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4. Working towards clear jurisprudence in favour of disclosure
We bring forward and intervene in court cases to defend or clarify important principles that underlie the fundamental right of access to government information, while contributing to the development of jurisprudence that favours disclosure.
2010-2011 highlights: In one case involving the Canadian Broadcasting Corporation and the Information Commissioner, the Federal Court rendered a decision confirming the Commissioner's authority to compel the production of documents. Another matter, between the Commissioner and the Canada Post Corporation, is currently before the Federal Court, which will be required to rule, for the first time, on the interpretation of the section 18.1 exemption, which protects the economic interests of certain Crown corporations.
A fundamental principle of the Access to Information Act is that decisions on disclosure should be reviewed independently of government. The first level of review is by the Office of the Information Commissioner through our investigation process. Once the Commissioner's investigation is completed and her findings are reported there is a second level of review of refusals to grant access to records before the Federal Court.
Court proceedings under the Act may be commenced in a number of instances:
– When we conclude that a complaint is well-founded and the institution does not act upon our formal recommendation to disclose records, we may, with the complainant's consent, seek judicial review by the Federal Court of the institution's refusal.
– When the complainant, upon receiving our investigation report, is not satisfied with the Commissioner's findings.
– The Act also provides a mechanism by which a third party can apply for judicial review of an institution's decision to disclose information that the third party believes should
We may also be involved in other types of proceedings:
As shown in the summaries below, important decisions on the issue of access to information were rendered in 2010-2011. We participated in a number of court proceedings involving complex files and new provisions stemming from the Federal Accountability Act. We closely monitored a number of other cases with potential ramifications for the Office of the Information Commissioner or for access to information in general, particularly in terms of applications for review made by third parties under section 44. The table included at the end of the chapter provides a snapshot of the range and complexity of our active caseload in 2010-2011.
Access to information decisions
Control of records
Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25
Note: The decision in the following case was rendered shortly after the end of the reporting period. It is included because of its significance.
Refusals by National Defence, Transport Canada, the Royal Canadian Mounted Police (RCMP) and the Privy Council Office (PCO) to provide access to agendas of a former minister and of a former Prime Minister as well as minutes and records of meetings resulted in lengthy investigations by the Information Commissioner. Those investigations led the Commissioner to apply to the Federal Court for a review of the institutions' decisions to not disclose the requested information.
Several appeals followed the Federal Court decision. The Federal Court of Appeal, for its part, dismissed the Information Commissioner's appeals and granted that of the Attorney General. The Information Commissioner subsequently sought and was granted leave to appeal those decisions to the Supreme Court of Canada.
Past annual reports provide a detailed summary of the cases, which revolved around the following issues.
Control of records
– Is the Prime Minister's Office or the office of a minister a "government institution" within the meaning of the Access to Information Act?
– Are records in a minister's office (including those in a Prime Minister's Office) "under the control" of a government institution?
- – Is the Prime Minister considered an "officer" of the Privy Counsel Office? Does the term "officer" set out in the exception to the definition of "personal information" in the Privacy Act include the Prime Minister?
Findings and reasons of the Supreme Court of Canada
The Supreme Court of Canada unanimously ruled that the Prime Minister's Office and Ministers' offices are not part of the government institutions for which they are responsible. The question then becomes whether records held within these offices are nevertheless "under the control" of the government institution.
To answer this question, a two-step test is applied. The first step is to ask whether the record relates to a departmental matter. If it does not, that ends the inquiry as the records are considered as not being under the control of a government institution. On the other hand, if the record relates to a departmental matter, the second step seeks to determine whether, based on all relevant factors, a senior official of the government institution should reasonably expect to obtain a copy upon request. As set out by the Court, these factors include:
–the substantive content of the record;
– the circumstances in which the record was created; and
– the legal relationship between the government institution and the record holder.
If both parts of the test receive an affirmative answer, the record is under the control of the institution and must be disclosed, unless it is subject to a specific exemption under the Access to Information Act.
