Background
B’nai Brith Canada sought an unredacted copy of historian Alti Rodal’s report for the Commission of Inquiry on War Criminals. The report examined how alleged Nazi war criminals entered Canada after World War II, including the role of American intelligence agencies in facilitating the resettlement of former agents and suspected Nazi collaborators.
Library and Archives Canada released progressively less-redacted versions of the report but continued withholding information under the Access to Information Act. The remaining redactions included a U.S. official’s views about American immigration legislation, names and roles of foreign intelligence officials, descriptions and statistics concerning historical events, and RCMP file numbers. After the Information Commissioner upheld the remaining redactions, B’nai Brith applied to the Federal Court under section 41 of the Act.
The Court’s Holding
The Federal Court allowed the application in part. It upheld the mandatory exemption under section 13(1)(a) for one passage containing a U.S. intelligence official’s views about the “100 Persons Act.” Read in context, the information had been communicated confidentially to a senior RCMP official, and the evidence established that the United States had not consented to disclosure.
The Court rejected the section 15(1) exemptions. The Minister did not establish a reasonable expectation of probable harm to Canada’s international relations or to the detection, prevention, or suppression of hostile or subversive activities. General assertions about diplomatic tensions and the continued sensitivity of intelligence information did not demonstrate a clear, direct, and non-speculative connection between disclosure and present-day harm, particularly given the records’ age and the prior disclosure of some information.
The Court also found that Library and Archives Canada had exercised its section 15 discretion unreasonably by failing to give proper weight to the public’s right to know and the records’ historical importance. It ordered disclosure of all information withheld under section 15, confirmed the section 13 redaction, amended the style of cause to name the Minister of Canadian Heritage as the sole respondent, and awarded no costs.
Key Takeaways
- A government institution invoking section 15 must prove a reasonable expectation of probable harm through specific evidence connecting disclosure to a current, non-speculative injury.
- The age and historical significance of records, along with prior public disclosure of the same or similar information, weigh heavily when assessing injury and exercising discretion.
- Confidential information obtained from a foreign government remains subject to the mandatory section 13 exemption unless that government consents to disclosure or makes the information public.
Why It Matters
The decision reinforces the demanding evidentiary burden federal institutions face when withholding historically significant records under the Access to Information Act’s discretionary national-security and international-affairs exemption. Institutional expertise and a foreign ally’s preference for confidentiality cannot substitute for evidence of probable present-day harm.
It also confirms that access decisions must seriously weigh transparency, historical value, elapsed time, prior disclosure, and the public’s right to understand consequential episodes in Canada’s history.