T-746-88
Information Commissioner of Canada (Applicant)
v.
Minister of National Defence (Respondent)
INDEXED AS: CANADA (INFORMATION COMMISSIONER) v.
CANADA (MINISTER OF NATIONAL DEFENCE) (T.D.)
Trial Division, Reed J.—Ottawa, February 19 and
22, 1990.
Access to information — Notice of refusal to grant access to
documents — Information Commissioner, acting on behalf of
requester, applying to Court under Act, s. 42(1)(a), to deter
mine whether Minister required, in notice of refusal based on
Act, s. 15, to specify paragraphs thereof relied on — Act, s.
10(l) not requiring notice identify specific category of docu
ment listed in s. 15(1) — For purposes of s. 15, requirements
of s. 10 met by identifying types of injury liable to occur
Reference to specific descriptive paragraphs not required,
although commendable in many circumstances.
Federal Court jurisdiction — Trial Division — Whether
jurisdiction in Court, under Access to Information Act, to
entertain application to review refusal of access to information
where application limited to content of notice — Jurisdiction
in Court as requirements of Act, s. 50 met: head of government
institution refused to disclose requested record — Commis
sioner authorized, under s. 42(1), to apply for review of any
refusal to disclose requested record — Review of content of
notice of refusal review of refusal — Application seeking
assessment of content of notice not falling outside Act, s. 42(1)
or 50.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Access to Information Act, R.S.C., 1985, c. A-1, ss. 2,
10(1), 15, 16, 18, 20, 21, 35(2), 37(5), 42(1)(a),(2),
50.
CASES JUDICIALLY CONSIDERED
CONSIDERED:
Canada (Information Commissioner) v. Canada (Minis-
ter of External Affairs), [1989] 1 F.C. 3; (1988), 18
F.T.R. 278 (T.D.); Vienneau v. Canada (Solicitor Gener
al), [1988] 3 F.C. 336; (1988), 24 C.P.R. (3d) 104
(T.D.).
REFERRED TO:
Rubin v. Canada (Canada Mortgage and Housing
Corp.), [1989] 1 F.C. 265; (1988), 52 D.L.R. (4th)
671; 19 F.T.R. 160; 86 N.R. 186 (C.A.); Davidson v.
Canada (Solicitor General), [1989] 2 F.C. 341;
(1989), 47 C.C.C. (3d) 104; 24 C.P.R. (3d) 129; 98 N.R.
126 (C.A.).
COUNSEL:
M. L. Phelan, P. J. Wilson and Paul B. Tetro
for applicant.
I. M. Donahoe for respondent.
SOLICITORS:
Osler, Hoskin & Harcourt, Ottawa, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
REED J.: This application is concerned with the
content of the notice which must be given when a
refusal to grant access to documents is issued.
That is, is a Minister required, when giving notice
of a refusal founded on section 15 of the Access to
Information Act, R.S.C., 1985, c. A-1 (hereinafter
the "Act"), to specify the particular paragraph or
paragraphs of that section which are relevant to
the refusal. The Court's jurisdiction to grant the
order sought, in this case, is also in issue.
Facts and Some Relevant Statutory Provisions
On February 11, 1985 Paul Knox wrote to the
Department of National Defence seeking access to
a number of document. Many of the documents
were released; six were not. They are described as
follows:
3. Exchange of Notes on Consultation prior to the Release of
Nuclear Weapons, 16 August 1962.
20. Agreement on Storage of Nuclear Weapons, September
1963.
31. Declaration of Hostilities and Rules of Engagement—
NORAD/CONAD Manual, 15 March 1972.
219. Exchange of Notes on the Operations of United States
Nuclear Powered Warships in Foreign Ports, 18 March •
1969.
288. United States-Canada CIM-108/CF101 Weapon Inspec
tion Plan, 15 December 1970.
290. Exchange of Notes on Conditions Under Which Storage
of Nuclear Anti-Submarine Weapons in Canada, for use
of U.S. Forces, Would be Permitted, 27 July 1967.
Mr. Knox applied to the Information Commis
sioner seeking a review of the decision refusing
him access to the documents. He also complained
that he had not been given the type of notice which
is required by subsection 10(1) of the Act because
he had not been told which paragraphs of section
15 were being relied upon, by the Minister, in
coming to the conclusion that access to the docu
ments would not be granted.
