Yeager v. Canada (Public Safety and Emergency Preparedness)

Yeager v. Canada (Public Safety and Emergency Preparedness)
Court (s) Database
Federal Court Decisions
Date
2017-03-30
Neutral citation
2017 FC 330
File numbers
T-91-09
Notes
Digest
Decision Content
Date: 20170330
Docket: T-91-09
Citation: 2017 FC 330
Ottawa, Ontario, March 30, 2017
PRESENT: The Honourable Madam Justice Elliott
BETWEEN:
MATTHEW G. YEAGER
Applicant
and
MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
AND
ATTORNEY GENERAL OF CANADA
Respondents
JUDGMENT AND REASONS
I. Overview [1] Prof. Matthew G. Yeager is a public criminologist, whose research in public policy requires making requests of federal agencies both to use the requested documents in his research and as part of his research on how such requests are processed and governed. In that respect, he is a self-described public interest litigant with extensive credentials who, as he put it, may be the only criminologist in Canada who litigates under the Access to Information Act, RSC 1985, c A‑1 [ATIA]. He has had an interest in penal policy for over 40 years and is currently a professor at the University of Western Ontario.
[2] Prof. Yeager states he brings this application for judicial review for the purpose of making new law. His central premise is that when there is a federal government portfolio composed of agencies and review bodies all reporting to the same Minister [Portfolio], then control of government records as understood within the ATIA should be determined at the Portfolio level. In this case, it was the Public Safety Portfolio, which was overseen at that time by the Minister of Public Safety and Emergency Preparedness [Minister].
[3] Prof. Yeager also seeks an interpretation of section 8 of the ATIA, which deals with transferring a request from one government institution to another. As section 8 has not previously been judicially interpreted, he says that too will involve new law.
[4] Lastly, Prof. Yeager wishes to make new law under the cost provisions of either the ATIA or the Federal Courts Act, RSC 1985, c F-7. Although self-represented, he seeks both costs and punitive costs of $100,000 for the alleged mishandling by the Minister of his ATIA request.
[5] Prof. Yeager presented his arguments, both oral and written, with a professor’s precision and with passion for his topic. He clearly feels very strongly about his arguments. Unfortunately, after carefully reviewing the record, the legislation, the oral and written submissions and the existing jurisprudence, I cannot support Prof. Yeager’s invitation to make new law. I have determined that existing law and jurisprudence sufficiently address his arguments.
[6] For the reasons that follow, this application will be dismissed. The relevant provisions of any legislation referred to in these reasons can be found in the attached Annex. Limited parts of some provisions have also been set out in the body of these reasons for ease of reference.
II. Background and Procedural History A. The Information Request and Complaint to the Office of the Information Commissioner [7] On June 7, 2007, Prof. Yeager hand-delivered a request under the ATIA addressed to the Access to Information Coordinator [ATIP Co-ordinator] at the Department of Public Safety and Emergency Preparedness [Public Safety], a department of the Government of Canada constituted by the Department of Public Safety and Emergency Preparedness Act, SC 2005, c 10, and over which the Minister presides. He sought certain documents, such as the work plan, budget breakdown and appointment papers for members of the recently announced CSC Independent Review Panel [CSC Review Panel]. The panel was established by the Minister to assess the operational priorities, strategies and business plans of Correctional Services Canada [CSC]. The CSC is a service continued under the Corrections and Conditional Release Act, SC 1992, c 20. It is controlled and directed by a Commissioner of Corrections under the direction of the Minister. The precipitating event causing Prof. Yeager to file his access request was the refusal of the Secretariat of the Review Panel to allow him to interview panel members prior to completion of their report, which was due at the end of October 2007.
[8] Prof. Yeager received a letter dated June 15, 2007, from the ATIP Co-ordinator at Public Safety. It indicated that a search had been conducted and there were no relevant records in the department. Believing this answer to be incorrect, Prof. Yeager filed a complaint with the Office of the Information Commissioner [OIC] on June 26, 2007, at which time he provided several examples of why there ought to be records. His letter requested that the OIC take steps under section 41 of the ATIA within fifteen days to enable him to proceed to this Court.
