Date: 20001005
Docket: T-1474-99
T-1477-99
Between: SHELDON BLANK,
Applicant,
- and -
THE MINISTER OF THE ENVIRONMENT,
Respondent.
REASONS FOR ORDERS
Muldoon, J.
[1] These applications are made pursuant to section 41 of the Access to Information Act, R.S.C. 1985, Chap. A-1 (the Act), for judicial review of the refusals by the head of Environment Canada to disclose records requested by the applicant by access requests dated 20 November 1998 and 5 January 1999. They were heard together in Winnipeg.
Facts
[2] While the law may be presented simultaneously for both matters, the facts must remain separate in order to ascertain all of the relevant issues.
Access Request of 20 November 1998 (T-1474-99):
[3] Without chronologically detailing the search process undertaken, the main facts are as follows. On 20 November 1998, the applicant, Sheldon Blank, requested specific documents under the Act relating to himself and his company, Gateway Industries Ltd., from Environment Canada (EC). The information he sought included a search of deleted e-mails. Environment Canada acknowledged receipt of this request, but, on 30 November 1998, informed the applicant that the Information Technology department estimated that the e-mail search would entail approximately 575 hours (15 weeks) of work. Therefore, the search would be subject to the $10.00/hour fee as prescribed by subsection 11(2) of the Act. Despite the fee exemption for the first five hours of work, the total cost to the applicant would be $5,700.00. EC required a deposit of 50% before the search would be undertaken. On 8 December 1998, the applicant faxed a response to EC asking it to delete the e-mail search from his original request and stated that if he deemed it necessary following receipt of the paper search, he would pay the fee "at that time." At no time did he reassert the e-mail search request nor did he ask the head of EC to waive the fee as permitted under subsection 11(6) of the Act.
[4] On 13 January 1999, EC informed the applicant that the requested material was ready for release. A proviso stating: "Please note that some information is being withheld pursuant to subsection 19(1) of the Act" was included in relation to one document. The applicant received the requested information on 14 January 1999. On 25 January 1999, the applicant registered a complaint with the Information Commissioner based on the assertion that he "was positive that there were many more records with Environment Canada." The applicant asserted that he had not been provided with the minutes from a number of committee meetings nor any of the communications directly related to them. When asked by a Commission investigator to provide "concrete evidence" of this belief, the applicant stated that he was unable to do so. However, the applicant made a point of conveying his distrust of any information obtained by the investigator from EC, because "they have a record of withholding inappropriately." The Information Commissioner did not support the complaint, and informed the applicant of the decision on 5 July 1999.
[5] The applicant seeks the release of all minutes from FPLC (Federal Provincial Liaison Committee) meetings, not previously released, and any related documents. The applicant also seeks the release of any deleted e-mails to be provided at no charge.
Access Request of 5 January 1999 (T-1477-99):
[6] On 5 January 1999, the applicant made a request under the Act for any information pertaining to six named EC employees, any communications between them, from them, or to them, in relation to himself and/or his company. On 29 January 1999, the applicant received notification that despite a thorough search, no records could be located in relation to his request. On 26 January 1999, the applicant lodged a complaint with the Information Commissioner as he "was positive that there were records with Environment Canada concerning this request." When given the opportunity to provide the investigator with "concrete evidence" of this allegation, the applicant was unable to do so. The Information Commissioner informed the applicant on 20 July 1999, that his complaint was found to be not substantiated.
[7] On 17 June 1999, the EC document search related to the complaint investigation discovered that all but one of the documents requested by the applicant had already been released to him in relation to a different access request. The one document not previously released was provided to the applicant on 30 September 1999.
[8] The applicant seeks the further search for, and release of all of the records which he is certain exist, but have not been provided to him.
