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T-1042-86 T-1090-86 T-1200-86
Information Commissioner of Canada (Applicant)
v.
Minister of External Affairs (Respondent)
INDEXED AS: CANADA (INFORMATION COMMISSIONER) v. CANADA (MINISTER OF EXTERNAL AFFAIRS) (T.D.)
Trial Division, Muldoon J.—Ottawa, April 26 and August 28, 1990.
Access to information — Applications to review deemed refusal to disclose records relating to free trade negotiations with U.S.A. — Respondent conceding extensions of time limits not justified, but arguing application moot as records eventu ally released — Commissioner entitled to judicial determina tion under Access to Information Act, s. 42(1)(a) — "Any refusal" in s. 42(1)(a) including deemed refusal — Judicial scrutiny unrestricted — Purpose of review to let other poten tial respondents know where they stand, not just to secure admission of tardiness in instant case — Purpose of Act to force change of public servants' reluctance to release govern ment information.
These were applications for a review under Access to Infor mation Act, paragraph 42(1)(a) of the deemed refusal by the Minister of External Affairs to disclose records related to free trade negotiations with the U.S.A. The issues revolved around the tardiness of the respondent's high departmental managers in complying with the requests for access to information within the primary time frame for so doing as well as extended times. The respondent's counsel conceded that their conduct was so tardy as to amount to "deemed refusals" to give access to the information. The requesters complained to the Information Commissioner, who found the complaints to be justified. A week or so after the filing of these applications, or some six to eight months after the original requests, the records were released with an accompanying press kit. In asserting that the Department of External Affairs acted unreasonably and outside the spirit of the Act by obfuscating the reasons for the delays in responding to the access requests, the applicant conceded that she does not assert malice, only very great negligence. The respondent denied any deliberate strategy to delay, or to obfus cate. It conceded that the 120-days' extension invoked in regard to each request was not justified, but urged the Court to decline to accord discretionary declaratory relief because the issues were moot in light of the eventual compliance. Furthermore, it submitted that the Information Commissioner was attempting to use the Court review process as a substitute for her own investigation (under section 32 of the Act) and annual report to
the Minister (section 38) or special report to Parliament (sec- tion 39).
Held, an order should go as asked.
The department had delayed unduly in responding to the access requests; the extensions of time were not justified; the Department acted negligently, ignorantly and outside the spirit of the Act by obfuscating (without malice) the reasons for the delays; and, being unjustified pursuant to section 9, the 120-day extensions amounted to deemed refusals to disclose the request ed records. The effect of these findings should accordingly be declared in accordance with section 49.
The Commissioner is entitled to a judicial determination of the matters under review. Paragraph 42(1)(a) accords the choice of proceeding by application to the Court absolutely. That right could not be thwarted by the untimely tendering of concessions.
The term "any refusal" in paragraph 42(1)(a) includes a deemed refusal, defined in subsection 10(3) as failing to give access within the time limits set out in the Act. The content of the "review of any refusal to disclose a record requested under the Act" is unlimited. It means unrestricted judicial scrutiny which may result in the granting of relief which is corrective, directive, instructive and declaratory. This interpretation is supported by the uniform ending expressed in sections 49, 50 and 51: "the Court ... shall make such other order as the Court deems appropriate".
The purpose of the paragraph 42(1)(a) review is not just to make the respondent acknowledge unreasonable tardiness, but also to let all other potential respondents know where they stand in these matters. Responding to requests is extra work for the government departments, but when, as in the Access to Information Act, Parliament lays down these additional respon sibilities, there must be compliance. One of the principal pur poses of the Act is to force a change of public servants' habitual reluctance to give out government information.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Access to Information Act, S.C. 1980-81-82-83, c. 111 (Schedule), ss. 9, 10(3), 32, 38, 39, 40, 41, 42, 49, 50, 51, 53.
