Yesterday, the Supreme Court of Canada issued a decision that deals with the scope of Access to Information Act application, in particular to “ministerial” records.
The Court considered a series of ATIA requests filed in 1999 by a Reform Party staffer, including a requests for former Prime Minister Chretien’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, raising a question about whether these offices are subject to the act as “institutions.” None of these political offices are listed in the Act’s schedule of institutions, but their bureaucratic counterparts are – namely, the Privy Council Office, the Department of Transport and the Department of National Defence.
In June 2008, Justice Kelen of the Federal Court, conducted a lengthy analysis of the text and structure of the ATIA and extrinsic factors showing Parliament’s intent. He 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. According to this finding, records within the PMO and ministerial offices can only be subject to the ATIA if they are in the “control” of the bureaucracy. Parts of former Prime Minister Chretien’s agenda book, for example, were admitted to be in the control of the Privy Council Office and the Royal Canadian Mounted Police and subject to the Act. Justice Kelen ordered this information to be disclosed based on a finding that the Prime Minister is an “officer” of the Privy Council Office and, cannot shield information which “relates to the position or functions of the individual” from public access based on the personal information exemption. This last finding was overturned by the Federal Court of Appeal in June 2009.
The Supreme Court unanimously dismissed the Information Commissioner of Canada’s appeal, with Justice Charron writing for eight judges and Justice LeBel writing a concurring judgement on his own. It is therefore clear that the PMO and ministerial offices are not institutions under the ATIA and that the Prime Minister is not an officer of the PCO. The Court also unanimously endorsed the two-part control test articulated by Justice Kelen: records are under the control of a government institution if (1) they relate to a departmental matter and (2) the government institution could reasonably expect to obtain a copy of the document upon request. Regarding the second part of this test, Justice Charron stressed that the required analysis is contextual and normative:
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. These factors include the substantive content of the record, the circumstances in which it was created, and the legal relationship between the government institution and the record holder. The Commissioner is correct in saying that any expectation to obtain a copy of the record cannot be based on “past practices and prevalent expectations” that bear no relationship on the nature and contents of the record, on the actual legal relationship between the government institution and the record holder, or on practices intended to avoid the application of the Access to Information Act (A.F., at para. 169). The reasonable expectation test is objective. 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. In applying the test, the word “could” is to be understood accordingly. (emphasis in original)
The split between Justice LeBel and the majority is puzzling. Justice LeBel joins the majority on all findings but takes great issue with its reasoning, which suggests that Parliament intended ministerial records to have special excluded status. Justice LeBel accuses the majority of creating a presumption that such records are not subject to public access, which the majority flatly denies. Given the majority’s denial, Justice LeBel’s split should not have great practical significance.