Info Source Bulletin Number 29

 

Privacy Act

and

Access to Information Act

 

Bulletin Number 29

July 2007

Table of Contents

A. Introduction

B. Information on the Government of Canada

C. About Info Source

D. Roles and Responsibilities

E. Additional Information

Statistical Information – Personal Information Banks 2005-2006

Statistical Tables 2005-2006 – Access to Information

Statistical Tables 2005-2006 – Privacy

Statistical Tables 1983-2006 – Access to Information

Statistical Tables 1983-2006 – Privacy

Federal Court Cases

Footnotes

A. Introduction

Note: This Bulletin is in large print to assist persons with visual disabilities.

Info Source: Access to Information Act and Privacy Act Bulletin

This annually updated Info Source Bulletin contains Statistical Tables reflecting the number of Access to Information and Privacy requests by institutions within the federal government on an annual basis and cumulative statistics since 1983. It also contains summaries of 2005–2006 federal court cases related to the Access to Information Act and the Privacy Act.

B. Information on the Government of Canada

The following telephone numbers are for the Government of Canada's bilingual, toll-free service. They can be used to obtain general information and referrals for programs and services.

Toll-free	1-800 O-Canada (1-800-622-6232)
TTY/TDD	1-800-465-7735

Canada Business Service Centres provide bilingual, toll-free information related to business, starting a business or programs, services or regulations related to business. These Centres are able to answer both federal and provincial questions.

Toll-free	1-888-576-4444
Web Site	www.cbsc.org

Canada Web Site

Web Site

www.canada.gc.ca

The Canada Site provides a single electronic access point to general information about Canada, the federal government, its programs and services. The Canada Site features three gateways to quickly access information: Canadians, Canadian Business and Non-Canadians. These gateways organize content around the needs of users rather than by departmental responsibility.

C. About Info Source

Info Source is a series of publications containing information about and/or collected by the Government of Canada. The primary purpose of Info Source is to assist members of the public and federal employees in exercising their rights under the Access to Information Act (ATIA) and the Privacy Act (PA). Info Source also supports the government's policy to explain and promote open and accessible information regarding its activities. In essence, Info Source upholds the transparency and accountability of the federal government to Canadians.

There are four Info Source publications:

Info Source: Sources of Federal Government Information:

• provides information about the Government of Canada, its organization and its information holdings.
• helps individuals determine which institution to contact to make enquiries.
• provides individuals who are not, and who have never been employees of the federal government with relevant information to facilitate access to personal information held about them by any federal government institutions subject to the Privacy Act.

Info Source: Sources of Federal Employee Information:

• contains information to help current and former federal government employees to locate personal information held by the government.
• is intended to help former and current government employees to exercise their rights under the Privacy Act.

Info Source: Directory of Federal Government Enquiry Points:

• contains addresses and telephone numbers for federal departments and agencies subject to the Access to Information Act and/or the Privacy Act.
• Other institutions associated with the federal government are included to facilitate access.

Info Source: The Access to Information Act and Privacy Act Bulletin:

• provides Statistical Tables reflecting the number of Access to Information and Privacy requests on an annual basis and cumulative statistics since 1983.
• contains a summary of federal court cases related to the Access to Information Act and the Privacy Act.

Info Source is distributed to libraries, municipal offices and federal government offices across Canada.

D. Roles and Responsibilities

Treasury Board Secretariat

In accordance with the Access to Information Act, Treasury Board is responsible for the annual creation and dissemination of a publication that provides a description of government organizations, program responsibilities and classes of records with sufficient clarity and detail to enable the public to exercise its rights under the Access to Information Act.

Treasury Board is also responsible for the annual publication of an index of personal information that will both serve to keep the public information of how the government handles personal information, as well as facilitating the public's ability to exercise its rights under the Privacy Act.

Treasury Board Secretariat fulfils these requirements through the annually updated publication of Info Source.

Individual Institutions

Government institutions are required to provide their updated information to Treasury Board Secretariat on an annual basis. This information is utilized in the production of the publications required by the Access to Information Act and Privacy Act. Consequently, each department and agency is completely responsible for the information it submits.

E. Additional Information

For more information about Info Source, the Access to Information Act or the Privacy Act, you may contact:

Treasury Board of Canada Secretariat
L'Esplanade Laurier, 8^th Floor, East Tower
140 O'Connor Street
Ottawa, Ontario  K1A 0R5

General Enquiries	613-957-2400
Publications	613-995-2855
Facsimile	613-996-0518
TTY	613-957-9090
General Library Reference	613-996-5494
E-mail	infosource@tbs-sct.gc.ca
Treasury Board Web Site	www.tbs-sct.gc.ca

If you would like a copy of Info Source: Directory of Federal Government Enquiry Points or the Info Source: Access to Information Act and Privacy Bulletin, please contact:

Treasury Board Distribution Centre
L'Esplanade Laurier, Room P-140, Level P-1W
300 Laurier Avenue West
Ottawa, Ontario K1A 0R5

Telephone	613-995-2855
Facsimile	613-996-0518
E-mail	Services-Distribution@tbs-sct.gc.ca

If you would like to purchase a copy of Info Source: Sources of Federal Government Information or Info Source: Sources of Federal Employee Information, please contact:

Publishing and Depository Services
Public Works and Government Services Canada
Ottawa, Ontario K1A 0S5

E-mail	publications@pwgsc.gc.ca
Telephone	613-941-5995
Telephone Toll-free	1-800-635-7943 (Canada & US)
Facsimile	613-954-5779
Facsimile Toll-free	1-800-565-7757 (Canada & US)
Web Site	http://publications.gc.ca

All four Info Source publications are available free of charge at: www.infosource.gc.ca.

Statistical Information – 
Personal Information Banks
2005–2006

Personal Information Banks

Personal Information Banks provide a summary description of the type of information about individuals that is held by federal departments and agencies in their records and that has been used, is being used, or is available for use for an administrative purpose, or is organized or intended to be retrieved by the name of an individual or by an identifying number, symbol or other particular assigned to an individual.

Number of institutions registering new PIBs during this period	36
Number of new PIBs registered during this reporting period	210
Number of new institution-specific PIBs registered	23
Number of new Standard PIBs registered	187

Statistical Tables 2005–2006 – 
Access to Information 

Access to Information Requests - April 1, 2005 to March 31, 2006

These figures are based on Statistical Reports provided by 158 of the 158 federal institutions subject to the Access to Information Act.

Requests received during this reporting period	27,269
Requests brought forward from previous reporting period	5,412
Total number of requests	32,681
Requests completed	26,621
Requests carried forward to next reporting period	6,060
Please note: These totals include transfers of requests between institutions.

Disposition of Completed requests

Requests where all information was disclosed	28.4%	7,569
Requests where information was disclosed in part	46.2%	12,311
Requests where all information was excluded	0.7%	184
Requests where all information was exempted	1.6%	435
Requests transferred to another institution	1.7%	464
Requests where information was given informally	0.7%	198
Requests which could not be processed (by reasons such as insufficient information provided by applicant, no records exist or abandonment by applicant)	20.5%	5,463
Total		26,624

Source of Requests

Requests received from businesses	49.0%	13,360
Requests received from the public	33.4%	9,108
Requests received from organizations	7.3%	1,980
Requests received from the media	9.0%	2,451
Requests received from academics	1.4%	370
Total Requests Received		27,269

Institutions ranked in order of number of requests received

1)	Citizenship and Immigration Canada	37.8%	10,309
2)	Health Canada	6.8%	1,842
3)	Canada Revenue Agency	6.5%	1,772
4)	National Defence	4.2%	1,131
5)	Royal Canadian Mounted Police	3.4%	924
6)	Transport Canada	3.3%	901
7)	Public Works and Government Services Canada	3.1%	832
8)	Library and Archives Canada	2.7%	745
9)	Environment Canada	2.7%	728
10)	Canada Border Services Agency	2.5%	670
11)	Other Departments	27.2%	7,415
Total			27,269

Time Required to Complete Requests

(including requests for which extensions were required)

0 to 30 days	59.6%	15,877
31 to 60 days	17.9%	4,770
61 to 120 days	10.1%	2,683
121 days or over	12.4%	3,291
Total		26,621

Extension Time Required

	30 days or less	31 days or over
Searching	973	1,461
Consultation	1,599	1,330
Third Party	109	1,298

Exemptions

It should be noted that a single Access Request can be indicated as being exempted for multiple reasons. All such exemptions must be reported.

Section 19	Personal information	30.5%	9,098
Section 21	Operations of government	15.7%	4,682
Section 20	Third party information	13.3%	3,962
Section 16	Law enforcement and investigations	12.5%	3,729
Section 15	International affairs and defence	11.9%	3,563
Section 13	Information obtained in confidence	4.9%	1,455
Section 23	Solicitor-client privilege	4.3%	1,271
Section 24	Statutory prohibitions	2.1%	634
Section 14	Federal-provincial affairs	1.9%	593
Section 18	Economic interests of Canada	1.8%	535
Section 22	Testing procedures	0.5%	141
Section 17	Safety of Individuals	0.4%	108
Section 26	Information to be published	0.3%	81
Total			29,852

Exclusions

It should be noted that a single Access Request can be indicated as being excluded for multiple reasons. All such exclusions must be reported.

Section 69(1)(g)	35.6%	673
Section 69(1)(a)	25.1%	474
Section 69(1)(e)	14.9%	281
Section 68(a)	11.6%	219
Section 69(1)(d)	6.5%	122
Section 69(1)(c)	3.6%	69
Section 69(1)(f)	1.3%	25
Section 69(1)(b)	0.5%	9
Section 69(1)	0.4%	8
Section 68(c)	0.3%	6
Section 68(b)	0.3%	5
Total		1,891

Costs and Fees for Operations

Requests completed	26,621
Cost of operations	$32,305,311.55
Cost per completed request	$1,213.53
Fees collected	$305,154.62
Fees collected per completed request	$11.46
Fees waived	$199,029.76
Fees waived per completed request	$7.48

Statistical Tables 2005–2006 – 
Privacy

Privacy Requests – April 1, 2005 to March 31, 2006

These figures are based on Statistical Reports provided by 165 of the 165 federal institutions subject to the Privacy Act.

Requests received during this reporting period	36,090
Requests brought forward from previous reporting period	6,030
Total number of requests	42,120
Requests completed	37,293
Requests carried forward to next reporting period	4,827

Disposition of completed requests

Requests where all information was disclosed	34.5%	12,871
Requests where information was disclosed in part	48.8%	17,821
Requests where all information was excluded	0.3%	112
Requests where all information was exempted	0.8%	296
Requests unable to be processed (Reasons include insufficient information provided by applicant, no records exist and abandonment by applicant)	16.6%	6,193
Total		37,293

Institutions ranked in order of number of requests received 

1)	Human Resources and Skills Development Canada	23.1%	8,610
2)	Correctional Service Canada	20.6%	7,683
3)	National Defence	13.1%	4,840
4)	Citizenship and Immigration Canada	11.2%	4,176
5)	Canada Revenue Agency	7.9%	2,928
6)	Other Departments	24.3%	9,056
Total			37,293

Time Required to Complete Requests 

(including requests for which extensions were required)

0 to 30 days	68.5%	25,530
31 to 60 days	13.3%	4,975
61 to 120 days	5.3%	1,992
121 days or more	12.9%	4,796
Total		37,293

Exemptions

It should be noted that a single Privacy Request can be indicated as being exempted for multiple reasons. All such exemptions must be reported.

