Date: 19991117
Docket: T-648-98
Ottawa, Ontario, the 17th day of November 1999
PRESENT: The Honourable Madame Justice Sharlow
BETWEEN:
3430901 CANADA INC. AND TELEZONE INC.
Applicants
- and -
THE MINISTER OF INDUSTRY CANADA
Respondent
ORDER
| 1. The application is dismissed. |
| 2. The applicants are entitled jointly to a single award of costs on the party and party scale to be assessed in accordance with Column III of the Table to Tariff B unless otherwise agreed. |
Karen R. Sharlow
Judge
Date: 19991117
Docket: T-650-98
Ottawa, Ontario, the 17th day of November 1999
PRESENT: The Honourable Madame Justice Sharlow
BETWEEN:
THE INFORMATION COMMISSIONER OF CANADA
Applicant
- and -
THE MINISTER OF INDUSTRY CANADA
Respondent
ORDER
| 1. The application is dismissed. |
| 2. The applicant is entitled to an award of costs, if demanded, on the party and party scale to be assessed in accordance with Column III of the Table to Tariff B unless otherwise agreed. |
Karen R. Sharlow
Judge
Date: 19991117
Docket: T-648-98
BETWEEN:
3430901 CANADA INC. AND TELEZONE INC.
Applicants
- and -
THE MINISTER OF INDUSTRY CANADA
Respondent
AND
Docket: T-650-98
BETWEEN:
THE INFORMATION COMMISSIONER OF CANADA
Applicant
- and -
THE MINISTER OF INDUSTRY CANADA
Respondent
REASONS FOR JUDGMENT
SHARLOW J.
[1] 3430901 Canada Inc. and its predecessor Telezone Inc. (collectively, "Telezone") have applied under section 41 of the Access to Information Act for judicial review of the refusal of a delegate of the Minister of Industry Canada to disclose certain information requested on January 16, 1996. The Information Commissioner has made an application under section 42 for judicial review of the same refusal.
[2] These reasons were circulated in draft for submissions as to (1) the correctness and completeness of the document references, (2) whether or not the reasons contain any references to material that should remain confidential, and (3) costs. No comments were received on the first item. Counsel for the Minister made some suggestions with respect to the second item, which I accepted over the objection of counsel for the Information Commissioner. The changes made in that regard do not affect the substance of the decision or the reasons. All parties commented on costs.
Background
[3] On June 15, 1995, the Minister invited licence applications from parties interested in providing personal communication services at the 2 GHz frequency range. Six licences were said to be available, three for the 30 MHz block and three for the 10 MHz block. The Minister reserved the right to issue less than that number of licences.
[4] A press release issued on June 15, 1995 said this about the evaluation of applications:1
| Licence applicants will be judged on the extent to which their proposals will provide innovative services, promote market competition and increase choice for Canadian consumers and businesses. The government will ensure that, through this licensing procedure, the tremendous potential for research and development as well as job creation is encouraged for the benefit of all Canadians. |
[5] More details about the licensing requirements were set out in a document entitled "Policy and Call for Applications -- Wireless Personal Communications Services in the 2 GHz Range -- Implementing PCS in Canada" dated June 15, 1995.2
[6] The deadline for applications was September 15, 1995. Seventeen applications were received, including one from Telezone.
[7] The applications were reviewed in detail by an 18 member committee called the "working group," which analyzed the applications against certain evaluation criteria and made its findings known to another committee called the "selection panel." The selection panel consisted of 12 individuals, including senior managers from the spectrum and telecommunications program of Industry Canada. Its function was to rank the applications in accordance with selection criteria and to provide recommendations to the Minister as to which applications should be awarded a licence.
[8] The working group began its work on or about September 18, 1995 and held a three day meeting in Merrickvale, Ontario in November, 1995. Over the course of several days at the end of November, the working group made presentations to the selection panel. These presentations included a verbal report.
[9] The selection panel met for approximately two days in late November and early December, 1995. In addition, from December 1 or 2 to December 15 or 18 there were communications and meetings between the selection panel and the Minister.
[10] On December 18, 1995, the Minister announced that only four licences would be issued, two in each block. Telezone was not issued a licence.
[11] On January 16, 1996, Telezone applied under the Act to compel the disclosure of documents relating to the Minister's decision. The response was not satisfactory to Telezone, which complained to the Information Commissioner. That complaint led to an investigation by the Information Commissioner. There were further disclosures in the course of the investigation. Those disclosures did not satisfy Telezone. Nor did they satisfy the Information Commissioner who, on February 27, 1998, issued a report recommending further disclosure.
[12] The Minister's delegate did not agree with the Information Commissioner's recommendation and continued to withhold portions of 47 documents. That refusal resulted in these two applications.
Applications
[13] The two applications are not parallel. There are 47 documents containing information that the Minister's delegate has refused to disclose. That information will be referred to as the "disputed material." Only part of the disputed material is the subject of the Information Commissioner's application. Most, but not all, of the disputed material that is excluded from the Information Commissioner's application contains information relating to third parties.
[14] Of the 47 documents, only 30 are the subject of Telezone's application. Some of the information Telezone seeks from those 30 documents is not included in the Information Commissioner's application. Also, there is some disputed material in these 30 documents that Telezone no longer wishes to have disclosed. Telezone's application with respect to those parts of the 30 documents has been discontinued.
