X v. Canada ( Minister of National Defence )
T-2648-90
Strayer J.
4/11/92
6 pp.
Application to review refusal to give access to certain records -- Applicant requesting keys and records pertaining to keys used in German communications between Germany and Latin America in 1941 and 1942 -- Respondent providing 67 pages, of which 42 blank (claiming total exemption based on Access to Information Act, s. 13(1)) (material obtained from foreign government in confidence where foreign government not consenting to release) -- Five pages containing omissions based on s. 15(1) (material whose disclosure could reasonably be expected to be injurious to conduct of international affairs or defence of Canada) -- Applicant arguing respondent never making proper response to request for "keys", stating only "Please find enclosed copies of records which may be disclosed to you" and referring to exemptions claimed -- Although general, notice within requirements of s. 10(1) amounting to permissible refusal to indicate whether record (keys) existed, but stating grounds upon which exemption claimed if did exist -- No basis for ordering new search as no evidence of refusal to make search or adequate search -- Every reasonable effort made to find such records and no reasonable ground to believe keys at DND -- No basis for mandamus under Act -- For mandamus to issue must be clear legal duty involving no discretion on part of public officer -- Act imposing only duties as to release of Government information and imposing own penalties -- Scope of judicial review of s. 15(1) exemptions under s. 50 more limited than under s. 49 -- Court not entitled to order disclosure simply because would have reached different conclusion than head of institution -- Disclosure ordered only if unable to say no reasonable person could have come to conclusion, on facts presented, records should be exempted -- Court unable to find reasonable grounds for refusing to disclose excised passages -- Unreasonable to conclude information in 50-year old documents relating to wartime could reveal anything pertinent to conduct of Canada's international relations and national defence in peacetime now -- Disclosure of severed portions ordered, but operation of order suspended pending appeal in order not to render appeal futile -- Access to Information Act, R.S.C., 1985, c. A-1, ss. 10(1), 13(1), 15(1), 19(1), 41, 47(1), 49, 50.