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Appearances before Parliamentary Committees
Information Commissioner of Canada
Standing Committee on Procedure and House Affairs
Wednesday, March 16, 2011, 11:30 a.m.
These background notes are intended to assist members of the Standing Committee on Procedure and House Affairs in understanding how Confidences of the Queen's Privy Council for Canada (Cabinet confidences) are treated under the Access to Information Act (ATIA).
It is important to note that many of the matters, which are the current subject of debate and which are associated with motions regarding the production of information pursuant to Parliamentary procedures, fall outside the jurisdiction of the Information Commissioner.
Jurisdiction and Role of the Information Commissioner
The mandate of the Information Commissioner - to receive and investigate complaints - is prescribed in sections 30 through 37 of the Access to Information Act (ATIA). These provisions require the Commissioner to investigate all complaints by individuals and organizations who believe that federal government institutions have not respected their rights under the Act.
Investigations conducted by the Office of the Information Commissioner (OIC) are thorough and fair. Complainants, institutions and all third parties affected by the complaints are given a reasonable opportunity to make representations. In accordance with section 35 of the Act, investigations must be conducted in private. Furthermore, sections 62 and 64 explicitly prohibit the Commissioner or anyone acting on her behalf to disclose information that comes to their knowledge in the performance of their duties or functions.
At the conclusion of the investigation, the Commissioner must report the results of the investigation to the complainant. In those cases where she has found a complaint to be well-founded and wishes to make recommendations to the head of the institution, the Commissioner must first report her findings and recommendations to the head before reporting to the complainant. Section 38 of the Act requires her to submit an annual report to Parliament and, if a matter is urgent or important, section 39 permits her to submit a special report to Parliament after the complainant has received the report of findings.
The inherent principle of objectivity in conducting investigations and the confidentiality obligations imposed by the Act restricts the Commissioner's ability to comment on ongoing investigations. It also prevents her from commenting on hypothetical cases for risk of compromising future investigations.
In view of the fact that the concept and definition of Confidences of the Queen's Privy Council for Canada is incorporated in the Access to Information Act, the following provides information that may be instructive to the Committee regarding how confidences are currently treated by both institutions and the Office of the Information Commissioner.
Section 69(1) of the Access to Information Act excludes confidences of the Queen's Privy Council from the application of the Act. The provision provides a non-exhaustive list of what constitutes a confidence such as memoranda, discussion papers, agenda of Council, communications and briefing records, draft legislation and records containing information about the contents of confidences. It also sets out three exceptions to the definition in s. 69(3).
The issuance of a certificate by the Clerk of the Privy Council Office pursuant to s. 39 of the Canada Evidence Act certifying that the requested record is a cabinet confidence is conclusive, after which neither the Information Commissioner nor the Federal Court are permitted to review the requested records.
An overview of jurisprudence related to section 69 of the Access to Information Act and section 39 of the Canada Evidence Act is useful in understanding the scope and impact of the exclusion for confidences of the Queen's Privy Council.
Historically, at common law, the affidavit of a Minister of the Crown affirming that information was a Cabinet confidence was determinative of an assertion of privilege over Cabinet confidences; courts were not entitled to review the privileged documents: Duncan v.Cammell, Laird & Co. (1942) A.C. 624 (U.K.H.L.) The common law was modified by the House of Lords decision in Conway v. Rimmer (1968) A.C. 910 (U.K.H.L.) which recognized the right of courts to review documents over which public interest immunity was claimed. Shortly after the Conway decision, Parliament enacted the Federal Court Act, R.S.C. 1970, c. 10 (2nd Supp.), which came into force in 1971. Section 41(2) of the Federal Court Act established a mechanism which permitted the Government to keep cabinet confidences confidential by declaring such documents to be a "confidence of the Queen's Privy Council". As noted by the Federal Court in Smith, Kline & French Laboratories Ltd. v. Canada (Attorney General), (1983) 1 F.C. 917:
Subsection 41(2) … followed the Duncan v. Cammell, Laird approach and it applied to a large and somewhat amorphous group of documents. That subsection provided that wherever a Minister by affidavit claimed that the production or discovery of a document would be injurious to international relations, national defence or security, or to federal-provincial relations, or that it would disclose a confidence of the Queen's Privy Council for Canada, then discovery or production "shall be refused without any examination of the document by the Court". In other words, all that was required was an affidavit that the document came within one of these categories and the Court was precluded from examination of the document.
