Canada (Attorney General) v. Canada (Information Commissioner)

Canada (Attorney General) v. Canada (Information Commissioner)
Court (s) Database
Federal Court Decisions
Date
2004-03-25
Neutral citation
2004 FC 431
File numbers
T-582-01
Notes
Reported Decision
Decision Content
Date: 20040325
Docket: T-582-01
Citation: 2004 FC 431
BETWEEN:
THE ATTORNEY GENERAL OF CANADA and
BRUCE HARTLEY
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-606-01
THE ATTORNEY GENERAL OF CANADA,
and JEAN PELLETIER
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-1640-00
THE ATTORNEY GENERAL OF CANADA
and BRUCE HARTLEY
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-1641-00
THE ATTORNEY GENERAL OF CANADA,
MERIBETH MORRIS, RANDY MYLYK and EMECHETE ONUOHA
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA and
DAVID PUGLIESE
Respondents
and
Docket: T-792-01
THE ATTORNEY GENERAL OF CANADA
and JEAN PELLETIER
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-877-01
THE ATTORNEY GENERAL OF CANADA
and RANDY MYLYK
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-878-01
THE ATTORNEY GENERAL OF CANADA,
and THE HONOURABLE ART C. EGGLETON
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-883-01
THE ATTORNEY GENERAL OF CANADA
and EMECHETE ONUOHA
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-892-01
THE ATTORNEY GENERAL OF CANADA
and MERIBETH MORRIS
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-1047-01
THE ATTORNEY GENERAL OF CANADA
and SUE RONALD
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-1254-01
THE ATTORNEY GENERAL OF CANADA
and MEL CAPPE
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-1909-01
THE ATTORNEY GENERAL OF CANADA,
THE HONOURABLE ART C. EGGLETON,
GEORGE YOUNG and JUDITH MOONEY
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-684-01
THE ATTORNEY GENERAL OF CANADA and BRUCE HARTLEY
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-763-01
THE ATTORNEY GENERAL OF CANADA and JEAN PELLETIER
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-880-01
THE ATTORNEY GENERAL OF CANADA and RANDY MYLYK
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-895-01
THE ATTORNEY GENERAL OF CANADA and MERIBETH MORRIS
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-896-01
THE ATTORNEY GENERAL OF CANADA and EMECHETE ONUOHA
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-1049-01
THE ATTORNEY GENERAL OF CANADA and SUE RONALD
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-1255-01
THE ATTORNEY GENERAL OF CANADA and MEL CAPPE
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-1448-01
THE ATTORNEY GENERAL OF CANADA and
THE HONOURABLE ART C. EGGLETON
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-1910-01
THE ATTORNEY GENERAL OF CANADA and
THE HONOURABLE ART C. EGGLETON
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-2070-01
THE ATTORNEY GENERAL OF CANADA and
THE HONOURABLE ART C. EGGLETON
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-801-01
THE ATTORNEY GENERAL OF CANADA and JEAN PELLETIER
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-891-01
THE ATTORNEY GENERAL OF CANADA and
THE HONOURABLE ART C. EGGLETON
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-1083-01
THE ATTORNEY GENERAL OF CANADA and MEL CAPPE
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
REASONS FOR ORDER
DAWSON J.
[1] These 25 applications for judicial review raise significant issues relating to the conduct of investigations by the Information Commissioner ("Commissioner") pursuant to the Access to Information Act, R.S.C. 1985, c. A-1 ("Act"). Specifically, various applicants put in issue: the jurisdiction of the Commissioner to put certain questions to individuals summoned by subpoena to give evidence before the Commissioner; the jurisdiction of the Commissioner to copy documents he has obtained pursuant to the issuance of a subpoena duces tecum; the scope of the Commissioner's power to review documents which are the subject of a claim for solicitor-client privilege; the jurisdiction of the Commissioner to make confidentiality orders prohibiting persons who have given evidence before the Commissioner from revealing any information disclosed during his or her testimony; and whether records under the control of the Prime Minister's Office and the office of the Minister of Defence are records "under the control of" respectively, the Privy Council Office or the Department of National Defence, within the meaning of that phrase as found in the Act.
