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Info Source Bulletin Number 31A - Court Case Summaries
Canadian Council of Christian Charities v. Minister of Finance
[1999] F.C.J. No. 771
Federal Court of Canada
Date of Decision: May 19, 1999
Sections(s): Section 21(a), (b), 41 Access to Information Act (ATIA)
Origin
Section 41 ATIA application for judicial review of Minister of Finance's decision refusing to release certain records relating to the interpretation of "religious order"
Issues
Whether the records are exempt from disclosure on the basis of paragraphs 21(1)(a) and (b) ATIA?
Facts
The Council made an ATIA request to the Minister of Finance for all materials in the possession of the Department relating to the interpretation of the term "religious order", one of the terms defining the scope of the entitlement to the "clergy residence" deduction under the Income Tax Act.
The Minister identified more than 150 pages of material falling within this request, but advised the Council that nearly all of it would be withheld under specified statutory exemptions (e.g., para. 18(d), 21(1) (a), (b), 23, 24(1) ATIA.
The Council complained and the Information Commissioner who investigated and concluded that the Minister had disclosed all the material covered by the Council's request that it was proper to disclose. The Council then applied to the Court for a review of the Minister's decision.
Decision
The application for judicial review is granted with respect to the decision not to disclose the records in question. The Minister is ordered to disclose the withheld material that does not fall within the scope of any of the statutory exceptions.
Reasons
The Federal Court stated the following regarding section 21 ATIA:
- Despite the importance of governmental openness as a safeguard against the abuse of power, and as a necessary condition for democratic accountability, it is equally clear that governments must be allowed a measure of confidentiality in the policy-making process. To permit or to require the disclosure of advice given by officials, either to other officials or to Ministers, and the disclosure of confidential deliberations within the public service on policy options, would erode government's ability to formulate and to justify its policies.
- It would be an intolerable burden to force Ministers and their advisors to disclose to public scrutiny the internal evolution of the policies ultimately adopted. Disclosure of such material would often reveal that the policy-making process included false starts, blind alleys, wrong turns, changes of mind, the solicitation and rejection of advice, and the re-evaluation of priorities and the re-weighing of the relative importance of the relevant factors as a problem is studied more closely. In the hands of journalists or political opponents this is combustible material liable to fuel a fire that could quickly destroy governmental credibility and effectiveness.
- It is difficult to avoid the conclusion that the combined effect of paragraphs 21(1)(a) and (b) is to exempt from disclosure under the Act a very wide range of documents generated in the internal policy processes of a government institution. 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 these broad terms. 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 Act thus leaves to the heads of government institutions, subject to review and recommendations by the Information Commissioner, the discretion to decide which of the broad range of documents that fall within these paragraphs can be disclosed without damage to the effectiveness of government. There is very little role for the Court in overseeing the exercise of this discretion.
