2009-2010 5. Exploring fundamental points of Canadian access law

Our work in the courts led to progress on several ongoing and new cases that touch on important areas of access to information law. These proceedings and our participation in them highlight the importance we place on developing access to information jurisprudence and standing up for the sound application of the law.

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; the second level of review is by the Federal Court, after we complete our investigation. The latter is only in relation to access refusals.

Court proceedings under the Act may be instigated in the following situations:

• When we conclude that a complaint is substantiated and we make a formal recommendation to disclose records that the institution does not follow, we may, with the complainant’s consent, seek judicial review by the Federal Court of the institution’s refusal.

• The complainant, upon receiving our report of the investigation, can apply for a judicial review of the institution’s refusal.

The Act also provides a mechanism by which a third party can apply for a judicial review of an institution's decision to disclose information that the third party wishes to be withheld.

We may also be involved in other types of proceedings:

• We may seek leave to intervene in matters that relate to access to information.

• We may defend the Commissioner's jurisdiction or powers.

This year, we participated in several court proceedings, summarized below.

Control of records

Canada (Information Commissioner) v. Canada (Minister of National Defence), (A-378-08); Canada (Information Commissioner) v. Canada (Prime Minister), (A-379-08); Canada (Information Commissioner) v. Canada (Commissioner of the RCMP), (A-413-08); Canada (Information Commissioner) v. Canada (Minister of Transport), (A-380-08)

2009 FCA 175 (May 27, 2009), 2009 FCA 181 (May 29, 2009)

(Justices Richard, Sexton, Sharlow)

After lengthy investigations into refusals to provide access by National Defence, Transport Canada, the Royal Canadian Mounted Police (RCMP) and the Privy Council Office of agendas of the Prime Minister, agendas of a Minister and minutes and documents about meetings, the Information Commissioner applied to the Federal Court for a review of the departments’ decisions.

Following the Federal Court decision, there were several appeals. The Federal Court of Appeal dismissed the Information Commissioner’s appeals but supported the Attorney General’s. We subsequently sought and were granted leave to appeal the decisions to the Supreme Court of Canada.

Background

A detailed summary of these cases can be found in our 2008-2009 annual report.

These cases revolved around the following questions:

1. The control issue. Are records in a Minister’s office (including the Prime Minister’s Office) “under the control” of a government institution?

2. Are ministers considered “officers”? Does the term “officers,” as found in the exception to the definition of “personal information” set out in the Privacy Act, include ministers?

Summary of the Federal Court decision

1. The control issue.

The Federal Court decided that ministers’ offices are distinct entities from the departments over which ministers preside and do not constitute “government institutions” within the meaning of the Access to Information Act. The court acknowledged that while ministers and the prime minister are the head of their respective departments, they are not part of them.

To establish whether records located in a minister’s office were under the control of an institution, the Federal Court set out the following test:

1. Does the content of the records relate to a departmental matter?

2. Do the circumstances in which the documents came into being show that the deputy minister or other senior officials in the department could request and obtain a copy of that document to deal with that subject matter? In other words, does a senior official, other than the minister, have some power of direction or command over the document, even if it is only on a partial, transient or de facto basis?

Only if the answer to both these questions is “yes” would the court consider the records in question to be under the control of the institution.

2. Are ministers considered “officers”?

On the applicability of the exemption for personal information, the court found that ministers are public officers as defined in the Interpretation Act and the Financial Administration Act, and therefore “officers” for the purposes of the Privacy Act. As such, they could not rely on the “personal information” exemption for information relating to their duties and functions in the administration of their departments.

The Information Commissioner appealed the Federal Court’s decision on the control issue. The Attorney General brought a cross-appeal, arguing that ministers were not “officers” and, as such, section 19(1) did apply.

Issues, findings and reasons

1. The control issue.

The Federal Court of Appeal dismissed the Information Commissioner’s appeals. The judges upheld the conclusion that government institutions did not include the office of the minister who presides over them.

While acknowledging the force of the legal argument that the head of a government institution is, as a matter of common sense and in accordance with the ordinary meaning of the words, a part of that government institution, the court stated that “it appears to us that the Access to Information Act was drafted on the basis of a well understood convention that the Prime Minister’s office is an institution of government that is separate from the Privy Council Office, and that the offices of Ministers are institutions of government that are separate from the departments over which the Ministers preside.”