Section 26	Information about another individual	63.2%	15,166
Section 22	Law enforcement and investigation	19.9%	4,777
Section 19	Personal information obtained in confidence	7.2%	1,740
Section 24	Individuals sentenced for an offence	4.0%	957
Section 21	International Affairs and defence	2.6%	632
Section 27	Solicitor-client privilege	2.1%	502
Section 25	Safety of individuals	0.4%	103
Section 18	Exempt banks	0.2%	59
Section 23	Security clearances	0.1%	35
Section 28	Medical records	0.1%	34
Section 20	Federal-provincial affairs	0.0%	5
Total			24,010

Exclusions 

It should be noted that a single Privacy Request can be indicated as being excluded for multiple reasons. All such exclusions must be reported.

Section 69(1)(a)	44.4%	8
Section 70(1)(a)	16.7%	3
Section 70(1)(e)	16.7%	3
Section 70(1)(c)	11.1	2
Section 69(1)(b)	5.6%	1
Section 70(1)(f)	5.6%	1
Section 70(1)(b)	0.0%	0
Section 70(1)(d)	0.0%	0
Total		18

Costs for Operations 

Requests completed	37,293
Cost of operations	$21,351,205.26
Cost per request completed	$572.53

Privacy Impact Assessments (PIA)

Number of Privacy Impact Assessments (PIA) initiated	85
Number of Preliminary Privacy Impact Assessments (PPIA) initiated	39
Number of PIAs forwarded to the Office of the Privacy Commissioner (OPC)	31
Number of PPIAs forwarded to the Office of the Privacy Commissioner (OPC)	21
Number of PIA summaries posted on institutional web sites	24

Statistical Tables 1983–2006 – 
Access to Information

Please note that the statistics reflect adjustments made throughout the years.

Disposition of Requests 

Requests received	303,883
Requests completed	297,168

Disposition of completed Requests

Requests where all information was disclosed	32.7%	97,204
Requests where information was disclosed in part	38.5%	114,318
Requests where all information was excluded	0.6%	1,739
Requests where all information was exempted	2.9%	8,578
Requests transferred to another institution	1.8%	5,493
Requests where information was given informally	3.4%	10,165
Requests which could not be processed (Reasons include insufficient information provided by applicant, no records exist and abandonment by applicant)	20.1%	59,674
Total		297,171

Time Required to Complete Requests

(including requests for which extensions were required)

0 to 30 days	60.1%	178,691
31 to 60 days	16.9%	50,271
61 days or more	21.8%	64,915
Total		297,168

Costs and Fees for Operations

Requests completed	297,168
Cost of operations	$263,687,821.08
Cost per request completed	$887.34
Fees collected	$3,531,169.59
Fees collected per request completed	$11.88
Fees waived	$1,682,020.64
Fees waived per request completed	$5.66

Statistical Tables 1983–2006 – 
Privacy

Please note that the statistics reflect adjustments made throughout the years.

Disposition of Requests

Requests received	961,115
Requests completed	960,609

Disposition of Completed Requests

Requests where all information was disclosed	52.6%	505,508
Requests where information was disclosed in part	31.9%	306,548
Requests where all information was excluded	0.1%	509
Requests where all information was exempted	0.8%	7,627
Requests which could not be processed (by reasons such as insufficient information provided by applicant, no records exist and abandonment by applicant)	14.6%	140,417
Total		960,609

Time Required to Complete Requests

(including requests for which extensions were required)

0 to 30 days	58.0%	557,425
31 to 60 days	18.6%	178,503
61 days or more	23.4%	224,681
Total		960,609

Costs for Operations

Requests completed	960,609
Cost of operations	$205,037,473.65
Cost per completed request	$213.45

Federal Court Cases

Prepared by the Information Law and Privacy Section,
Department of Justice

Index of Court Cases

These cases are ordered by the most recent date of decision.

AstraZeneca Canada Inc. v. Canada (Minister of Health)

Del Zotto v. Canada (Solicitor General)

Mead Johnson Nutritionals v. Canada (Attorney General)

Sheldon Blank v. Minister of Justice

Canada (Information Commissioner) v. Canadian Transportation Accident Investigation and Safety Board

Nautical Data International Inc. v. Canada (Minister of Fisheries and Oceans)

Murdoch v. Canada (Royal Canadian Mounted Police)

Canada Post Corp. v. Canada (Minister of Transport)

Jusdanis v. Canada (Minister of National Revenue)

AstraZeneca Canada Inc. v. Canada (Minister of Health)

AstraZeneca Canada Inc. v. Canada (Minister of Health)

Maydak v. Canada (Minister of Public Safety and Emergency Preparedness)

Canada (Attorney General) v. Canada (Information Commissioner)

Merck Frosst Canada & Co. v. Canada (Minister of Health)

Canada (Minister of Public Safety and Emergency Preparedness) v. Kahlon

H.J. Heinz Co. of Canada Ltd. v. Canada (Attorney General)

Blank v. Canada (Minister of Justice)

AstraZeneca Canada Inc. v. Health Canada, Minister of Health and Attorney General of Canada

Indexed as: AstraZeneca Canada Inc. v. Canada (Minister of Health)

File No.:	T-720-02[1]
Reference:	2005 FC 189
Date of decision:	February 8, 2005
Before:	Phelan J.
Sections of ATIA / PA:	Ss. 4, 6, 7, 20(1)(a), (b), (c), (d), 25, 27, 28(1)(b), 73 Access to Information Act (ATIA)

Abstract

• Decision to release properly made by ATIP Coordinator
• Third party cannot invoke irrelevancy of records as exemption from disclosure
• Information common or known in a particular industry not constituting a trade secret
• Expectation of confidentiality less where third party seeking government approval than when third party assisting government in carrying out its mandate
• Information about how regulatory approval process works is not information about a third party
• Third party's reliance on studies in the public domain not confidential information
• Meaning of "other negotiations" in para. 20(1)(d)

Issues

1. Whether the decision to release records is a nullity because it was allegedly not made by the Minister's delegate under the ATIA?
2. Whether the Minister has the jurisdiction to disclose information which is not relevant to the request for access?
3. Whether the disputed records are exempt under any of paras. 20(1)(a), (b), (c) or (d) of the ATIA?

Facts

This is an application by AstraZeneca Canada Inc. (AstraZeneca) made pursuant to s. 44 ATIA against a decision of the Minister of Health to release certain records related to AstraZeneca's New Drug Submission (NDS) for Nexium, an antacid pill, to the requester, a pharmaceutical consulting organization.

AstraZeneca raised two preliminary jurisdictional objections.

With respect to the access request process, AstraZeneca submits that the decision to release was not made by the Minister's appropriate delegate, the ATIP Coordinator, but was actually taken by the officials of the Proprietary and Scientific Assessment Information (PSIA) Division of Health Canada to whom the request was first forwarded for purposes of record retrieval and recommendations. The facts show that the documents were reviewed by the Assistant Coordinator who recommended non-disclosure with respect to certain information. The Assistant Coordinator discussed the access request with the Coordinator who agreed with the recommendations. The Coordinator's acceptance has been described as an oral decision. There was no internal document recoding that decision. The Assistant Coordinator thereupon signed the para. 28(1)(b) ATIA notice to AstraZeneca advising it of the decision to release. The Assistant Coordinator held delegated authority to sign notice of decision documents but did not have authority to make the decision.

AstraZeneca's second objection is to the effect that the Minister intended to disclose information irrelevant to the request for access.

With respect to s. 20(1), AstraZeneca claims that some of the document are trade secrets, particularly the manufacturing procedures and process validation. AstraZeneca claims para. 20(1)(b) for all the records. It argues, essentially, that the manner in which it organized the information within the NDS to obtain regulatory approval rendered the information confidential. With respect to para. 20(1)(c), AstraZeneca relies particularly on the claim that its competitors can use the information to accelerate their own regulatory submissions. Finally, AstraZeneca claims that disclosure of some of the information would interfere with negotiations with provincial authorities for the listing of Nexium on provincial formularies.

Decision

The application for judicial review is dismissed

Reasons

Issue 1 – Decision of ATIP Coordinator

The ATIA does not require the Coordinator to personally review each document and reach a conclusion on its disclosure. Such an interpretation would paralyse the operation of the ATIA. The evidence indicates that the ATIP Coordinator, in a brief discussion, accepted the recommendation of the Assistant Coordinator and therefore made the decision to disclose. In addition, the fact that the decision to disclose was significantly influenced by the recommendations of the PSIA does not impugn the decision. The ATIA could not operate, particularly in scientific and technical fields, unless those administering the Act on behalf of a particular department were able to obtain expert advice and recommendation. The Court added that, while the creation of a decision document is not required under the ATIA, such a procedure would eliminate any issue of improper delegation of decision making.

Issue 2 – Disclosure of Irrelevant Information

Neither s. 6 nor s. 7 of the ATIA import a relevancy test. To read in such a requirement would run counter to the purpose of the ATIA as set out in subs. 2(1) and to the basic right of access found in s. 4 and would add a further exemption not spelled out in the legislation. The only grounds upon which the third party can rely are those in s. 20 of the ATIA. The Court held that this was not a case where the documents were so clearly not a "record requested under the Act".

Issue 3 – S. 20(1) exemptions

Paragraph 20(1)(a)

AstraZeneca did not establish that some of the information disclosed a trade secret as that term has been defined in Société Gamma v. Canada (Secretary of State) (1994), 79 F.T.R. 42 (F.C.T.D.). Information common or known in a particular industry will not constitute a trade secret.

Paragraph 20(1)(b)

The Court, in Air Atonabee,^[2] and subsequent cases, has recognized that communications between third parties and government can be treated as confidential where the third party has treated them as confidential and to do so is in the public interest, and that confidentiality would foster a relationship between the third party and the government for the benefit of the public.

To meet this test, one must have regard to the nature of the relationship between the government and the third party. In Air Atonabee there was an element of a co-operative relationship necessary to deal with on-going technical developments. In that case, transport officials needed Air Atonabee to keep it informed of developments related to a new aircraft. In addition, certain technical personnel of the company were both employees of the company and held delegated regulatory authority from the Minister. The Court noted that the relationship in the present case is quite different. It is that of an applicant seeking government approval where co-operation is not an important factor. Parties seeking government approvals, just as parties seeking government funds or contracts, cannot expect the same degree of confidentiality as a party who is assisting government in carrying out its mandate.

Information about dates, page, volume numbering and location of information within the NDS is not scientific, technical, financial or commercial information by any objective standard. The information is purely administrative.

Information which would give insight into how government carries out its approval process is information about the operation of government, not information supplied by a third party or about a third party.

Information which reflects government officials' viewpoints, opinions or comments is not information supplied by third parties. AstraZeneca does not have some proprietary right to knowing how the government dealt with its NDS. Only to the extent that those opinions or comments disclose the information supplied by the third party can the information then be assessed against the other criteria of para. 20(1)(b).

The Court rejected the reference to the concept that "but for" the company's submissions, the information would not be in the possession of government. The response to that proposition is that, "but for" the desire to seek government approval, the documents would not have been created.

Paragraph 20(1)(c)

In order for a third party to establish the "harm" test of para. 20(1)(c), it must establish "reasonable expectation of probable harm". This requires specific evidence that the outcomes specified in para. 20(1)(c) are reasonably probable.

In the present case, there was no evidence from comparative regimes dealing with the same types of information, no significant evidence of materiality of financial loss and no evidence of how a competitor would use the information to get a competing product to market because of its new found understanding of the regulatory process. There was no indication that there are competitors who wish to do so. On the other hand, there was evidence that AstraZeneca has competitors for similar products already in the market and who have already secured regulatory approval.

As a general proposition, publicly available information is not exempt information under s. 20 either as a class of documents or under the "harm" test. Compelling evidence is required to dislodge the logical conclusion that information in the public domain will be used, particularly by knowledgeable users. AstraZeneca's evidence was at best speculative.

The fact that a competitor would or could save time and expense obtaining regulatory approval for a different drug has not been established. Even if it had been established, such an argument has been rejected by the Court of Appeal in Cyanamid Canada v. Canada (Minister of National Health and Welfare) (1992), 45 C.P.R. (3d) 390 (F.C.A.).