The Supreme Court stated that the reasonable expectation test is objective and that there is no presumption of inaccessibility for records in ministers' offices. According to the Court, this test does not lead to the wholesale hiding of records in ministerial offices, but is designed to address this concern. Furthermore, the Court stated that Parliament has included strong investigatory provisions in the Act that guard against intentional acts to hinder or obstruct an individual's right to access.
With respect to the exception provided for in the definition of personal information, the Supreme Court affirmed the decision of the Federal Court of Appeal and found that the Prime Minister is not an officer of PCO. Thus, the agendas of the Prime Minister in the possession of the RCMP and the PCO constitute the personal information of the Prime Minister and are not to be disclosed pursuant to section 19 of the ATIA.
Freedom of expression
Ontario (Ministry of Public Safety and Security) et al. v. Criminal Lawyers' Association (Docket 32172, Supreme Court of Canada, 2010 SCC 23)
In a criminal trial for a murder committed in 1983 in Ontario, the judge ordered a stay of proceedings when he determined that the rights of the accused had been breached as a result of abusive conduct by state officials. Following that ruling, the Ontario Provincial Police (OPP) investigated the conduct of the police force and the Crown Attorney involved in the case. The OPP concluded that there was no proof of an attempt to obstruct justice, but it did not publish its report.
The Criminal Lawyers' Association (CLA) submitted an application to the Ontario Ministry of Public Safety and Security under the province's access to information legislation to obtain records concerning the OPP's investigation.
The Minister refused to disclose the requested records, including the police report, invoking three exemptions set forth in the province's legislation. The CLA then appealed to the Ontario Information and Privacy Commissioner. The case went to the Supreme Court. The then Information Commissioner of Canada was an intervener in the case.
This case raised the following issues:
– Does the failure to extend the section 23 public interest override to information exempted on the grounds of solicitor-client privilege or law enforcement infringe upon the right to freedom of expression as guaranteed by paragraph 2(b) of the Canadian Charter of Rights and Freedoms?
– The second issue related to the exercise of discretionary authority, that is, whether the decisions of the Ontario Commissioner and the Minister were compliant with the legislative framework established by Ontario's access to information legislation.
Findings and reasons of the Supreme Court of Canada
With regard to the first issue, the Supreme Court of Canada found that freedom of expression as protected by paragraph 2(b) of the Charter does not guarantee access to all documents under government control.
The Court concluded that, although the protection guaranteed by paragraph 2(b) refers to freedom of expression, access to information "is a derivative right which may arise where it is a necessary precondition of meaningful expression on the functioning of government".
The Court specified that the right to freedom of expression guarantees access to certain documents, only if access is necessary to a meaningful discussion on an issue of importance to the public, if access does not infringe on protected privileges (for example, the solicitor-client privilege) and if it is compatible with the particular function of the institution.
The Court determined that those requirements had not been met. Consequently, paragraph 2(b) was not at issue. The exemptions pertaining to law enforcement and solicitor-client privilege already consider the public interest and confer a discretionary authority to disclose the information.
The Court stated that the principle of public interest override would add little to the process. Also, the CLA failed to demonstrate that a meaningful discussion about the management of the police force's investigation and the proceedings was impossible under the existing legislative framework.
With regard to the second issue, the Court indicated that, after determining that a discretionary exemption applied, the head should have gone on to ask whether certain information should be disclosed. The head also had to "consider individual parts of the record, and disclose as much of the information as possible."
Likewise, the Ontario Commissioner had to determine whether the Minister's exercise of discretion was reasonable. The Commissioner has the authority to quash the Minister's decision and return the matter for reconsideration where: "the decision was made in bad faith or for an improper purpose; the decision took into account irrelevant considerations; or, the decision failed to take into account relevant considerations."
The Court emphasized that the Ontario Commissioner had not reviewed the Minister's exercise of discretion in applying the law enforcement exemption. The Court therefore decided to return the decision based on that exemption to the Commissioner for reconsideration, stating that "[t]he absence of reasons and the failure of the Minister to order disclosure of any part of the voluminous documents sought raise concerns which should have been investigated by the [Deputy] Commissioner."
The Court found, however, that the same was not true for records protected by the solicitor-client privilege exemption. In the view of the Court, it is difficult to see how these records could have been disclosed. Consequently, the Court upheld this aspect of the Ontario Commissioner's decision.
