Canada (Information Commissioner) v. Canada (Minister of National Defence): Democratic Governance, Transparency and Accountability or Executive Privilege?

In Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, [2010] 1 S.C.R. 815, McLachlin C.J. and Abella J. hold that

“[a]ccess to information in the hands of public institutions can increase transparency in government, contribute to an informed public, and enhance an open and democratic society.  Some information in the hands of those institutions is, however, entitled to protection in order to prevent the impairment of those very principles and promote good governance.”

This tension between transparency and ministerial privilege is at the core of the recent Supreme Court of Canada (“SCC”) decision in Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25. While Charron J.’s majority decision limits the right of disclosure to the Prime Minister and Ministerial records, Lebel J.’s nuanced approach better understands the delicate balance between democratic accountability and pragmatic reality, even though both come to the same conclusion. Nevertheless, this SCC decision appears to be a setback for proponents of open, accountable, and transparent government. Amendments will now be required to the Access to Information Act, RSC 1985, c A-1 [ATIA], by Parliament, in order to realize certain democratic ideals of accountability, transparency, and accessibility, and to keep Canada in sync with its peer democratic nations.

Background

This case encompasses four applications brought by the Information Commissioner of Canada, for a judicial review of decisions refusing disclosure of documents, under the ATIA. Three of the applications are similar in that they involve documents, including “agendas, notes and emails”, of former Prime Minister Jean Chrétien, Minister of National Defence Art Eggleton, and Minister of Transport David Collenette. The fourth application relates to a refusal to disclose the Prime Minister’s agenda which was in the possession of two government institutions: the Royal Canadian Mounted Police (“RCMP”) and the Privy Council’s Office (“PCO”).

At the Federal Court, Kelen J. accepted the refusal to disclose documents in the first three applications, but ruled the fourth application, involving documents in the possession of the RCMP and PCO, should have been disclosed. Sharlow J.A. at the Federal Court of Appeal, ruled the refusal of disclosure was acceptable on all four applications. Sharlow J.A. overturned Kelen J.’s decision on the fourth application because she decided that a personal information exemption applied to the Prime Minister’s agenda, even if it was in the possession of the RCMP and PCO. The SCC upheld this latter decision and ruled the refusal to disclose the documents was justifiable on all four applications.

Charron J. and the SCC Majority: Presumption Against Disclosure

In this case, the SCC rules the PCO, Department of National Defence, and Department of Transport clearly fall within the meaning of s. 4 of the ATIA as government institutions which a requestor has the right to “any record under the control of a government institution”. However, the SCC is then tasked with deciding whether “each government institution includes the office of the Minister who presides over it”; what constitutes “under the control” of the government institution; and finally, what personal exemptions apply.

The Commissioner’s appeal calls for the adoption of a broad right of access, advancing that the Prime Minister and Ministers as “heads” of Departments, are captured by the term “government institutions” of the ATIA any time they are “exercising departmental functions”.

The Commissioner contends the Prime Minister is also an officer of the PCO, therefore not covered by the exemption under s. 19(1) of the ATIA and s. 3 of Privacy Act, RSC 1985, c P-21.

And finally the Commissioner claims that, even if Minsters’ offices are held to be separate from their respective departments, “any record relating to a government matter” should presumptively be considered under the control of the related department, regardless of its “creation or location”. In essence the Commissioner argues that the function and content of an action should dictate whether it is accessible through the ATIA or exempt from it.

Charron J., for the SCC majority, declares the Commissioner’s arguments to be “grounded primarily in broad principles of constitutional law, political theory, democratic accountability, and ministerial responsibility”, principles which are “unquestionably” “part of the context which the Access to Information Act operates”. Charron J. views the Commissioner’s position as “a policy of democratic governance which Parliament could choose to adopt”.

Nevertheless, Kelen J.’s restrictive approach is reaffirmed when Charron J. emphasizes that

The question for the Court is not whether the documents should be accessible to the public under Canada’s “freedom to information” law, but whether the documents are currently accessible to the public under Canada’s existing law.  The Court does not legislate or change the law; it interprets the existing law.

Charron J. declares that embracing the Commissioner’s approach “would dramatically expand the access to information regime in Canada, a result that can only be achieved by Parliament.” Discussing the legislative scheme, Charron J. adopts a restrictive approach holding that, as s.2(1) of the ATIA states, government information ““should be available to the public”, but the right to access it is subject to “necessary exceptions”. ”

The Commissioner again advances the “function-based approach”, appealing to the principles behind the ATIA:

… a record is subject to [the Access to Information Act], regardless of its physical form or location, where it was created by or on behalf of a Minister to document or give effect to a Minister’s exercise of departmental powers, duties or functions, or relies directly on departmental staff in order to exercise the Minister’s departmental powers, duties or functions.

The Government’s counter-argument is that this approach renders the distinction between government institutions and Ministerial offices meaningless under Schedule I of the ATIA. The SCC majority accepts the Government position in this case, restricting access to information by emphasizing Parliament’s choice of words (but particularly omissions), the political sphere for Ministers to make decisions, and pragmatic realities which override the “function-based approach”.

The SCC then considers how documents, regardless of their physical location, are “under the control” of the related government institution within the meaning of s. 4 of the ATIA.

At the Federal and Federal Appeal level, a two part test is applied to answer this “control” issue:

1. Whether the contents of the document relate to a departmental matter; and
2. Whether the government institution could reasonably expect to obtain a copy of the document upon request.

