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Information Commissioner appeals a federal court decision that limits the scope of the Access to Information Act

OTTAWA, July 21, 2008 - The Information Commissioner has appealed a Federal Court decision today that substantially restricts the way the Access to Information Act is applied to records generated or obtained by ministers in carrying out the work of their departments.

The decision concerns an important principle of law in defining whether records in ministers’ offices that relate to the administration of the department, such as agendas, notes, emails and other documents,  come ‘under the control of a government institution’ and are subject to the Access to Information Act.

"It is important that the law be clarified to avoid limiting the scope of the legislation.” said Assistant Information Commissioner, Suzanne Legault. “As public officers, ministers and their staff need to be accountable in disclosing information relating to a minister’s administration of their department.”

The court ruled that records in ministers’ offices are not subject to disclosure under the Act, apart from certain records deemed to be under the department’s control. The criterion set by the court for establishing which records fall into this category is that they can be requested and obtained by the Deputy Minister or by senior officials to deal with departmental matters. The Information Commissioner’s position is that this criterion leaves the determination of which records come under the control of the department open to interpretation and could severely limit the scope of the Access to Information Act.  In the Commissioner’s view, a record generated or obtained by a Minister, or on his behalf, relating to the administration of their department, is subject to the Act regardless of where the record is located.

The Office of the Information Commissioner first filed applications to the Federal Court in 2005 in cases against the Prime Minister, the Minister of National Defence, the Minister of Transport and the Commissioner of the RCMP. On June 19, 2008 the federal court decided in favour of the Commissioner to release the documents requested in the case of the RCMP but ruled against disclosing a number of specific records requested from the Privy Council Office, the Department of National Defence and the Department of Transport.

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