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In this reporting year, four investigations were completed which had received more public notoriety than usual. These four cases involved records held in the offices of ministers and the Prime Minister and prompted the government, over four years, to launch some 29 applications before the Federal and Supreme Courts seeking to stop or restrict the commissioner’s investigations. Those legal challenges were unsuccessful, and their outcome is described in last year’s annual report (2003-04) at pages 9 to 13.
This year, the investigations were completed and their results reported to the government and complainants. All complaints were held to be well-founded by the commissioner and recommendations for further disclosure, better records management and better education of officials were made. The government rejected the recommendations in all cases, and the Information Commissioner will be asking the Federal Court to order these four government institutions to disclose the withheld records at issue.
The commissioner’s report of his findings, in each of these four cases, is extensive – too long to be reproduced here. What follows, then, are brief summaries only. However, the full text of each report forms part, by reference, of this annual report to Parliament.
Case 1: The Agendas of the Minister of Transport Held in the Minister’s Office and the Deputy Minister’s Office
The complaint arose from Transport Canada’s (TC) denial of an access request for a copy of former Minister Collenette’s agenda for the period June 1, 1999, to November 5, 1999. TC’s denial was expressed as follows:
"Please be advised that no records exist in Transport Canada’s files which respond to your request. It should be noted, however, that the Minister’s itinerary/meeting schedules are prepared and maintained by his political staff, and are not considered departmental records."
It was the practice of the former minister to routinely provide copies of his agendas to the deputy minister (with some personal items removed) to assist the deputy minister in properly serving the minister. It was the practice of the deputy minister to routinely destroy the agenda copies she received as soon as they went out of date. Thus, at the time of the access request, all records covered by the request were held in the minister’s office since the deputy minister’s copies had been destroyed.
The department argued that the right of access only extends to records under the control of the Department of Transport. It further argued that the office of the Minister of Transport, which held the agendas, is not a component part of the Department of Transport.
The requester, on the other hand, argued that the agendas were created, in part, to assist departmental officials in carrying out their duties and that where they were archived was immaterial. As well, the requester argued that a minister is a component part of the institution over which he or she presides and, hence, records held by a minister, which relate to the minister’s departmental duties, are under the control of the minister’s department.
The legal issues in this case, thus, were as follows:
- Were the requested agendas (which were archived in the office of the Minister of Transport) under the control of the Department of Transport for the purposes of section 4 (the right to request access) of the Access to Information Act?
- As a general principal, is the office of a minister a component part of the department over which the minister presides?
In coming to conclusions on these issues, the Information Commissioner also dealt with the subsidiary issue of whether or not the Minister of Transport is an officer of the Department of Transport.
Findings and Recommendations
The commissioner accepted the governing jurisprudence to the effect that the term "control" is to be given a broad meaning so as to confer a meaningful right of access, and that the physical location of requested records is not, in and of itself, determinative of the issue of control. Among the factors the commissioner took into account, to determine whether or not the requested agendas were under the control of the Department of Transport, were the following:
- whether the individuals in possession of the relevant documents were employees or officers of an entity to which the Access to Information Act applies (i.e. a government institution);
- whether there is evidence that the documents are, in fact, controlled by a government institution;
- whether the content of the record relates to a government institution’s mandate and functions;
- whether the record is closely integrated with other records held by a government institution;
- whether the document was created during the course of duties remunerated from parliamentary appropriations of a government institution;
- whether any officer or employee of a government institution has the right to use, preserve or dispose of the document;
- whether, with respect to the document, an order for production could be enforced upon an officer or employee of a government institution;
- whether communication of the content of the document requires the authorization of an officer or employee of a government institution;
- whether there is a right of partial, transient, or de jureaccess to the document by an officer or employee of a government institution;
- whether the document was created as part of the day-to-day administration of a government institution or to assist an officer or employee of a government institution to carry out his or her duties; and
- whether there is a compelling reason of public policy militating for or against control.
