2011-2012 3. Pursuing important principles of law

In support of our mission, we bring forward and intervene in court cases to defend or clarify important principles that underlie the fundamental right of access to government information, while contributing to the development of jurisprudence that favours disclosure. We also strive, in concert with becoming a centre of investigative expertise, to develop and augment our legal knowledge and skill, in order to support our investigative function.

A fundamental principle of the Access to Information Act is that decisions on disclosure should be reviewed independently of government. The first level of review is by the Office of the Information Commissioner through our investigation process. Once an investigation is completed and the findings are reported, there is a second level of review of refusals to grant access to records before the Federal Court.

Court proceedings under the Act may be commenced in a number of instances:

When we conclude that a complaint is well founded and the institution does not act upon our formal recommendation to disclose records, we may, with the complainant’s consent, seek judicial review by the Federal Court of the institution’s refusal.
When the complainant, upon receiving our investigation report, is not satisfied with the Commissioner’s findings, the complainant may seek a judicial review of the institution’s refusal.
The Act also provides a mechanism by which a third party may apply for judicial review of an institution’s decision to disclose information that the third party believes should be withheld.

We may also be involved in other types of proceedings:

We may seek leave to intervene in proceedings that relate to access to information.
We may be called upon to defend the Commissioner’s jurisdiction or powers.

As shown in the summaries below, important decisions on the issue of access to information were rendered in 2011–2012. Two of these were by the Supreme Court of Canada: one concerning the status of ministerial offices and another that reviewed the obligation to notify third parties about the application of the exemption limiting the disclosure of information provided by them. Two cases, one before the Federal Court and one before the Federal Court of Appeal, provided guidance on the exercise of discretion under the international affairs and defence exemption found in section 15 of the Act. In another case, the Federal Court of Appeal confirmed the Commissioner’s authority to compel the production of documents that were subject to the exclusion found in section 68.1.

We participated in a number of court proceedings. We also closely monitored other cases with potential ramifications for the Office of the Information Commissioner or for access to information in general, including cases started under section 44 of the Act in which third parties challenged institutions’ decisions to disclose requested information.

Decisions

Third-party information

Merck Frosst Canada Ltd. v. Minister of Health, 2012 SCC 3 (33290) (See also “Third-party information” in our 2010–2011 annual report.)

In 2000 and 2001, Health Canada received access requests concerning the submission of a new drug developed by Merck Frosst. Following receipt of the requests, Health Canada informed the pharmaceutical company of its intention to disclose a portion of the records. Merck Frosst opposed the disclosure of information in general categories such as manufacturing techniques, chemistry, dates, controls and file numbers. Merck Frosst also opposed the disclosure of pages that had already been forwarded to the requester without prior consultation.

Under section 44 of the Access to Information Act, Merck Frosst filed applications for judicial review to prevent the Minister from disclosing the requested records. The Federal Court ruled on those applications in October 2006, and the decisions were subsequently appealed.

The Federal Court of Appeal determined that section 27 of the Act, which concerns notices to third parties, requires an institution to communicate with a third party only in cases in which a document contains or may contain trade secrets or confidential information of a financial, commercial, scientific or technical nature.

The Court of Appeal also determined that the records in question did not meet the criteria of section 20 of the Act, which is the exemption for third-party information. In the view of the Court, the evidence submitted by Merck Frosst, which bore the burden of proof, was not sufficient.

Merck Frosst appealed to the Supreme Court, which considered two issues: First, when must a government institution give notice to a third party concerning an access to information request, and what sort of review of the record is required of the institution? Second, did the Federal Court of Appeal err in its application of section 20 of the Act?

The Supreme Court dismissed the appeal but clarified that an institution should issue a notification to a third party when there is any doubt about whether information relating to a third party should be released. An institution must also give notice to a third party when it intends to disclose information pursuant to the public interest override found in subsection 20(6) of the Act or when the institution intends, in accordance with section 25 of the Act, to sever and disclose information concerning third parties, but is not convinced that the criteria in subsection 20(1) of the Act have been met. The Court also observed that an institution must conduct a sufficient review of the requested material before deciding whether to give notice to a third party.

In reviewing the application of section 20 of the Act, the Supreme Court concluded that Merck Frosst had not provided evidence to show that the information at issue contained trade secrets (paragraph 20(1)(a)) or financial, commercial, scientific or technical information (paragraph 20(1)(b)).