CASES JUDICIALLY CONSIDERED
APPLIED:
Aerlinte Eireann Teoranta v. Canada, [1987] 3 F.C. 383 (T.D.); affd A-155-87, Heald J.A., judgment dated 27/2/90, not yet reported; Mikaeli v. Canada (Minister of Employment and Immigration), [1990] 1 F.C. 562 (T.D.).
COUNSEL:
Michael L. Phelan, Patricia J. Wilson and Paul B. Tetro for applicant.
Barbara A. McIsaac 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
MULDOON J.: Considering the subject-matter, these are old files. The respective motions were heard by the Court on April 26, 1990, and counsel indicated that because of the effluxion of time, all sense of urgency had even by then drained out of these matters.
Each of the applicants made access requests under the Access to Information Act, S.C. 1980- 81-82-83, c. 111 (the Act), Schedule I, as follows:
Leslie Shepherd—three; dated November 27, 1985, November 28, 1985, December 17, 1985
Bruce Campbell—one; dated December 3, 1985 Mr. Campbell is stated to have been a researcher for Steven Langdon, M.P.,
and
Martin Cohn—two; dated September 30, 1985, December 9, 1985.
All three virtually identical notices of applica tion reveal that an application will be made:
... pursuant to paragraph 42(1)(a) of the [Act] ... for a review of the deemed refusal pursuant to subsection 10(3) of the Act by the Respondent Minister ... to disclose certain records requested under the Act by [the three applicants, respectively] namely certain records related to free trade negotiations with the United States of America, as set out in [the above listed] access requests dated [as above noted] copies of which are attached as exhibits ... to the affidavit of James G. Long, filed.
Some ten months after the filing of the three applications, the respondent, in December, 1986, moved in each instance to have the respective applications dismissed . . .
upon the ground that the applicant seeks a declaration as to an issue which is academic and of no practical consequence . .
The aforesaid motions for dismissal came on to be heard by the Associate Chief Justice who, on January 28, 1987, made an order reserving his disposition "until the main motion is heard".
The issues in these cases revolve around the tardiness of the respondent's high departmental managers in complying with the requests for access to information within the primary time frame for so doing as well as extended times. So tardy were the respondent's high officials that, it is conceded by the respondent's counsel, their con duct amounted to "deemed refusals" to give access to the information. This generated the requesters' complaints to the Access to Information Commis sioner (hereinafter, sometimes: the Commissioner) and it is conceded that she, the Commissioner, found that the requesters' complaints were well founded.
The respondent, by counsel, "does not take issue with the reconstruction by the . .. Commissioner and her counsel of the facts relating to the process ing of the requests which are in issue in this application". It seems that every document of proximate or remote relevance to these proceed ings has been lodged in Court, producing an eye- straining quantity of reading-materials. The facts are recited on 23 foolscap sheets in volume IV of the Commissioner's record. Those who thirst for buckets of detail in the to-ing and fro-ing, may find satisfaction in the reading.
A week or so after the filing of Shepherd's and Campbell's cases in Court by the Commissioner, that is, according to paragraph 55 of the appli cant's statement of facts in her motion record, on May 21, 1986, the records were released with an accompanying press kit. Additional information was released on May 29 and 30, 1986. Reference is made to Simon Wade's affidavit, paragraph 26 and to James Gordon Long's affidavit in T-1200- 86, both found in the motion record volume I, tabs 10, 11 and 12 and tab 6 respectively. The last- mentioned application, Cohn's, T-1200-86, was instituted on May 26, 1986. The applicant's coun sel, in Court, conceded that when he asserts in paragraph 61(f) of volume IV of the applicant's record that the preceding paragraphs 18 to 28
show that "the Department [of External Affairs] acted unreasonably and outside the spirit of the Act by obfuscating the reasons for the delays in responding to the access requests during the course of the Information Commissioner's investigation", the applicant does not assert malice, only very great negligence. It is just as well that counsel made that concession, for the words surely do seem to convey, if not malice, then very bad faith. On this, the respondent is adamant that there was no deliberate strategy by the respondent's high offi cials to delay, or to obfuscate.