The Federal Court of Appeal agreed with the two questions that the Federal Court had proposed to determine which records in a minister’s office were nonetheless under the control of a government institution. The Court acknowledged that the second question could invite speculation, but stated that it could also be answered by drawing reasonable inferences from the evidence, which the Federal Court did.

2. Are ministers considered “officers”?

The Federal Court of Appeal allowed the Attorney General’s cross-appeal.

The appeal judges found that the Federal Court had erred in law in importing into the Privacy Act the definitions of “public officer” from statutes dealing with different subjects that use the term in a different context (i.e. the Financial Administration Act and the Interpretation Act).

The court found that since the Privacy Act and Access to Information Act were “drafted on the basis of a well understood convention that the Prime Minister’s office is an institution of government that is separate from the PCO,” then “if Parliament had intended the Prime Minister to be treated as an ‘officer’ of the PCO for the purposes of the Privacy Act, it would have said so expressly.” The Federal Court of Appeal was also of the view that “it would be inconsistent with the intention of Parliament to interpret the Privacy Act in a way that would include the Prime Minister within the scope of the phrase ‘officer of a government institution’.”

Future actions

On December 17, 2009, the Information Commissioner was granted leave to appeal the Federal Court of Appeal’s decisions to the Supreme Court of Canada. The tentative date for the hearing is October 7, 2010.

Production of records

The Canadian Broadcasting Corporation v. The Information Commissioner of Canada
(T-1552-09)

Background

We launched investigations into numerous complaints regarding CBC’s application of section 68.1 of the Access to Information Act. This section provides that the Act “does not apply to any information that is under the control of the Canadian Broadcasting Corporation that relates to its journalistic, creative or programming activities, other than information that relates to its general administration.”

During the course of our investigations, we insisted that the CBC produce records related to these complaints. In response, the CBC re-iterated that section 68.1 excludes records from the operation of the Act and claimed that we did not have the legal authority to access these documents.

On September 16, 2009, we served Mr. Hubert T. Lacroix, the President of the CBC, with an Order of Production requiring that he produce, or cause to be produced, these specific records. On that same day, the CBC applied for a judicial review challenging our authority to compel the production of records.

Issues

Does the Information Commissioner have the authority to independently review records that are requested under the Access to Information Act but that the CBC claims are not subject to the right of access?

Future actions

The parties have filed their affidavit materials and completed their cross-examinations. The parties have filed their written arguments in this case. The CBC filed a request for a hearing date on April 23, 2010.

Large volume of requests

Statham v. Canadian Broadcasting Corporation
(T-782-08), 2009 FC 1028, October 13, 2009, (Justice de Montigny)

Background

Within its first three months of being subject to the Access to Information Act, the CBC received approximately 400 requests from David Statham. Overwhelmed by a large volume of requests, the CBC was unable to respond to these requests on time. In addition, it did not claim time extensions within the 30-day deadline set out in the Act.

For a detailed description of the ensuing complaints and the result of our investigations, see “Missed Commitments.”

The requester filed an application for judicial review and asked the Federal Court to do the following:

• order the President of CBC to disclose documents requested under the Act that had not yet been disclosed at the time of the application for review;

• declare that the CBC had acted unreasonably in failing to respond to requests in accordance with the provisions of the Act; and

• award costs on a solicitor-client basis.

In order to strike out inaccurate statements of fact that the applicant had filed, the Information Commissioner was added as a respondent in the proceeding.

By the time the Federal Court heard the application for review, the CBC had responded to all of the outstanding access requests.

Issues, findings and reasons

The application was dismissed based on the following:

Is the application for review moot?

Because the CBC had responded to all of the outstanding requests by the time of the hearing, Justice de Montigny noted that the case had been rendered moot. Nonetheless, Justice de Montigny stated that he would hear the case on the grounds that the applicant had raised issues of interest to other potential litigation that the courts had never addressed before.

Can a deemed refusal be “cured” by a commitment date recommended by the Office of the Information Commissioner and agreed to by a government institution?

Justice de Montigny made it clear that a federal institution such as the CBC cannot cure or suspend a deemed refusal. However, he went on to find that a deemed refusal can effectively be “cured” when the Office of the Information Commissioner issues a recommendation setting a new time frame within which an institution is to respond to an access request:

According to Justice de Montigny, when the Information Commissioner has issued a recommendation that an institution respond by a certain date, the fact that an institution has failed to abide by section 9 of the Act (and is therefore deemed to have refused access) is “no longer applicable.”

