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Info Source Bulletin Number 30
Sheldon Blank v. Minister of Justice
Indexed as: Blank v. Canada (Minister of Justice)
| File Nos.: | T-817-04 |
| Reference: | 2006 FC 841 |
| Date of decision: | June 30, 2006 |
| Before: | O'Keefe, J. (F.C.T.D.) |
| Sections of ATIA / PA: | Ss. 19(1), 21(1)(a) and (b), 23, 41 Access to Information Act (ATIA) |
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Abstract
- Principle of reasonable severance (section 25) is paramount and applies to solicitor-client privileged materials (section 23)
- Matters of fact that are reasonably severable are not privileged and cannot be exempted under section 23
- Laws requiring disclosure in other legal proceedings cannot narrow or broaden the scope of disclosure under the ATIA
- Pursuant to section 41 review applications, the Court can only review records that are before it
Issues
(1) Did the Minister of Justice lawfully exercise discretion to refuse to release the records?
(2) To what extent does section 25 of the ATIA (severance) apply to section 23 of the ATIA (solicitor-client privileged materials)?
Facts
This is an application under section 41 of the ATIAfor a review of a decision by the Minister of Justice (the respondent) to refuse access to certain records or portions of records.
Sheldon Blank (the applicant) had commenced a civil action against the Crown for damages for alleged fraud, conspiracy, perjury and abuse of prosecutorial powers in relation to convictions against him that were eventually quashed, and further charges under the Fisheries Act that were eventually stayed. It is against this backdrop that the applicant made several access requests for government files. Blank was denied access to certain records pursuant to subsection 19(1) (personal information), paragraphs 21(1)(a) and (b) (advice or recommendations, consultations or deliberations) and section 23 (solicitor-client privilege) of the Access to Information Act, R.S.C. 1985, c. A-1 (ATIA). He subsequently complained to the Information Commissioner. The Information Commissioner investigated and concluded that the information withheld under subsection 19(1) and paragraphs 21(1)(a) and (b) were in fact properly exempted. The Information Commissioner was not persuaded, however, that the information withheld under section 23 fell within the ambit of that exemption.
Decision
The application for judicial review was allowed in part.
The Court begins its analysis by setting out the standard of review applicable to ATIA cases. It states at paragraph 22 that "[i]n reviewing the refusal of a government institution to disclose a record, the Court must determine on a standard of correctness whether the record falls within the exemption claimed (See: 3430901 Canada Inc. v. Canada (Minister of Industry), 2001 FCA 254 at paragraph 47). However, if the ATIA provides for discretion to be exercised by the government institution in refusing to disclose an exempted record, the exercise of that discretion is generally reviewable on a standard of reasonableness."
Reasons
Issue 1: Were the exemptions pursuant to sections 19 and 21 of the ATIA properly applied?
The Court simply held that subsection 19(1) of the ATIA was a mandatory exemption and that a government institution shall refuse to disclose requested records that contain personal information as defined in section 3 of the Privacy Act. The Court was satisfied that section 19 in this case was correctly applied.
The Court held that paragraphs 21(1)(a) and (b) were discretionary and was satisfied that the requested records were in fact "advice or recommendations developed by or for a government institution or a minister of the Crown" or "an account of consultations or deliberations involving officers or employees of a government institution, a minister of the Crown or the staff of a minister of the Crown". The Court was also satisfied that the respondent's exercise of discretion in withholding this information was reasonable.
Issue 2: Reasonable Severance of Solicitor-Client Privileged Materials
The Court essentially adopted the views expressed by Justice Mosley in Blank v. Canada (Minister of Justice), 2005 FC 1551 wherein he states that "not all communications between a lawyer and client are privileged – only those … where the client has sought legal advice" (legal advice privilege), as well as documents or materials created or obtained for the purpose of litigation (litigation privilege). The Court also relied on the following statements made by Mosley J.: "a privileged communication does not lose its privilege merely because it contains matters of fact which are not privileged. In this situation, the matters of fact can be severed from the privileged communication […]."
The Court again cited with approval the reasoning of Mosley J. at paragraphs 30 and 31 of the 2005 Blank decision:
Where, as in this instance, a claim of solicitor-client privilege may conflict with the public's right to access information in the hands of the government, it is important to note that Parliament intended section 25 of the Act to be of paramount importance. In Rubin v. Canada (Mortgage and Housing Corp.) [1988] F.C.J. No. 610 (F.C.A) (QL) the Court of Appeal stated:
I think it significant to observe that section 25 is a paramount section since the words "Notwithstanding any other provision of this Act" are employed. In my view, this means that once the head of the government institution has determined, as in this case, that some of its records are exempt, the institutional head, or his delegate, is required to consider whether any part of the material requested can reasonably be severed. Section 25 uses the mandatory "shall" with respect to disclosure of such portion, thereby requiring the institutional head to enter into the severance exercise therein prescribed....[Emphasis added]
Given the paramount nature of section 25 it would seem at first impression that documents determined to be subject to the exemption provided by section 23 of the Act are to be severed in the same manner as any other document subject to severance. On this reading of the requirements of severance under s. 25, information which can stand alone, without compromising privilege, such as facts upon which the advice is based, must be accessible.
Issue 3 & 4: Effect of Disclosure Under Other Legal Proceedings / Court's Powers to Review Records
The Court rejected the applicant's argument that the Stinchcombe disclosure during the criminal proceedings were insufficient. Relying on Blank v. Canada (Minister of the Environment), 2001 FCA 374, the Court reiterated at paragraph 37 the well established principle that "laws requiring disclosure in other legal proceedings cannot narrow or broaden the scope of disclosure required by the Access to Information Act."
The applicant also asked the Court to examine and make available to him documents that, he claims, had at one time been attached to a severed document. Relying on Blank v. Canada (Minister of Justice), 2004 FCA 287, the Court recognized the scope of sections 46 and 41 of the ATIA, and the authority it has been granted to review documents that are in evidence before it, with the exception of course to Cabinet Confidences which are excluded by section 69. The Court rejected the applicant's request because, in this case, the attachments were not part of the record before the Court.
The Court ordered further severance based on section 25 of the ATIA to permit the applicant to access additional information.
Comment
The Attorney-General of Canada has filed a notice of appeal to the Federal Court of Appeal on July 1st 2006.