The very fact of AstraZeneca's reliance on studies which are in the public domain was not confidential information. Information contained in such studies--and thus the studies themselves--is not confidential information. Where similar information is available in the United States, it cannot be said that the disclosure thereof will cause material harm.

Paragraph 20(1)(d)

AstraZeneca's concern under this heading was that competitors may be able to use information disclosed in "negative" marketing, particularly to influence provincial governments who must approve the listing of drugs under provincial health and pharmaceutical programs.

The process of obtaining government approval, for example at a provincial level, is not the type of negotiations to which para. 20(1)(d) refers. The expression "other negotiations" following "contractual" indicates that those parties must be in a commercial or business context. Obtaining approval for provincial formularies is more in the nature of a regulatory context.

The second criterion requires proof that negotiations could reasonably be expected to be obstructed. The fact that provincial authorities would have some further and better information on the process by which a product was approved, does not inevitably lead to the conclusion that negotiations will be obstructed or interfered with.

Comments

AstraZeneca has filed an appeal against this decision.

Elvio Del Zotto and Solicitor General of Canada

Indexed as: Del Zotto v. Canada (Solicitor General)

File No.:	T-2209-00
Reference:	2005 FC 216 [aff'd 2005 FCA 349–see "Comments"]
Date of decision:	February 10, 2005
Before:	Campbell J.
Sections of ATIA / PA:	Ss. 16(2), 22(1)(a)(i), 41, 46 Privacy Act

Abstract

Government institutions need not apply a consistent practice respecting the application of subs. 16(2) Privacy Act

Issues

1. Was the discretion under subs. 16(2) properly exercised?
2. Must the RCMP apply a consistent practice respecting the application of subs. 16(2)?

Facts

The applicant sought disclosure of any personal information respecting his activities that the RCMP might have, without regard to where that information might be situated. The RCMP contacted applicant's counsel to advise that the request would be processed under the Privacy Act. It was agreed that the scope of the request be narrowed down to include specific locations.

The RCMP subsequently advised the applicant that the request had been processed and that the RCMP could not confirm nor deny the existence of the information requested, but that if it did exist it would be exempt in its entirety under subpara. 22(1)(a)(i) of the Privacy Act.

The applicant complained to the Privacy Commissioner. The RCMP conducted a second review but reconfirmed its previous conclusion. After conducting his review, the Privacy Commissioner informed the applicant that the RCMP had properly exercised its discretion under subs. 16(2) not to disclose and that it had correctly asserted that if the information requested did exist it would be exempt pursuant to subpara. 22(1)(a)(i).

The applicant then sought judicial review pursuant to s. 41 of the Privacy Act.

Decision

The application was dismissed.

Reasons

Issue 1

In answering this question, the Court was mindful of s. 46 of the Privacy Act which requires the taking of every reasonable precaution to avoid disclosure, particularly where subs. 16(2) is invoked. The Court also noted the opinion of the Federal Court of Appeal stated in Ruby v. Canada (Solicitor General), [2000] 3 F.C. 589 at para. 39:

It is the Court's function on an application for review under section 41 of the Act to ensure that the discretion given to the administrative authorities "has been exercised within proper limits and on proper principles." [Rubin v. Canada (Canada Mortgage and Housing Corp.), [1989] 1 F.C. 265 (C.A.) at p. 276.] This is why the reviewing Court is given access to the material in issue by section 45 of the Act. In our view, an applicant who, pursuant to section 41 of the Act, applies for judicial review of an institution's refusal to disclose the personal information requested, by definition, questions the validity of the exercise of discretion by that institution and nothing more is required from him or her. In such circumstances, this is the best an applicant can do. This is the most an applicant should be held to.

As a result, given the parties' arguments, the Court was satisfied that the discretion under subs. 16(2) had been exercised within proper limits and on proper principles.

Issue 2

The applicant raised the point that there was evidence on the record to establish that the RCMP does not apply a consistent practice respecting the application of subs. 16(2) with respect to its Data Bank 005. The applicant submitted that the RCMP must apply a consistent practice, relying on Ruby, supra, at paras. 49 and 66. The Court disagreed with the applicant that the dicta quoted in paras. 49 and 66 established the obligation for which the applicant argued. The Court accepted the respondent's argument that, to apply an inconsistent practice respecting the application of subs. 16(2) equally effects the purpose of the use of subs. 16(2) which is to safeguard against the threat of disclosure of the contents of information banks.

Comments

The decision of the Federal Court was affirmed on appeal (2005 FCA 349, reasons for judgement dated October 26, 2005, A-111-05). The Federal Court of Appeal found no error in the conclusion of Campbell J. that the decision of the RCMP based on subs. 16(2) of the Privacy Act had been properly made.

Mead Johnson Nutritionals a Division of Bristol-Myers Squibb Canada Co. and Attorney General of Canada

Indexed as: Mead Johnson Nutritionals v. Canada (Attorney General)

File No.:	T-1195-04; T-1196-04
Reference:	2005 FC 235
Date of decision:	February 14, 2005
Before:	Strayer D.J.
Sections of ATIA / PA:	Ss. 2, (1)(b) and (c), 27, 28, 44(1) Access to Information Act (ATIA)

Abstract

• Mere assertion by a third party that information was given with a reasonable expectation of confidence does not meet the para. 20(1)(b) requirement of confidentiality
• Third party, on a subs. 44(1) application, has no standing to raise a complaint that proposed disclosure goes beyond what was requested

Issues

1. With respect to the first application (T-1195-04), did CFIA err in failing to apply the exemptions in paras. 20(1)(b) and (c)?
2. With respect to the second application (T-1196-04), did CFIA err in proposing to disclose information that was not strictly sought in the request for access? If not, did CFIA err in failing to apply paras. 20(1)(b) and (c) to the record?

Facts

Mead Johnson ("the applicant") received two letters from the Canadian Food Inspection Agency ("CFIA") advising that CFIA had received two requests for access to certain records, some of which related to the applicant. The first request for access concerned information "regarding [the applicant's] marketing plans or activities with respect to its products...and regarding its legal position with respect to certain performance representations, including the interpretation of the Food and Drugs Act and its Regulations in relation to Mead Johnson's commercial activities". The second request for access concerned copies of IMS comments made by a certain individual.

CFIA advised the applicant as to the records it intended to release and gave the applicant an opportunity to state its views thereon. With respect to the applicant's second request, CFIA proposed to release IMS comments of an individual other than the one specified by the requester in his original request. The applicant objected and brought two applications for judicial review under sub. 44(1) of the ATIA, invoking paras. 20(1)(b) and (c) of the ATIA in support of its position, and seeking a declaration, in T-1196-04, that the record should not be released because it is not responsive to the request made to CFIA. The Court heard the two applications together.

Decision

The applications were dismissed.

Reasons

Issue 1 (T-1195-04)

It is well settled that the onus is on the third party who objects to disclosure, to prove that the disputed record comes within one of the exemptions in s. 20. Here, the Court was not satisfied that the third party, the applicant, had proved that the record in question was "confidential"

One of the accepted requirements for confidentiality, as enunciated in Air Atonabee Limited v. Canada (1989), 27 F.T.R. 194 (F.C.T.D.), at p. 210, is that "the information must originate and be communicated in circumstances giving rise to a reasonable expectation of confidence that it will not be disclosed". Whether a record is confidential must be determined on an objective basis including its content, purpose and the conditions under which it was communicated. The mere assertion by one party that the information is confidential is not determinative. Neither is the government institution's agreement that it should be confidential determinative of confidentiality.

In the present case, the applicant's meagre affidavit did not establish the elements of confidentiality. The affidavit stated that the information was treated as confidential by the applicant but did not elaborate how confidentiality was maintained. The affidavit simply stated that the records in question were provided to CFIA "in a reasonable expectation of confidence that those details would not be disclosed" and "in confidence and with a reasonable expectation that it would remain confident [sic]". The deponent of the affidavit did not state that she herself participated in such communications nor that she had ever been informed by people who did so participate. The documentary material attached as exhibits to the affidavit fell short of demonstrating that it was made clear to CFIA that communications were sent with the intention that they should be confidential, nor was there any documentary material from CFIA confirming confidentiality. The only relevant letter bearing on confidentiality was written by the applicant well after any of the communications sought to be protected in this case.

Further, the records in question here could not be seen as fundamentally concerned with either marketing or production but instead involved rather minor references to the applicant's position on certain regulatory matters, matters of public concern within the mandate of CFIA.

Issue 2 (T-1196-04)

The applicant had no standing to complain that the record proposed to be disclosed was not responsive to the request originally made by the requester. Clearly, the proposed disclosure was not within the terms of the original request. However, the Federal Court of Appeal in Saint John Shipbuilding v. Canada (1990), 67 D.L.R. (4^th) 315, held that a third party cannot object that the government institution is prepared to give more than was asked for. This reasoning proceeds on the basis that s. 2 of the ATIA states its purpose to be "that government information should be available to the public" and "that necessary exceptions to the right of access should be limited". Section 27 provides that where the head of a government institution intends to disclose "any record requested" and he has reason to think that it might contain third party information of a kind protected under s. 20, he must give written notice to the third party "of the request" and that he intends "to disclose the record". "The record" must be taken to refer back to the "record requested" referred to in subs. 27(1). Further, under s. 28 a third party is given the right to make representations "as to why the record...should not be disclosed". Again, the "record" must refer back to the "record requested" described in subs. 27(1). This means that a third party cannot complain if a government institution discloses records that were never requested which is what the applicant complained of here. The Court indicated its agreement in this respect with the conclusion of Russell J. in Canadian Tobacco Manufacturers' Council v. Canada, 2003 FC 1037 at para. 91.

With respect to para. 20(1)(b), the Court was no more satisfied in this application than in T-1195-04 that the evidence presented by the applicant demonstrated on a balance of probabilities that the material in question was confidential in an objective sense.

With respect to para. 20(1)(c), the Federal Court of Appeal has held that the standard of proof of harm is the demonstration of "a reasonable expectation of probable harm": Canada Packers Inc. v. Canada, [1989] 1 F.C. 47; Saint John Shipbuilding Ltd. v. Canada, supra. The Court was satisfied that the applicant's evidence did not reach this standard. It was certainly not self-apparent to look at the disputed record that its disclosure would likely result in any material harm to the applicant. The only evidence in support of its invocation of para. 20(1)(c) was the following paragraph which appeared in both its public and confidential record:

Details about consumer complaints with respect to any of Mead Johnson's products is information that Mead Johnson endeavours to keep out of the public domain and out of the hands of competitors, who may use this information to damage the goodwill of Mead Johnson and harm Mead Johnson's competitive position.

This passage was so lacking in specifics as to fall far short of establishing, on a balance of probabilities, a reasonable expectation of probable harm.

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.

Information Commissioner of Canada v. Executive Director of the Canadian Transportation Accident Investigation and Safety Board and NAV Canada and Attorney General of Canada

Indexed as: Canada (Information Commissioner) v. Canadian Transportation Accident Investigation and Safety Board)

File No.:	T-465-01; T-650-02; T-888-02; T-889-02
Reference:	2005 FC 384
Date of decision:	March 18, 2005
Before:	Snider J.
Sections of ATIA / PA:	Ss. 19, 20(1), 25, 42(1)(a) Access to Information Act (ATIA); ss. 3, 8(2)(a), (b) and (m)(i) Privacy Act (PA)
Other statutes:	S. 9(2) Radiocommunications Act; ss. 2, 7 Canadian Transportation Accident Investigation and Safety Board Act; s. 35(1) Interpretation Act; ss. 183, 184(1) Criminal Code

Abstract

• Air traffic control communications can be personal information given their use in accident investigations to assess job performance
• Definition of "personal information" in s. 3 PA does not include a reasonable expectation of privacy requirement
• For information to be in the public domain, it must be available on an ongoing basis for use by the "public"
• Reasonable exercise of discretion in refusing to release publicly available personal information
• Neither para. 8(2)(a) nor para. 8(2)(b) obligates the government institution to disclose personal information to the public

Issues

1. Are ATC communications "personal information" as defined in s. 3 PA and thus exempt from disclosure pursuant to subs. 19(1) ATIA?
2. Did the TSB err in determining that disclosure of the ATC communications was not warranted by para. 19(2)(b) ATIA
3. Does subs. 20(1) ATIA prohibit the disclosure of the ATC communications?
4. Can the personal information in the ATC communications reasonably be severed from the remaining information pursuant to s. 25 ATIA?
5. Does subs. 9(2) of the Radiocommunications Act infringe s. 2(b) of the Charter which guarantees freedom of expression and, if so, is the infringement justified under s. 1 of the Charter?

