Section 16 - Disclosure harmful to intergovernmental relations or negotiations

Overview

Section 16 is a discretionary exception to the public’s general right of access to government records under section 4 (Information rights) of the Act.  Section 16 gives the head discretion to refuse to disclose information which, if disclosed, could reasonably be expected to harm the conduct of intergovernmental relations.

Section Reference

Section 16 of the Freedom of Information and Protection of Privacy Act

16 (1) The head of a public body may refuse to disclose information to an applicant if the disclosure could reasonably be expected to

(a) harm the conduct by the government of British Columbia of relations between that government and any of the following or their agencies:

(i) the government of Canada or a province of Canada;

(ii) the council of a municipality or the board of a regional district;

(iii) an aboriginal government;

(iv) the government of a foreign state;

(v) an international organization of states,

(b) reveal information received in confidence from a government, council or organization listed in paragraph (a) or their agencies, or

(c) harm the conduct of negotiations relating to aboriginal self government or treaties.

(2) Moreover, the head of a public body must not disclose information referred to in subsection (1) without the consent of

(a) the Attorney General, for law enforcement information, or

(b) the Executive Council (cabinet), for any other type of information.

(3) Subsection (1) does not apply to information that is in a record that has been in existence for 15 or more years unless the information is law enforcement information

Summary

Section 16 gives the head discretion to refuse to disclose information which, if disclosed, could reasonably be expected to harm the normal process of intergovernmental relations or the supply of intergovernmental information.

This section protects from release the following three categories of intergovernmental information:

  • Information the disclosure of which could reasonably be expected to harm the conduct of relations between the government of British Columbia and the following external governmental entities or their agencies:

  • the government of Canada
  • another provincial government;
  • the council of a municipality or the board of a regional district;
  • an aboriginal government;
  • a government of a foreign state, or;
  • an international organization of states
  • Information received in confidence from any of the above mentioned governments, councils or organizations, or their agencies; and

  • Information the disclosure of which could reasonably be expected to harm the conduct of negotiations relating to aboriginal self government or treaties.

If the head intends to exercise discretion to disclose information in spite of the applicability of this exception, consent of the Attorney General or Executive Council must be obtained.

Section 16 cannot be applied to records which have been in existence for 15 or more years, unless the information in the records is law enforcement information.

Policy

  1. Section 16 is a discretionary section with the head of the public body responsible for exercising that discretion in deciding whether to release records.  The head of the public body should refuse to disclose information that is excepted under subsection 16(1) if the head has not received agreement to disclose from either the Attorney General, in the case of law enforcement records, or the Executive Council, for any other type of information.  The Intergovernmental Relations Branch will act on behalf of Executive Council with regard to records requiring their advice on release.

  2. Public bodies may apply paragraph 16(1)(a) regardless of the identity of the applicant.  The applicant may be one of the governments listed in subparagraph 16(1)(a)(i) through (v), yet the information may be withheld if disclosure could reasonably be expected to harm relations between the government of British Columbia and the government that has requested the information.

  3. Public bodies are not required to demonstrate a reasonable expectation of harm under paragraph 16(1)(b) when withholding information received in confidence.

  4. Public bodies should consult with the Ministry of Aboriginal Relations and Reconciliation and/or the Ministry of Attorney General (depending on the records) with regard to records involving an aboriginal government and the Ministry of Aboriginal Relations and Reconciliation with regard to records of a municipal council or regional district board.

Procedure

  1. Determine the age of the record.  Section 16 cannot be applied to records which have been in existence for 15 or more years unless the information is law enforcement information.  See calculation of time.  Other exceptions may apply.

  2. Preliminary Examination

  3. Line by Line Review 

    If necessary, consult with the appropriate Manager, Access (MA) to determine whether the record contains information that may be excepted in any of the following three categories:

    Harm to the conduct of relations

    Determine whether a reasonable person would expect that releasing the record would result in harm to the conduct of relations between the government of British Columbia and any of the governments, councils, or organizations listed in subparagraphs 16(1)(a)(i) through (v), or their agencies [paragraph 16(1)(a)].  In making this determination appropriate internal consultations should be made.