After considering the legal and factual elements with respect to these factors, the commissioner concluded that the requested ministerial agendas were under the control of the Department of Transport for the purposes of section 4 of the Access to Information Act. In coming to that conclusion, the commissioner took into account the content of the records (significant portions of which relate to the minister’s duties as head of Transport Canada); the fact that the agendas were used, in part, to assist departmental officials in performing their duties; and the fact that departmental officials had authority to keep or destroy their copies of agenda records.
As well, the commissioner concluded that the Minister of Transport is an officer, and essential component, of the Department of Transport. The factors leading to this conclusion were:
- The Department of Transport Act specifies that the Minister of Transport will preside over the department;
- Constitutional experts agree that the Department of Transport, as all other portfolio departments, must have a minister because departments are extensions of the authority of their ministers;
- The Access to Information Act provides that the Minister of Transport is head of his or her department for the purposes of the Act;
- The Financial Administration Act (to which ministers’ offices and departments are subject) defines "public officer" to include minister;
- The definition of "public officer" in the Interpretation Actincludes the Minister of Transport;
- In its ordinary meaning, "officer" of a government department includes the presiding minister; and
- To conclude otherwise would lead to absurd results such as: allowing ministers to shield departmental records from the right of access by holding them in the minister’s office; allowing ministers to assert privacy rights with respect to information relating to their position and functions; and allowing ministers to escape accountability through transparency – a purpose ascribed to the Access to Information Act by the Supreme Court of Canada.
Consequently, the commissioner recommended that the requested agendas be disclosed, subject to justifiable exemptions to protect certain personal information contained in the agendas. The Minister of Transport disagreed with the commissioner’s findings and declined to follow his recommendations.
As a result, the commissioner, with the consent of the requester, will apply to the Federal Court for a review of the continuing refusal to disclose the requested records.
Case 2: The Agendas of the Prime Minister Held by the RCMP
The complaint arose from the RCMP’s response to an access request for copies of the agendas of former Prime Minister Chrétien covering the period January 1, 1997, to November 4, 2000. The RCMP’s response to the access request was as follows:
"Based on the information provided in your request, we have conducted a search of our records in Ottawa, Ontario, and regret to inform you that we do not receive copies of the Prime Minister’s daily schedule. Such information is held by the Prime Minister’s Office."
During the investigation, some 386 pages of prime ministerial agendas, relevant to the access request, were found in the RCMP’s files. It was also determined that copies of the Prime Minister’s agendas were sent, every day, to the offices of the Prime Minister’s Protective Detail at RCMP headquarters. In other words, the RCMP’s response was entirely inaccurate.
The commissioner concluded that the RCMP’s failure to locate and process the agendas, and its positive assertion that the RCMP did not receive copies of the former Prime Minister’s agendas, was not the result of an intention to mislead the requester. Rather, he attributed the false response to carelessness on the part of the officer who undertook the search and failure by the RCMP’s access to information professionals to play a challenge and follow-up role with the Prime Minister’s Protective Services.
Once the records were located, the RCMP sent a second response to the requester, refusing to disclose the agendas, in whole or in part, for the following reasons:
"A review of the said records reveals that all of the information you have requested qualifies for exemption under section 19(1) and 17 of the Access to Information Act. Additionally, some information was excluded from access by virtue of section 69(1) of the Act."
Unlike the preceding and succeeding cases, involving agendas which were held in the offices of a minister and the Prime Minister, there was no dispute in this case as to whether the agendas were subject to the right of access – they clearly were. The RCMP is a government institution to which the Access to Information Actapplies and the records were held on the premises of the RCMP headquarters under the daily control of RCMP officers.
The issues in this case were:
- whether or not every entry on every page of these agendas constitutes "personal information" of the former Prime Minister or others which qualifies for exemption from the right of access under subsection 19(1) of the Act;
- whether or not the entire contents of these agendas qualify for exemption under section 17 of the Act because, if disclosed, they could reasonably be expected to threaten the safety of the former Prime Minister, the present Prime Minister or their protective details;
- whether or not certain entries constitute cabinet confidences; and
- whether or not the RCMP discharged its obligation under section 25 of the Act, to sever and disclose any portion of the agendas which does not qualify for exemption or exclusion under sections 17, 19 and 69.