Subsection 10(1) of the Act provides:
10. (1) Where the head of a government institution refuses
to give access to a record requested under this Act or a part
thereof, the head of the institution shall state in the notice given
under paragraph 7(a)
(a) that the record does not exist, or
(b) the specific provision of this Act on which the refusal
was based or, where the head of the institution does not
indicate whether a record exists, the provision on which a
refusal could reasonably be expected to be based if the record
existed,
and shall state in the notice that the person who made the
request has a right to make a complaint to the Information
Commissioner about the refusal. [Underlining added.]
Subsection 15(1) provides:
15. (1) The head of a government institution may refuse to
disclose any record requested under this Act that contains
information the disclosure of which could reasonably be expect
ed to be injurious to the conduct of international affairs, the
defence of Canada or any state allied or associated with
Canada or the detection, prevention or suppression of subver
sive or hostile activities, including, without restricting the gen
erality of the foregoing, any such information
(a) relating to military tactics or strategy, or relating to
military exercises or operations undertaken in preparation for
hostilities or in connection with the detection, prevention or
suppression of subversive or hostile activities;
(b) relating to the quantity, characteristics, capabilities or
deployment of weapons or other defence equipment or of
anything being designed, developed, produced or considered
for use as weapons or other defence equipment;
(c) relating to the characteristics, capabilities, performance,
potential, deployment, functions or role of any defence estab
lishment, of any military force, unit or personnel or of any
organization or person responsible for the detection, preven
tion or suppression of subversive or hostile activities;
(d) obtained or prepared for the purpose of intelligence
relating to
(i) the defence of Canada or any state allied or associated
with Canada, or
(ii) the detection, prevention or suppression of subversive
or hostile activities;
(e) obtained or prepared for the purpose of intelligence
respecting foreign states, international organizations of states
or citizens of foreign states used by the Government of
Canada in the process of deliberation and consultation or in
the conduct of international affairs;
(I) on methods of, and scientific or technical equipment for,
collecting, assessing or handling information referred to in
paragraph (d) or (e) or on sources of such information;
(g) on the positions adopted or to be adopted by the Govern
ment of Canada, governments of foreign states or interna
tional organizations of states for the purpose of present or
future international negotiations;
(h) that constitutes diplomatic correspondence exchanged
with foreign states or international organizations of states or
official correspondence exchanged with Canadian diplomatic
missions or consular posts abroad; or
(i) relating to the communications or cryptographic systems
of Canada or foreign states used
(i) for the conduct of international affairs,
(ii) for the defence of Canada or any state allied or
associated with Canada, or
(iii) in relation to the detection, prevention or suppression
of subversive or hostile activities. [Underlining added.]
In response to Mr. Knox's request for a review
of the Minister's decision, the Information Com
missioner determined that the refusal of access to
the documents was justified on the grounds set out
in section 15 but that the notice of refusal, which
had been sent to Mr. Knox, should have contained
reference to the particular paragraphs of section
15 which were being relied upon. The Information
Commissioner obtained authorization from Mr.
Knox to pursue an appeal on his behalf to the
Federal Court pursuant to paragraph 42(1)(a) of
the Act.
42. (1) The Information Commissioner may
(a) apply to the Court, within the time limits prescribed by
section 41, for a review of any refusal to disclose a record
requested under this Act or a part thereof in respect of which
an investigation has been carried out by the Information
Commissioner, if the Commissioner has the consent of the
person who requested access to the record;
(b) appear before the Court on behalf of any person who has
applied for a review under section 41; or
(c) with leave of the Court, appear as a party to any review
applied for under section 41 or 44.
(2) Where the Information Commissioner makes an applica
tion under paragraph (1)(a) for a review of a refusal to disclose
a record requested under this Act or a part thereof, the person
who requested access to the record may appear as a party to the
review. [Underlining added.]
Jurisdiction
Counsel for the respondent argues that in the
circumstances of this case the Court has no juris
diction to entertain the appeal sought because
there is no substantive issue being appealed. That
is, the Commissioner upheld the Minister's deci
sion that access to the documents should not be
granted and, therefore, it is argued, there is no lis
between the parties.