Preliminary issues
[15] A preliminary issue arises as to the effect, if any, of Telezone's discontinuance with respect to disputed material that the Information Commissioner continues to maintain should be disclosed. The mandate of the Information Commissioner is to protect the interests of the public by ensuring that government organizations fulfil their obligations under the Act. There is no suggestion that this application has been made for any other purpose. For that reason, the application of the Information Commissioner must be considered independently of that of Telezone.
[16] The second preliminary issue relates to third parties. It is obvious from the application record that there are third parties referred to in the disputed material who might have an interest in its disclosure. The Act contains ample provision for notice to third parties, and it appears that all of the other licence applicants were given the required notice. Some of them appeared at hearings of interlocutory matters but none have appeared at the hearing of this application. For that reason, third party interests will be disregarded for the purpose of these applications.
Access to Information Act
[17] The applications are based on subsections 2(1) and 4(1) of the Act, the relevant parts of which read 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. |
| 4(1) Subject to this Act, but notwithstanding any other Act of Parliament, every person [...] has a right to and shall, on request, be given access to any record under the control of a government institution. |
[18] The Act has numerous exceptions to the general right of access to government information. All of these exceptions are subject to the severance rule in 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.3 |
[19] Some of the statutory exceptions to the obligation to disclose are mandatory, in the sense that they prohibit disclosure unless certain conditions are met.4 Others are permissive. They give the head of the government institution the discretion to refuse to make the requested disclosure.5
[20] There are two kinds of permissive exceptions. Some are conditional. They apply only if there is a risk that disclosure might cause loss or harm.6 Others are subject to no such limiting conditions.
[21] The exceptions relied on by the Minister's delegate in this case, paragraphs 21(1)(a) and (b), fall into the category of exceptions that simply give the Minister the discretion to refuse to disclose. They 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, |
| (b) an account of consultations or deliberations involving officers or employees of a government institution, a minister of the Crown or the staff of a minister of the Crown, [...] |
| if the record came into existence less than twenty years prior to the request. |
[22] The threshold question in this case is whether the Minister's delegate erred in concluding that the disputed material meets the description in paragraphs 21(1)(a) or (b). On that question the standard of review is correctness.7 The opinion of the Information Commissioner, while not determinative, is to be given weight appropriate to his expertise in matters relating to the Act, his institutional independence, and his statutory powers of investigation.
[23] If any of the disputed material is found to be outside the scope of the claimed exception, the remedies in section 49 must be considered. Section 49 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 50,8 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. |
[24] In this case, it is agreed that the only appropriate remedy with respect to any of the disputed material that is found to be outside the scope of paragraph 21(1)(a) or (b) is to order disclosure.
[25] With respect to any disputed material that is found to be within the scope of these exceptions, it will be necessary to review the decision of the Minister's delegate to refuse disclosure. If an error is found with respect to the exercise of the Minister's discretion, the only possible remedy is to refer the matter back to the Minister with a direction to consider or reconsider the exercise of his discretion.9 It is open to the court to retain jurisdiction to ensure that the Minister's discretion is exercised in a timely fashion.10
Complaints about the Minister's response to the application for disclosure
[26] The applicants allege several deficiencies in the Minister's response to the request for information, apart from the issues raised as to the characterization of the information and the exercise of the Minister's discretion to refuse to disclose. No specific relief is sought in respect of those deficiencies, and it is not clear precisely how they are intended to bear on the merits of these applications. However, as the Minister has responded to them, some comments are appropriate.
Minutes or other documentation of meetings
[27] The Information Commissioner says that the Minister has produced no documentation in respect of meetings with members of the selection panel and others in the early part of December, 1995. The Minister's response is that no minutes were taken of those meetings, but memoranda and briefing books relating to those meetings were produced. Unless there is a law or legal principle that requires minutes to be kept of meetings (and I was referred to none), the Minister and Ministry officials cannot be faulted for choosing not to keep minutes.
Completeness of the Minister's response
[28] The Information Commissioner says that after the licensing decision was made, a Ministry official tried to gather all of the relevant documentation in one place, apparently in anticipation of a request under the Act. This gathering process continued after the application of Telezone was made. During this process, some documents were destroyed, and no record was kept of what was destroyed.
[29] In addition, Telezone alleges that the individual who was initially assigned to the task of assembling the documents was not sufficiently experienced in such matters, and that this could also have led to the improper destruction of documents.
[30] Telezone also complains that these deficiencies are aggravated by the Minister's refusal to question an individual who had knowledge of these matters but is no longer an employee of the Ministry. The Minister's objection to contacting that individual was put on the record in the course of Telezone's cross-examination of a Ministry official. However, Telezone did not seek a determination of the merits of the Minister's objection. In these circumstances I give little weight to this complaint.11
[31] With respect to the allegation that records were improperly destroyed, the Minister responds with evidence that the only documents that were destroyed were duplicates, and that no documents were lost in this process. He also relies on the portion of the final report of the Information Commissioner dated February 27, 1998, which indicates that the Information Commissioner was satisfied that all documents relevant to Telezone's request had been located and processed, either by being disclosed or exempted. In that report the Information Commissioner also commented on Telezone's complaints about the completeness of the Minister's response, saying:
| ... I conclude that the portion of your [Telezone's] complaint alleging an incomplete response by IC [Industry Canada] is now resolved. |
[32] Apparently the Information Commissioner was satisfied in February of 1998 that the Minister's response was complete. I accept his conclusion on that point.
Timeliness of the Minister's response
[33] Telezone complains that the Minister's staged response to its application for disclosure of documents has consumed over three years, which far exceeds the time allowed by the Act to answer a request for information.