Most of the rest of the concessions proceed from the respondent, by counsel, and they save the applicant's counsel much effort by establishing much of the applicant's case. Not only did the respondent's counsel make concessions in her letter dated February 11, 1987, lodged in all three files, but the respondent's motion record has a confes sional air about it, too. It proceeds, thus:
2. With respect to the findings which the Information Commis sioner urges at paragraph 61 of her memorandum, the Respondent has conceded from the outset of these proceedings that there was a deemed refusal when the extended time limits for responding to these requests were not met.
3. Similarly, the Respondent has conceded from the outset that, in retrospect, no evidence is available to justify the reasonableness of the 120 day extensions which were taken in respect of these requests.
4. The Respondent has also conceded that it would have been better had it released records to the requestors as they became ready for release, rather than waiting until all of the records were ready.
5. With respect to subparagraph (c) of paragraph 61, it is submitted that there is nothing in the evidence to justify a conclusion that the officials who were working on the process ing of these requests proceeded only on the basis of the fact that the extended time periods had not yet expired.
6. With respect to subparagraph (f) of paragraph 61, it is submitted that there is nothing in the evidence to justify a conclusion that the Respondent or officials within the Depart ment deliberately obfuscated the reasons for the delays when responding to the Information Commissioner's investigation.
7. It is respectfully submitted that the Information Commis sioner is attempting to use the Court review process in this case as a substitute for her own investigation, and that she had the power to make a full investigation of the delays, to make
findings of fact, and to make a report of her findings to the Minister and, if she felt it appropriate, to Parliament. It is again respectfully submitted that the declaratory relief sought by the Commissioner would serve no useful purpose, and that this Court ought to exercise its discretion and decline to make the findings requested by the Commissioner or issue the decla ration which [sic] has been requested.
At the hearing of these matters, the respondent's counsel noted that the records to which the appli cant sought access related to a significant govern ment initiative, free trade with the U.S.A. and to Canada's negotiating position. She asserted, right ly, that the information recorded had to be reviewed very carefully. Granted. Even so, how ever, that correct assertion does nothing to dilute the concessions stated in the respondent's motion record and earlier in the proceedings.
The Act provides alternative, or rather addition al, approaches for the Commissioner to attempt in order to exact compliance with the law on the part of heads of government institutions. The Commis sioner may commence an investigation pursuant to section 32 of this Access to Information legisla tion. More to the point of identifying and, in a sense, denouncing, recalcitrance, bloody-minded ness or negligence by heads of governmental insti tutions, the Commissioner could comment or com plain about it in an annual report (section 38) or a special report (section 39) to Parliament.
It is, surely, for the Commissioner to decide whether the somewhat diffused proceeding of transmitting a report to the respective speakers of the Senate and House of Commons pursuant to section 40, when the complaint involves high offi cials of the government of the day involved in a significant government initiative—free trade, here—would be as effective as direct application to the Court, an objectively non-partisan adjudicator which may make a review on grounds of law. The choice of proceeding as the Information Commis sioner now does, pursuant to paragraph 42(1)(a) of the Act, is accorded absolutely by Parliament, in the Act. The Commissioner's choice is not to be gainsaid by any respondent on any grounds of distaste, inconvenience or tendering late conces-
sions. The Commissioner is entitled to have a judicial determination of the matters under review.
The pertinent legislative provisions are titled "Review by the Federal Court", and they run as follows:
41. Any person who has been refused access to a record requested under this Act or a part thereof may, if a complaint has been made to the Information Commissioner in respect of the refusal, apply to the Court for a review of the matter within forty-five days after the time the results of an investigation of the complaint by the Information Commissioner are reported to the complainant under subsection 37(2) or within such further time as the Court may, either before or after the expiry of those forty-five days, fix or allow.
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.