[2] These reasons are lengthy. In them I:
(i) accept the submissions of the parties that the issue of the propriety of the disputed questions is moot, and accept the further submissions of the Commissioner that this is not a proper case for the Court to exercise its discretion to decide an issue which is moot;
(ii) accept the submission of the Commissioner that the Act by implication authorizes the Commissioner to make copies of documents provided to him pursuant to his power to subpoena documents;
(iii) accept the submission of the Commissioner that the Act authorized the Commissioner's delegate to require production of a specific legal memorandum, notwithstanding the claim that it was the subject of solicitor-client privilege. I further accept the Commissioner's submission that it was not necessary for his delegate to conclude that the memorandum was "absolutely required" for the investigation before requiring its production;
(iv) accept the submission of the Commissioner that the Act authorized the Commissioner's delegate to impose confidentiality orders upon witnesses who appeared before him to give evidence. However, I also accept the submission of the applicants that the confidentiality orders in question breached the right of the individual applicants to freedom of expression, and that the orders were over-broad and so were not a reasonable limit prescribed by law so as to be valid pursuant to section 1 of the Charter. In the result, I order that the confidentiality orders be set aside, but on the condition that the orders will remain in effect for 30 days. This period will protect the ongoing status of the Commissioner's investigation by affording the Commissioner the opportunity to consider the need for confidentiality orders and, if required, to issue orders which are not over-broad and which are justified on the evidence before the Commissioner; and
(v) accept the submission of the Commissioner and Mr. Pugliese that it is premature to adjudicate upon the request for a declaration that records under the control of the Prime Minister's Office or the office of a minister are not under the control of a government institution and are not subject to the Act. This issue should only be determined by the Court after the Commissioner has been allowed to complete his investigation and report.
[3] For ease of reference, the following is an index of the headings and sub-headings pursuant to which these reasons are organized, and the paragraph numbers where each section begins.
INDEX
1. Background Facts [5]
(i) The Requests [6]
(ii) The Responses to the Requests [7]
(iii) The Complaints [8]
(iv) The Commissioner's Investigations [10]
(v) The Status of the Commissioner's Investigations [11]
(vi) These proceedings [13]
2. Organization of the 25 Applications for Judicial Review [14]
3. The Applicable principles of Statutory Interpretation [16]
4. The Legislative Context
(i) The purpose of the Act [22]
(ii) The right of access and requests for access [24]
(iii) The exemptions from access [26]
(iv) The complaint and investigative process [27]
(v) Reports to Parliament [33]
(vi) Review by the Federal Court [36]
(vii) The confidentiality provisions [39]
(viii) Material not subject to the Act [40]
(ix) The Regulations to the Act [41]
(x) Summary [42]
5. Group A: The Control of Records Applications
(i) Additional Relevant Facts [43]
(ii) The Positions of the Parties and the Issues to be Determined [54]
(iii) Analysis
(a) Should the Commissioner be named as respondent in Court files T-1640-00 and T-1641-00? [61]
(b) Court file T-606-01: Is it moot and is the Commissioner a proper respondent? [63]
(c) Should the Court exercise its discretion to grant the requested declarations? [70]
- The nature of the question of control and the character of the evidence relied upon by the applicants [73]
- Relevant Factors in the Exercise of Discretion [76]
1. The statutory scheme [78]
2. The adequacy of the statutory scheme [83]
3. Control as a question of jurisdiction for the Commissioner [93]
4. The state of the evidentiary record [96]
5. The existence of prejudice to the applicants if the declarations are not granted [118]
(iv) Conclusion re Group A [121]
6. Group B: The "Confidentiality Order" Applications
(i) Additional Relevant Facts [125]
(ii) The Issues to be Determined [141]
(iii) Analysis [142]
(a) The nature and extent of any statutory obligation of confidentiality upon a witness before the Commissioner. [143]
(b) Was there jurisdiction to issue the confidentiality orders?