Facts

In four applications, the Information Commissioner sought judicial review of a refusal by the Executive Director of the Canadian Transportation Accident Investigation and Safety Board ("the TSB") to disclose tapes and transcripts of conversations between air traffic controllers ("ATC") and aircraft personnel (the "ATC communications"). The applications arose as a result of four separate airplane collisions or crashes: the Clarenville Occurrence; the Penticton Occurrence; the Fredericton Occurrence; and the St. John's Occurrence. The TSB had refused disclosure in all four cases on the grounds that the ATC communications were personal information within s. 3 of the PA and thus exemptible from disclosure under subs. 19(1) of the ATIA. The TSB also concluded that disclosure under subs. 19(2) ATIA was not warranted in any of the cases

Decision

The applications were dismissed.

Reasons

Issue 1 – Are ATC communications "personal information" as defined in s. 3 PA and thus exempt from disclosure pursuant to subs. 19(1) ATIA?

The fact that the ATC communications were a record of transactions and contained factual information did not preclude them from being personal information or information about the individuals. To establish the nature of the communications, the Court looked to the purpose for which they were made and used. Here, the sole purpose for the existence of the ATC communications is to carry out an evaluation of the performance of the parties to those communications in the event that something goes wrong. Thus, the Court concluded that the ATC communications were "about" the individuals involved.

ATC communications only come to the attention of the TSB when there has been an unfortunate event. When an airplane crash or near miss occurs, significant interest by the press and the public will almost certainly follow. It is simply unrealistic to expect that pilots or, in some cases, air traffic controllers will not be identified as being connected with an accident. In addition, while the practice of air traffic controllers is not to refer to persons by name, listening to the ATC tapes would allow identification of the aircraft, the location and operating initials of the specific controller. Furthermore, the voices of the individual controller and pilot may be heard and identified. Thus, the Court was persuaded that the individuals involved in the ATC communications were identifiable, perhaps not with 100% accuracy but sufficient to meet the requirements of s. 3 PA.

The Court rejected the Information Commissioner's argument that there was no reasonable expectation of privacy in the ATC communications. First, the definition of "personal information" in s. 3 PA does not include the requirement that the parties hold a reasonable expectation of privacy. The question of whether someone holds a reasonable expectation of privacy may well enter into a subsequent analysis of whether, in spite of information being personal, it should be disclosed pursuant to subs. 19(2) ATIA. Even if it were a requirement, the Court held that there would be a reasonable expectation of privacy here. The parties to the ATC communications would not expect strangers to have access to the ATC communications in the manner sought by the Information Commissioner. Both the controllers and the pilots would know and expect that any mishap would be investigated, that the ATC communications would be carefully examined as part of that investigation and that the results of an investigation could make reference to (or even include) the ATC communications. However, this is a far cry from an admission that there is no expectation of confidentiality.

The ATC communications do not lose their character as personal communications merely because there is a legal obligation for the conversations to be recorded or for the tapes to be provided to the TSB if requested. The controllers have every right to expect that the use by the TSB of the ATC communications will be restricted to the purposes for which they were obtained. The information was not obtained by the TSB for the purposes of distributing it to the public at large; the TSB is not a publishing house for ATC communications. Even if the Court accepted that third parties may lawfully listen to the ATC conversations (an assumption with which the Court had considerable difficulty), further use or disclosure of the ATC communications would be contrary to subs. 9(2) Radiocommunications Act. This reinforces the expectation that the conversations will be kept confidential.

Thus, the Court was satisfied that the TSB was correct in concluding that the ATC communications were personal information within the meaning of s. 3 PA.

Issue 2 – Did the TSB err in determining that disclosure of the ATC communications was not warranted by para. 19(2)(b) ATIA?

To ascertain whether para. 19(2)(b) would operate to authorize the TSB to release the information, the Court must determine whether the ATC communications were "publicly available".

Even if the ATC communications in this case had been intercepted, a one-time listening by one or more individuals does not bring the information into the public domain. For information to be in the public domain, it must be available on an ongoing basis for use by the "public". Information that is listened to once is not, without evidence of further and ongoing availability, in the public domain or publicly available.

Next, the Court noted the use of the present tense in subs. 19(2) ATIA. That is, the provision allows the head of a government institution to disclose the information if it "is" publicly available. The ATC communications, even if they were "publicly available" at the time they were made, were not now available for review or in the public domain. This was true of all of the ATC communications except those related to the Clarenville Occurrence.

With respect to the Clarenville Occurrence, the ATC audio recording and transcript were disclosed twice by the TSB upon receipt of ATIA requests. The request that was the subject of the application before the Court was the third request for the ATC communications. As a result of the two disclosures (which were to journalists), dissemination of the information in the tapes and transcripts had been widespread. While, at the time of the Court hearing, neither journalist had played the entire contents of the tape or printed the complete transcripts, it was possible that they still retained copies and could release them at any time. It was difficult, therefore, to conclude that the Clarenville ATC communications were not publicly available. Thus, the TSB had authority to release the ATC communications upon request.

The Court then considered whether the TSB was required to exercise the authority to release the ATC communications. The Court noted the decision of Richard J. in Canada (Information Commissioner) v. Canada (Minister of Public Works and Government Services), [1997] 1 F.C. 164 (T.D.) at paras. 43-44 wherein he had held that paras. 19(2)(a) and (b) were directive and not discretionary. The Court stated that, while Justice Richard's comments were sensible and, at first blush, appeared applicable to the instant case, to apply them in the instant case would not be a just result in the situation before the court. The earlier releases of the Clarenville ATC communications were made without any consideration of whether they contained personal information or whether they should be disclosed. Indeed, the subsequent analysis and conclusion by the TSB of these questions was that this information was personal information that should not be released. This was a situation in which the TSB could reasonably exercise the discretion given it by inclusion of the word "may" in subs. 19(2) and refuse to disclose the tapes and transcripts again. While it might well be that the refusal to disclose would be of no practical effect if the journalists themselves decided to release the tapes and transcripts, the court was not prepared in the circumstances to order the TSB to do so.

Further, in response to the Information Commissioner's suggestion that the ATC communications in the Penticton Occurrence had been before the B.C. Supreme Court in Sabourin Estate v. Watterodt Estate, 2004 BCSC 243 in considering issues of liability relating to the incident, as evidenced by the appearance of excerpts from the transcripts in the judgment, the Court held that it would be regrettable if otherwise private information subject to non-disclosure obligations became "publicly available" and subject to mandatory disclosure merely because it had been referenced in a civil law suit.

With respect to disclosure under para. 19(2)(c), the Court first rejected the Information Commissioner's argument that either para. 8(2)(a) or (b) PA obligated the TSB to disclose the information since, as argued by the Commissioner, the TSB may disclose the information during the course of its investigation or in its report on any occurrence. The Commissioner pointed to earlier practices supporting this. The Court rejected the contention that a statutory provision giving a government institution authority to disclose information for the purposes of its enabling legislation obligates the institution to release the information to the public at large. The words of paras. 8(2)(a) and (b) carefully and specifically define the boundaries of any disclosure. Use of the ATC communications by the TSB and, if necessary, reference to them in the TSB reports was disclosure for the purpose for which they were obtained by the TSB in the first place; further disclosure would not be for such purposes. The Court also rejected the argument that an apparent past policy to disclose the ATC communications meant that such a disclosure was for a consistent use.

Finally, with respect to disclosure under subpara. 8(2)(m)(i), the Court concluded that the TSB was correct in determining that the ATC communications came within the description of materials that were subject to withholding. With respect to the TSB's exercise of discretion not to disclose, the Court noted that La Forest J. in Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, at para. 109, had characterized the statutory language as setting out a very broad discretion. However, this did not mean that the decision was free from judicial oversight. The Court should only intervene where (a) the discretion was not exercised in good faith; (b) the discretion was not exercised in accordance with the principles of natural justice; (c) reliance was placed upon considerations irrelevant or extraneous to the statutory purpose. The Information Commissioner challenged the decision on the third ground. The Court found that the TSB took into account a wide range of factors, none of which could be said to be irrelevant or extraneous to the statutory purpose. For example, the TSB was aware of and considered the availability of the information to persons listening with scanners. The TSB was aware of and considered the practices in other jurisdictions. The TSB took into account that it could, if the need arose, disclose all of the ATC communications in the context of an investigation. In effect, the Information Commissioner was asking the Court to re-weigh the evidence before the TSB. The court declined to do so, seeing no need to intervene in the decision of the TSB to refuse to exercise his discretion under para. 19(2)(c) ATIA.

Issue 3 – Does subs. 20(1) ATIA prohibit the disclosure of the ATC communications

The Court declined to answer this question, given that it found that the TSB was correct in its determination that the ATC communications were personal information and that there was no error in the exercise of discretion under subs. 19(2).

Issue 4 – Can the personal information in the ATC communications reasonably be severed from the remaining information pursuant to s. 25 ATIA?

As the Court found that the ATC communications were personal information, there was nothing that could be severed and no need to address this issue.

Issue 5 – Does subs. 9(2) of the Radiocommunications Act infringe s. 2(b) of the Charter which guarantees freedom of expression and, if so, is the infringement justified under s. 1 of the Charter?

The Supreme Court of Canada has cautioned that Charter issues should not be decided where it is not necessary to do so, and has stressed that Charter issues are to be decided on a proper evidentiary record. The present judicial reviews were based solely on an attack on the refusal of the TSB to disclose the ATC communications, which decision did not require the TSB to apply the statutory provision in question. Further, by rendering unconstitutional subs. 9(2) Radiocommunications Act, the Court expressed concern that it could unintentionally affect related provisions in the Interpretation Act and the Criminal Code. The Court did not have an adequate record before it on which to deal with these broader issues. The Court was of the view that the constitutionality of subs. 9(2) Radiocommunications Act should only be assessed by it when the issue is directly and completely before it

Comments

The decision is under appeal.

Nautical Data International Inc. v. Minister of Fisheries and Oceans

Indexed as: Nautical Data International Inc. v. Canada (Minister of Fisheries and Oceans)

File No.:	T-787-04, T-1348-04, T-1789-04, T-1874-04, T-2059-04, T-263-05
Reference:	2005 FC 407
Date of decision:	March 23, 2005
Before:	Tremblay-Lamer J.
Section of ATIA / PA:	S. 44 Access to Information Act (ATIA)
Other statute:	S. 50(1) Federal Courts Act

Abstract

• Stay of s. 44 ATIA proceedings
• Two-part test set out in Mon-Oil Ltd. v. Canada and Canadian Pacific Railway Co. v. Sheena M (The) not met
• No analogy to automatic stay available under Bankruptcy and Insolvency Act

Issue

Whether a stay should be granted in respect of all the s. 44 ATIA proceedings.