Section 19 – Personal Information
The RCMP admitted that, if the request had been for the agendas of the RCMP Commissioner, it would have severed and released the work-related portions of the agendas and withheld the portions relating to purely personal affairs.
The reason it would have taken such an approach is because paragraph 8(2)(j) of the Privacy Act restricts the zone of privacy for "officers and employees of a government institution". The RCMP Commissioner is an officer of the RCMP and, hence, may not assert privacy rights to refuse to disclose information relating to his position and functions.
The reason the RCMP did not take the same approach with the Prime Minister’s agendas is because, in the RCMP’s view, the Prime Minister is not an officer or an employee of any government institution and, hence, the Prime Minister’s zone of privacy is not restricted by paragraph 8(2)(j) of the Privacy Act.
The Information Commissioner rejected this argument, finding that the Prime Minister is an officer of the Privy Council Office (a government institution subject to the Act). The reasons in this regard are set out in the succeeding case summary.
Consequently, the Information Commissioner concluded that the portions of the Prime Minister’s agendas which relate to his position and functions as head of PCO, and/or which relate to public activities or events attended by the former Prime Minister, should be disclosed.
Section 17 – Threat to the Safety of the Prime Minister
The RCMP argued that disclosure of any portion of the agendas – even public events or blank pages – could threaten the safety of both the former Prime Minister and the current Prime Minister. The RCMP argued that patterns of behaviour could be drawn from the agendas and used to plan attacks on the Prime Ministers. The RCMP also argued that it did not have to show that disclosure would pose a "probable" threat. Rather, it argued that it need only show that its concern in this regard is not frivolous or exaggerated – that it is reasonable.
The Information Commissioner found that the proper test is that of reasonable expectation at the level of a probability. However, he concluded that the RCMP had not discharged its burden to demonstrate that the likelihood of threat from disclosure is either probable or the lesser test of being non-frivolous or nonexaggerated. He concluded that the only patterns of behaviour, not already publicly known, which could be learned from the agendas, relate to routine and widely known meetings held by the former Prime Minister. No evidence was presented to show how knowledge of these patterns – which don’t involve moving or exposing the Prime Minister – would pose a risk to the former Prime Minister’s safety or the safety of his security detail. As well, no witness was able to demonstrate how disclosure of the agendas for days containing no scheduled events would meet the section 17 test.
The RCMP admitted that it has not assessed the security implications of disclosure in today’s context when Mr. Chrétien has left public life. The RCMP presented no evidence to support the contention that disclosure of the agendas of the former Prime Minister could pose a threat to the safety of Prime Minister Martin.
Section 69 – Cabinet Confidence Exclusion
Portions of the requested agendas were withheld as constituting cabinet confidences. Since no subject-matter details were included in the agendas, the commissioner concluded that section 69 had been improperly applied. The mere fact that members of cabinet met at a certain date and time does not, in the commissioner’s view, constitute a cabinet confidence.
For the foregoing reasons, the Information Commissioner concluded that the RCMP’s decision to withhold the requested records in their entirety was unjustified. He recommended that the agendas be disclosed with the exception of information of a private character, such as medical appointments, family events and private receptions.
The RCMP Commissioner refused to accept the Information Commissioner’s recommendations. With the consent of the requester, the Information Commissioner will apply to the Federal Court of Canada for a review of the RCMP’s refusal to disclose the requested records.
Case 3: The Agendas of the Prime Minister Held in the PMO and PCO
The complaint arose from the Privy Council Office’s (PCO) responses to six access requests for former Prime Minister Chrétien’s agendas. Each request covered a different period of time; collectively, they covered the period from January 1994, to June 25, 1999. With respect to five of the requests, PCO informed the requester that it held no agendas. PCO did not inform the requester that the requested agendas were held by the Prime Minister’s Office (PMO) – but that is where they were held.
