Section 16 - Disclosure harmful to intergovernmental relations or negotiations

Overview

Section 16 is a discretionary exception to disclosure which gives the head discretion to refuse to disclose information that may be harmful to 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 Indigenous governing entity;

(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 Indigenous 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, 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

(a) law enforcement information, or

(b)  information referred to in subsection 1 (a) (iii) or (c)

Summary

The Government of British Columbia is frequently involved in activities that require intergovernmental collaboration to advance its interests and benefit its citizens. The exception to disclosure set out in section 16 is designed to ensure that disclosure of information through an access request does not put those important intergovernmental relationships or initiatives at risk. 

Section 16 gives the head discretion to refuse to disclose information which could reasonably be expected to harm intergovernmental relations involving the Government of British Columbia. It also allows the head to refuse to disclose information received in confidence from another governmental body, or records that may harm negotiations relating to Indigenous self-governance or treaties. 

Although this section is constructed as a discretionary exception, subsection 16 (2) places strict limits on the head’s exercise of discretion in favour of release. Heads are required to seek the consent of the Attorney General or Executive Council in order to exercise that discretion. 

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, information that would harm relations with an Indigenous governing entity, or information that could harm the conduct of negotiations relating to Indigenous self-government or treaties. 

Policy

1. The head of the public body must refuse to disclose information that is excepted under subsection 16 (1) unless the head has 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.  

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

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, information that would harm relations with an Indigenous governing entity, or information that could harm the conduct of negotiations relating to Indigenous self-government or treaties. See calculation of time. Other exceptions may apply.

2. Preliminary Examination

3. Line by Line Review 
   
   Harm to the conduct of relations

In order to withhold information under subsection 16 (1) (a), public bodies must be able to demonstrate that the disclosure of information will result in a reasonable expectation of probable harm to the conduct of relations between the government of British Columbia and any organization listed in subsection 16 (1) (a), or their agencies. The public body must be able to demonstrate that this harm is probable, not merely possible or speculative. Internal or external consultation may be helpful in making this determination. (See #4 below.)

Information received in confidence

Harm to negotiations relating to Indigenous self-government or treaties

In order to withhold information under subsection 16 (1) (c), public bodies must be able to demonstrate that the disclosure of information will result in a reasonable expectation of probable harm to the conduct of negotiations relating to Indigenous self-government or treaties. The public body must be able to demonstrate that this harm is probable, not merely possible or speculative. 

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 may assist in determining whether the exception applies. Consultations would typically only be done when the records, or information within records, originated from the other government(s) or are part of a shared initiative with the other government(s). For example, it would not be appropriate to ask another government to review records that are internal to the public body and which describe negotiation mandates, or strategies for interacting with that other government.

Some public bodies and Indigenous governing entities may not have significant expertise in the application of FOIPPA. It is often helpful to provide additional information and context regarding the purpose of the consultation and what type of input is being sought. 

For consultations with the government of Canada, the government of a province, the council of a municipality, or the board of a regional district, the FOI analyst sends a consultation request to the appropriate counterpart in the other government. 

For consultations with an Indigenous governing entity the FOI analyst sends a consultation request to an appropriate representative of the Indigenous governing entity.  

For consultations with the government of a foreign state or an international organization of states, the FOI analyst should seek advice from the Intergovernmental Relations Secretariat unless another established channel for direct liaison exists. 

5. Exercise of Discretion

Interpretation

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

Harm the conduct of relations

To harm the conduct of 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. The public body must be able to demonstrate that the harm is probable to occur, and that it’s more than merely possible or speculative. 

Government of British Columbia

Examples:

• A municipality has a large university campus within its borders. An access request turns up records where the municipality is highly critical of the university. Both the municipality and the university are public bodies under FOIPPA, and disclosure of this information might cause harm to the relationship between the two. However, section 16 (1) could not be used to withhold information in this scenario because the disclosure would not result in harm to any intergovernmental relations of the Government of BC. 

"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 public body. 

Section 16 may be used to sever information even if the information is about 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:

• A municipality is seeking provincial grant funding for a planned infrastructure project. The municipality submits an access request for records about that funding request. Although the records relate to a request made by the municipality, the Ministry may withhold information in accordance with 16 (1) if disclosure could reasonably be expected to harm the ongoing relationship between the government and the municipality. 

• An access request involves sensitive information that has been identified by an IGE as being harmful and, if disclosed, may disrespect the IGE and make them lose trust in the Province. The Ministry may withhold information in accordance with 16 (1) (iii) as the disclosure could reasonably be expected to harm the ongoing relationship between the government and the IGE. 

Agency (Agent)

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

Examples:

• Employment and Social Development Canada is an agency of the federal government. 
• UNESCO is an agency of the United Nations.
• The Capital Regional Housing Corporation is an agent of the Capital Regional District. 

Definitions related to other governments

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 City of Kelowna to the Ministry of Transportation and Infrastructure. 

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. The public body must be able to demonstrate that the harm is probable to occur, and that it’s more than merely possible or speculative. 
 
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. 

Indigenous self government or treaties

Section 16 (1) (c) covers negotiations relating to the assumption of governmental responsibilities by Indigenous organizations and to treaty negotiations on this and other topics of Indigenous self-government, including land claims. 

Example:

• A First Nation requests a copy of a provincial treaty negotiator's memorandum about the status of its negotiations with another First Nation. The Ministry conducting the negotiations may withhold information in the memorandum in accordance with 16 (1) (c) if disclosure could reasonably be expected to harm the ongoing negotiations with the other First Nation. 

• 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. 

• Information such as minimum and maximum costs of land claims and royalties might be withheld until the completion of the negotiation, because the information could affect the ongoing negotiation and harm the ability to negotiate using a confidential strategy. 

Interpretation Note 4 (Section 16(2)):

This subsection means that if part or all of a record is 15 years old or older, then the head cannot withhold the information under subsection 16 (1), unless the information is law enforcement information or relates to Indigenous governance. Other exceptions to disclosure 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, 2008, it would be 15 years old on April 28, 2023.

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 softwood lumber tariffs 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 applies). 

Sectional Index of Commissioner's Orders