Judgments

[1993] 2 F.C. 391

T-2922-91

Ken Rubin (Applicant)

v.

The Clerk of the Privy Council (Respondent)

Indexed as: Rubin v. Canada (Clerk of the Privy Council) (T.D.)

Trial Division, Rothstein J.—Ottawa, January 13 and March 2, 1993.

Access to information — Application to review refusal, pursuant to Access to Information Act, ss. 35, 16(1)(c), to disclose communications between PCO and Information Commissioner concerning earlier complaints — Neither s. 35 nor s. 16(1)(c) valid basis for refusal to disclose herein — S. 35 applies “in the course of an investigation or complaint”, not after conclusion of Commissioner’s investigation — Meaning of “representations” in s. 35 — S. 16(1)(c) not justifying confidentiality of investigative process of Information Commissioner, but confidentiality relating to records arising in individual cases.

This was an application to review the refusal to disclose communications between the Privy Council Office (PCO) and the Information Commissioner and any internal memos regarding the applicant’s complaints about two earlier refusals of requests for information about remuneration of government appointees. The request was denied under Access to Information Act, subsection 35(2) which provides that “In the course of an investigation of a complaint … no one is entitled as of right … to have access to … representations made to the Commissioner by any other person”. In upholding that refusal, the Information Commissioner indicated that paragraph 16(1)(c) also applied. Paragraph 16(1)(c) provides that the head of a government institution may refuse to disclose any record that contains information, the disclosure of which could reasonably be expected to be injurious to the conduct of lawful investigations. The applicant argued that section 35 did not apply because it was not located within that part of the Act which lists specific grounds for refusing access to information under government control. He also submitted that once the Commissioner’s investigation is complete, section 35 does not afford any protection. It was further argued that “representations” means only the actual documents forwarded to the Commissioner by the government institution, and not any of the internal or draft documents that were generated before the representations were prepared in final form. He also objected to the “untimely citation” of paragraph 16(1)(c), as he had not been informed that it was to be relied upon as an alternative ground for refusing access until he received the Commissioner’s letter. He submitted that the government institution named in an access request was bound to rely only on the grounds it originally stated in its notice of refusal.

The issue was whether either section 35 or 16 provided a valid basis for refusing the access request.

Held, the application should be allowed. The record should be disclosed, except for three pages pertaining to applicant’s prior disclosure application which was refused under other provisions of the Act.

Neither section 35 nor paragraph 16(1)(c) was a valid basis for refusing the access request. “Representations” must include the documents leading to the submissions that are ultimately made to the Information Commissioner. That term is wide enough to include all drafts and supporting documentation generated within the government institution for the purpose of communicating with the Information Commissioner. Communications from the Information Commissioner to a government institution would also be covered if they deal with submissions made by the government institution. Most proceedings are governed by the dictates of the rules of natural justice and procedural fairness. They must be open and parties should know the case of the other side to be able to respond to it. Access to information proceedings are different because they deal with whether or not information which is the subject of the proceeding should or should not be kept confidential. Open discussion of the merits of whether or not the information should be kept confidential could disclose the subject information. This is one reason for section 35. A second reason relates to the role of the Information Commissioner. A credible and effective Information Commissioner should have significant persuasive power to encourage voluntary resolution of requests for information under government control. An important aspect of the development of that credibility and effectiveness is the maintenance of strict confidentiality of information that is given to the Commissioner. Enhancing the persuasive influence of the Commissioner is consistent with the objective that access requests should be resolved quickly and at minimal cost. Forced disclosure of representations could result in the role of the Information Commissioner becoming more formal and the process less effective. This is not in the interest of timely access to information under government control which is the rationale for the legislation. In spite of these observations, and the perception that Parliament intended the Office of the Information Commissioner to be an efficient and effective mediator in disputes involving access to information under government control, section 35 clearly applies only “in the course of an investigation of a complaint”, and not after the conclusion of the investigation. The prohibition to access is not limited to “sensitive” documents.

