3. Pursuing important principles of law

A fundamental principle of the Access to Information Act is that decisions on disclosure should be reviewed independently of government. The first level of review is by the Office of the Information Commissioner (OIC) through our investigation process. Once an investigation is completed and the findings are reported, there is a second level of review of refusals to grant access to records before the Federal Court. Court proceedings under the Act may be commenced in a number of instances:

  • When we conclude that a complaint is well founded and the institution does not act upon our formal recommendation to disclose records, we may, with the complainant’s consent, seek judicial review by the Federal Court of the institution’s refusal.
  • When the complainant, upon receiving our investigation report, is not satisfied with the Commissioner’s findings, the complainant may seek a judicial review of the institution’s refusal.
  • The Act also provides a mechanism by which a third party may apply for judicial review of an institution’s decision to disclose information that the third party believes should be withheld.

We may also be involved in other types of proceedings:

  • We may seek leave to intervene in proceedings that relate to access to information.
  • We may be called upon to defend the Commissioner’s jurisdiction or powers.

We also closely monitor other cases with potential ramifications for the OIC or for access to information in general, including cases started under section 44 of the Act in which third parties have challenged institutions’ decision to disclose requested information.

The following summaries review court decisions and ongoing cases in 2012–2013.

Decisions

An issue of protocol

Canada (Information Commissioner of Canada) v. Canada (Minister of Public Safety and Emergency Preparedness) et al., 2012 FC 877 (Federal Court) (T-146-11 and T-147-11) and A-375-12 (Federal Court of Appeal). See also, “Issue of Protocol” in our 2010–2011 annual report.

A requester sought access to a copy of the protocol between the Royal Canadian Mounted Police (RCMP) and the Department of Justice Canada regarding the principles governing the listing and inspection of RCMP documents in civil litigation.

The requester made two requests to obtain the protocol. One was sent to the RCMP, and the other to the Department of Justice Canada. In both cases, the institutions refused to disclose the protocol, invoking the exemptions under sections 21 (advice developed for government) and 23 (solicitor-client privilege) of the Access to Information Act.

The requester filed a complaint with us in relation to both refusals. The Commissioner conducted investigations and rejected the application of the exemptions. Once the investigations were completed, the Commissioner presented her findings to the institutions, which declined to implement her recommendations. The Commissioner then filed applications for judicial review, with the requester’s consent, under section 42 of the Act.

This case involved the following legal issues: Does the protocol contain information subject to solicitor-client privilege? If applicable, was discretion appropriately exercised? Does the protocol contain advice or recommendations developed by or for a government institution? If applicable, was discretion appropriately exercised?

Federal Court decision

According to the Federal Court, the protocol is not a communication designed to seek or provide a legal opinion; it therefore does not satisfy the second branch of the test developed to determine whether it is subject to solicitor-client privilege. The protocol is an agreement that imposes obligations on both parties. It was negotiated and signed by both parties and does not contain any advice. Therefore, the exemption under section 23 does not apply.

In addition, in the opinion of the Court, the protocol does not contain any advice, within the meaning of section 21, because it is an agreement concluded by the parties. Therefore, the exemption under section 21 does not apply.

Given that the Court concluded that the documents were not covered by the exemptions, it was not necessary to rule on the exercise of discretion, because the respondents (the RCMP and Department of Justice Canada) did not have that discretion. Consequently, the protocol had to be disclosed.

The ministers of both institutions appealed the decision.

Federal Court of Appeal decision

The Court agreed that 14 of the 17 paragraphs of the document are not protected by solicitor-client privilege, because these paragraphs are “a negotiated and agreed-upon operational policy formulated after any legal advice has been given and after any continuum that is necessary to be protected in light of the purposes behind the privilege.” It is impossible to tell whether this document is based on earlier legal advice. Thus, disclosing the document does not disclose the content of any earlier legal advice.

The Court found, however, that the first three paragraphs of the document do reveal legal advice, since they set out by way of background the content of certain legal obligations of the federal Crown.

The Court ordered that the last 14 paragraphs be disclosed, and that the remaining three paragraphs be remitted to the two institutions to exercise their discretion, in light of the Court’s reasons.

The parties have until June 17, 2013, to seek leave to appeal to the Supreme Court of Canada.

Exercise of discretion

Minister of Canadian Heritage v. Jim Bronskill and Information Commissioner of Canada (intervener), 2012 FCA 250, and A-364-11, Federal Court of Appeal. See also “Expiration dates” in our 2010–2011 annual report and “Discretion and subsection 15(1)” in our 2011–2012 annual report.

Journalist Jim Bronskill made a request to Library and Archives Canada (LAC) to access the security files collected by the RCMP on Tommy Douglas, who died more than 20 years ago.

LAC provided the requester with information that was heavily redacted under section 15 (international affairs and defence) and section 19 (personal information) of the Access to Information Act. The requester complained about the redactions.

After conducting an investigation, on the basis of the parties’ representations, we determined that the exemptions had been properly applied. The requester applied for a judicial review.

