2
Date: 20000114
Docket: T-394-99
BETWEEN:
THE INFORMATION COMMISSIONER OF CANADA
Applicant
- and -
THE MINISTER OF INDUSTRY CANADA
Respondent
- and -
Added Party
REASONS FOR ORDER
GIBSON, J.:
NATURE OF APPLICATION
[1]These reasons arise out of an application brought by the Information Commissioner (the "Commissioner") pursuant to paragraph 42(1)(a) of the Access to Information Act1 (the "Act"). The relevant portions of section 42 of the Act read as follows:
42. (1) The Information Commissioner may
(a) apply to the Court, within the time limits prescribed by section 41, for a review of any refusal to disclose a record requested under this Act or a part thereof in respect of which an investigation has been carried out by the Information Commissioner, if the Commissioner has the consent of the person who requested access to the record;
...
42. (1) Le Commissaire à l'information a qualité pour_:
a) exercer lui-même, à l'issue de son enquête et dans les délais prévus à l'article 41, le recours en révision pour refus de communication totale ou partielle d'un document, avec le consentement de la personne qui avait demandé le document;
...
(2) Where the Information Commissioner makes an application under paragraph (1)(a) for a review of a refusal to disclose a record requested under this Act or a part thereof, the person who requested access to the record may appear as a party to the review.
(2) Dans le cas prévu à l'alinéa (1)a), la personne qui a demandé communication du document en cause peut comparaître comme partie à l'instance.
[2]The added party is the person who requested access to the records at issue on this application. It was not in dispute that he consented to the bringing of the application. He was added as a party pursuant to subsection 42(2) of the Act.
[3]The added party filed no material on the application. Although he was present in the courtroom during most of the hearing of the application, he made no submissions.
BACKGROUND
[4]On the 4th of November, 1996, the added party made a request to the respondent for information, pursuant to the Act. On the 6th of June, 1997, the respondent released certain information but withheld a significant number of documents on the basis of various exemptions to disclosure set out in the Act, in particular, sections 15 (International affairs and defence), 20 (Third party information), 21 (Government operations), 23 (Solicitor-client privilege) and 69 (Confidences of the Queen"s Privy Council for Canada).
[5]On the 3rd of July, 1997, the added party initiated a complaint with the Commissioner, dealing with the non-disclosure of documents by the respondent pursuant to the various exemptions listed above. An investigator was appointed by the Commissioner and a protracted process of negotiation and consultation ensued in the course of which additional documents were disclosed. In the end however, by letter dated the 17th of December, 1998 and supplemented by letter dated the 3rd of June, 1999, the respondent refused to disclose information on certain documents which the Commissioner considered was not exempt from disclosure on the ground claimed by the respondent or, indeed, on any other ground.
[6]By letter dated the 22nd of January, 1999, the Commissioner advised the added party pursuant to section 37 of the Act that he agreed with certain exemptions claimed by the respondent but that he did not agree with the respondent's position on the disclosure of particular information, namely, the percentage weightings assigned to evaluation criteria used to assess certain proposals received by the respondent (the "weightings"). The Commissioner sought the added party's consent to apply to this Court for a review of the respondent's refusal to disclose the weightings. That consent was forthcoming. In the result, this application was filed on the 5th of March, 1999.
[7]The weightings are reflected on only six pages of material designated as pages 505 - 510 for the purposes of this application. While each of those pages was released to the added party, the weightings as they appeared on those pages were not disclosed. This "severance" process was carried out in accordance with section 25 of the Act, which reads as follows:
25. Notwithstanding any other provision of this Act, where a request is made to a government institution for access to a record that the head of the institution is authorized to refuse to disclose under this Act by reason of information or other material contained in the record, the head of the institution shall disclose any part of the record that does not contain, and can reasonably be severed from any part that contains, any such information or material.
