2008-2009 Progress on ongoing cases

This year saw progress on a number of important ongoing legal cases, as described below:

three cases pertaining to records held within ministers’ offices or the Prime Minister’s Office, and a case, heard at the same time as these three, pertaining to the agendas of a former Prime Minister, which the Prime Minister’s Office shared with a government institution;
a case dealing with the Information Commissioner’s powers to issue confidentiality orders during investigations; and
a case in which the Information Commissioner intervened involving the Privacy Commissioner’s investigative powers under private sector legislation.

Control of records

Canada (Information Commissioner) v. Canada (Minister of National Defence), (T-210-05); Canada (Information Commissioner) v. Canada (Prime Minister), (T-1209-05); Canada (Information Commissioner) v. Canada (Minister of Transport), (T-1211-05); Canada (Information Commissioner) v. Canada (Commissioner of the RCMP), (T-1210-05), 2008 FC 766, June 19, 2008 (Justice Kelen)

Summary

Four cases decided by the Federal Court in 2008 received considerable attention in the access to information community, legal circles and the media.

These cases were initiated by the Information Commissioner who challenged decisions not to disclose certain records requested under the Act, including the daily agenda books of a former Prime Minister, agendas and documents originating from meetings involving a former Minister of National Defence and officials of the Department of National Defence, and the itinerary and meeting schedules of a former Minister of Transport.

Three of these cases centered on whether records held in ministers’ offices or in the Prime Minister’s Office, and that relate to the ministers’ or Prime Minister’s functions as heads of government institutions, are “under the control of a government institution” within the meaning of the Act. The fourth case concerned whether the agendas of a former Prime Minister that the Prime Minister’s Office had given to the Royal Canadian Mounted Police (RCMP) and that, therefore, were clearly under the RCMP’s control, could be withheld in their entirety under the Act’s exemption provisions.

Background

The case against the former Minister of Defence stemmed from a request for “the minutes or documents produced from the M5 management meetings for 1999.” These meetings involved the Minister, the Deputy Minister, the Chief of the Defence Staff and members of the Minister’s staff, during which matters relating to the Department of National Defence were discussed. In response to the request, the Department located more than 600 pages of records about these meetings within the physical confines of the Minister’s office.

In the case against the former Prime Minister, the Privy Council Office (PCO) had received requests for the daily agenda books of former Prime Minister Jean Chrétien for the period between January 1, 1994 and June 25, 1999. More than 2000 pages of daily agendas were located within the Prime Minister’s Office. Four other pages were located in the office of the Executive Assistant to the Clerk of the Privy Council.

The third case involved an access request to Transport Canada for a copy of all of the Minister of Transport’s itineraries and meeting schedules for the period from June 1, 1999, to November 5, 1999. An abridged version of these itineraries had been sent to the Deputy Minister to assist in administering the department, but had been destroyed before the access request had come in. Nonetheless, the Minister’s office had archived in electronic form both a complete version of the itineraries and the abridged version.

In each case, the institution maintained that the records, having been found within the physical confines of the ministers’ or Prime Minister’s Office, were not subject to the right of access under the Access to Information Act. In addition, in the case involving the Prime Minister, PCO refused to disclose the agenda pages located in its offices, despite acknowledging that those pages were under the control of a government institution.

The fourth case came about as a result of an access request “for all copies of the Prime Minister’s daily agendas that had been provided to the Royal Canadian Mounted Police by the Prime Minister’s Office” from January 1997 to November 2000. The RCMP located nearly 400 pages of these agendas, but refused to disclose them in their entirety on three grounds: that disclosing the information in the records would reasonably be expected to threaten the safety of the former Prime Minister; that the records were the personal information of the former Prime Minister; and that some portions of the records were excluded because they contained Cabinet confidences. Following an investigation into the complaint linked to this refusal to disclose, the Information Commissioner disagreed with the RCMP Commissioner’s application of the exemptions and exclusion claimed.

In all but the last case, the Information Commissioner asked the Federal Court to determine whether the records at issue were “under the control” of the government institution over which the ministers or Prime Minister presided and, therefore, were subject to the Act. In two of these cases, as well as in the RCMP case, the Commissioner also asked the court to determine whether the records could be withheld, either in whole or in part, based on one or more of the Act’s exemption provisions, as well as the exclusion for Cabinet confidences.

Issues

The court addressed a number of issues in these four cases:

whether the office of the Minister of Defence, the Prime Minister’s Office and the office of the Minister of Transport are part of “government institutions” under subsection 4(1) and Schedule I of the Act;
what constitutes a record “under the control of a government institution,” as stated in subsection 4(1); and
did the exclusion and exemptions claimed properly apply to the records at issue?

Reasons

The court concluded that the offices of ministers and the Prime Minister’s Office are distinct entities from the departments over which ministers and the Prime Minister preside and, consequently, are not “government institutions” within the meaning of the Act.