Does the court have any jurisdiction to hear an application for review in relation to a deemed refusal under section 41 before the expiration of a time limit recommended by the Office of the Information Commissioner?

According to Justice de Montigny, a section 41 proceeding in relation to a deemed refusal cannot be brought until the expiration of a time limit set by the Information Commissioner in his or her recommendations.

Does the court have any jurisdiction under section 41 to entertain an application when there is no genuine and continued claim of refusal?

Justice de Montigny cited with approval a line of Federal Court cases in which the Court held that it did not have jurisdiction under the Act to entertain an application when, at the time of the hearing, there was no genuine and continuing access refusal. The judge went on to suggest that even while the CBC was in a deemed refusal position, there was no genuine and continuing claim of refusal (which would give rise to the Court’s jurisdiction in the section 41 application) because of its undertaking to respond within the time frame endorsed by the Office of the Information Commissioner.

Does the court have jurisdiction in a proceeding initiated under section 41 to render declaratory judgment in the absence of a continued and genuine refusal?

Justice de Montigny cited with approval case law in which a refusal of access is a condition precedent for declaratory relief (or other relief) in a section 41 proceeding because the remedial powers under section 49 or section 50 of the Act only arise where the Court finds a refusal to disclose a record. On this basis, Justice de Montigny stated, “I am further of the opinion that this Court has no jurisdiction to make a declaratory judgment reprimanding the behaviour of an institution.”

Future actions

On November 12, 2009, Mr. Statham appealed the Federal Court’s decision. Both the CBC and the Information Commissioner are parties in this appeal (A-458-09).

Freedom of expression

Ontario (Ministry of Public Safety and Security) v. The Criminal Lawyers’ Association (Docket 32172), Supreme Court of Canada, December 11, 2008. On appeal from the Ontario Court of Appeal, 207 ONCA 392

This case involves an appeal of an Ontario Court of Appeal decision over the following issues:

• Does a provision in Ontario’s freedom of information legislation infringe on the right to freedom of expression guaranteed by paragraph 2(b) of the Canadian Charter of Rights and Freedoms?

• Because the public interest override does not extend to information exempted on the grounds of solicitor-client privilege or law enforcement, does this provision offend the constitutional principle of democracy?

The OIC was an intervener in the case.

The Supreme Court of Canada has not yet rendered its decision. See the 2008-2009 annual report for a summary of the case.

National security

Kitson v. Canada (Minister of National Defence)
(T-680-08), 2009 FC 1000, October 2, 2009 (Chief Justice Lutfy)

Background

National Defence received a request for information contained in reports generated by the Canadian Forces deployed to Afghanistan during Operation Medusa. Specifically, the requester sought the disclosure of the following:

• the number of prisoners taken hostage by Canadian troops in Afghanistan

• the prisoners’ physical location after capture; and

• the prisoners’ current location.

In response, National Defence disclosed some of the information requested, but only after redacting the records under section 15 of the Access to Information Act, which protects information related to international affairs and national defence.

The requester complained to us about these redactions. As a result of our investigation, we determined that National Defence had applied section 15 properly.

The requester applied to the Federal Court for a judicial review.

Issues, findings and reasons

Did National Defence properly invoke the section 15 exemption?

The Federal Court found that National Defence had correctly applied the section 15 exemption.

In this case, the redacted information comprised detailed information about significant incidents that was communicated through the Canadian Forces chain of command to the Chief of the Defence Staff and Deputy Minister of National Defence.

After reviewing the information in question, Chief Justice Lutfy concluded that “there is no doubt in my mind that the documents identified by National Defence come within the s. 15 exemption” and that “the disclosure of the requested information in 2007 could have been of assistance to the enemy of the [Canadian Forces] in Afghanistan, could have caused harm to members of the [Canadian Forces] and others in that country and could reasonably have been expected to be injurious to the defence of Canada or its allies within the meaning of s. 15 of the Act”. According to the Chief Justice, the “determination made in 2007 by National Defence not to disclose this information was made on reasonable grounds” and “there is no further information in issue which could reasonably have been severed within the meaning of section 25 of the Act.”

Do sections 52(2)(a), 52(2)(b) and 52(3) infringe or deny the applicant’s rights or freedoms guaranteed by section 2(b) of the Charter?

When section 15 exemptions are the subject of a judicial review, paragraph 52(2)(a) of the Access to Information Act requires that any hearings be held in camera (in private). In addition, subsection 52(3) gives the institution the right to make representations ex parte—that is, with no other parties to the review present.

