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CHAPTER 5- Court Cases
A fundamental principle of the Access to Information Act is that decisions on disclosure of government information should be reviewed independently of government. Review by our office and the Federal Court of Canada are the two stages of independent review the law provides.
When the Information Commissioner concludes that a complaint against a federal institution is substantiated and makes a formal recommendation that the institution does not follow, the Commissioner's policy is to bring the matter before the Federal Court and seek to obtain an order to compel the institution to disclose the records in question.
Summaries of several key court cases that were decided in 2007-2008 are outlined below. For complete details, go to our website. Appendix 2 lists cases that were ongoing as of March 31, 2008.
Census records for Aboriginal land claim research
Canada (Minister of Industry) v. Canada (Information Commissioner) 2007 FCA 212 (A-107-06), June 1, 2007 (Chief Justice Richard and Justices Décary and Evans)
Algonquin bands requested census records to help document their land claims. The Minister of Industry, through his delegate, the Chief Statistician, refused to disclose the records. The Federal Court ordered disclosure for the specific and limited purpose for which the records were requested. The Minister of Industry appealed that decision.
The access to information request was made to Statistics Canada by a tribal council representing three Algonquin bands, as part of their research to document their land claim, for which the Crown required proof of continuity of the bands' membership and of their use and occupation of the lands.
The request was refused and the refusal was investigated by the Commissioner, who recommended that records be disclosed under section 17(2)(d) of the Statistics Act, by virtue of section 8(2)(k) of the Privacy Act.
The Federal Court ordered the disclosure of the records with an undertaking that the requester keep confidential the personal information of non- Aboriginal persons.
The Federal Court of Appeal judgment confirmed the Federal Court order.
The issue in this case was whether the laws at play permitted disclosure of personal information.
First, it was held that, because the Access to Information Act referred to section 17 of the Statistics Act in its entirety, the Chief Statistician was required to determine whether disclosure could take place under that provision.
Section 17(2) of the Statistics Act provides a list of exceptions to a general prohibition against disclosure of information, including an authorization to disclose information “available to the public under any statutory or other law.”
In this case, the provision brought into play was section 8(2)(k) of the Privacy Act, which, subject to any other Act of Parliament, permits disclosure of personal information to any Aboriginal government or association of Aboriginal people for the purpose of researching or validating the claims, disputes or grievances of any of the Aboriginal peoples of Canada.
The phrase available to the public in section 17(2)(d) of the Statistics Act was to be interpreted to mean a segment of the population, such as Aboriginal groups, as opposed to the entire population. Neither provision required that the information be “already” in the public domain.
Therefore, the requirements of section 8(2)(k) of the Privacy Act had been met. Once the conditions necessary for the release of personal information had been fulfilled, the head of the institution had an obligation to disclose the census records. Further, the Federal Court order established parameters so that it would not allow census records to be examined for any purpose or by anybody.
It was held that section 24 of the Access to Information Act prohibits disclosure of records governed by the statutory provisions listed in Schedule II. This meant that individuals seeking disclosure of census information could only do so outside the Act, by requesting that the Chief Statistician proceed in accordance with subsection 17(2) of theStatistics Act.
However, even if the request was through the “wrong door,” the judge explained that it would be unfair and would waste time and resources to allow the appeal on those grounds. He opted instead to determine whether the refusal was authorized under section 17 of the Statistics Act.
He determined that information was available to the public "when anyone may readily access or obtain it by virtue of being a member of the Canadian population." In order to access information under section 8(2)(k) of the Privacy Act, a person must establish a connection with particular groups within the Canadian population: being a member of the community at large is not enough.
The decision was not appealed to the Supreme Court of Canada. The Federal Court order stands and the recommendation of the Information Commissioner was upheld. Statistics Canada is now under judicial compulsion, subject to contempt of Court proceedings, to disclose the requested information. The Office is keeping a watching brief. Without our involvement, these bands would not have had access to information to document their claim.
Confidentiality orders on counsel are justified
Canada (Attorney General) v. Canada (Information Commissioner) 2007 FC 1024 (T-531-06), October 5, 2007 (Justice de Montigny)
The Attorney General challenged the Information Commissioner's authority, when carrying out an investigation under the Access to Information Act, to order confidentiality orders against government witnesses compelled to give evidence and the Department of Justice (DOJ) counsel who accompanied the individual witnesses while they gave their evidencein private.
While investigating a complaint under the Act, certain government officials were compelled to give evidence in private and under oath before the Deputy Information Commissioner. These officials were accompanied by counsel from DOJ, who were permitted to attend to represent each of the witnesses as individuals.
The evidence was to be given in private. However, because a number of witnesses were being called, the Deputy Commissioner determined, on behalf of the Commissioner, that it was necessary to issue confidentiality orders to prevent each witness from disclosing his or her evidence to others (including other witnesses) until such time as all witnesses had given their evidence. Meanwhile, because each witness was represented by counsel from DOJ, and these counsel represented other witnesses as well as the witnesses' employer (i.e., the Crown), the Deputy Commissioner also ordered counsel not to disclose a witness's evidence to anyone else unless specifically instructed to do so by the witness.
