T-842-87
T-1106-87
David Vienneau (Applicant)
v.
Solicitor General of Canada (Respondent)
Gregory S. Kealey (Applicant)
v.
Solicitor General of Canada (Respondent)
INDEXED AS: VIENNEAU V. CANADA (SOLICITOR GENERAL)
Trial Division, Jerome A.C.J.—Ottawa, December
16, 1987; March 3, 1988.
Access to information — Records disclosed containing
extensive deletions — Covering letter listing exempting sec
tions relied upon, but sections not indicated next to deletions
— Access to Information Act, s. 10 not requiring specification
of provision relied upon for each portion exempted from
disclosure.
These were applications for review of the respondent's
alleged failure to comply with statutory requirements in refus
ing to disclose certain records requested under the Access to
Information Act. The copies of the records received by the
applicants contained extensive deletions. A covering letter listed
the specific exempting sections relied upon but those sections
were not indicated next to the deletions (a practice followed by
some government institutions).
The question of law for determination was whether section
10 of the Act obliged the head of a government institution to
specify the provisions relied on for each portion of the record
exempted from disclosure. The applicants referred to paragraph
10(1)(b) which requires that the notice state the specific provi
sion of the Act on which the refusal was based. The applicants
argued that "the refusal" referred to each deletion made from a
record and that reasons must be cited for each such refusal.
They also argue that the requester needs the information to
decide whether to bring a complaint, and in order to tie the
government institution down to a particular basis for the refus
al. The respondent submitted that as no such particularization
is required where the entire document is withheld, the appli
cants should not be entitled to more specific reasons with
regard to a severed and released document.
Held, the question should be answered in the negative and
the applications dismissed.
The problem at issue arises only where the head of the
institution has made the initial refusal and is then required to
decide whether to release portions that can reasonably be
severed. There is only one refusal when the record is found to
contain exempt material. Subsequent disclosure of any portion
is only further compliance, not further refusal. Therefore, only
one notice of exempting provisions is required. A letter of
notice is sufficient compliance with sections 7 and 10. Upon
refusal, an applicant automatically has a right to complain and,
ultimately, the right to seek judicial review of every aspect of
the refusal. Those rights are not dependant on the provision of
specific exemptions for each deletion in a severed record. The
practice of providing section numbers next to the deletions is,
however, commendable and in keeping with the intent of the
act—to provide citizens with as much information as possible.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Access to Information Act, S.C. 1980-81-82-83, c. 111
(Schedule I), ss. 2, 3, 4, 7, 10, 25, 41, 42(1)(b).
COUNSEL:
Michael L. Phelan, Pat J. Wilson and Paul B.
Tetro for applicants.
Barbara Mcisaac for respondents.
SOLICITORS:
Osler, Hoskin & Harcourt, Ottawa, for
applicants.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren
dered in English by
JEROME A.C.J.: These applications under sec
tion 41 of the Access to Information Act [S.C.
1980-81-82-83, c. 111 (Schedule I)] are brought
by the Information Commissioner on behalf of the
requestor-applicants pursuant to paragraph
42(1) (b) of the Act. The applications are for a
review of the respondent's alleged failure to
comply with statutory requirements in refusing to
disclose certain records requested under the Act.
By orders dated October 20, 1987, I decided that
the applications should be heard together and that
the following preliminary question of law be
determined:
Does Section 10 of the Access to Information Act (the "Act")
oblige the head of a government institution to particularize the
specific provision(s) of the Act on which exemptions from
disclosure from records severed pursuant to Section 25 of the
Act are based by specifying the provision(s) relied on for each
portion of a record which has been exempted from disclosure?
The preliminary question came on for hearing in
Ottawa on December 16, 1987.
The applicants requested access to certain
records under the control of the Canadian Security
Intelligence Service (CSIS) in 1985 and 1986.
Some of the documents requested were eventually
released to them. The copies they received con
tained extensive deletions where portions of the
records had been withheld as being exempt from
disclosure under the Act. In each case a covering
letter was included, which set out the specific
exempting sections on which the respondent had
relied in refusing to disclose parts of the record.
The sections were only listed in the covering letter,
they were not written in next to the deleted por
tions, as is the practice in some government
institutions.