Jurisprudence
Jurisdiction and Refusal
[9] Section 41 of the Act states:
| Any person who has been refused access to a record requested under this Act or a part thereof may, if a complaint has been made to the Information Commissioner in respect of the refusal, apply to the Court for a review of the matter ... |
This indicates, as does the wording of sections 49 and 50, that judicial review is available only where there is an actual or constructive refusal of access continuing at the time of the hearing in Court. Without a refusal, the Court lacks the jurisdiction to grant a remedy, since the only one available is that of an order to disclose.
Constructive or "deemed" refusals were discussed in X. v. Canada (Minister of National Defence) (1991), 41 F.T.R. 73 (F.C. T.D.).Mr. Justice Strayer stated that a
| refusal of access is a condition precedent to an application under those sections and the only matter to be remedied by the Court where it finds for the applicant ... the only remedy the Court can give is to order disclosure and such an order is not available if disclosure has already taken place. |
In assessing the validity of the claim, Strayer, J. went on to state:
| unless there is a genuine and continuing refusal to disclose and thus an occasion for making an order for disclosure or its equivalent, no remedy can be granted by this Court ... it is not the role of the Court to immerse itself in the reasonability of the conduct of the internal affairs of a government department in matters of access to information, except where a genuine and continuing refusal or deemed refusal of access can be demonstrated. |
In concluding, the Court found the application to be "frivolous and vexatious because its futility should have been amply evident to the applicant."
[11] In further consideration of the refusal issue, the jurisprudence asserts that where an applicant claims that documents are being withheld, there must exist some evidence of the fact beyond mere suspicion. In Creighton v. Canada (Superintendent of Financial Institutions), [1990] F.C.J. No. 353 (F.C. T.D.), this Court stated with regard to acting on suspicion:
| There may be a suspicion in his mind - and it may be a reasonable suspicion - that there could be more material in the hands of the respondent, but ... the Court simply cannot operate on suspicion. Suspicion is something which is communicated to a good investigator who turns up evidence. The Court will act on evidence but not on suspicion. |
Search Fee
[12] With regard to the issue of the requested search fee, the Act states:
| 11. (2) The head of a government institution to which a request for access to a record is made under this Act may require, in addition to the fee payable under paragraph (1)(a), payment of an amount, calculated in the manner prescribed by regulation, for every hour in excess of five hours that is reasonably required to search for the record or prepare any part of it for disclosure, and may require that the payment be made before access to the record is given. |
Section 7 of the Access to Information Regulations, SOR/83-507, clearly sets out the guidelines by which fees are assessed in relation to access requests. In the specific case of a non-computerized record:
| (2) Where the record requested pursuant to subsection (1) is a non-computerized record, the head of the government institution may, in addition to the fee prescribed by paragraph (1)(a), require payment in the amount of $2.50 per person per quarter hour in excess of five hours that is spent by any person on search and preparation. |
[13] Regarding the requested waiver, subsection 11(6) provides:
| The head of a government institution to which a request for access to a record is made under this Act may waive the requirement to pay a fee or other amount or a part thereof under this section or may refund a fee or other amount or a part thereof paid under this section. |
This Court has considered the issue and stated:
| The applicant filed complaints with the information Commissioner who, after investigation, concluded that searches ... are subject to S. 11 fees and that the deposits requested by the respondents are authorized by the statue and are reasonable given the magnitude of the necessary searches. |
...
| Accordingly, the respondents have the statutory authority to require payment of the deposits in this case, before proceeding with the applicant's request for access. [Rubin v. Canada (Minister of Finance) (1987), 35 D.L.R. (4th) 517 (F.C. T.D.)] |
Introduction of the Supplementary Affidavit
[14] Finally, on the issue of the introduction of the applicant's supplementary affidavit at such an advanced stage of the review, the very recent decision of Mr. Justice Pelletier in Sierra Club of Canada v. Canada (Minister of Finance) (T.D.), [2000] 2 F.C. 400 (T.D.) outlines a clear test.
| [5] Whether the introduction of the documents will serve the interests of justice and assist the Court is [...] a question of relevance.[...] If the documents will permit the Court to have before it evidence which is material to an issue to be decided, then it can be said that the interests of justice are served, unless prejudice to another party can be shown. |
The additional material all originated with the respondent who could hardly be prejudiced by it. The applicant sought leave pursuant to rule 312, but the Act imposes no limitation in this regard. The supplementary affidavit ought to be admitted, for which, leave is accorded.
