Status of Board of Director meeting minutes under the Access to Information Act
Crown Corporation Issue Note
Can Crown corporations withhold board meeting proceedings and minutes?
The minutes of Crown corporation board meetings have always had the potential to be exempted from release under the Access to Information Act through the application of paragraph 21(1)(b) of the Act, a discretionary government operations exemption meant to protect accounts of consultations and deliberations, including minutes or portions of minutes.Footnote 1
Given questions over the interpretation of this provision in regards to Crown corporation board proceedings, the government pursued amendments to clarify the issue. Consequently, amendments to the ATIA were included within the Federal Accountability Act (FedAA), which received Royal Assent on December 12, 2006. Specifically, subsection 149(1) of the FedAA amended paragraph 21(1)(b) of the ATIA to include the word "directors" within the exemption (effective by Order in Council as of March 1, 2007) Footnote 2. Further, subsection 149(2) of the FedAA included a similar amendment adding "directors" in paragraph 21(2)(b) of the ATIA to the list of persons who can write a report that may be protected by subsection 21(1) Footnote 3. These amendments serve to remove any ambiguity as to whether records containing information involving Crown corporations' board members fall within these particular exemptions.
The FedAA also amended the definition of "government institution" to include all parent Crown corporations and their wholly owned subsidiaries (effective as of September 1, 2007).
Since paragraph 21(1)(b) covers 'an account of consultations or deliberations', any portion of the minutes that do not reflect consultations or deliberations may not be protected by this exemption. Other exemptions, however, may apply, depending on the content of the minutes. In addition, it is important to note that the nature of paragraph 21(1)(b) (both pre- and post-FedAA amendment) was and remains a discretionary exemption, as opposed to a mandatory exemption. Even in cases where all or parts of the minutes fall within the parameters of paragraph 21(1)(b), the institutional head (or his/her delegate) should properly exercise their discretion by considering whether or not to release the information. The severance principle in section 25 of the Act requires the release of any portions of a record that are not covered by an exemption or exclusion. Thus a full examination of the proceedings must always be carried out.
In practical terms, this means that some directors' meeting minutes may be kept confidential and not released, but the process for determining such confidentiality requires applying a discretionary exemption and full consideration of the severability for release of those parts of the documents that fall outside the scope of the exemption. Notably, in applying discretionary exemptions, Crown corporations are encouraged to be as transparent as possible, and to release or even proactively disclose any documents (or portions thereof) likely to be of interest to the media/public if their disclosure would not harm public or private interests.
It is important to remember that the application of exemptions is subject to complaint and examination by the Information Commissioner and review by the Federal Court of Canada.
Each Crown corporation may decide whether to treat the minutes of meetings of their Board of Directors as confidential. However, if a request is received under the Access to Information Act, the minutes must be reviewed on a line-by-line basis in order to determine whether they will be withheld in whole or in part.
January 10, 2008
Treasury Board Secretariat
Government Operations Sector
Legal Services, TBS
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