The Access to Information Act, which was enacted in 1982, repealed subsection 41(2) of the Federal Court Act. Section 69 of the ATIA and section 36.3 (now section 39) of the Canada Evidence Act formed part of the same Bill and were enacted at the same time. As noted by the Federal Court, these two provisions, although worded in almost identical language differ in certain important ways Canada(Information Commissioner) v. Canada (Minister of National Defence) et al. 2009 FC 766. First, there are no procedural requirements in section 69 of the ATIA that must be fulfilled before the government institution may invoke it. Secondly, the categories of records encompassed by section 69 are broader. Paragraph 69(1)(g) of the ATIA includes records that contain information about the contents of any cabinet confidence as defined in paragraphs 69(1)(a) though (f) in the definition of Cabinet confidence.
Section 39 of the CEA requires that a Minister or the Clerk of the Privy Council certify that information constitutes a Confidence of the Queen's Privy Council. In Babcock v. Canada (Attorney General) 2002 SCC 57 at paragraph 22 the Supreme Court of Canada found that before issuing a s. 39 CEA certificate the Clerk must answer two questions:
- Is the information a cabinet confidence within the meaning of s. 39(2) CEA?
- If so, is it information that the government should protect taking in to account the competing interests in disclosure?
The Supreme Court concluded that certificates issued under section 39 of the CEA are reviewable and enumerated four requirements for a valid section 39 CEA certificate:
- It must be done by the Clerk of the Privy Council or a minister of the Crown (paragraph 24);
- The information must fall within the categories described in section 39(2) of the CEA (paragraph 24)
- The power exercised must flow from the statute and must be issued for the bona fide purpose of protecting cabinet confidences (paragraph 25); and
- The certificate must be issued to prevent disclosure of "hitherto" confidential information (paragraph 27)
The Supreme Court observed at paragraph 28 of Babcock that:
…the first element of the Clerk's decision requires that her certificate bring the information within ambit of the Act. This means that the Clerk or minister must provide a description of the information sufficient to establish on its face that the information is a Cabinet confidence and that it falls within the categories of s. 39(2) or an analogous category; the possibility of analogous categories flows from the general language of the introductory portion of s. 39(2). This follows from the principle that the Clerk or minister must exercise her statutory power properly in accordance with the statute. The kind of description required for claims of solicitor-client privilege under the civil rules of court will generally suffice. The date, title, author and recipient of the document containing the information should normally be disclosed. If confidentiality concerns prevent disclosure of any of these preliminary indicia of identification, then the onus falls on the government to establish this, should a challenge ensue.
The description of the document expected from the Clerk in the context of a section 39 CEA certificate is analogous to what the Commissioner receives during her investigations of section 69 exclusions.
Both section 39(4) and section 69(3) of the ATIA enumerate three identical exceptions to the definition of Cabinet confidence:
- Cabinet confidences that have been in existence for more than 20 years;
- Discussion papers if the decisions to which they relate have been made public; or
- Discussion papers, where the decisions have not been made public, if four years have passed since the decisions were made.
Judicial Interpretation of section 69 of the ATIA
The jurisprudence concerning the scope and effect of the exclusion in section 69 has evolved since the enactment of the Access to Information Act.
The first decision to squarely address the application of section 69 was Gogolek v. Canada (Attorney General), (1996) 107 F.T.R. 123 (T.D.). There, the Federal Court concluded that the wording of subsection 69(1), which excluded Cabinet confidences from the application of the Act was "clear and unambiguous" and that none of the other provisions of the Act had any applicability whatsoever. He concluded that there could be no independent review by the Court where the government had invoked the exclusion in section 69.
In a subsequent decision: Canada (Information Commissioner) v. Canada (Minister of Environment) 2001 FCT 277 ("Ethyl") the Federal Court concluded that the Access to Information Act is applicable to information which falls within the exceptions to the definition of Cabinet confidence established by subsection 69(3), namely:
- Cabinet confidences that have been in existence for more than 20 years: paragraph 69(3)(a);
- Discussion papers if the decisions to which they relate have been made public: paragraph 69(3)(b)(i); or
- Discussion papers, where the decisions have not been made public, if four years have passed since the decisions were made: subparagraph 69(3)(b)(ii).