- Standard of Review [164]
- The Issue of Jurisdiction [172]
(c) Do the confidentiality orders breach the right of freedom of expression guaranteed by section 2(b) of the Charter? [185]
(d) Were the confidentiality orders a reasonable limit prescribed by law which were reasonably necessary in a free and democratic society so as to be valid pursuant to the provisions of section 1 of the Charter?
- Applicable principles of law [191]
- Contextual Considerations [193]
- Does the infringement achieve a constitutionally valid purpose or objective? [205]
- The Rational Connection [210]
- Minimal Impairment [214]
(iv) Conclusion re Group B [245]
7. Group C: Copying of Records Applications
(i) Additional Relevant Facts [246]
(ii) The Issues to be Determined [253]
(iii) Analysis
(a) Should the Commissioner be named as respondent? [254]
(b) Is the application for judicial review in relation to the Black documents requests moot? [257]
(c) The Standard of Review [260]
(d) Does the Commissioner have jurisdiction to photocopy documents delivered pursuant to a subpoena duces tecum issued pursuant to paragraph 36(1)(a) of the Act? [264]
(iv) Conclusion re Group C [291]
8. Group D: The Propriety of Questions Applications
(i) Additional Relevant Facts [292]
(ii) The Issues to be Determined [296]
(iii) Analysis
(a) Should the Commissioner be named as respondent in this group of applications? [297]
(b) Should the Court exercise its discretion to grant the requested declarations? [298]
1. The statutory scheme. [305]
2. The nature of the challenge to the propriety of the questions. [309]
3. The general principles which apply to such a challenge. [313]
4. The likelihood of the issue of the propriety of the questions recurring, and the extent that this is a brief transitory issue, and thus likely to evade review. [317]
(iv) Conclusion re Group D [325]
9. Group E: The Solicitor-Client Application
(i) Additional Facts [327]
(ii) The Issues [335]
(iii) Analysis
(a) Should the Commissioner be named as respondent in this application? [336]
(b) Is the application for judicial review not justiciable, premature and unnecessary with respect to the Schedule A documents? [337]
(c) Is this application for judicial review not justiciable, moot and unnecessary with respect to the July 30, 1999 memorandum? [340]
(d) Is the July 30, 1999 memorandum subject to solicitor-client privilege? [342]
(e) The standard of review to be applied to the decision to compel production of the July 30, 1999 memorandum. [345]
(f) Did the Commissioner's delegate err in concluding that he had jurisdiction to compel production of the July 30, 1999 legal advice memorandum? [351]
(iv) Conclusion re Group E [364]
10. Conclusion as to Costs [366]
[4] These issues arise in the following context. It should be noted that significant information and evidence has been filed with the Court on a confidential basis. The facts and matters disclosed in these reasons all appear on the public record.
1. BACKGROUND FACTS
[5] These proceedings have their genesis in a number of requests made in 1999 for disclosure of records pursuant to the Act.
(i) The Requests
[6] The relevant requests were:
1. On June 23 and June 25, 1999, requests were made to the Privy Council Office seeking access to documents relating to the question of whether Conrad Black, then a Canadian citizen, should be appointed to the British House of Lords ("Black documents requests").
2. On June 28, 1999, six requests were made to the Privy Council Office seeking access to the Prime Minister's1 daily agenda book for 1994 through 1999 ("Prime Minister's agenda requests").
3. On September 22, 1999, a request was made to the Department of National Defence for copies of all records since January 1, 1998 of the M5 group meetings ("September 22 M5 documents request"). "M5" is the term used to describe informal meetings between the Minister of National Defence, the Deputy Minister of National Defence, the Chief of the Defence Staff and senior exempt staff in the Minister's office. "Exempt staff" are persons appointed by a minister or the Prime Minister to his or her staff and they hold office at the pleasure of the person who appointed them. Exempt staff are not public servants.