[9] No answer was received within fifteen days. On December 10, 2008, eighteen months later, Prof. Yeager received the response from the OIC. The OIC found that Public Safety had conducted a complete and thorough search of departmental records and no responsive records were located. Prof. Yeager’s complaint consequently was not substantiated.
[10] Additional information contained in the OIC letter caused Prof. Yeager to bring this application. The letter went on to say that it became apparent during the investigation that CSC might have control of records responsive to the request. The OIC added that if he was still interested in obtaining the requested records, Prof. Yeager might file a request to CSC. The letter also stated that although Public Safety should have considered transferring the request to CSC in accordance with section 8 of the ATIA, “this unfortunately was not done.”
[11] Thus began what became a nine-year journey at the end of which Prof. Yeager still has not received any of the records he sought. He also has never filed a request with CSC to determine whether it has any documents responsive to his original request.
B. The Impetus for this Application [12] Prof. Yeager says he became intrigued when advised by the OIC that there might be records available at CSC and that Public Safety had failed to transfer his request under section 8 of the ATIA. He says that as both CSC and Public Safety are under the same Portfolio, which is also called Public Safety, the Minister in charge of the Portfolio has control of the documents as that term has been defined by jurisprudence under the ATIA. The Minister is the head of both Public Safety and CSC for the purposes of the ATIA, so the Minister can obtain any document within his or her portfolio. I shall refer to this argument as the Portfolio Argument.
[13] The Attorney General dismisses the Portfolio Argument on the basis that the ATIA is very clear that any request is to be made to the government institution that has control of the record. That is not the case here, as Prof. Yeager simply made his request to the wrong government institution.
[14] The Attorney General also says Public Safety had discretion under section 8 to determine whether to make a referral and they chose not to make one. All Prof. Yeager had to do was ask CSC for the documents, if they existed.
C. A Short Procedural History [15] In this case, it is clear that an irresistible force has met an immovable object. Neither party has budged. The result is seven years of litigation in this Court.
[16] Prof. Yeager filed his Notice of Application for Judicial Review on January 20, 2009. Since then there have been seven orders of this Court on a variety of matters—three by Prothonotaries, one by a Deputy Judge and three by Judges of this Court. The Federal Court of Appeal issued two Orders, the second of which was a refusal to reconsider the first decision.
[17] At the beginning of the hearing, with the consent of the Respondents, I permitted Prof. Yeager to file new evidence, referred to before me and in this decision as the Firman Note. It is a short, undated, handwritten note. Each party claims the note proves their case. More will be said later about this note.
[18] Each party filed affidavits as part of this application. Prof. Yeager was not cross‑examined on his affidavit. He cross-examined the Respondents’ affiant, Sylvie Séguin‑Brant, the former ATIP Co-ordinator at Public Safety who had responded to his original request. Many of the answers she gave were to the effect that “it was seven years ago; I can’t remember”.
[19] At the conclusion of the hearing, I indicated to the parties that I wished to receive further written submissions with respect to whether subsection 4(2.1) of the ATIA applies, as Prof. Yeager was relying on it for some aspects of his arguments but it was not in force at the time of his original request or when his request was denied by Public Safety. The section came into force on Sept. 1, 2007, prior to the OIC report. Consideration of those submissions has been incorporated into these reasons for judgment.
III. Preliminary Issue [20] The Attorney General raised as a preliminary issue that the Minister at the time of the events in question, Stockwell Day, should not be a personally named party. I agree. Amongst other reasons, as Stockwell Day is no longer the Minister he would not be able to order release of the information sought by Prof. Yeager. Accordingly, Stockwell Day has been removed as a party and the style of cause amended.
IV. Issues [21] Prof. Yeager seeks an Order requiring the Minister to release to him the information he originally requested. He also seeks his costs plus punitive costs because: (1) he is raising important new principles and (2) there was “excessive delay and obstruction” of his ATIA request.