25. Le responsable d'une institution fédérale, dans les cas où il pourrait, vu la nature des renseignements contenus dans le document demandé, s'autoriser de la présente loi pour refuser la communication du document, est cependant tenu, nonobstant les autres dispositions de la présente loi, d'en communiquer les parties dépourvues des renseignements en cause, à condition que le prélèvement de ces parties ne pose pas de problèmes sérieux.
[8]The exemption relied on by the respondent in withholding the weightings is provided by paragraph 21(1)(a) of the Act. The relevant portions of subsection 21(1) read as follows:
21. (1) The head of a government institution may refuse to disclose any record requested under this Act that contains
(a) advice or recommendations developed by or for a government institution or a minister of the Crown,
...
21. (1) Le responsable d'une institution fédérale peut refuser la communication de documents datés de moins de vingt ans lors de la demande et contenant_:
a) des avis ou recommandations élaborés par ou pour une institution fédérale ou un ministre;
...
THE STATUTORY SCHEME
[9]Under the heading "PURPOSE OF THE ACT", subsection 2(1) reads as follows:
2. (1) The purpose of this Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government.
2. (1) La présente loi a pour objet d'élargir l'accès aux documents de l'administration fédérale en consacrant le principe du droit du public à leur communication, les exceptions indispensables à ce droit étant précises et limitées et les décisions quant à la communication étant susceptibles de recours indépendants du pouvoir exécutif.
[10]Under the subheading Right of Access, subsection 4(1) of the Act reads as follows:
4. (1) Subject to this Act, but notwithstanding any other Act of Parliament, every person who is
(a) a Canadian citizen, or
(b) a permanent resident within the meaning of the Immigration Act,
has a right to and shall, on request, be given access to any record under the control of a government institution.
4. (1) Sous réserve des autres dispositions de la présente loi mais nonobstant toute autre loi fédérale, ont droit à l'accès aux documents relevant d'une institution fédérale et peuvent se les faire communiquer sur demande_:
a) les citoyens canadiens;
b) les résidents permanents au sens de la Loi sur l'immigration.
[11]In Dagg v. Canada (Minister of Finance)2, Mr. Justice LaForest, for the minority, wrote at pages 432 and 433:
| The overarching purpose of access to information legislation... is to facilitate democracy. It does so in two related ways. It helps to ensure first, that citizens have the information required to participate meaningfully in the democratic process, and secondly, that politicians and bureaucrats remain accountable to the citizenry. ... |
| Access laws operate on the premise that politically relevant information should be distributed as widely as reasonably possible. ... |
| Rights to state-held information are designed to improve the workings of government; to make it more effective, responsive and accountable. Consequently, while the Access to Information Act recognizes a broad right of access to any record under the control of a government institution"..., it is important to have regard to the overarching purposes of the Act in determining whether an exemption to that general right should be granted. [citations and quotations omitted] |
[12]Mr. Justice Cory, for the majority, wrote at page 412:
| I have read the careful and extensive reasons of Justice LaForest. I agree with his approach to the interpretation of the Access to Information Act,... |
[13]In Rubin v. Canada (Minister of Transport)3, Mr. Justice McDonald wrote at paragraphs 22 to 24:
| In Rubin v. Canada (Clerk of the Privy Council) this Court also affirmed the significance of subsection 2(1) of the Act. The Supreme Court of Canada has also highlighted the importance of the underlying purpose of the Act in construing its provisions. In Dagg v. Canada (Minister of Finance), Justice LaForest made the following remarks: |
| [there follows a portion of the quotation from the reasons of Mr. Justice LaForest in Dagg that appears above] |
| in my opinion, therefore, all exemptions must be interpreted in light of this clause [subsection 2(1)]. That is, all exemptions to access must be limited and specific. This means that where there are two interpretations open to the Court, it must, given Parliament's stated intention, choose the one that infringes on the public's right to access the least. It is only in this way that the purpose of the Act can be achieved. It follows that an interpretation of an exemption that allows the government to withhold information from public scrutiny weakens the stated purpose of the Act. |
| It is important to emphasize that this does not mean that the Court is to redraft the exemptions found in the Act in order to create more narrow exemptions. A court must always work within the language it has been given. If the meaning is plain, it is not for this Court, or any other court, to alter it. Where, however, there is ambiguity within a section, that is, it is open to two interpretations... then this Court must, given the presence of section 2, choose the interpretation that infringes on the public's stated right to access to information contained in section 4 of the Act the least. [citations omitted] |
[14]Consistent with the foregoing, section 48 of the Act provides that the burden of establishing that the head of a government institution, here the respondent, is authorized to refuse to disclose a record requested under the Act is on the government institution concerned.
