ARCHIVED - Info Source Bulletin Number 29

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Sheldon Blank and Minister of Justice

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

File No.:	A-84-05
Reference:	2005 FCA 405
Date of decision:	December 5, 2005
Before:	Linden, Rothstein, and Pelletier JJ.A
Sections of ATIA / PA:	Ss. 20(1)(b), 73 Access to Information Act (ATIA)
Other statute:	Rules 151 and 152, Federal Court Rules, SOR/98-106 as am. By SOR/2004-283

Abstract

• S. 35 ATIA does not preclude a government institution from making exchanges with the Information Commissioner public
• S. 47 ATIA and Federal Court Rules 151 and 152 apply where Minister wishes to file material pertaining to the Information Commissioner's investigation confidentially
• It is for the motions judge to determine whether disclosure of some or all of the material sought to be filed in confidence should be avoided by a confidentiality order under Rule 151(1).

Issue

Can documents pertaining to the communications made by a government institution with the Information Commissioner in the course of his investigation of a complaint be filed confidentially with the Court or must they be made public?

Facts

The appellant, Mr. Blank, made requests to the ATIP Office of the Department of Justice (DoJ) for communications and records pertaining to him and his company. DoJ refused to release some of the documentation requested by the appellant on the basis that it was protected by solicitor-client privilege and thus exempt from disclosure by virtue of s. 23 of the ATIA.

The appellant complained to the Information Commissioner, who investigated and concluded that the complaint was well-founded. However, as DoJ continued to refuse to disclose some of the requested documents, the applicant brought a s. 41 application.

In the course of the s. 41 application, DoJ brought an application to file confidentially the affidavits of officials of its ATIP office. The affidavits contained some documents over which the respondent claimed solicitor-client privilege as well as communications exchanged between DoJ officials and the Information Commissioner in the course of his investigation.

The motions judge, Kelen J., granted DoJ's application to file affidavits in confidence for two reasons (2005 FC 280). First, he held that the ATIA creates a general presumption that representations made to the Information Commissioner are to be kept confidential. This encourages government institutions being investigated by the Information Commissioner to provide complete and candid disclosure in the course of the investigation. Second, this was not a case where the respondent was attempting to file confidential information in furtherance of an allegation that it had raised or to obtain a remedy. Rather, it was merely defending itself against an allegation put forward by the applicant. The material was being used "as a shield, not as a sword". The Federal Court of Appeal noted that in granting DoJ's application, Kelen J. seemed to have relied on s. 35 ATIA while the Minister relied on subs. 47(1) ATIA and Rules 151 and 152 of the Federal Court Rules in his notices of motion to file the confidential affidavits.

This is an appeal by Mr. Blank against the decision of Kelen J.

Decision

The appeal was allowed with costs and the matter remitted to the motions judge to make the determination required under subs. 47(1) ATIA and Rule 151.

Reasons

The intention of Parliament in enacting s. 35 is that an investigation by the Information Commissioner should be conducted in private. Section 62 of the ATIA imposes an obligation on the Information Commissioner not to disclose information that he acquires in an investigation. Section 35 must be read together with s. 62. The obligation of confidentiality under s. 35 is imposed on the Information Commissioner in order to promote the objective of full disclosure by the government in the course of an investigation. However, s. 35 does not preclude the government from making exchanges with the Information Commissioner public should it wish to do so. It is the government's confidentiality that is being protected by s. 35.

Because of the public interest in open court proceedings, filing material in court normally implies that the material will be public. If the Minister chooses to file material pertaining to the investigation by the Information Commissioner, he may do so. But s. 35 will not entitle him to have the evidence treated as confidential.

If the appellant intends to rely on the recommendation of the Information Commissioner that there should be more disclosure than the Minister is prepared to grant, the Minister should be able to provide to the Court the government's exchanges with the Information Commissioner to explain why he believes the Information Commissioner's investigation and conclusion are flawed. The question is whether he may do so without disclosing that information to the appellant.

If the Minister wishes to file such material confidentially, either in whole or in part, s. 47 ATIA and Rules 151 and 152 will apply.

Section 47 is intended to protect against unintended disclosure until the Court makes a substantive ruling on the question of confidentiality. As such, the section must apply not only to the record that is the subject of the ss. 41 or 42 application but to other material or information which, if disclosed in the course of proceedings, would disclose some or all of the contents of the record itself. Rules 151 and 152 set out the process to be followed when s. 47 is relied upon by the government.

It is a fundamental principle of procedural fairness that the Court should not see material from one party to the exclusion of another. However, as with all general principles, there are exceptions. Where the issue is whether records are to be kept confidential or disclosed, the nature of the subject-matter of the Court's inquiry requires that the Court's process not result in disclosure and pre-empt the Court's substantive ruling on the issue (see Hunter v. Canada (Consumer and Corporate Affairs), [1991] 3 F.C. 186 at 202 (C.A.)). That is the reason for s. 47 of the ATIA.

Since the motion before the judge was brought under subs. 47(1) and Rules 151 and 152, the motions judge was required to determine what precautions were necessary, including the extent to which material should be filed confidentially, to avoid disclosure of information or other material on the basis of which the government would be authorized to refuse disclosure of records requested under the ATIA.

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