4. On November 5, 1999, a request was made to the Department of Transport seeking a copy of the Minister of Transport's itinerary and/or meeting schedule for the period from June 1, 1999 to November 5, 1999 ("Minister of Transport agenda request").
5. On November 12, 1999, a request was made to the Department of National Defence for copies of the minutes or documents produced from the M5 management meetings for 1999 ("November 12 M5 documents request").
The Privy Council Office, the Department of National Defence and the Department of Transport are government institutions to which the Act extends.
(ii) The Responses to the Requests
[7] The following responses were made to each request.
1. With respect to the Black documents requests, on September 7, 1999 both requesters were provided with some documents in response to their respective requests. However, some records or portions thereof were not provided to the requesters because the Privy Council Office claimed certain exemptions and exclusions pursuant to relevant provisions of the Act.
2. In response to the Prime Minister's agenda requests, the Privy Council Office advised the requester on July 13, 1999 that in respect of five of the six requests for the Prime Minister's agendas, there were no records under the control of the Privy Council Office which were responsive to the requests. With respect to the sixth request, the requester was advised on August 11, 1999 that the Privy Council Office would neither confirm nor deny the existence of any records relating to the request but that should any such records exist, they would be exempt from disclosure pursuant to subsection 19(1) of the Act as being personal information.
3. With respect to the September 22 M5 documents request, on October 18, 1999 the Department of National Defence responded that their search failed to uncover any relevant records.
4. In response to the Minister of Transport agenda request, the requester was advised on December 22, 1999 that no records existed in Transport Canada's files responsive to the request. It was noted that the Minister's itinerary/meeting schedules were prepared and maintained by his political staff and were not considered to be departmental records.
5. With respect to the November 12 M5 documents request, on February 15, 2000 the Department of National Defence advised that a search failed to uncover any documents such as those requested.
(iii) The Complaints
[8] Four of the five requesters made complaints to the Commissioner in respect of the responses received to their requests. No complaint was made with respect to the September 22 M5 documents request. The requesters complained about the exemptions and exclusions applied by the Privy Council Office in response to the Black documents requests. The balance of the complaints were that the requesters had not been provided with the documents requested.
[9] Subsequently, in the course of investigating the complaint arising from the November 12 M5 documents request, the Commissioner received information which satisfied him that there were reasonable grounds upon which to investigate the response to the September 22 M5 documents request. Accordingly the Commissioner proceeded with a self-initiated complaint with respect to that request.
(iv) The Commissioner's Investigations
[10] On receipt of the complaints, as the Commissioner was obliged to do under the Act, he began to investigate the complaints. Pursuant to those investigations, conducted by his delegate, the Deputy Information Commissioner, the Commissioner issued subpoenas duces tecum to witnesses, copied records which were produced pursuant to such subpoenas, examined under oath witnesses who had been subpoenaed, and at the outset of some of those examinations made confidentiality orders, all as discussed in more detail below.
(v) The Status of the Commissioner's Investigations
[11] The Commissioner's investigations of the complaints about access refusals stemming from the requests for the Prime Minister's agendas, the September 22 and November 12 M5 documents, and the Minister of Transport's agendas remain ongoing.
[12] The Commissioner has completed his investigation of the complaints based on the refusal of the Privy Council Office to grant access to the Black documents. After the complaints were received, the Coordinator for Access to Information and Privacy for the Privy Council Office conducted a re-examination of the records. As a result of that re-examination, additional information was provided to the requesters/complainants. Subsequently, the Commissioner concluded in the Black documents requests investigation that the exemptions and exclusions were properly claimed and that the remaining Black documents ought not to be disclosed. The Commissioner argues that issues arising from this concluded investigation are not justiciable as being moot and unnecessary. Those arguments are addressed below.