The Ontario Commissioner must reconsider the Minister's exercise of discretion with regard to the law enforcement exemption.
Blank v. Canada (Minister of Justice) (A-519-09), 2010 FCA 183, Chief Justice Blais and Justices Dawson and Stratas
Mr. Blank made a request to the Department of Justice Canada for access to all of its communications concerning the administrative offences with which he had been charged under the Fisheries Act, as well as for access to documents concerning the way in which Justice Canada conducted the prosecution against him. Some pages were disclosed to the requester but other information was withheld.
The requester filed a complaint with the OIC concerning the application of exemptions and alleging that the Department had failed to disclose all of the documents relevant to his request. Our investigation resulted in the release of several documents. After additional reviews and consultations, the Department eventually disclosed approximately 800 pages to the requester, although it continued to withhold certain information under section 23. This exemption protects documents subject to solicitor-client privilege. The OIC found that the exemptions had been properly applied. (See Annual Report 2009−2010, "Determining Privilege").
The requester then filed an application for judicial review with the Federal Court. The ruling, which is summarized below, was reported in the 2009-2010 annual report. The requester appealed Justice Montigny's decision (2009 FC 1221).
- – Could the Minister claim the section 23 exemption? Was the privilege waived?
Federal Court decision
The application for judicial review was dismissed. First, the judge determined that all the documents in question were protected by the legal advice privilege under section 23 and that the Department had not waived the privilege. The judge then explained that there was no evidence to support the allegations that the institution had acted in bad faith. The judge also determined that the Department had fulfilled its obligation to locate and process all of the documents relevant to the request.
Findings and reasons of the Federal Court of Appeal
On the issue of the interpretation of section 23, the Court stated that the Department of Justice's alleged misconduct was not a recognized exception to the privilege. With respect to the issue of waiver, the Court concluded that question had become moot, since Mr. Blank had obtained the documents as a result of other access requests. The Court therefore refrained from commenting on the issue of waiver.
In relation to the issue of bad faith raised by the appellant, the Court noted that the Federal Court judge had evidence capable of supporting the conclusion he reached.
Regarding the allegation concerning missing or unprocessed documents, the Court of Appeal explained that the appellant had not demonstrated a palpable error and that the Federal Court had evidence allowing it to rule as it had. In addition, the Court of Appeal specified that the OIC's investigation concluded that the Department made every reasonable effort to locate relevant records. The Court therefore dismissed
The parties did not seek leave to appeal the decision to the Supreme Court of Canada.
Consequences of a deemed refusal
David Statham v. The President of the Canadian Broadcasting Corporation and the Information Commissioner of Canada, (A-458-09), 2010 FCA 315, Justices Dawson, Trudel and Mainville
Within the first three months of being subject to the Access to Information Act , the Canadian Broadcasting Corporation (CBC) received approximately 400 requests from David Statham. Overwhelmed by the large volume of requests, the CBC was unable to provide a timely response. In addition, it did not claim time extensions within the 30-day deadline set out in the Act. The requester filed a complaint with the OIC. During its investigations, the OIC recommended that the CBC respond to the requests on or before April 1, 2009, which the CBC agreed to do. (For additional information, see Annual Report 2009-2010, "Missed Commitments.")
The requester applied to the Federal Court for judicial review. The decision, summarized below, was reported in the 2009-2010 annual report. The requester appealed that decision (2009 FC 1028).
Decision of the Federal Court
Despite the fact that the matter had been rendered moot as all requests were answered by the hearing date, the judge heard the case, since important issues were raised.
In the view of the Court, an institution cannot unilaterally cure a deemed refusal. However, when the Information Commissioner recommends a commitment date whereby the institution must respond within a certain time frame, the requirements of section 9 on deemed refusal are no longer applicable.
Consequently, the Court did not have jurisdiction to entertain an application under section 41 in relation to a deemed refusal while the institution was still within the time frame set by the Commissioner, since there was no genuine and continuing refusal to disclose.
Finally, in the absence of a refusal, the Court could not make any declaration reprimanding the institution for its behaviour. The judge ordered costs against the requester.
