Case Report – Federal Court says ministerial offices beyond the scope of ATIA requests

You may have heard about the Federal Court’s June 19th ruling that the Prime Minister’s Office (the “PMO”) and other ministerial offices are not “institutions” whose records are subject to the Access to Information Act. Here is a breakdown of the rather complex judgement.

The Court considered a series of ATIA requests filed in 1999 by a Reform Party staffer, including a requests for former Prime Minister’s agenda books from the Privy Council Office and the Royal Canadian Mounted Police and requests for records from the former transport and defence ministers.

The bulk of the records in dispute were only in the custody of the PMO, the Office of the Minister of Transport and the Office of the Minister of National Defence. The Court held that the act did not apply to these records by virtue of these three offices’ status as “institutions.” None are listed in the Act’s schedule of institutions, but their bureaucratic counterparts are – namely, the Privy Council Office (the “PCO”), the Department of Transport (the “DOT”) and the Departments of National Defence (the “DND”). In a very lengthy analysis of the text and structure of the Act and extrinsic factors showing Parliament’s intent, the Court concluded that, for the purposes of the ATIA, the PMO is not part of the PCO nor are other ministerial offices part of their departments.

Despite this finding, the Court nonetheless considered whether responsive records in the custody of the PMO and ministerial offices were in the control of the PMO and the two Departments. Before assessing the various classes of records at issue, the Court again engaged in a lengthy analysis of the meaning of “control.” It said control means that an institution has some power of direction or command over a document, even if it is only on a ‘partial’ basis, a ‘transient’ basis, or a ‘de facto’ basis.”

Based on this meaning, the Court held most of the records in the custody of the PCO and the two Departments were not under the control of a government institution and thereby beyond the right of public access. The exception: records listing the items to be addressed at meetings between the former Minister of Transport, his exempt staff as well as the Deputy Minister and Chief of the Defence Staff (the two of whom hold offices within the DND) and some miscellaneous records shared amongst the same group for similar purposes. The Court framed the meeting agendas as used by both by the Minister’s own office and the DND and said that a DND officer, “would most likely be given another copy of the agenda from the Minister’s office if he was missing his copy.”

As it does not appear that any exemptions were claimed on these DND records, this left the Court with a decision to make about the scope of access to copies of about 400 pages from the former Prime Minister’s agenda book which were in the custody and control of the PCO and the RCMP. The Court rejected a claim that the records were excluded from the ATIA as Cabinet confidences, held that the Canada Evidence Act certificate by which the Clerk of the PCO designated the records as Cabinet confidences was invalid and held that the exemption for “advice and recommendations” did not apply. These findings were driven by the fact that the entries in the agenda did not address the content of the Prime Minister’s meetings nor were they apparently sensitive in any other way. The Court did hold some personal information in the records to be exempt. Notably, this included the names of individuals who met with Mr. Chretien including (as the Court specified) business people, fund-raisers and lobbyists regardless of the capacity in which they were engaged.

Canada (Information Commissioner) v. Canada (Minister of National Defence), 2008 FC 766.