The term "any refusal" must include a deemed refusal defined in subsection 10(3) as failing to give access within the time limits set out in the Act. The concurrence of the French language ver sion of a statutory text with the English language version where the latter expresses "any" and the French language version expresses no specific equivalent word, as is the case in paragraph 42(1)(a), is dealt with in Aerlinte Eireann Teo- ranta v. Canada, [1987] 3 F.C. 383 (T.D.), at page 395, upheld on appeal, A-155-87 [Heald J.A., judgment dated 27/2/90, not yet reported], and more recently in Mikaeli v. Canada (Minister of Employment and Immigration), [1990] 1 F.C. 562 (T.D.) at page 569. The content of the "review of any refusal to disclose a record requested under the Act" is quite unlimited. It means therefore, nothing less than unrestricted judicial scrutiny which may result in measures or relief which are, at least, corrective, directive, instructive and declaratory. In effect Parliament accords the plenitude of judicial supervision which is the hall mark of a superior Court's jurisdiction. Parliament imposes no restriction here.
The foregoing interpretation of the Court's role in performing the review provided in the Act, is supported by the uniform ending expressed in sec tions 49, 50 and 51: "the Court . . . shall make such other order as the Court deems appropriate", and "la Cour rend une autre ordonnance si elle l'estime indique."
Since there is no fundamental dispute as to the facts and since the statement of facts together with the relevant body of documents is truly volumi nous, there is little point or utility in simply recit ing everything here again. A few notations of the course of events will suffice.
Paragraphs 41 through 49 of the stated facts give an authentic appreciation of certain events. Persons and acronyms need to be identified. Mr. Bill Dymond was the contact-person for the Senior Adviser and Coordinator of the Canada/U.S. Trade Task Force, with the remarkable acronym: UGBA. Mr. Derek H. Burney was the Associate Under-Secretary for External Affairs. The Trade Negotiator's Office, (the TNO), was headed by Mr. Simon Reisman. The following are from the Infor mation Commissioner's Motion Record, volume
41. By December 24, 1985, the officers in UGBA and the Access unit had identified and vetted 355 documents. The UGBA officer, however, indicated that he thought relevant documentation consisting primarily of the sectoral studies (Leslie Shepherd's requests) could still remain with UGBA and had not yet been forwarded for processing.
Response to Interrogatories, Motion Record, Volume II, Tab 16.2B
42. On December 24, 1985, at a departmental meeting chaired by Derek Burney, it was decided that, of the 355 documents retrieved as potentially relevant, only 31 studies and reports needed to be reviewed. This review was to be carried out as a matter of urgency to identify fully-releasable documents for public release by Ministers Clark and Kelleher. The remaining documents were to be processed under the Act. Eventually it was 26 of these 31 records that were released, in whole or in part, to the requestors in response to their requests.
Response to Interrogatories, Motion Record, Volume II, Tab 16, Para. 3, Tab 16.3A
43. On December 27, 1985, the 355 documents originally identified and recommended for release, severance or exemp-
tion, were reviewed by the UGBA officer and Mr. Dymond, and the list of recommendations revised to reflect Mr. Dymond's input. As of December 27, 1985, therefore, the records eventually identified and released or withheld in response to the access requests had been made the subject of recommendations as to releasability by the Department.
Response to Interrogatories, Motion Record, Volume II, Tab 16.2C
44. On January 10, 1986, Mr. Dymond sent a memorandum to Mr. Burney outlining the access requests received and enclosing a draft press release summarizing seven studies proposed to be made available immediately. The seven studies proposed to be released were the following contracted studies:
(1) Institute for Research on Public Policy (a survey of existing literature);
(2) Informetrica Ltd. (macro-economic study);
(3) Data Resources (macro-economic study);
(4) Grey, Clark Inc. (the Autopact);
(5) Arnold and Porter (U.S. trade remedy laws);
(6) Lane study (the European experience); and
(7) Stone study (institutional considerations).
The memorandum also indicated that the C.D. Howe Institute papers on issues associated with harmonization would be ready sometime that month and could be considered for release soon after receipt. The memorandum stated that all other material sought would be denied under the appropriate provisions of the Act.