Federal Court decision

The Court found that LAC failed to show that disclosure of the information would lead to an “expectation of probable harm.” The Court held that LAC’s redactions were inconsistent and provided a table (appendix) listing the documents that were wrongly withheld that LAC must take into account when reviewing the files.

The Court provided a non-exhaustive list of factors to take into consideration when exercising discretion under section 15, notably the passage of time between the creation of the record and the request, prior public disclosure of the information and the historic value of the record.

The Court also found that LAC failed to show reasonable discretion.

The Federal Court ordered the matter be sent back to LAC so that it could review the outstanding records in light of the appendix and according to the guidance set out in the decision, including the list of factors to be taken into consideration when exercising discretion under section 15. The Court also ordered LAC to inform Mr. Bronskill in writing whether it had any additional information on Tommy Douglas in its holdings.

Federal Court of Appeal decision

As the intervener, the Information Commissioner set out in her factum the various factors a government institution must consider when exercising discretion, when applicable.

At the hearing—at which this matter was not addressed due to concessions made by the appellant’s lawyers, and more specifically due to the concession that the historical significance of the documents in question constitutes a valid consideration when exercising discretion—the Court saw no reason to modify the judgment, except for the following elements.

The Court removed the table appended to the judgment. Moreover, one of the findings in the ruling that ordered LAC to indicate whether it had additional information in its holdings was modified to specify the scope.

Finally, the Court also mentioned that “in light of these conclusions, it is not necessary for us to embark upon a review of the application judge’s reasons. Accordingly, we do not wish to be taken as to having endorsed him.”

The appeal was allowed.

Mr. Bronskill sought leave to appeal this decision to the Supreme Court of Canada (35118). This leave was dismissed on March 28, 2013.

Role of the Information Commissioner ad hoc

West v. Her Majesty the Queen, 2012 NSCA 112 (Nova Scotia Court of Appeal, Docket 264962). See also “Ad hoc Commissioner” in our 2010–2011 annual report and “Motion under section 683 of the Criminal Code” in our 2011–2012 annual report.

In criminal proceedings against him, Mr. West submitted two access to information requests to the RCMP. Following responses from the RCMP, he filed complaints with the Commissioner. During the first investigation, we found some documents relevant to his request, which were then sent to Mr. West. We found his second complaint to be unsubstantiated.

Following our investigations, Mr. West made two access requests for a copy of the investigation files related to his complaints. We released the information, but exempted some records under section 16.1 of the Act, which protects information and records obtained in the course of investigations conducted by the Commissioner.

Mr. West then filed a complaint with the Information Commissioner ad hoc about the two requests he had filed. The Commissioner ad hoc conducted an investigation and found that the complaints were unsubstantiated. Mr. West did not request a judicial review of these decisions.

In his case before the Nova Scotia Court of Appeal, Mr. West brought a motion seeking to obtain the disclosure of information contained in our investigation files. In the motion, he named the Commissioner ad hoc and the Commissioner as respondents.

We argued that the Nova Scotia Court of Appeal does not have the jurisdiction to order disclosure of information requested pursuant to an access request. The Federal Court has exclusive jurisdiction in that regard.

The motion for disclosure was rejected. According to the Court, Mr. West should have requested a judicial review of our decisions on his access requests under section 41 of the Act, which he failed to do. The Nova Scotia Court of Appeal does not have the jurisdiction to order that the information be disclosed. The parties did not appeal the decision.

Ongoing cases

Fees and electronic records

Information Commissioner of Canada v. Attorney General of Canada (T-367-13)

The Information Commissioner filed an application for a reference with the Federal Court seeking a determination on whether an institution can charge search and preparation fees for electronic documents that are responsive to an access request.

This procedure, under section 18.3 of the Federal Courts Act, allows a federal office, such as the Commissioner, to refer, as part of an investigation, a question of law to the Federal Court for hearing and judgment.

Following a complaint about the fees required by Human Resources and Skills Development Canada to search for and prepare electronic documents, we conducted an investigation and recommended that the institution cease requesting payment of such fees. The recommendation was rejected by the Minister.

The same question has been raised in a number of our other investigations. See, for example, “Fees” in our 2011–2012 annual report.

In this case, the Commissioner maintains that federal institutions do not have statutory support for requiring that such fees be paid when requests are submitted for electronic documents. The Federal Court is therefore being asked to provide a legislative interpretation of section 11 of the Access to Information Act and subsection 7(2) of the Access to Information Regulations.

On March 12, 2013, the Attorney General filed a notice of motion to strike out the application.

A very lengthy time extension

Information Commissioner of Canada v. Minister of National Defence (T-92-13). See a summary of the investigation leading up to this court action.

On December 9, 2010, National Defence received a request for access to all documents relative to a specific contract, and all communications between certain employees and with Public Works and Government Services Canada in relation to the contract. The requester also sought the communications between certain individuals about a company, an individual and the sale of military surplus in Uruguay.