The Supreme Court confirmed that the exemption in paragraph 20(1)(c) requires a third party to demonstrate “a reasonable expectation of probable harm.” A third party relying on this exemption must show that the risk of harm is more than a mere possibility but need not establish on a balance of probabilities that the identified harm will, in fact, occur. Merck did not meet the requirements in this case.

Finally, with respect to severance under section 25, the Supreme Court noted that the determination of whether information subject to the disclosure obligation “can reasonably be severed” from protected third-party information involves both a semantic and a cost-benefit analysis. The information released post-severing must not be meaningless.

Discretion and subsection 15(1)

Attaran v. Minister of Foreign Affairs,2011 FCA 182 (A-198-09) (See also, “General right of access” in our 2008–2009 annual report.)

Professor Amir Attaran challenged the decision by Foreign Affairs and International Trade Canada (DFAIT) to release redacted versions of its annual human rights report on Afghanistan for 2002 to 2006. The Federal Court ordered DFAIT to disclose information in those reports that was already in the public domain, but otherwise dismissed the application.

The requester appealed to the Federal Court of Appeal, which considered whether the Federal Court erred in finding that the Minister’s discretion under the national security exemption found in subsection 15(1) of the Access to Information Act was reasonably exercised.

The Federal Court of Appeal held that DFAIT had failed to exercise its discretion under subsection 15(1) of the Access to Information Act. Institutions must provide evidence to show that consideration was given to all relevant factors for and against disclosure. Generic statements will not satisfy the Court that the institution exercised its discretion.

In this case, the Federal Court of Appeal was of the view that no evidence was provided to demonstrate the exercise of discretion. The Federal Court of Appeal set aside the Federal Court judgment and returned the matter to DFAIT for the purpose of allowing it to exercise the discretion conferred under subsection 15(1).

The Minister of Foreign Affairs’ application for leave to appeal to the Supreme Court was dismissed on March 29, 2012 (34402).

Third-party information

Hibernia Management and Development Company Ltd. v. Canada-Newfoundland and Labrador Offshore Petroleum Board and Information Commissioner of Canada, 2012 FC 417 (T-1384-10) (See also, “Environment, security and third-party information” in our 2010–2011 annual report.)

Hibernia Management and Development Company Ltd. (HMDC) is an oil drilling company that operates in the Hibernia field off the southeast coast of Newfoundland. The Canada-Newfoundland and Labrador Offshore Petroleum Board manages Newfoundland and Labrador’s offshore oil resources on behalf of the Government of Canada and the provincial government. The Board received a request for access to certain records, specifically records relating to safety and environmental protection audits, and inspections of drilling operations carried out by the Board since January 2008. The Board asked for HMDC’s observations concerning documents that might contain third-party information. HMDC applied for judicial review to prevent the Board from disclosing the records in question. The Commissioner was granted party status.

The Federal Court considered three issues:

Are the records subject to the exemption in subsection 24(1) of the Access to Information Act, which incorporates by reference section 119 of the Canada-Newfoundland Atlantic Accord Implementation Act?
Are the records subject to the “confidential, commercial or technical information” exemption in subsection 20 of the Access to Information Act?
Do the records contain personal information subject to the exemption in subsection 19(1) of the Access to Information Act?

The Federal Court determined that the documents did not qualify as privileged under section 119 of the Canada-Newfoundland Atlantic Accord Implementation Act because the documents were not produced or provided by HMDC. They were produced by the Board based on its audit and contain independent observations made by the Board.

The Federal Court found that HMDC did not provide sufficiently clear and direct evidence to meet the requirements of paragraph 20(1)(b) of the Access to Information Act. Further, it found that the Board had properly redacted all personal information as required by subsection 19(1) of the Act, and severed and released all remaining information under section 25 of the Act.

In written submissions to the Court, the Information Commissioner noted that the public has an interest in knowing whether third parties who receive benefits from the government through operation licences comply with the associated conditions as well as whether the government is fulfilling its mandate in promoting safety and environmental protection at these operations. The Court agreed that this public interest further supported the disclosure of these documents.

The Federal Court concluded that the Board’s decision was correct, and dismissed the application.