During the private hearing, the court examined National Defence’s confidential material to determine what could be delivered to the applicant. As a result, the applicant received much of the material, with the exception of the redacted information in issue, and a few paragraphs.

In this case, one hearing was conducted publicly in order to receive oral submissions from both parties. National Defence did not request that the hearing be conducted in camera, nor did the court direct that the hearing take place in private. No specific mention was made of the redacted information during this public hearing.

Chief Justice Lutfy remarked that “the Court’s encouragement of the openness principle was inconsistent with the mandatory provisions of s. 52(2)(a).”

To remedy this, Chief Justice Lutfy “read down” paragraph 52(2)(a) so that in camera hearings are only mandatory when ex parte submissions mandated by section 52(3) have been made. ”Reading down” is the act of ignoring words in legislation so that it complies with the Charter.

In reading down paragraph 52(2)(a), Chief Justice Lutfy relied on the Supreme Court of Canada’s decision in Ruby v. Canada (Solicitor General), [2002] 4 S.C.R 3. In that case, the Court found that it is not “open to a judge to conduct a hearing in open court in direct contravention to the requirements of the statute … . Unless the mandatory requirement is found to be unconstitutional and the section is ‘read down’ as a constitutional remedy, it cannot otherwise be interpreted to bypass its mandatory nature.”

Expanding on the Ruby decision, Chief Justice Lutfy also decided that paragraph 52(2)(b) should be read down to apply only to ex parte submissions. He pointed out that this reading down “is not intended to affect in any manner the right of the government institution to request that the ex parte hearings be heard and determined in the National Capital Region.”

The application for judicial review was dismissed.

Determining privilege

Blank v. Canada (Minister of Justice)
(T-1577-08), 2009 FC 1221, November 30, 2009 (Justice de Montigny)

Background

Mr. Blank made a request to the Department of Justice Canada for access to all of its communications concerning offences with which he had been charged at one time. Even after he narrowed his request, the Department of Justice advised the requester that there were 20 boxes of records in the file, and that it would take 200 hours to search through them. The requester agreed to pay the resulting processing fees.

The Department of Justice failed to respond to the access request within the statutory time limit of 30 days. The requester filed a complaint with us about that delay.

After further consultations and a review of the records, the Department of Justice released 10 pages. For the information withheld from these pages, the institution claimed section 21(1) and section 23 exemptions. Section 23 protects information that is subject to solicitor-client privilege.

Upon the delivery of these pages, we considered the delay complaint resolved. However, we believed that the Department of Justice could have processed the request within the statutory time limit. We also expressed concern about the discrepancies between the number of boxes of records related to the request and the number of pages that were finally released.

Unsatisfied with the information he received, the requester made a second complaint alleging that the Department of Justice failed to identify all the documents pertinent to his request, and that it did not properly apply the claimed exemptions.

Our investigation into this second complaint resulted in the release of an additional 174 pages of information. However, some information remained withheld under section 19(1) and section 23 exemptions.

After additional reviews, consultations and taking into account the outcome of a related court case, the Department of Justice eventually provided approximately 800 pages. The institution continued to withhold certain information, claiming the solicitor-client privilege exemption.

We investigated the second complaint and found that these exemptions had been properly applied. The requester filed an application for judicial review.

Issues, findings and reasons

The application for judicial review was dismissed on the following grounds.

Did the Department of Justice properly apply the section 23 exemption to the records at issue? Did the Department of Justice waive its right to the privilege?

Relying on the Supreme Court of Canada decision in Blank v. Canada (Minister of Justice), 2006 SCC 39, [2006] 2 S.C.R. 319, Justice de Montigny explained the difference between legal advice privilege and litigation privilege:

Legal advice privilege is absolute and indefinite in duration. It applies when the communication is between solicitor and client, and it entails the seeking or giving of legal advice that is intended to be confidential by the parties.

Litigation privilege expires with the litigation of which it was born. It applies when the communication in question was prepared or obtained for the “dominant purpose” of litigation or reasonably anticipated litigation.

Justice de Montigny also reiterated the Supreme Court’s comment that there “is often a potential for overlap of legal advice privilege and litigation privilege in the litigation context,” such that certain documents might remain protected by legal advice privilege even though the litigation privilege has expired.