In reaching this conclusion, the court noted that the Department of National Defence, Transport Canada and the Privy Council Office were among the “government institutions” expressly listed in Schedule I but that, in contrast, the offices of the ministers of defence and transport and the Prime Minister’s Office were not.

Although the court acknowledged that ministers and the Prime Minister are the heads of their respective departments, it concluded that neither they nor their offices were “part of” these institutions.

The court then considered what constitutes a record “under the control of a government institution,” as stated in subsection 4(1) of the Act.

The court did not agree with the Commissioner’s argument that all records generated or obtained by ministers, or on their behalf, that relate to the discharge of their duties and functions with respect to the administration of the departments they head, are records under the control of the department and subject to the Act.

The court took into account the jurisprudence regarding the meaning of control under the Act, setting out the following principles:

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 of the documents in question.
The contents of the records and the circumstances in which they came into being are relevant to whether they are under the control of a government institution for the purposes of disclosure under the Act.

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Applying these principles, the court decided that the issue of whether records in a minister’s possession (or the possession of the minister’s staff) are under the control of the department hinges on the answers to the following two questions: Do the contents of the records relate to a departmental matter? Do 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 copies to deal with that subject matter? In other words, does a senior official, other than the Minister, have some power of direction or command over the document?

The court gave examples of documents that would be under the control of a government institution, even when located in the Minister’s office: documents created by a departmental official, who should then have a reasonable expectation of being able to obtain a copy of it upon request; and documents prepared in the Minister’s office in consultation with a departmental official.

With regard to the records at issue, the court concluded that the following records were not under the control of a government institution:

M5 meeting notes taken by the Minister’s own staff;
email correspondence within the Minister’s office dealing with the Minister’s scheduling; and
records that had been sent to the department with the condition that they be read and immediately destroyed, including the Prime Minister’s agendas that were sent to the Clerk of the Privy Council but no longer in the Clerk’s possession and the Minister of Transport’s agendas that were provided to the Deputy Minister.

Records that were under the control of a government institution included the agendas listing the items to be addressed at the M5 meetings, which had been provided to attendees, including the Deputy Minister and the Chief of the Defence Staff, as well as miscellaneous records, including memoranda and briefing notes for the attendees of the M5 meetings.

On the applicability of the exemptions and exclusions claimed by the departments to refuse to disclose the requested records, the court agreed with the Information Commissioner’s submissions.

The term “personal information” is defined as not including “information about an individual who is or was an officer or employee of a government institution that relates to the position or functions of the individual.” In deciding whether the contents of the Prime Minister’s agendas could be exempt as containing “personal information,” the court found that ministers are “officers” of government institutions. Consequently, ministers may not rely on the personal information exemption for information relating to their duties and functions in the administration of their departments, which, with the exception of the names of private individuals, the information in question was.

The court agreed with the Information Commissioner’s submissions that the meetings referred to in agendas did not constitute advice or recommendations or accounts of consultations or deliberations, so the departments could not properly refuse disclosure on those grounds.

The Clerk of the Privy Council had not only invoked section 69 of the Access to Information Act to state that the Prime Minister’s daily agenda books were excluded from the Act as Cabinet confidences, he had also issued a certificate under section 39 of the Canada Evidence Act objecting to the disclosure of the Prime Minister’s and Minister of Transport’s agendas on the same grounds. However, the certificate relating to the Minister of Transport was later revoked. The court found that since the pages of the Prime Minister’s agendas located in the Privy Council Office did not note the subject matter of meetings, they did not disclose any Cabinet confidences. Consequently, the court found the certificates issued by the Clerk of the Privy Council to be invalid.

There are several practical results of these cases:

The Department of National Defence was required to disclose the records from the Minister’s office that had been distributed to the Chief of the Defence Staff and Deputy Minister.
The Privy Council Office was required to disclose the four pages of records the Clerk of the Privy Council had received from the Prime Minister’s Office.
Transport Canada was not required to disclose any records.
The RCMP was required to disclose all the records it had received from the Prime Minister’s Office.

Future action

The Information Commissioner has appealed the Federal Court’s decisions in the cases involving the former Minister of National Defence, Prime Minister and Minister of Transport.

The Attorney General has cross-appealed the case involving the former Prime Minister and appealed the RCMP case, on the question of whether the Prime Minister is a “public officer” or “officer” of a government institution, and has appealed the RCMP case. The outcome of these appeals may have an impact on the applicability of the section 19 exemption for personal information.

In the interim, the records at issue in these cases may not to be disclosed pending the determination of the appeals and cross-appeal.

The Information Commissioner and the Attorney General have both submitted their respective written arguments in support of their positions in these cases. A hearing date for the appeals has yet to be set.

Confidentiality orders

Canada (Attorney General) v. Canada (Information Commissioner), 2008 FCA 321 (A-492-07; A-568-07), October 22, 2008 (Justices Sexton, Evans and Sharlow)

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Summary

This was an appeal by the Attorney General of a Federal Court of Canada decision (detailed in last year’s annual report) to dismiss a challenge to the Information Commissioner’s authority to issue confidentiality orders during the course of investigations. The Federal Court of Appeal upheld the Information Commissioner’s confidentiality orders.