After all witnesses had given their evidence, the Deputy Commissioner withdrew the confidentiality orders imposed on the individual witnesses but refused to lift the confidentiality orders issued to the witnesses' counsel. The Deputy Commissioner's rationale was that, because DOJ lawyers have a dual mandate (i.e., acting as a legal representative for each of the individual witnesses, while at the same time representing the witnesses' employer), the orders were necessary to ensure that it remained up to the individual witnesses whether the evidence they gave in private would be shared with their employer.
The Attorney General brought the Information Commissioner to the Federal Court, arguing that he had acted beyond his jurisdiction when issuing the confidentiality orders to the individual witnesses and their counsel.
The issue at the centre of this case was whether the Information Commissioner had the authority under the Access to Information Act to impose confidentiality orders on both witnesses giving evidence in relation to an investigation by the Commissioner and the witnesses' legal counsel.
Because the confidentiality orders imposed on witnesses were lifted after all witnesses had finished giving their evidence, the Court refused to consider whether by issuing these orders the Deputy Commissioner had exceeded his authority under the Act. The matter was not considered because there was no longer any live issue for debate.
Instead, the Court focused on whether the Deputy Commissioner had exceeded his authority when issuing orders to the counsel. More specifically, the Court considered whether orders imposed on counsel improperly interfere with the solicitor-client relationship between DOJ counsel and their multiple clients and/or whether the orders amount to an unjustifiable infringement of the freedom of expression guaranteed by section 2(b) of the Canadian Charter of Rights and Freedoms. The Court noted that it was “revealing and even disturbing” that none of the individual witnesses had joined the Attorney General in its challenge of the Commissioner's authority to issue the confidentiality orders to the witnesses' counsel.
The Court noted that the orders are consistent with the Act's objectives, which include the principle that the Commissioner's investigations be conducted independently of the government. The Court held that although the orders interfere with the solicitorclient relationship they do so no more than is necessary, since employees testifying before the Commissioner must have the last word as to who will have access to what they said. Further, the Court held that while the orders do infringe on DOJ counsel's freedom of expression, in context that infringement is justified.
Thus, the confidentiality orders imposed on counsel do not improperly interfere with solicitor-client privilege and do not unreasonably breach DOJ lawyers' Charter rights.
The Attorney General has appealed the Federal Court's decision.
Patient souls rewarded with release of the Analysis section of a Memorandum to Cabinet
Canada (Minister of Environment) v. Canada (Information Commissioner) 2007 FCA 404 (A-502-06), December 14, 2007 (Chief Justice Richard and Justices Nadon and Pelletier)
In a second round of court battles, the Information Commissioner argued in favour of disclosing the remaining portions of the Analysis section of a Memorandum to Cabinet related to a law that had been tabled in 1995. The Federal Court had ordered the disclosure of parts of the record that the Minister had sought to exempt but upheld some of the Minister's claimed exemptions. Agreeing with the Information Commissioner's position, the Federal Court of Appeal ordered the disclosure of the remaining portions of the record.
When Ethyl Canada Inc. originally requested Cabinet discussion papers on theManganese-based Fuel Additives Act in 1997, it was told by the Minister of Environment that these records were Cabinet confidences excluded from the Access to Information Act. The Information Commissioner investigated and took the position that the Analysis section of the Memorandum to Cabinet was a discussion paper and, as such, was not excluded from the Act and should be disclosed. The Minister disagreed. Litigation ensued. The Courts agreed with the Information Commissioner's position that the document was a discussion paper to which the Act applied, regardless of its title, but decided that the Minister should be given the opportunity to review the document to verify whether any of the Act's exemptions applied.
The Minister did apply exemptions to certain portions of the record. The bulk of the record was released to the requester but the Information Commissioner, for the most part, did not accept that the exemptions invoked by the Minister applied.
A second round of court battles took place. The legal question was the applicability of the section 21 exemptions, which permit federal institutions to refuse to disclose certain information about the operations of government, including advice or recommendations developed by or for a federal institution or minister.
The Federal Court ordered disclosure of further portions of the record, but upheld the exemptions claimed by the Minister for other parts of the record. Both the Minister and the Information Commissioner were dissatisfied with this outcome. On appeal, three judges heard the case and all agreed that all of the Analysis section of the Memorandum to Cabinet should be released to the requester.
The Minister argued that the Federal Court had misapplied certain components of the section 21 exemptions and that the Minister's decision to apply those exemptions should be restored. The Information Commissioner agreed with the Federal Court's order to disclose the portions of the record it did but argued that the whole record should be disclosed because the Minister did not retain any power under section 21 to properly refuse to disclose the Cabinet discussion paper.
Two of the three appeal judges decided to exercise their discretion under the Act to order disclosure of the whole record, rather than return it to the Minister to make a further decision on disclosure in accordance with the Court's reasons. These judges were “convinced that the integrity of the Government's decision-making process would not be compromised by the release of these sentences and words.”