    Information received in confidence

    Determine whether a reasonable person would expect that release of the requested record would reveal information received in confidence from any of the governments, councils, or organizations listed in subparagraphs 16(1)(a)(i) through (v), or their agencies [paragraph 16(1)(b)].

    Harm to negotiations relating to aboriginal self government or treaties

    Determine whether a reasonable person would expect that releasing the record would result in harm to the conduct of negotiations relating to aboriginal self government or treaties [paragraph 16(1)(c)].

    If the examination of the record and the consultation process indicate that the record does not contain information falling within subsection 16(1), the exception does not apply.  Recommend to the head that the record be released, unless another exception applies.

  4. Section 16 consultations with other ministries, agencies or governments

    Consultations with the other government(s) involved assist in determining whether or not the exception applies, and ensure that the head is aware of all relevant factors in exercising discretion whether to release all or part of the record.  (The exercise of discretion is described under Step 5 below.)

    The Information Access Operations Managers, Access (MA) consults with the appropriate MA for section 16 consideration.  The MAs responsible for Freedom of Information (FOI) issues involving Intergovernmental Relations and containing law enforcement information, aboriginal land claims and/or municipal councils or boards of regional district should be consulted  Consultations with other governments are carried out through appropriate channels.

(i)   the government of Canada or the government of a province

In most cases requiring consultation with the federal government or another provincial government, the MA for the public body contacts his or her counterpart in the other government.

(ii)  the council of a municipality or the board of a regional district

Where relations with a municipality or a regional district may be affected the public body may consult with the FOI counterpart for the municipality or regional district.

In cases of doubt regarding the relevance of a document or the appropriate protocol for contact, consult with the MA for the Ministry of Aboriginal Relations and Reconciliation.

(iii)  an aboriginal government

It is recommended that the MA for the Ministry of Aboriginal Relations and Reconciliation and/or Ministry of Attorney General be advised of all cases where the consideration of the use of section 16 involves aboriginal governments. In cases of doubt regarding the relevance of a documentor the appropriate protocol for contact, consult with the MA for the Ministry of Aboriginal Relations and Reconciliation.

(iv)  the government of a foreign state

When consultation is required with a foreign government, Intergovernmental Relations Branch coordinates the consultation unless another established channel for direct liaison exists. If a public body with the consent of Intergovernmental Relations Branch then undertakes direct liaison, keep Intergovernmental Relations informed of the communications. In cases of doubt on the appropriate protocol for contact, consult with the MA for Cabinet Operations at an early stage of the line-by-line review if international relations or any significant intergovernmental issues are involved.

(v)  an international organization of states 

See (iv).

  1. Exercise of Discretion

  2. Severance

  3. Consent of Executive Council or Attorney General for section 16 If the head decides to exercise discretion to disclose non-law enforcement information to which section 16 applies, consent of Executive Council (Cabinet) must be obtained prior to disclosure.  For law enforcement information, to which section 16 applies, the head must obtain the consent of the Attorney General.  For all other records, to which section 16 applies, the MA for the public body contacts the MA for the Office of the Cabinet Operations, who will coordinate/obtain Executive Council consent.

    For law enforcement information, contact the MA for the Ministry of Attorney General to obtain the consent of the Attorney General.

  4. Notify any other government(s) involved of the final decision on whether or not to release information to which section 16 applies.

Interpretation

Interpretation Note 1 (Section 16(1)(a)):

Harm the conduct of relations

To harm relations means to damage or cause detriment to the conduct of relations.  A fear that disclosure would hinder, impede or minimally interfere with the conduct of intergovernmental relations or negotiations does not satisfy this harms test.

Any of the following:

Relations between public bodies as defined in Schedules 1 and 2 of the Act are generally not covered by this exception.  The only exceptions to this rule are municipalities and regional districts.