[34] Telezone's request for information was made in January of 1996. In March of 1996, only two documents were released. Telezone continued to press for more disclosure and, shortly after complaining in June of 1996 about the pace of the proceedings, the Minister provided further documents with many deletions. A few days later Telezone initiated its complaint to the Information Commissioner.
[35] The Information Commissioner's investigation started in July of 1996 and resulted initially in a more extensive search. Finally, in May of 1997, a further disclosure consisting of some 108 pages was made. Further correspondence between the Minister and the Information Commissioner resulted in additional disclosures. It was not until February of 1998 that the Information Commissioner issued his final report. The Minister was still resisting the disclosure of some material at that time, and these applications resulted.
[36] This history suggests that until the Information Commissioner became involved, Ministry officials did not fulfil their statutory obligation to find the requested information. I do not know whether their failure was caused by a lack of understanding of their legal obligations, or something else. However, that failure was ultimately remedied by the intervention of the Information Commissioner. It is part of the function of the Information Commissioner to accomplish just that. It is unfortunate that the process took as long as it did, but the Act does not provide a remedy for tardiness.
[37] Once the Information Commissioner's investigation began, progress was made in the disclosure process. Further delay resulted from a continuing debate between the Minister's officials and the Information Commissioner as to the interpretation and scope of the Act, and the basis for the exercise of the Minister's discretion. There is no evidence that the debate was motivated by improper considerations. I find no fault with anyone for the time required for that debate to reach its present state.
The Minister acting contrary to legal advice
[38] Telezone argues that the Minister has maintained the refusal to disclose certain material in the face of a legal opinion that the information should be disclosed. This argument is based on a memorandum prepared by a lawyer from the Department of Justice on December 11, 1995.12 Apparently that memorandum was intended as preliminary advice to Ministry officials in anticipation of a request under the Act. Telezone's request was made the following month.
[39] The Minister objects to Telezone's attempt to rely on a document that is subject to solicitor and client privilege. Telezone does not dispute the validity of the claim of privilege, but points out that this document apparently was produced as a result of a prior court order in these proceedings. I am not persuaded that the applicants can be precluded from relying on this document in support of their application.13 For these reasons, I have considered the memorandum.
[40] I do not read this memorandum as providing any support for the application of Telezone. It is not and does not purport to be an opinion that the disputed material should be disclosed. The author characterizes her comments as abstract, given without knowledge of the actual documents. She says the memorandum is intended to give only a "broad brush view of possible exemptions or exclusions that might apply to the various categories of documents".
[41] The December 11, 1995 memorandum does not indicate any error of law and is not evidence of bad faith on the part of the Minister.
Disputed material
[42] This case turns on the proper interpretation of the statutory exceptions relied on by the Minister. I repeat the relevant portions of subsection 21(1) for ease of reference:
| (a) advice or recommendations developed by or for a government institution or a Minister of the Crown, |
| (b) an account of consultations or deliberations involving officers or employees of a government institution, a minister of the Crown or the staff of a minister of the Crown. |
[43] There is no authority on the meaning of these provisions, though there is some jurisprudence on similar provisions in other statutes.
[44] The interpretation of a statutory exception in the Act must respect the purpose of the Act as stated in subsection 2(1) while at the same time give effect to the purpose of the exception. The right of the public to know the workings of government is not absolute. It must yield to the values sought to be protected by the statutory exceptions.14
[45] The exceptions in paragraphs 21(1)(a) and (b) are aimed at preserving the integrity of the government decision making process.15 The underlying policy consideration is that too much public disclosure could inhibit open and frank communication between government advisers and decision makers.
[46] There was some debate at the hearing about whether and to what extent I should consider the harm that might be caused by disclosure. It was suggested that I should favour disclosure unless I am persuaded that harm would result. I do not agree. Some of the exception provisions in the Act require proof of harm, but paragraphs 21(1)(a) and (b) do not. It would be wrong to impose on the Minister the burden of proving the harm that may arise from disclosure, when the Minister is relying on a statutory exception that imposes no such burden.
[47] I think that the best approach is simply to review the disputed material in light of the evidence as to how and why it came into existence. Once that is understood, it should be possible to determine whether the exception claimed for each particular item should be upheld, based on the language of the exception read in its ordinary sense.
General information about the percentage weighting of criteria applied or to be applied in assessing licence applications, and policy considerations relating to the criteria
[48] This information is found in several documents in Volume 21 of the application record:16 pages 1-12 (Tab 1), pages 38-46 (Tab 3), pages 103-104 (Tab 10), pages 281-284 (Tab 14), pages 286-297 (Tab 15), pages 298-302 (Tab 16), pages 303-305 (Tab 17), page 307 (Tab 18), pages 562-573a (Tab 28), pages 574-577 (Tab 29), and pages 578-593 (Tab 30). The same documents are in Volume 19 of the application record17 pages 16-27, pages 30-38, pages 28-29, pages 533-558, pages 537-550, pages 551-555, pages 556-558, pages 827-839, and pages 840-843. The Minister claims the right to refuse disclosure based on paragraph 21(1)(a).
[49] The licence applicants were provided with general information about the objectives of the licensing program, and the considerations that would be taken into account. However, the relative weight proposed to be given or finally given to the various factors has never been disclosed to the applicants. Nor have they been fully informed of the underlying policy objectives for the various criteria or the manner in which scores were to be determined.
[50] It appears that a member of the working group and his staff developed a particular system of percentage weighting for the various factors, based upon the policy objectives they had identified. Those percentages and discussions of the policy considerations appear on various documents that were circulated to the working group, the selection panel or the Minister. An initial assessment of the applications was done by the working group, based on the original percentage weighting.