Facts

The applicant, Nautical Data International, Inc. ("NDI"), brought several applications pursuant to s. 44 ATIA to preclude the respondent, the Minister of Fisheries and Oceans, from disclosing certain information. Before this Court, the applicant brings a motion for a stay of all of those proceedings pursuant to subs. 50(1) of the Federal Courts Act.

Decision

The motion for stay was dismissed.

Reasons

The Court first rejected the applicant's contention that the automatic stay available under the Bankruptcy and Insolvency Act (the BIA) in respect of actions brought against insolvent persons should apply by analogy, indicating that "the provisions of the BIA contemplating an automatic stay are intended to provide for the orderly and fair distribution of the property of a bankrupt among its creditors, not to protect an insolvent person from legal relief in matters unrelated to the assets subject to the bankruptcy protection".

Applying the two-part test set out in Mon-Oil Ltd. v. Canada (1989), 26 C.P.R. (3d) 379 (F.C.T.D.) and Canadian Pacific Railway Co. v. Sheena M (The), [2000] 4 F.C. 159 (T.D.), whereby the applicant must demonstrate that (1) a continuation of the action would cause prejudice or injustice and not merely an inconvenience or extra expense to the party seeking the stay; and (2) a stay would not be unjust to the other side. The Court found that neither the first nor the second part of the test was satisfied.

Respecting the first part, the Court rejected the applicant's contention that devoting its limited resources to meeting the requirements of the proceedings under the ATIA-- providing evidence and attending for cross examination -- would result in "extreme prejudice" to it as it would prejudice its ability to deal with the matters relating to its proposal under the BIA. The Court indicated that "...notwithstanding that NDI may have limited resources the type of hardship that the applicant describes amounts to inconvenience and expense rather than 'extreme prejudice'". Stays are only appropriate in the clearest of cases and the onus of convincing a court that there ought to be a stay is a heavy one.

Respecting the second part, the Court found that the respondent would suffer an injustice if the stay were granted. The respondent has an obligation under the ATIA to provide access to information to requestors unless certain statutory exemptions come into play. This right to access information has been held to be quasi-constitutional and therefore not to be readily interfered with. Granting the stay would cause significant delay in access to the information and prejudice the respondent's ability to fulfill its obligations under the ATIA.

Brian Murdoch v. Royal Canadian Mounted Police and Privacy Commissioner of Canada

Indexed as: Murdoch v. Canada (Royal Canadian Mounted Police)

File No.:	T-1180-04
Reference:	2005 FC 420
Date of decision:	March 29, 2005
Before:	Noël J
Sections of ATIA / PA:	Ss. 2, 7, 8, 12, 29, 33, 35, 37, 38, 41, 48, 49, 50, 74 Privacy Act (PA)
Other statute:	S. 18.1 Federal Courts Act

Abstract

• Limited power of Privacy Commissioner to remedy breaches of the PA
• Privacy Commissioner is an ombudsperson not an adjudicative body
• Denying the award of a penalty to the applicant was correct
• Meaning of "recommendation" in s. 35 PA
• Meaning of "to extend" in s. 2 PA

Issues

1. Does the Privacy Commissioner have the power, either explicit or implied, to fashion remedies for unauthorized breaches of the PA beyond those specified in the PA?
2. Did the Privacy Commissioner err in advising the applicant that no penalty could be imposed by it?

Facts

In the Fall of 2002, a RCMP detachment file concerning an incident involving the applicant was provided by the RCMP to the applicant's employer, the Edmonton Police Service. In March 2003, the applicant filed a complaint with the Privacy Commissioner that the RCMP had breached the PA when it disclosed personal information to his employer without either his consent or a lawful reason for such disclosure.

The Privacy Commissioner concluded the investigation and determined in May 2004 that the applicant's complaint of wrongful disclosure was well-founded. The RCMP agreed with this conclusion. The Privacy Commissioner's report stated that since there was no penalty under the PA for such violation, no further remedy existed.

Notice of application for judicial review was filed with the Federal Court in June 2004. The Prothonotary rejected the Privacy Commissioner's motion to have the application struck out or dismissed.

The applicant argues that where there is a statutory right (in this case, to privacy) with no expressed sanction for a breach of such right, there is prima facie an implied right to be compensated for any breach of this right. S. 35 should be read to include a remedy such as the granting of a penalty against a party who discloses personal information without the consent of the individual concerned.

Decision

The application for judicial review was denied without costs.

Reasons

The parties agreed that the applicable standard of review is that of correctness.

Under a strict reading of the PA and its s. 41, the Federal Court does not have the jurisdiction to review a decision such as the present one, where personal information has not been withheld, but instead disclosed without authorization.

Section 18.1 of the Federal Courts Act grants the Federal Court a broader jurisdiction to hear reviews of federal commission decision but its powers are not absolute. The powers of the Federal Court to remedy a situation are more or less limited to the powers conferred on the initial deciding body.

The Privacy Commissioner's remedial powers, as such, are restricted to making findings and recommendations which are non-binding on the RCMP. The Privacy Commissioner has no authority, implicit or otherwise, to act as an adjudicator by making binding determinations on the parties to a complaint, nor does the PA allow the Privacy Commissioner to award any such remedial relief. The PA remedies are found in ss. 35 and 37 and are both restricted to the issuance of non-binding findings and recommendations.

It is trite law that the jurisdiction of a statutory body (such as the Privacy Commissioner) is limited to what the legislator decided it should be. A proper reading of the PA and especially s. 35 make it clear that Parliament wanted the Privacy Commissioner to be limited to a power of recommendation and no more. The term "recommendation" should be given its ordinary meaning–the offering of advice that is not binding.

General principles of statutory interpretation suggest that a Court should not add powers to the jurisdiction of a statutory body when the legislative provisions creating this body are clear and not subject to interpretation. The Federal Court's jurisdiction to review decisions of the Privacy Commissioner is found in s. 41 of the PA (for those cases where access to personal information requested under s. 12 has been refused) and subs. 18.1(3) Federal Courts Act. In addition, the power of the Federal Court to grant a remedy in those situations is largely restricted to those which the Privacy Commissioner itself could order, i.e., the disclosure of non-disclosed documents (ss. 48-50 PA and subs. 18.1(4) Federal Courts Act). Here, no such information has remained undisclosed, and so this remedy would not be appropriate.

The words "to extend" in s. 2 of the PA cannot be interpreted as recognizing an implicit remedy of compensation given to the Privacy Commissioner. A reading of the PA makes it clear that Parliament intended for the Privacy Commissioner to be an ombudsperson, not an adjudicative body. Making recommendations and granting damages are two totally different functions. Although the 1987 Open and Shut Report^[4] noted that no civil remedies are provided in the PA and recommended that such remedies be inserted, as of today no such amendments have been made. This is not to imply that civil remedies for breach of privacy can never exist, but that under the PA, as it is currently structured, no such remedies are available.

The only remedy available from the Privacy Commissioner is that outlined in subss. 35(1) and (2): providing to both the institution and the complainant the Commissioner's report outlining its findings and any recommendations, if appropriate, and receiving the appropriate notices where necessary. In the present case, this was done: both the RCMP and the applicant were advised that the RCMP's actions violated the PA. No recommendations were made, therefore the RCMP did not have to respond in kind. The Privacy Commissioner committed no error in not acting further on the applicant's complaint.

Comments

The Court noted the Privacy Commissioner's power to comment on the situation in an annual or special report to Parliament. It also noted the availability of s. 74 of the PA which only prohibits civil or criminal actions against a government institution for the wrongful disclosure of personal information where this disclosure is done in good faith. The Court added that if the applicant can show bad faith on the part of the RCMP, then it is possible that the applicant may have an action against the RCMP under the common law.

The decision refers to the applicant's statement of claim filed with the Queen's Bench of Alberta against certain members of the RCMP.

Mr. Murdoch has filed an appeal against this decision.

Canada Post Corporation v. Minister of Transport

Indexed as: Canada Post Corp. v. Canada (Minister of Transport)

File No.:	T-535-04; T-568-04
Reference:	2005 FC 458
Date of decision:	April 6, 2005
Before:	MacKay D.J.
Sections of ATIA / PA:	Ss. 20(1)(b), (c), (d) Access to Information Act (ATIA)

Abstract

• Generally descriptive information not protected
• Alleged unique role of CPC irrelevant consideration in s. 20(1) analysis
• Mosaic effect

Issues

Do the records at issue meet the requirements of paras. 20(1)(b), (c) or (d) so as to exempt them from disclosure?^[5]

Facts

These are two applications for judicial review against decisions made by the Minister of Transport to release certain records which contained information relating to Canada Post Corp. (CPC). CPC claims that the records are exempt from disclosure as commercial confidential information which it has treated in a confidential manner even if not all the records were so labelled. CPC also submits that their release would cause serious loss to it or adversely affect its competitive position and that the disclosure of some of them might interfere with contractual or other negotiations of CPC.

In support of its claims, CPC made the following general submissions. First, it argued that CPC's exclusion from the scope of the ATIA is due to its role and special responsibilities and that CPC itself maintains its own communications, even with the Minister responsible for it, as confidential, except for planned public announcements. That practice, it is argued, warrants deference from the Court particularly since the information in question is of the type exchanged only at the highest levels of CPC. Secondly, CPC argues that the Court should exempt the information at issue from disclosure in a manner analogous to that accorded to security intelligence information by reason of the mosaic effect of piecing together bits of information that may at first glance appear unrelated.

Decision

The application was allowed in part. Certain records were ordered released.

Reasons

The documents at issue are not confidential so as to support a claim based on para. 20(1)(b). Those that bear a classification of "confidentiality" are not in their nature confidential in the ordinary sense even if CPC considers them so for its purposes. Those that might qualify as confidential in the sense that they concern CPC's operations, are generally descriptive, with any specific commercial information redacted by Transport Canada.

The affidavit evidence of CPC fails to establish that the disclosure of the records is likely, if released, to result in material financial loss or gain to CPC, or that it can be reasonably expected to prejudice its competitive position or to interfere with its contractual or other negotiations.

Neither of the two general submissions made by CPC support a conclusion that the information at issue satisfies the criteria of subs. 20(1) of the ATIA. With respect to the mosaic effect argument, the Court distinguished the decision of Justice Addy in Re Henrie and Security Intelligence Review Committee et al. (1988), 53 D.L.R. (4^th) 568 (F.C.T.D.) where the Court therein was concerned with the Canada Evidence Act and the Canadian Security Intelligence Service Act which specifically authorized non-disclosure of security information. The Court reiterated the general purpose of the ATIA that information held by government is to be disclosed unless it is specifically exempt under the ATIA, which exemptions are to be narrowly construed. The basis for exemption has not, in the present circumstances, been established.

Thomas Jusdanis and Minister of National Revenue

Indexed as: Jusdanis v. Canada (Minister of National Revenue)

File No.:	T-1600-04
Reference:	2005 FC 541
Date of decision:	Nadon, Desjardins, Pelletier JJ.A.
Before:	Beaudry J.
Sections of ATIA / PA:	Ss. 16(1)(c), 19(1), 24(1) and 41 Access to Information Act (ATIA)
Other statutes:	S. 18.1 Federal Courts Act; Rule 120, Federal Courts Rules

Abstract

• Only party who has been refused access under ATIA can bring an application for judicial review of the matter
• Officer of company not party to whom access was refused therefore without standing to file application for judicial review

Issue

Was the applicant the appropriate party to file the application for judicial review brought under s. 18.1 of the Federal Courts Act against a refusal to disclose certain records under the ATIA

Facts

The preliminary question at issue which relates to the standing of the applicant is raised in the context of an application for judicial review brought under s. 18.1 of the Federal Courts Act against a refusal by the Minister of National Revenue (MNR) to disclose certain records.

