Friday, May 13, 2011

Canada (Information Commissioner) v. Canada (Minister of National Defence) by Greg

The Supreme Court of Canada issued its decision today in Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25. The decision is grounded primarily in two statute-specific determinations:

- that Ministers' offices are not, and are not under the control of, government institutions, and

- that the Prime Minister is not an "officer" of the Privy Council Office (nor Ministers of their departments) for the purpose of determining whether agendas are exempted from the definition of "personal information".

On their face, these conclusions would seem to apply to only a narrow range of access cases. However, several points from Charron J.'s majority decision may apply more broadly.

First, Charron J. confirmed at para. 23 that a trial court's factual determinations as to the application of the Access to Information Act (in this case whether the requested documents were under the control of a government institution) are entitled to deference by appellate courts so long as they are not premised on a wrong legal principle or the result of a palpable and overriding error.

Second, Charron J. rejected the Information Commissioner's argument that a "function-based analysis" as to whether a record was created for departmental or political/non-departmental purposes should be used to assess whether records are subject to access-to-information legislation. Instead, at para. 39-40 Charron J. agreed with the government's argument that a function-based approach could not override the specific list of government institutions under the Access to Information Act - and by implication the choice of institutions omitted from the list. This principle figures to be equally applicable under other regimes which set out a defined list of institutions or authorities governed by their terms.

Third, Charron J. held that an inquiry as to whether or not a governmental department nonetheless has control over records in the possession of a Minister's office is based on a reasonable expectation test as to whether "a senior official of the government institution, based on all relevant factors, reasonably should be able to obtain a copy of the record" (para. 56, emphasis in original). While the test affirmed by the Court addresses only records in the possession of Ministers' offices, some question might be raised as to whether the principle might influence other "custody or control" tests governing documents held by a party other than a government institution.

Finally, based on the parties' agreement that the Prime Minister's agendas contained some "personal information" (para. 9), Charron J. applied section 19 of the Access to Information Act in stark terms in concluding that they were entirely exempt from release. The decision does not reflect any clear considerion as to whether a "work product" standard might apply to such records or whether the records could be severed under section 25 rather than being withheld in their entirety, and these possibilities will presumably need to be canvassed and clarified in future cases.

Update: Dan Michaluk has more.

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