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Info Source Bulletin Number 31A - Court Case Summaries

Information Commissioner of Canada and the Minister of National Defence; Information Commissioner and the Prime Minister of Canada; Information Commissioner and the Commissioner of the RCMP; Information Commissioner and the Minister of Transport

Federal Court of Canada

2008 FC 766

Date of Decision: June 19, 2008

Sections(s): Sections 4, 19, 21(1)(a)(b), 42, 69 Access to Information Act

Origin

Application for judicial review of the decisions of these departments refusing to release information.

Facts

In 2000, the Office of the Information Commissioner began an investigation into a complaint made under the ATIA relating to requests made to several government institutions:

requests to PCO for the daily agendas of the Prime Minister covering the period 1994 to 1999 and for records relating to the appointment of Conrad Black to the British House of Lords;
a request to the RCMP for all copies of the PM's daily agendas provided to the RCMP by the PMO from January 1, 1997 to November 14, 2000;
requests made to DND for the minutes of meetings between the Minister of National Defence, the Deputy Minister of National Defence and the Canadian Forces Chief of Staff ("the M5 meetings"); and
a request to Transport Canada for the daily agendas of the Minister of Transport between June and November 1999.

During the Commissioner's investigation, all of the government institutions implicated took the position that they had no records relevant to the requests. A number of issues arose during the investigation, resulting in a number of preliminary judicial review applications that are the subject of separate case summaries. Once these matters had been resolved in the courts, the Information Commissioner completed his investigation of the four government institutions in 2005 and recommended disclosure of the requested documents, including "ministerial records". The Information Commissioner's recommendations were not accepted by any of the four government institutions. Consequently, the Information Commissioner, on behalf of the complainants, sought judicial review in the Federal Court of these decisions to refuse to disclose the requested records.

The applications for judicial review were finally heard by the Federal Court on May 12 to 16, 2008.

Decision

The application for judicial review in respect of DND and PMO were allowed in small part. The application for judicial review in respect of the RCMP was allowed in large part. The application for judicial review in respect of Transport Canada was dismissed. The Information Commissioner's request for costs even if unsuccessful was dismissed.

Reasons

Issue 1

Are the Prime Minister's Office, the Office of the Minister of Transport, and the Office of the Minister of National Defence "government institutions" under subsection 4(1) and Schedule I of the ATIA?

The Court considered a number of factors in assessing whether the PMO and ministers' offices are "government institutions" or parts of "government institutions" for the purposes of the subsection 4(1) ATIA.

The evidence tendered stated that the PMO is an organization separate and distinct from the PCO. While the two entities work closely together on some matters, the PMO is responsible for many matters unrelated to the PCO. The same is true with respect to the relationship between a minister's office and the department over which the minister presides. Accordingly, the evidence demonstrated that in the ordinary sense of the words in subsection 4(1) of the ATIA, the PMO and the relevant ministerial offices are not part of the "government institution" for which they are responsible.
The Commissioner submitted that a minister is part of his or her department because he or she is defined under the ATIA as being the "head" of the government institution for the purposes of theATIA. As well, the statutes creating the DND and the DOT both provide that their respective ministers are responsible for the management of these departments. Moreover, the Commissioner submits that the budgets for ministerial offices and the PMO are included in the budgets for their respective departments. The Court agreed that these facts supported the interpretation that ministers' offices and the PMO are part of their respective departments, and therefore included in their respective government institution listed in Schedule I to the ATIA.

However, the Court found that the PM and the Ministers of National Defence and Transport have many other functions unrelated to their respective departments for which they are responsible.

Accordingly, while the minister is responsible for the department, and is the head of that department, that does not make the minister or his or her office a component part of the department. While budgets for ministerial offices and the PMO are included in their respective departmental budgets as a separate line item, this does not make their respective offices part of the department. Similarly, the Treasury Board has budgetary responsibility for the Office of the Information Commissioner, but the Commissioner is not part of the Treasury Board.

An interpretation of "government institution" that included the PMO and offices of the relevant ministers would dramatically extend the right of access from records held by government institutions to records in those offices that are wholly unrelated to the department, including political records with respect to constituency matters, fundraising matters, Cabinet matters, and House of Commons matters. In the Court's view, Parliament would not have intended such a dramatic result without express wording to that effect. The Commissioner agreed that Parliament did not intend the ATIA to apply to political documents. The Court found no exemption or exclusion for such political records. Accordingly, the Court concluded that Parliament did not intend that the PMO or ministerial offices be implicitly included as a component part of the government institutions listed in Schedule I. Parliament would have expressly so provided if it so intended.
The evidence, in particular his official Report to Parliament a few years after the ATIA was proclaimed in force, confirmed that the Commissioner understood the intent of Parliament was not to include the PMO or a minister's office in the government institutions listed in Schedule I of the ATIA. The Commissioner has altered course and changed this position over time. More recently, the position of the Commissioner has been that ministerial offices are subject to the ATIA. In fact, the Commissioner acknowledged that this has been an issue where there has been some doubt, and urged Parliament in one of his recent official Reports to amend the legislation to clarify this.