[22] The grounds upon which Prof. Yeager relies are that his request was properly submitted, and in alleging that he had submitted it to the wrong agency, there was an error in law by Public Safety. He also pleads that the Minister failed to “adhere to the dictates of s. 8” of the ATIA, because Public Safety ought to have transferred his request to CSC. Finally, Prof. Yeager says that Public Safety failed to make every reasonable effort to assist him with his request pursuant to subsection 4(2.1).
[23] As previously stated, Prof. Yeager seeks both costs and punitive costs of $100,000. The Attorney General seeks costs under Column III of the table to Tariff B.
[24] Having considered the submissions, including those I requested at the end of the hearing addressing subsection 4(2.1), the issues that I find arise for consideration are:
A. What is the appropriate standard of review?
B. Did Public Safety err in saying it held no relevant records?
C. Were the provisions of section 8 of the ATIA met by Public Safety?
D. Was Public Safety required to follow subsection 4(2.1) of the ATIA?
E. Is either party entitled to costs and, if so, of what nature and amount?
V. Standard of Review [25] The parties do not agree on the appropriate standard of review. Prof. Yeager submits that when the issue is a denial of records, the standard of review is correctness as established in Canada (Information Commissioner) v Canada (Minister of National Defence), 2011 SCC 25 [National Defence]. The Attorney General relies on Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] in submitting both that the ATIP Co-ordinator was interpreting a statute connected to her function and that the absence of relevant records is a finding of fact so the standard is reasonableness for all issues.
[26] In my view, the outcome in this case is the same regardless of the standard of review. This is not the usual case of a refusal to disclose a record based on an exemption under the ATIA. When an exemption is relied upon as the reason for not providing access to records, the case law of this court indicates the standard of review is correctness for the determination that an exemption applies and then reasonableness in reviewing the discretionary decision of whether to release the record: Blank v Canada (Justice), 2016 FCA 189 at para 24; 3430901 Canada Inc v Canada (Minister of Industry), 2001 FCA 254 at para 47.
[27] There is no exemption relied upon here. This is a true “no records” case. Under section 10(1)(a) of the ATIA, where a record does not exist, that fact is required to be stated as a ground of refusal in the response provided pursuant to section 7. In keeping with those requirements, the response to Prof. Yeager clearly stated there were no relevant records. That is, to some extent, a binary question: either the records exist or they do not. The wrinkle is that although Public Safety may not physically have any responsive records, if it has control of responsive records located elsewhere, as alleged by Prof. Yeager, then it does have responsive records.
[28] In determining its own standard of review, the Supreme Court indirectly recognized in National Defence that assessing whether or not an institution controls a record under the ATIA is the sort of binary question that does not fit in well with conventional standard of review analysis. Customarily, in an appeal of a judicial review, the appellate court steps into the shoes of the reviewing court and applies the appropriate standard of review itself: Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras 45-47. However in National Defence, the Supreme Court did not “step into the shoes” of the Federal Court, but instead assessed whether the application judge erred on an extricable question of law or committed a palpable and overriding error. In doing so, the Supreme Court treated the Federal Court as the initial forum for deciding the merits, whereas conventionally in a judicial review, the merits are decided by the administrative tribunal, while the Court merely assesses the legality of the tribunal’s decision: see, for example, the discussion at paragraphs 14-19 of Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22.
[29] In my view, whether this is considered a correctness review or whether it is an independent assessment of the evidence by this Court, it leads to the same result: the question is whether or not Public Safety controls the records. Prof. Yeager’s Portfolio Argument, which was obliquely but never directly put to either the ATIP Co-ordinator or the OIC, is simply an extension of this question. Prof. Yeager submits his request should have been reviewed at the Portfolio level, not the departmental level. In so arguing, he effectively submits that any record under the control of CSC is also under the control of Public Safety, because both are under the purview of the same Minister.