Councils of municipalities or boards of regional districts and aboriginal organizations exercising governmental functions are included in this list of external governmental bodies.

Government of British Columbia

This phrase refers to the government of British Columbia in a broad sense.  Government in this circumstance includes ministries, Crown corporations, agencies, commissions, and the public bodies listed in Schedule 2 of the Act.

The government of British Columbia is defined in the Interpretation Act as "Her Majesty in right of the Province". 

"Government" consists of the machinery by which the sovereign power in a state expresses its will and exercises its functions; or the framework of political institutions, departments, and offices, by means of which the executive, judicial, legislative, and administrative business of the state is carried on [Black's].

The use of "government of British Columbia" instead of "public body" indicates that the section 16 exception has a different and higher-level coverage than the section 17 exception (Disclosure harmful to the financial or economic interests of a public body).  Section 16 is available only where disclosure of information could reasonably to expected to harm the conduct of intergovernmental relations of the government of British Columbia, a larger concept than a public body.  Section 17 protects the financial and economic interests of either the smaller units of the government of British Columbia (public bodies) or the government of British Columbia itself.

Public bodies seeking to invoke the section 16 exception to protect the conduct of their relations with the governments listed in paragraph 16(1)(a) must demonstrate that the conduct of intergovernmental relations of the government of British Columbia, and not just those of the public body, would be harmed by disclosure.

"Relations" includes both formal negotiations and more general exchanges, (e.g., meetings between staff of federal and provincial agencies, communications between staff of federal and provincial bodies) and associations between the government of British Columbia and external entities.  These negotiations, exchanges or associations may be conducted by any officer or employee acting on behalf of the head of the public body.

Examples:

  • Correspondence between the Ministry of Attorney General and the British Lord Chancellor's Department in respect of the Hague Convention on the Civil Aspects of International Child Abduction.  (In this example, the harm test would probably be met because the release of exchanges between central authorities responsible for administering this convention could be expected to have a detrimental effect on future sharing of information).

  • A memo from the federal Minister of Sustainable Resource Management summarizing the terms of an agreement which has been publicly announced.  (In this example, the harm test would probably not be met.)

  • Communications between the Ministry of Attorney General and the British Columbia Board of Parole would not fall within this exception, because the Board of Parole is a public body as defined in Schedule 2 of the Act.

Paragraph 16(1)(a) may apply regardless of the identity of the applicant.  The applicant may be one of the governments listed in subparagraph 16(1)(a)(i) through (v), yet the information may be withheld if disclosure could reasonably be expected to harm relations between the government of British Columbia and the government that has requested the information.

Example:

  • An aboriginal government requests a copy of a provincial treaty negotiator's memorandum about the status of its negotiations with the aboriginal government.  The Ministry of Attorney General may withhold information in the memorandum if disclosure could reasonably be expected to harm the conduct of relations with the aboriginal government.

 An "agent" acts for or represents another by the latter's authority [Black's].

Consult with the MA for the Ministry of Aboriginal Relations and Reconciliation to confirm the status of an organization that may be acting as an agent of an aboriginal government.

Examples:

  • Human Resources Development Canada is an agency of the federal government.
  • UNESCO is an agency of the United Nations.
  • The Regional Planning Services is an agent of the Capital Regional District.

Government of Canada

"Government of Canada" refers to the government of Canada in a broad sense.

The government of Canada is defined in the Interpretation Act as "Her Majesty in the right of Canada…".

"Province of Canada" means recognized provinces and territories.

Council of a municipality or the board of a regional district

"Council" means the elected local administrative body of a municipality [OED].

"Board"  in relation to a regional district, means the board of directors for the regional district [Local Government Act, section 5].

"Municipality"

"Regional district" means a regional district defined in the Municipal Act [Interpretation Act, section 29]; which states in section 1:

"regional district" means a regional district incorporated under Part 24 of the Municipal Act, or under Part 24 of the Municipal Act, R.S.B.C. 1979, c. 290, as it read before it was repealed by the Municipal Amendment Act, 1989.