[51] After discussions with the Minister, the percentage weightings were changed on the instructions of the Minister to reflect different priorities. The applications were reassessed on the basis of the revised weighting, and the final assessments were communicated to the Minister. The final percentage weighting given to the various criteria formed the foundation for differentiating the applications, and thus affected the Minister's decision on which applicants would be issued licences.
[52] Discussions on the policy considerations, percentage weighting and scoring methods appear on various documents. Parts of those documents have been disclosed, but in each case the percentages and related material have been blanked out.
[53] The Information Commissioner argues that the weighting criteria and related material will, unless disclosed, represent a regime of "working law" or "secret law" that is the very kind of information the Act is designed to expose to public view. He suggests that the quality of public decision making would improve if applicants were given this kind of information. The counter argument is that the quality of public decision making would suffer as free and frank discussion would be inhibited by premature public disclosure.
[54] I have no basis for determining how to attain the best quality of public decision making, but I am not persuaded that I must attempt that exercise. Parliament has already done so. The appropriate balance between disclosure and secrecy is addressed by the Act itself.
[55] 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.
[56] 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.
[57] The Minister argues that the information in issue under this heading is the cornerstone of the advice given to the Minister and represents the collective view of the Minister and his advisers as to the relative importance of the various factors, and the policy reasons for their advice. To characterize this information as being outside the section merely because it is not clearly labelled as "advice" or "recommendations", or because it does not in every case appear in a document that expressly recommends a course of action to the Minister, is to prefer form to content. Each of the documents in which this information appears is fundamentally advisory in nature.
[58] It is not always possible to put "facts", "advice" and "recommendations" in airtight compartments. Many documents have more than one aspect. For example, an official may advise the Minister that a particular criterion ought to be given a particular weighting for a certain policy reason, or recommend that an application with a certain characteristic ought to be awarded a specified number of points. A written record of such advice or recommendation is correctly described as "advice or recommendations" to the Minister even if it is also a record of the fact that the official considered a particular weighting or awarding of points. In such a case, the exception in paragraph 21(1)(a) applies despite the factual aspect of the record.
[59] Based on the source and function of the documents that refer to the weighting percentages and related policy discussions, I have concluded that this information is an essential and substantive component of the advice or recommendations made to the Minister in connection with his decision to grant the licences. It follows that this material is information the Minister may refuse to disclose.
Evaluation of financial plans
[60] This information is found in the document at pages 33-37 (Tab 2) of Volume 21 of the application record.18 A second copy appears at pages 87-91 (Tab 8) of Volume 21. In Volume 19 of the application record,19 the same document appears at pages 11-15. Volume 19 also contains other documents on the same subject at page 75, pages 94-100, and pages 160-166. The Minister claims the right to refuse to disclose based on paragraphs 21(1)(a) and (b).
[61] The principal document in this category is an internal Ministry memorandum dated November 17, 1995 describing the process by which the financial plans of the licence applicants were initially assessed by an official or group of officials consulted by the working group. The memorandum summarizes the relative rankings of the applications with respect to three aspects: supporting data, plausibility and assessment of financial plans.
[62] The applicants argue that the November 17, 1995 memorandum is essentially a factual summary of certain events that occurred in the course of considering the licence applications. Telezone conceded in argument that certain sentences in the memorandum constitute an account of deliberations by Ministry officials within the meaning of paragraph 21(1)(b).
[63] This memorandum describes facts, in the sense that the writer is describing events that occurred. Those events, however, comprise the analysis that the writer and his colleagues and consultants undertook in reaching their conclusions. The entire memorandum is an account of deliberations by one or more government officials. To the extent that it contains advice to the working group as to the merits of the financial aspects of the licence applications, it also falls into the category of advice or recommendations.
[64] The same is true of the other documents in this category.
[65] Some of this information has been disclosed pursuant to the severance rule (section 25, quoted above). The remainder is information that the Minister may refuse to disclose.
Information about the selection of the number of licences to be awarded
[66] This information is found in various documents in Volume 21 of the application record:20 pages 47-65 (Tab 4) (duplicated in Volume 19 of the application record21 at pages 203-221), pages 106-107 (Tab 11) (duplicated in Volume 19 at pages 286-287), and at pages 509-510 (Tab 21). It is also found in volume 19 at page 285. The Minister claims the right to refuse disclosure on the basis of paragraphs 21(1)(a) and (b).
[67] The main document on this subject is a memorandum dated December 8, 1995 from the Deputy Minister to the Minister and others, with three attachments. The subject of the memorandum is the decision to be made by the Minister as to the number of licences to be awarded in the 30 MHz block.
[68] Telezone has indicated that it is no longer interested in having disclosure of the attachments and significant portions of the memorandum. However, the Information Commissioner seeks disclosure of the entire document, except the portions that contain information about third parties. Some of the third party information is information that Telezone continues to seek.
[69] Considering how and when this memorandum came into existence, I have concluded that the memorandum in its entirety is a combination of advice and recommendations and an account of deliberations, and thus is prima facie within the scope of paragraphs 21(1)(a) and (b). However, in light of the different arguments of the parties it is necessary to consider each part in greater detail.
[70] The introductory paragraph informs the Minister that there is a policy decision to be made as to the number of licences to be awarded. As this is inextricably tied to the advice that follows, it is within the scope of paragraph 21(1)(a). Therefore, the information in the first two sentences is information that the Minister may refuse to disclose.