Mr. Jusdanis (the applicant) submitted several access to information requests to Canada Customs and Revenue Agency (CCRA) on behalf of Found Money Inc. CCRA provided some information but exempted other pursuant to subss. 19(1) and 24(1) and para. 16(1)(c) of the ATIA. The applicant, on behalf of Found Money Inc., complained to the Office of the Information Commissioner of Canada. As a result, CCRA provided additional information but removed other information and replaced it with certain notations referring to the same exemptions.

The applicant and Found Money Inc. subsequently filed a joint notice of application for judicial review pursuant to s. 18.1 of the Federal Courts Act against the refusal of CCRA to disclose the records sought. Found Money Inc. then brought a motion for leave to be represented by its corporate officer, Mr. Jusdanis, in this proceeding, rather than by a solicitor. Prothonotary Milczynski dismissed the motion by order dated September 13, 2004 on the grounds that the case did not represent special circumstances that would warrant divergence from the fundamental principle set out in Rule 120 of the Federal Courts Rules which provides that a corporation must be represented by a solicitor in all proceedings, unless the Court in special circumstances grants leave to it to be represented by an officer, partner or member.

On December 22, 2204, the applicant served and filed an application record in his name solely. On January 10, 2005, the MNR filed a motion to strike Mr. Jusdanis as a party to the proceeding. Prothonotary Lafrenière noted that the affidavit filed by Mr. Jusdanis was ambiguous when referring to the request made pursuant to the Access to Information Act in April 2003 because he did not identify who made the request.

Prothonotary Lafrenière stated that it was open to Mr. Jusdanis to argue that he had standing to file the complaints with the Information Commissioner and to bring the application for judicial review. In his decision, he declined the MNR's motion to strike Mr. Jusdanis as a party but left the possibility for the MNR to take the position at the hearing of the application for judicial review that Found Money Inc. had in fact made the request, and that Mr. Jusdanis therefore did not have standing to bring the application for review. However, since Found Money Inc. had failed to appoint a solicitor and file its record within the time limits, Prothonotary Lafrenière decided to strike Found Money Inc. as a party to the proceeding.

Decision

The applicant was not entitled under s. 41 ATIA to file an application for judicial review. The application was therefore dismissed.

Reasons

Section 41 of the ATIA provides that "any person who has been refused access to a record requested under this Act or a part thereof may [...] apply to the Court for a review of the matter [...]". The French version provides that « La personne qui s'est vu refuser communication totale ou partielle d'un document [...].».In the present case, the request to access was sent by Mr. Jusdanis on behalf of Found Money Inc.

Thus, as the "requester" is Found Money Inc., the person who has been refused access to information is also Found Money Inc. Although Mr. Jusdanis was considered the appropriate official to receive the information on behalf of Found Money Inc. because of his status of director of the company, it does not mean that he possessed the appropriate standing to file an application for judicial review. Thus, the Court concluded that Mr. Jusdanis was not entitled, pursuant to s. 41 of the ATIA, to file an application for judicial review in his own behalf.

The application for judicial review under s. 18.1 Federal Courts Act was therefore dismissed.

AstraZeneca Canada Inc. v. Health Canada, Minister of Health and Attorney General of Canada

Indexed as: AstraZeneca Canada Inc. v. Canada (Minister of Health)

File No.:	T-720-02
Reference:	2005 FC 648
Date of decision:	May 9, 2005
Before:	Phelan J.
Sections of ATIA / PA:	Ss. 20(1), 25, 29, 44 Access to Information Act (ATIA)

Abstract

• Minister may change original decision not to disclose information in s. 29 ATIA or s. 44 ATIA circumstances

Issue

Whether the Minister can reverse his/her initial decision not to disclose information on the basis that the information fell within s. 20(1) ATIA?

Facts

During the course of this litigation under s. 44^[6] of the ATIA, the Minister decided, after reviewing the affidavit of an officer of the third party, that certain information which the Minister initially withheld from disclosure on the basis of subs. 20(1) should be disclosed. The third party argues that the Minister has no jurisdiction to make a second decision to disclose and that the original decision cannot be altered during the judicial review of the decision. AstraZeneca relies on Matol Botanical International Inc. v. Canada (Minister of National Health and Welfare) (1998), 84 F.T.R. 168 (F.C.T.D.).

Decision

The Court held that the Minister was entitled to reverse his/her original position and argue that the information should be disclosed.^[7]

Reasons

The ATIA provides for two circumstances where the Minister may change his/her original decision or at least take a position inconsistent with the original decision.

The first is found in s. 29 where the Minister may, upon recommendation of the Information Commissioner, decide to disclose information which the Minister had originally decided was exempt from disclosure.

The second is inherent to the Court review process under s. 44. It has been held in such cases as Air Atonabee Ltd. v. Canada (Minister of Transport) (1997), 27 F.T.R. 194 (F.C.T.D.), 3430901 Canada Inc. v. Canada (Minister of Industry), 2001 FCA 254 and Wyeth-Ayerst Canada Inc. v. Canada (Attorney General), 2003 FCA 257 that the review to be conducted by the Court is a de novo review in which the standard of review is correctness. In the context of that review, a Minister is not required to sustain all or a part of the decision which the Minister no longer believes is sustainable. The Minister is free to argue that the exemption from disclosure no longer applies to the particular information. A third party is free to make of it what they will in respect of the Minister's change of position. It is for the Court to decide whether the exemption from disclosure is truly applicable and whether a requester is entitled to the information.

Therefore the Minister cannot, on its own initiative, reverse himself/herself and start the disclosure process anew with the necessary notices, representations and other procedural steps.

In the present case, the Minister was entitled to change his/her position and argue that the information should be disclosed. The Minister is neither functus nor stopped and the information cannot be exempt from disclosure solely on the basis that the Minister made an earlier and different decision. The information either falls within the s. 20 exemption or it does not, based upon the evidence before the Court.^[8]

Comments

AstraZeneca has filed an appeal against this decision.

AstraZeneca Canada Inc. v. Health Canada, Minister of Health and Attorney General of Canada

Indexed as: AstraZeneca Canada Inc. v. Canada (Minister of Health)
2005 FC 645
2005 FC 646
2005 FC 647

File No.:	T-1633-01; T-1997-01; T-754-02
Reference:	2005 FC 645; 2005 FC 646; 2005 FC 647
Date of decision:	May 9, 2005
Before:	Phelan J.
Sections of ATIA / PA:	Ss. 6, 7, 20(1)(a), (b), (c), (d), 25, 29, 73 Access to Information Act (ATIA)

Abstract

• Irrelevancy of records not a ground for exemption under the ATIA
• Jurisdiction of Minister to reverse initial decision not to disclose in two circumstances only
• Information about regulatory process not third party information
• Manner in which publicly available information is presented does not make that information confidential

Issues

1. Whether the decision to release records is a nullity because it was allegedly not made by the Minister's delegate under the ATIA?
2. Whether the Minister was authorized to disclose information allegedly not relevant to the request and whether he was authorized to reverse his initial decision not to disclose the information?
3. Whether the disputed records are exempt under any of paras. 20(1)(a), (b), (c) or (d) of the ATIA?

Facts

The third party, AstraZeneca Canada Inc. (AstraZeneca) filed three applications for judicial review under s. 44 of the ATIA against a decision of the Minister of Health to disclose certain information related to its supplementary new drug submission Losec.^[9] The records sought are the Comprehensive Summary and the Product Monograph.

AstraZeneca argues:

--That the decision of the Minister to release the records is a nullity because it was made by the Assistant Coordinator who lacked the authority to make decisions to release and in reality was made by an officer of the Proprietary and Scientific Information Assessment (PSIA) Division of Health Canada who provided recommendations with respect to the disclosure of the records;

--That the information, which it acknowledges is in the public domain, is nevertheless confidential because the way in which it compiled the information is confidential, that its reliance on public information is not public knowledge and that disclosure of the information will show how it obtained regulatory approval and will therefore advantage competitors who would then be able to secure their own approvals more rapidly;

--That the information at issue is exempt from disclosure because it is irrelevant or because the Minister could not reverse its initial decision and decide to release information which the Minister previously held to be exempt from disclosure.

Decision

The applications for judicial review were dismissed.

Reasons

Issue 1 – Decision of ATIP Coordinator

In this case the best evidence was that of the Assistant Coordinator who relied upon her usual and ordinary course practice in securing the Coordinator's decision. The Assistant Coordinator confirmed that she would have received an oral decision from the Coordinator. While a document signed by the Coordinator might have put this issue to rest, there is no legal requirement for this type of evidence. The Assistant Coordinator's evidence was sufficient, on a balance of probabilities test, to establish that the Coordinator made the decision to release the records.

There is nothing in the ATIA to prevent the decision-maker from obtaining input and recommendations from the staff. Common sense dictates that the decision-maker would be guided by officials with more direct knowledge of the issues so long as the decision-maker makes the ultimate decision: Cyanamid Canada Inc. v. Canada (Minister of Health and Welfare) (1992), 45C.P.R. (3d) 390 (F.C.A.).

The Court concluded that the ultimate decision was made by the person with legal authority to do so and that there was nothing improper in acting upon recommendations from PSIA and other officials.

Issue 2 – Disclosure of irrelevant information

For the reasons expressed in 2005 FC 189, AstraZeneca's objection on the grounds of irrelevancy as well as its objection based on the Minister's lack of authority to reverse its initial decision not to disclose were not sustained.

Issue 3 – S. 20(1) exemptions

Taking publicly available information and "repackaging" it does not cloak the otherwise publicly available information with confidentiality. The regulatory process is not a basis for a confidentiality claim nor is the nature of the relationship between the third party and the regulator, one which creates a requirement for an expectation of confidentiality. Information is kept confidential during the drug approval process not because the system relies on confidentiality for government to operate but because of the harm which may ensue from the premature release of the information.

Knowledge about the regulatory process and how an applicant was able to secure government approval is not the third party's information. Further, the FCA rejected the "head start" argument in Cyanamid, supra.

The information about dates, page numbers and batch numbers is not technical, scientific financial or commercial information. It is purely administrative information.

Information which is common knowledge or in the public domain by virtue of being released in the Product Monograph is not confidential.

Reviewers' comments are not exempt from disclosure unless they disclose the actual confidential information.

Information about the names of companies and what they do is readily observable. To perform certain of their activities, Health Canada issues licences and licence information is available on Health Canada's website.

AstraZeneca failed to establish that the practice in the United States and the information publicly available in that country with respect to its drug is significantly different from the information at issue here.

The mere assertion of a trade secret is not sufficient to conclude that a trade secret exists.

Comments

The third party is appealing.

Minister of Public Safety and Emergency Preparedness and Keith Maydak

Indexed as: Maydak v. Canada (Minister of Public Safety and Emergency Preparedness)

File No.:	A-518-04
Reference:	2005 FCA 186
Date of decision:	May 19, 2005
Before:	Noël, Nadon, Malone JJ.A.
Sections of ATIA / PA:	Ss. 22(1)(a) and 41 Privacy Act (PA)

Abstract

• "Investigation" in para. 22(1)(a) PA is to be defined broadly

Issue

What is an "investigation" for the purposes of para. 22(1)(a) PA?

Facts

(Note: The following statement of facts is derived primarily from the reasons of Rouleau J. at the Federal Court, sub. nom. Maydak v. Canada (Solicitor General), 2004 FC 1171.)

In response to a request from the United States of America for the extradition of the appellant, counsel for the Minister of Justice issued an Authority to Proceed against him pursuant to subs. 15(1) of the Extradition Act. On September 19, 2003, the appellant filed a request for access under the PA to all personal information held in the records of the RCMP or by RCMP member Daniel Bérubé, Criminal Ops, Interpol Ottawa.

The RCMP responded to the request by disclosing some of the information sought while withholding other information under para. 22(1)(a) PA. The appellant complained to the Office of the Privacy Commissioner, which concluded that the complaint was not well-founded on the grounds that the requirements of para. 22(1)(a) were satisfied.