National Defence advised the requester that it would extend the time limit and would respond to the request in 1,110 days.

As a result of a complaint from the requester indicating that the time limit was unreasonable, the Commissioner conducted an investigation and determined that the requirements of section 9 for the time extension had not been met. The Commissioner then recommended that the Minister make a commitment to respond to the request by February 28, 2013, at the latest. On November 6, 2012, the Minister informed the Commissioner that he would be unable to commit to responding to the request by the recommended date.

In December 2012, the Commissioner informed the requester that she considered the 1,100-day extension to be invalid and constituted deemed refusal on the part of the Minister to disclose the requested documents.

The Commissioner then filed an application for judicial review, with the requester’s consent, under section 42 of the Act.

In the application, the Commissioner maintains that the extension of time is unreasonable and therefore invalid. The Commissioner also maintains that the extension does not comply with the Minister’s duty to assist requesters and is inconsistent with requesters’ quasi-constitutional right of access to records under the control of government institutions.

The Commissioner requests that the Court issue a declaration that the Minister of National Defence has failed to give access to records requested under the Act within the time limits set out in the Act and is therefore deemed to have refused to give access to the requested information. She also asks that the Court order the Minister to respond to the request within 30 days of the judgment.

The particular issue before the Court is whether the 1,110-day extension is valid or whether it constitutes a refusal that enables the Federal Court to order the disclosure.

The Commissioner filed her application record on May 15, 2013.

Application of exemptions

Information Commissioner of Canada v. Minister of Fisheries and Oceans (T-2061-12)

On July 24, 2007, Fisheries and Oceans Canada received a request for documents and reports on the evaluation of a bid for mid-shore patrol vessels.

The Minister invoked the exemptions under paragraph 18(d) (economic interests of Canada) and section 21 (advice developed for government) of the Act.

As a result of a complaint by the requester, the Commissioner conducted an investigation and rejected the application of the exemptions. Once the investigation was complete, the Commissioner presented her findings to the Minister, who rejected her recommendations. The Commissioner then filed an application for judicial review, with the requester’s consent, under section 42 of the Act.

The issue before the Court is whether the Minister can invoke the exemptions under paragraph 18(d) and section 21.

The Commissioner filed a motion for an order of confidentiality on March 19, 2013.

The Minister subsequently disclosed the information in accordance with the Commissioner’s recommendations. The Commissioner discontinued the case on May 8, 2013.

Third-party information (1)

Nuisance Wildlife Control Inc. v. Minister of Foreign Affairs, Attorney General and Information Commissioner of Canada (T-2030-12)

In this case, Nuisance Wildlife Control Inc. filed an application for judicial review under section 44 of the Act in order to prevent the National Capital Commission from disclosing some documents.

Nuisance Wildlife claimed that the documents should not be disclosed under sections 17 (safety of individuals), 19 (personal information) and 20 (third-party information). In its application, Nuisance Wildlife filed a confidential motion to have any documents filed as part of the litigation excluded from the public Court file.

The Commissioner was of the opinion that the confidentiality was appropriate only for those documents subject to an exemption or likely to be. Following the parties’ representations, on January 11, 2013, the Court accepted the Commissioner’s position and issued a limited confidentiality order.

Nuisance Wildlife discontinued its application on January 17, 2013 and all the documents subject to the access request were disclosed.

Third-party information (2)

Porter Airlines Inc. v. Attorney General and Information Commissioner of Canada (T-1768-11). See also “New cases” in our 2011–2012 annual report.

This application from Porter Airlines, based on section 44 of the Act, challenges Transport Canada’s decision to disclose certain documents. Porter Airlines claims that the documents should not be disclosed under section 20 (third-party information) of the Act. Porter Airlines is also questioning the legality of the decisions made by Transport Canada on this request.

The Commissioner became involved as a result of a complaint from the requester that Transport Canada had failed to respond to the request within the prescribed time period. The Commissioner found that the complaint was well founded because Transport Canada had failed to comply with the time limits prescribed by the Act and had failed to fulfill its duty to assist.

In this case, the Information Commissioner filed a factum focusing on institutions’ obligation to respond to requests for access in a timely fashion. Given that the requester had still not received a response to its request, which was filed in September 2010, the Commissioner asked that the Court rule on the application of the exemption and order the disclosure of documents not falling under an exemption.

The hearing is scheduled for May 30, 2013.

Solicitor-client privilege

Louis Dufour v. Attorney General for Canada and Information Commissioner of Canada (T-1298-10)

On November 28, 2008, a request was filed with the Department of Justice Canada to obtain the costs involved in various court cases.

The Minister refused to provide the majority of the documents, invoking section 23 (solicitor-client privilege).

As a result of a complaint, the Commissioner conducted an investigation and found that the Minister’s refusal was justified. The requester filed an application for judicial review under section 41 of the Act.

The issue before the Court is whether the Minister can invoke the section 23 exemption.

The cross-examinations were completed in March 2013.