[71] The first paragraph of the second page contains only one sentence that has not been disclosed. I read that sentence as an account of deliberations. The Minister may refuse to disclose it.
[72] The remainder of the second page is also an account of deliberations. The Minister may refuse to disclose it. The top of the third page is a paragraph that forms a bridge between the account of deliberations and the advice or recommendations to the Minister which follow. Given the context, that paragraph is also information that the Minister may refuse to disclose.
[73] The third and fourth page clearly contain advice and recommendations to the Minister. He is informed that there is a policy decision to be made, the options are explained and discussed, and a recommended course of action is stated. The Minister may refuse to disclose that information.
[74] The undisclosed portions of the three attachments are also accounts of deliberations. The Minister may refuse to disclose that information.
[75] Also included in this category is a document that is a copy of a presentation of overhead projection slides summarizing the policy arguments relating to the decision to be made by the Minister as to the number of licences to be awarded. This material was prepared for the selection panel and the Minister, and is clearly within the category of advice or recommendations. The Minister may refuse to disclose them.
[76] There is also an e-mail from a member of the working group to other members. The portion Telezone seeks to have disclosed sets out a preliminary analysis of some of the policy issues to be discussed in formulating the recommendations to the selection panel and thus to the Minister. It is both an account of deliberations by the author and a record of advice and recommendations. The Minister may refuse to disclose it.
Information about the scores awarded to the application of Telezone and the other applicants, and related matters
[77] This information is found at pages 66-72 (Tab 5) of Volume 21 of the application record22 (duplicated at pages 96-102 (Tab 9) of Volume 21). In Volume 19 of the application record,23 it is found at pages 41-42, pages 52-55, page 58, pages 222-228 and pages 674-675. The Minister claims the right to refuse disclosure on the basis of paragraphs 21(1)(a) and (b).
[78] The principal document is a memorandum dated December 15, 1995 from the assistant deputy minister to the Minister and others. Significant parts of this memorandum are conceded by Telezone to be within the scope of paragraph 21(1)(b), and other portions contain information in which Telezone has no further interest. The Information Commissioner submits that the undisclosed portions should all be disclosed, except the portions relating to applicants other than Telezone.
[79] The entire memorandum is intended to convey advice and recommendations to the Minister. In addition, pages 2, 3 and 4 of the memorandum are a rather detailed account of deliberations that preceded the recommendations made.
[80] The portion on page 5 and the top of page 6, entitled "other factors for consideration", is a summary of some additional factors inherent in the applications that the writer thought were important for the Minister to take into account with respect to the applications. I take those summaries to be an account of a specific part of the deliberations.
[81] The remainder of page 6 and page 7, except the last paragraph, consists of a discussion of the implications of the Minister's decision as to the number of licences to be granted in each block. I read that portion of the memorandum as advice or recommendations to the Minister, and thus as information that the Minister may refuse to disclose.
[82] The information in the other documents in this category is similar in content, and therefore is also information that the Minister may refuse to disclose.
Handwritten document dated November 23, 1995 - discussion of evaluation criteria: presentation by working group to selection panel
[83] This document is found at pages 80-85 (Tab 6) of Volume 21 of the application record.24 This document is included in Telezone's application but not in the application of the Information Commissioner. The Minister claims the right to refuse to disclose based on paragraph 21(1)(b).
[84] The document is a handwritten memorandum prepared by a person from the working group to use as speaking notes for a presentation to the selection panel. Most of it has been disclosed except for one cryptic comment which I read as an account of deliberations. The Minister may refuse to disclose it.
Memorandum dated January 5, 1996 - general statements about the applicants made after the licensing decisions were announced
[85] This information is found at pages 229-231 of Volume 19 of the application record.25 It is included in the application of the Information Commissioner but not in the application of Telezone. The Minister claims the right to refuse to disclose based on paragraph 21(1)(b).
[86] The memorandum appears to be a briefing note addressed to the Minister and others giving some background information relating to the licensing decision. Only two sentences in the memorandum are in issue. Both briefly state the reasons for certain conclusions reached with respect to specific aspects of two of the licence applications. I read both statements as an account of deliberations. They do not fall outside that category merely because they were made after the deliberations were concluded. The Minister may refuse to disclose both statements.
Documents containing notes made by various participants in the working group and selection panel as to the scores and other evaluations made on various aspects of the licence applications
[87] This information is found in several documents in Volume 21 of the application record:26 page 86 (Tab 7), pages 127-139 (Tab 12), page 276 (Tab 13), pages 422-436 (Tab 19), pages 505-508 (Tab 20), pages 536-539 (Tab 21), page 540 (Tab 24), pages 541-542 (Tab 25), pages 543-552 (Tab 26), pages 562-573a (Tab 28). Some of the same documents, as well as others, are in Volume 19 of the application record,27 page 417, page 60, page 65, page 67, page 73, page 527, pages 674-676, page 692, pages 721-725, pages 751-758, page 774, pages 798-801, page 802, pages 804-805, pages 810-811, pages 816-821, and pages 827-839. The Minister claims the right to refuse disclosure based on paragraph 21(1)(a).
[88] All of this material is a written record of the conclusions reached by members of the working group and the selection panel at various stages of the evaluation process, with some analysis included in some documents. This material may properly be characterized as an account of deliberations, but as it came into existence as part of the process of preparing advice for the selection panel or the Minister, as the case may be, it also comes within the category of advice or recommendations. It is not relevant that the final advice or recommendation of each person is not recorded in the documents. The Minister may refuse to disclose this information.