[30] The same standard of review is applicable to both questions: (1) were the requested documents under the control of Public Safety because all records in the control of CSC are in the control of Public Safety; and (2) if the answer to the first question is no, were the requested documents nonetheless in the control of Public Safety based on the evidence before me? While I must answer those questions independently of the ATIP Co-ordinator’s view, as I said I do not believe the standard of review is determinative. If the appropriate standard of review were reasonableness, then I would find that the outcome falls within a range of possible, acceptable outcomes. Further, since Prof. Yeager did not raise his Portfolio Argument before the ATIP Co-ordinator, I would find that my analysis below constitutes a reasonable justification that could have been offered in support of the ATIP Co-ordinator’s decision: Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47 at para 40.
[31] Finally, Prof. Yeager submits that whether Public Safety had discretion to transfer the request to another government institution under section 8 is reviewable on a standard of reasonableness. In that respect, the law on standard of review is well established that when a decision-maker is interpreting their home statute, the standard is reasonableness unless the issue falls into one of the four categories that have been determined to be reviewable on a correctness standard: Dunsmuir at paras 58 – 61; Alberta (Information and Privacy Commissioner) v Alberta Teachers' Association, 2011 SCC 61 [Alberta Teachers’] at paras 39, 43.
[32] The interpretation of section 8 does not fall into any of the four categories that rebut the presumption of reasonableness established in Alberta Teachers’. It does not raise a constitutional question, including one regarding the division of powers between Parliament and the provinces; it does not involve an issue of central importance to the legal system as a whole that is outside the adjudicator’s specialized area of expertise; there is no true question of vires; and the answer could not have been provided by any competing tribunal. The standard of review of Public Safety’s interpretation of section 8 is reasonableness. Moreover, I agree that the exercise of that discretion, if it arose, is reviewable on such a standard: Dunsmuir at para 51.
[33] However, the Federal Court of Appeal has also noted that in matters of statutory interpretation, reasonableness review arises only when the statutory provision at issue is ambiguous. If, on conducting a textual, contextual and purposive analysis of the legislation, the reviewing court determines that there is only one “right” interpretation of the statute, then that is the sole interpretation that the tribunal can validly apply: Qin v Canada (Citizenship and Immigration), 2013 FCA 263 at paras 32-33 [Qin]. While in Qin, this was called correctness review, it can also be regarded as a case where the range of possible, acceptable outcomes includes only one reasonable interpretation: Dumsmuir at para 47. In this case, I have concluded that the only “right” interpretation of section 8 is that it requires, as a prerequisite to a transfer, that the government institution receiving the request have a responsive record. As Public Safety had no responsive records under its control, it was reasonable not to transfer the request to CSC.
VI. Did Public Safety Err in Saying They Held no Relevant Records? A. Background Facts [34] The records which Prof. Yeager seeks are set out in his initial letter to Public Safety, the two responding letters from Public Safety and, in narrative form, in his appeal letter to the OIC. Prof. Yeager was seeking from Public Safety—as set out in his letter of June 7, 2007—the following documents pertaining to the CSC Review Panel:
a) A copy of the Panel’s recently approved Work Plan and copies of all previous drafts of that Plan;
b) A copy of the Panel’s budget breakdown in terms of activities and staffing;
c) A copy of the appointment papers by the Minister to the Panel Members proper, including their official resumes;
d) All emails, postings, handwritten comments, and blackberry messages pertaining to a decision taken on or about May 4, 2007, not to consent to Panel Member interviews by criminologist Matthew G.Yeager;
e) Copies of all comments sent in by email to [email protected]; and
f) Copies of all submissions sent in, to date, from interested parties by mail, courier, hand delivery, or the like.
[35] On June 15, 2007 Public Safety responded by letter to Prof. Yeager that:
A search was conducted, and it was determined that there are no relevant records in the department.