The requestors complained to the Information
Commissioner about the treatment of their
requests. In particular, they complained that spe
cific exemptions had not been provided for each
deletion. The Commissioner's staff conducted an
investigation. Following the investigation the
Assistant Commissioner wrote to the Solicitor
General on November 26, 1986. The letter reads,
in part:
In each of the four incidents complained about, the requestor
simply received a covering memorandum from CSIS stating, in
part that "some of the documents provided to you have been
exempted, in whole or in part, pursuant to ..." followed,
usually by the sections involved. The deleted (exempted) por
tions of the released records contain no indication of the
authority upon which a specific exemption is based and there
fore the recipient has no understanding of why a particular
portion or document was not provided, nor would the person
have an informed basis upon which to make a complaint.
Relying on paragraph 10(1)(b), I am of the opinion that the
specific authority or authorities for exemptions must be indicat
ed to the applicant at the relevant portion of the record. CSIS
has not complied with this paragraph of the Act consequently I
find these four complaints to be "well-founded".
Based on subsection 37(1) of the Access to Information Act I
therefore recommend that CSIS inform Professor Kealey and
Mr. Vienneau of the specific authorities on which exemptions
were made to the records released to them under the Access to
Information Act on or before December 19, 1986, or that
within that time, you give me notice of any action taken or
proposed to be taken to implement this recommendation or
provide reasons why no such action has been or is proposed to
be taken.
The Solicitor General responded as follows:
Paragraph 10(1)(b) of the Act, in part, stipulates that where
access is refused, the specific provision of the Act on which the
refusal was based must be stated in the written letter to the
requester. It is my understanding that not only does the CSIS
provide this information in their written response; they also
clearly indicate on the record where information has been
exempted. They do not, however, link them together and based
on our legal advice I believe there is no requirement to do so.
I am aware that the approach you suggest to paragraph
10(1)(b) is acceptable to certain institutions. In the case of the
CSIS processing of records, however, using your rationale could
defeat the purpose of the exemptions as it could provide an
indicator of the type of information that was being exempted.
In certain circumstances the specifying of the exemptions used
should not provide `clues' as to what the nature of the informa
tion being exempted might be. If CSIS were to follow your
approach, I believe that this may be the result.
In view of this interpretation of the Act, I do not propose to
take any further action in this regard. I feel that the CSIS is
complying with the requirements of the legislation in this
particular situation.
The Assistant Information Commissioner
reported this exchange to the applicants, along
with his determination that their complaints were
well-founded. These applications were then
launched.
The statutory provisions relevant to these
applications are sections 7, 10 and 25 of the Act:
7. Where access to a record is requested under this Act, the
head of the government institution to which the request is made
shall, subject to sections 8, 9 and 11, within thirty days after
the request is received,
(a) give written notice to the person who made the request as
to whether or not access to the record or a part thereof will
be given; and
(b) if access is to be given, give the person who made the
request access to the record or part thereof.
10. (1) Where the head of a government institution refuses to
give access to a record requested under this Act or a part
thereof, the head of the institution shall state in the notice given
under paragraph 7(a)
(a) that the record does not exist, or
(b) the specific provision of this Act on which the refusal was
based or, where the head of the institution does not indicate
whether a record exists, the provision on which a refusal
could reasonably be expected to be based if the record
existed, and shall state in the notice that the person who
made the request has a right to make a complaint to the
Information Commissioner about the refusal.
(2) The head of a government institution may but is not
required to indicate under subsection (1) whether a record
exists.
(3) Where the head of a government institution fails to give
access to a record requested under this Act or a part thereof
within the time limits set out in this Act, the head of the
institution shall, for the purposes of this Act, be deemed to have
refused to give access.
25. Notwithstanding any other provision of this Act, where a
request is made to a government institution for access to a
record that the head of the institution is authorized to refuse to
disclose under this Act by reason of information or other
material contained in the record, the head of the institution
shall disclose any part of the record that does not contain, and
can reasonably be severed from any part that contains, any
such information or material.