Internal Ministry correspondence relating to security arrangements, choice of personnel and procedural matters, including internal circulation of evaluation criteria
[89] The documents containing this material are found at pages 532-535 (Tab 22) and pages 560-561 (Tab 27) of Volume 21 of the application record.28 The Minister claims the right to refuse disclosure based on paragraphs 21(1)(a) and (b).
[90] These documents disclose that careful consideration was given to questions of the security and fairness of the deliberative process. They are ancillary to the decisions as to the granting of the licences, but are no less important.
[91] The fact that these documents embody the discussions of the procedural issues of concern to Ministry officials mark them as accounts of deliberations. As well, they apparently formed the basis of advice to the Minister on procedural matters. On either ground the Minister may refuse to disclose them.
Review of the exercise of the Minister's discretion
[92] I have found that all of the disputed material is within the scope of paragraph 21(1)(a) or (b). Now I must go on to consider the question of the exercise of the Minister's discretion to refuse to disclose.
[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.29 |
[94] The application record contains no evidence that the Minister's discretion was exercised in bad faith or on any basis that is not rationally connected to the object of section 21(1)(a) or (b). However, the applicants say that is not fatal to their application. They point to the absence of any affidavit filed by or on behalf of the Minister that is capable of proving the basis on which the Minister's delegate justified the exercise of his discretion to refuse disclosure of the disputed material, or even proving that the Minister's delegate put his mind to the question of his discretion. They argue that because there is no such affidavit, their applications should succeed. They rely on section 48 of the Act, which reads as follows:
| 48. In any proceedings before the court arising from an application under section 41 or 42, the burden of establishing that the head of a government institution is authorized to refuse to disclose a record requested under this Act or a part thereof shall be on the government institution concerned. |
[95] If the interpretation of the applicants is correct, there would be no need to consider the meaning of paragraph 21(1)(a) or (b), or to attempt to determine what material comes within it. On their reading of section 48, these applications should be allowed for no reason other than the absence of an affidavit by a Ministry official specifically attesting to facts that are capable of proving the propriety of the exercise of the Minister's discretion.
[96] Normally, the burden of proving facts alleged by an applicant for judicial review is on the applicant. Section 48 reverses that burden with respect to an application under section 41 or 42 to compel disclosure of information. Section 48 would apply, for example, to the proof of facts relating to the applicability of a statutory exception to a particular document. It would also apply, in the case of a conditional exception, to the proof of the facts establishing that the condition has been met. That is because it is only by virtue of a statutory exception that the head of a government institution is "authorized to refuse to disclose" a document.
[97] But the applicants wish to take section 48 further. They seek to have section 48 applied to the proof of facts that are relevant to the propriety of the exercise of a discretionary refusal to disclose. In essence, they are arguing that even if the Minister successfully proves that a certain document is within the scope of paragraph 21(1)(a) or (b), that does not establish that he is "authorized to refuse to disclose" the document. In other words, the applicants are saying that the Minister has no authority to refuse to disclose a document unless he has made an error-free decision as to whether or not to exercise his authority to refuse to disclose it. The circularity of that reasoning is apparent. I cannot accept it.
[98] As I read section 48, the Minister's right to refuse to disclose particular information is established when it is established that the information comes within a statutory exception.
[99] Even if the applicants are correct with respect to the scope of section 48, they overstate the obligation placed on a party that has the burden of proof.
[100] In an application for judicial review of a discretionary decision, the applicant normally has the burden of proving that the decision was improper in some respect. If the normal burden of proof were applied to the discretionary aspect of a decision to refuse to disclose information, the application will succeed only if the evidence relating to the exercise of the Minister's discretion establishes that the Minister erred in some respect. If the applicants are correct in their argument that the Act places the burden of proof on the Minister, the application will succeed unless the evidence relating to the exercise of the Minister's discretion proves there is no error.30
[101] The important point, however, is that wherever the burden of proof lies, all of the evidence must be considered. Thus, even if the applicants are correct and the burden of proof is on the Minister with respect to the discretionary aspect of his decision to refuse to disclose, he is not precluded from meeting that burden through evidence adduced by others.
Evidence relating to the exercise of the Minister's discretion
[102] There are documents in the application record relating to the exercise of the Minister's discretion. Among those documents is a letter dated December 8, 199731 from a Ministry official to the Information Commissioner which, if accepted as a true reflection of the facts relating to the exercise of the Minister's discretion, would indicate that the Minister's discretion under section 21 was exercised in good faith and on a rational basis. That letter reads in part as follows:
| The department appreciates fully that section 21 is discretionary in nature. Accordingly, it spent many hours analyzing documents on a line-by-line basis before deciding to exempt information. |
| Further to your request, we have again reviewed the documents in detail once again to determine whether additional information should be released through the exercise of discretion. The department is releasing additional information. In some instances, it is doing so despite questioning whether the relevant information can be said to be reasonably severable for purposes of section 25 of the Act. |
| The department continues to claim legitimate exemptions under section 21 in respect of certain information. Not only does this information meet the class test requirements of section 21, its disclosure would have an inhibiting effect on the candour of the advice that the department provides to the Minister in the exercise of his discretion under the Radiocommunication Act. |
| In our view, it is important that when advice is given on sensitive matters such as the licensing of PCS applicants, it may be given in complete confidence. Indeed, disclosure of such advice would certainly jeopardize future licensing processes. |
[103] In addition, there are internal Ministry documents predating that letter that discuss the possibility of the potential harm to the integrity of the decision making process that might result from disclosure.32 There is also an extensive discussion of the factors relevant to the discretionary aspects of section 21 in a letter dated July 4, 1997 from a Ministry official to the Information Commissioner.33
[104] The authenticity of those documents is not in doubt. The problem is that they are in the application record only by virtue of being appended to affidavits adduced on behalf of the Information Commissioner. Those affidavits merely identify the documents as having been provided to the Information Commissioner by Ministry officials. As the documents contain statements made to the Information Commissioner, or by one Ministry official to another, they are capable of proving that those statements were made. But they are hearsay in so far as they are relied upon to prove the truth of the statements. Thus, the only evidence on the application record relating to the propriety of the exercise of the Minister's discretion is hearsay.