Mr. Madak brought an application before the Federal Court under s. 41 PA on the grounds that the Privacy Commissioner had erred in concluding that the RCMP had conducted an "investigation" when it had merely monitored the progress and status of the extradition proceedings. The appellant further argued that, even if the RCMP had conducted an "investigation", the basis of that action neither involved the "detection, prevention, or suppression of crime", nor the "enforcement of any law of Canada or a province", such as the wording of para. 22(1)(a) PA requires.

In his decision, Rouleau J. of the Federal Court concluded that the RCMP's refusal to disclose to the respondent personal information sought under subs. 12(1) PA could not be justified under para. 22(1)(a) PA. In his view, it was clear that the RCMP simply received information from the Department of Justice that the United States sought Mr. Madak for a supervised release violation, having submitted an extradition request. The only actions taken by the RCMP involved placing, and subsequently removing, Mr. Maydak's name from CPIC, and communicating by e-mail with the Department of Justice relating to the status of the extradition proceedings. In Justice Rouleau's view, this type of activity did not constitute an investigation within the meaning of para. 22(1)(a). While there may be cases where the RCMP had conducted an investigation to assist an extradition proceeding, it appeared clear that the RCMP Interpol had not done so here.

This is an appeal by the Minister against the decision of Justice Rouleau.

Decision

The appeal was allowed.

Reasons

In a unanimous decision, the FCA held, first, that the fact that the information obtained by the RCMP may be of no consequence or great value is irrelevant to the determination which had to be made under para. 22(1)(a) PA. Whatever the value of the information, if it was obtained in the circumstances described in para. 22(1)(a), the exemption to disclosure applied.

The action of investigating; the making of a search or inquiry; systematic examination; careful and minute research.

Black's Law Dictionary (5^th ed.) defines the word "investigate" in the following terms:

Thus, the ordinary meaning of the words "investigation" and "investigate" is a broad one, certainly broad enough to encompass the activities of the RCMP in obtaining the information in respect of which the respondent seeks disclosure.

The FCA found further support for its view in the Supreme Court of Canada's decision in Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 S.C.R. 773. In that case, the issue before the Supreme Court was whether the disclosure of personal information sought by the respondent could reasonably be expected to be injurious to the conduct of "lawful investigations" by the Commissioner of Official Languages. In so doing, the Supreme Court interpreted the meaning of "lawful investigations" and "investigation", as those appear in para. 22(1)(b) and sub. 22(3) PA, to have a broad meaning, referring "equally to investigations that are underway, are about to commence, or will take place". According to the Supreme Court, these terms should not be interpreted as "restricting the scope of the word [...] or limiting the general meaning of that word to specific investigations".

The Federal Court of Appeal concluded that "investigation" as it appears in para. 22(1)(a) must be similarly interpreted. Therefore, the Court was satisfied that the information obtained by the RCMP was obtained for the making of a search or enquiry, i.e. for the purpose of locating and arresting the respondent so as to give effect to the extradition proceedings. The Court agreed with the appellant's submission that the RCMP's activities, which consisted in monitoring the respondent's progress throughout the extradition process and gathering information regarding that process, constitute an investigation within the meaning of para. 22(1)(a) PA.

Thus, the trial judge was wrong to conclude that the information was not obtained in the course of an "investigation".

Attorney General of Canada and Mel Cappe and Information Commissioner of Canada

Indexed as: Canada (Attorney General) v. Canada (Information Commissioner)

File No.:	T-223-04
Reference:	2004 FC 199
Date of decision:	May 27, 2005
Before:	Desjardins, Noël, and Malone JJ.A.
Sections of ATIA / PA:	Ss. 2, 23, 36(1)(a), 36(2), 42(1), 46 Access to Information Act (ATIA)

Abstract

Legal advice prepared to advise a government institution as to how it should respond to a request for access to information cannot be examined by the Information Commissioner unless absolutely necessary for Commissioner to complete his investigation

Issues

Does subs. 36(2) of the ATIA require a government institution being investigated by the Information Commissioner to produce legal advice memoranda prepared to advise the government institution in respect of a request for access under the ATIA?

Facts

On June 28, 1999, six requests were made to the Privy Council Office ("PCO") for copies of the Prime Minister's daily agenda books for fiscal or calendar years 1994 to June 1999. The Privy Council Office sought legal advice in respect of these requests and that advice was received in the form of a legal advice memorandum, dated July 30, 1999 ("the legal advice memorandum").

Following PCO's response to the access request, the requester complained to the Information Commissioner ("the Commissioner") that all of the records requested had not been provided. In the course of the ensuing investigation, Mel Cappe, Clerk of the Privy Council, refused to produced the legal advice memorandum. On examination under oath at the Office of the Information Commissioner, Mr. Cappe objected to the release of the legal advice memorandum, claiming solicitor-client privilege on behalf of the Government of Canada. Ultimately, the appellants (the Attorney General of Canada and the Clerk of the PCO) sought relief before the Federal Court by way of judicial review, naming the Commissioner as a respondent in the proceedings. A judge of the Federal Court dismissed the appellants' application for judicial review on the ground that subs. 36(2) ATIA gave the Commissioner's delegate jurisdiction to compel production of the legal advice memorandum (2004 FC 431). In reaching this conclusion, the judge adopted a purposive and liberal interpretation of the provision, and relied on the decision of the Federal Court of Appeal in Canada (Information Commissioner) v. Canada (Minister of Environment) (2000), 187 D.L.R. (4^th) 127 (F.C.A.) ("Ethyl"). In Ethyl, the Minister of Environment had refused disclosure of certain Cabinet discussion papers on the basis that they did not exist. In the course of his investigation, the Commissioner obtained other records that were not covered by the request (the "ancillary records") but which did concern the use of discussion papers within the Cabinet paper system. Some of these records were said to be protected by the solicitor-client privilege. The Commissioner considered these latter records relevant to the question of whether the requested records did exist.

Decision

The appeal was allowed.

Reasons

Following the teachings of the Supreme Court of Canada, solicitor-client privilege has evolved into a fundamental and substantive rule of law which commands a unique status within the legal system, integral to the workings of the legal system itself. The substantive rule of solicitor-client privilege, as formulated in Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860, has been consistently applied by the Supreme Court of Canada. That rule, as formulated in Descôteaux at p. 875, states in particular:

3. When the law gives someone the authority to do something which, in the circumstances of the case, might interfere with that confidentiality, the decision to do so and the choice of means of exercising that authority should be determined with a view to not interfering with it except to the extent absolutely necessary in order to achieve the ends sought by the enabling legislation.
4. ...[E]nabling legislation referred to in paragraph 3 must be interpreted restrictively.

In the FCA's analysis, the Commissioner's use of the powers granted to him under para. 36(1)(a) and subs. 36(2) of the Act to obtain the confidential legal advice memorandum interfered with solicitor-client privilege in a manner that was unnecessary for the achievement of the enabling legislation. Applying the Supreme Court of Canada jurisprudence, subs. 36(2) must be interpreted restrictively in order to allow access to privileged information only where absolutely necessary to the statutory power exercised.

In the present appeal, the legal advice memorandum was specifically prepared in order to provide legal advice relating to the access to information requests. As such, it is not analogous to the records at issue in Ethyl, records which were relevant to the question as to whether the requested records did in fact exist; a question that the Commissioner had to answer in the course of his investigation. The FCA stressed that the ancillary records at issue in Ethyl came into existence before the access to information request and were not created for the purpose of allowing the government institution to properly respond to the information request. Accordingly, the question of whether subs. 36(2) empowers the Commissioner to compel the disclosure of the legal advice memorandum, which was prepared in response to an access to information request, remained outstanding in Ethyl.

In the present context, a strong expectation of confidentiality with respect to the legal advice memorandum remains, despite subs. 36(2). In the Court's view, Parliament did not intend that a government institution be without the benefit of legal advice, provided in confidence, in deciding how to properly respond to an information request. The nature of the information contained in the legal advice memorandum and PCO's expectation of confidentiality with respect to that information led the Court to conclude that the legal advice memorandum is not absolutely necessary in order for the Commissioner to complete his investigation of the complaint. As a result, the Commissioner is not entitled to the production of the memorandum created in order to provide legal advice to the PCO in response to the access to information request made under the ATIA.

Comments

The Supreme Court of Canada dismissed the Information Commissioner's application for leave to appeal from the judgement of the Federal Court of Appeal.

Merck Frosst Canada & Co. v. Minister of Health of Canada

Indexed as: Merck Frosst Canada & Co. v. Canada (Minister of Health)

File No.:	A-515-04
Reference:	2005 FCA 215
Date of decision:	June 7, 2005
Before:	Desjardins, Noël and Pelletier JJ.A.
Sections of ATIA / PA:	Ss. 20(1)(b), (c),(d), 25, 44 Access to Information Act (ATIA)

Abstract

• Information available in the public domain is not confidential
• The form in which the information is provided does not make it confidential

Issue

Whether the Federal Court Judge erred in law in concluding that the records at issue fell within the exemption provided for in para. 20(1)(b) of the ATIA because the information they reflect did not appear as such in the public domain

Facts

This is an appeal by the Minister of Health from a decision of Harrington J. of the Federal Court not to disclose any part of the recrods requested on the ground that the records in their entirety were protected under subs. 20(1), except where the notice of compliance is concerned (2004 FC 959).

Health Canada received a request for access to records under the ATIA relating to the review of Merck Frosst's new drug submission for the asthma drug Singulair, newly approved and marketed. The documentation requested was as follows: notice of compliance, comprehensive summary, reviewers' notes and correspondence between Health Canada and Merck Frosst concerning the review of the new drug submission.

Harrington J. concluded that the comprehensive summary was fully excluded from the disclosure because it is essentially confidential third party information. In addition, with respect to the comprehensive summary, the reviewers' notes and the correspondence, the Court decided that the content and intent of the documentation as well as the circumstances surrounding its compilation and communication demonstrate that it is confidential. Finally, the Court decided that even if some information appears to be in the public domain, the question was not really whether or not there was public information regarding Singulair, but rather whether the information as outlined in the new drug submission is in the public domain. Harrington J. concluded that considering that the information contained in the records was not available as such in the public domain, the right to confidentiality was not lost.

Decision

The appeal is allowed, the Federal Court Judge's decision is reversed and the matter is referred back to the Federal Court in accordance with subpara. 52(b)(ii) of the Federal Courts Act for redetermination before another judge.

Reasons

As soon as information is in the public domain, it is no longer confidential even if the form in which it is provided is different. Relying on the form in which the information is provided to conclude that a record complies with the criteria of para. 20(1)(b) is necessarily contrary to the spirit of the ATIA and case law to date on this point. What is of concern is the information. The form in which it is provided cannot prevent its disclosure.

Nor could the Judge conclude that the reviewers' notes and the correspondence between the parties were not to be disclosed in accordance with para. 20(1)(b). The information contained in the reviewers' notes reflect certain information not coming from Merck Frosst and the fact that the notes were drafted in response to Merck Frosst's request is without consequence.

The Court of Appeal concludes that the interests of justice would not be properly served if it were to conduct its own review of the records at issue. It therefore orders that the matter be referred back to the Federal Court for redetermination before another judge in accordance with these reasons.

