Records
FIPPA does not apply to records of the Ontario Judicial Council where:
- The Council or its subcommittee has ordered that the record or information in the record not be disclosed or made public;
- The Council has determined that the record is confidential; or
- The record was prepared the record in connection with a meeting or hearing of the Council that was not open to the public.
The exclusion applies even if the record of the Council is in the possession of the Attorney General.
Investigations of Associate Judge
The legislation does not apply to records of a committee investigating a complaint against an associate judge under the Courts of Justice Act. This exclusion applies to records that are in the custody of the committee, the Chief Justice of the Superior Court of Justice, the Attorney General or any person if the following conditions apply:
- The committee has ordered that the record or information in the record not be disclosed or made public; or
- The record was prepared in connection with the committee’s investigation of the complaint and the complaint was not dealt with in a manner that was open to the public.
Prosecution Records
FIPPA s. 65 (5.2) MFIPPA s. 52 (2.1)
The legislation does not apply to a record relating to a prosecution if all proceedings with respect of the prosecution have not been completed. A prosecution is only considered completed when all appeal periods have expired.
The prosecution must be in regards to a criminal or quasi-criminal offence that will be brought before an Ontario court or other tribunal.
To qualify for the exclusion the information only requires “some connection” to the prosecution. The exclusion is not limited to just a Crown prosecutor’s brief.
Once the prosecution is over, the exclusion does not apply. The request for records must then be processed under the legislation, including consideration of any applicable exemptions.
Ecclesiastical Records
FIPPA does not apply to the ecclesiastical records of a church or religious organization that is affiliated with a college, university or hospital.
“Ecclesiastical records” are defined in FIPPA as the operational, administrative and theological records, including records relating to the practice of faith, of a church or other religious organization.
Hospital Foundation
FIPPA does not apply to records regarding the operations of a hospital foundation. It would seem likely that records of hospital foundations in the custody of hospitals remain excluded under the legislation.
Administrative Records of Health Professionals
FIPPA does not apply to the administrative records of health professionals that relate to the health professional’s personal practice.
Charitable Donations
FIPPA does not apply to records of charitable donations made to a hospital.
Labour Relations and Employment-Related
s. 65 (6), 65 (7) / s. 52 (3), 52 (4)
The legislation does not apply “to records collected, prepared, maintained or used by or on behalf of an institution in relation to any of the following”:
- Proceedings or anticipated proceedings before a court, tribunal or other entity relating to labour relations or to the employment of a person by the institution;
- Negotiations or anticipated negotiations relating to labour relations or to the employment of a person by the institution between the institution and a person, bargaining agent or party to a proceeding or an anticipated proceeding; and
- Meetings, consultations, discussions or communications about labour relations or employment-related matters in which the institution has an interest.
The exclusion has been interpreted broadly and most records that relate to employee management or labour relations are generally considered excluded. The exclusion is not time sensitive and once records are excluded, they remain excluded.
Labour relations generally refer to the relationship between a union and an employer in a unionized workplace.
Employment generally refers to the relationship between an employer and an employee
This exclusion would apply to records such as those regarding internal complaints against employees, investigations of employee misconduct, grievances under a collective agreement or arbitration proceedings. The exclusion also applies to records regarding former employees and individuals considered for employment through a hiring or recruitment process.
The exclusion would also apply to records regarding the planning of labour relations or employee related issues including legal opinion.
Exceptions
There are exceptions to this exclusion. The following types of records are considered to be subject to the legislation:
- An agreement between an institution and a trade union;
- An agreement between an institution and one or more employees which ends a proceeding before a court, tribunal or other entity relating to labour relations or to employment-related matters;
- An agreement between an institution and one or more employees resulting from negotiations about employment-related matters between the institution and the employee or employees; and
- An expense account submitted by an employee of an institution to that institution for the purpose of seeking reimbursement for expenses incurred by the employee in his or her employment.
The records listed above are subject to the legislation and therefore may be disclosed under a request, subject to a review for the application of any other exemptions that may apply to the records.