[15]In Canada (Information Commissioner) v. Canada (Prime Minister)4, Rothstein J., as he then was, wrote at page 476:
| ...In short, the heavy onus placed on the party seeking to maintain confidentiality must be satisfied in a formal manner on a balance of probabilities through clear and direct evidence. I will have more to say about this later. |
Rothstein J. continued at page 478:
| The jurisprudence indicates that the Government or party seeking to maintain confidentiality must demonstrate its case clearly and directly. The Act itself, in subsection 2(1), states that exemptions from disclosure must be limited and specific. By inference I think it is clear that a general approach to justifying confidentiality is not envisaged. |
[16]Section 49 of the Act identifies the range of remedies available to this Court on an application such as this. That section reads as follows:
49. Where the head of a government institution refuses to disclose a record requested under this Act or a part thereof on the basis of a provision of this Act not referred to in section 50, the Court shall, if it determines that the head of the institution is not authorized to refuse to disclose the record or part thereof, order the head of the institution to disclose the record or part thereof, subject to such conditions as the Court deems appropriate, to the person who requested access to the record, or shall make such other order as the Court deems appropriate.
49. La Cour, dans les cas où elle conclut au bon droit de la personne qui a exercé un recours en révision d'une décision de refus de communication totale ou partielle d'un document fondée sur des dispositions de la présente loi autres que celles mentionnées à l'article 50, ordonne, aux conditions qu'elle juge indiquées, au responsable de l'institution fédérale don"t relève le document en litige d'en donner à cette personne communication totale ou partielle; la Cour rend une autre ordonnance si elle l'estime indiqué.
Section 50 is not relevant for the purposes of this application.
STANDARD OF REVIEW
[17]In The Canadian Council of Christian Charities v. The Minister of Finance5, Mr. Justice Evans, as he then was, wrote at paragraphs 11 to 14:
| This appears to be the first case in which the Court has been required to consider the scope of the exemptions from disclosure contained in paragraphs 18(d) and 21(1)(a) of the Access to Information Act. I approach this task within the framework of the well established legal principles that inform the conduct of section 41 reviews, as they relate to the facts of this case. |
| First, it is necessary to consider the standard of review applicable to the Minister"s refusal to disclose the information in question. Unlike some analogous provincial statutes, the federal Access to Information Act does not give to the Information Commissioner of Canada the statutory authority to decide whether a particular document should be disclosed. Instead, it confers on the Information Commissioner the power to investigate refusals to disclose and to make recommendations to the head of the government institution, in this case, the Minister of Finance. Since the Commissioner"s recommendations are not legally binding the decision reviewed by the Federal Court under section 41 is the Minister"s, not the Information Commissioner"s. |
| Heads of government institutions are apt to equate the public interest with the reasons for not disclosing information, and thus to interpret and apply the Act in a manner that gives maximum protection from disclosure for information in their possession. Accordingly, there is no room for the kind of judicial deference to the Minister"s interpretation or application of the statutory exemptions that courts have sometimes shown to decisions made by information and privacy commissioners operating under provincial legislation that confers on them, not the Minister, the power to determine whether information should be disclosed: see, for example, John Doe v. Ontario (Information and Privacy Commissioner) (1993), 106 D.L.R. (4th) 140 (Ont. Div. Court). |
| However, while the Court is required to review the Minister"s decisions on a standard of correctness it is certainly appropriate to have regard to the report and recommendations of the Information Commissioner. The Commissioner is independent of the Executive and reports directly to Parliament, and has acquired an expertise in the administration of the Act as a result of the experience gained in the investigation of complaints of refusals to disclose. |
I regard the foregoing as fully applicable to this matter.