"Aboriginal government"

Consult with the MA for the Ministry of Aboriginal Relations and Reconciliation, to confirm the status of an organization that may be an aboriginal government but is not included under this definition (such as a Metis or Inuit organization).

Examples:

  • An Indian band.
  • A tribal council.

"Government of a foreign state" means the government of any foreign nationor state including the component state governments of federated states.

International organization of states

"State" means an organized political community under one government; a commonwealth; a nation [OED].

An "international organization of states" means any organization with members representing and acting under the authority of the governments of two or more states.

Examples:

  • United Nations
  • International Monetary Fund

Interpretation Note 2 (Section 16(1)(b)):

If release would reveal information received in confidence from one of the bodies specified,then the test of paragraph 16(1)(b) is met.  It is not necessary that the harm test set out in paragraph 16(1)(a) also be met.

Examples:

  • Confidential information shared between the Canadian Security Intelligence Service and provincial law enforcement agencies. 

  • Transcript of a confidential meeting between the western Premiers.  

  • Information supplied in confidence by the Health Protection and Environment Department, Capital Regional District, to the Ministry of Health Planning.

Interpretation Note 3 (Section 16(1)(c)):

"Negotiate"

To "harm the conduct of negotiations" means that the disclosure would damage or cause detriment to the conduct of ongoing or future negotiations.  A fear that disclosure would hinder, impede, or minimally interfere with the conduct of intergovernmental relations or negotiations does not satisfy this harm test.

Information about negotiations would include positions, options, instructions, and criteria to be used in negotiations.

This paragraph applies to ongoing or future negotiations.  Information from completed negotiations is not covered unless, the same strategy will be used again and it has not been revealed in the completed negotiations.

Aboriginal self government or treaties

Section 16(1)(c) covers negotiations relating to the assumption of governmental responsibilities by aboriginal organizations and to treaty negotiations on this and other issues, including land claims.

Example:

  • The amount of a land claims settlement which is less than what was originally targeted might be withheld until the completion of other ongoing negotiations, because it could affect the outcome of future settlements.

Interpretation Note 4 (Section 16(2)):

These paragraphs apply in cases where the head has determined that subsection 16(1) applies, but has decided to exercise discretion in favour of release. They place a mandatory limit on the head's discretion to disclose any of the types of information referred to in subsection 16(1).

Before exercising discretion to disclose non-law enforcement information covered by the intergovernmental relations exception, the head must obtain consent for the disclosure from the Executive Council (commonly known as Cabinet). The head must obtain the consent of the Attorney General for law enforcement information.

Ministries that have extensive ongoing relations with municipalities, regional districts or aboriginal governments may, in consultation with Cabinet Office or the Ministry of Attorney General for law enforcement information, develop procedures for obtaining consent from Executive Council or the Attorney General for the disclosure of information.

Interpretation Note 5 (Section 16(3)):

This subsection means that if part or all of a record is15 years old or older, then the head cannot withhold the information under subsection 16(1), unless the information is law enforcement information.  The head of the public body may withhold law enforcement information contained in a record which has been in existence for 15 or more years.

Other exceptions may apply to this information.

Is in a record that has been in existence for 15 or more years

Fifteen years means from a particular month and day to a corresponding month and day 15 years later.

See Calculation of Time for more details on determining the age of a record.

Example:

  • If a record was created on April 28, 1973, it would be 15 years old on April 29, 1988.

The age of a record may be ascertained by the date of the record or, if the record is not dated, by examining other dated records attached or in proximity to it.

  • Information relating to aboriginal land claims, contained within a memo received from the federal government, marked strictly confidential and 15 years and 1 day old must be released [unless another exception, such as section 17 (Disclosure harmful to the financial or economic interests of a public body) applies].

Sectional Index of Commissioner's Orders

For orders organized by the Act's section numbers, Click here.

For a summary of Commissioner's orders and policy interpretation of key points, Click here.

Last updated: July 13, 2007