ACCESS TO INFORMATION |
Blank v. Canada (Minister of Environment)
T-1474-99, T-1477-99
Muldoon J.
5/10/00
11 pp.
Judicial review pursuant to Access to Information Act, s. 41 of refusals by head of Environment Canada (EC) to disclose records requested by applicant--First application concerning request for documents relating to applicant, his company Gateway Industries Ltd., including deleted e-mails--EC informing applicant e-mail search would cost $5,700, requested 50% deposit--Applicant deleted e-mail search from original request, never reasserting e-mail search request--Requested information provided, except for some information being withheld pursuant to s. 19--Applicant filed complaint with Information Commissioner based on assertion "positive" EC having many more records, but unable to provide "concrete evidence" of belief--Information Commissioner not supporting complaint--Second application concerning request for any information pertaining to six named EC employees, any communications between them, from them, to them in relation to applicant and/or company--EC unable to locate any records in relation to request--Applicant filed complaint as positive records concerning request, but unable to provide concrete evidence of allegation--EC document search related to complaint investigation disclosing all but one document requested already released to applicant in relation to different access request--Information Commissioner holding complaint not substantiated--Access to Information Act, s. 41 indicating judicial review available only where actual or constructive refusal of access continuing at time of hearing in Court--Without refusal, Court lacking jurisdiction to grant remedy, since order to disclose only remedy available--Where applicant claiming documents being withheld, must exist some evidence of fact beyond mere suspicion--Act, s. 11(2) permitting head of government institution to require payment of additional amount calculated in manner prescribed by regulation--S. 11(6) permitting head of government institution to waive fee requirement--Applications dismissed for lack of jurisdiction--No actual or constructive denial of access to information in either application--Court has no remedy to grant because legislation not providing for order of "more thorough search and disclosure"--Applicant neither demonstrating actual occurrences of refusal of access nor providing evidence supporting suspicions--That several meetings for which applicant seeking minutes shown never to have taken place undermining claim even further--As to fees, in addressing request for search of such deleted e-mails, Information Technology (IT) department of EC had to consider: system and software in use; manner of search to be undertaken; length of time e-mails in system before being purged; potential restrictions on search; number of hours required to complete task--To occupy one employee with single project for almost four months creating strain on IT department of EC--Quite reasonable to request additional fee--In forcing e-mail search applicant virtually commandeering EC employee for own purposes for significant period of time--Moreover must note feasibility of search in system maintaining deleted e-mails for period of only five weeks--Thus unless ongoing discussion regarding applicant and company, highly unlikely required four-month search useful--Case law, legislation both providing head of institution may waive fee--Language permissive--Within institution head's discretion to weigh magnitude of request with amount of time, effort needed to provide information and then to determine whether imposition of fee required to ascertain conviction of applicant--Deposit only reinforcing applicant's level of commitment to request, especially when significant amount of time, effort invested--Access to Information Act, R.S.C., 1985, c. A-1, ss. 11(2), 19, 41.