The confidentiality justified by paragraph 16(1)(c) relates to records that arise in individual cases. Paragraph 16(1)(c) is not a procedural provision that justifies confidentiality in respect of the investigative process of the Information Commissioner. To so interpret paragraph 16(1)(c) would render much of section 35 redundant.

Three pages of the requested record appeared to contain confidential information pertaining to the subject-matter of the applicant’s prior substantive access application respecting remuneration of government appointees. That matter had not yet been heard and determined by the Court. Disclosure of those pages as a result of these proceedings would result in the release of some information which may be the subject of the applicant’s prior application without it being determined on its merits. An access request should not be a back-door means of obtaining access to information that is the subject of another proceeding. Nor should the process result in the same information having to be considered in three separate hearings. Access to information proceedings involving requests for representations to the Information Commissioner should not, unless special circumstances warrant, be heard and determined before determination on the substantive access request that gave rise to the Information Commissioner proceedings. This would not rule out consolidating the original application and the application for representations in an appropriate case.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Access to Information Act, R.S.C., 1985, c. A-1, ss. 4, 16(1)(c), 21(1), 35, 36 (as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 187), 41, 61, 62, 64.

CASES JUDICIALLY CONSIDERED

APPLIED:

American Airlines, Inc. v. Canada (Competition Tribunal), [1989] 2 F.C. 88; (1988), 54 D.L.R. (4th) 741; 33 Admin. L.R. 229; 23 C.P.R. (3d) 178; 89 N.R. 241 (C.A.).

CONSIDERED:

X v. Canada (Minister of National Defence), [1992] 1 F.C. 77; (1991), 46 F.T.R. 206 (T.D.); Davidson v. Canada (Solicitor General), [1989] 2 F.C. 341; (1989), 36 Admin. L.R. 251; 47 C.C.C. (3d) 104; 24 C.P.R. (3d) 129; 98 N.R. 126 (C.A.).

APPLICATION to review the refusal under Access to Information Act, subsection 35(2) and paragraph 16(1)(c) to disclose communications between the Privy Council Office and the Information Commissioner and any internal memos regarding the applicant’s complaints about two earlier refusals of requests for information. Application allowed, except for three pages relating to applicant’s prior application.

APPEARANCE:

Ken Rubin on his own behalf.

COUNSEL:

Barbara McIsaac for respondent.

APPLICANT ON HIS OWN BEHALF:

Ken Rubin, Ottawa.

SOLICITORS:

Deputy Attorney General of Canada for respondent.

The following are the reasons for order rendered in English by

Rothstein J.: This application is made pursuant to section 41 of the Access to Information Act, R.S.C., 1985, c. A-1 (the “Act”). In this application Ken Rubin has applied to this Court to review the refusal by the Privy Council Office (PCO) to accommodate his November 1, 1990 access to information request in which he sought:

correspondence/communications records between yourselves and the Information Commissioner or their office regarding my complaint re PCO request 108-2/896060 and request 108-2/886055, and any internal memos/briefing notes/correspondence.

Mr. Rubin’s November 1, 1990, request makes reference to two earlier access to information requests. One is a previous request of his (#896060) and the other, that of another individual, Don Sellar (#886055). These previous requests sought information relating to per diem rates/ranges for government appointees and specifically, the remuneration of Allan Gotlieb, Chairman of the Canada Council under order in council P.C. 1988-2584. Both of these previous access requests were refused by the PCO. Following these refusals, Mr. Rubin and Mr. Sellar filed complaints with the Office of the Information Commissioner (“the Commissioner”). That office found that the refusals by the PCO were well founded. While it appears that Mr. Sellar did not pursue his request further, Mr. Rubin, following the procedure as laid out in the Act, took a further step and filed an application for a review of the PCO’s denial of his request (#896060), with this Court. (That application for review has not yet come before the Court).

On November 1, 1990, Mr. Rubin filed a fresh request with the PCO in which he sought the communications between the PCO and the Commissioner with respect to his and Mr. Sellar’s prior requests.

