Exemptions vs. Exclusions: What is the difference?

The Sailors Return (cropped)Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA) and its Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) both provide members of the public with a general right of access to government information, subject to certain exclusions and exemptions.  But what is the difference between an “exemption” and an “exclusion”?

In casual conversation, these terms are sometimes used interchangeably.  Both exemptions and exclusions can properly be cited as a justification to prevent the disclosure of records.  However, when used with reference to FIPPA or MFIPPA (the “Acts”), each of these words actually refers to a different part of the relevant FOI legislation, and there are real differences between them.

Exemptions

Let’s start first with a discussion of exemptions.  Here are the exemptions as set out in FIPPA:

  • Cabinet records (FIPPA, s.12) (mandatory)
  • Advice to government (FIPPA, s.13)
  • Law enforcement (FIPPA, s.14)
  • Civil Remedies Act, 2001 (FIPPA, s.14.1)
  • Prohibiting Profiting from Recounting Crimes Act, 2002 (FIPPA, s.14.2)
  • Relations with other governments (FIPPA, s.15)
  • Relations with Aboriginal communities (FIPPA, s.15.1)
  • Defence (FIPPA, s.16)
  • Third party information (FIPPA, s.17) (mandatory)
  • Economic and other interests of Ontario (FIPPA, s.18)
  • Information with respect to closed meetings (FIPPA, s.18.1)
  • Solicitor-client privilege (FIPPA, s.19)
  • Danger to safety or health (FIPPA, s.20)
  • Personal privacy (FIPPA, s.21) (mandatory)
  • Species at risk (FIPPA, s.21.1)
  • Information soon to be published (FIPPA, s.22)
  • Exemptions not to apply (FIPPA, s.23)

And here is the corresponding list of exemptions under MFIPPA:

  • Draft by-laws, etc. (MFIPPA s.6)
  • Advice or recommendations (MFIPPA s.7)
  • Law enforcement (MFIPPA s.8)
  • Civil Remedies Act, 2001 (MFIPPA s.8.1)
  • Prohibiting Profiting from Recounting Crimes Act, 2002 (MFIPPA s.8.2)
  • Relations with governments (MFIPPA s.9) (mandatory)
  • Relations with Aboriginal communities (MFIPPA s.9.1)
  • Third party information (MFIPPA s.10) (mandatory)
  • Economic and other interests (MFIPPA s.11)
  • Solicitor-client privilege (MFIPPA s.12)
  • Danger to safety or health (MFIPPA s.13)
  • Personal privacy (MFIPPA s.14) (mandatory)
  • Information soon to be published (MFIPPA s.15)

In both FIPPA and MFIPPA, the exemptions above are all listed under the heading “Exemptions”.  And the wording of an exemption in FIPPA and MFIPPA always takes one of the following forms: “A head shall refuse to disclose” (for “mandatory” exemptions, where the institution is required to not disclose the requested record) or “A head may refuse to disclose” (for “discretionary” exemptions, where the institution has a choice regarding whether or not to disclose the requested record).

For records to which FIPPA or MFIPPA applies, the basic rule is that everyone has a right of access to government-held information, unless there is an applicable exemption.  The reason for describing the exceptions to the general rule as “exemptions” is that although a particular record may be subject to FIPPA or MFIPPA (because the record is “in the custody or under the control of an institution” per s.10(1) of FIPPA or s.4(1) of MFIPPA), the record may be “exempt” from disclosure if one of the exceptions above applies.

An important point for understanding the distinction between exemptions and exclusions is that exemptions act on records which covered by FIPPA/MFIPPA, whereas exclusions serve to exclude records from FIPPA and MFIPPA completely.

Exclusions

Now let’s take a look at exclusions.

Here are the exclusions set out in FIPPA:

  • Private donations to archives (FIPPA s. 65(1))
  • Proceedings before a Court (FIPPA s.65(3))
  • Performance evaluations of judges (FIPPA s. 65(4))
  • Ontario Judicial Council records (FIPPA s. 65(5))
  • Case management master investigations (FIPPA s. 65(5.1))
  • Prosecution records (FIPPA s. 65(5.2))
  • Ecclesiastical records (FIPPA s. 65(5.3))
  • Hospital foundations (FIPPA s. 65(5.4))
  • Administrative records of health professionals (FIPPA s. 65(5.5))
  • Charitable donations (FIPPA s. 65(5.6))
  • Labour relations and employment-related (FIPPA s. 65(6))
  • Church or religious appointments of individuals (FIPPA s. 65(6)4)
  • Hospital appointments of persons with privileges (FIPPA s. 65(6)5)
  • Adoptions related (FIPPA s. 65(8))
  • Research and teaching materials (FIPPA s. 65(8.1))
  • Peer evaluations of research and teaching materials (FIPPA s. 65(10))
  • Medical assistance in dying (FIPPA s. 65(11))
  • Abortion related services (FIPPA s. 65(13), (14) and (15))

(Note some of these exclusions apply only to certain institutions covered by FIPPA; for example, the “Charitable donations” exclusion set out in s.65(5.6) applies only to charitable donations made to a hospital.)