Findings and reasons of the Federal Court of Appeal
In the view of the Court of Appeal, the judge possessed complete discretion to decide whether or not the application was moot. Since several cases were being held in abeyance pending this appeal, the Court of Appeal decided to address the issues.
The Court explained that no distinction exists between a "true refusal", i.e., where someone is refused access to documents, and a "deemed refusal," which is based upon a failure to disclose a record within the time limits set in the Act. The institution, the complainant, and the Commissioner are placed in the same situation in both cases.
The Court pointed out that the Commissioner was entitled to limit the scope of her investigation to a review of the deemed refusal and simply recommend a time frame.
In the view of the Court, it is not possible to cure a deemed refusal. The Commissioner's recommendation does not have the effect of transforming a deemed refusal into a valid and binding extension. Section 36 does not confer the power on the Commissioner to extend time frames. Her role is to make non-binding recommendations to institutions.
With regard to the judicial review of a deemed refusal, "refusal" in section 41 refers to any instance in which a requester has not received access to requested records under the Act. A "refusal" therefore includes a deemed refusal.
The Court of Appeal outlined three prerequisites for an application under section 41:
– The requester must have been refused access to a record (includes deemed refusal);
– The requester must have complained to the Commissioner about the refusal;
– The Commissioner must have reported the results of her investigation under section 37(2).
Regarding the issue of whether a declaratory relief could be granted, the Court pointed out that because the reasonableness of CBC's conduct was not directly in issue, it would have been inappropriate to grant such relief.
In the view of the Court of Appeal, section 53(2) allows costs to be awarded in favour of a requester who raises an important new principle under the Act, even if that person is unsuccessful. Consequently, Mr. Statham should not be ordered to pay costs; costs were awarded to him in both the Federal Court and the Court of Appeal proceedings.
The parties did not seek leave to appeal the decision to the Supreme Court of Canada.
Production of records
The Canadian Broadcasting Corporation v. The Information Commissioner of Canada (T-1552-09), Justice Boivin, 2010 FC 954
We launched investigations into numerous complaints regarding the Canadian Broadcasting Corporation's (CBC) application of section 68.1 of the Access to Information Act. This section provides that the Act does not apply to information relating to journalistic, creative or programming activities.
During the course of our investigations, CBC refused to provide us with the requested records. The Commissioner ordered the CBC to produce the records subject to the access requests. The CBC subsequently applied for judicial review challenging our authority to compel the production of records.
– Does the Commissioner have the authority to order the CBC to produce records, including those which, in the CBC's opinion, relate to journalistic, creative or programming activities?
Decision of the Federal Court
The Federal Court found that the Commissioner had the authority to order the CBC to produce the records for investigative purposes.
After pointing out that the Commissioner is objective and independent, the Court explained that she must have the authority to determine whether or not the records fall under the exception to the exclusion. Deciding otherwise would effectively "exempt CBC from the Act", creating a parallel scheme and denying a requester one level of review.
The judge also stressed "that the Commissioner is a neutral entity, investigations are private and confidential, and the review must be objective. Disclosing records to the Commissioner does not amount to revealing them".
The CBC has appealed the decision (A-391-10). The parties have filed their factums. The CBC is required to file a requisition for hearing in April 2011.
Attaran v. Minister of National Defence and Information Commissioner of Canada, (T-1679-09)
Amir Attaran made a request to National Defence for records concerning the transfer of detainees in Afghanistan. In response, National Defence disclosed some of the information but withheld other information based on sections 15, 16, 17 and 19 of the Access to Information Act.
The requester complained to our office. During our investigation, National Defence relied on other exemptions to refuse access to the records in addition to the exemptions that had already been claimed.
After an investigation, we determined that National Defence had properly applied the exemptions.
The requester applied for judicial review. The Information Commissioner is an intervener for the purpose of filing affidavit material.
– This case involves section 15 and 19 exemptions. Did the Minister correctly claim these exemptions? Could additional exemptions be raised during the investigation?
– The requester argues that the section 19 exemption cannot prevent the disclosure of photos of detainees, since they can be severed so that the detainees' identities are not revealed. Also, the requester argues that the public interest favours disclosure of these photos.