Background

The case involved the Information Commissioner’s authority under the Access to Information Act to impose confidentiality orders on witnesses who had been compelled to give evidence in private during an investigation, and on these witnesses’ legal counsel. At the time of the Federal Court hearing, only the confidentiality orders imposed on counsel remained at issue.

The Attorney General argued that the orders improperly interfered with solicitor-client privilege and unreasonably infringed freedom of expression as guaranteed by the Canadian Charter of Rights and Freedoms. The Federal Court did not accept these arguments and upheld the Information Commissioner’s orders.

The Attorney General appealed the Federal Court decision.

Issues

The central issue was whether confidentiality orders imposed on witnesses’ counsel, requiring counsel to obtain the consent of each witness before sharing his or her private evidence with others, interfered with solicitor-client privilege.

Reasons

The appeal court did not agree with the Attorney General that the confidentiality orders imposed on counsel unlawfully interfered with solicitor-client privilege. Nor was the appeal court persuaded that the Federal Court had erred when dismissing the Attorney General’s challenge of the Information Commissioner’s authority to issue confidentiality orders to witnesses’ counsel.

The orders simply stated that counsel must not disclose without witnesses’ consent questions asked, answers given and exhibits to which witnesses referred. The appeal court recognized that these orders were consistent with the objectives of the Access to Information Act, including that the Commissioner’s investigations be conducted independently of government.

Future action

Neither the Commissioner nor the Attorney General sought leave to appeal the decision to the Supreme Court of Canada.

Solicitor-client privilege

Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44 (Court file No. 31755, July 17, 2008)

Summary

This was an appeal, in which the Information Commissioner intervened, by the Privacy Commissioner of Canada of a decision of the Federal Court of Appeal. The appeal court had decided that the Privacy Commissioner, in the context of investigating an alleged breach of obligations under the Personal Information Protection and Electronic Documents Act (PIPEDA), did not have the authority to compel organizations or individuals to produce documents for which they claimed solicitor-client privilege.

Background

PIPEDA is privacy legislation that applies to the private sector. In common with the Privacy Act, PIPEDA includes provisions allowing individuals to access personal information about themselves, subject to certain limited exemptions, which the Privacy Commissioner may review in response to a complaint.

The original case centred on a former employee of the Blood Tribe Department of Health, an organization subject to PIPEDA, who had requested her personal information and complained to the Privacy Commissioner when she did not receive all the records she requested. The Privacy Commissioner then requested the complainant’s employment file from the organization to confirm that all the records to which she was entitled had been released. The organization refused to provide a portion of the file, claiming solicitor-client privilege.

The Privacy Commissioner sought to verify the organization’s claim of privilege by ordering it to produce the missing documents, in accordance with the Commissioner’s investigative authority under PIPEDA. The organization refused to do so and initiated court proceedings challenging the Privacy Commissioner’s authority under PIPEDA in this area.

The Federal Court and Federal Court of Appeal arrived at different decisions about whether the Privacy Commissioner had the power to compel these records.

The Privacy Commissioner appealed to the Supreme Court of Canada. The Information Commissioner was granted status to intervene in the proceedings.

Issues

The case dealt with the Privacy Commissioner’s powers under PIPEDA, not the federal Privacy Act nor the Information Commissioner’s powers under the Access to Information Act, since these laws apply to the public sector.

The Supreme Court of Canada described the issue before it as one that required it

to resolve a conflict between, on the one hand, the Privacy Commissioner’s statutory power to have access to personal information about a complainant for the purpose of ensuring compliance with [PIPEDA], and on the other hand, the right of the target of the complaint (in this case a former employer of the complainant) to keep solicitor-client confidences confidential.

Reasons

The Supreme Court ruled that the language giving the Privacy Commissioner powers under PIPEDA does not empower the Privacy Commissioner to compel production of documents for which solicitor-client privilege is claimed.

Applying the appropriate principles of statutory interpretation to the general language of PIPEDA, the court determined that the right of organizations to keep solicitor-client communications confidential prevailed over the Privacy Commissioner’s statutory power to gain access to records containing personal information.

Though the court agreed that PIPEDA provides a mechanism for calling the private sector to account for decisions respecting the disclosure of documents containing personal information, it determined that the proper way to achieve such independent verification was to ask the courts not the Privacy Commissioner.

The court noted the differences in the wording of PIPEDA and of the Privacy Act and Access to Information Act: the second and third of these laws contain explicit language granting the Commissioners access to privileged confidences, while the first does not.

The Information Commissioner’s intervention in this case was successful in ensuring that the court’s decision applied only to PIPEDA and not to the Access to Information Act.

Future action

The decision, which applies to the Privacy Commissioner’s powers under PIPEDA, stands. As a result, the Blood Tribe Department of Health did not have to produce to the Privacy Commissioner records which it claimed were subject to solicitor-client privilege.

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