It was noted that the Court's authority flowing
from section 50 of the Act is described as follows:
50. Where the head of a government institution refuses to
disclose a record requested under this Act or a part thereof on
the basis of section 14 or 15 or paragraph 16(1)(e) or (d) or
18(d), the Court shall, if it determines that the head of the
institution did not have reasonable grounds on which to refuse
to disclose the record or part thereof, order the head of the
institution to disclose the record or part thereof, subject to such
conditions as the Court deems appropriate, to the person who
requested access to the record, or shall make such other order
as the Court deems appropriate. [Underlining added.]
It is argued that in the present case since there is
no dispute concerning the non-disclosure of the
records in question, the Court has no authority to
issue an order.
On the other hand, counsel for the applicant
argues that subsection 37(5) describes the scope of
review and that in the context of that section an
applicant may apply to the Court for "a review of
the matter investigated".
37. . . .
(5) Where, following the investigation of a complaint relat
ing to a refusal to give access to a record requested under this
Act or a part thereof, the head of a government institution does
not give notice to the Information Commissioner that access to
the record will be given, the Information Commissioner shall
inform the complainant that the complainant has the right to
apply to the Court for a review of the matter investigated.
[Underlining added.]
It is argued that the matter which was investigated
in the present case comprised both the refusal to
grant access to the documents and the adequacy of
the refusal notice which had been sent to Mr.
Knox. It is argued that an appeal with respect to
the one issue only is properly before the Court;
and, that section 50 specifically provides that the
Court may order disclosure of records or "make
such other order as the Court deems appropriate".
It is argued that: the decision in Canada (Infor-
mation Commissioner) v. Canada (Minister of
External Affairs), [1989] 1 F.C. 3 (T.D.) deals
with a situation where this Court took jurisdiction
when there was no lis between the parties; there is,
in the present case, an important procedural issue
involved which it is in the public interest to have
determined; it is part of this Court's jurisdiction to
determine issues relating to the process and proce
dure by which decisions made under the Access to
Information Act are rendered.
I agree with the argument that the Court has
jurisdiction in this case. I do not think that the
literal wording of section 50, which sets out the
Court's authority, precludes such jurisdiction.
Indeed, technically the requirements of that sec
tion have been met: "the head of a government
institution" has refused "to disclose a record
requested" under the Act. Consequent upon a
review of that refusal, the Court may "make such
other order [i.e., other than ordering disclosure] as
the Court deems appropriate". In addition, the
Commissioner's authority under subsection 42(1)
(page 4 supra) is to "apply to the Court ... for a
review of any refusal to disclose a record requested
under this Act". That is what the Commissioner is
doing in this case. A review of the content of the
notice of refusal is, in my view, a review of the
refusal. I do not think that an application which
seeks only an assessment of the content of the
notice falls outside the text of subsection 42(1) or
of section 50.
Content of Notice of Refusal
I turn then to the merits of this application: is
there a requirement that the relevant paragraphs
of section 15 be identified in the refusal notice.
Counsel for the applicant argues that such is
required because the purpose of the Act (see sec-
tion 2) is to limit the non-disclosure of documents
and information in precise and specific ways,' and
a requirement to list the specific paragraphs
ensures that the Minister's discretion (to refuse
access) will be carefully and properly exercised. It
is argued that the whole purpose of giving notice to
a requester is to give him or her some assurance
that the request has been carefully considered in
accordance with the terms of the Act; and it may
enable the requester, in some circumstances, to
make more meaningful submissions to the Com
missioner pursuant to subsection 35(2) (the com
plaint procedure). In addition, the applicant would
like to "tie the Minister down". In Davidson v.
Canada (Solicitor General), [1989] 2 F.C. 341
(C.A.), it was held that the Privacy Commissioner
was bound by the grounds originally stated in the
notice of refusal. Thus, the applicant considers
that as much specificity as possible should be
provided in notices of refusal in order to "tie the
Minister down" with respect to his reasons for
refusing access.
It is not sought to have the specific paragraphs
of section 15 identified when that identification
would, itself, result in the harm described in sec
tion 15. Also, it is recognized that on some occa
sions section 15 may be relied upon without the
documents in question falling into any of the
descriptions set out in the illustrative paragraphs.
In such a case, of course, no paragraph could be
identified as being relied upon by the Minister.
The applicant argues, however, that, when a para
graph can be identified as having been relied upon,
the notice of refusal should contain that informa
tion.