A public hearing was held on February 21, 2010. On March 10, 2011, the respondent presented arguments in relation to the confidential evidence in camera and in the requester's absence, which is possible when the section 15 exemption is claimed. The matter has been taken under reserve.
Bronskill v. Minister of Canadian Heritage and Information Commissioner of Canada, (T-1680-09)
Journalist Jim Bronskill made a request to Library and Archives Canada (LAC) for the security files collected by the Royal Canadian Mounted Police (RCMP) on Tommy Douglas, who died more than 20 years ago. Mr. Douglas was the Premier of Saskatchewan and is generally considered to be the father of the Canadian health care system.
LAC provided the requester with information that was heavily redacted under section 15 (international affairs and defence) and section 19 (personal information) of the Access to Information Act. The requester complained about these redactions.
After conducting an investigation, on the basis of the parties' representations, the OIC determined that the exemptions had been properly applied. The requester applied for judicial review.
– In light of the passage of time and the public's interest in disclosure, did the Minister of Canadian Heritage, who is the minister responsible for LAC, exercise the discretion to withhold information under section 15 reasonably?
– Can the Minister rely on section 19?
On November 30, 2010, the Minister presented arguments before the Federal Court in relation to the confidential evidence. The hearing was held in camera and in the requester's absence, which is possible when the section 15 exemption has been invoked.
Shortly after the in camera hearing, LAC reviewed the records at issue and provided the requester with additional information.
A public hearing was held on February 23, 2011. During that hearing, the judge questioned the Court's jurisdiction to review the additional disclosure. The judge asked the parties to seek the Commissioner's views on the jurisdictional issue. The Commissioner sought leave, and was granted leave to intervene on the question of jurisdiction. She filed submissions following the judge's directive.
Merck Frosst Canada Ltd. v. Minister of Health (Dockets 33290, 33320, Supreme Court of Canada)
In 2000 and 2001, the Department of Health received access requests concerning the submission of a new drug developed by Merck Frosst. The access requests were filed by a competitor.
Following receipt of the requests, the Department informed the pharmaceutical company of its intention to disclose a portion of the records. Merck Frosst opposed the disclosure of general information categories such as manufacturing techniques, chemistry, dates, controls and file numbers. Merck Frosst also opposed the disclosure of pages that had already been forwarded to the requester without prior consultation.
Under section 44 of the Access to Information Act (ATIA), Merck Frosst filed applications for judicial review to prevent the Minister from disclosing the requested records. The Federal Court ruled on those applications in October 2006, and the decisions were subsequently appealed.
The Federal Court of Appeal determined that section 27 of the Act, which concerns notices to third parties, requires an institution to communicate with a third party only in cases where a document contains or may contain trade secrets or confidential information of a financial, commercial, scientific or technical nature.
The Court of Appeal determined that the records in question did not meet the criteria of section 20 of the Act, which concerns third party information. In the view of the Court, the evidence submitted by Merck Frosst, who bore the burden of proof, was not sufficient.
The Information Commissioner's motion for leave to intervene was denied by the Supreme Court.
The issues are the following:
Since certain records were disclosed by the Department without prior consultation of Merck Frosst, it is up to the Supreme Court of Canada to rule on the scope of the institution's obligations on the process of consulting third parties.
The Supreme Court has been asked to determine the definition and scope of a "trade secret" under section 20(1)(a). The Court has also been asked to clarify the conditions that must be met for information to qualify under the section 20(1)(b) exemption as confidential information of a financial, commercial, scientific or technical nature and that was treated confidentially. The Court will also determine what injury must be demonstrated for section 20(1)(c) to apply. Under this exemption, information that may result in losses to or prejudice the competitive position of a third party is protected. Finally, the Court will determine what evidence is needed for the conditions of section 20 to apply and whether the burden of proof falls on the institution or the third party.
These cases were heard on November 12, 2010. The matter is under reserve.
