Access to Information Act (R.S.C., 1985, c. A-1)

Marginal note:Testing procedures, tests and audits

22 The head of a government institution may refuse to disclose any record requested under this Part that contains information relating to testing or auditing procedures or techniques or details of specific tests to be given or audits to be conducted if the disclosure would prejudice the use or results of particular tests or audits.

Marginal note:Internal audits

• 22.1 (1) The head of a government institution may refuse to disclose any record requested under this Part that contains a draft report of an internal audit of a government institution or any related audit working paper if the record came into existence less than fifteen years before the request was made.

• Marginal note:Exception

  (2) However, the head of a government institution shall not refuse under subsection (1) to disclose a draft report of an internal audit of a government institution if a final report of the audit has been published or if a final report of the audit is not delivered to the institution within two years after the day on which the audit was first commenced.

Marginal note:Protected information — solicitors, advocates and notaries

23 The head of a government institution may refuse to disclose any record requested under this Part that contains information that is subject to solicitor-client privilege or the professional secrecy of advocates and notaries or to litigation privilege.

Marginal note:Protected information — patents and trademarks

23.1 The head of a government institution may refuse to disclose any record requested under this Part that contains information that is subject to the privilege set out in section 16.1 of the Patent Act or section 51.13 of the Trademarks Act.

Statutory Prohibitions

Marginal note:Statutory prohibitions against disclosure

• 24 (1) The head of a government institution shall refuse to disclose any record requested under this Part that contains information the disclosure of which is restricted by or pursuant to any provision set out in Schedule II.

• (2) [Repealed, 2019, c. 18, s. 11]

Marginal note:Severability

25 Notwithstanding any other provision of this Part, where a request is made to a government institution for access to a record that the head of the institution is authorized to refuse to disclose under this Part by reason of information or other material contained in the record, the head of the institution shall disclose any part of the record that does not contain, and can reasonably be severed from any part that contains, any such information or material.

Refusal of Access

Marginal note:Refusal of access if information to be published

26 The head of a government institution may refuse to disclose any record requested under this Part or any part of a record if the head of the institution believes on reasonable grounds that the material in the record or in part of the record will be published by a government institution, agent of the Government of Canada or minister of the Crown — other than under Part 2 — within 90 days after the request is made or within any further period of time that may be necessary for printing or translating the material for the purpose of printing it.

Third Party Intervention

Marginal note:Notice to third parties

• 27 (1) If the head of a government institution intends to disclose a record requested under this Part that contains or that the head has reason to believe might contain trade secrets of a third party, information described in paragraph 20(1)(b) or (b.1) that was supplied by a third party, or information the disclosure of which the head can reasonably foresee might effect a result described in paragraph 20(1)(c) or (d) in respect of a third party, the head shall make every reasonable effort to give the third party written notice of the request and of the head’s intention to disclose within 30 days after the request is received.

• Marginal note:Waiver of notice

  (2) Any third party to whom a notice is required to be given under subsection (1) in respect of an intended disclosure may waive the requirement, and where the third party has consented to the disclosure the third party shall be deemed to have waived the requirement.

• Marginal note:Contents of notice

  (3) A notice given under subsection (1) shall include

  • (a) a statement that the head of the government institution giving the notice intends to release a record or a part thereof that might contain material or information described in subsection (1);

  • (b) a description of the contents of the record or part thereof that, as the case may be, belong to, were supplied by or relate to the third party to whom the notice is given; and

  • (c) a statement that the third party may, within twenty days after the notice is given, make representations to the head of the government institution that has control of the record as to why the record or part thereof should not be disclosed.

• Marginal note:Extension of time limit

  (4) The head of a government institution may extend the time limit set out in subsection (1) in respect of a request under this Part where the time limit set out in section 7 is extended under paragraph 9(1)(a) or (b) in respect of the same request, but any extension under this subsection shall be for a period no longer than the period of the extension under section 9.

Marginal note:Representations of third party and decision

• 28 (1) Where a notice is given by the head of a government institution under subsection 27(1) to a third party in respect of a record or a part thereof,

  • (a) the third party shall, within twenty days after the notice is given, be given the opportunity to make representations to the head of the institution as to why the record or the part thereof should not be disclosed; and

  • (b) the head of the institution shall, within thirty days after the notice is given, if the third party has been given an opportunity to make representations under paragraph (a), make a decision as to whether or not to disclose the record or the part thereof and give written notice of the decision to the third party.

• Marginal note:Representations to be made in writing

  (2) Representations made by a third party under paragraph (1)(a) shall be made in writing unless the head of the government institution concerned waives that requirement, in which case they may be made orally.

• Marginal note:Contents of notice of decision to disclose

  (3) A notice given under paragraph (1)(b) of a decision to disclose a record requested under this Part or a part thereof shall include

  • (a) a statement that the third party to whom the notice is given is entitled to request a review of the decision under section 44 within twenty days after the notice is given; and

  • (b) a statement that the person who requested access to the record will be given access thereto or to the part thereof unless, within twenty days after the notice is given, a review of the decision is requested under section 44.