Analysis
Jurisdiction and Refusal
[15] The primary issue in this matter is whether this Court has the jurisdiction to grant a remedy should the action be determined in the applicant's favour. As has been discussed in relation to the jurisprudence, it would appear that this is not the case. In both matters brought by the applicant, there has been no actual or constructive denial of access to information. In the first action (T-1474-99), the applicant was given everything EC could recover - save for the deleted e-mails no longer sought by the applicant. There has been no refusal of access, and therefore this Court has no remedy to grant because the legislation does not provide for an order of a "more thorough search and disclosure."
[16] The applicant has brought these applications because he has a strong suspicion that EC is withholding information. However, despite being given every opportunity to do so, he has been unable to provide any "concrete evidence" to support this allegation. In fact, several of the meetings for which he is seeking the minutes have been shown never to have taken place. This serves to undermine the claim even further. Whatever it is which has led the applicant to assume that EC is inappropriately refusing to disclose information about the applicant or his company, the allegations remain unfounded suspicions and nothing more. As was held a decade ago: "The Court will act on evidence but not on suspicion."
[17] With regard to the second matter (T-1477-99), again, there has been no refusal to disclose information. This matter reflects more of the applicant's displeasure regarding how the search for documents was conducted, rather than his inability to access the requested information. There has been no formal or constructive refusal expressed. Moreover, although the applicant registered a complaint with the Information Commissioner, during the second document search EC noted that the information requested by the applicant had already been disclosed to him in relation to a different access request. The only document which had not been previously disclosed was forwarded to the applicant on 30 September 1999. Thus, there cannot be a refusal of access where access has already been granted.
[18] With regard to both matters, the applicant is convinced that EC is purposely preventing him from having access to all the documents that relate both to him and his company. However, there is no evidence of this beyond his suspicion. While EC may not have been the most efficient in gathering the information, especially in relation to T-1477-99, the numerous access requests made by the applicant have confused the file searches in that much of the information overlaps. Thus, one may wish to adopt the question posed by the respondent: why would anyone wish to pay to have documents provided when a copy of them is already in the possession of the seeker?
[19] In determining whether this Court has the jurisdiction to remedy this alleged situation, one must consider what the real issue is. The applicant has been accused by EC of practices which violate environmental regulations, thus, he is approaching this situation from a position of defensiveness and mistrust, as is his undeniable right. However, he cannot demonstrate any actual occurrences of refusal of access (except for the one stated exemption claimed in accordance with section 19) nor is he able to provide any evidence to support his suspicions. Therefore, without any substantial support for these allegations, the request for judicial review must be dismissed for lack of jurisdiction as the legislation provides for no available remedy in the immediate situation.
Search Fee
[20] Both the Act and the Regulations permit the requirement of an additional fee in relation to the search and preparation of information sought in an access request. Moreover, they clearly state that the head of an institution is able to require a deposit in the event that such a fee should arise. In considering whether the requested fee of $5,700.00 and a 50% deposit is reasonable, one must contemplate the particular request which was made.
[21] The applicant sought information which he suspected could be contained in e-mail form. However, e-mails are regularly deleted by system users and as such are virtually impossible to reproduce for access requests. In addressing the request for a search of such deleted e-mails, the Information Technology department of EC had to consider: the system and software in use; the manner of search which was to be undertaken; the length of time the e-mails are in the system before being purged; the potential restrictions on the search; and, the number of hours required to complete the task. From the people who know the system the best came an estimate of 575 hours or 15 weeks of work for one person to be able to fulfil the applicant's request. Not only would this require an extension of time to be requested for the fulfilment of the entire request, but it would occupy one employee with a single project for almost four months, thus creating a strain on the Information Technology department of EC. In circumstances such as these, it is quite reasonable to request that the additional fee be provided.