Minister of Public Safety and Emergency Preparedness and Pargat Singh Kahlon

Indexed as: Canada (Minister of Public Safety and Emergency Preparedness) v. Kahlon

File No.:	IMM-3443-05
Reference:	2005 FC 1000
Date of decision:	July 19, 2005
Before:	Tremblay-Lamer J.
Sections of ATIA / PA:	Ss. 8(1), 8(2)(c) Privacy Act (PA)
Other statutes:	Ss. 72, 109, 162(1), 165 Immigration and Refugee Protection Act, S.C. 2001, c. 27; Rules 29, 39(2), 40, 45, 46 Refugee Protection Division Rules, SOR/2002-228; s. 4(b) Inquiries Act, R.S.C. 1985, c. I-11

Abstract

• Para. 8(2)(c) PA not to be liberally construed
• A body considering whether to order production of government records must consider alternatives to full disclosure in order to strike a balance between the need for disclosure and the government's privacy obligations under s. 8 of the Privacy Act

Issue

When issuing a summons to a government institution party to litigation to produce documents in order to allow the opposing party to prepare full answer and defence, is the Refugee Protection Division obligated to consider the privacy interests protected by the Privacy Act?

Facts

The respondent obtained protected person status as a Convention refugee on the basis that his daughter was suspected of being acquainted with a Sikh militant. Some years later, the respondent's daughter admitted that the facts underlying her own claim for refugee status and, thus, that of her father, were fraudulent. Consequently, an application to vacate was brought before the Refugee Protection Division of the Immigration and Refugee Board^[10] (the "RPD") against the respondent.

In the course of the preliminary proceedings before the RPD, the latter issued a summons ordering the production of the entire immigration file of the respondent's daughter. The Minister objected to the summons and brought a motion to cancel it pursuant to rule 40 of the Refugee Protection Division Rules. The RPD denied this motion and ordered that respondent's counsel was entitled to consult the documents pertaining to the respondent's daughter in order to prepare and present a full response to the testimony that she was expected to give.

The Minister applied for judicial review under s. 72 of the Immigration and Refugee Protection Act challenging the RPD's decision. The Minister submits that the RPD exceeded its power to compel evidence by ordering the summons at issue and, in turn, denying its motion to quash it. It is argued that the RPD must strike a balance between the respondent's need to defend himself and the confidentiality of the Minister's file. The summons ordering the production of documents concerning the respondent's daughter should be as detailed as possible. The documents, if their relevance is contested, should be inspected by the RPD first, unless they are clearly irrelevant.

The respondent maintains that the decision of the RPD should not be interfered with. He submits that the criterion of "necessity" was not improperly applied in light of the particular facts of the case, the public interest in confidentiality will not be prejudiced, and that his right to a "full and proper hearing" must be accorded a preceding importance.

Decision

The application for judicial review was allowed. The matter was referred back for re-determination by a differently constituted RPD panel.

Reasons

The Court first dealt with two preliminary questions: whether the application for judicial review was premature and the applicable standard of review. The Court was satisfied that the application for judicial review was not premature. If disclosure of the daughter's personal information were allowed to occur, the privacy interest of the daughter sought to be protected by the Privacy Act would be completely lost, which no subsequent remedy could undo. With respect to the second question, the Court, applying the pragmatic and functional approach test, held that reasonableness simpliciter was the appropriate standard of review.

In finding that the decision of the RPD to deny the applicant's motion to quash the summons ordering the production of the whole of the respondent's daughter's immigration file was unreasonable, the Court provided three interrelated reasons, the second of which engaged the purposes of the Privacy Act.

In the Court's view, the decision to deny the application to quash the summons was unreasonable because of its failure to consider the privacy interest put in jeopardy by the summons the RPD issued.

The interest in ensuring a "full and proper hearing"–procedural fairness or natural justice–does not stand alone; it must be weighed against competing interests: Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3. As a result, the right of the respondent to respond fully to the case against him in the context of the application to vacate must be weighed against competing interests, most notably, the privacy of the respondent's daughter. The latter's immigration file contains personal information as defined by the Privacy Act. This legislation, as a rule, requires non-disclosure of personal information: subs. 8(1).

The Supreme Court of Canada held that the Privacy Act has quasi-constitutional status, emphasizing the obligation of government institutions to protect personal information: Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 S.C.R. 773. Thus, while para. 8(2)(c) the Privacy Act allows for the disclosure of personal information pursuant to an order issued by a Court or other body such as the RPD , this exemption should not be liberally construed. Rather, personal information, which has no apparent relevancy to the issues underlying the application to vacate, ought not to be readily disclosed.^[11]

The RPD should consider alternatives to full disclosure in order to strike a balance between the need for disclosure and the right to privacy. Where competing interests are at play, an "all-or-nothing approach" is simply not appropriate: A.M. v. Ryan, [1997] 1 S.C.R. 157, paras. 33-34.

In the result, the Court ordered that the RPD should review the list of documents contained in the respondent's daughter's immigration file and order production of only those documents that appear to contain information relating to the misrepresentations which the respondent was alleged to have made. If the RPD were unable to assess whether a particular document might contain relevant information, it should inspect the document first and then decide whether to order production.

H.J. Heinz Company of Canada Ltd. and James Friel v. Attorney General of Canada

Indexed as: H.J. Heinz Co. of Canada Ltd. v. Canada (Attorney General)

File No.:	T-2214-04; T-474-04
References:	2005 FC 1314; 2005 FC 1315
Date of decisions:	September 26, 2005
Before:	von Finckenstein J.
Sections of ATIA / PA:	Ss. 6, 20(1)(b), (c), 44 Access to Information Act (ATIA)

Abstract

• Request for access to third party's submissions respecting proposed amendments to Processed Products Regulations
• Third party's public policy concerns not "financial, commercial, scientific or technical information" pursuant to para. 20(1)(b)
• Mere speculation as to what a competitor might do not meeting para. 20(1)(c) test
• Relevancy not an exemption under the ATIA

Issues

1. Should the Heinz documents be exempted from disclosure pursuant to para. 20(1)(b)?
2. Should the Heinz documents be exempted from disclosure pursuant to para. 20(1)(c)?
3. Should the "study" not be released as it is allegedly irrelevant to the access request?

Facts

These were applications for judicial review, pursuant to s. 44 of the ATIA, of two Canadian Food Inspection Agency (CFIA) decisions to release information pursuant to an access request. The records at issue consisted of correspondence between the CFIA and the H.J. Heinz Company of Canada Ltd. ("Heinz"), as well as a presentation and a study on infant food consumption. CFIA informed Heinz of its decision to release redacted copies of the correspondence and the presentation and to release the study in its entirety. Heinz is asking the Court to order the non-disclosure of records, or that they be disclosed with specific redactions.

Decision

Applications dismissed.

Reasons

Issue 1 – Should the Heinz documents be exempted from disclosure pursuant to para. 20(1)(b)?

The Court cites its decision in AstraZeneca Canada Inc. v. Canada (Minister of Health), 2005 FC 189 and reiterates that the starting point of any analysis of the application of the ATIA is the purpose clause found in subs. 2(1) which is both an interpretive tool and a benchmark for the application of the Act.

Recognizing the well established principles in Air Atonabee Ltd. v. Canada (Minister of Transport) (1989), 27 F.T.R. 194, the Court reiterates the six criteria applicable to both paras. 20(1)(b) and (c).

With respect to para. 20(1)(b), the information must be:

1. financial, commercial, scientific or technical information;
2. confidential in nature;
3. supplied to a government institution by a third party, and
4. treated consistently in a confidential manner by the third party.

In the case of para. 20(1)(c), there are two circumstances under either of which information is exempt from disclosure:

5. where the disclosure of the information could reasonably be expected to result in material financial loss or gain to a third party, or
6. where the disclosure of the information could reasonably be expected to prejudice the competitive position of a third party.

The correspondence between the CFIA and Heinz and the latter's a presentation were made in response to proposed amendments to the Processed Products Regulations. The access request specifically targets these submissions. To the extent that such submissions reveal any details about Heinz's operations, its marketing strategy or its future developments, they are, of course, confidential and should be protected. But that was not the case here. While the submissions may reveal the corporation's regulatory or lobbying strategy, these have nothing to do with its operations. The Court held that even giving the most generous interpretation to the words "financial, commercial, scientific or technical information", those submissions did not fit within that meaning. The Court held the view that the submissions in question merely revealed Heinz's public policy concerns and that such concerns were not financial, commercial, scientific or technical information within the meaning of para. 20(1)(b) of the ATIA. As a result, Heinz did not meet the first part of the Air Atonabee test.

Issue 2 – Should the Heinz documents be exempted from disclosure pursuant to para. 20(1)(c)?

Heinz essentially submitted that the release of the records would show a competitor that Heinz had made a submission and, in turn, a competitor could rely on Heinz's submission and not have to expand as much time, energy or resources in developing its own position or submission on the proposed changes to the Regulations in question. The Court rejected this argument and reiterated the test to meet for the successful application of para. 20(1)(c): the third party must demonstrate that the disclosure of information could reasonably be expected to result in material financial loss or gain to it or could reasonably be expected to prejudice its competitive position. On this point, the Court stated, at para. 19:

The Court reiterated what has been held in the past, that there is a heavy onus on the party attempting to prevent disclosure.

Issue 3 – Should the "study" not be released as it is allegedly irrelevant to the access request?

Heinz argued (1) that the study was not submitted to the CFIA nor to Agriculture Canada but to Health Canada and (2) that it was not submitted to Health Canada in response to the proposed amendments to the Regulations and as such, it should not fall within the scope of the access request.

The concept of relevancy is not contained in any of the exemptions under the Act and therefore has no merit in law in terms of justifying the non-disclosure of records irrelevant to the request. The fact that Heinz had submitted the study to Health Canada as opposed to the CFIA directly is of no relevance to the request itself. The record was in the CFIA file and dealt in a generic way with the subject-matter of the request. The Court held that it should therefore be disclosed in the spirit of the Act.

Comments

The third party is appealing this decision.

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.

Footnotes

^[1] These reasons should be read in conjunction with the supplemental reasons for order dated May 9, 2005 (2005 C 648) where the Court held that the head of a government institution is authorized to reverse his initial decision not to disclose information in a s. 29 ATIA or s. 44 ATIA circumstance.

^[2] Air Atonabee Ltd. v. Canada (Minister of Transport) (1997), 27 F.T.R. 194 (F.C.T.D.).

^[3] The Court of Appeal held, in paragraph 66, that when a request is made under the ATIA for access to a privileged document, the government must sever and disclose the general identifying information from that document. Such information includes the description of the document, the name, title and address of the person to whom the communication was addressed, the closing words of the communication and the signature block.

^[4] Report of the Standing Committee on Justice and Solicitor General entitled Open and Shut: Enhancing the Right to Know and the Right to Privacy.

^[5] The issue of « control » of the records was not addressed by the Court as it had previously been dealt with by the Federal Court of Appeal in Canada Post Corp. v. Canada (Minister of Public Works and Government Services), 2004 FCA 286. The FCA rejected CPC's argument that the dual responsibility of the Minister of PWGSC as head of that Department and as the Minister responsible for CPC removed CPC from the scope of the ATIA. The FCA ruled that the records at issue therein were in the possession of PWGSC and thereby under its control. Leave to appeal to the Supreme Court of Canada was denied on March 18, 2005. The SCC's ruling effectively disposed of the similar issue raised in the two cases under consideration here.

^[6] The s. 44 application for judicial review was the subject-matter of the decision rendered by Phelan J. on February 8, 2005 (2005 FC 189).

^[7] The present reasons for order were made following the granting of a motion for reconsideration brought by AstraZeneca to deal with the issue of whether the Minister had jurisdiction to disclose information which he/she previously decided was exempt from disclosure. The reasons allowing the motion are found at 2005 FC 623.

^[8] The information which according to the Minister can be disclosed has been assessed by Phelan J. against the criteria in s. 20–see 2005 FC 189. 

^[9] These reasons should be read in conjunction with the Court's decision in AstraZeneca Canada Inc. v. Canada (Minister of Health), 2005 FC 189.

^[10] The Board is subject to the PA.

^[11] The Court held that the notion of what is "necessary" for a full and proper hearing under rule 39(2) of the Refugee Protection Division Rules was equivalent to the notion of relevance, as least insofar as that rule was concerned.