FCA speaks on impact of a consent to disclose third-party information under the ATIA

On June 22nd, the Federal Court of Appeal ordered Public Works and Government Services Canada to re-determine an access request because it decided that a third-party’s consent to disclose its commercial information ruled out an exemption claim. 

The request was for personnel rates offered to government by a staffing company. The company agreed to a contract clause that the Court held constituted a consent to disclose the information to the public at large. 

The Court held that PWGSC erred by treating the clause as an “outright bar” to the company’s reliance on the third-party information exemptions in the Access to Information Act. It held that PWGSC ought to have first determined if any of the third-party exemptions applied and then considered whether or not to disclose the information because of the consent [thereby exercising the discretion granted in section 20(5)]. 

The decision also includes helpful dicta on the kind of evidence that third-parties must adduce to establish probable economic harm – dicta that supports an argument that the likelihood of harm can oftentimes be inferred from rather basic facts about the competitive context. (Rate or unit price information, in particular, is associated with some rather obvious potential harms.)

Canada (Office of the Information Commissioner) v. Calian Ltd., 2017 FCA 135 (CanLII).

Case Report – Federal Court deals with what’s accessible as “relating to” a public service position or function

On June 9th, the Federal Court held that the employment history of federal public servants prior to their entry into the pubic service is not accessible as information that “relates to the position or functions of the individual.”

Section 19 of the Access to Information Act is a mandatory exemption for records containing “personal information” as defined in section 3 of the Privacy Act. Section 3 of the Privacy Act defines personal information as “information about an identifiable individual,” including information related to an individual’s “employment history.” This definition is then subject to a provision that deems certain kinds of information to be excluded from the definition of personal information, including:

3(j) information about an individual who is or was an officer or employee of a government institution that relates to the position or functions of the individual including,

(i) the fact that the individual is or was an officer or employee of the government institution,

(ii) the title, business address and telephone number of the individual,

(iii) the classification, salary range and responsibilities of the position held by the individual,

(iv) the name of the individual on a document prepared by the individual in the course of employment, and

(v) the personal opinions or views of the individual given in the course of employment

The applicant relied on this deeming provision in seeking access to information about job competition candidates’ employment history prior to their entry into the pubic service. He argued that this information, though not about a position or function in the public service, nonetheless “relates to” a position or function because each candidate’s employment history prior to entry into the public services was essential to obtaining a public service position.

The Court rejected this argument, stating:

…the Court cannot conclude that the information to which this application pertains is information relating to the position or functions of the candidates hired under these four competitions. This information concerns their education, experience and skills prior to obtaining a position in a government institution. It also primarily concerns the persons themselves, even if these skills and personal suitability were assessed to ensure that these candidates had the skills otherwise required for these positions in the federal administration. As mentioned, the information regarding the general characteristics directly associated with these positions, including the qualifications required to obtain them, – as opposed to information on the candidates themselves – was disclosed to the applicant. (Emphasis in original.)

The Court noted that its finding was on an issue of first impression.

Nault v. Canada (Public Works and Government Services), 2010 FC 623.

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

In an oral judgement issue on May 27th, the Federal Court of Appeal dismissed the Information Commissioner of Canada’s appeal of Justice Kelen’s June 2008 finding that the Prime Minister’s Office and other ministerial offices are not “institutions” whose records are subject to the Access to Information Act.

Justice Kelen had also found that some information in former Prime Minister Chretien’s agenda book in the control of the Privy Council Office and the Royal Canadian Mounted Police was not exempt from public access as his personal information. On May 29th, the Federal Court of Appeal allowed an RCMP appeal of this finding. The Court of Appeal held the Prime Minister is not an officer of the Privy Council Office whose job-related information excluded from the definition of personal information by section 3(j) of the ATIA.

Both of the Court of Appeal judgements turn on a finding that the ATIA was drafted on the basis of a well understood convention that the Prime Minister’s Office is separate from the Privy Council Office and the offices of Minsters are seaprate from the departmetns over which ministers preside.

My detailed summary of Justice Kelen’s judgement is here.

Canada (Information Commissioner) v. Canada (Minister of National Defence), 2009 FCA 175.

Canada (Royal Canadian Mounted Police) v. Canada (Information Commissioner), 2009 FCA 181.

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.