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CHAPTER V:

LEGAL SERVICES

B. The Commissioner in the Courts

II. Cases in progress - Commissioner as Applicant/Appellant

The Information Commissioner v. The Minister of Industry (Court files T-53-04, T-1996-04 and T-421-04) Federal Court (See annual report 2003-04, p. 53 for more details)

Nature of Proceedings

This was a motion by the respondent Minister of Industry to strike the Information Commissioner’s applications for review of government refusals to disclose requested records.

Factual Background

At issue in the two underlying applications was the refusal of the Minister of Industry to disclose individual census returns to a large number of requesters. The census records for the years 1911, 1921, 1931, and 1941 were sought.

In the first application, a number of genealogists sought disclosure of the 1911 census records for various regions of Canada. After receiving complaints from 97 requesters, the Information Commissioner investigated the refusals and recommended that the Minister of Industry disclose the records. The minister refused disclosure on the ground that the confidentiality provisions in theStatistics Act precluded disclosure. The Information Commissioner brought an application for judicial review.

In the second application, the Algonquin Nation Secretariat sought the disclosure of the 1911, 1921, 1931 and 1941 census records for the purpose of preparing statements of claim for submission to the federal Comprehensive Claims Policy. The Information Commissioner investigated and recommended that the records be disclosed pursuant to paragraph 8(2)(k) of the Privacy Act and section 35 of the Constitution Act, 1982. The minister refused disclosure on the ground that the confidentiality provisions in theStatistics Act precluded disclosure of the records to anyone, regardless of the purpose for which the records were sought.

Issue Before the Court

The sole issue before the court was whether the applications should be struck as having no chance of success on judicial review.

Outcome

After a half-day of oral argument, counsel for the respondent conceded that the respondent could not meet the burden of showing that the applications were "bereft of any chance of success" and indicated a willingness to abandon the motion. A schedule for the remaining steps in the litigation was agreed to by the court and the applications will likely be heard in the fall of 2005.

The Information Commissioner v. The Minister of Transport, Court file T-55-05

Nature of Proceeding

This is an application for review under section 42 of the Access to Information Act in relation to the Minister of Transport Canada’s refusal to disclose "an electronic copy of the CADORS [Civil Aviation Daily Occurrence Reporting System] database table(s)" being information requested under the ATIA.

Factual Background

On June 12, 2001, a request was made under the ATIA for access to "an electronic copy of the CADORS database table(s) which track(s) aviation occurrences; a paper printout of the first 50 records, a complete field list, and information on any codes needed to interpret data in the tables". The CADORS is a national database consisting in 2001 of approximately 36,000 safety reports of aviation "occurences" and is compiled by Transport Canada who receives these reports from a variety of sources including Nav Canada, the Transportation Safety Board and aerodromes.

On August 9, 2001, Transport Canada responded by providing the requester with a copy of the record layout (which lists the fields of information found in the CADORS database), but otherwise refused to provide the requested records in its entirety. Initially, this access refusal was based on the contention that the database could not be severed and reproduced. Subsequently, during the course of the Information Commissioner’s investigation, Transport Canada acknowledged that the database could, in fact, be copied, and, if necessary, severed. Still, Transport Canada withheld 33 of the 51 fields of information which comprise the CADORS database based on subsection 19(1) of the Act (the "personal information" exemption).

Transport Canada has conceded that the information in and of itself does not constitute personal information, yet it maintains that the release of CADORS information would amount to disclosure contrary to subsection 19(1) of the Act because of what is referred to as the "mosaic-effect" (a concept used in relation to information pertaining to security and intelligence in the context of assessing a reasonable expectation of injury). Specifically, Transport Canada states that it is possible that CADORS information might be linked with other information publicly available to reveal "personal information" concerning identifiable individuals.

In the Information Commissioner’s view, the information contained in the database pertains to aircraft and air occurrences, not individuals, such that section 19 of the ATIA does not apply. The minister has refused to accept the Information Commissioner’s recommendation that the requested records be disclosed. On January 14, 2005, the Information Commissioner of Canada filed an application for judicial review of the minister’s access refusal.

Both the Information Commissioner and the respondent have filed their affidavit materials in relation to the application.

Future Steps in the Proceeding

This proceeding will continue before the Federal Court, and results will be reported in next year’s annual report.

The Information Commissioner v. The Minister of National Defence, Court file T-210-05

Nature of Proceedings

This is an application for judicial review, commenced pursuant to paragraph 42(1)(a) of the Access to Information Act, for a review of the refusal by the Minister of National Defence to disclose records requested under the ATIA pertaining to "M5 meetings" for 1999.

Factual Background

See the summary at pages 44 to 49.

Future Steps in the Proceeding

Documentary evidence in support of the application for review has yet to be filed. The Information Commissioner will report the results and/or progress of these proceedings in next year’s annual report.

The Information Commissioner of Canada v. Minister of Environment, T-555-05, Federal Court

Nature of Proceeding

The Information Commissioner brought an application for judicial review on March 24, 2005, with the consent of Ethyl Canada Inc. with respect to Environment Canada’s refusal to disclose records requested under the Act.

Disclosure of these records or portions thereof was at issue in a previous related proceeding before the Federal Court (see pages 15-16 of the 2002-03 annual report for further details).

Factual Background

On September 22, 1997, Ethyl Canada sought access to discussion papers, the purpose of which was to present background explanations, analyses of problems or policy options to the Queen’s Privy Council for Canada for consideration by the Queen’s Privy Council for Canada in making decisions with respect to Methylcyclopentadienyl Manganese Tricarbonyl (MMT).

Issues Before the Court

  1. Did the respondent err in relying upon paragraphs 21(1)(a) and (b) of the Act to exempt from disclosure information falling within the ambit of paragraph 69(3)(b) of the Act?
  2. By relying on paragraphs 21(1)(a) and (b), did the respondent re-cloak in 20 years of secrecy information covered by paragraph 69(3)(b) of the Act? However, paragraph 69(3)(b) provides that such information must be disclosed forthwith upon the making public of the decision to which it relates or, if the decision is not made public, four years after the decision is made.

This matter is ongoing.