By letter dated December 17, 1990, the PCO advised Mr. Rubin that his request was being denied by virtue of section 35 of the Act. Upon receipt of this letter, Mr. Rubin filed a complaint with the Commissioner. On October 8, 1991, the Commissioner wrote to Mr. Rubin to advise him that it was the Commissioner’s opinion that the PCO’s refusal, based on section 35 of the Act, was well founded. The Commissioner also indicated that paragraph 16(1)(c) of the Act was a “proper means” for withholding disclosure. It is a review of this November 1, 1990 request which is now before the Court.

ISSUES

This application for review raises two issues:

a) Is section 35 of the Act a valid basis for refusing the access request in this case?

(b) Is section 16 of the Act a valid basis for refusing the access request in this case?

STATUTORY REFERENCES

The relevant portion of section 16 of the Act provides:

16. (1) The head of a government institution may refuse to disclose any record requested under this Act that contains

…

(c) information the disclosure of which could reasonably be expected to be injurious to the enforcement of any law of Canada or a province or the conduct of lawful investigations, including, without restricting the generality of the foregoing, any such information

(i) relating to the existence or nature of a particular investigation,

(ii) that would reveal the identity of a confidential source of information, or

(iii) that was obtained or prepared in the course of an investigation;

Section 35 of the Act provides:

35. (1) Every investigation of a complaint under this Act by the Information Commissioner shall be conducted in private.

(2) In the course of an investigation of a complaint under this Act by the Information Commissioner, a reasonable opportunity to make representations shall be given to

(a) the person who made the complaint,

(b) the head of the government institution concerned, and

(c) where the Information Commissioner intends to recommend under subsection 37(1) that a record or a part thereof be disclosed that contains or that the Information Commissioner has reason to believe might contain

(i) trade secrets of a third party

(ii) information described in paragraph 20(1)(b) that was supplied by a third party, or

(iii) information the disclosure of which the Information Commissioner could reasonably foresee might effect a result described in paragraph 20(1)(c) or (d) in respect of a third party,

the third party, if the third party can reasonably be located,

but no one is entitled as of right to be present during, to have access to or to comment on representations made to the Commissioner by any other person.

POSITION OF THE PARTIES

Mr. Rubin

Mr. Rubin raised a number of separate points which, in my view, may be summarized by the two issues of this application.

SECTION 35:

As to section 35 of the Act, Mr. Rubin argued that the PCO had erred by invoking the section as the reason for not allowing him access to the requested records. He submitted that section 35 could not be used in such a manner because it was not located within the “EXEMPTIONS” part of the Act, this being a reference to sections 13 to 26 of the Act which list specific grounds for refusing access to information under government control. In his oral submission, he did allow that section 35 could be used as a ground for refusing to disclose “sensitive” records. However, he added that any material of a “sensitive” nature could also be exempted under one of the specific exemptions provided for in the Act.

In addition, he said that the term “[i]n the course of an investigation of a complaint” in section 35 must be interpreted such that once the Commissioner’s investigation is complete, any protection afforded submissions made during that investigation is ended. Further, he argued that the term “representations” must be interpreted as meaning only the actual documents forwarded to the Commissioner by the government institution and not any of the internal or draft documents that were generated before the representations were prepared in final form.

Mr. Rubin also asserted that by accepting the PCO’s invocation of section 35 as a proper ground for refusing his access request, the Commissioner was reversing the previous policy of that Office, and that by doing so, it would inhibit future access to information under government control. He produced a letter from the previous Commissioner in which she, in a case in which the government had invoked section 35 to resist disclosure, did not support the government’s use of section 35 as a ground for refusing an access request for representations made to the Commissioner.

PARAGRAPH 16(1)(c):

Mr. Rubin focused on what he called the “untimely citation” of paragraph 16(1)(c) of the Act. It was his position that the use of paragraph 16(1)(c) to resist disclosure was not initially indicated as the basis for the PCO’s refusal and that he was not informed of its use as an alternative ground for refusing access to the requested records until he received the Commissioner’s letter of October 8, 1991 supporting the PCO’s position refusing access.