Response to Interrogatories, Motion Record, Volume II, Tab 16-12B
45. On January 27, 1986, Mr. Burney sent a memorandum to Mr. Reisman at the Trade Negotiations Office discussing the proposed release of the contracted studies and stressing the urgency of the need for a decision "before delinquency itself becomes the issue".
Productions to Wade Affidavit, Confidential Motion Record, Volume III, Tab 22
46. The Trade Negotiations Office responded on February 10,
1986 with its concurrence and comments about release of the
seven studies.
Productions to Wade Affidavit, Confidential
Motion Record, Volume III, Tab 23
47. On February 21, 1986, the Access Coordinator sought advice from departmental legal services about the applicability of some of the proposed exemptions in respect of the 31 reports. A preliminary response was provided on March 3, 1986. A final response was provided on March 20, 1986.
Productions to Wade Affidavit, Confidential
Motion Record, Volume III, Tabs 25, 26
48. On April 11, 1986, the Access Coordinator sent the 31 documents to the Trade Negotiations Office for its review. The Trade Negotiations Office provided its recommendations on the documents on April 16 and 21, 1986. The Trade Negotiations
Office noted in its correspondence that one deadline for responding had already passed and several were immediately pending when it received the records for review.
Productions to Wade Affidavit, Motion
Record, Volume II, Tab 14.24;
Response to Interrogatories, Motion Record,
Volume II, Tab 16.13A, 16.13B
49. On or about April 28, 1986, Mr. Burney sent a memoran
dum to the Minister of International Trade seeking approval
for the release of three of the contracted studies. By this time
two of the previously identified contracted studies had already
been published.
Productions to Wade Affidavit, Motion
Record, Volume II, Tab 14.27
In regard to the 120-days' extension which the respondent's officials invoked in regard to each request, the respondent's counsel had to admit in oral argument, "It now seems clear that the 120 days extension was, in fact, not justified." The evidence surely bears out counsel's admission, as indicated in the statement of facts, paragraphs 50 through 54. It is apparent that the consultations which were undertaken by External Affairs with other involved departments of government were not initiated until March, 1986. They could have started in December, 1985 or, more generously, in January, 1986; and they could have been conclud ed by late January or early February, 1986.
Section 9 of the Access to Information Act states not only time limits, but also principles which inform and vivify the Act and its operations:
9. (1) The head of a government institution may extend the time limit set out in section 7 or subsection 8(1) in respect of a request under this Act for a reasonable period of time, having regard to the circumstances, if
(a) the request is for a large number of records or necessi tates a search through a large number of records and meet ing the original time limit would unreasonably interfere with the operations of the government institution,
(b) consultations are necessary to comply with the request that cannot reasonably be completed within the original time limit, or
(c) notice of the request is given pursuant to subsection 28(1)
by giving notice of the extension and, in the circumstances set out in paragraph (a) or (b), the length of the extension, to the person who made the request within thirty days after the request is received, which notice shall contain a statement that the person has a right to make a complaint to the Information Commissioner about the extension.
(2) Where the head of a government institution extends a time limit under subsection (1) for more than thirty days, the head of the institution shall give notice of the extension to the Information Commissioner at the same time as notice is given under subsection (1).
Given the statutory scope of this review, quite properly invoked by the Commissioner, and in view of the concessions and admissions made on the respondent's behalf in regard to the undisputed facts presented, the Court, upon review of each of the requesters' cases, is surely in a position to make further findings, like the above conclusion about the 120-days' extension, and declarations of principle. The respondent's counsel argues as per suasively as possible that the issues are all now moot, and so would be declaratory relief. She notes that the according of declaratory relief is discre tionary, and she urges the Court to decline to accord it, because of the futility of these proceed ings brought by the Information Commissioner, in view of the respondent's late compliance after the institution of these proceedings in two of the cases. Conceding that the evidence shows, with 20-20 hindsight that the requests could have been proc essed more quickly, on the respondent's behalf, she accepts that in responding to these and future requests the respondent "must, however, proceed as expeditiously as possible". Counsel's ultimate plea at the hearing was that in view of the forego ing, the applications ought to be dismissed, because the Court's discretion to allow them ought to be declined.