And here are the exclusions set out in MFIPPA:

  • Private donations to archives (MFIPPA s. 52(2))
  • Prosecution records (MFIPPA s. 52(2.1))
  • Labour relations and employment-related (MFIPPA s.52(3))
  • Medical assistance in dying (MFIPPA s.52(5),(6))
  • HydroOne (MFIPPA s.52.1)

Exclusions can be used as a justification for refusing to disclose records despite the general disclosure obligation under FIPPA and MFIPPA, but the manner in which exclusions perform this function is different from the exemptions listed earlier.  Exclusions work by removing certain classes of records entirely from the FIPPA/MFIPPA regime; in other words, if an exclusion applies to a record, the record is “not covered” by FIPPA or MFIPPA.  This is different from an exemption, which serves as a basis for not disclosing a record that is covered by FIPPA or MFIPPA.

Does this distinction make any difference in practice?  Well, the first thing many FOI professionals will notice is that the wording of exclusions in FIPPA and MFIPPA is quite different from how exemptions are worded.  Rather than using the exemption wording of “A head shall [or may] refuse to disclose” a record, the wording of exclusions generally begins with “This Act does not apply to”, followed by a description of the kinds of records that are excluded from the Act.  Unless you know the difference between exclusions and exemptions, it can be hard to identify all of the exclusions in the Acts, and the result can be an institution wrongly coming to the conclusion that it is obligated to disclose a record when in fact there is a relevant exclusion that would apply.

Additionally, unlike mandatory exemptions, an exclusion does not prevent the institution from disclosing the requested record — it simply excludes such record from the mandatory disclosure scheme of FIPPA/MFIPPA.  Therefore, unless there is other applicable legislation or another reason for withholding the requested record, the institution is free to disclose an excluded record upon the receipt of a formal request or an informal request.

In this manner, exclusions are similar to discretionary exemptions, in that an institution can generally decide whether or not to disclose the requested record, subject to any other rules or policies that may apply.  That said, an institution’s disclosure analysis may be different for “excluded” records vs. “exempt” records; for example, when applying many exemptions, an institution is expected to consider whether “a compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption” (FIPPA s.23 / MFIPPA s.16).  If an institution’s decision not to disclose a record on the basis of one of these exemptions is appealed, the Information and Privacy Commissioner of Ontario (IPCO) has jurisdiction to overturn the institution’s decision and may order the disclosure of a record to the requestor on the basis of the “compelling public interest”.  In contrast, records covered by an exclusion are simply not part of the FOI regime; so long as IPCO agrees that the exclusion applies, it has no further jurisdiction under FIPPA/MFIPPA to order the disclosure of a record, even in the case of a compelling public interest.

This leads to an interesting question: should there be any right of appeal for a requestor if an institution refuses to disclose a record on the basis that an exclusion applies?  The requestor’s right of appeal to IPCO comes from s.50 of FIPPA itself, and s.39 of MFIPPA.  If the institution is correct and the exclusion applies, then the record would not be subject to the FOI regime set out under FIPPA/MFIPPA and the corresponding appeal process.  So, if an institution takes the position that a record is excluded from FIPPA or MFIPPA, does IPCO have any right to look at the relevant record for itself, and possibly overrule the institution’s decision that the exclusion applies?

IPCO dealt with this important question in Interim Order P-623, where it was determined that in the case of an appeal by a requestor, IPCO does retain the power to compel the production of all responsive records to IPCO — even those an institution claims are covered by an exclusion.  If ordered by IPCO, the institution must provide the relevant records to IPCO, and then IPCO will decide whether it agrees with the institution’s determination that the exclusion applies:

“This power to compel initially would be exercised for the limited purpose of determining whether or not the records fall within the scope of section 65(2)  of the Act.  If, having reviewed the records, I determine that the Ministry’s claim is correctly made, pursuant to section 65(2)  the records would be returned to the Ministry and the appeal would be closed, since I would not have the jurisdiction to conduct a further inquiry.  However, if I determine that the Ministry’s claim is not validly made with respect to some or all of the records (i.e., that section 65(2) does not apply to some or all of the records), then I will be required to proceed with the inquiry and determine the application of the Act to the records.” (IPCO Interim Order P-623)

This decision was upheld by the Divisional Court in Ontario (Minister of Health) v. Holly Big Canoe, Toronto Doc. 111/94 (Div. Ct.), and then affirmed by the Ontario Court of Appeal in Ontario (Minister of Health) v. Holly Big Canoe, 1995 CanLII 512 (ON CA).  In practice, this means that an institution’s determination that an exclusion should apply to certain requested records can be appealed and reviewed by IPCO in much the same way as an institution’s determination that an exemption is applicable.

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Links to Resources:

Freedom of Information and Protection of Privacy Act (FIPPA) https://www.ontario.ca/laws/statute/90f31

Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) https://www.ontario.ca/laws/statute/90m56

IPCO Interm Order P-623 https://decisions.ipc.on.ca/ipc-cipvp/orders/en/item/128743/index.do

Ontario (Minister of Health) v. Holly Big Canoe, 1995 CanLII 512 (ON CA) https://www.canlii.org/en/on/onca/doc/1995/1995canlii512/1995canlii512.html

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