In support of this assertion, Mr. Rubin relied on X v. Canada (Minister of National Defence), [1992] 1 F.C. 77 (T.D.) and Davidson v. Canada (Solicitor General), [1989] 2 F.C. 341 (C.A.). The main thrust of these authorities is found in the Davidson case, which, it was submitted, held that the government institution named in an access request is bound to rely only on the grounds it originally stated in its notice of refusal.

Mr. Rubin further contended that even if the use of paragraph 16(1)(c) is timely, the PCO had failed to discharge the onus of showing probable injury if the information were released.

THE PCO

SECTION 35:

Counsel for the PCO took the position that the words of section 35 are clear and provide that no one is entitled to representations made to the Information Commissioner. She provided the following rationale for this position:

i) In representations made to the Commissioner to justify denial of an access request, the records to which access is sought may be referred to in some detail. The release of representations made to the Commissioner would defeat the original refusal by the government institution and would deny the government institution the right to maintain confidentiality until a decision of the Court was made on the original refusal.

ii) The position of Commissioner is similar to that of an ombudsman or mediator. For him to effectively function in this capacity, candour of all parties is essential. Such candour will not be achieved unless the parties have complete confidence that information provided to the Commissioner will remain confidential.

Counsel for the PCO also submitted that the term “[i]n the course of an investigation of a complaint”, does not limit the period of confidentiality solely to the time during which the investigation of the complaint by the Commissioner is being made. Rather, confidentiality of representations to the Information Commissioner must be permanently maintained.

As for the term “representations”, it was submitted that this must include all of the material created in the preparation of the government institution’s response to the Commissioner and any communications from the Commissioner to the government institution.

In response to the argument that exemptions from disclosure had to be justified by one of the provisions in the “EXEMPTIONS” part of the Act, counsel for the PCO submitted that the purpose of section 35 was not to protect specific substantive material but was to protect the process of the Commissioner’s investigation. It was, therefore, not intended to be invoked on the same basis as the specific exemptions in sections 13 to 26. In support of this position, counsel relied on section 4 of the Act which states that the right of access is “[s]ubject to this Act”. Section 35 of the Act is thus a legitimate constraint on the right of access to information under government control.

To further support her position, counsel for the PCO referred to a number of sections in the Act which require the maintenance of confidentiality by the Commissioner e.g., subsections 36(3) [as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 187], 36(5), sections 61, 62 and 64. The result of these provisions, it was said, was that Parliament has gone to great lengths to ensure that information provided to the Commissioner over the course of an investigation remains confidential. To allow an individual access to the same material by simply initiating an access request, would be inconsistent with these provisions of the Act.

Counsel for the PCO also asserted that the Commissioner, based on the traditional ombudsman role, has extremely wide powers of investigation, but only the power of persuasion to effect his recommendations. Therefore, to be effective, the Commissioner must foster a sense of trust, candour and respect between his office and the parties. This sort of relationship could only be achieved if the Commissioner could guarantee confidentiality to all parties involved. An expansive interpretation of section 35 was consistent with this objective.

PARAGRAPH 16(1)(c):

In response to Mr. Rubin’s contention that paragraph 16(1)(c) of the Act was invoked in an “untimely” manner, counsel for the PCO argued that the rationale in Davidson, (supra), was that all defences to disclosure should be fully considered at all stages of proceedings (see page 348). Since paragraph 16(1)(c) was first raised as a ground for exemption by the Commissioner himself in this case, the issue must have been fully considered at the Information Commissioner stage.

As to the argument that there was no direct evidence of probable harm from disclosure of the specific representations in this case, counsel for the PCO said that paragraph 16(1)(c) was invoked to protect the Information Commissioner’s process and for this reason it was not necessary to justify confidentiality on the basis of specific references to material in the record.

ANALYSIS

The Access to Information Act has as its purpose the creation of a right of access to information under government control. Exemptions are recognized but they are limited and specific. Under section 4, the right of access is made “[s]ubject to this Act”. The right is thus not absolute.

Subsection 35(2) of the Act commences with the words:

35. …

(2) In the course of an investigation of a complaint under this Act by the Information Commissioner …

and concludes with the words:

but no one is entitled as of right to be present during, to have access to or to comment on representations made to the Commissioner by any other person.