Environment, security and third-party information
Hibernia Management and Development Company Ltd. v. Canada-Newfoundland and Labrador Offshore Petroleum Board and Information Commissioner of Canada, T-1384-10
The case involves Hibernia Management and Development Company Ltd. (HMDC) and the Canada-Newfoundland and Labrador Offshore Petroleum Board (the Board). HMDC is an oil drilling company that operates the Hibernia field off the southeast coast of Newfoundland. The Board manages Newfoundland and Labrador's offshore oil resources on behalf of the Government of Canada and the provincial government.
The Board received a request for access to certain records, specifically records relating to safety and environmental protection audits and inspections of drilling operations carried out by the Board since January 2008. The Board asked for HMDC's observations concerning documents that might contain third party information.
HMDC argued that the records could not be released accor-ding to section 119 of the Canada-Newfoundland Atlantic Accord Implementation Act because they were confidential. This provision is incorporated in section 24 and Schedule II
of the ATIA.
HMDC also argued that the records are protected by the exemptions contained in sections 19 and 20 of the ATIA. Section 19 protects personal information, whereas section 20 protects third party information.
HMDC applied for judicial review to prevent the Board from disclosing the records in question. (application under section 44 of the ATIA).
The Commissioner was granted party status.
– Are the records subject to the exemption in section 24 of the ATIA which incorporates by reference section 119 of the Canada-Newfoundland Atlantic Accord Implementation Act?
– Are the records subject to the exemption in section 20 of the ATIA?
– Do the records contain personal information subject to the exemption in section 19 of the ATIA?
HMDC filed its public record on March 29, 2011. The other parties must now file their records.
Issue of protocol
Information Commissioner of Canada v. Minister of Public Safety, T-146-11 and Information Commissioner of Canada v. Minister of Justice, T-147-11
A requester sought access to a copy of the Protocol in place between the Royal Canadian Mounted Police (RCMP) and the Department of Justice entitled "Principles to Implement Legal Advice on the Listing and Inspection of RCMP documents in Civil Litigation".
The requester made two requests to obtain the protocol: one to the RCMP and the other to the Department of Justice. In both cases, the institutions refused to disclose the protocol, invoking the same exemptions under sections 21 (advice developed for government) and 23 (solicitor-client privilege).
The requester filed a complaint with the OIC in relation to both refusals. The Commissioner conducted investigations and rejected the application of the exemptions. Once the investigations were completed, the Commissioner presented her findings to the institutions, which rejected her recommendations. On February 3, 2011, the Commissioner filed applications for judicial review, with the requester's consent, under section 42 of the Access to Information Act.
The Commissioner is required to serve her affidavits on the Ministers in April 2011.
What is the scope of section 18.1?
Information Commissioner of Canada v. President and Chief Executive Officer of the Canada Post Corporation, T-382-11
On September 12, 2007, a request was made to the Canada Post Corporation for information concerning the access to information coordinator. More specifically, the requester wanted access to the name, telephone number, and duties and functions of the coordinator, as well as the applicable salary scale, allowances and employee benefits. He also sought a copy of the coordinator's contract of employment.
The President of Canada Post refused the request pursuant to s. 18 of the ATIA, arguing that disclosure of the requested information could reasonably be expected to prejudice Canada Post's competitive position or interfere with its negotiations. He added that the information was of a financial and commercial nature and qualified for exemption under section 18.1 which is designed to protect the economic interests of certain Crown corporations, including Canada Post.
Following a complaint from the requester, the Commissioner conducted an investigation and determined that the exemptions did not apply. Upon completion of the investigation, she presented her findings to the President of Canada Post who, in turn, rejected her recommendations. The Commissioner therefore filed an application for review with the Federal Court under section 42 of the Act, with the requester's consent, on March 8, 2011.
- – Whether the President of the Canada Post Corporation properly claimed the section 18 and 18.1 exemptions?
The Commissioner is required to serve her affidavits on the Canada Post Corporation in April 2011.
Ad hoc Commissioner
William Fenwick West v. Her Majesty the Queen (Docket 264962, Nova Scotia Court of Appeal)
In December 2001, William Fenwick West was found guilty of robbery and other offences. The Nova Scotia Court of Appeal ordered a new trial. At the new trial, the guilty verdict against Mr. West was upheld for six of the nine offences with which he was charged. Mr. West appealed those convictions.