The respondent's argument is based solely on
the text of section 15. It is noted that, unlike other
sections (e.g., sections 16, 18, 20, 21) of the Act,
the paragraphs of section 15 do not set out discrete
descriptions of information, access to which may
be refused. The main grounds on which access
' See Rubin v. Canada (Canada Mortgage and Housing
Corp.), [I989] 1 F.C. 265 (C.A.).
may be refused pursuant to section 15 are set out
in the opening words of subsection 15(1):
15. (I) ... any record ... that contains information the
disclosure of which could reasonably be expected to be injurious
to the conduct of international affairs, the defence of Canada
or any state allied or associated with Canada or the detection,
prevention or suppression of subversive or hostile
activities .... [Underlining added.]
The test is one of injury, or probable injury. The
descriptive paragraphs which follow are illustrative
only. They are a non-exhaustive description of the
kinds of documents the disclosure of which might
be found to be injurious to the specific interests
listed. Therefore, it is argued that the requirement
in subsection 10(1), that the notice shall contain
reference to "the specific provision of this Act on
which the refusal" is based, does not require a
reference to the specific paragraphs of section 15.
The decision in Vienneau v. Canada (Solicitor
General), [1988] 3 F.C. 336 (T.D.) was referred
to. It was recognized that the decision was peri-
pherally relevant because it had been found, in
that case, that the refusal notice contained suffi
cient specificity. The Associate Chief Justice in
coming to his decision, however, stated at pages
342-343:
I do not find support in the legislation for the applicant's
proposition [that the specific section numbers to which dele
tions from documents disclosed related should be written on the
documents]. It is clear from the terms of ss. 7 and 10 that what
is required from an institution which refuses access is a written
notice to the requestor [sic] of all the provisions of the Act
relied upon in refusing the request. The relevant section num
bers are to be provided in the letter of notice. There is no
indiOation that they must be linked to specific deletions and
certainly nothing requiring that they be written directly on the
released document.
I also fail to see how notice in this form will in any way
prejudice the applicants' rights under the Act. Any refusal
automatically triggers the right to complain and, ultimately,
the right to seek judicial review of every aspect of the refusal.
Those rights are not dependant on the provision of specific
exemptions for each deletion in a severed record. The govern
ment institution is sufficiently "tied down" to a basis for the
refusal by the list of sections provided in the section 7 notice.
That said, however, I should hasten to add that I find the
practice of providing section numbers next to deletions, as
many departments do, a highly commendable one. While not
strictly required by the statute, such a practice appears to me
entirely in keeping with the basic purpose of the Access to
Information Act, which is to provide citizens with as much
information about their government as possible. I would there-
fore urge that, where there is no danger of revealing the
substance of protected information, government institutions
should continue to provide the relevant section numbers for
each deletion.
I do not interpret the requirements of subsection
10(1) as requiring identification in the notice of
refusal of the specific category of document listed
in the paragraphs of subsection 15(1). In my view,
the term "specific provision of the Act" means
that there must be a reference to the reason for
refusal as those reasons are set out in the text of
the Act. In the context of section 15 the reason for
refusal is based on the probable injury which will
occur, not on the specific type of document
involved. As counsel argued, the paragraphs of the
subsection are illustrative only.
At the same time, the type of notice given to a
requester should not depend upon whether a par
ticular section of the Act is narrowly or broadly
drafted. Subsection 10(1) refers to "the specific
provision" of the Act on which the refusal is based
not to "the section" of the Act. In my view, the
requirements of subsection 10(1) may be accom
plished for the purposes of section 15 by identify
ing the type or types of injury which it is thought
would probably occur. I do not think that refer
ence to the specific descriptive paragraphs is
required, although, as the Associate Chief Justice
said in the Vienneau case, that practice may in
many circumstances be a commendable one. In my
view, what is required, in the context of section 15,
is that the requester be given notice as to whether
the reason for refusal is because a disclosure would
be (1) injurious to the conduct of international
affairs, or (2) injurious to the defence of Canada
or any state allied or associated with Canada, or
(3) injurious to the detection, prevention or sup
pression of subversive or hostile activities.
I am not convinced that the requester will suffer
any prejudice as a result of not being told which
specific paragraph is involved; the Information
Commissioner has full access to this information in
the context of an inquiry.
An order will issue in accordance with these
reasons.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.