The arguments in this case are built around two
different interpretations of the refusal process pro
vided by these sections. The applicants claim that
section 7 gives a requestor the right to access to
the whole or part of a record and the right to
notice whether that access will be given. The pur
pose of the notice provided by sections 7 and 10 is
to advise the requestor whether and why his right
will be denied. Paragraph 10(1)(b) requires that
the notice state the specific provision of the Act on
which the refusal was based. The applicants argue
that the words "the refusal" refer to each deletion
made from a record on the basis of exempting
provisions because each deletion represents a
refusal to disclose "part" of a record. They con
clude that reasons must be cited for each such
"refusal" and that those reasons must be as
detailed and specific for the denial of access to
part of a record as they would be if the whole
record had been refused.
The applicants also claim that the right to com
plain and seek a Court review of the decision to
refuse depends upon notice of the precise basis for
each exemption. The requestor who has been
refused needs the information to decide whether to
bring a complaint and in order to tie the govern
ment institution down to a particular basis for the
refusal.
The applicants do recognize some merit in the
Solicitor General's position and admit that in some
cases such particularization could defeat the pur
pose of the exemptions by allowing the requestor
to know or guess at the content of the deletion. In
those cases the applicants propose that the
respondent institution be permitted to establish the
reasonable likelihood of such a result and, if suc
cessful, that it be excused from having to provide
specific exemptions for each deletion.
Conversely, the respondent contends that the
right to access provided by sections 2, 3 and 4 of
the Act applies to "records" under the control of a
government institution, not to the information in
those records. By the opening words of each of the
exemption sections (sections 13-24), where a
record contains exempt information, the head of
the government institution is authorized to refuse
to disclose the entire record. If access is to be
refused, paragraph 10(1)(b) requires that specific
reasons be given in the letter of notice sent pursu
ant to section 7. Those reasons will consist of a list
of the exempting provisions applied.
The respondent submits that there is no basis for
interpreting section 10 to require a linking of
specific exemptions to specific portions of the
record just because it has been severed under
section 25. In cases where severance is not possible
and the entire document is withheld, no such
particularization would be required. The appli
cants cannot be entitled to more specific reasons
with regard to a severed and released document
than they would be given if the entire record was
withheld.
The respondent also argues that, in those cases
where provision of specific exemptions next to
deletions will provide "clues" as to their content,
the applicants' suggested solution to this problem
is not acceptable. The problem is created by an
unreasonable interpretation of paragraph
10(1)(b). The cure (requiring the government
institution to establish a reasonable chance of
injury) constitutes an additional and onerous
burden on the government institution which is not
set out specifically in the statute.
As I understand it, the problem at issue here
arises only where the head of the institution has
made the initial refusal and is then required to
interpret the obligation imposed by section 25 of
the Act to release portions that can reasonably be
severed. Any such severance, however, cannot alter
the basic fact that there is only one refusal when
the record is found to contain exempt material.
Subsequent disclosure of any portion as contem
plated by section 25 can only be interpreted as
further compliance, not as further refusal. If there
is only one refusal, only one notice of exempting
provisions should be required.
I do not find support in the legislation for the
applicant's proposition. It is clear from the terms
of sections 7 and 10 that what is required from an
institution which refuses access is a written notice
to the requestor of all the provisions of the Act
relied upon in refusing the request. The relevant
section numbers are to be provided in the letter of
notice. There is no indication that they must be
linked to specific deletions and certainly nothing
requiring that they be written directly on the
released document.
I also fail to see how notice in this form will in
any way prejudice the applicants' rights under the
Act. Any refusal automatically triggers the right
to complain and, ultimately, the right to seek
judicial review of every aspect of the refusal.
Those rights are not dependant on the provision of
specific exemptions for each deletion in a severed
record. The government institution is sufficiently
"tied down" to a basis for the refusal by the list of
sections provided in the section 7 notice.
That said, however, I should hasten to add that I
find the practice of providing section numbers next
to deletions, as many departments do, a highly
commendable one. While not strictly required by
the statute, such a practice appears to me entirely
in keeping with the basic purpose of the Access to
Information Act, which is to provide citizens with
as much information about their government as
possible. I would therefore urge that, where there
is no danger of revealing the substance of protect
ed information, government institutions should
continue to provide the relevant section numbers
for each deletion.
As a matter of law, however, the preliminary
question in this case must be answered in the
negative. The parties have agreed that, in the event
of a negative answer, these applications may be
dismissed. The section 41 applications are there
fore dismissed with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.