The third appeal judge agreed with the others that the entire record should be disclosed to the requester, but for different reasons. This judge agreed with the Information Commissioner's submissions on the fundamental incompatibility of the section 21 exemptions with Cabinet discussion papers, including the Analysis section of the Memorandum to Cabinet at issue. He saw the section 69 exclusion and the section 21 exemptions as being two mutually exclusive grounds. In this case, the Minister chose to rely on the exclusion set out in section 69 of the Act. The Minister could not, as a backup position, claim the benefit of the exemption for operations of government.
As stated by the Chief Justice, “Perhaps Homer had in mind this prolonged proceeding for the disclosure of information dating back over 12 years when he penned this famous line in The Iliad, 'The fates have given mankind a patient soul.'”
The decision was not appealed to the Supreme Court of Canada.
Government contractors may not raise the personal information exemption
SNC Lavalin Inc. v. Canada (Minister for International Cooperation) 2007 FCA 397 (A-309-03), December 12, 2007 (Justices Desjardins, Sharlow and Trudel)
SNC Lavalin (SNC) appealed a decision by the Federal Court that upheld the Canadian International Development Agency's (CIDA) decision to disclose portions of records requested under the Access to Information Act.
CIDA decided to disclose portions of records that had been requested under the Act relating to an audit of a project involving SNC and CIDA. SNC challenged CIDA's decision to release portions of the requested records, on the grounds that the information consisted of “personal information” and/or “confidential third party information” relating to SNC, and therefore could not be disclosed. The Federal Court dismissed SNC's challenge on the grounds that, first, as a corporate third party, SNC was not entitled to argue that the information contained “personal information,” but rather, could only resist disclosure if the information was “confidential third party information” relating to SNC, and that, second, SNC had failed to make its case that the information was “confidential third party information” in this instance.
SNC appealed the Federal Court's decision. The Information Commissioner intervened in the proceedings before the Federal Court of Appeal.
Should portions of the record not be disclosed on the grounds that they are “personal information”? Should portions of the record not be disclosed on the grounds that they are “confidential third party information”?
The Federal Court of Appeal determined that although, as a result of the Supreme Court of Canada's decision in H.J. Heinz Co. of Canada Ltd. v. Canada (Attorney General),  1 S.C.R. 441, corporate “third parties” are entitled to challenge institutions' decision to disclose requested records on the grounds that they contain “personal information,” SNC had failed, in this instance, to establish that the information could be withheld on this basis. Specifically, the Court concluded that the information at issue was “about an individual who is or was performing services under contract for a government institution that relates to the services performed” so that it fit within an exception to the definition of personal information. Consequently, the information could not be withheld under section 19(1) of the Act.
The Federal Court of Appeal agreed with the Federal Court that SNC had failed to establish that the information at issue was confidential "third party information" exempted under either section 20(1)(b) or (c) of the Act. As a result, the Federal Court of Appeal upheld the Federal Court's judgment and CIDA's decision to disclose the requested records stands.
The decision was not appealed to the Supreme Court of Canada.
Severance requirement for records containing legal advice
Blank v. Canada (Minister of Justice) 2007 FCA 87 (A-563-05), March 1, 2007 (Justices Létourneau, Evans and Pelletier)
The decision was applied in two subsequent appeals involving the same parties and similar issues (Blank v. Canada (Minister of Justice), A-292-06, 2007 FCA 147, April 12, 2007, and Blank v. Canada (Minister of Environment), A-515-06, 2007 FCA 289, September 17, 2007).
This was an appeal by the Minister of Justice of a Federal Court decision ordering disclosure of portions of records that were protected by legal advice privilege. Mr. Blank, the requester, asked the Court of Appeal to order further disclosure of the records.
This was one of many cases brought by Mr. Blank in his ongoing efforts to obtain all records relating to the Crown's unsuccessful criminal prosecution of him and his company for pollution and reporting offences. Many of the access requests, including the one at play in this appeal, were made to advance a lawsuit Mr. Blank has brought against the Crown regarding its attempts to prosecute him.
In this appeal, three relevant documents remained in dispute. The Federal Court of Appeal decided that the Federal Court had been wrong to order the disclosure of certain portions of the documents. However, it ordered that two documents be disclosed to Mr. Blank because the privilege attached to them had been waived.
Section 25 of the Access to Information Act requires disclosure of portions of records to which no exemptions apply. The Federal Court of Appeal was asked to determine whether the Federal Court had properly applied that requirement to certain records to which the legal advice exemption applied.
The Court of Appeal's general determination was that “[s]ection 25 of the Act does not require the severance from a record of material which forms part of a privileged solicitor-client communication.” The proper test for applying the severance requirement to a record containing legal advice was therefore to ask “whether the information is part of the privileged communication. If it is, then section 25 does not require that it be severed from the balance of the privileged communication.”
Applying this principle to the records at issue, the Court of Appeal found that the Federal Court had misapplied the severance requirement and that it had ordered too much disclosure of information from solicitor-client privileged records.
However, Mr. Blank was able to demonstrate that two documents for which the exemption was claimed had previously been shown to him. The Court of Appeal stated that the privilege for those documents had therefore been waived and ordered their disclosure.
The decision was not appealed to the Supreme Court of Canada.