With respect to one request, most of the relevant records were held in the PMO, but some were also held in the office of the then Clerk of the Privy Council, Mel Cappe. In its response to this request, PCO refused to confirm or deny whether it held any agendas saying only that if it did, they would qualify for exemption as the Prime Minister’s personal information.
After the complaint was made to the Information Commissioner, and the investigation began, PCO clarified its reasons for refusal to disclose the requested agendas. With respect to the agendas held in the PMO, the PCO position was that they were not subject to the right of access because only the PCO, not the PMO, is subject to the Access to Information Act.
With respect to the agendas found in the PCO (which were clearly subject to the right of access), the refusal to disclose was based on subsection 19(1) of the Act, in order to protect the privacy of the Prime Minister.
It was not until much later in the investigation that PCO invoked section 17 of the Act, arguing that disclosure of the agendas, in whole or in part, could reasonably be expected to threaten the safety of the former Prime Minister and his protective detail. PCO also took the position that disclosure of any part of former Prime Minister Chrétien’s agendas would pose a threat to the safety of Prime Minister Martin.
Some portions of the agendas were also claimed to constitute cabinet confidences which would be excluded from the right of access under section 69 of the Act.
During the investigation, PCO ceased reliance on the provision in the Act pursuant to which it had refused to confirm or deny that PCO held some copies of the Prime Minister’s agendas.
- Are the agendas of the Prime Minister, which are held on the premises of the PMO, under the control of the PCO for the purposes of the right of access set out in section 4 of theAccess to Information Act?
- If so, may the agendas, in whole or in part, be exempted or excluded from the right of access under sections 19 (privacy), 17 (safety of individuals) or 69 (cabinet confidences) of the Act?
- Are the agendas of the Prime Minister, which were held in the PCO at the time of the request, exempt from the right of access, in whole or in part, under sections 19, 17 or 69 of the Act?
Findings and Recommendations
With respect to the first issue, the Information Commissioner concluded that the agendas held in the PMO were under the control of the PCO for the purposes of section 4 of the Act. He also concluded that the Prime Minister is an officer of the PCO. In coming to those conclusions, the commissioner assessed the same factors described previously in case summary #1.
With respect to the second and third issues, the commissioner concluded that section 17, 19 and 69 had been improperly invoked. In this regard, he relied on the same analysis as described in case summary #2.
Records Management and Process Concerns
The investigation determined that the agendas of the former Prime Minister were not maintained in a manner which reflected their status and importance as records of archival importance to Canada.
The commissioner found that there were no procedures in place or followed to ensure that accurate and complete agendas for each day were created, and archived for eventual, mandatory transfer to the National Archives. Thus, he concluded the existing version of the agendas of the former Prime Minister is inaccurate and incomplete. Since prime ministerial agendas are historically significant, created and maintained at taxpayer expense and concern official functions, the commissioner found these shortcomings in records management practices to be profoundly troubling.
For all these reasons, the Information Commissioner recommended to Prime Minister Martin that the requested agendas be disclosed, subject only to exemptions to protect entries unrelated to the prime ministerial functions of the former Prime Minister. The commissioner also recommended that a plan for the proper management of prime ministerial agendas be developed with the National Archivist of Canada and the Information Commissioner.
Prime Minister Martin refused to accept the commissioner’s recommendations. Thus, with the consent of the requester, the commissioner will ask the Federal Court of Canada to review the refusal by PCO to disclose the requested records.
Case 4: Records Held in the Office of the Minister of National Defense Concerning Senior Level Committe Meetings
The complaint arose from the responses by the Department of National Defense (ND) to requests from two individuals for access to records prepared for, or emanating from, so-called "M5" meetings. "M5" was a recurring meeting involving the then Minister of Defense Art Eggleton and five other officials (Chief of Defense Staff, Deputy Minister, Executive Assistant, Director of Operations and Director of Communications).
In response to both requests, ND denied having any records relevant to the requests. One requester complained to the Information Commissioner, the other did not. However, once the Information Commissioner learned that the same response had been given to two requesters, the commissioner investigated both responses.