(vi) These proceedings
[13] The proceedings in this Court are of an unusual nature. Generally, proceedings relating to the Act are brought in this Court only after the results of the Commissioner's completed investigation have been reported to both the person who made the complaint about a refusal of access and to the head of the government institution which has refused access. The present applications for judicial review, except those arising out of the Black documents requests, all are brought during the currency of the Commissioner's investigation. Those applications therefore impact upon the right of the Commissioner to conduct investigations under the Act.
2. ORGANIZATION OF THE 25 APPLICATIONS FOR JUDICIAL REVIEW
[14] As noted at the outset, these reasons are in respect of 25 applications for judicial review. Pursuant to an order of the case management judge, the applications were divided into five groups with the applications contained within those groups to be heard serially. The applications contained in each group were consolidated within that group.
[15] Counsel have described these groups as groups A, B, C, D, and E. They will be referred to as such in these reasons. What follows is a listing of which applications fall within each group together with a brief description of the issue raised in each group.
Group A: A declaration is sought that certain records under the control of the Prime Minister's Office or the office of the Minister of National Defence are not under the control of, respectively, the Privy Council Office or the Department of National Defence, and so are not under the control of a government institution. These applications are called the "Control of Records Applications". There are three applications in this group: T-606-01, T-1640-00 and T-1641-00.
Group B: A declaration is sought that the Commissioner lacks jurisdiction to make confidentiality orders. Consequential relief quashing the confidentiality orders made by the Commissioner is also sought. These are called the "Confidentiality Order Applications". There are nine applications in this group: T-582-01, T-792-01, T-877-01, T-878-01, T-883-01, T-892-01, T-1047-01, T-1254-01 and T-1909-01.
Group C: A declaration is sought that the Commissioner may not photocopy materials delivered to him pursuant to a subpoena duces tecum. Consequential relief is sought requiring the return of copies made and the prohibition of further copying. These are called the "Copying of Records Applications". There are 10 applications in this group: T-684-01, T-763-01, T-880-01, T-895-01, T-896-01, T-1049-01, T-1255-01, T-1448-01, T-1910-01 and T-2070-01.
Group D: A declaration is sought that the Commissioner lacks jurisdiction to require two named parties to answer certain questions on examination under oath. These are called the "Propriety of Questions Applications". There are two applications in this group: T-801-01, and T-891-01.
Group E: A declaration is sought that the Commissioner has no jurisdiction to require the production of certain documents in respect of which a claim for solicitor-client privilege is made. This is called the "Solicitor-Client Application". There is one application in this group: T-1083-01.
3. THE APPLICABLE PRINCIPLES OF STATUTORY INTERPRETATION
[16] Resolution of the issues before the Court turns largely upon the proper interpretation to be given to a number of provisions in the Act.
[17] The starting point for the interpretation of the Act is the following well-known and accepted statement of principle:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
See: E.A. Driedger in Construction of Statutes (2nd ed. 1983) at page 87 as cited in Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84 at paragraph 27.
[18] This approach requires a court to attribute to a legislative provision the meaning that best accords with both the text and the context of the provision. While neither can be ignored, as the Federal Court of Appeal observed in Bristol-Myers Squibb Co. v. Canada (Attorney General), 2003 FCA 180 at paragraph 13, the clearer the ordinary meaning of the provision, the more compelling the contextual considerations must be in order to warrant a different reading.
[19] The Act is to be interpreted in a purposive and liberal manner. See: Canada Post Corporation v. Canada (Minister of Public Works), [1995] 2 F.C. 110 (C.A.) at paragraph 33 and Canada (Privacy Commission) v. Canada (Labour Relations Board), [1996] 3 F.C. 609 (T.D.) at paragraph 47.
[20] The Act has been held to strive to balance what has been characterized as a quasi-constitutional right of access with the necessity of having a government able to function efficiently and with the requisite candor. The quasi-constitutional status of legislation is a factor to be considered in interpreting the legislation in that it recognizes the special purpose of the legislation. That status does not, however, operate to alter the traditional approach to the interpretation of legislation. (See: Lavigne v. Canada (Office of the Commission of Official Languages), [2002] 2 S.C.R. 773 at paragraph 25).