These are not cases for declining to exercise the salutary powers of review conferred on the Court by Parliament. Confession that such requests ought to be processed as expeditiously as possible may be good for an individual's soul, but it has no didactic energy in gaining the attention of govern ment departments. It has no effect in actually providing legally that less than expeditious proc essing of requests for information is breaking the law, as it surely is. The purpose of the review is not just to make the particular respondent acknowl edge unreasonable tardiness. It is, also, to let all the other potential respondents know where they stand in these matters. The Court is quite con-
scious that responding to such requests is truly "extra work" which is extraneous to the line responsibilities and very raison d'être of govern ment departments and other information-holding organizations of government. But when, as in the Access to Information Act, Parliament lays down these pertinent additional responsibilities, then one must comply.
After much consideration, the Court concludes that the findings and declarations sought by the Commissioner are amply supported by the evi dence, and are all justified, except for any possible inference of deliberately "obfuscating the reasons for the delays in responding to the access requests during the course of the Information Commission er's investigation". The evidence, rather, suggests confusion, ignorance and negligence which are at least not ignoble, but constitute no reason to award laurels, either. It cannot be doubted that one prin cipal purpose of the Act is to force a change of public servants' habitual, ingrained reluctance to give out the government's information, even apart from the obvious, stated limitations on access.
The Court finds, therefore, that
(a) the respondent's department delayed unduly in responding to the access requests, which could have been achieved easily by late January or early February, 1986 instead of by late May, 1986;
(b) the 120-day extensions of time invoked in response to the requesters' access requests were not justified under section 9 of the Access to Informa tion Act;
(c) the respondent's department acted unreason ably in processing the access requests with only the extended deadlines in mind, rather than processing them, and each and every one of them as expedi tiously as possible, and it thereby breached the requirements of section 9 of the Access to Infor mation Act;
(d) the respondent's department breached the requirements of section 9 of that Act by invoking the same 120-day extensions for all of the access
requests, even although the records were being processed at the same time;
(e) the respondent's department breached the requirements of section 9 by withholding records ready for release until all the records had been processed rather than releasing the records as they became available;
(f) the Department acted negligently and igno rantly outside of the spirit of the Act by obfuscat ing (without malice) the reasons for the delays in responding to the access requests during the course of the Information Commissioner's investigation;
(g) the respondent's department's obfuscation breached section 9 of the Act by evading any valid reason for taking the 120-day extension, because, in order to show that extensions are for "a reason able period of time" pursuant to subsection 9(1) of the Access to Information Act, the department must state cogent, genuine reasons for the exten sion, and for its length;
(h) being unjustified pursuant to section 9 of the Act, the 120-day extensions amounted to deemed refusals to disclose the requested records pursuant to subsection 10(3) of the Access to Information Act.
The Court will declare the effect of the above findings in accordance with section 49 of the Act, as sought by the applicant Commissioner. Ordi narily costs follow the event, as stated in section 53, even although in this instance, one emanation of the federal government, the Information Com missioner, will be entitled to payment from another, the Minister of External Affairs, both emanations being supported by the taxpayers' money. That may seem to be bizarre, but given the important nature of the Commissioner's role in society such disposition of costs was obviously contemplated by Parliament. In any event such disposition of costs may be seen to be somewhat functional in that the Information Commissioner retained outside counsel and, in view of her vindi cation herein, the applicant's budget should not be the government pool of taxpayers' money to bear the party-and-party costs which the Court awards
in the applicant's favour. Costs will be paid by the Minister out of his department's pool of taxpayers' money. Thus, in accordance with subsection 53(1) of the Act, do costs follow the event.
The applicant may write to the Court by letter, to suggest the disposition of the "Confidential Motion Record of the Applicant" (volume III), after the expiry of an appropriate length of time.
The signed copy of these reasons shall be lodged in file T-1042-86, and a photocopy shall be lodged in each of files T-1090-86 and T-1200-86, to serve for the Court's reasons therein.
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