[105] The applicants argue that these documents are inadmissible to prove the truth of their contents because they are hearsay. I do not agree. Hearsay evidence cannot be rejected out of hand. But it should not be accepted without considering whether it is necessary and reliable: Ethier v. Canada (R.C.M.P., Commissioner), [1993] 2 F.C. 659 (C.A.). If it is accepted, the fact that it is hearsay merely goes to its weight.
[106] As to necessity, it appears that there are two individuals who were aware of the facts relating to the exercise of the Minister's discretion in this case. During the period when the affidavits filed in this application were the subject of cross-examination, both of those individuals were on sick leave and one, the more senior person who was the Minister's delegate in matters relating to access to information, had applied for early retirement. Thus, the direct evidence of the two people with the best knowledge of the facts was not available when it was needed for this application. The current delegate of the Minister was cross examined by the applicants, but she had no direct knowledge of the facts relating to the exercise of discretion in this case. If "necessity" is a condition precedent to the admissibility of these documents for the proof of their contents, that condition has been met.
[107] Even if it were questionable whether the test of necessity had been met, I do not think that is a precondition to accepting the hearsay evidence. Rather, necessity is a factor I must consider against the circumstances of the entire case, including the factor of reliability.
[108] The reliability of these documents as proof of the truth of their contents may be questionable on several grounds. They are untested by cross-examination. In addition, they were created in the course of the Information Commissioner's investigation, and thus may be read as instruments of advocacy rather than simple recitations of fact, as an affidavit would be. One is led to wonder whether the Ministry officials, in the course of responding to the complaint filed with the Information Commissioner, found some unfavourable evidence on the question of the exercise of the Minister's discretion and for that reason decided to avoid cross-examination by adducing no evidence on the point. An affidavit of a Ministry official would have allayed any such suspicion.
[109] On the other hand, it is important to bear in mind the particular circumstances of this case. Before these applications were commenced, the Information Commissioner exercised the extensive powers of investigation given to him in the Act. The record clearly establishes that the Information Commissioner had knowledge of these very documents before completing his recommendation and commencing this application. That must be so, because questions related to the exercise of the discretion to refuse to disclose information are an integral part of the Information Commissioner's investigation.34
[110] Yet there is no suggestion in the application record that the Information Commissioner believed that these documents contain any false statements of fact (though of course he maintains his disagreement with the legal analysis they contain). Nor has the Information Commissioner alleged any impropriety in the exercise of the Minister's discretion or provided any evidence that is capable of establishing such impropriety. The Information Commissioner, like Telezone, is relying solely on the absence of an affidavit submitted by or on behalf of the Minister.
[111] From this I infer that the Information Commissioner's investigation disclosed no evidence that the Minister's discretion was improperly exercised, and that it is probable that no such evidence exists. In these circumstances it seems excessively formalistic to disregard the documents referred to above merely because they are hearsay.
[112] I conclude that these documents more likely than not reflect the reasons for the Minister's decision not to disclose the disputed material. They support the Minister's assertion that his discretion was exercised in good faith and for reasons that are rationally connected to the purpose of the statutory exceptions relied on. There is no evidence to the contrary. On that basis, I conclude that the Minister's discretion was properly exercised.
Conclusion
[113] For the reasons above, I will dismiss the application.
[114] Although both applicants were unsuccessful, they seek costs on the basis of subsection 53(2) of the Act, which reads as follows:
| 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. |
[115] Both applicants argue that this provision should apply in this case because the interpretation of paragraphs 21(1)(a) and (b) has not been previously considered by this Court.
[116] Counsel for the Information Commissioner also points out that this case raises important questions of principle: the severance of facts from "advice or recommendations", the issue of whether weighting criteria and similar matters represent a regime of working law or secret law that should be excluded from "advice or recommendations". He also points out, correctly in my view, that subsection 53(2) is intended to encourage the Information Commissioner and other applicants to bring such questions before the Court.
[117] Counsel for the Minister does not agree that this is an appropriate case for the application of subsection 53(2), but does not explain why.
[118] This case involved questions of the interpretation of paragraphs 21(1)(a) and (b) that have not been considered before. Those questions are not particularly difficult, as they basically turn on a plain reading of the statute, but in my opinion they are important in relation to the Act. It follows that the applicants are entitled to an award of costs pursuant to subsection 53(2) even though their applications were not successful.
[119] Counsel for the Minister argues that I may and ought to use my discretion under Rule 400(3) to award only one set of costs because the two applications raised substantially the same issues. He also suggests that the quantum should be reduced to a nominal amount to take into account the result of the application and the fact that many interlocutory matters were resolved on consent or involved third parties who were represented by counsel.
[120] Counsel for the Information Commissioner argues that I am not entitled to exercise any discretion under Rule 400(3) because the applicants are entitled to an award of costs by virtue of the statute, not the Federal Court Rules. I am not sure that the exercise of discretion under Rule 400(3) would necessarily be inconsistent with subsection 53(2), as long as it does not deprive an application of an award of costs merely because of lack of success.