[22] The applicant claims that because he has a right to access whatever information may be contained in the deleted e-mails, the head of EC should waive the fee. He bases this on the assertion that the "exorbitant" fee was imposed as a means by which to deter his search. However, while the 50% deposit may be excessive, the waiver of the fee is just as unrealistic. In forcing the e-mail search, the applicant is virtually "commandeering" an EC employee for his own purposes for a significant period of time. Moreover, one must note the feasibility of a search in a system which maintains deleted e-mails for a period of only five weeks. Thus, unless there is an ongoing discussion regarding the applicant and his company, it is highly unlikely that the required four-month search would be useful.
[23] Finally, the jurisprudence and the legislation both provide that the head of an institution may waive the fee. This language indicates a permissive approach rather than a mandatory one. Thus, it remains within the discretion of the institution head to weigh the magnitude of the request with the amount of time and effort needed to provide the information, and then to determine whether the imposition of a fee is required to ascertain the conviction of the applicant. The deposit serves only to reinforce the level of commitment the applicant has to a request, especially when a significant amount of time and effort is to be invested. Certainly, the asked-for deposit is lawful.
Introduction of the Supplementary Affidavit
[24] The attempt to introduce a supplementary affidavit at such an advanced stage of proceedings is often a contentious issue. However, in this situation the test enunciated by Pelletier, J. is of great assistance.
[25] The applicant is attempting to introduce the 158 pages produced to him by EC as evidence in support of the missing documents alleged in T-1474-99. While they are not particularly illustrative, the supplementary affidavit is material to an issue to be decided and thus serves the interests of justice. Furthermore, the issue of prejudice is practically moot when the material being introduced was given to the applicant by the respondent. The respondent is, therefore, aware of the contents of the material and how it relates to the issue. Thus, while it does not provide clear evidence of a refusal to provide information, the respondent will not be prejudiced by the introduction of the applicant's supplementary affidavit.
Conclusion
[26] Despite the fact that the applicant's supplementary affidavit may be introduced with little or no prejudice to the respondent, it becomes a moot point if the Court lacks the requisite jurisdiction to hear these matters. As was previously discussed, the Act provides only for remedies in the face of a refusal to grant access to information. That is not the case before this Court. What this Court is being asked to find, and ultimately to remedy, is that the respondent was remiss in its attempts to locate the requested information and further attempted to discourage a complete search by requesting an "exorbitant" fee for an examination of deleted e-mails. However, the applicant made no complaint regarding the amount requested until this matter appeared before this Court. Moreover, the fee required is entirely within the bounds of one calculated in accordance with the Regulations. Essentially, the applicant is unhappy with the information he received and is asking this Court to order a more thorough search of EC files.
[27] Secondly, the information which the applicant claims to have been refused has either been previously produced to him or does not exist. No evidence has been presented which evinces that the situation is otherwise. Therefore, because there has been no proved formal or constructive refusal of access to information, this Court is left with no possible remedy to accord, and the application for judicial review must be dismissed for lack of jurisdiction. Moderate costs should follow this result.
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1474-99 and T-1477-99
STYLE OF CAUSE: SHELDON BLANK
v. MINISTER OF THE ENVIRONMENT
PLACE OF HEARING: WINNIPEG, MANITOBA
DATE OF HEARING: MAY 29, 2000
REASONS FOR ORDER OF MULDOON J.
DATED: OCTOBER 5, 2000
APPEARANCES:
| SAUL SCHACHTER REPRESENTING THE APPLICANT |
| BRIAN HAY REPRESENTING THE RESPONDENT |
SOLICITORS OF RECORD:
| SAUL SCHACHTER FOR THE APPLICANT |
WINNIPEG, MANITOBA
| MORRIS ROSENBERG FOR THE RESPONDENT |
DEPUTY ATTORNEY
GENERAL OF CANADA
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