Mr. West submitted an access request to the Royal Canadian Mounted Police (RCMP) to obtain radio transmission tapes recorded by the RCMP. The RCMP was unable to locate
Mr. West filed a complaint with the Commissioner. During our investigation, we located some records relating to his request, which were provided to Mr. West. He later submitted a second access request for records pertaining to the transmission of the recordings. A second complaint was made to the Commissioner, which was determined to be not well-founded.
Following the completion of our investigations, Mr. West submitted two access requests to the Commissioner to obtain copies of our investigation files into his complaints against the RCMP. The Office of the Information Commissioner provided him with information, but withheld certain records in accordance with section 16.1 of the Access to Information Act. This mandatory provision protects information and records obtained during the investigation carried out by the Commissioner.
Mr. West therefore filed a complaint with the ad hoc Commissioner regarding the two requests he had submitted to the Office of the Information Commissioner. The ad hoc Commissioner at the time, the Honourable W. Andrew McKay, investigated and concluded that the complaints were not substantiated. Mr. West did not apply for judicial review of those decisions.
In his case before the Nova Scotia Court of Appeal, Mr. West has brought a motion seeking to obtain the disclosure of information contained in the investigation files of the Office of the Information Commissioner. In the motion, he has named the ad hoc Commissioner and the Commissioner as respondents.
- – This motion concerns the jurisdiction of a provincial court of appeal to order the disclosure of information withheld by the Office of the Information Commissioner under section 16.1 of the Access to Information Act.
The current ad hoc Commissioner, Mr. John Sims, retained legal counsel to represent him in this matter. The Commissioner and the ad hoc Commissioner are required to file their written submissions in May 2011.
The case of William Fenwick West v. Her Majesty the Queen illustrates some of the problematic aspects of the role of an ad hoc Commissioner.
Since the adoption of the Federal Accountability Act, the Office of the Information Commissioner has been subject to the Access to Information Act. Therefore, the Commissioner, like all other heads of government institutions, must respond to all access to information requests submitted to her.
The Access to Information Act does not provide for a separate mechanism for investigating complaints relating to decisions made by the Commissioner on the access requests that she receives. To avoid investigating such complaints herself, she has retained the services of an ad hoc commissioner. The fact that the Commissioner appoints and pays the ad hoc Commissioner taints the independence of that position from the outset. The fact that this position is not expressly provided for under the Act also gives rise to certain other problems.
First, section 59 of the Access to Information Act sets out how the Commissioner may delegate her powers. Under that section, the authority to sub delegate can only be conferred upon an Assistant Information Commissioner. Thus, the ad hoc Commissioner cannot delegate any powers to an investigator. The Commissioner must do it for the ad hoc Commissioner, which is a limitation on the independence of the ad hoc Commissioner. This means that the ad hoc Commissioner can choose an investigator, but the Office of the Information Commissioner is responsible for delegation and payment.
Second, subsection 59(2) imposes restrictions on the Commissioner in relation to certain types of investigations. Because the ad hoc Commissioner is neither an officer nor an employee, the Commissioner cannot delegate the investigation of a complaint resulting from a refusal to disclose records relating to international affairs and defence to the ad hoc Commissioner.
Third, because a separate investigative mechanism is not provided for in the Act, the Office of the Information Commissioner has no source of funding dedicated for such investigations. The Office of the Information Commissioner must fund the ad hoc Commissioner from its own operating budget, which could also be perceived as affecting the independence of the ad hoc Commissioner. This situation restricts the financial manoeuvring room available to the Office of the Information Commissioner, especially since it cannot control or predict the number of complaints that will be submitted to the ad hoc Commissioner. The imposition of financial restrictions on the ad hoc Commissioner could be perceived as an incursion on his independence.
The specific case involving Mr. West has a potentially significant financial impact on the Office of the Commissioner, which must fund its own counsel, as well as pay the fees of counsel retained by the ad hoc Commissioner.
One last problem stems from the fact that the records of the ad hoc Commissioner are under the control of the Office of the Information Commissioner, which should not have access to those records.