The plain meaning of these words is that no person may have access as of right to representations made to the Commissioner in the course of an investigation.

As to Mr. Rubin’s argument that this section only restricts access to sensitive documents, there are no words such as “sensitive” to limit the prohibition to access. It is clear that section 35 contemplates a private investigation by the Commissioner with no right of access by any person to representations made by any party.

Mr. Rubin also argued that the term “representations” does not cover the government institution’s internal documents that may be generated in the process of preparing submissions to the Information Commissioner. In his view, there would be a right of access to draft submissions and internal memoranda commenting on the submissions. I do not find this to be a reasonable interpretation of the term representations in the context of, and having regard to the objectives of, section 35. In American Airlines, Inc. v. Canada (Competition Tribunal), [1989] 2 F.C. 88 (C.A.), Iacobucci C.J. (as he then was) stated, with respect to ascertaining the meaning of the words in a section, at page 96:

To ascertain the meaning of the words in the section one should look not only at the dictionary definition and the context but also at the nature of the matters being dealt with in the action as well as the overall objectives of the underlying legislation.

In my view, the term representations must, by necessary implication, include the documents leading to the submissions that are ultimately made to the Information Commissioner. Any other interpretation would defeat the purpose of section 35.

I am of the opinion that the term representations in section 35 is wide enough to include all drafts and supporting documentation generated within the government institution for the purpose of communicating with the Information Commissioner. By the same reasoning, communications prepared by the Information Commissioner for a government institution would also be covered by the restriction to access in section 35 if they deal with submissions made by the government institution.[1]

Having said this, it must still be determined whether section 35 is to be interpreted as restricting access to representations only during the course of the investigation by the Information Commissioner or whether the restriction continues beyond that time.

Section 35 is an unusual provision. In most proceedings, rules of natural justice or procedural fairness dictate that, inter alia, the proceedings are open, that parties are entitled to know the case of the other side, to comment on it and respond to it. Access to information proceedings are different because the proceedings deal with whether or not information which is the subject of the proceeding should or should not be confidential. Open discussion of the merits of whether or not information should be kept confidential could itself, reasonably be expected to disclose the subject information. This is clearly one reason for section 35.

A second reason for section 35 would appear to relate to the role of the Information Commissioner. While he has no power to order disclosure, a credible and effective Commissioner should have significant persuasive power to encourage voluntary resolution of requests for information under government control. In this context, it should be remembered that such information may be either government information, or information of private individuals or others that is under government control.

An important aspect of the development of that credibility and effectiveness is, in my view, the maintenance of strict confidentiality of information that is given to the Commissioner. Indeed, the provisions of the Act that require that the Information Commissioner maintain strict confidentiality on a continuing basis over information given to him, support this conclusion. Parties must have confidence that the Information Commissioner will not divulge the information given to him.

Enhancing the persuasive influence of the Information Commissioner is consistent with the objective that access requests should be resolved quickly and at minimal costs. Of course, in the event a dispute cannot be resolved at the Information Commissioner stage, a complainant can always have recourse to this Court. However, that is his last resort and would not likely be as satisfactory as a resolution at the Information Commissioner stage, because of the additional time and expense involved.

Forced disclosure of representations, it seems to me, may well result in the role of the Information Commissioner becoming more formal and the process thereby becoming less effective. This is not in the interest of the promotion of timely access to information under government control which is the rationale for the legislation.

In spite of these observations and my perception that Parliament intended the Office of the Information Commissioner to be an efficient and effective mediator in disputes involving access to information under government control, I cannot accede to the argument made by counsel for the PCO in this case.

The words of section 35 are clear. Section 35 only applies “[i]n the course of an investigation of a complaint”. There is nothing express or implied in section 35 that would suggest that it has application after the conclusion of an investigation by the Commissioner. For me to hold that section 35 is broad enough to require confidentiality even after the conclusion of the Commissioner’s investigation would be tantamount to my adding words to the section.

