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II. Cases in progress – Information Commissioner as Applicant / Appellant

The Information Commissioner of Canada v. The Executive Director of the Canadian Transportation Accident Investigation and Safety Board and NAV Canada and the Attorney General of Canada, A-165-05 and A-304-05, Federal Court of Appeal, Richard, C.J., Desjardins, Evans, J.J. heard February 28 and March 1, 2006. Judgement reserved. (See Annual Report, 2004-2005, p. 52-53 for more details).

Nature of Proceedings

This is an appeal of Madam Justice Snider’s decision of March 18, 2005 to dismiss the Information Commissioner’s application for review of the decision of the Executive Director of the Canadian Transportation Accident Investigation and Safety Board (hereinafter the "TSB") to refuse to disclose tapes and transcripts of communication between air traffic controllers and aircraft personnel ("ATC" communications). Justice Snider further refused to determine a constitutional issue as to whether subsection 9(2) of the Radiocommunication Act 1985, cr. 2 infringes paragraph 2(b) of the Canadian Charter of Rights and Freedoms (the right to freedom of expression).

Issue Before the Court of Appeal

1. Whether the Application Judge erred in fact and in law in the proper interpretation of the definition of "personal information" set out in section 3 of the Privacy Act, R.S.C. 1985, c. P-21 and in her application of subsection 19(1) of the Act to the records at issue;

2. Whether the Application Judge erred in fact and in law by finding that all information contained in the records at issue was personal information properly exempted from disclosure under section 19 of the Act, without any severance pursuant to section 25 of the Act;

3. Whether the Application Judge erred in fact and in law with respect to the application of paragraph 19(2)(b) of the Act regarding public availability of information contained in recordings and transcripts of ATC radiocommunications on public radio frequencies reserved to the aeronautical service;

4. Whether the Application Judge erred in fact and in law with respect to the application of paragraph 19(2)(c) of the Act, and paragraphs 8(2)(a), (b) and subparagraph 8(2)(m)(i) of the Privacy Act;

5. Whether the Application Judge erred in fact and in law by refusing to determine the constitutionality of subsection 9(2) of the Radiocommunication Act, relating to the public availability, the use and the dissemination of information contained in ATC radiocommunications on public radio frequencies reserved to the aeronautical service; and

6. Whether subsection 9(2) of the Radiocommunication Act, as it relates to ATC radiocommunications, is contrary to paragraph 2(b) of the Charterand cannot be upheld by section 1 of the Charter.

Outcome

The appeal was heard on February 28 and March 1, 2006, and judgment was reserved. The outcome of these judicial proceedings will be reported in next year’s annual report.

The Information Commissioner

v. The Minister of Transport
, Court file T-55-05, Federal Court, Blais, J.

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

Factual Background

On June 12, 2001, a request was made under the Act for access to "an electronic copy of the CADORS [Civil Aviation Daily Occurrence Reporting System] 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 "occurrences" 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 their 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, portions could severed. Still, Transport Canada withheld 33 of the 51 fields of information based on subsection 19(1) of the Act (the "personal information" exemption).

Transport Canada 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 Act 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 filed an Application for Judicial Review of the Minister’s access refusal.

Future Steps in the Proceedings

This application was heard before Mr. Justice Blais on February 9, 2006, and the hearing will continue on May 15, 2006. The outcome of these judicial proceedings will be reported in next year’s annual report.

The Information Commissioner of Canada

v. Minister of Environment,
T-555-05, Federal Court, (See Annual Report 2004-2005, p. 59)

Nature of Proceedings, Background and Issues before the Court were reported in last year’s annual report. In a nutshell, the issue is whether or not Cabinet confidences, which qualify for disclosure pursuant to paragraph 69(3)(b) of the Act (i.e. discussion paper material), may be withheld pursuant to section 21 of the Act.

Future Steps in the Proceedings

The matter is ongoing. Hearing of the application has not taken place yet, and the results of these judicial proceedings will be reported in next year’s annual report.

The Information Commissioner

v. The Minister of National Defence
, T-210-05, Federal Court

Nature of Proceedings

This is an application for judicial review, commenced pursuant to paragraph42(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 Act pertaining to "M5 meetings" for 1999. The issue is whether records held in the office of the Minister of Defence, which relate to the Minister’s duties as Minister of Defence, are subject to the right of access.

Factual Background

See Annual Report 2004-2005 at pages 44 to 49 for more details

Future Steps in the Proceedings

Further to a motion by the Information Commissioner, these proceedings were consolidated to some extent with related proceedings introduced this year in Federal Court files T-1209-05, T-1210-05 and T-1211-05 with respect to issues regarding disclosure of agendas of former Prime Minister Chrétien and of a former Minister of Transport Canada. However, following the federal elections of January 23, 2006, counsel for the respondents sought and obtained, with the consent of the Information Commissioner, an Order to stay the proceedings until May 5, 2006 in order to receive further instructions from the new government with respect to the conduct of these proceedings. The Information Commissioner will report the results and/or progress of these proceedings in next year’s annual report.

The Information Commissioner

v. The Prime Minister of Canada
, T-1209-05, Federal Court

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 a former Prime Minister to disclose records requested under the Act pertaining to the Prime Minister’s agenda books for January 1994 to June 25, 1999. The issue is whether or not the agendas, held in the Prime Minister’s Office, are subject to the right of access.

Factual Background

See Annual Report 2004-2005, pages 42 to 44 for more details.

Further Steps in the Proceedings

See information supra in Court file T-210-05.

The Information Commissioner

v. The Commissioner of the Royal Canadian Mounted Police
, T-1210-05, Federal Court

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 Commissioner of the RCMP to disclose records requested under the Act pertaining to the agenda of the former Prime Minister Chrétien covering the period of January 1, 1997 to November 4, 2000. The issues are whether or not the agendas qualify for exemption, in their entirety, for reasons of privacy (section 19) or for reasons of safety (section 17).

Factual Background

See Annual Report 2004-2005, pp. 39-42.

Further Steps in the Proceedings

See information supra in Court file T-210-05.

The Information Commissioner

v. The Minister of Transport Canada
, T-1211-05, Federal Court

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 Transport to disclose records requested under the Act pertaining to the Minister’s Collenette’s agenda for the period June 1, 1999 to November 5, 1999. The issue is whether these records, held in the minister’s office, are subject to the right of access.

Factual Background

See Annual Report 2004-2005, pp. 35-38 for more details.

Further Steps in the Proceedings

See information supra in Court file T-210-05.



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