During the investigation, many hundreds of records relevant to the access requests were uncovered. Some 650 records were found in the minister’s office. These included: notes taken at M5 meetings by the minister’s exempt staffers; agendas; and scheduling records. Some 750 records were found elsewhere in ND including: briefing documents, charts, maps, satellite images and reports.
During the investigation, ND processed and released (subject to exemptions) all M5 records which were located, except for the records which were located in the former minister’s office. The commissioner found that all the exemptions applied to the released records were justified. With respect to the M5 records found in the minister’s office, ND took the position that they were not subject to the right of access.
In ND’s view, although the Department of National Defense is subject to the Act, the office of the Minister of National Defense is not a component part of ND and, hence, is not subject to the Act.
- Were the false answers intentional?
- Were the M5 records which were held in the minister’s office under the control of ND for the purposes of the right of access set out in section 4 of the Access to Information Act?
- If so, do any exemptions or exclusions apply to justify a refusal to disclose the requested records?
- Was the management of M5 records appropriate?
The false answers to the access requests resulted, in the commissioner’s view, from inaccurate and misleading information about the M5 process being given to the department’s access to information professionals by the offices of the Minister, Deputy Minister and Chief of Defence Staff. As well, the commissioner attributed the false answers to the failure by the department’s access to information professionals to play an appropriate challenge function. Given the role, composition and frequency of M5 meetings, the commissioner found that there should have been a very high degree of skepticism in the access to information unit concerning the "no records" responses it received from the senior officials.
The commissioner concluded that the M5 records held in the minister’s office were under the control of ND for the purposes of the right of access. In coming to that conclusion, he took into account the factors discussed in case summary #1.
The commissioner agreed that all exemptions and exclusions put forward by ND, in respect of the records held in the minister’s office, were justifiable. For example, the commissioner agreed that the notes taken at the meeting by exempt staff members qualified for exemption under section 21, as accounts of "consultations or deliberations involving officers or employees of a government institution, a minister of the Crown or the staff of a minister of the Crown."
During this investigation, it became clear that there were serious shortcomings in the state of knowledge of M5 members about records retention and disposition rules and about the basics of good records management practices. First, information was destroyed in contravention of the National Archives Act. In particular, some agendas of M5 meetings were disposed of by M5 members immediately after the meetings on the mistaken assumption that the records were transitory and, hence, covered by the National Archivist’s blanket authorization for destruction of transitory records. In fact, agendas would only qualify as transitory if they were permanently recorded and preserved in another record such as M5 meeting minutes. Since no minutes were kept, the agendas were not "transitory" and at least one copy should have been preserved.
Second, notes taken at M5 meetings were wrongly considered "personal" and some were destroyed without authorization of the minister or the National Archivist. None of the notes were included in properly indexed and accessible records systems. This shortcoming in knowledge and practice is surprising in light of the fact that Treasury Board has issued government-wide guidance on the proper treatment of notes taken at work. The guidance is contained TBS Implementation Report No.67, September 17, 1999. In fact, Appendix B to the IR is devoted to explaining the meaning of "transitory records" and a number of examples or scenarios are included. Scenario E reads as follows:
"You keep a notebook as an ongoing record and reminder of your daily activities. The notebook contains information related to meetings and presentations you have attended as well as information; your lunch dates and dentist appointments. Any information in the notebook that contributes to the documentation of a program or activity should be copied to the departmental record in a timely manner. Once that has been done, you may dispose of the notebook at your discretion. If the notebook contains information relevant to an Access to Information request received prior to its disposal, it must be included in the records reviewed for responding to the request."
Third, records associated with M5 should have been tracked to show their connection with M5. For archival and accountability purposes, good records management practices require not only that records be kept (we know these records exist in indexed files), but that the use of the records (i.e. for discussion at M5) be tracked and recorded.