[36] On June 26, 2007, Prof. Yeager made a complaint about the response from Public Safety to the OIC. He said that he had received a blanket denial in the face of evidence indicating that numerous responsive documents exist. In support of his statement that documents should exist, he enclosed a printout of information from the CSC Review Panel’s website. It referred to a budget of approximately $3 million, contained an email address to which persons were invited to make submissions and indicated that the panel members were appointed by the Minister of Public Safety. Prof. Yeager said that to deny the existence of a budget and to not provide to him any submissions that were received or any appointment papers was contrary to the public record. He also referred to a telephone conversation he had with the director of the CSC Review Panel’s Secretariat in early May, in which she indicated the Panel would be finalizing their work plan. He therefore concluded that the work plan he sought should exist. In addition, Prof. Yeager submitted to the OIC a copy of an email he had received from the Chairperson of the Review Panel as evidence that, “a federal agency cannot say there are no relevant records ‘in the department,’ when I have just produced a ‘relevant record’ sent to me by the chairperson of the CSC Review Panel!”
B. Did any responsive records exist at Public Safety? [37] The OIC investigated the response made by Public Safety. It found Prof. Yeager’s complaint was unsubstantiated and confirmed to him that there were no responsive records at Public Safety. The OIC added that records may exist at CSC. There is no evidence in the record before me that any responsive records do exist at Public Safety. No application to this Court has been made by the OIC under section 42 for a review of the refusal by Public Safety under paragraph 10(1)(a).
[38] Prof. Yeager argues that the Court should use the approach set out in Canada (Information Commissioner) v Canada (Minister of Environment) (2000), 187 DLR (4th) 127 (FCA) [commonly referred to as Ethyl], in which the Federal Court of Appeal held that in reviewing a refusal decision on the basis that documents do not exist, it is appropriate for an applicant to submit ancillary evidence that can prove the existence of the requested documents.
[39] Several facts put forward by Prof. Yeager arose after he received the response letter from Public Safety. I will evaluate these facts in determining whether responsive records did exist at Public Safety.
[40] Firstly, in his affidavit, Prof. Yeager stated that an OIC investigator told him on October 19, 2007, that, “officials from the Ministry stated Public Safety had nothing to do with the Panel. Your request was sent to the wrong department.” He also said that he was previously told by the investigator on August 29, 2007, that the request was being “held up” by the Privy Council. In neither instance do these statements support the notion that Public Safety possessed any relevant documents at any time. They may support the accuracy of the extensive background information Prof. Yeager put in the record regarding the general way in which the government of the day handled access to information, but that is not an issue before me for determination.
[41] Secondly, Prof. Yeager provided in his complaint letter to the OIC several examples of records to which he already had access and that would be responsive to his request. He argued to the OIC that the existence of these documents proved that Public Safety was incorrect to state that no responsive documents existed. Those documents and others were also before me. All the examples dealt with aspects of the creation or operation of the CSC Review Panel itself. They were either posted on the CSC website or gathered from Prof. Yeager’s personal interactions with the staff or Chair of the CSC Review Panel. Prof. Yeager referred to the budget for CSC, his discussion with the director of the Secretariat for the panel, the fact that panel members were appointed by the Minister of Public Safety, the email received from the chair of the Panel and the fact that people were invited to make submissions to the panel (indicating that such submissions should exist).
[42] At the hearing, Prof. Yeager said the documents demonstrated a high likelihood that responsive records existed in CSC. Certainly, I do not think it can be disputed that responsive records existed somewhere. However, that is not the same as showing that the records Prof. Yeager found, or others like them, were either located within Public Safety or controlled by it. There is no evidence that Public Safety had any responsive documents, original or duplicate, under its control rather than in the control of CSC or any other government institution. In Canada Post Corp v Canada (Minister of Public Works), [1995] 2 FCR 110 (CA) [Canada Post], Mr. Justice Létourneau, speaking for the majority, found that if a government institution had possession of records, whether in the legal or corporeal sense, that was sufficient for those records to be subject to the ATIA. The majority also held that records collected by a government institution in performance of its official duties or functions were subject to the ATIA. The OIC, as the statutory expert on the ATIA, is taken to know the various interpretations of “control” in the jurisprudence. After investigating Prof. Yeager’s complaint, the OIC determined that Public Safety had no responsive records but, CSC might.