[121] However, I do not need to consider that question because I agree with counsel for Telezone that the appropriate basis for costs in this case is on the party and party scale to be assessed in accordance with Column III of the Table to Tariff B unless otherwise agreed.
[122] I also agree with counsel for the Information Commissioner that each applicant is entitled to its own award of costs: Bland v. National Capital Commission, [1993] 1 F.C. 541 (C.A.) and should not be required to share a single award. That is to say, the Information Commissioner is entitled to an award of costs on the basis that his application is independent of the application of Telezone. 3430901 Canada Inc. and its predecessor Telezone Inc. are entitled jointly to a single award of costs.
[123] Finally, I accept the suggestion of counsel for the Information Commissioner that the award of costs to the Information Commissioner should be made subject to a demand, as was done in the Bland case.
Karen R. Sharlow
Judge
Ottawa, Ontario
November 17, 1999
__________________
1Exhibit 20, Affidavit of Ilona Anderson dated May 22, 1998.
2Exhibit 21, Affidavit of Ilona Anderson dated May 22, 1998.
3It is established that the severance rule overrides all statutory exceptions: Rubin v. Canada Mortgage and Housing Corp. , [1989] 1 F.C. 265 (C.A.).
4Section 13 (government information obtained in confidence), section 19 (personal information), section 20 (third party information relating to trade secrets and other commercial matters), and section 24 (information the disclosure of which is restricted by any of the statutes listed in Schedule II).
5Section 14 (information relating to federal-provincial affairs), section 15 (information relating to international affairs and defence), section 16 (information relating to law enforcement and investigations), section 17 (information relating to the safety of individuals), section 18 (information relating to the economic interests of Canada), section 21 (information relating to government operations), section 22 (information relating to testing or auditing procedures) and section 23 (information that is subject to solicitor and client privilege).
6Such limiting conditions to discretionary exceptions are found in sections 14, 15, paragraphs 16(1)(c) and (d), subsection 16(2), section 17, section 18 and section 20.
7Canadian Council of Christian Charities (1999), 99 D.T.C. 5337 (F.C.T.D.) ; Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403.
8Section 50 refers to section 14, section 15, and paragraphs 16(1)(c), 16(1)(d) and 18(d). The Minister is not relying on any of these provisions in this case.
9Canadian Council of Christian Charities, supra; Kelly v. Canada (Solicitor General) (1992), 53 F.T.R. 147 (T.D.), affirmed 154 N.R. 319 (C.A.), Dagg, supra; Canadian Jewish Congress v. Canada (Minister of Employment and Immigration), [1996] 1 F.C. 268 (T.D.).
10See, for example, Canada (Information Commissioner) v. Canada (Immigration and Refugee Board) (1997), 140 F.T.R. 140.
11Canada (Information Commissioner of Canada) v. Canada (Minister of National Defence) (1999), 240 N.R. 244 (C.A.), affirming (1996), 120 F.T.R. 207 (T.D.).
12Page 20, Respondent's Confidential Application Record (Volume 24 of the application record).
13Section 23 of the Act does not apply, as this document is not covered by the application.
14Canadian Council of Christian Charities, supra.
15Canada (Information Commissioner) v. Canadian Radio-television and Telecommunications Commission, [1986] 3 F.C. 413 (F.C.T.D.).
16Volume I of II, confidential application record of Telezone.
17Amended Confidential Annex "C" to the Information Commissioner's Memorandum of Fact and Law.
18Volume I of II, confidential application record of Telezone.
19Amended Confidential Annex "C" to the Information Commissioner's Memorandum of Fact and Law.
20Volume I of II, confidential application record of Telezone.
21Amended Confidential Annex "C" to the Information Commissioner's Memorandum of Fact and Law.
22Volume I of II, confidential application record of Telezone.
23Amended Confidential Annex "C" to the Information Commissioner's Memorandum of Fact and Law.
24Volume I of II, confidential application record of Telezone.
25Amended Confidential Annex "C" to the Information Commissioner's Memorandum of Fact and Law.
26Volume I of II, confidential application record of Telezone.
27Amended Confidential Annex "C" to the Information Commissioner's Memorandum of Fact and Law.
28Volume I of II, confidential application record of Telezone.
29Per Strayer J. in Kelly, supra , at 149. These comments were quoted with approval in the dissenting reasons of La Forest J. in Dagg, supra, at 457-8. The question of the standard of review of a discretionary decision to refuse disclosure was not addressed by the majority decision (by Cory J.) except to express agreement with La Forest J.'s conclusion that such a decision is not to be reviewed on a de novo standard of review.
30The remedy, however, would be an order requiring the Minister to consider or reconsider the exercise of his discretion. Section 48 does not displace the general principle that the discretion is the Minister's to exercise.
31Affidavit of Ilona Anderson sworn April 9, 1998, Exhibit 9, found at pages 244-6 of Volume 23 of the application record.
32Affidavit of Ilona Anderson sworn May 22, 1998, Exhibit C-3 (pages 15-17 of Volume 24 of the application record), Exhibit C-4 (pages 18-21 of Volume 24).
33Affidavit of Ilona Anderson sworn May 22, 1998, Exhibit A-4 (page 5 of Volume 24 of the application record).
34Canada (Information Commissioner) v. Canada (Minister of National Defence), supra; Davidson v. Canada (Attorney General), [1989] 2 F.C. 341 (C.A.).
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