[18]Against the foregoing standard of judicial review, if the head of an institution, here the respondent, is determined to have had a discretion to withhold a document or portions of a document, review of the exercise of discretion to withhold is a separate matter. In this regard, Madame Justice Sharlow, as she then was, wrote in 3430901 Canada Inc. and Telezone Inc. v. The Minister of Industry Canada6, (hereinafter "Telezone"), wrote at paragraph 93:
| The scope of judicial review of a discretionary refusal to disclose information has been described as follows: |
| In my view in reviewing such a [discretionary] decision the Court should not attempt to exercise the discretion de novo but should look at the document in question and the surrounding circumstances and simply consider whether the discretion appears to have been exercised in good faith and for some reason which is rationally connected to the purpose for which the discretion was granted.7 |
THE ISSUES
[19]In his memorandum of fact and law, the applicant describes the issues before the Court in the following terms:
| a) whether the disputed information was properly exempted as advice or recommendations under paragraph 21(1) (a) of the Access to Information Act; and |
| b) whether the respondent has discharged his burden of establishing that he is authorized to refuse to disclose the disputed information. |
[20]The Respondent, in his memorandum of fact and law characterizes the sole issue as the following:
| The sole issue to be decided by this Court is whether the Respondent was justified in exempting portions of the record that remain in dispute by use of section 21(1) (a) of the Access Act . |
ANALYSIS
[21]The exempted weightings appear on pages that are apparently a hard-copy of slides prepared for a "Ministerial Briefing" held on the 4th of November, 1996. The briefing note forwarded to the respondent, dated the 1st of November, 1996, reflected a clear recommendation that the evaluation criteria to which the weightings related and the weightings themselves could be approved at the meeting on November 4th.8
[22]In the context in which the evaluation criteria and their weightings were submitted to the respondent, I am satisfied that, on a standard of correctness, they could appropriately be characterized as advice or recommendations developed by a government institution for a minister of the Crown and are thus within the scope of paragraph 21(1)(a) of the Act. As such, it was reasonably open to the respondent to exercise his discretion to exempt the weightings from disclosure.
[23]On or about the 4th of November, the evaluation criteria and weightings, as recommended to the respondent, were approved by him. The following exchanges took place during the cross-examination of Mr. Ronald Amero on his public affidavit filed on behalf of the respondent:
| 53. Q. Then the next document at confidential Exhibit B is the final document which summarizes the evaluation criteria and weightings; am I correct? |
| 54. Q. So after the first draft confidential exhibit has been discussed with the minister's staff, then the second document was prepared and presented for the approval of the minister, correct? |
| 55. Q. And it was approved? |
| 79. Q. Confidential Exhibit B, the weighting of evaluation criteria, you have said before that this has been -- the evaluation and percentage has been approved by the minister? |
| 80. Q. Before the call for application was issued on November 7th? |
| 82. Q. They were approved by November 4th, 1996, if I refer to paragraph 10 of your public affidavit, correct? |
As indicated above, on the 1st of November, 1996, the evaluation criteria and related weightings were in the nature of advice or recommendations to the respondent prepared by officials in his Ministry. But, on or about the 4th of November, 1996, the nature of the evaluation criteria and weightings changed from advice or recommendations to the respondent to decisions of the respondent. As such, I am satisfied that they ceased to fall withing the ambit of paragraph 21(1)(a) of the Act and thereafter continued to be outside the ambit of that paragraph at all subsequent times relevant to this matter.