[21] Given the need to view the relevant provisions of the Act in the context of the Act as a whole, I now turn to review generally the regime prescribed by the Act.
4. THE LEGISLATIVE CONTEXT
(i) The purpose of the Act
[22] In Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, at paragraph 61, Mr. Justice LaForest writing in dissent, but not dissenting on this point, wrote that the "overarching purpose of access to information legislation [...] is to facilitate democracy". The legislation does this by insuring that citizens are properly informed so as to be able to participate meaningfully in the democratic process and by insuring that politicians and bureaucrats remain accountable to citizens.
[23] In subsection 2(1) of the Act, Parliament expressly articulated the purpose of the legislation. The Act is stated to "extend the 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."
(ii) The right of access and requests for access
[24] Subsection 4(1) of the Act provides that every person who is a Canadian citizen or a permanent resident (as defined) "has a right to and shall, on request, be given access to any record under the control of a government institution". The word "record" is broadly defined in section 3 of the Act. The term "government institution" is there defined as "any department or ministry of state of the Government of Canada listed in Schedule I or any body or office listed in Schedule I." Requests for access are to be made in writing to the government institution that has control of the record in question (section 6). The general rule (subject to specific exceptions found in sections 8, 9, and 11 of the Act) is that within 30 days of receipt of the request, the head of the government institution to which the request is made shall give written notice to the requester as to whether access to all or part of the record will be given and, where access is to be given, give access to the record or a part thereof (section 7).
[25] Where the head of a government institution refuses to grant access to all or part of a requested record, he or she is required by section 10 of the Act to state in the notice given under section 7 either that the record does not exist or to provide the specific provision of the Act on which the refusal is based or on which a refusal could be reasonably expected to be based if the record existed. This latter provision reflects that the head of a government institution may, but is not required to, indicate whether a record exists. The notice provided to the access requester must also advise of the requester's right to make a complaint to the Commissioner about a refusal of access. Failure to provide a record requested within the time limits set out in the Act is deemed to be a refusal of access (subsection 10(3)).
(iii) The exemptions from access
[26] Sections 13 to 26 of the Act contain provisions that either prohibit the disclosure of certain types of records or grant a discretion to the head of a government institution as to whether a record is disclosed. Illustrative of the prohibitions on disclosure are paragraph 13(1)(a) of the Act which prohibits disclosure of a record containing information obtained in confidence from a foreign state unless that state consents to the disclosure of the record or itself makes the information public, and section 19 of the Act which prohibits disclosure of a record that contains personal information (as defined in the Privacy Act, R.S.C. 1985, c. P-21) unless the information is publicly available, or the disclosure is authorized by the individual to which it relates or is otherwise permitted by section 8 of the Privacy Act. Examples of circumstances where discretion is granted regarding the disclosure of a record are found at section 14, which applies to a record containing information which if disclosed could reasonably be expected to be injurious to the federal government's conduct of federal-provincial affairs, and paragraph 21(1)(b) of the Act which applies to a record that contains an account of consultations or deliberations involving a Minister of the Crown, or the staff of a Minister of the Crown, or government officers or employees.
(iv) The complaint and investigative process
[27] The Commissioner is obliged to receive and investigate complaints made to him (subsection 30(1)). Those complaints may be made in a number of specified circumstances. For example, a complaint may be made where a person has been refused access to all or part of a requested record, and a complaint may be made in respect of any other matter relating to requesting or obtaining access to records under the Act. The Commissioner may also initiate a complaint at his own behest where he is satisfied that there are "reasonable grounds to investigate a matter relating to requesting or obtaining access to records under this Act" (subsection 30(3)). These powers transcend the simple obligation and right to investigate a specific refusal to give access to a specific requested record.
