InfoSource Bulletin 2003 - Privacy Act and Access to Information Act

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David M. Sherman v. Minister of National Revenue
Indexed as: Sherman v. Canada (Minister of National Revenue)

File No.:	T-612-00
Reference:	[2002] F.C.J. No. 779 (QL) (F.C.T.D.) [rev'd 2003 FCA 202; [2003] F.C.J. No. 710 (QL) (F.C.A.), A-387-02, judgment dated May 6, 2003]
Date of decision:	May 22, 2002
Before:	McKeown J.
Section(s) of ATIA / PA:	Ss. 13(1)(a), (2), 53 Access to Information Act (ATIA)

Abstract

• Application of para. 13(1)(a) ATIA
• Statistics compiled from information obtained from the Internal Revenue Service of the US under Canada-US Tax Convention integral part of that information
• Requested information is about information exchanged under the Convention in confidence and should be treated the same
• No costs ordered in unsuccessful public interest application

Issue

Was the requested information properly exempted from disclosure pursuant to paras. 13(1)(a), 16(1)(b), 16(1)(c) or subs. 15(1) ATIA?

Facts

The applicant sought, from Revenue Canada, the disclosure of certain statistical information regarding the extent to which Revenue Canada used the United States Internal Revenue Service ("IRS") to collect Canadian taxes since 1995, and the extent to which the IRS used Revenue Canada to collect U.S. taxes since 1995, pursuant to the Convention Between Canada and the United States of America with respect to Taxes on Income and on Capital (the "Convention"). The respondent refused to disclose the information pursuant to paras. 13(1)(a), 16(1)(b) and (c) ATIA.

The applicant subsequently complained to the Information Commissioner who found that the applicant's complaint was not substantiated.

The applicant applied for judicial review of the Minister's refusal to disclose. He submits that the requested information was not collected from the United States, that it is simply statistics from Revenue Canada's own files, and that statistics about the information are not the same as the information itself. He further submits since domestic statistics are released, there should be no change in policy with respect to statistics obtained through foreign governments and, therefore, the latter should also be released.

Decision

The application was dismissed without costs.

Reasons

In reviewing decisions not to disclose pursuant to a mandatory class test exemption such as para. 13(1)(a), the Court's role is to determine whether the head of the government institution erred in the factual determination that the requested information falls within the exemption.

The Court outlined the three requirements to satisfy para. 13(1)(a): the information must be obtained from the foreign government, the information must have been obtained in confidence; and the information must have been obtained from the government of a foreign state or an institution thereof.

Information obtained from the foreign government

The records containing the information sought are a compilation of statistics about the collection assistance given by Canada to the United States and received by Canada from the United States under the Convention. The Court found that the statistics are an integral part of the information supplied under the Convention, as the statistics could not exist without the information obtained from the United States. The Court added: "The Government of Canada is free to choose what part of their own information they choose to release in statistical form, however, the difference is that by releasing such statistics with respect to their own data it does not interfere with relations with foreign countries. The IRS has told Canada it does not want the information disclosed. It could jeopardize working relations between Canada and the United States under the Convention."

Information obtained in confidence

Referring favourably to Nadon J.'s eighth principle in Do-Ky v. Canada (Minister of Foreign Affairs and International Trade), [1997] 2 F.C. 907 (T.D.), the Court determined that the information requested is about information exchanged under the Convention, and therefore, it should be treated as secret, in the same manner as information exchanged under the Convention would be treated. The United States Government's position that it considers the information to have been sent and received in confidence and that it should not be released provided further support for the view that the requested information was obtained in confidence.

Information obtained from the government of a foreign state or an institution thereof

There was no dispute that the IRS is an institution of the United States Government or that the United States is a foreign state.

The Court determined that subs. 13(2) was inapplicable because the United States did not consent to the disclosure and did not make the information public.

In view of its finding under para. 13(1)(a), the Court did not consider subs. 15(1) nor paras. 16(1)(b) and 16(1)(c).

Regarding costs, the Court was of the view that this application mainly involved a factual determination and did not involve important new principles. Nevertheless, the Court ordered, pursuant to s. 53 ATIA, that there be no costs because the applicant brought this application in the public interest and did not stand to benefit personally from the disclosure.

Comments

This decision is under appeal.

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