[24]Following a lengthy investigation by the applicant, and a number of exchanges between the applicant and the respondent, a senior official in the respondent"s Ministry wrote to the applicant on the 10th of September, 1998, maintaining the exemption with respect to the weightings. He wrote:
| If information of the type encountered in this case were routinely disclosed, advice and recommendations presented to senior management in the future could be expected to differ in substance and form from what would be in the public's best interest. In particular, there might be a tendency to self censor and to withhold controversial options from a Minister because of the difficulty public explanation may entail. I would add here that the Minister has full discretion in dealing with licensing matters under the Radiocommunication Act. It is important that the Minister's discretion not be fettered by the disclosure of internal advice. These are real concerns and we believe that departmental officials are in the best position to assess the impact of disclosure in these kinds of situations. |
| ...the documentation brought to our attention has been re-examined in the fullest spirit of the Act. Without waiving our claim that section 21(1)(a) applies in the manner contemplated by Parliament, we are prepared to disclose the disputed information with the exception of the recommended weightings. It is possible that the elements of the evaluation could be inferred from material that is already public and therefore there may no longer be a privacy interest to be protected. |
| The weightings recommended are clearly not known by anyone outside of the department. They are not disclosed because of the expectation that interested parties would skew their proposals to reflect what they believe the department would wish to hear rather than what they really want to do. Thus, there is a clear public interest in not disclosing this information, particularly in that I am informed the department intends to recommend to the Minister a similar approach in a [sic] up-coming evaluation process.10 |
In my view, the foregoing reflects precisely the kind of reasoning that Justice Evans relies on in The Canadian Council of Christian Charities v. The Minister of Finance11 to justify a standard of review of correctness as to the applicability of paragraph 21(1)(a) of the Act and that leaves, in words previously quoted from that decision:
| ...no room for the kind of judicial deference to the Minister"s interpretation or application of the statutory exemptions that courts have sometimes shown to decisions made by information and privacy commissioners operating under provincial legislation that confers on them, not the Minister, the power to determine whether information should be disclosed... . |
[25]In response, the Commissioner wrote to the respondent under date of the 9th of December, 1998, in part as follows:
| Having carefully reviewed the representations of [the respondent] and the complainant, it is my finding that the percentage weightings do not properly qualify for exemption from the right of access under paragraph 21(1)(a) of the Access to Information Act. In my view, these weightings do not constitute "advice" or "recommendations". Rather, they constitute the contextual framework within which the Minister expected recommendations to be made concerning the relative merits of the applications.12 |
[26]While I disagree with the basis on which the Commissioner"s objection to withholding of the weightings was made, I have reached the same conclusion as the Commissioner regarding the propriety of withholding the weightings from disclosure under paragraph 21(1)(a) of the Act ; that is to say, the weightings do not properly qualify under paragraph 21(1)(a) of the Act for exemption from the right of access. While I am satisfied that the weightings as disclosed at pages 505 to 510 of the applicant"s record originated as "advice" or "recommendations" to the respondent, they lost that character when the respondent accepted the "advice" or "recommendations". When he did so, the weightings became the respondent"s "decisions" and ceased to be "advice" or "recommendations" to him. If a separate "record of decision" had been prepared, my conclusion with respect to pages 505 to 510, as opposed to the "record of decision" itself, might have been different. But that scenario is not before the Court. There is no evidence before the Court of any separate "record of decision".
[27]In Telezone13, Madame Justice Sharlow dealt with, among other things, a failure to disclose weightings by the same respondent as in this matter. In the case before her, apparently after discussion with the respondent, "...the percentage weightings were changed on the instructions of the Minister to reflect different priorities". On the facts before Madame Justice Sharlow, the recommendations or advice regarding proposed weightings never acquired the character of ministerial decisions. They never got beyond the stage of being advice or recommendations. Thus, that Madame Justice Sharlow reached a different conclusion than I have reached on the facts of this matter does not represent a difference of interpretation between us.
