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Info Source Bulletin Number 31A - Court Case Summaries
Information Commissioner v. Canada (Minister of Environment) (Ethyl)
Federal Court
Date of Decision: October 17, 2006
Sections(s): Sections 21(1)(a), (b) ATIA
Origin
Application for review of the refusal of the Minister of Environment Canada to disclose portions of a 1995 Memorandum to Cabinet regarding MMT by reason that the records are exempt from disclosure under paragraph 21(1)(a) and (b) ATIA.
Facts
In 2001, the Federal Court stated "discussion papers" stated in ss. 69(1)(b) and 69(3)(b) ATIA include background information in a Memorandum to Cabinet.
The Federal Court of appeal agreed with this decision in 2003. However, the Court of appeal also determined "the Minister should be given an opportunity to claim any exemption that might apply to this information".
The Clerk of the Privy Council reviewed the requested documents and stated the "analysis section" of the Memorandum to Cabinet "contained a corpus of words" that meets the definition of "discussion paper(s)" in s. 69(1)(b) ATIA and s. 39(2)(b) of the Canada Evidence Act.
The Clerk referred the analysis section to the Minister for Review. On June 2003, the Information Commissioner filed a complaint based on ss. 30(3) ATIA in respect of an alleged "failure to process the Analysis Section".
The Minister provided some portions of the Analysis Section that were not subject to exemptions. The Minister however relied on ss. 21(1)(a), 21(1)(b) and 23 ATIA so as not to release certain portions of the Analysis Section. The Information Commissioner disagreed as regards the applicability of ss. 21(1)(a) and (b) ATIA and applied to the Federal Court for a review of the Minister's refusal to disclose the Disputed Passages.
Decision
The Minister bears the burden of proving his discretion was properly exercised.
Section 69(3) ATIA does not prevent exemptions stated under s. 21(1) ATIA.
Ss. 21(1)(a) ATIA applies to opinions and recommendations, not merely factual information.
Ss. 21(1)(b) ATIA only applies to consultations undertaken or exchange of views leading to a particular decision.
When exercising his discretion to refuse to disclose information, the Minister shall consider the public interest for and against disclosure.
Reasons
Issue 1
Whether the Minister bears the burden of proving his or her discretions have been properly exercised
Both parties agreed that, as the party attempting to prevent disclosure, the Minister bears the burden of proving the applicability of an exemption to a particular set of records. The Minister argued, however, that, as the party alleging that discretion has been improperly exercised, the Commissioner bears the burden of proving this allegation. The Court dismissed the Minister's submission and relied on the SCC ruling Lavigne v. Canada (Office of the Commission of Official Languages), [2002] according to which "s. 47 of the Privacy Act provides that the burden of establishing that the discretion is on the government institution". The Court stated the same reasoning should apply to s. 48 ATIA.
Issue 2
Whether ss. 69(3) ATIA prevents exemptions stated under s. 21(1) ATIA
Both a plain reading of sections 21 and 69 and a review of ATIA's legislative history led the Court to conclude that s. 69(3) does not prevent the applicability of exemptions provided by ss. 21(1) ATIA.
Issue 3
What is the standard of review in the present case
The Court stated it was necessary to undertake the pragmatic and functional analysis of the appropriate standard of review.
The Court concluded the standard of review with respect to the interpretation and application of the discretionary exemptions conferred by ss. 21(1)(a) and (b) ATIA is correctness. The Court's conclusion was based on the following statements: the ATIA does not contain a privative clause "insulating decisions of heads of government institutions on questions of access to information"; the Minister has no expertise in statutory interpretation of the interplay between subsections 21(1)(1), (b) and section 69 ATIA; the purpose of ATIA is advanced by adopting a less deferential standard of review; the question in this review is a question of law, which warrants no deference.
The Court also determined the "Minister's exercise of discretion under paragraphs 21(1)(a) and (b) should be assessed on the reasonableness standard". The Court's decision was based on Canada Inc. v. Canada (Minister of Industry), [2002] 1 F.C. 241 [Telezone].
Issue 4
What documents are subject to the discretionary exemptions stated under ss. 21(1)(a) and (b) ATIA?
Regarding the general interpretation of s. 21 ATIA, the Court relied on the following passage of the Federal Court decision Canadian Council of Christian Charities v. Canada (Minister of Finance), [1999] 4 F.C. 245 at para 39: "(…) documents containing information of a factual or statistical nature, or providing an explanation of the background to a current policy or legislative provision, may not fall within [paragraphs 21(2)(a) and (b) ATIA]. However, most internal documents that analyse a problem, starting with an initial identification of a problem, then canvassing a range of solutions, and ending with specific recommendations for change, are likely to be caught within paragraph (a) or (b) of subsection 21(1)."
The Court determined ss. 21(1)(a) ATIA applies to opinions and recommendations, not merely factual information. The Court relied on the Telezone case where the Court of Appeal ruled the word "advice" in this provision includes "an expression of opinion on policy-related matter", but excludes "information of a largely factual nature (…)". Subsidiarily, the Court decided that one specific passage which could not be exempted under ss. 21(1)(a) could not also be exempted under s. 23, as this passage was almost identical to another statement which has already been disclosed.
The Court also decided ss. 21(1)(b) ATIA only applies to consultations undertaken or exchange of views leading to a particular decision. The Court's conclusion was based on the Federal Court decision Newfoundland Power Inc. v. Canada (Minister of National Revenue), 2002 FCT 692 and on the Treasury Board Manual interpretation of ss. 21(1)(b) ATIA.
The Court acknowledged that "in the context of a Memorandum to Cabinet, it is apparent that there may be considerable overlap between the scope of records covered by each of paragraphs 21(1)(a) and (b).
Issue 5
Did the Minister lawfully exercise his or her discretion to refuse to disclose the requested information?
According to the Court, "the case law addresses the need for the Minister to consider the public interest for and against disclosure and weigh these competing interests with the purposes of the Act in mind". There is an obligation to "consider whether disclosure is possible without impairing the effectiveness of government". In the case at issue, the Court declared "there are insufficient reasons provided in support of the Minister's refusal to disclose". The Court was not "referred to any evidence that supports the Minister's conclusion that the release of the Disputed Passages would compromise future government action".
The Court ordered accordingly the remaining portions of the Disputed Passages to which paragraph 21(1)(1) and (b) apply to be returned to the Minister "to re-determine with reasons whether disclosure to Ethyl is warranted in the circumstances".