[43] That leaves the question of whether the documents Prof. Yeager adduced into evidence, and other responsive documents that can be presumed to exist at CSC, are subject to any other kind of control by Public Safety that was not considered by the OIC. Resolution of that issue involves addressing the Portfolio Argument put forward by Prof. Yeager.
C. The Portfolio Argument [44] Prof. Yeager complained to the OIC that the statement that there were no relevant records “in the department” was the result of a clearly “defective” search by the Minister. Within that allegation is his premise that “the department” is either the Minister’s office or the entire portfolio of agencies controlled by the Minister. At the hearing before me, Prof. Yeager put his concerns, and the reason for his application, this way:
. . . the point of the matter was this started out as a no-records case, that the government has no records. It turns out that was false. There were records based on [Sylvie Séguin-Brant’s] affidavit. So they knew records existed and they decided to play a game of hide and seek . . . That is a violation of the intent of the Act.
(transcript at page 11, lines 17-22) (My emphasis)
[45] Prof. Yeager maintains that whether records exist at the department level is not relevant. The Minister has control of the records in his Portfolio, and that means that Public Safety ought to have provided the records to him even if those records are located in CSC.
[46] Prof. Yeager elaborates by saying that being a public portfolio agency is different from being a separate government institution outside of a ministry. He says that the government conflates the two. To support his position, Prof. Yeager relies on the notion of control. His argument is that although CSC is listed in Schedule I to the ATIA as a government institution that is separate from Public Safety, the fact is that the Minister has effective control of any institution that is part of the Minister’s portfolio. Once the Minister has control, then CSC is no longer a separate government institution. Prof. Yeager states that to read Schedule I otherwise is a misinterpretation, because in a portfolio ministry, the Minister can reach into any agency in the portfolio and pull out any documents. Put another way, Prof. Yeager argues that the Minister’s control of a record within a portfolio agency trumps the listing of government institutions in Schedule I of the ATIA.
[47] Prof. Yeager submits that the danger of a portfolio agency is that it is easy to hide a document in a portfolio agency and pretend it doesn’t exist. He urges that this “hide and seek” cannot be allowed as it gives licence to the Minister to bury documents and it defeats the purpose of the ATIA. He refers to the decision of the Supreme Court of Canada in Dagg v Canada (Minister of Finance), [1997] 2 SCR 403, to the effect that there is a broad right of access to “any record under the control of a government institution”, and when considering whether an exemption to the general right of access should be granted, it is important to consider the overarching purpose of the ATIA.
[48] The Attorney General makes the argument that section 6 of the ATIA requires a request for access to be made in writing to the government institution that has control of the record and Prof. Yeager made his request to the wrong government institution. Under Schedule I of the ATIA, CSC is a separate government institution from Public Safety: each is separately listed in Schedule I. That is the very problem that Prof. Yeager seeks to circumvent with his Portfolio Argument. The Attorney General submits that in order to agree with Prof. Yeager’s arguments, Schedule I would have to be disregarded. As further support for that proposition, the Attorney General points to the fact that each department and agency is required to maintain their own Access to Information staff, which indicates that they deal with access matters separately from other departments.
D. Analysis [49] To apply the control argument at the Portfolio level ignores the scheme of the ATIA. Schedule I refers specifically to various individual government institutions. Each of the Department of Public Safety and Correctional Service Canada are listed as separate government institutions. The Portfolio of Public Safety is not listed as a government institution, nor is the Minister of Public Safety and Emergency Preparedness.