Justice de Montigny determined that all the documents in question in this case are protected by legal advice privilege under section 23, since “they all pertain to the giving or seeking of legal advice that was intended to be confidential by both parties.” Justice de Montigny also noted that the Information Commissioner had made similar findings regarding privilege.

The applicant argued that the Department of Justice had waived its right to claim solicitor-client privilege on the basis of representations made by counsel for the Crown at the criminal proceedings. After reviewing the transcripts, Justice de Montigny found that the “representations can in no way be assimilated to an explicit or even an implicit waiver of the documents” withheld by the Department of Justice.

Justice de Montigny also rejected the applicant’s assertion that “once a document has been obtained in the context of another Access request, the privilege that may attach to it must be taken to have been waived for all intent and purposes.” He found that “a document sometimes take its colour from the context in which it is found” and that “the wording of the Access request must also be taken into consideration.” According to Justice de Montigny “it is at least conceivable that a specific document may be found to be releasable in one Access request and not releasable in another, without there being improper use of the discretion conferred by section 23 of the Act.”

It was for these very reasons that Justice de Montigny stated that the Department of Justice “did not have the obligation to cross-reference all the documents released as a result of other Access requests filed by the applicant with the documents considered in the Access request underlying the case” before him. According to Justice de Montigny, “each Access request must be treated as a discrete and self-contained exercise, to be performed with due consideration of the language used in the request and its focus”.

Did the Department of Justice comply with the order to provide particulars for the documents that are claimed to be exempted or irrelevant?

The Department of Justice was ordered by the court to provide the applicant with certain particulars regarding the documents that it claimed were exempt or irrelevant to his request. Justice de Montigny concluded that the Department of Justice complied with the order, since the particulars were provided. Justice de Montigny pointed out that this should have been dealt with by way of a motion before the hearing.

Did the Department of Justice fail to locate and process all of the pertinent records and was this deliberate?

The applicant argued that the Department of Justice deliberately failed to locate and process all of the records relevant to his request. Justice de Montigny disagreed and concluded that the Department of Justice “went to great lengths to locate and process all of the documents relevant to the request, albeit not as expeditiously as it should have done.” Therefore, Justice de Montigny did not grant the applicant’s request to order the Department of Justice to conduct a new search.

Did the Department of Justice act unlawfully, thereby nullifying the application of section 23?

The applicant argued that the Department of Justice not only failed to disclose all of the records to which he was entitled but that the decision to withhold some of them was made in bad faith. The applicant also argued that the records at issue should have been disclosed to him during his criminal trial.

In applying the standard of reasonableness to review the Department of Justice’s decisions regarding disclosure, Justice de Montigny explained that he would consider the Act and the jurisprudence guiding its interpretation and application, as opposed to the laws requiring disclosure in the criminal law context. Justice de Montigny concluded that the applicant did not provide concrete evidence to support his allegations that the Department of Justice had conducted itself unlawfully.

Expiration dates

Bronskill v. Minister of Canadian Heritage
(T-1680-09)

Background

Journalist Jim Bronskill made a request to Library and Archives Canada for the RCMP security files collected on Tommy Douglas, a prominent historical figure who died more than 20 years ago.

LAC provided the requester with information that was heavily redacted under section 15 and section 19 of the Access to Information Act. The requester complained about these redactions.

After conducting an investigation, we determined that the exemptions had been properly applied. The requester applied for judicial review, arguing that LAC unlawfully exercised its discretion since the records were over 70 years old. He argues that any possible security risk they might still represent is far outweighed by the public’s interest in their significant historical value.

Issues

In light of the passage of time and the public’s interest in disclosure, was the Minister of Canadian Heritage’s exercise of discretion to withhold information under section 15(1) and section 19(1) reasonable?

Future actions

The parties have filed their respective affidavits. They have yet to file their written representations.

National defence

Attaran v. Minister of National Defence
(T-1679-09)

Background

Mr. Attaran made a request to National Defence for documents 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. 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.

Issues

1. During the course of our investigation, was National Defence entitled to raise additional exemptions for refusing access, beyond those that were initially claimed when responding to the request?

2. Did the Minister unreasonably exercise his discretion when refusing to disclose records, or portions thereof, based on sections 15 and 19 of the Act?

3. The applicant is arguing that the disclosure of the requested information in a timely manner is a matter of public concern and is necessary to his exercise of effective scholarly freedom of expression under subsection 2(b) of the Charter and, therefore, also necessary to the applicant’s ability to engage in his livelihood.

Future actions

The parties have filed their written arguments. No court date has been set.