• Marginal note:Disclosure of record

  (4) Where, pursuant to paragraph (1)(b), the head of a government institution decides to disclose a record requested under this Part or a part thereof, the head of the institution shall give the person who made the request access to the record or the part thereof forthwith on completion of twenty days after a notice is given under that paragraph, unless a review of the decision is requested under section 44.

29 [Repealed, 2019, c. 18, s. 12]

Complaints

Marginal note:Receipt and investigation of complaints

• 30 (1) Subject to this Part, the Information Commissioner shall receive and investigate complaints

  • (a) from persons who have been refused access to a record requested under this Part or a part thereof;

  • (b) from persons who have been required to pay an amount under section 11 that they consider unreasonable;

  • (c) from persons who have requested access to records in respect of which time limits have been extended pursuant to section 9 where they consider the extension unreasonable;

  • (d) from persons who have not been given access to a record or a part thereof in the official language requested by the person under subsection 12(2), or have not been given access in that language within a period of time that they consider appropriate;

  • (d.1) from persons who have not been given access to a record or a part thereof in an alternative format pursuant to a request made under subsection 12(3), or have not been given such access within a period of time that they consider appropriate;

  • (e) in respect of any publication or bulletin referred to in section 5; or

  • (f) in respect of any other matter relating to requesting or obtaining access to records under this Part.

• Marginal note:Complaints submitted on behalf of complainants

  (2) Nothing in this Part precludes the Information Commissioner from receiving and investigating complaints of a nature described in subsection (1) that are submitted by a person authorized by the complainant to act on behalf of the complainant, and a reference to a complainant in any other section includes a reference to a person so authorized.

• Marginal note:Information Commissioner may initiate complaint

  (3) Where the Information Commissioner is satisfied that there are reasonable grounds to investigate a matter relating to requesting or obtaining access to records under this Part, the Commissioner may initiate a complaint in respect thereof.

• Marginal note:Reasons for refusing or ceasing to investigate

  (4) The Information Commissioner may refuse or cease to investigate a complaint if, in the Commissioner’s opinion,

  • (a) the complaint is trivial, frivolous or vexatious or is made in bad faith; or

  • (b) an investigation or any further investigation is unnecessary having regard to all the circumstances of the complaint, including that the complaint is already the subject of an investigation or that the subject matter of the complaint has already been the subject of a report by the Commissioner.

• Marginal note:Notice

  (5) If the Information Commissioner refuses or ceases to investigate a complaint, he or she shall give a written notice to

  • (a) the complainant, stating the reasons for refusing or ceasing to investigate the complaint;

  • (b) the head of the government institution concerned, if the Commissioner provided the head of the institution with a notice under section 32;

  • (c) any third party that was entitled under paragraph 35(2)(c) to make and that made representations to the Commissioner in respect of the complaint; and

  • (d) the Privacy Commissioner, if the Information Commissioner consulted him or her under subsection 36(1.1) or section 36.2.

Marginal note:Written complaint

31 A complaint under this Part shall be made to the Information Commissioner in writing unless the Commissioner authorizes otherwise. If the complaint relates to a request by a person for access to a record, it shall be made within sixty days after the day on which the person receives a notice of a refusal under section 7, is given access to all or part of the record or, in any other case, becomes aware that grounds for the complaint exist.

Investigations

Marginal note:Notice of intention to investigate

32 Before commencing an investigation of a complaint under this Part, the Information Commissioner shall notify the head of the government institution concerned of the intention to carry out the investigation and shall inform the head of the institution of the substance of the complaint.

Marginal note:Notice to third parties

33 Where the head of a government institution refuses to disclose a record requested under this Part or a part thereof and receives a notice under section 32 of a complaint in respect of the refusal, the head of the institution shall forthwith advise the Information Commissioner of any third party that the head of the institution has notified under subsection 27(1) in respect of the request or would have notified under that subsection if the head of the institution had intended to disclose the record or part thereof.

Marginal note:Regulation of procedure

34 Subject to this Part, the Information Commissioner may determine the procedure to be followed in the performance of any duty or function of the Commissioner under this Part.

Marginal note:Investigations in private

• 35 (1) Every investigation of a complaint under this Part by the Information Commissioner shall be conducted in private.

• Marginal note:Right to make representations

  (2) In the course of an investigation of a complaint under this Part by the Information Commissioner, a reasonable opportunity to make representations shall be given to

  • (a) the person who made the complaint,

  • (b) the head of the government institution concerned,

  • (c) a third party if

    • (i) the Information Commissioner intends to make an order, under subsection 36.1(1), requiring the disclosure of a record or a part of a record — or to recommend the disclosure of a record or a part of a record — that contains, or that the Commissioner has reason to believe might contain, trade secrets of the third party, information described in paragraph 20(1)(b) or (b.1) that was supplied by the third party or information the disclosure of which the Commissioner can reasonably foresee might effect a result described in paragraph 20(1)(c) or (d) in respect of the third party, and

    • (ii) the third party can reasonably be located, and

  • (d) the Privacy Commissioner, if the Information Commissioner consults him or her under subsection 36(1.1) or section 36.2.

  However no one is entitled as of right to be present during, to have access to or to comment on representations made to the Information Commissioner by any other person.