Access to Information: Legal Update 2015

Presentation at the Canadian Access to Information and Privacy Association Conference

Louisa Garib, Legal Counsel

November 30, 2015
Ottawa, Ontario

Check against delivery

PowerPoint version of the presentation

Decisions

OIC Reference - Fees and electronic records* - Information Commissioner of Canada v. Attorney General of Canada 2015 FC 405
Time extension case - Canada (Office of the Information Commissioner) v. Canada (National Defence), 2015 FCA 56
Third Party Notification – Recall Total Information Management Inc. v Minister of National Revenue 2015 FC 848
Personal Information – Information Commissioner of Canada v. Canada (Natural Resources), 2014 FC 917
Mandamus Case – Coderre and al. v. The Information Commissioner of Canada 2015 FC 776

Ongoing litigation

Long-gun investigation (RCMP) and constitutional challenge - Information Commissioner of Canada and Bill Clennett v. Attorney General of Canada (ONSC No. 15-64739)
Exemption Raised after s. 37 ROF - Information Commissioner of Canada v. Toronto Port Authority T-1453-14
No Fly-List - Information Commissioner of Canada v. Minister of Transport Canada (T-911-14, T-912-14)
Exemption Raised Post-Investigation – Defence Construction Canada v. UCANU (A-414-15) Appeal

Fees reference case – Federal Court

Information Commissioner of Canada v. Attorney General of Canada, 2015 FC 405 (T-367-13)

Cannot charge search and preparation fees for electronic documents
*Session after the break

Time extensions case – Federal Court of Appeal

Canada (Office Of The Information Commissioner) v. Canada (National Defence), 2015 FCA 56 (A-163-14)

30 day deadline to respond extended by 1,110 days (3 years and 15 days)
Extension deemed unreasonable by FCA
Time extensions are reviewable by Court
Court can order disclosure
Timely access part of right of access

“…A government institution confronted with a request involving a great number of documents and/or necessitating broad consultations must make a serious effort to assess the required duration, and the estimated calculation be sufficiently rigorous, logic and supportable to pass muster under reasonableness review.” (sic)

The OIC will be issuing an advisory notice on the implications of this decision in relation to the OIC’s investigations

Court confirms Porter third-party notification process for disclosure – Interlocutory decision

Recall Total Information Management Inc. v Minister of National Revenue 2015 FC 848 (T-1273-14) (“RTIMS”)

s. 44 of the ATIA review
Can a government institution issue a new or second decision on an access request where the institution reverses itself and now decides to exempt from disclosure records, which it had already decided were not exempt from disclosure?
No.
When can a government institution change its decision on the disclosure of third party information?
Issue had been previously determined by the Federal Court in Porter Airlines v. Canada (Attorney General) 2013 FC 780
Process for third-party notification for disclosure set out in sections 27-29 of the ATIA
Under s. 28(1)(b) - After the third party has been given the opportunity to make representations, an institution is required to make a decision regarding disclosure

In Porter Airlines the Court ruled that there are 2 triggering events or opportunities where the institution may change its original decision or at least take a position inconsistent with its original position:

S. 29 – At the conclusion of an OIC investigation, upon receipt of the Commissioner’s recommendation to disclose records that the institution had originally decided were exempt from disclosure
Before the Court in a s. 44 proceeding, an institution can change its position on disclosure but is still bound by the decision under review

2013 Porter case the Federal Court found that:

Section 27-29 of the ATIA is a complete code for disclosure of third party information
If a further decision is made outside of the legislative framework, that decision is open to being found void and of no effect
Within the context of a s. 44, only the court can issue a new decision
In the RTIMS decision, Phelan J. confirmed the Court’s position in Porter

Information Commissioner of Canada v. Canada (Natural Resources), 2014 FC 917

Natural Resources Canada (NRCan) refused to release the names, professional titles and basic professional contact information of individuals working for non-government entities, who may have received data about the complainant’s business from NRCan
NRCan refused access to this information based on the exemption for “personal information” under s. 19(1) of the ATIA
OIC found that NRCan had not shown that the exemption properly applied.
NRCan refused to implement the OIC’s recommendation to release the information – OIC brought an application under s. 42 of the ATIA
The Federal Court found that work-related contact information of private sector employees constitutes personal information and could therefore be withheld.

However, there are 2 cases on this same issue currently before the Federal Court:

Suncor Energy Inc v. Canada-Newfoundland & Labrador Offshore Petroleum Board and al. (T-1359-14)
- Hearing was August 13, 2015
Husky Oil Operations Ltd v. Canada-Newfoundland & Labrador Offshore Petroleum Board and al. (T-1371-14)
- Hearing was November 10, 2015
Decisions are pending

Mandamus case

Coderre and al. v. The Information Commissioner of Canada 2015 FC 776

June 22, 2015 - Federal Court dismissed requester’s application for a mandamus order requiring the Commissioner to provide her reports of findings to the complainants in investigations that had not yet concluded.
Last OIC Complaint: Sept 8, 2014 → Court filing: Sept 12, 2014
Mandamus order would be contrary to the intention of the ATIA.
The Court found that the Commissioner had not failed to carry out a duty imposed by the Act, and that there was no unreasonable delay in investigating the applicants’ complaints.
Application dismissed with costs to the OIC

Ongoing Litigation – Investigation & litigation on the Long-gun Registry

Information Commissioner of Canada v. Minister of Public Safety & Emergency Preparedness (Federal Court No: T-785-15)

Section 42 of the ATIA – stayed pending outcome of constitutional challenge before Ontario superior Court of Justice

Information Commissioner of Canada and Bill Clennett v. Attorney General of Canada (ONSC No. 15-64739)

Application challenging the constitutionality of the ELRA as amended by Bill C-59
Retroactive non-application of the ATIA
Retroactive immunity against administrative or criminal liability
Under case management
4 Proposed Interveners filed Motion Records Nov 13, 2015
The trial dates have been set for June 20-21, 2016 in Ottawa

Ongoing litigation

Information Commissioner of Canada v. Toronto Port Authority T-1453-14

Hearing held on October 19, 2015
The issue is whether the Commissioner is compelled to investigate a discretionary exemption that is raised (without representations) after a section 37 Report of Finding is issued and consequently whether the exemption is properly before the Federal Court
Decision pending

Information Commissioner of Canada v. Minister of Transport Canada T-911-14, T-912-14

No Fly-List
Hearing before the Federal Court in January 20-21, 2016 in Ottawa
Decision pending

Ongoing litigation - Defence Construction Canada and al. v. UCANU Manufacturing - A-414-15

An appeal from UCANU Manufacturing v. Defence Construction Canada, 2015 FC 1001
Single issue on appeal: Whether a government institution can raise a mandatory exemption for the first time before the Federal Court?
S. 24 of the ATIA and s. 30 of the Defence Production Act – prohibition on disclosure – contract
Exemption was raised by counsel five days before the hearing before the Federal Court
OIC seeking leave to intervene