(1) Delegation of Authority – section 73 of the ATIA [50] Prof. Yeager says the statement from Public Safety that there were no relevant records was a “complete mischaracterization”. In doing so, he does not address the fact that the response by Public Safety did not purport to be a blanket, Portfolio-wide, denial; it was only a denial that there were relevant records within Public Safety. Section 7 of the ATIA requires that where access to a record is requested, the head of the government institution [Head] to which the request is made shall provide a written response to the requester within thirty days. Under section 73 of the ATIA, the Head has the power to delegate any of their powers, duties or functions to one or more officers or employees of that institution. The Minister delegated his authority at Public Safety to the ATIP Co-ordinator. As a result, she was legally empowered to provide an answer on behalf of Public Safety but not for CSC or any other separate government institution. Indeed, if the Minister had attempted to delegate his authority as institution head of CSC to an employee of Public Safety, such a delegation would have been unlawful.
(2) The Scheme of the Act – Government Institution [51] The definition of “government institution” in section 3 of the ATIA is clear and explicit: it means any department or ministry of state of the Government of Canada, or any body or office, listed in Schedule I. Subsection 4(1) provides a right of access to any record under the control of a government institution, subject to certain exemptions provided elsewhere in the ATIA.
[52] Section 6 requires a request for access to a record to be made in writing “to the government institution that has control of the record”. The notion of “control” and the definition of “government institution” are clearly intertwined in the legislation. Prof. Yeager’s focus is on control – the Minister controls all the records in his portfolio. The Attorney Generals’ focus is on government institution – Prof. Yeager asked the wrong institution.
[53] In my view, if Parliament had intended control of a record to be the only factor to consider when granting access to a record, Section 6 would have said that a request for access may be made to any government institution. Instead, it specifies that the request is to be made to the government institution with control of the record. Both conditions must be met to create an actionable access request.
[54] In National Defence, one of the questions before the Court was whether a government institution includes the office of the Minister who presides over it. The answer was “no”; Parliament had not intended to implicitly include ministerial offices in the ATIA: National Defence at paras 26 and 43. Similarly, I am not persuaded that a group of separate government institutions, each individually enumerated in Schedule I, can simply be treated as one amalgamated government institution just because they are placed under the same Minister as part of a portfolio. While Parliament could have made a portfolio of agencies a government institution, it chose not to and there is no evidence before me of any implicit intention to do so. If anything, the fact that the ATIA requires the head of multiple institutions to delegate his or her powers to separate employees in each institution indicates the opposite: each institution is to be treated as a separate entity in determining what records it controls.
(3) Can Public Safety control a record that it does not physically possess? [55] Prof. Yeager says it does not matter which government institution receives his access request because both Public Safety and CSC are part of the Minister’s portfolio. Focussing on control by the Minister, the question becomes: Does Public Safety have control of a record if it is located in the Minister’s office or in another government institution over which the Minister has control? The answer to the question must be no. To decide otherwise would be to ignore both the plain language of the ATIA and the decision in National Defence.
[56] The Supreme Court considered in National Defence whether records located in the Minister’s office could be under the control of the office’s related government institution. Granting that the word “control” is not defined in the ATIA and that it is to be given the broadest possible meaning, the Supreme Court stated that the notion of “control” cannot be stretched beyond reason. The Information Commissioner [Commissioner] asked the Supreme Court to find that a record was subject to the ATIA regardless of its physical form or location. The Commissioner took the position that a function-based approach, in which a dividing line would be created between a Minister’s departmental functions on the one hand and non-departmental functions on the other, should govern the interpretation of the ATIA. Otherwise, a Minister’s office could become a “black hole” and be used to shield sensitive documents which would otherwise be subject to the ATIA. This is essentially the same “hide and seek” argument put forward by Prof. Yeager.
[57] In dismissing the function-based approach, the Supreme Court noted that the Commissioner’s proposed test for control effectively eliminated the need to consider the definition of government institution found in the ATIA, and it rendered the list in Schedule I essentially meaningless. The Commissioner’s approach was found to conflate the issue of defining a government institution with the issue of how one determines which entity has control of a specific record.
