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InfoSource Bulletin 2003 - Privacy Act and Access to Information Act
Ken Rubin v. Minister of Health
Indexed as: Rubin v. Canada (Minister of Health)
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File No.: |
A-575-01 |
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References: |
2003 FCA 37; [2002] F.C.J. No. 1825 (QL) (F.C.A.) |
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Date of decision: |
January 23, 2003 |
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Before: |
Rothstein, Sexton and Evans JJ.A. |
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Section(s) of ATIA/PA: |
S. 20 Access to Information Act (ATIA) |
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Abstract
- Appeal of decision upholding the government institution's application of the exemption provided by para. 20(1)(b) of the ATIA
- Whether discretion in subs. 20(6) properly exercised
- Reliance upon additional exemption subsequent to investigation
Issues
Did the government institution properly apply the exemption provided for by para. 20(1)(b) of the ATIA when it did not investigate more than once whether or not the third party would consent to the release of the information?
Did the Trial Judge err when he decided that the government institution met its burden and proved the applicability of para. 20(1)(b)?
How does the exercise of discretion conferred under subs. 20(6) have to be exercised?
Are foreign governments entitled to the protection afforded by the s. 20 exemption?
Can the government institution invoke a mandatory exemption after the Information Commissioner has concluded his investigation?
Facts
This was am appeal from the Trial Division decision ([2001] F.C.J. No. 1298 (QL)) where the Court had dismissed an application made pursuant to s. 41 of the ATIA.
The appellant brought an application for judicial review pursuant to s. 41 of the ATIA after he requested from the respondent, and was denied, parts of a special Health Canada review on the safety of calcium channel blockers (CCB drugs).
The appellant had requested a report that contained a review of the safety of CCB drugs (the "Report"). The government institution provided the appellant with a first edited version of the Report that had been created for public release but withheld other portions pursuant to paras. 20(1)(b) and (c) of the ATIA. The appellant complained to the Information Commissioner. As a result, the government institution undertook another review of the Report and later provided the appellant with a second edited version. It continued to withhold some information pursuant to paras. 20(1)(b) and (c) of the ATIA. By letter dated some two months after the Information Commissioner's investigation was over, the government institution informed the appellant that it had also relied on s. 13 of the ATIA (information obtained in confidence from the government of a foreign state) to exempt some of the information. The s. 13 exemption was not part of the Information Commissioner's investigation.
The Information Commissioner concluded that the para. 20(1)(b) exemption had been properly applied and the discretion contained in subs. 20(6) had been properly exercised.
Decision
The appeal was dismissed.
Reasons
The appellant's argument that the government institution ought to inquire of third parties more than once to seek their consent to release their confidential information was not supported by the ATIA. In this case, the third party's initial response to the government institution was sufficient evidence that the third party was exerting confidentiality over the information.
Whether the government institution has satisfied its burden that para. 20(1)(b) is applicable is a question of mixed fact and law to be determined by the Trial Division Judge hearing the application. In this case, the government institution submitted evidence that, on the basis of submissions from third parties, it considered the information to be confidential. The Trial Division Judge is entitled to considerable deference with respect to findings of mixed fact and law, absent an extricable legal error. Barring a palpable and overriding error, the Court of Appeal will not interfere with a finding of mixed fact and law by a Trial Division Judge under the ATIA.
Subsection 20(6) confers on the head of the government institution the authority to exercise his or her discretion to disclose, among other things, otherwise confidential information if such disclosure would be in the public interest as it relates to public health. However, nothing in subs. 20(6) expresses or implies specific conditions or requirements that attach to or fetter that exercise of discretion. Generally, a discretionary decision requires that regard be had to relevant considerations and not to irrelevant considerations, that it be in accordance with relevant law and that there be compliance with principles of natural justice. The appellant was not able to demonstrate that there had not been adherence to these well-known considerations. There was public and confidential evidence upon which the decision not to disclose was based. There was no failure to adhere to relevant statutory provisions in the ATIA.
The appellant's argument that foreign governments are not entitled to the protection granted to third party confidential information is not supported by the wording of s. 20. The definitions of "third party" and "government institution" in the ATIA do not indicate that a foreign government cannot be a third party under s. 20. While foreign governments are expressly referred to in s. 13, there is no reason why, in appropriate circumstances, they may not also be third parties under s. 20.
The Court of Appeal did not deal with the issue of whether or not the government institution could rely on the late application of another mandatory exemption (in this case, s. 13) because the Court was satisfied that the government institution properly relied on s. 20.