No appeal was filed with the Federal Court of Appeal before the 30-day deadline.

Discretion and subsection 15(1)

Bronskill v. Minister of Canadian Heritage, 2011 FC 983 (T-1680-09) (See also, “Expiration dates” in our 2010–2011 annual report.)

Journalist Jim Bronskill made a request to Library and Archives Canada (LAC) for the security files of the Royal Canadian Mounted Police (RCMP) on Tommy Douglas, who died more than 20 years ago. LAC provided the requester with information that was heavily redacted under subsection 15(1) (international affairs and defence) and subsection 19 (personal information) of the Access to Information Act. The requester complained about these redactions.

After conducting an investigation, we determined, on the basis of the parties’ representations, that the exemptions had been properly applied. The requester applied for judicial review.

The Federal Court considered three issues:

Were the documents properly considered as subsection 15(1)-exempted documents?
What factors are to be considered in the exercise of discretion under subsection 15(1)?
Was the exercise of discretion reasonable in the circumstances?

The Court determined that LAC had not demonstrated that disclosure of the information would result in a “reasonable expectation of probable harm.” The Court held that LAC’s redactions to the documents were inconsistent, and provided a chart that identified improperly withheld documents for LAC to consider in its re-review of the records.

The Court provided a non-exhaustive list of factors to be considered in exercising discretion under subsection 15(1), including the passage of time between the creation of the record and the request, prior public disclosure of the information, and the historical value of the record.

With regard to the exercise of discretion, the Court was not satisfied that LAC had provided specific and detailed evidence to show that it had exercised its discretion. The Court found that LAC relied on the subsection 15(1) analysis provided by the Canadian Security Intelligence Service, with whom LAC had consulted. The Court concluded that the short amount of time taken by LAC (less than a week) to complete its review was indicative that no reasonable exercise of discretion was done.

The Court cautioned the Information Commissioner that in her investigations of national security claims, a “thorough and independent review must be undertaken with a critical mind, in keeping with the legislative objectives at play.”

The Federal Court ordered the matter be sent back to LAC so it could review the outstanding records according to the guidance set out in the decision, including the list of factors to consider when exercising discretion under subsection 15(1). The Court also ordered LAC to indicate, in writing, to Bronskill whether it had any additional information on Tommy Douglas in its holdings.

The Minister of Canadian Heritage has appealed the decision to the Federal Court of Appeal (A-364-11). The Information Commissioner has sought leave to intervene.

Personal information

Amir Attaran v. Minister of National Defence and the Information Commissioner,2011 FC 664 (T-1679-09) (See also, “National defence” in our 2010–2011 annual report.)

Professor Amir Attaran made a request to National Defence for records concerning the transfer of detainees in Afghanistan. In response, National Defence disclosed some of the information but withheld other information based on sections 15, 16, 17 and 19 of the Access to Information Act. The requester complained to our office. After an investigation, we determined that National Defence had properly applied section 19 of the Act and therefore did not inquire into the applicability of the other exemptions invoked by National Defence.

The requester applied for judicial review of National Defence’s decision to withhold 28 photographs of Afghan detainees in their entirety under the personal information exemption found in subsection 19(1) of the Act.

The Federal Court considered whether National Defence erred in refusing to redact the detainee photographs to remove personal information and in refusing to release the photographs on public interest grounds.

The Court determined that National Defence’s decision not to redact and to withhold all of the detainee photographs was reasonable. The application of the severance provision in section 25 of the Act, in the context of the removal of personal information from a photograph, involves an element of judgment, and it is a process that should err on the side of protecting the subject’s privacy interests. The Court noted that in a situation such as this one, in which there is a reasonable apprehension that the personal safety of the individual or his family may be at risk from the disclosure of his identity, extreme caution is justified. The Court also found that a severance sufficient to eliminate the potential of personal identification would be so extensive as to render the images meaningless.

The Court also found that it was reasonable for National Defence to conclude that, despite the need to consider the public interest, the risks to the detainee and to the conduct of Canadian military operations were paramount.

The parties did not seek leave to appeal the decision to the Federal Court of Appeal.

Production of records

Canadian Broadcasting Corporation v. Information Commissioner of Canada , 2011 FCA 326 (A-391-10) (See also, “Production of records” in our 2010–2011 annual report.)