Since the Act is applicable to information enumerated in section 69(3), the Court concluded that decisions to withhold such documents are reviewable by the Court under section 42. In the Ethyl case, the decision of Cabinet had been made public and the extrinsic evidence pointed to the existence of information that fell within the scope of the exception in s. 69(3) of the Act. The Court rejected a mechanistic approach to the interpretation of s. 69 and concluded that if information that met the definition of a discussion paper and fell within the exception to s. 69(3)(b) was contained in another record subject to s. 69(1) that information must be severed and disclosed. The Court ordered the Clerk to reexamine the documents to determine whether they contain information that fell within the exception set out in s. 69(3) and to determine whether the information could be reasonably severed. This conclusion was upheld on appeal: Canada (Information Commissioner) v. Canada (Minister of Environment) 2003 FCA 68 which clarified the severance requirement by stating that the obligation to sever is applicable to "…an organized body or corpus of words which, looked upon on its own comes within the definition" (para. 26) . The Court of Appeal also noted that exemptions set out in the Act may be applicable to information falling within the exception set out in s. 69(3) of the Act.
Finally, in Canada (Information Commissioner) v. Canada (Minister of National Defence) et al. 2009 FC 766, the Court concluded that it could review documents which a government institution claimed were excluded by the operation of s. 69 ATIA. Justice Kelen stated at paragraph 124:
Unlike the CEA, the Access Act does not have any formal requirements that must be satisfied in order to obtain protection under subsection 69(1). Under section 69, the Court reviews the records. The protection will attach if the records fit within the meanings ascribed under paragraphs 69(1)(a)-(g). Further, this list is not exhaustive, as indicated by Parliament's use of the phrase "without restricting the generality of the foregoing."
The Court's jurisdiction to review the application of section 69 of the ATIA to records was not at issue on appeal.
The language of section 46 of the ATIA which grants the Court access to records during an application for judicial review is analogous to that found in subsection 36(2) of the ATIA. Section 36(1) gives the Commissioner the power to compel the production of records in the same manner and to the same extent as a superior court of record.
Policies and Procedures
The requirement to consult with the Privy Council Office (PCO) regarding Cabinet confidences is dictated by government policy rather than by statute. The current policy stipulates that heads of government institutions or their delegates are responsible for consulting PCO, in compliance with established procedures, prior to excluding Cabinet confidences. In addition heads must acquire, in compliance with established procedures and upon the request of the Information Commissioner, assurances from the Clerk of the Privy Council confirming that excluded information is a Confidence of the Queen's Privy Council. The Clerk of the Privy Council is responsible for policies on the administration of confidences, for determining what information constitutes a confidence and for producing a certificate confirming that records are in fact confidences. However, in current practice, a formal procedure is followed where the Cabinet Confidences Counsel (CCC) of PCO provides institutions and the OIC with a Schedule.
There is no discretionary power provided to an individual Minister or government institution to make a confidence accessible to the public. That authority is exercised only by Cabinet or the Prime Minister. There are exceptions where a Minister or Ministers may authorize the disclosure of records. These records fall under paragraph 69(1)(d) - records used for or reflecting communications or discussions between Ministers on matters relating to the making of government decisions or the formulation of government policy - and briefing notes which fall under paragraph 69(1)(e).
The Treasury Board Manual on Access to Information provides guidance on severability as it applies to Cabinet confidences. It states that, whenever possible and with the approval of PCO, institutions should adopt the principle of severability for documents which fall under paragraph 69(1)(g) - "records that contain information about the content of any record within a class of records" defined as confidences. If the reference to a Confidence can reasonably be severed from the record in which it is found, it should be redacted to permit the remainder of the record to become subject to the Act. The guidance emphasizes that the ATIA does not provide for the severing of information from records falling under paragraph 69(1)(g) but that the practice is required by government policy.