Since the Commissioner publicly urged Parliament to amend the legislation to clarify that the PMO and ministerial offices are subject to the ATIA, Parliament has amended the Act several times and has not made this amendment. If Parliament intended that ministers' offices be part of a government institution, it would have made the appropriate amendments when in 2006 it adopted the Federal Accountability Act. While Parliament's intention may not always be inferred from legislative silence, in this case, the silence is clear and relevant evidence of legislative intent. The office of a minister is not intended to be part of a scheduled government institution.

According to the "implied exclusion" rule of statutory interpretation, if Parliament had intended to include the PMO and ministers' offices in Schedule I, it would have referred to them expressly. This is evidence that Parliament intended to exclude the PMO and ministers' offices from the government institutions subject to the ATIA.
The evidence demonstrated that there have been many ministers without portfolio since Confederation. If the ATIA was intended to apply to the offices of ministers, the ATIA would not apply to a minister without portfolio because he or she does not have a corresponding "government institution" listed in Schedule I. Such a result is absurd.
The distinctive use in the Act of "government institution" and "minister of the Crown," in the Court's view, demonstrated that Parliament intended them to have two different meanings. Otherwise, under paragraph 21(1)(a), it would be redundant to directly follow "government institution" with the express phrase "or a minister of the Crown."
Parliament, in other legislation, has distinguished between a "ministerial record" and a "government record," such as in the Library and Archives of Canada Act. If Parliament intended a "minister's office" to be a component of a "government institution," there would be no need to distinguish between a "government record" and a "ministerial record." By definition, they would be the same. Parliament's consistency in distinguishing between governmental records and ministerial records is encapsulated in the principle of consistent expression, which Professor Sullivan states applies not only within statutes but across statutes as well, particularly statutes or provisions dealing with the same subject. In the Court's view, the different purposes of the Library and Archives of Canada Act and the ATIA did not detract from the consistency of the terminology employed by Parliament.
In summary, applying the context of the Act; reading the words in their ordinary sense harmoniously with the scheme of the Act and the intention of Parliament; and applying the principles of statutory interpretation, the Court concluded that the PMO cannot be interpreted as part of the PCO. Rather, the PMO is a separate office with staff not connected with the PCO and having a number of functions not related to the PCO. The Court was satisfied that the ordinary meaning of the PCO is clear, and that no contextual consideration could warrant the Court interpreting Parliament to have intended the PMO to be part of the PCO for the purposes of the ATIA. The Court reached the same conclusions with respect to ministers' offices not being part of their respective government institutions.

Issue 2

What constitutes a record "under the control of a government institution" as stated in subsection 4(1) of the ATIA?

The Court considered the relevant jurisprudence concerning the proper meaning of "control" under the ATIA. From this jurisprudence, the Court extracted the following principles that guided its analysis in this case:

Control is not a defined term;
In reaching a finding of whether the records at issue are "under the control of a government institution," the Court can consider "ultimate" control as well as "immediate" control, "partial" as well as "full" control, "transient" as well as "lasting" control, and "de jure" as well as "de facto" control;
Parliament did not restrict the notion of control to the power to "dispose" – i.e., get rid of the documents in question; and
The contents of the records and the circumstances in which they came into being are relevant to determine whether they are under the control of a government institution for the purposes of disclosure under the Act.

Using these principles, the Court considered the contents of the records and the circumstances in which they were created to surmise whether the government institution could obtain a copy upon request from the PMO or the offices of the Ministers of National Defence and Transport.

Upon review by the Court, if the content of the documents in the PMO or the Offices of the Ministers of National Defence and Transport relate to a departmental matter, and the circumstances in which the documents came into being show that the deputy minister or other senior officials in the department could request and obtain a copy of that document to deal with the subject matter, then that document is under the control of the government institution.
While the meaning of "control" is to be given a broad and liberal interpretation to create a meaningful right of access to government information, it cannot be stretched beyond reason. In this case, the Court interprets "control" to mean that a senior official with the government institution (other than the Minister) has some power of direction or command over a document, even if it is only on a "partial" basis, a "transient" basis, or a "de facto" basis.
A document in the Minister's office that relates to a departmental matter does not necessarily mean that the document is under the control of the government institution. If it was created by a departmental official and sent to the Minister's office, then that departmental official should have a reasonable expectation that he or she can obtain another copy of it upon request. If this is the case, then the document is under the control of the government institution.
Similarly, if the document was prepared in the Minister's office in consultation with a government/departmental official, then that individual should again have a reasonable expectation of obtaining a copy of it upon request, and the document can be seen as being under the control of the government institution.

If, however, the document was prepared by someone in the Minister's office, was to be used for the sole purposes of the Minister's office, and if no government/departmental official has, or should have, a reasonable expectation of obtaining a copy of it, then that document is not under the control of the government institution for the purposes of the ATIA.

Issue 3

What is the meaning and scope of the exemptions in sections 19 and 21 and the exclusion in section 69 of the ATIA?

The Court reached a number of conclusions with respect to the meaning and scope of sections 19, 21, and 69 of the ATIA, all of which had been invoked by the government institutions to refuse disclosure in this case.