[28] Before commencing an investigation of a complaint, the Commissioner must notify the head of the concerned government institution of his intent to investigate and also inform the head of the substance of the complaint (section 32). The Commissioner is also obliged to afford to a complainant and to the head of the relevant government institution a reasonable opportunity to make representations (subsection 35(2)).
[29] Section 34 of the Act provides that, subject to the Act, the Commissioner "may determine the procedure to be followed in the performance of any duty or function of the Commissioner under this Act". Specific powers in relation to the conduct of investigations are reposed in the Commissioner by section 36 of the Act. Examples of these powers are that the Commissioner may summon and enforce the appearance of persons before him, and compel them to give oral or written evidence on oath and to produce such documents as the Commissioner deems requisite to the full investigation and consideration of the complaint, in the same manner and to the same extent as a superior court of record (paragraph 36(1)(a)). The Commissioner may receive and accept such evidence or other information as the Commissioner sees fit, whether the evidence or information is, or would be, admissible in a court of law (paragraph 36(1)(c)). The Commissioner may enter into premises occupied by any government institution and may examine or obtain copies of or extracts from relevant books or records found in such premises (paragraphs 36(1)(d) and (f)).
[30] Notwithstanding any other Act of Parliament or any privilege under the law of evidence, the Commissioner may during his investigation examine any record to which the Act applies that is under the control of the government institution and "no such record may be withheld from the Commissioner on any grounds" (subsection 36(2)). Subsection 36(5) provides that any document or thing produced pursuant to this section shall be returned by the Commissioner within ten days of a request being made for such return, but nothing in the subsection precludes the Commissioner from again requiring production of the document. The Commissioner is obliged to conduct his investigation in private (subsection 35(1)). Except in the case of prosecutions and court proceedings under the Act, evidence given by a person in proceedings under the Act, and evidence of the existence of such proceedings are inadmissible against a person in a court or in any other proceedings (subsection 36(3)).
[31] After the Commissioner completes his investigation, if he finds that the complaint is well-founded he is required to provide a report to the head of the government institution that has control of the record. The report shall contain the findings of the investigation and any recommendations that the Commissioner considers appropriate. The Commissioner may also request that he be given notice, within a specified period of time, of any actions taken or proposed to be taken in order to implement the Commissioner's recommendations. Alternatively, the Commissioner may request that he be advised of the reasons why no such action has been taken or is proposed. The Commissioner shall also make a report to the complainant. Where the government institution fails to respond to the Commissioner within the time specified, or any action to be taken described by the government institution is inadequate in the view of the Commissioner, the Commissioner shall so advise the complainant and the Commissioner "may include in the report [to the complainant] such comments on the matter as he thinks fit". The Commissioner shall also inform the complainant of his or her right to apply to this Court for a review of the matter investigated (section 37).
[32] The Commissioner can not order that any record be released. His powers are limited to making recommendations to the relevant government institution.
(v) Reports to Parliament
[33] The Commissioner is required to report annually to Parliament on the activities of his office (section 38). Additionally, he may at any time make a special report to Parliament "referring to and commenting on any matter within the scope of his powers, duties and functions" where, in his view, the matter is of such urgency or importance that such report should not be delayed (subsection 39(1)).
[34] This obligation is mirrored in section 72 of the Act which requires the head of each government institution to report annually to Parliament with respect to the administration of the Act within the institution each year.
[35] Section 75 of the Act requires that the administration of the Act be reviewed on a permanent basis by such committee of the House of Commons, the Senate, or of both Houses of Parliament as may be designated by Parliament for that purpose.
(vi) Review by the Federal Court
[36] Section 41 of the Act allows a person who has been refused access and who has made a complaint to the Commissioner in respect of the refusal, to apply to this Court for a review of the matter. Such application is to be made within 45 days of the Commissioner's report to the complainant and is a further independent review of a decision of government as to whether government information should be disclosed.