[58] National Defence did confirm that while physical control of a document plays an important role, it is not determinative of whether a department has control of a record. The Supreme Court at paragraphs 55 and 56 stated that a two stage inquiry is to be followed when, as is the case here, documents requested are not in the physical possession of the government institution:
[55] Step one . . . Asks whether the record relates to a departmental matter. If it does not, that indeed ends the inquiry. . . . If the record requested relates to a departmental matter, the inquiry into control continues.
[56] Under step two, all relevant factors must be considered in order to determine whether the government institution could reasonably expect to obtain a copy upon request. . . . If a senior official of the government institution, based on all relevant factors, reasonably should be able to obtain a copy of the record, the test is made out and the record must be disclosed, unless it is subject to any specific statutory exemption.
(Underlining added; italics in original)
[59] While National Defence was concerned with whether a government institution has control of a record in a Minister’s office, the same logic applies in determining whether a government institution has control of a record in the possession of another government institution. In fact, Information and Privacy Commissioners in several provinces have applied the National Defence two-part test to information requests involving institutions that are subject to the provincial access legislation where records are not located in government offices: Vaughan (City), 2016 CanLII 7472 (Ont IPC); Dufferin-Peel Catholic District School Board (Re), 2014 CanLII 79896 (Ont IPC); Vancouver (City) (Re), 2015 BCIPC 71; Eastern Health (Re), 2014 CanLII 76059 (NL IPC); Prince Edward Island (Health) (Re), 2016 CanLII 48837 (PEI IPC).
[60] Applying the first step of the test in National Defence, the issue of whether Public Safety, as a government institution, has control of a record that might be located in the Minister’s office, in CSC or in any other government institution, only arises if the record being sought relates to a departmental matter within Public Safety.
[61] The CSC Review Panel was part of the Portfolio of Public Safety but it was not under the supervision or administrative oversight of Public Safety, the department. It was an independent review panel housed at CSC. None of the evidence Prof. Yeager produced, including newspaper clippings, a video news report and his email exchange with the Chair of the CSC Review Panel, demonstrated any connection at all between the CSC Review Panel and Public Safety.
[62] Prof. Yeager has not been able to show the records he seeks relate to a departmental matter within Public Safety. As a result, his request fails at step one – the “screening device” stage. Step two, whether a senior official at Public Safety could obtain a copy of the record does not arise. Even if step two did arise, there is no evidence that a senior official in Public Safety reasonably should be able to obtain a record, wherever located in the Portfolio, that deals with the independent CSC Review Panel. Nothing in the record supports this notion.
VII. Were the provisions of section 8 of the ATIA met by Public Safety? [63] Prof. Yeager’s primary argument is that the records he sought were under the control of Public Safety. His alternate argument is that the Minister refused to exercise his discretion to transfer his request to an appropriate government institution as provided by section 8 of the ATIA. Prof. Yeager adds that such refusal was egregious behaviour, as the other government institution, CSC, is in the same portfolio and is also under the Minister’s supervision.
A. The meaning of the Firman Note [64] The factual connection to subsection 8(1) is found in the Firman Note. It shows that at an unknown point in time, there was a discussion by Public Safety with a consultant, Terry Firman. Each of Prof. Yeager and the Attorney General submit that the brief note of that meeting proves their case with respect to whether Public Safety erred under section 8 in its handling of the access request.
[65] The Firman Note is a short, handwritten note, the author of which is unknown. It is undated and unsigned. The note is first referred to in a note to file made by ATIP Analyst Amanda Harrington at Public Safety on September 11, 2008, well after the response to Prof. Yeager by Public Safety but before the release of the OIC investigation report. Her note to file also summarizes the actual Firman Note, which Prof. Yeager eventually obtained through an ATIA request. The Firman Note states:
• Sylvie and Terry met with CSC regarding who the panel fell under . . . determined that was created within CSC and functions within CSC . . . PS nothing to do with it. They have same request.
• funding by CSC
(some abbreviations expanded for clarity, bullets in original, no words omitted)
[66] Prof. Yeager’s argument is that the conclud