Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25

June 2014

Summary: This case is about whether Ministers and, by extension, Ministerial offices are subject to the Access to Information Act and the Privacy Act. The Supreme Court of Canada concluded that, for the most part, documents held by Ministers or in Ministerial offices are outside the scope of those two Acts.

Facts: A person made a request for a number of records – mainly agendas, notes and e-mails – relating to the activities of the Prime Minister, Minister of National Defence, and Minister of Transport. Those records were held in the offices of the Prime Minister and the two Ministers. The RCMP and Privy Council Office also had copies of those records. The request for those records was refused because the Prime Minister’s office and the Ministerial offices are not “government institutions” under the two Acts, and the records are also “personal information” under the Privacy Act. The Information Commissioner concluded that the records should be disclosed, and applied to Federal Court for an order that the records be disclosed. The Federal Court allowed the applications in part, concluding that the agendas held by the RCMP and the Privy Council Office should be disclosed. The Federal Court of Appeal disagreed, and held that none of the records should be disclosed.

Result: The Supreme Court of Canada upheld the decision to refuse to disclose those documents because most of the records were not held by a government institution and were not under the control of a government institution either. Further, the records held by the RCMP and Privy Council Office were personal information and therefore could not be disclosed.

Decision: This case is largely about three issues: (1) is a Minister’s office part of the government institution over which the Minister presides; (2) is information in a Minister’s office “under the control” of a government institution; and (3) is a Minister an “officer” for the purposes of s. 3(j) of the Privacy Act.

On the first issue, the Supreme Court of Canada concluded that a Minister’s office is not a part of a government institution. Both the Access to Information Act and the Privacy Act define the term “government institution” by referring to a schedule listing all of the various departments and other institutions that are a “government institution” for the purposes of those Acts. The Supreme Court of Canada, applying a number of tools to interpret statutes, concluded that those lists are meant to be exhaustive. Since Ministerial offices are not listed, they are not included in the definition of a “government institution.”

On the second issue, both Acts govern documents “under the control of” a government institution. This means that the Acts are not limited to documents in the physical possession of a government institution. The Supreme Court of Canada approved of a two-part test to determine whether a record is “under the control of” a government institution:

  1. Do the contents of the document relate to a departmental matter?
  2. If so, could the government institution reasonably expect to obtain a copy of the document upon request?

The first step of the test is fairly straightforward: both Acts were not designed to capture non-departmental matters. Under step two, all relevant factors must be considered in order to determine whether the government institution could reasonably expect to obtain a copy of the record upon request. Physical control over a record is not determinative. The relevant factors include the content of the record, the circumstances in which it was created, and the legal relationship between the government institution and the record holder. If, based on the relevant factors, the government institution should be able to obtain a copy of the record, then the test is made out.

In this case, the records were not under the control of a government institution. The Prime Minister’s agendas were created by his exempt staff and were never in the possession of the Privy Council Office. The Minister of Transport’s unabridged agendas were treated the same. His exempt staff created the abridged agendas and gave them to the department for a limited time, but they were not kept by the department after that time had expired and were therefore not in their control. Finally, the records requested of the Minister of National Defence were also created and maintained by his exempt staff for their personal use and were not produced to government officials; additionally, some e-mails were not about departmental matters and also excluded for that reason.

The second issue in this case was about “personal information.” The Prime Minister’s agendas were held by the Privy Council Office and the RCMP, both of which are “government institutions.” However, those agendas were also personal information about the Prime Minister. There is an exclusion in the definition of “personal information” in the Privacy Act permitting disclosure of information relating to the position or functions of an officer or employee of the federal government. The Supreme Court of Canada concluded that the Prime Minister is not an “officer” of the Privy Council Office, despite being the “head” of that government institution for the purposes of the Privacy Act. The Supreme Court of Canada concluded that it would be illogical for the Prime Minister to be an “officer” of a government institution since he is not a part of a “government institution.” In short: a Minister is not an “officer” of a government institution under the Privacy Act, and so his or her personal information does not fall under the exclusion in s. 3(j) of the Privacy Act.

Principles:

  1. A Minister’s office is not a “government institution” under the Access to Information or Privacy Act.
  2. Physical possession of a record does not determine whether it is in the “control” of a government institution. To determine whether a government institution has “control” of a document no longer in its possession, a court considers two things: (a) do the contents of the document relate to a departmental matter, and if so, (b) could the government institution reasonably expect to obtain a copy of the document upon request?
  3. A Minister is not an “officer” under the Privacy Act, and therefore the exclusion from the definition of “personal information” for information about the position of an “officer” under s. 3(j) of the Privacy Act does not apply to a Minister. Their personal information – even if about their position – is protected from disclosure.
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