Further, in my view, the confidentiality justified by paragraph 16(1)(c) relates to records that arise in individual cases. Subparagraphs 16(1)(c)(i) and (ii) refer to information:

16. (1)(c) …

…

(i) relating to the existence or nature of a particular investigation;

(ii) that would reveal the identity of a confidential source of information; or

It is clear that these provisions are intended to be invoked in particular investigations or where a specific confidential source may be revealed. Similarly, in subparagraph 16(1)(c)(iii) the investigation referred to, in my view, is a specific investigation where the disclosure of particular information would be injurious to the conduct of that specific investigation.

I do not read paragraph 16(1)(c) to be a procedural provision that justifies confidentiality in respect of the investigative process of the Information Commissioner. To interpret paragraph 16(1)(c) as an all-encompassing procedural exemption justifying confidentiality in all cases where representations are sought would, to all intents and purposes, render much of section 35 redundant.

Had Parliament intended that representations made to the Information Commissioner indefinitely remain confidential, it could have removed such representations from the ambit of the Act or, it could have provided in section 35 that there would be no access to representations either during or after an investigation by the Information Commissioner. It did not do so. As I have stated, I do not think it is open to me to add words to, or delete words from, section 35. This would be the effect of interpreting section 35 or paragraph 16(1)(c) in the manner urged by counsel for the PCO.

I conclude that neither section 35 nor paragraph 16(1)(c) of the Access to Information Act are valid bases for refusing the access request in this case.

I have reviewed the thirty-two pages of the requested record. They consist of file memoranda, correspondence and attachments to some of the correspondence.

The first two pages of a September 19, 1989 letter from the Office of the Commissioner to the PCO and the second page of a memorandum for Marc Rochon dated October 5, 1989, appear to contain confidential information pertaining to the subject-matter of Mr. Rubin’s prior substantive access application respecting remuneration of government appointees. That matter has yet to be heard and determined by this Court.

It is not for me in these proceedings to determine the merits of Mr. Rubin’s prior application to this Court. However, it appears that if the three pages to which I have referred are disclosed as a result of these proceedings, some information which may be the subject of Mr. Rubin’s prior application will be released without that prior application being determined on its merits.

Mr. Rubin said that disclosure of representations constitutes an inexpensive form of discovery respecting a previous access request. In my view, an access request for representations should not be a back-door means of obtaining access to information that is the subject of another proceeding. I do not think the process under the Access to Information Act was intended to be used in such manner or for such purpose. Nor should the process result in the same information having to be considered in three separate hearings.

Where an application for disclosure of representations to the Information Commissioner is being determined before the substantive application which gave rise to the Commissioner’s proceedings, the Court hearing the application for representations to the Commissioner may be faced with the problem, as in this case, of having to deal with information that will be the subject of a substantive decision in another proceeding.

In my opinion, access to information proceedings involving requests for representations to the Information Commissioner should not, unless special circumstances warrant, be heard and determined before determination on the substantive access request that gave rise to the Information Commissioner proceedings. This, of course, would not rule out consolidating the original application and the application for representations in an appropriate case.

While I have found that the PCO was not justified in refusing to disclose the record in this case on the basis of section 35 and paragraph 16(1)(c) of the Act, I have not made a determination in respect of any other provision of the Act. The three pages to which I have referred appear to me to pertain to Mr. Rubin’s prior application to which the PCO has refused disclosure under other provisions of the Act. In order to permit Mr. Rubin’s prior application to be heard and determined on its merits by this Court, the three pages to which I have referred shall be dealt with in the following manner:

1. The PCO may, within fourteen (14) days of the date of this decision, move to have the three pages added to the record in Mr. Rubin’s substantive application T-2651-90 for their disclosure to be resolved in that proceeding;

2. Should the PCO not choose to make such motion within fourteen (14) days of the date of this decision, the three pages shall be disclosed in accordance with the terms of this decision.

In respect of the balance of the record, the Clerk of the Privy Council is ordered to make disclosure to Mr. Rubin. The operation of the order is suspended pending appeal, in order not to render an appeal futile by immediate disclosure.

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