ARCHIVED - Info Source Bulletin Number 29

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Sheldon Blank v. Minister of Justice

Indexed as: Blank v. Canada (Minister of Justice)

File No.:	T-1013-04, T-1014-04, T-1015-04, T-1016-04
Reference:	2005 FC 280
Date of decision:	February 23, 2005
Before:	Kelen J.
Sections of ATIA / PA:	Ss. 23, 35 Access to Information Act (ATIA)

Abstract

Confidentiality of documents relating to communications passing between the Information Commissioner and the Department in the course of an investigation carried out under the ATIA.

Issues

1. Can documents relating to communications passing between the Information Commissioner and the Department of Justice in the course of the former's investigation be filed confidentially or whether they must be made public?
2. Whether the privileged documents in the affidavits must be severed and identified in accordance with the Blank decision?

Facts

This is a motion by the respondent Minister of Justice that it be allowed, pursuant to Rules 151 and 152 of the Federal Courts Rules, to file confidential affidavits in respect of four applications for judicial review brought by the applicant Blank. The proposed confidential affidavits contained documents over which the respondent claimed s. 23 ATIA privilege as well as communications made with the Information Commissioner (IC) in the course of his investigation.

A previous motion to file confidential affidavits was adjourned by Kelen J. in order to allow the respondent time to file affidavits that complied with the decision of the Federal Court of Appeal in Blank v. Canada (Minister of Justice) (2004), 244 D.L.R. (4^th) 80, paragraph 66^[3]. However, on October 25, 2004, Justice Décary suspended the effect of the judgment in Blank, supra, until the Supreme Court of Canada renders its decision on the application for leave to appeal. As a result, the respondent sought clarification as to whether the privileged documents contained in the affidavits should still be severed and identified in accordance with the Blank decision.

With respect to the confidentiality of the communications with the IC, the applicant argues that while the IC is prevented from disclosing representations made to him during the course of his investigation, there is nothing preventing the respondent, as author of the representations, from waiving confidentiality. The applicant further argues that once the respondent chooses to rely on the documents in a court proceeding, it should be required to do so publicly. The respondent submits that the material pertaining to the communications between the IC and the Department is relevant because one of the issues raised by the applicant is the degree to which the recommendations of the IC were followed by the respondent. However, the respondent asserts that since it is merely attempting to respond to allegations it should not be required to waive confidentiality. Moreover, because the applicant is self-represented and not bound by professional obligations, it would not be appropriate to disclose the documents to him with an undertaking of confidentiality.

Decision

The motion is allowed.

Reasons

Issue 1

Given the circumstances of this case, the Court was of the view that the respondent should be permitted to file material relating to the investigation of the IC in confidence for the following reasons. First, the ATIA creates a general presumption that representations made to the IC are to be kept confidential. This encourages government departments being investigated by the IC to provide complete and candid disclosure in the course of the investigation. Second, this is not a case where the respondent is attempting to file confidential information in furtherance of an allegation that it has raised or to obtain a remedy. Rather, it is merely defending itself against an allegation put forward by the applicant.

The purpose of allowing the respondent's materials to be filed confidentiality is to ensure that the documents are available to the judge hearing the application. The applications judge will be in the best position to determine if an exception should be granted to allow the applicant access to all or some of this material. It may be that the applicant will need to retain counsel who is authorized under the law to receive confidential information and to make the necessary undertakings. Legal counsel, should the applicant chose to be represented, would have access to these confidential documents.

Issue 2

Although the decision in Blank has been suspended, Kelen J. adopted paragraph 66 as the correct statement of the law with the result that the descriptive lists submitted by the respondent for the purposes of these s. 41 applications for judicial review must still comply with the severance requirements set out in Blank. Kelen J. was satisfied that the privileged documents have been severed in accordance with paragraph 66 of Blank.

The respondent was ordered to provide a descriptive list containing a breakdown of the types of privilege being claimed under s. 23 of the ATIA.

Comments

Mr. Blank has filed an appeal against this decision.

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