Office of the Information Commissioner of Canada
On August 8, 2016, the Federal Court released its public reasons for decision in the case of Information Commissioner of Canada v. Toronto Port Authority and Canadian Press Enterprises Inc., (T-1453-14), 2016 FC 683.
The decision grants an application by the Information Commissioner of Canada pursuant to section 42 of the Access to Information Act (ATIA), seeking review of the Toronto Port Authority’s (TPA) refusal to disclose a record requested under the ATIA. The Court ordered TPA to disclose certain parts of the record and to re-determine its decision on the disclosure of the remaining parts of the record by reconsidering its reliance on the discretionary exemptions available to it, in light of the Court’s reasons.
The application was preceded by an investigation by the Office of the Information Commissioner, in which the Information Commissioner determined the TPA’s decision to withhold access to minutes from a meeting of TPA’s Audit and Finance Committee was not justified, and that the complaint was well-founded. The Information Commissioner had recommended that the record at issue be released in its entirety.
Throughout the Information Commissioner’s investigation, which lasted for a period of four years, TPA refused to release the Minutes based on claims that they contained commercial and financial information the release of which would prejudice its competitive position. As the Information Commissioner was not persuaded that any of the exemptions TPA relied on applied to the record, she recommended disclosure. In response to the Commissioner’s recommendation, TPA raised an additional exemption provision, claiming that the Minutes could also be exempted as an account of consultations or deliberations. The Information Commissioner chose not to investigate this exemption before reporting her findings to the complainant and offering to pursue the matter in Federal Court.
In its decision, the Federal Court confirmed that the Information Commissioner is the master of her own procedures and had the discretion, in these circumstances, not to investigate an exemption invoked so late in the investigation process. The Court further explained that forcing the Information Commissioner to relaunch an investigation under these circumstances could potentially undermine the quasi-constitutional right of timely access.
The Federal Court also confirmed the importance of the proper exercise of discretion. It found that TPA had not exercised its discretion reasonably when it decided to refuse to disclose the Minutes. It found that TPA had, on the one hand, considered irrelevant factors, such as balancing public interests against private interests where no private interests were present. On the other hand, TPA had not considered relevant factors, such as the passage of time, the staleness of the decisions discussed in the Minutes, and the public availability of some of the information in the Minutes. The Federal Court added that consideration of these factors should be informed by the purposes and objectives of the ATIA.
As a result of this decision, TPA reconsidered its discretion and released most of the contents of the Minutes to the requester.