[28]Madame Justice Sharlow wrote at paragraphs 55 and 56 of her reasons:
| Both applicants argue that the percentage weighting and related material is primarily factual in nature, and thus cannot come within the words "advice or recommendations". The applicants argue that this information is merely part of the factual matrix that formed the basis for recommendations or advice to the Minister, and not statements that recommend a particular course of action. Therefore, the information does not in itself constitute recommendations or advice. The applicants also argue that a policy discussion does not fit within this category unless it presents policy options and recommends a course of action. |
| Dealing with the last point first, it seems to me that a discussion of policy options that concludes with a recommendation is a "recommendation" within the meaning of paragraph 21(1)(a), but "advice" is a much broader concept. In its ordinary sense, "advice" could include the discussion of policy matters or policy options even if there is no suggested conclusion as to the resolution of the policy debate. |
[29]Here there was a specific recommendation as to the resolution of any policy debate that might have been going on surrounding appropriate weightings. I am satisfied that, on the differing facts of this matter, Madame Justice Sharlow's reasoning and my own in these reasons are on all fours. Indeed, Madame Justice Sharlow went on to conclude in paragraph 59 that the weightings that were before here were:
| ...an essential and substantive component of the advice or recommendations made to the Minister in connection with his decision to grant the licenses. It follows that this material is information the Minister may refuse to disclose. |
[30]I would have reached the same conclusion on the facts of this matter had the advice or recommendations regarding weightings not changed character when they were adopted by the respondent as his own decisions. They then ceased to be merely advice or recommendations.
CONCLUSION
[31]Based on the foregoing, and given the flexibility provided to this Court by section 49 of the Act quoted above, my Order herein will require the respondent to disclose to the added party the weightings reflected on pages 505 to 510 of the applicant"s record.
COSTS
[32]Section 53 of the Act provides guidance regarding dispositions of costs in proceedings such as this. It is in the following terms:
53. (1) Subject to subsection (2), the costs of and incidental to all proceedings in the Court under this Act shall be in the discretion of the Court and shall follow the event unless the Court orders otherwise.
(2) Where the Court is of the opinion that an application for review under section 41 or 42 has raised an important new principle in relation to this Act, the Court shall order that costs be awarded to the applicant even if the applicant has not been successful in the result.
53. (1) Sous réserve du paragraphe (2), les frais et dépens sont laissés à l'appréciation de la Cour et suivent, sauf ordonnance contraire de la Cour, le sort du principal.
(2) Dans les cas où elle estime que l'objet des recours visés aux articles 41 et 42 a soulevé un principe important et nouveau quant à la présente loi, la Cour accorde les frais et dépens à la personne qui a exercé le recours devant elle, même si cette personne a déboutée de son recours.
[33]In the light of subsection 53(1), I exercise the discretion of the Court to award to the Commissioner costs as against the respondent. There will be no order as to costs with respect to the added party.
__________________________
Judge
Ottawa, Ontario
January 14, 2000
__________________
1 R.S.C. (1985), c. A-1.
2 [1997] 2 S.C.R. 403.
3 [1998] 2 F.C. 430 (C.A).
4 [1993] 1 F.C. 427 (T.D.).
5 (1999), 99 D.T.C. 5337 (F.C.T.D.).
6 [1999] F.C.J. No. 1859 (Q.L.)(F.C.T.D.). Notice of Appeal filed on 16 December, 1999, Appeal Court File No. A-832-99.
7 Per Strayer J, in Kelly v. Canada (Solicitor General) (1992), 53 F.T.R. 147 at 149, affirmed (1993), 154 N.R. 319 (F.C.A.), Dagg, supra, note 2; Canadian Jewish Congress v. Canada (Minister of Employment and Immigration), [1996] 1 F.C. 268 (T.D.).
8 Volume 4 of the applicant's record comprised of a confidential affidavit and confidential exhibits to that affidavit, pages 474 and 505 to 510.
9 Applicant's record, Vol. VII, Tab B, pp. 12 and 19.
10 Applicant"s Record, Vol. II, Tab 14, pp. 2 and 3.
11 Supra, note 5.
12 Applicant"s Record, Vol. II, Tab 17, p. 2.
13 Supra, note 6.
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