General

• For a record to qualify for exemption, an institution must show: 1) the records reveal information received from another government or its agencies; and 2) the information was received by an institution; and 3) the information was received in confidence. (Order #P-883)

• A head must apply his or her discretion to each record and cannot rely simply on "practical experience" to exempt a group of records under this exemption. (Order #P-56)

• This exemption requires that the expectation that disclosure of a record could prejudice the conduct of intergovernmental relations or reveal information received in confidence by the institution from another government or its agencies, must not be fanciful, imaginary or contrived, but rather one that is based on reason. (Orders #P-270, P-293, P-480)

• The Commission confirmed that reasonable expectation of harm required that the institution establish a clear and direct linkage between the disclosure of the information and the harm alleged. The Commission approved of the position taken by the Federal Court of Appeal in Canada Packers Inc. v. Canada (Minister of Agriculture) [1989] 1 F.C. 47 at 59-60, where the Court indicated that a "reasonable expectation of probable harm" was required. It also approved of the Federal Court Trial Division's decision in The Information Commissioner of Canada v. The Prime Minister of Canada, unreported, November 19, 1992, where the Court stated that the mere "possibility" of harm was not sufficient. The Court held that descriptions of possible harm, even in substantial detail, are insufficient in themselves. Justice Rothstein stated that: The Court must be given an explanation of how or why the harm alleged would result from disclosure of specific information. If it is self-evident as to how and why harm would result from disclosure, little explanation need be given. Where inferences must be drawn, or it is not clear, more explanation would be required. The more specific and substantial the evidence, the stronger the case for confidentiality. The more general the evidence, the more difficult it would be for a Court to be satisfied as to the linkage between disclosure of particular documents and the harm alleged...While the fact that the same or similar information is public is not necessarily conclusive of the question of whether or not there is a reasonable expectation of harm from disclosure of the information sought to be kept confidential, the burden of justifying confidentiality, would...be more difficult to satisfy. (Order #P-534)

• A proposed agenda and other records which would reveal the substance of Ontario's proposal to the federal government for resolving an international trade dispute were exempt. (Order #P-883)

• This order established a three part test for records to qualify under this section. In this Order, the test was restated, for the purpose of making it more straightforward: (Order #P-210) (1) the relations must be intergovernmental (2) that is relations between an institution and another government or its agencies; and (3) disclosure of the records could give rise to a reasonable expectation of prejudice to the conduct of intergovernmental relations. In this case, the Commission determined that the requested records, if disclosed, could reasonably be expected to prejudice intergovernmental relations between Ontario and Canada. This presumption was based on the sensitive and complex nature of land claims negotiations generally and the particulars of these records which included the need for ongoing negotiations to implement a land settlement agreement. (Order #P-908)

s.15(a) and (b)

• While Atomic Energy of Canada Ltd. (AECL) and Ontario Hydro are not governments, they are capable of conducting intergovernmental relations on behalf of their respective governments. As a Crown corporation, AECL exercises its powers only as an agent of the Crown. Similarly, Ontario Hydro is a Crown corporation and an agent of the Ontario government. Where they conduct business through a joint committee of representatives, information received by Ontario Hydro from AECL may be covered by s.15(b) [FIPPA]. (Order #P-270)

• A draft agreement between the federal government and the United States concerning beer trade was exempt. (Order #P-883)

s.15(a)

• To qualify for exemption an institution must establish that: 1) disclosure of the records could give rise to an expectation of prejudice to the conduct of intergovernmental relations; and 2) the relations which it is claimed would be prejudiced must be inter- governmental, that is relations between an institution and another government or its agencies; and 3) the expectation that prejudice could arise as a result of disclosure must be reasonable. (Order #P-883, P-908, P-949, P-908, P-946)

• A record that discloses the fact that a company will engage in negotiations with the federal government does not relate to intergovernmental relations between the province and the federal government. Also, the disclosure of a record containing an undertaking by the province to negotiate with the federal government cannot reasonably be expected to prejudice intergovernmental relations. (Orders #P-87, P-210, P-270, P-293, P-388, P-435, P-630)

• The fact that disclosure of the records would prejudice the relationship between the mining industry and the federal and provincial governments is not sufficient to satisfy this provision. It is intergovernmental relations that must be prejudiced in order to satisfy this exemption. (Order #P-388)

• The possibility that disclosure of the record would prejudice the relationship between the private sector and the government is not covered by this exemption. The prejudice must be to intergovernmental relations. (Order #P-435)

• A settlement proposal received by the provincial government between the Algonquins of the Golden Lake First Nation (AGL) and the Government of Canada and the Government of Ontario was held to be exempt under this provision. The Commission was satisfied that the process was sensitive and confidential and that prejudice between Ontario and Canada would result from untimely disclosure. In addition, the Commission ruled that the negotiations between Ontario and Canada are intergovernmental in nature. (Order #P-630, P-949)

• Disclosure of correspondence between counsel at the Ministry of the Attorney General and the British Lord Chancellor's Department in respect of the Hague Convention on the Civil Aspects of International Child Abduction could reasonably be expected to prejudice intergovernmental relations. (Order #P-236)

• Correspondence between the senior justice officials of two governments that deals with highly sensitive and controversial issues may be exempt. (Order #P-123)

• The relations in question must be intergovernmental rather than among agencies of the same government. (Order #P-859)

• Minutes of a meeting attended by federal and provincial tax administrators regarding the interpretation of tax laws fell under this exemption. (Order #P-876)

• Although the Federal government had not been provided with copies of the communications strategy for public consultation regarding fishing rights for First Nations, these records relate to matters in which the Federal Government had an interest and relate to its relationship with the province. (Order #P-961)

• The fact that the two Federal Government Departments most closely connected with the request had consented to the disclosure of certain of the records does not mean that disclosure would not prejudice the conduct of intergovernmental relations between Ontario and Canada. In this case, Ontario's argument persuaded the Commission that the exemption applied.(Order #P-961)

• While the records of discussions of the Board of Directors meetings were exempt under this provision, those portions of the minutes which contain the carried motions of the Canadian Blood Agency were not. They reflect the decisions of the Agency in relation to the regulation of the National Blood Supply Program, and therefore, would not prejudice the conduct of intergovernmental relations. (Order #P-1291)

• The Commission reconsidered the test it had developed as the standard for determining the application of this provision. The test should be restated as follows: In order for a record to qualify for exemption under this section, the parties resisting disclosure must establish that 1) the records relate to intergovernmental relations, that is relations between an institution and another government or its agencies; and 2) disclosure of the records could reasonably be expected to prejudice the conduct of intergovernmental relations. (Order #P-1406r)

s.15(b)

• The Toronto Stock Exchange is not a government agency and it is not "another level of government" for purposes of the section 15(b) exemption (Order # PO-1883)