The Canadian Broadcasting Corporation (CBC) appealed a Federal Court decision upholding the power of the Information Commissioner to order the CBC to produce records, in the context of her investigative process, to which CBC had applied the exclusion relating to journalistic, creative or programming activities.

The Federal Court of Appeal considered whether the Commissioner has the authority to order the CBC to produce records, including those that, in the CBC’s opinion, relate to journalistic, creative or programming activities.

The Court dismissed the CBC’s appeal, noting that the exclusion for information relating to journalistic, creative or programming activities found in section 68.1 of the Access to Information Act is subject to an exception for information about the CBC’s general administration. As a result, the Commissioner must be able to review records subject to a complaint to decide whether the information falls under the exception and could be released. The Court noted, however, that some records containing information such as journalistic sources would not, on their face, fall within the exception to the exclusion and, therefore, would be exempt from the Commissioner’s power of examination.

The parties did not seek leave to appeal the decision to the Supreme Court of Canada.

Personal information

Nault v. The Minister of Public Works and Government Services Canada,2011 FCA 263

The requester challenged a decision by Public Works and Government Services Canada (PWGSC) to refuse to disclose information stemming from a job competition. PWGSC withheld the information under the personal information exemption in section 19 of the Access to Information Act. This case raised the issue of whether the employment history of federal public servants prior to their entry into the public service falls within the exception to the definition of personal information found in paragraph 3(j) of the Privacy Act.

The requester complained to our office concerning PWGSC’s refusal to disclose the information. We found that PWGSC had properly withheld the information under section 19. The requester’s application for judicial review under section 41 of the Access to Information Act was dismissed by the Federal Court on the ground that the information in question was “personal information” within the meaning of section 3 of the Privacy Act.

The requester appealed to the Federal Court of Appeal, which considered whether the information was caught by the exception provided in paragraph 3(j) of the Privacy Act, which sets out that personal information does not include information about an individual who is or was an officer or employee of a government institution and that relates to the position or functions of the individual.

The Court held that past education and employment acquired prior to hiring by a government institution are an individual’s personal assets, obtained without the involvement of the government institution that subsequently hires that individual. This information does not relate to a position or functions with a government institution, but rather concerns a position or functions with another employer or activities at an educational institution.

The Court further held that, in interpreting the Access to Information Act and the Privacy Act, one must focus on the statutory provisions at issue while, at the same time, considering the purposes of the two statutes. In this case, information relating to the incumbent of a position in a government institution and concerning his education and employment history prior to being hired by a government institution is information that Parliament has protected under the Privacy Act.

The requester’s application for leave to appeal to the Supreme Court of Canada was dismissed on March 8, 2012 (34550).

Time extensions

Public Service Alliance of Canada v. Attorney General of Canada, 2011 FC 649 (T-1671-09)

The Public Service Alliance of Canada (PSAC) challenged the length of a time extension of 25 months taken by the Department of Justice Canada for an access to information request. PSAC complained to us that the length was unreasonable and amounted to a “deemed refusal” for access to the requested information. We found the time extension to be reasonable. The requester applied to the Federal Court for judicial review of the time extension.

The issues before the Court were whether it has the jurisdiction to review an extension before the deadline for processing a request has passed and, if so, whether the extension was unreasonable.

The Court found that there can be no refusal of access to information, and therefore no judicial review under section 41, until the deadline for processing a request has passed. Consequently, the Court concluded that it did not have the jurisdiction to hear the application, and therefore declined to address the issue of whether the extension was reasonable.

PSAC appealed the decision to the Federal Court of Appeal (A-256-11) but on May 14, 2012, filed a notice of discontinuance.

Consent to disclose

Top Aces Consulting Inc v. Minister of National Defence, 2011 FC 641 (T-724-10)
Top Aces Consulting Inc v. Minister of National Defence, 2012 FCA 75 (T-255-11)
(Both decisions were rendered in 2011–2012.)

National Defence received a request for records relating to National Individual Standing Offers for Interim Contracted Airborne Training Services and associated contracts. The institution informed Top Aces Consulting of the request and asked that it review the documents to identify any information that, in its view, ought to be protected under the Access to Information Act. Top Aces agreed to the disclosure of certain records, but objected to the disclosure of its unit prices as set out in the standing offers based on subsection 24(1) of the Act. This provision incorporates section 30 of the Defence Production Act (DPA), which precludes the release of certain information obtained under the DPA absent the consent of the applicant.