PCO and the Treasury Board Secretariat have established a mandatory consultation process and have developed templates for processing Cabinet confidences. Once officials in the Access to Information and Privacy Office or officials with subject expertise have retrieved and reviewed records responsive to a request and have identified records of portions of records that may contain Cabinet confidences, they indicate which records are involved and cite the applicable paragraph under section 69. When the review process is completed, all records that may constitute Cabinet confidences or may contain portions revealing the contents of Cabinet confidences must be sent to institutional legal counsel for review. Records which legal counsel agrees may be or may contain Cabinet confidences must then be sent to the Cabinet Confidences Counsel of the Privy Council Office. All documents sent for review are listed in a Schedule. When forwarding the package, the institution provides an explanation indicating why the record or portion of the record should be excluded and recommends why it should be excluded under section 69. PCO/CCC determines whether it agrees with the institution's recommendations and returns the schedule with its conclusion to the institution.
According to current government procedures, when a requester complains about the refusal of access to records and an investigator from the Office of the Information Commissioner asks to review all records to which the applicant was refused access, the investigator is refused access to those records or portions of records for which an exclusion under section 69 was claimed. Only records from which Cabinet confidences have already been severed will be made available to the investigator or the Information Commissioner. The Commissioner's Office will request confirmation from the Privy Council Office that records or parts of records are Cabinet confidences. The Commissioner's Office may also seek to compel production of requested records.
As a result of the denial of access to actual records, a schedule of records considered to be Cabinet confidences is produced by the institution. The Office of Counsel to the Clerk of the Privy Council provides two schedules to the Commissioner's Office: a modified version of the schedule that the institution provided to PCO containing the institution's recommendations, and a revised schedule prepared by the Office of Counsel that contains its conclusions.
The OIC's review considers two basic factors:
- The only information that can be excluded in the response is what appears on the revised schedule.
- PCO must cite a specific provision of the Act for each exclusion listed in the schedule. The schedules provide a description of the type of record, to and from, date, subject, and, institution's recommendations, and PCO conclusions regarding the specific provision within section 69 that applies.
The investigation also takes into account factors such as if the records have been in existence for more than twenty years and if the decisions to which discussion papers pertain have been public, or where decisions have not been made public, if four years have passed since the decisions were made. Finally, if the revised schedule shows all records consulted on have been excluded as confidences and the investigator agrees that it is reasonable, the complaint can be deemed not well-founded. However, 24% of section 69 exclusion complaints in the last 5 years were found to have merit because CCC/PCO determined on its second review for purposes of the complaint that some information did not qualify as a Cabinet confidence.
The Information Commissioner may seek to compel the withheld records in the absence of a s. 39 CEA certificate from the Clerk of the Privy Council confirming that records withheld under section 69 are Cabinet confidences. In the past, Commissioners have not ordered production or required certificates to be issued.
Complaints of refusal of access to Cabinet confidences represent a modest proportion OIC's complaint inventory. In the past four years between 2% and 3% of the inventory related to section 69 complaints. A statistical chart illustrating complaints regarding confidences is attached.
National and International Benchmarking
The role of Cabinet in a Westminster system of Parliament and the need to protect the Cabinet decision-making process is well understood. However, experience in other provincial, territorial and international jurisdictions with Westminster style governments indicates that the deliberations and decisions of Cabinet can be properly protected without excluding them.
The Freedom of Information Act 2002 in the United Kingdom provides a discretionary exemption for this type of information rather than an exclusion. Information may be exempted if an exemption "is required for the purpose of avoiding an infringement of the privileges of either House of Parliament", interference with the responsibilities of Ministers or a breach of confidence. The exemption can be confirmed by a certificate signed by the Speaker of the Commons or the Clerk of the Parliaments which the Information Commissioner cannot overturn.
Canadian jurisdictions have exemptions for Cabinet records. The exemptions are time limited with periods ranging from ten to twenty-five years. In addition, most laws do not specify document types but focus on information that would reveal the "substance of deliberations" of Cabinet. This concept is contained in the laws of Alberta, British Columbia and Prince Edward Island. Alberta and British Columbia also provide for a public interest override, while Ontario provides for a limited public interest override.
In New Zealand, another Westminster style government, the Official Information Act 1982 provides a very broad definition of what constitutes official information for the purposes of the Act. Official information means "any information held by a Minister of the Crown in his official capacity." In addition, New Zealand encourages the practice of proactive disclosure of Cabinet documents.
In conclusion, it must again be emphasized that the two channels for Parliamentarians to obtain government information are distinct and separate. The Information Commissioner's jurisdiction extends only to cases where a complaint has been brought pursuant to the Access to Information Act.