Church or Religious Appointments of Individuals
Hospitals engage church and religious individuals in various positions but these individuals may not be found to be “employees”. This exclusion provides similar protection to the employment records exclusion.
FIPPA does not apply to the appointment or placement of individuals by a church or religious organization within an institution, or within the church or religious organization. The exclusion applies to meetings, consultations, discussions or communications in the appointment process.
Hospital Appointments of Persons with Privileges
Many doctors and other professionals are granted privileges in hospitals but may be found to not be "employees". This exclusion provides similar protection to the employment records exclusion.
FIPPA does not apply to hospital appointments, the appointments or privileges of persons who have hospital privileges, or anything that forms part of their personnel file.
Adoptions Related
This exclusion applies to all FIPPA institutions and applies to the following information:
- Notices registered under section 48.3 of the Vital Statistics Act and notices and information registered under section 48.4 of that Act;
- Notices, certified copies of orders and other information given to the Registrar General under section 48.5-48.10 of that Act
- Disclosure vetoes registered under section 48.5 of the Vital Statistics Act; and
- Information and records in files that are unsealed under section 48.6 of the Vital Statistics Act.
Research and Teaching Material
FIPPA does not apply to the research and teaching work of employees or persons associated with an educational institution or hospital. This allows the exclusion to apply to students and other research partners who are not formally employed by the institution.
FIPPA does not apply to:
- Records respecting or associated with conducted or proposed research; and
- Records of teaching materials collected, prepared, or maintained for the institution.
The only difference between educational institutions and hospitals is that clinical trials are also excluded for hospitals.
The IPC has interpreted what is research and what is considered a research project through adjudicative decisions.
Research has been found to refer to “a systematic investigation designed to develop or establish principles, facts or generalizable knowledge, or any combination of them, and includes the development, testing and evaluation of research.”
Research must refer to a specific, identifiable project that has been conceived by a specific faculty member, employee or associate of an educational institution or hospital that can include a non-employee at an off-site location.
The phrase “conducted and proposed” requires consideration of the facts and context to determine what stage research is in.
Exceptions
An educational institution or hospital must disclose the subject matter and amount of funding being received for research projects undertaken by the institution or a person associated with the institution.
Peer Evaluations of Research and Teaching Materials
The term “peer evaluations” is not used in the wording of this exclusion. The legislation refers to evaluative or opinion material compiled in respect of teaching materials or research. This information is normally excluded from FIPPA.
Exception
Despite the exclusion, evaluative and opinion material compiled in respect of teaching materials or research is subject to FIPPA only in the context of an individual’s request for their own personal information. In the context of a personal information request, individuals maintain a right of access to this material, subject to limited and defined exemptions.
See Chapter 8: Personal Information and Correction Requests for more information on exemptions to the right of access to one’s own personal information.
Medical Assistance in Dying
FIPPA does not apply to “identifying information” in a record relating to medical assistance in dying.
In this section, “identifying information” means information that:
- Relates to medical assistance in dying, and
- Identifies an individual or facility, or for which it is reasonably foreseeable in the circumstances that it could be utilized, either alone or with other information, to identify an individual or facility.
“Medical assistance in dying” means medical assistance in dying within the meaning of section 241.1 of the Criminal Code of Canada.
Services Relating to Abortion
s. 65 (13), s. 65 (14), s.65 (15)
FIPPA does not apply to information relating to the provision of abortion services if:
- The information identifies an individual or facility, or it is reasonably foreseeable in the circumstances that it could be utilized, either alone or with other information, to identify an individual or facility; or
- Disclosure of the information could reasonably be expected to threaten the health or safety of an individual, or the security of a facility or other building.
In this subsection a “facility” includes reference to a pharmacy, hospital pharmacy or institutional pharmacy, as those terms are defined in subsection 1 (1) of the Drug and Pharmacies Regulation Act.
The legislation specifies that FIPPA applies to statistical or other information relating to the provision of abortion services that does not identify individuals or facilities or could not reasonably be expected to threaten the health or safety of an individual or security of a facility.