[2017] 3 F.C.R. D-11
Access to Information
Judicial review of Public Safety and Emergency Preparedness Canada (Public Safety) decision refusing to transfer applicant’s access to information request to Correctional Services Canada (CSC) under Access to Information Act, R.S.C., 1985, c. A-1, s. 8 — Applicant making request to Access to Information Coordinator (ATIP co-ordinator) at Public Safety for documents related to CSC Independent Review Panel — ATIP co-ordinator indicating no relevant records found — Applicant’s complaint filed with Office of the Information Commissioner (OIC) not substantiated — However, OIC advising applicant that: records might be available at CSC; Public Safety failing to transfer applicant’s request to CSC under Act, s. 8 — Applicant arguing that since CSC, Public Safety under same Public Safety portfolio, Minister of Public Safety in control of documents — Applicant seeking, inter alia, order requiring respondent Minister of Public Safety (respondent) to release information originally requested — Pleading, inter alia, respondent failing to adhere to Act, s. 8 because Public Safety ought to have transferred request to CSC — Main issues whether Public Safety erring in saying it held no relevant records; provisions of s. 8 met by Public Safety — No evidence that Public Safety having documents under its control rather than in control of CSC — Applying control argument at portfolio level ignoring scheme of Act — Public Safety, CSC listed as separate government institutions — Notion of “control”, “government institution” clearly intertwined in Act, s. 6 — S. 6 specifying that request to be made to government institution with control of record — Both conditions having to be met to create actionable access request — Group of separate government institutions cannot be treated as one amalgamated government institution just because they are placed under same portfolio — Each institution having to be treated as separate entity in determining what records it controls — Public Safety cannot control record not in its physical possession — Applicant’s request failing two-step test in Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25, [2011] 2 S.C.R. 306 — Because Public Safety not controlling record physically or legally, Act, s. 8 never triggered — S. 8 having to be read together with Act, ss. 4, 5, 6, 7 — Purpose of s. 8 to ensure that government institution with greatest interest in record having opportunity to be given control of request, therefore choice of whether or not to exercise discretionary refusal provisions, before institution which received request decides whether or not to disclose records — Application dismissed.
Yeager v. Canada (Public Safety and Emergency Preparedness) (T-91-09, 2017 FC 330, Elliott J., judgment dated March 30, 2017, 46 pp.)