Fourth, inadequate records were kept to document the decisions, considerations and activities of M5. Government information management policy, and the very traditions of public service, require that adequate records be kept to document government decisions, considerations and actions. For example, the most recent version of the government’s Policy on the Management of Government Information (May 1, 2003) is not restricted to government institutions as described in the Access to Information Act. Rather, the policy applies to the Government of Canada as a whole as is clear from its "Policy Objective" and definition of "government information". The policy makes it clear that there is an obligation, inter alia, to create the records necessary to:
"document decisions and decision making processes to account for government operations, reconstruct the evolution of policies and programs, support the continuity of government and its decision-making, and allow for independent audit and review." (paragraph 2.2(d))
The policy also makes clear that there is an obligation on government to:
"manage information regardless of its medium or format, to ensure its authenticity, accuracy, integrity, and completeness for as long as it is required by the National Archives Act, National Library of Canada Act, Privacy Act, Access to Information Act, specific departmental statutes, and other laws and policies." (paragraph (e), p. 3)
The commissioner expressed the view that the very notions of good, accountable governance presuppose the creation and maintenance of adequate, accurate records. Certainly, the whole scheme of the Access to Information Act depends on records being created, properly indexed and filed, readily retrievable, appropriately archived and carefully assessed before destruction to ensure that valuable information is not lost. So, too, is our ability as a nation to preserve, celebrate and learn from our history. And, of course, good decision-making by government presupposes the existence of a well-documented body of precedent and expertise.
The commissioner concluded that, at a minimum, the following records should have been generated and maintained as part of the support for M5 meetings:
- Records of decision
- Records of documents used and tabled
- Records of attendees
The evidence of General Baril, then Chief of the Defense Staff, supports the view that such record-keeping would not have interfered with the informal, ad hoc nature of M5. In this regard, General Baril testified:
Q.: "There are two things, General, I would like to ask you as we finish. The practice that seems to have developed around M5 of keeping it very informal and not having a written agenda, not having any notation of subject matters at all, what is your personal feeling about the prudence of that approach?
A.: That’s a bit of a loaded – no, interesting question. On one side, politicians are politicians. And I think if I want to keep this very open-minded exchange between me, and the Minister and the DM, I think we’ve got to be…Now, I personally understand.
On the other hand — and I think you suggested the last time that we met here for record purposes — it would be quite easy to have a system in place to make it easier to track for the population of Canada, for the history of our nation, where are we going in the decision-making process, because there are some pretty difficult decisions that will start, originate or finish in those meetings. And it would be much easier to track in five years, or two years, or 20 years from now how it happened. A fairly easy system could be put in place without creating any document, or not very many.
But I personally feel that the Minister’s office should be the lead and should tell us to do that. He runs the department. He is accountable to the Government of Canada. And if it would be his choice to have an easier access to what is going up there, according to the law of the land — I’m not a specialist in the law of the land — probably an easy system could be put in place."
In light of the foregoing, the Information Commissioner made recommendations to the Minister of National Defense, including:
- the M5 records held in the minister’s office be disclosed, subject to applicable exemptions and exclusions;
- ND’s access to information professionals be given direction concerning their challenge and follow-up role to ensure proper searches; and
- ND follow the government’s information management policy for all its senior level meetings and committees, including the preparation of agendas, minutes and ensuring paper flow tracking.
The minister refused to accept the recommendations and, with the consent of the requester, the commissioner has asked the Federal Court to review the minister’s decision to refuse requested records.
Regrettably, there is no jurisdiction for the Federal Court to review the minister’s refusal to follow the government’s records management policy for the future. The refusal cries out for review by the President of Treasury Board, taking into account his obligation under paragraph 70(1)(a) of the Act to:
"cause to be kept under review the manner in which records under the control of government institutions are maintained and managed to ensure compliance with the provisions of this Act and the regulations relating to access to records."
ND’s refusal to agree to create and maintain appropriate records should also be taken up by Parliament.
Cumulative Index of Case Summaries
A cumulative index of Annual Report Case Summaries from 1993-94 is available on request or at the Commissioner’s website:www.infocom.gc.ca.