[37] The Commissioner may, with the consent of the complainant, initiate such application. The Commissioner may also appear before the Court on behalf of any person who has brought such application and, with the Court's leave, may appear as a party to any review (section 42).
[38] On such application, the Court is given the same access to records as the Commissioner is given on his investigation (section 46).
(vii) The confidentiality provisions
[39] The Commissioner and persons acting on his behalf who receive or obtain information relating to an investigation shall, with respect to that information, satisfy the security requirements and take any oath of secrecy required of persons who normally have access to that information (section 61). The Commissioner and those acting on his behalf are prohibited from disclosing any information that comes to their knowledge in the performance of their duties (section 62) and must take every reasonable precaution to avoid the disclosure of and shall not disclose information which the head of a government institution would be authorized to refuse to disclose, or any information as to whether a record exists where the head of a government institution has not indicated whether it exists (section 64). The Commissioner and those acting on his behalf are not competent or compellable in respect of a matter coming to their knowledge as a result of performing duties or functions under the Act, except in cases of prosecutions for offenses under the Act or for perjury, and except with respect to review proceedings in this Court under the Act and appeals therefrom (section 65). Disclosure is, of course, permitted for the purpose of carrying out investigations under the Act and in order to establish grounds for findings and recommendations contained in any report under the Act (section 63).
(viii) Material not subject to the Act
[40] The Act does not apply to certain specific and limited materials. Section 68 provides that the Act does not apply to certain described material which is in the public domain. The Act also does not apply to confidences of the Queen's Privy Council for Canada (as defined) except where such confidences have been in existence for more than 20 years or where they are contained in certain specifically described discussion papers (section 69). Finally, the Act does not apply to information which is the subject of a certificate issued under section 38.13 of the Canada Evidence Act, R.S.C. 1985, c. C-5 (section 69.1). Section 38.13 of the Canada Evidence Act relates to protecting information obtained in confidence from or in relation to a foreign entity and to protecting national defence or national security.
(ix) The Regulations to the Act
[41] Regulations have been enacted pursuant section 77 of the Act. Section 3 of the Access to Information Regulations, SOR/83-507 provides that for the purpose of subsection 4(3) of the Act (which applies to access to records produced from machine-readable records) a record that does not exist, but which can be produced from a machine-readable record may not be produced where its production would unreasonably interfere with the operations of the institution. This reflects the proper concern that the Act not interfere with the operation of government.
(x) Summary
[42] In sum, the Act enshrines a right of access to government information and exceptions to that general right are to be limited and specific. The Act should be interpreted to provide a meaningful right of access. Fundamental to the structure of the Act is that government itself is not to decide whether information is exempt from disclosure. There is an independent review mechanism and the Commissioner's investigation is the first step in that process. The Commissioner is, however, never the decision-maker. At first instance, he or she provides advice to the head of the government department who makes the initial decision about disclosure. Ultimately, in the event of dispute, it is a matter for this Court to determine.
5. GROUP A: THE CONTROL OF RECORDS APPLICATIONS
(i) Additional Relevant Facts
[43] In the course of investigating the complaints arising out of the Prime Minister's agenda requests, the November 12 M5 documents request and the Black documents requests, the Commissioner's delegate caused subpoenas duces tecum to be issued to five individuals who are applicants in these proceedings. In chronological order the following subpoenas duces tecum were issued:
(a) On August 11, 2000 directed to Mr. Bruce Hartley, the Executive Assistant to the Prime Minister with respect to the Prime Minister's agenda requests. The subpoena ordered Mr. Hartley to bring with him:
All records under the control of the Prime Minister of Canada containing information with respect to and including any copy of:
The Prime Minister's Agendas in any format, whether electronic, printed or other format, from January 1, 1994 to June 25, 1999.
(b) On August 11, 2000 directed to Mr. Emechete Onuoha, then the Executive Assistant to the Minister of National Defence; Ms. Meribeth Morris, then the Director of Operations to the Minister of National De