First, the section 19 exemption for "personal information" does not exempt the agendas of a minister, including the Prime Minister, with respect to appointments related to their duties and functions as a minister, since they are "officers" for the purposes of the exception to the general definition of "personal information" found in paragraph 3(j) of the Privacy Act.

However, private appointments of the PM or a minister not related to their job are exempt as "personal information." Also, the names of private individuals contained within the agendas who are not government officers or employees are "personal information" exempt from disclosure under the ATIA. Accordingly, if the PM meets with a political person, a businessman, or a lobbyist, the name of that individual is the private and personal information of that individual, and is exempt from disclosure.

Second, in the agendas of the PM and the Minister of Transport, there are no subject matter details included in the agenda entries, only the scheduling of meetings. Notice of a meeting does not disclose advice or recommendations of that meeting. Accordingly, the exemption in subsection 21(1) does not apply.

Finally, the exclusion for Cabinet confidences under section 69 of the ATIA and section 39 of the CEA does not apply to the agendas because they do not contain the subject matter of the meetings thereby disclosing any confidences of the Privy Council. The fact that a meeting took place does not disclose a Cabinet confidence. Under section 69, the Court can review the records at issue to determine if they are Cabinet confidences, and therefore excluded from the scope of the ATIA.

Issue 4

How do the foregoing legal principles apply to the records at issue here?

The Court reached the following conclusions with respect to the application of the above legal principles to the records at issue.

The Minister of National Defence records

The 648 pages of records within the Office of the Minister of National Defence relating to the M5 meetings are partly subject to disclosure under the ATIA:

The personal notes of the Minister's exempt staff would not, if ever requested, have been produced to DND officials. The Court reasonably assumed that any request for information from the notes would be prepared by the exempt staff in a typed-written record of the discussion. Accordingly, the DND did not have any form of control over the personal notes of the exempt staff taken at the meetings;
The e-mail correspondence within the Minister's office is not under DND's control;
The agendas for the M5 meetings, which were originally provided to the Deputy Minister and the Chief of the Defence Staff, would reasonably be provided upon request so that they are under the control of the DND; and
The 39 pages of miscellaneous documents, which include memoranda and briefing notes for the Minister and were originally provided to the Deputy Minister and/or the Chief of the Defence Staff, would be reasonably provided again to the Deputy Minister and/or the Chief of the Defence Staff and, accordingly, are under the control of the DND.

The PM agendas

Of the 2006 pages of records uncovered during the Commissioner's investigation, only the four pages located within the PCO are subject to disclosure under the ATIA:

The 2002 pages of the PM's agendas archived in the PMO could not have been obtained by the Clerk of the Privy Council upon request after their relevant date. The PMO prepared an edited version of the agendas, which was sent daily to the Clerk for a limited timeframe on the condition that these edited versions be destroyed each day. The unequivocal evidence from the PM's Executive Assistant is that he would have refused to provide the agendas to the Clerk after the fact unless directed to do so by the PM or the PM's Chief of Staff. The Court reasonably assumed that the Executive Assistant would have sent the Clerk a memo with any requested information about a past meeting rather than sending a copy of the old agenda. Accordingly, these agendas were not under the control of the PCO;
The four pages of the edited agendas located within the PCO are under the control of the PCO and must be disclosed under the ATIA except for appointments of the PM that relate to his private life and not his functions or duties as Prime Minister, and names of any individual not an employee or officer of the government (including individuals such as a political party fundraiser, a lobbyist, or a businessman). Such information is the personal and private information of the individual and is exempt as "personal information" under section 19 of the ATIA; and
Since the agendas do not contain any of the subject matters of the meetings, they do not disclose any confidences of the Queen's Privy Council subject to exclusion under section 69 of the ATIA or section 39 of the CEA. Similarly, the agendas do not contain any advice or recommendations for the Prime Minister or an account of consultations or deliberations with the Prime Minister which would be exempt under subsection 21(1) of the ATIA.

The RCMP records

The 386 pages of the PM's agendas located on RCMP premises are under the control of the RCMP and are subject to disclosure under the ATIA except for the "personal information" exempt under section 19, which is referred to above;

The Minister of Transport records

The 46 pages of weekly agendas of the former Minister of Transport are not subject to disclosure under the ATIA:

An abridged copy of these agendas, which account for 23 pages of the records, were archived in the Minister's office and were created and provided to the Deputy Minister to facilitate the administration of the DOT. However, these abridged agendas were provided for a limited timeframe on the condition that they be destroyed after their relevant date had passed. The Deputy Minister testified that she did not reasonably expect to be able to obtain another copy of the agendas after the relevant date had passed because the agendas were restricted to the Minister's office. In view of this evidence, the DOT did not have control over the past abridged agendas when the access request was filed; and
With respect to the unabridged agendas of the Minister of Transport, which accounted for the remaining 23 pages of records, the evidence is that they were not provided to the Deputy Minister or anyone else in the DOT. For this reason, these unabridged agendas do not constitute records under the control of a government institution.