National Defence advised Top Aces that it was going to release the unit prices notwithstanding Top Aces’ objection, because a disclosure clause in the standing offers amounted to consent to disclose the information; therefore, the unit prices could not be withheld. Top Aces applied to the Federal Court to prevent National Defence from disclosing the unit prices.

The Court considered two issues:

Does the disclosure clause in the standing offers constitute consent to the disclosure of the unit prices under section 30 of the DPA?
If so, does this consent relieve the institution from its duty to refuse to disclose the information pursuant to subsection 24(1) of the Access to Information Act?

The Federal Court concluded that the disclosure clause in the Standing Offers is clear and not ambiguous, and constitutes “consent” under section 30 of the DPA. By signing the disclosure clause in the standing offers, Top Aces provided its consent; therefore, the unit prices are not exempt from disclosure by virtue of section 30 of the DPA, and the information may not be withheld pursuant to subsection 24(1) of the Access to Information Act.

The Federal Court of Appeal agreed with the Federal Court’s conclusion that Top Aces consented to the disclosure of its unit prices pursuant to section 30 of the DPA. The Court of Appeal also confirmed that this information was therefore not “restricted” within the meaning of subsection 24(1) of the Access to Information Act by reason of the consent given by the appellant. However, the Federal Court of Appeal clarified that this is the case because the DPA does not provide a mechanism to request or disclose documents.

No leave to appeal to the Supreme Court of Canada was filed before the 60-day deadline.

Motion under section 683 of the Criminal Code

William Fenwick West v. Her Majesty the Queen (Docket 264962, Nova Scotia Court of Appeal) (See also, “Ad hoc Commissioner” in our 2010–2011 annual report.)

In his case before the Nova Scotia Court of Appeal, William West brought a motion seeking to obtain, among other things, the disclosure of information contained in the investigation files of the Office of the Information Commissioner. The Commissioner filed written representations objecting to the jurisdiction of the Court to compel production and appeared before the Court of Appeal on April 11, 2012. The applicant’s motion for disclosure was dismissed on April 11, 2012.

Scope of section 18.1

Information Commissioner of Canada v. President and Chief Executive Officer of the Canada Post Corporation (T-382-11) (See also, “What is the scope of section 18.1?” in our 2010–2011 annual report.)

Prior to the hearing, Canada Post disclosed the information that was the focus of this case. As a result, the case was discontinued.

Ongoing cases

Information Commissioner of Canada v. Minister of Public Safety and Information Commissioner of Canada v. Minister of Justice (T-146-11 and T-147-11) (See also, “Issue of protocol” in our 2010–2011 annual report.)

These cases were heard together on April 24, 2012.

New cases

3421848 Canada Inc. et al. v. Canada (Information Commissioner) (T-936-11)

This is an application under section 18 of the Federal Courts Act for an order in the nature of mandamus requiring the Commissioner to conclude her investigation into the Canada Revenue Agency’s refusal to release approximately 20,000 pages of information related to an audit. This application was scheduled to be heard on May 7, 2012, but was discontinued without costs on May 3, 2012.

Exact Air Inc. v. Transport Canada (T-1341-11)

This is an application by Exact Air under section 44 of the Access to Information Act, challenging Transport Canada’s decision to release certain records. The Information Commissioner intervened in support of the disclosure of the information. Exact Air claims that the records should be withheld under subsections 19(1) and 20(1) of the Act. The application was discontinued by Exact Air on April 16, 2012, and all of the information at issue has been released.

Porter Airlines Inc. v. Attorney General (T-1768-11)

This is an application by Porter Airlines under section 44 of the Access to Information Act, challenging Transport Canada’s decision to release certain records. Porter claims that the records should be withheld under subsection 20(1) of the Act. The Information Commissioner, as an intervener, has provided evidence in this proceeding relating to our investigation of a delay complaint about Transport Canada’s response to the access request that is at issue in the proceeding. The Information Commissioner also will make representations in the proceeding regarding the interpretation of the obligations of government institutions when processing requests involving third-party consultations under sections 27 and 28 of the Access to Information Act, as well as government institutions’ duty to ensure timely access to requested records.