If both questions, based upon the circumstances of their creation, are answered in the affirmative then documents are considered “under the control” of the government institution.

But the Commissioner challenges this test on the basis that the “factual indicia can be too easily manipulated by government actors to avoid releasing documents that validly fall within the scope of the Act”. Charron J. agrees a danger exists in that a Minister’s office may well become a “black hole” to shelter records and abuse power.

However, Charron J. rules that, because the alternative “function-based approach” renders the distinction between government institutions and Ministers’ offices meaningless, it must be rejected. Furthermore, Charron J. views the two step test allowing for an inquiry into document accessibility under the ATIA, meaning the “black hole” scenario can be prevented. Finally, Charron J. points to the Commissioner’s limited investigatory powers as another preventative measure against “black-holes”.

In this particular case, Charron J. and the SCC majority declare that, because most of the agendas at issue were “maintained”, “created”, or in the “possession” of exempt staff or offices, they are therefore beyond the reach of the access to information request. Charron J. also rules that the “function-based approach” advocated by the Commissioner cannot “be sustained as it finds no support in the wording of the Act”.

Lebel J.: Presumption in Favour of Disclosure with the Advent of Modern Government

While concurring with the majority’s conclusions, Lebel J.’s reasoning differed on some key aspects.

Lebel J. declares a more limited approach to exceptions should be taken, especially where the “Act does not specifically exempt political records, the right of access is presumed to apply to them”.

Lebel J. is also sceptical of Charron J. and the majority’s view that an interpretation in favour of disclosure will “dramatically expand the access to information regime in Canada”. Lebel J. view is that “Access to information legislation embodies values that are fundamental to our democracy”, and that “access to information legislation creates and safeguards certain values — transparency, accountability and governance — that are essential to making democracy workable”. Lebel J. points out that it was before the “advent of modern government” that these values were overridden by the doctrine of ministerial responsibility because such doctrines developed at a time when only parliament was responsible for holding government to account, and times have since changed. While Lebel J. accepts that Ministers should be provided a private space “to allow for the full and frank discussion of issues” and “confidential advice sought by and provided to the Minister”, such protections are already exist within s.21 of the ATIA.

Lebel J. espouses a broad right in that “access to information legislation creates a general right of access to which there are necessary exceptions that must be limited and specific”. Opposing the majority decision in this regard, Lebel J. finds that where Parliament is silent on an issue, a prima facie presumption in favour of disclosure should prevail.

Furthermore Lebel J. calls for a more robust investigatory power for the Commissioner, especially in deciphering what he terms “hybrid documents”: documents which straddle the line between accessible and non-accessible documents. These “hybrid documents” are exactly the type which could be prone to falling into the Ministerial “black-hole”. Lebel J. finds that the safeguard in taking such an approach is the private investigative powers of the Commissioner.

The Outcome: Canada Falls Behind

With strong arguments on both sides, this case embodies the tension which exists between an accountable and transparent government versus governmental efficiency and pragmatic considerations. While some, such as Tasha Kheiriddin, take the extreme position that the Prime Minister and Ministers should be provided an absolute right to privacy and privilege, such assertions fail to grasp the true complexity of the issue and what is at stake. A delicate balancing is required between ideals of democratic accountability and pragmatic reality, a balancing which cannot be frozen in time. It appears that no one understood this better than Lebel J. given his nuanced approach which captures the complexity of an evolving modern democratic administrative state.

Many elements of parliamentary and ministerial privilege are grounded in an archaic understanding of governance which are out of sync with how modern government operates. Achieving the principles and values of ATIA requires addressing the complexity of the modern administrative state by closing potential “black holes” within the Prime Minister and Ministers offices, and capturing the grayness of “hybrid documents”. Allowing the Commissioner to exercise a robust private investigative function, limiting exemptions to the ATIA, interpreting a broad and general right of access to information, and presuming in favour of disclosure, are all key tools to enhance government accountability, democratic governance, and transparency. While exemptions will always be necessary, such exemptions should be interpreted in the most narrow sense if citizens are to feel their government is truly accountable to them. While Charron J. for the majority declare that safeguards are in place within the two part control test, as well as the current powers of the Commissioner, the presumption against disclosure creates a reality that such safeguards in practice are non-existent.

Another key question, which the SCC itself recognizes and thereby limits itself, is who should decide whether the current access to information regime requires an expansion of the Commissioner’s powers and the scope of disclosure: Parliament or the Courts? And if it is the former, which governing party would be so selfless as to amend the ATIA, give up a significant power, and expose its Prime Minister and Ministers to intrusive disclosure provisions in the name of democratic governance, accountability, and transparency?

A prime example of the intractability of this issue is how some current Ministers, arguing against disclosure in this very case, were originally arguing for disclosure when the case first commenced, albeit while they were in opposition (including the current Minister of Transport’s chief of staff, Laurie Throness, who made the initial access to information request commencing litigation in this case). While we ponder this question, Canada appears to be falling further behind its peer democracies in terms of access to information. For instance, the Canadian Press writes that in the United Kingdom “the House of Commons is open to access requests….in the U.S., the president’s daily agenda is just a click away on the Internet…a number of countries, including Australia, New Zealand, the U.K., the U.S., Mexico and Japan, have laws that would allow the release of a leader’s agenda”. As such, the restrictive interpretation of disclosure by Charron J. and the SCC majority in Canada (Information Commissioner) v. Minister of National Defence, complemented by our current political environment, is likely to ensure our access to information laws will keep Canadian citizens in the dark for the immediate future.